Calcutta High Court (Appellete Side)
Purba Kalikata Matsyajibi Samavai ... vs State Of West Bengal on 23 September, 2011
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IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Mr. Justice Syamal Kanti Chakrabarti
W. P. No. 17991(W) of 2009
Purba Kalikata Matsyajibi Samavai Samity Ltd. & Anr.
Vs.
State of West Bengal
For the petitioner : Mr. Bimal Chatterjee,
Mr. Swapan Banerjee,
Mr. Amalendu Sen,
Mr. Tushar Sinha Mahapatra.
For the opposite party nos. 2, 3
and 4 : Mr. Jayanta Mitra,
Mrs. Chhabi Roy,
Mr. Amit Kumar Chowdhury.
For the State : Mr. Balai Chandra Ray,
Mr. Supriya Bose.
For the respondent no. 8 : Mr. Shaktinath Mukherjee,
Mr. Debajyoti Dutta,
Mr. Soumya Roy Chowdhury.
Heard on : 15.12.2009, 22.12.2009, 19.01.2010,
23.02.2010, 05.03.2010, 21.04.2010,
06.05.2010, 07.05.2010, 11.08.2010,
18.08.2010, 25.08.2010, 06.09.2010,
14.09.2010, 05.10.2010, 19.11.2010,
30.11.2010, 06.12.2010, 15.03.2011,
24.03.2011, 28.03.2011, 07.04.2011,
08.04.2011 and 12.05.2011
Judgement on : 23.09.2011
Syamal Kanti Chakrabarti, J.:
2 The present application under Article 226 of the Constitution has been filed on behalf of Purba Kalikata Matsyajibi Samavai Samity Limited against the State of West Bengal and ors. contending, inter alia, that the petitioner no. 1 formed a society representing down-trodden community under Nonadanga, Madurdaha and Naskarhat mouzas in the district of South 24 Parganas as fishermen and formed the cooperative society for the purpose of fishing and psciculture having registration no. DF/45, 1989.
2. There are about 120 acres of water bodies in the said three mouzas which can be used for the purpose of psciculture. So they approached the respondent no. 2, the Director of Fisheries, Government of West Bengal for taking possession of the tanks developed by CMDA in East Calcutta Development Project and Baishnabghata Patulia Development Project. In their letter dated 14.03.1988. In response 83 ponds measuring 98.20 acres of water bodies which were developed by the CMDA were conveyed by CMDA to the Fisheries Department in their written communication dated 11.07.1988. Thereafter, the District Fisheries Officer, South 24 Parganas in his memo dated 06.05.1989 addressed to the respondent no. 2 proposed for granting lease of 120 acres of borrow pit water bodies taken over from CMDA under E.C.D.P. to the petitioner society. Accordingly, the State of West Bengal granted a lease of the said water bodies for a period of 10 years at an annual 3 rental of Rs. 12,000/- only by executing a lease deed on 21.05.1989. The said tenure was extended for a further period of five years at the same annual rent by another lease deed dated 27.05.1999. The tenure was further extended for a period of 10 years at an annual rental of Rs. 15,800/- by executing another lease deed on 03.01.2006. Since execution of the first lease deed the petitioner society is in actual physical possession and occupation of the entire 120 acres of water bodies of which there are 34 stocking ponds measuring total area of 98.20 acres, 20 nursery ponds measuring 2.72. acres and 29 rearing ponds which were developed by CMDA.
3. All on a sudden Dr. Moni Bhowmick Educational Foundation, being respondent no. 8 has started construction in a portion of the said water body by filling up and raising construction of boundary walls claiming that they have purchased 15 acres of land from the Government of West Bengal for setting up an educational institution. The writ petitioners then approached different authorities to prevent such illegal construction and conversion of water bodies by filling it up, but to no effect. Therefore, they have filed writ petition praying for restraining the respondent no. 7 from possessing the lease hold land of the petitioners and to restrain them from filling up the water bodies and to issue direction upon the respondent authorities to take steps so 4 that the petitioner society can use the said water bodies in terms of the lease granted to them by the Government of West Bengal without any disturbance from any corner in any way. They also prayed in prayer (b) of the petition a direction of this writ Court to cancel the lease or any other document of transfer granted in favour of Dr. Moni Bhowmick Educational Foundation but subsequently abandoned such claim.
4. Respondent no. 5, Executive Engineer, ECPD-1, SURAD and respondent no. 6, Kolkata Metropolitan Development Authority have filed affidavit-in-opposition opposing the above move. It is claimed by them that the claim of the petition is void, ab initio as they have not disclosed or annexed any document relating to description of the scheduled land, plot number, Khatian etc. Any deed created between the Fisheries Department and the petitioner by-passing the answering respondents is absolutely invalid. The aforesaid land was initially used to Kolkata Metropolitan Development Authority for excavating soil for the purpose of construction of Eastern Metropolitan By-Pass Road. As a result of such excavation some water accumulated by natural process which was given to the Fisheries Department for the purpose of utilization only through a letter issued by the answering respondent authorities and not by any agreement whatsoever. The activities of the Fisheries Department or Director appear to have been undertaken on 5 the basis of informal possession of the land without attaching any improvements, vital issue of title/ ownership of the land concerned in accordance with law.
5. In fact, it is further contended by them that for various development projects the State Government out of its acquired and vested land handed over total 265.20 acres of land in Mouza Nonadanga (181.23 acres), Laskarhat (38.14 acres), Madurdaha (41.93 acres), Chowbhaga (2.16 acres) and Paschim Chowbhaga (1.74 acres) in connection with LA case no. LD 55 of 1954-55 in the erstwhile District of 24 Parganas for settlement of emigrants under Gazette Notification No. 197741.. Dev. Dated 16.11.1956. It is there further case that out of the said 265.20 acres of acquired land, Refugee Relief and Rehabilitation Department actually handed over possession of 155.77 acres of land to KMDA informally but not through Land and Land Reforms Department, in exchange of 1000 developed plots of KMDA (60 square meter each) for the purpose of construction of E. M. By-pass. By way of extraction of soil from the said land measuring (21.4 acres + 20.59 acres + 19.08 acres) 68.01 acres. While developing E.M. By-Pass by way of extraction of soil from the said plots many ponds were formed. Out of those ponds KMDA authority handed over informal possession of 83 ponds covering 117.96 acres of land to the Fisheries Department, 6 Government of West Bengal on 11.07.1988 without any formal agreement or execution of lease deed between the Kolkata Metropolitan Development Authority and the Fisheries Department.
6. It is their further case that plot no. 1 of Madurdaha mouza measuring 47.63 acres of land was within the area covered by those 83 ponds. Out of the said 47.63 acres of land KMDA received informal possession of 33.10 acres of land from Refugee Relief and Rehabilitation Department on 16.09.1979. Subsequently KMDA acquired 14.53 acres of land in the year 2000. Thereafter, KMDA proposed Refugee Relief and Rehabilitation Department (hereinafter called as RR&RD) for formal transfer of 41.93 acres of land in Mouza Madurdaha in favour of Land and Land Reforms Department in their communication no. 280 Rehab dated 28.09.2000. Thereafter, the Land and Land Reforms Department sanctioned long term settlement of 82.90 acres of land in favour of KMDA out of the said 109.94 acres of land in terms of their memo no. 4409-GE(M)/IL-199.01 dated 29.12.2005 read with memo no. 1501-G.E. (M)/IL-1990/01 dated 06.06.2003. Out of the said 82.40 acres of land 9.29 acres was within plot no. 1 of mouza Madurdaha.
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7. The answering respondents have also contended that alleged claim of the writ petitioners over the land in question relates to matter of settlement of land under the Land Reforms Act which cannot be adjudicated by any Single Judge of this Hon'ble Court in writ jurisdiction. It can only be adjudicated by the Land Reforms and Tenancy Tribunal. It is further claimed in paragraph 7 that the settlement made by the State Government in favour of private respondent no. 8 Dr. Moni Bhomick Educational Foundation measuring a land of 15 acres have no concern whatsoever with the answering respondents KMDA. Such a settlement made by the Land and Land Reforms Department of the Government of West Bengal was absolutely within its competence and power and accordingly it cannot be challenged by anybody far less the petitioner herein as the petitioner did not have any claim over the said land in question. It will appear from the affidavit submitted by the State respondents and as such they have no concern whatsoever with the portion of land settled in favour of private respondent no. 8 as the land in question was not part of any land settled in favour of KMDA for development purposes. Accordingly, the prayers of the writ petitioner are hardly sustainable in law and as such liable to be dismissed with exemplary cost. 8
8. At the initial stage of hearing by order dated 26th April, 2009 the Collector, 24 Parganas (South) was directed by this Hon'ble Court to file an affidavit indicating the history of the land and its present state and use. Accordingly, the Collector, South 24 Parganas has filed an affidavit though not a respondent. In paragraph 3 of his affidavit he has narrated the history of the land in dispute. It appears from his averment that the subject-matter of the dispute in the instant writ petition relates to 15 acres of vested land in R. S. Plot No. 1, Mouza Madurdaha, J.L. No. 12. The classification of this land as per record of right is Layek Jungle. In terms of Section 49 of the West Bengal Land Reforms Act, 1995 read with Rule 20A(6) of the West Bengal Land Reforms Rules, 1965 the said 15 acres of land was settled on long term basis by Land and Land Reforms Department, Government of West Bengal to private respondent no. 8, Dr. Mani Bhowmick Educational Foundation in 2007. The said 15 acres of land is outside the area and purview of acquisition of land of Refugee Relief and Rehabilitation Department made in land acquisition case no. LD 55 of 1954-55. The balance land after such settlement of 15 acres is still with the Collector who is the recorded owner thereof. He has also averred that the said 15 acres of land allotted to respondent no. 8 at present is undulation an is very low land. He has also averred that no land was settled with 9 Department of Fisheries by Land and Land Reforms Department. Neither the Fisheries Department nor the writ petitioners have any right or title over the land in dispute and that Department of Fisheries never applied to Land and Land Reforms Department to get any settlement. It is also averred that there is no instance of fishery or psciculture over this exclusive 15 acres of vested land, a portion of which is very low land and restorable under the West Bengal Land Reforms Act. He has also averred that an illegal excavated land where no fishery or psciculture activity is done cannot form the basis of a writ petition under Article 226 of the Constitution alleging violation of Articles 14, 16 and 300A by a party which has no right or title over such vested land. At the time of his averment the said 15 acres of land consisted of partial high, partial low as well as very low land. It is their specific case that the Collector is a necessary party to the instant writ petition and the appropriate judicial forum for settlement of any dispute of this nature is the West Bengal Land Reforms Tribunal. The Collector is a separate entity and is the owner of the vast land as per record of rights under the West Bengal Estates Acquisition Act, 1953. It is further claimed by him that the West Bengal Inland Fisheries Act, 1984 does not provide for change or regularising conversion of classification of any land. The provisions of the said Act ought not to 10 be permitted to be used as tool for land grabs under the guise of fishermen cooperative society. Therefore, he has also raised the question of maintainability of the instant writ in his affidavit so filed under order of this Court.
9. In the affidavit-in-opposition filed by the respondent no. 8 similar question of maintainability of the writ petition has been raised. It is claimed therein that the writ petition should be dismissed for non- joinder of Land and Land Reforms Department, State of West Bengal as a necessary party. It is claimed that in September, 2006 Dr. Mani Bhowmick, a world famous scientist and chairman of Mani Bhowmick Educational Foundation approached the State of West Bengal for allotment of a plot of land to set up an information technology academy and an university with other related subjects which could include accommodating some poor meritorious students from rural Bengal for whom the entire expense would be borne by the said trust. In response 15 acres of land forming part of R.S. Plot no. 1 of Mouza Madurdaha, JL No. 12 was allotted on a long term lease for a period of 99 years to respondent no. 8 at a Selami of Rs. 4,74,08,268/- and at an annual rent of Rs. 1,42,225/- which was subsequently enhanced to Rs. 3,55,562/-. The said agreement for lease was executed on the 8th January, 2008 between the State of West Bengal and the respondent 11 no. 8. Thereafter, they started construction of boundary wall and so far completed the eastern and southern side and some portion in the northern and western side. The same could not be completed due to the intervention of the Fisheries Department and the petitioner cooperative. They have already spent a considerable amount for implementation of their project for some needy, poor, meritorious students of rural Bengal. In fact, they have acquired a valid right, title and interest over the said property from the Government of West Bengal on payment of valuable consideration. Under the circumstances no relief can be given to the petitioners whose claim is misconceived, vexatious, harrasive and as such should be dismissed in limine with exemplary costs.
10. The Land and Land Reforms Department though not impleaded as a party has also filed affidavit-in-opposition as per direction of this Hon'ble Court dated 26th October, 2009. It is contended by them that 15 acres of vested land has been legally settled in favour of respondent no. 8 and as per record of right the said land has been classified as 'Layek Jungle'. Such transfer by way of long term lease is permissible under Section 49(5) of the West Bengal Land Reforms Act, 1955 read with Rule 20A(6) of the West Bengal Land Reforms Rules, 1965. There is no mention in the writ petition of the description of the land in 12 dispute; such as plot number, khatian number etc. in which there has been infringement or invasion of the petitioner's right. It is also claimed by them that the dispute raised in the writ petition is vested land of the Government which is outside the area and purview of acquired land of Refugee Relief and Rehabilitation Department which had acquired some portion of Mouza Madurdaha etc. for the purposes of rehabilitation and settlement of refugees. It is, therefore, their specific case that out of 23.81 acres of land vested under the West Bengal Estates Acquisition Act, 1953 the private respondent no. 8 has been given 15 acres of land and the balance is still in possession of the Collector who is the recorded owner of the same. No land was settled with the Department of Fisheries by the Land and Land Reforms Department. In fact, CMDA/KMDA has excavated various plots of land for constructing EM By-Pass and develop the area long back in the year 1980 creating several low lands in the area. It is their averment that in the settled portion of 15 acres of such vested land to the respondent no. 8 there are marks of such illegal excavation which had created severe undulation and low lands in the said plot in some places. There is no instance of fishery or pscictulture of this exclusive 15 acres of vested land a portion of which was illegally excavated and as such restorable under the West Bengal Land Reforms Act, 1955. 13 Therefore, such a land cannot form the basis of a writ of like nature. Without permission of the Collector there cannot be any conversion of such illegally excavated land so as to bring it within the definition of fishery or psciculture, as the case may be and its classification as 'Layek Jungle' cannot be classified and juxtaposed with the expression 'artificially depressed land' within the definition of the West Bengal Inland Fisheries Act, 1984. It is the West Bengal Land and Land Reforms Tribunal which is the appropriate forum for adjudication of any such claim. In fact, Fisheries Department never approached the Land and Land Reforms Department for transfer of any land in their favour and they have no authority to excecute a lease deed in favour of writ petitioner no. 1 in respect of the disputed land. Therefore, there is no merit in this writ petition which should be dismissed in limine.
11. Respondent nos. 1, 2 and 3 have also filed affidavit-in-opposition contending, inter alia, that the disputed RS plot no. 1 of Mouza Madurdaha under Tiljala PS is a plot of land having existing water body and is being used as fishery by the petitioner no. 1 with permission of the Government of West Bengal since 1988. In terms of Clause (a) under Section 17A(1) of the West Bengal Inland Fisheries Act, 1984 no person shall put any water area including embankment measuring 5 cattahs or 0.035 hectare or more which is capable of 14 being used as fishery or any natural or artificial depressed land holding 5 cottahs or 0.035 hectares of land which retains water for a minimum period of six months in a year to such use other than fishery as may result in abolition of fishery.
12. It is their further case that in terms of sub-Section 9 of Section 17A of the West Bengal Inland Fisheries (Amendment) Act, 2008 any individual or body of individuals or any organisation in the private sector for the purposes of such section shall apply to the State Government in the Department of Fisheries for permission of filling up any water body after reallocating or re-excavating a new water area in the same locality of equal dimensions of the water area proposed to be filled up. He should also submit a certificate of conversion while applying for such permission. In the instant case no such step has been taken by the private respondent no. 8 before filling by the disputed water body. In terms of the aforesaid provisions the District Land and Land Reforms Officer of the concerned District is empowered to grant said permission for change, conversion, alteration of any water body. In paragraph 3(f) of the affidavit-in-opposition it has been claimed that the land in dispute is vested land having water body which is accrued due to development activities of the Government. It was converted to water body before implementation of the West Bengal 15 Land Reforms Act, 1956. The CMDA (now KMDA) had changed classification of the land to water body in the pursuit of their development projects surrounding Baishnabghata, Patuli area and handed over the same to the Fisheries Department for psciculture through their letter no. 6271 CMDA/SECTT (Prog.)/G-2185 dated 19.08.1987. Therefore, the classification of the land as "Layek Jungle"
recorded in RS record of rights is now non-existent. The Collector has not taken any step for correction of such record of right even though the character of the land in question was changed long back.
Nevertheless such land, though still wrongly written as "Layek Jungle"
will attract the provisions of Forest Conservation Act of 1980 and will be classified as forest land. Accordingly, on 12th October, 2009 the Deputy Director of Fishery (Kolkata Zone) lodged a complaint before the respondent no. 7 for violation of Section 17A of West Bengal Inland Fisheries Act, 1993. The procedural formalities of correction of the relevant record of rights may be undertaken under Section 50 of the West Bengal Land Reforms Act, 1955 and relevant provisions of Rule 166(ii) of the West Bengal Land and Land Reforms Manual, 1991. In fact, in this way the respondent nos. 2, 3 and 4 have tried to defend their administrative action in executing the lease deed in favour of the petitioner no. 1.
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13. The contending parties have also filed supplementary affidavit and replied to the affidavit-in-opposition filed against each other to explain in details the aforesaid contentions by way of clarification and addition of certain information which will be discussed at the time of consideration of the merit of this writ petition.
14. The appearance of the learned Advocate General on behalf of the State of West Bengal has been called in question because the respondent nos. 1, 2 and 3 have engaged their own Counsel who wanted to make separate submission on behalf of the Fisheries Department. The petitioners also have not impleaded the Land and Land Reforms Department as well as Kolkata Metropolitan Development Authorities and the Refugee Relief and Rehabilitation Department who are necessary parties to this writ petition for which this Court by earlier orders had directed the KMDA, the Land and Land Reforms Department to file affidavit in support of their contention as well as the actual state of affairs. Under these circumstances a good number of questions are to be adjudicated in deciding the merit of this writ petition which are taken up hereunder:
15. Cases referred to by the parties:
A. Cases relied upon by the writ petitioner:
i) 86 CWN 1073
ii) AIR 2002 SC 2532 17
iii) AIR 1990 Cal 135 (para 2)
iv) AIR 1960 Patna 344 (para 12)
v) 2009(3) Cal.L.T. 471
vi) 86 CWN 1073 (para 8) B. Cases relied upon by the learned Advocate General:
i) 2002(1) SCC 216 (para 307)
ii) AIR 1996 SC 207 (paras 6, 7 and 8)
iii) AIR 1959 SC 1264 (para 27)
iv) 2004 SCC 595 C. Cases relied upon by the respondent nos. 1 to 4:
i) AIR 1993 Cal 215 (paras 4, 9 and 40)
ii) AIR 1977 SC 536 (paras 20 and 21)
iii) (1997) 1 SCC 388 (para 24)
iv) 2009 (3) CLT 471 (HC) (para 6 and 9)
v) (2008) 5 SCC 58 (paras 19 to 25)
vi) 1996(1) CHN 123 (para 91)
vii) 1977(1) SCC 486 (para 9)
viii) 1977 (4) SCC 145 (paras 8, 11 and 15) D. Cases relied upon by respondent no. 8:
i) 2008(5) SCC 58 (paras 23 and 25)
ii) 1976(1) CLJ 558
iii) AIR 1954 SC 340
iv) 78 CWN 183
v) (2003) 3 SCC 472 (paras 14 and 15)
vi) AIR 1990 SC 2192 (para 9)
16. From the arguments advanced by the learned Counsel for both the parties I find that this is much ado about something on a tragedy of errors. To resolve the dispute the following points need be considered:
Question no. 1: What is the role of the learned Advocate General in the case to which the State is a party?18
Question no. 2: Can the instant dispute be referred to a high powered departmental committee?
Question no. 3: Is the writ petition maintainable in its present form?
Question no. 4: Which department of the State Government is legally empowered to hold transfer and dispose of vested and acquired land in possession of the State?
Question no. 5: What is the nature of the instrument claimed by the writ petitioners as the document of right to possess the fisheries in question?
Question no. 6: Whether the disputed land is properly described in the instrument so that it can be easily identified or not?
Question no. 7: Is registration of the said documents mandatory?
Question no. 8: What is the nature of the disputed land in possession of the writ petitioners as per record of rights? Can the Writ Court decide this disputed question of fact?
Question no. 9: Why the tragedy of errors?
Question no. 10: Has any right of the writ petitioners invaded by respondent no. 8? If so, to what extent?
Question no. 11: What reliefs can be granted to the writ petitioners in the facts and circumstances?19
17. Question no. 1: What is the role of the learned Advocate General in the case to which the State is a party?
Answer: In this connection the provisions of Article 165(2) of the Constitution need be placed on record.
"Article 165(2): It shall be the duty of the Advocate-General to give advice to the Government of the State upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the Governor, and to discharge the functions conferred on him by or under this Constitution or any other law for the time being in force."
Mr. Mukherjee, learned Counsel for respondent no. 8 has submitted that the concept of 'State' is indivisible and departments of Government cannot come forward separately before the Court to claim any relief on behalf of the State having interdepartmental conflict. There should one stand of the State either through the Fisheries Department or through the Land and Land Reforms Department so as to project the voice of the State in its proper perspective. Referring to and relying upon the principles laid down in AIR 1990 Supreme Court 2192 (paragraph 9) it is contended that the learned Advocate General holds a Constitutional post and when he takes a stand on behalf of the State, any contrary or other 20 stand cannot be taken for and on behalf of any division or department of the State.
Admittedly the learned Advocate General of the State is assigned with all legal matters pertaining to the State of West Bengal and to perform such other duties of the legal character in the discharge of his functions conferred under the Constitution. For this purpose he does not require any written engagement from the learned Legal Remembrancer. If he receives any instruction from the Government he is constitutionally empowered to appear in Court in any case to represent the State and to make submission before the Court regarding the disputed matter. To be more practical I conceive when different departments engage separate Lawyers to ventilate their departmental stand which may give rise to interdepartmental conflict as in the instant case, appearance of the learned Advocate General in such case will be treated by the Court as intended to assist the Court to seek harmony and balance in the submission of departmental Lawyers who would be treated as assisting the learned Advocate General in the matter of forming the unified voice of the State according to law and the Constitutional mandates. For the aforesaid purposes I have allowed the learned Advocate General to participate in the hearing by order dated 23.02.2010 on the following grounds:
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"The State appoints Lawyers to defend on behalf of its various departments through its panel of Lawyers and by virtue of its constitutional position learned Advocate General can appear and lead any such State Advocate to protect interest of the State. Such appearance, in my opinion, does not import any concept of plurality in the definition of 'State'."
Therefore, though the State has appointed learned Senior Counsel Mr. Jayanta Mitra to represent the respondent nos. 1 to 4, the learned Advocate General was allowed and invited to assist the learned Senior counsel for respondent nos. 1 to 4 to protect the interest of the State for which the office of the learned Advocate General has been created under Article 165 of the Constitution and as such I hold that his appearance is necessary to resolve interdepartmental conflicts over distribution of land in possession of State surfaced before the Court of law.
18. Question no. 2: Can the instant dispute be referred to a high powered departmental committee?
Answer: It appears that the writ petitioners being private individuals have sought for remedies against invasion of their rights to the disputed tank fisheries and water bodies on account of action or inaction of the respondent government authorities. Earlier the Hon'ble Apex Court held in 2003(3) SCC 472 that under the scheme of the Constitution, article 22 131 confers original jurisdiction on the Supreme Court in regard to a dispute between two States in the Union of India or between one or more States in Union of India. It was not contemplated by the framers of the Constitution or CPC that two departments of a State or the Union of India will fight a litigation in a Court of law. It is neither appropriate nor permissible for two departments of a State or the Union of India to fight litigation in a Court of law. In deed such a course cannot but be detrimental to public interest as it also entails avoidable wastage of public money and time. Various departments of the Government are its limbs and, therefore, they must act in coordination and not in confrontation. Filing of a writ petition by one department against other by invoking the extraordinary jurisdiction of the High Court is not only against the propriety and polity as it smacks of indiscipline but is also contrary to the basic concept of law which requires that for suing or being sued there must be a juristic person. Therefore, the Hon'ble Apex Court directed the State or Union of India to evolve a mechanism to set at rest an interdepartmental controversy at the level of the Government as such matters should not be carried to the Court of law and, therefore, directed the Central Government to set up a committee consisting of representative from various departments to monitor disputes between the contending parties to ensure that no litigation comes to Court or to a 23 Tribunal without the matter having been first examined by the committee and its clearance for litigation.
Subsequently, such direction appeared before the Hon'ble Apex Court has not achieved the result for which such committee was constituted and the Hon'ble Court has also noticed that in fact, constitution of such committee led to delays in litigation and the mechanism has made the delay in filing of civil appeals causing loss of revenue. Therefore, in the case of Electronic Corporation of India Limited -Vs.- Union of India and Ors. reported in (2011) 3 SCC 404 the Hon'ble Apex Court was pleased to recall the directions given before by their Lordships in various orders reported as ONGC (ii) dated 11.10.1999 ONGC (iii) dated 07.01.1994 and ONGC (iv) dated 20.07.2007. Therefore, in view of such latest decision, there is no obligation for the Writ Court to direct the State to constitute any high powered committee for resolution of the conflicts between the Fisheries Department as well as Land and Land Reforms Department of Government of West Bengal. Therefore, I am inclined to decide the writ petition on its merit.
19. Question no. 3: Is the writ petition maintainable in its present form? Answer: From the circumstances of this case it will appear that it is a dispute between a registered society and the State of West Bengal. While 24 Fisheries Department is defending itself and supporting the cases of the writ petitioner, the State through its Land and Land Reforms Department is opposing such action of the Fisheries Department as unconstitutional. This sort of dispute is not between two private individuals and some arguable points need be resolved in this case. The writ petition has been filed to protect possessory right of the writ petitioner against the State which is maintainable in law. In essence subject matter of the writ petition is to decide dispute over State action amongst three departments, i.e., Fisheries Department, Refugee Relief and Rehabilitation Department and Land and Land Reforms Department along with the action of respondent nos. 5 and 6, KMDA.
Referring to the case reported in (2002) 1 SCC 216 (State of Bihar and Ors. Vs. Jain Plastics and Chemicals Limited) the Learned Advocate General submitted that in the above case the Hon'ble Apex Court has held that a writ is not the remedy for enforcing contractual obligations. It is open to the respondent to approach the court of competent jurisdiction for appropriate reliefs against breach of contracts. So according to Mr. Roy, the writ petition is not maintainable. I find that the above case deals with the question of supply of PVC pipes and fitting which arises out of contract. In this case legality of distribution of Government land without 25 public tender is questioned for public interest. Therefore, I hold that said principle will not be applicable in this case.
In the above context Mr. Mitra, learned Senior Counsel has referred to and relied upon the case of Mani Subrat Jain & Ors. -Vs.- State of Haryana & Ors. reported in (1977) 1 SCC 486. In the said case it is set at rest that no one can ask for a Mandamus without a legal right. There must be a judicially enforceable right as well as a legally protected right before one suffering a legal grievance can ask for a Mandamus. A person can be said to be aggrieved only when a person is denied of a legal right by someone who has a legal duty to do something or to abstain from doing something. In the instant case the writ petitioners have no such legal right against the Fisheries Department and as such they cannot seek for any Mandamus against the Fisheries Department. This argument is not acceptable in view of the urgent necessity of correction of relevant record of rights and relayment of the water bodies in possession of the writ petitioners without determining its exact area and boundaries for which the respondent no. 8 is now affected though possessing valid right, title and interest in the 15 acres of land mentioned therein and claimed by the Land and Land Reforms Department as not included in the said 120 acres of land. 26 Mr. Mukherjee, learned Senior Counsel has contended that non-joinder of appropriate party to represent the State of West Bengal in this case is not vital. He has referred to and relied upon the principles laid down by the Hon'ble Apex Court in the case of Chief Conservator of Forest, Government of A.P. -Vs.- Collector and Ors. reported in (2003) 3 SCC
472. In paragraph 13 of the said case it has been set at rest by the Hon'ble Apex Court that sate is a necessary party and should be impleded as provided in Article 300 of the Constitution and Section 79 of the Civil Procedure Code viz., the State/ Union of India, as the case may be, lest the suit will be bad for non-joinder of the necessary party. This principle does not apply to a case where an official of the Government comes as a statutory party and sues was pursues further proceeding in its name because in that event it will not be a suit or proceeding for or on behalf of a State/ Union of India but by the statutory authority. In the instant case the officers of the Fisheries Department are contesting the suit to defend their authority in exercise of which they have executed the three lease deeds. Therefore, in view of the above principle the suit is maintainable in law and cannot be defeated for non-joinder of other necessary parties.
Mr. Roy, while questioning the maintainability of the writ petition has contended that the entire action of the Fisheries Department in granting 27 such lease is without any relief from the Writ Court. He has referred to and relied upon the case of Mannalal Khetan etc. -Vs.- Kedar Nath Khetan) reported in AIR 1977 SC 576. It has been held therein that it is well established that a contract which involves in its fulfillment the doing of an act prohibited by statute is void. The legal maxim a pactis privato rum publico juri non-derogatur means that private agreements cannot alter the general law. Where a contract, expressed or implied, is expressly or by implication forbidden by a statute, no Court can lend its assistance to give it effect. What has done in contravention of the provisions of an Act of the legislature cannot be made the subject of an action. If anything is against law though it is not prohibited in the statute but only a penalty is annexed, the agreement is void. It is further held therein that in every case where a statute inflicts a penalty for doing an act, though the act be not prohibited, yet the language is unlawful, because it is not intended that a suit would inflict a penalty for a lawful act. Mr. Roy further submits that if the contents of those lease deeds are considered from the point of view of the aforesaid ratio it will appear that there is penal clause for vitiating or rescinding the contract in case of non-fulfillment of the conditions laid down therein or failure to maintain the property in question. Therefore, the agreement between the petitioner as well as the Fisheries Department, which is not 28 legally vested, is against the law and as such not enforceable through Writ Court. Since Mr. Roy has also argued that the said instrument can not be lease deed but at best can be treated as licence the ratio in the above case will, in my opinion, not govern this case and from different point of view the continuous possession of the writ petitioner followed by acceptance of rent by the State Government establishing a relation between them shall have to be taken in account and for this reason I hold that the petitioners can claim adequate reliefs for protecting their possessory right during the continuance of the lease in question. In the case of Bihar Eastern Gangetic Fishermen Cooperative Limited reported in (1977) 4 SCC 145 in paragraph 15 the Hon'ble Apex Court has considered that there is abundant authority in favour of the proposition that a Writ of Mandamus can be granted only in a case where there is statutory duty imposed upon the officer concerned and there is a failure on the part of that office to discharge the statutory obligation. The chief intention of a writ is to compel performance of public duty, prescribed by statute and to keep subordinate Tribunals and officers exercising public functions within the limit of their jurisdiction. Therefore, Mandamus may be issued to compel authorities to do something, which must show that there is a statute which imposes a legal duty and the aggrieved party as a legal right under the statute to 29 enforce its performance. The officers of the Fisheries Department i.e., respondent nos. 1 to 4 in the instant case have not failed to discharge their legal duty for violation of any legal right in favour of the writ petitioners and, therefore, no relief can be granted to the writ petitioner against the respondent nos. 1 to 4 and from this point of view the writ is not maintainable. I do not subscribe to this view because in the schedule of the lease documents there is no detailed and specific description of 120 acres of land within Madurdaha mouza in respect of which those respondents have conferred right to catch and rear fishes in favour of the writ petitioners for a specified period. Execution of the document in favour of the writ petitioner, the Fisheries Department, though not in conformity with the Rules of Business, it appears that a duty is cast upon the officers of the Fisheries Department to protect the legal right granted in favour of these poor fishermen by them for which appropriate order in the nature of Writ of Mandamus is required to be issued to them for the purpose of demarcation of the land in possession of the writ petitioner and change of record of rights regarding classification of the land stated to be 'Layek Jungle' which is not in existence. For the above purpose the suit should be treated as maintainable. So, I answer this issue in the affirmative.
30
20. Question 4: Which department of the State Government is legally empowered to hold transfer and dispose of vested and acquired land in possession of the State?
Answer: On this point two sets of arguments are forthcoming. Mr. Balai Roy, learned Advocate General has submitted that the Constitution has vested in the Governor of the State under Article 166(3) to make rules for adjudication and disposal of business of the Government in its various departments. Accordingly, in exercise of such power the Governor of West Bengal by notification no. 1209 A.R. dated 5th June, 1964 has framed Rules of Business for the State of West Bengal specifying how the business of the Government shall be transacted in the departments specified in the First Schedule and shall be classified and distributed among those departments as laid down therein. In the said First Schedule the respective allocation of business of Department of Land and Land Reforms under serial no. IV, Department of Refugee Rehabilitation, Relief and Welfare (Including Scheduled Casts and Tribes Welfare) under serial no. XIII and Department of Fisheries under serial no. XVIII have been specified as quoted below:
"IV. Department of Land and Land Reforms Part I
1. Definition of rights in or over land and incidents of land tenure.31
2. Acquisition of land for public purposes.
3. Collection of public revenue from land and from cesses.
4. Constitution and regulation of Rent and Revenue Courts.
Part II
1. State public services with which the department is concerned (entry 41 of List II).
2. Constitution and organisation of Rent and Revenue Courts and fees taken therein (entry 3 of List II).
3. Jurisdiction and powers of Rent and Revenue Courts with respect to any of the matters in List II (entry 65 of List II).
4. Procedure in Rent and Revenue Courts (entry 3 of List II).
5. Acquisition or requisitioning of property (entry 42 of List III).
6. Land, that is to say, rights in or over land, land tenures and the collection of rents; transfer and alienation of agricultural land; colonisation (entry 18 of List II).
7. Offences against laws with respect to any of the matters in List II with which the department is concerned (entry 64 of List II).
8. Land revenue including the assessment and collection of revenue, the maintenance of land records, survey for revenue purposes and records of rights and alienation of revenues (entry 45 of List II).
9. Tolls in respect of any matter with which the department is concerned (entry 59 of List II).
10. Fees in respect of any of the matters in List II with which the department is concerned, but not including fees taken in any Court (entry 66 of List II).
11. Professions with which the department is concerned (entry 26 of List III).32
12. Inquiries and statistics for the purpose of any of the matters specified in List II or List III with which the department is concerned (entry 45 of List III).
13. Fees in respect of any of the matters in List III with which the department is concerned, but not including fees taken in any Court (entry 47 of List III).
14. Treasure trove (entry 44 of List II).
15. Recovery in a State of claims in respect of taxes and other public demands, including arrears of land revenue and sums recoverable as such arrears, arising outside that State (entry 43 of List III).
16. Jurisdiction and powers of Rent and Revenue Courts with reference to matters in List III (entry 46 of List III).
17. Management of Evacuee properties.
Part III
1. Union agencies and institutions for -
(a) professional vocational and technical training; or
(b) the promotion of special studies of research; so far as these concern subjects dealt with or services administered by the department (entry 65 of List I)
2. The Survey of India (entry 68 of List I).
3. Offences against laws with respect to any of the matters in List I with which the department is concerned (entry 93 of List I).
4. Inquiries, surveys and statistics for the purposes of any of the matters in List I with which the department is concerned (entry 94 of List I).
5. Fees in respect of any of the mattes in list I (but not including fees taken in any Court) with which the department is concerned (entry 96 of List I).
33XIII. Department of Refugee Rehabilitation, Relief and Welfare (Including Scheduled Castes and Tribes Welfare) Part I
1. Relief and rehabilitation of displaced persons from East Bengal.
2. Relief and rehabilitation of distressed persons.
3. Social Welfare activities.
4. Promotion of tribal welfare and regulation of all matters in connection therewith. Relations with the Backward Class Commission.
Part II
1. State public services with which the department is concerned (entry 41 of List II).
2. Relief and rehabilitation of persons displaced from their original place of residence by reason of the setting up of the Dominions of India and Pakistan (entry 27 of List III).
3. Custody, management and disposal of property (including agricultural land declared by law to be evacuee property) (entry 41 of List III).
4. Inquiries and statistics for the purpose of any of the matters in List II or List III with which the department is concerned (entry 45 of List III).
5. Professions with which the department is concerned (entry 26 of List III).
6. Fees in respect of any of the matters in List III with which the department is concerned but not including fees taken in any Court (entry 47 of List III).
7. Agricultural loans (entry 18 of List II).
34
8. Relief of the disabled and unemployable (entry 9 of the List II).
9. Reformatories, Borstal institutions and other institutions of a like nature, and persons detained therein; arrangements with others States for the use of other institutions than prisons (entry 4 of List II).
10. Vagrancy (entry 15 of List III).
11. Offences against laws with respect to any of the matters of List II with which the department is concerned (entry 64 of List II).
12. Fees in respect of any of the matters in List II with which the department is concerned (entry 59 of List II).
13. Contracts and agency in respect of any of the matters with which the department is concerned (entry 7 of list III).
Part III
1. Union public services in respect of matters with which the department is concerned (entry 70 of List I).
2. Union agencies and institutions for -
(a) professional, vocational or technical training; or
(b) the promotion of special studies or research; so far as subjects dealt with or services administered by the department are concerned (entry 65 of List I).
3. Offences against laws with respect to matters in List I with which the department is concerned (entry 93 of List I).
4. Inquiries, surveys and statistics for the purpose of any of the matters in list I with which the department is concerned (entry 94 of List I).
5. Participation in international conferences, associations and other bodies and the implementing of decisions made thereat so far as the department is concerned (entry 13 of List I).
35
6. Entering into treaties and agreements with foreign countries and the implementing of treaties, agreements and conventions with foreign countries so far as the department is concerned (entry 14 of List I).
XVIII. Department of Fisheries Part I
1. Development and utilisation of the State's fisheries.
2. Regulation of employment in fisheries and promotion of the welfare of workers in fisheries.
3. West Bengal Deep-sea Fishing Board.
Part II
1. State public services with which the department is concerned (entry 41 of List II).
2. Fisheries (entry 21 of List II).
3. Employment and unemployment of workers in fisheries; their social security and social insurance (entry 23 of List III).
Part III
1. Union public services in respect of matters with which the department is concerned (entry 70 of List I).
2. Institutions for scientific or technical education financed by the Government of India wholly or in part and declared by or under law made by Parliament to be institutions of national importance (so far as the subjects dealt with by this department are concerned) (entry 64 of List I).
3. Union agencies and institutions for -
(a) professional, vocational or technical training; or
(b) the promotion of special studies or research;
36
so far as the subjects dealt with or services administered by this department are concerned (entry 65 of List I).
4. Fishing and fisheries beyond territorial waters (entry 57 of List I).
5. Offences against laws with respect to any of the matters in List I with which the department is concerned (entry 93 of list I).
6. Inquiries, surveys and statistics for the purposes of any of the matters in List I with which the department is concerned (entry 94 of List I).
7. Fees in respect of any of the matters in List I (but not including fees taken in any Court) with which the department is concerned (entry 96 of List I).
8. Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions (so far as the subjects dealt with by this department are concerned) (entry 66 of List I).
9. Participation in international conferences, associations and other bodies and implementing decisions made thereat - so far as the department is concerned (entry 13 of List I).
10. Entering into treaties and agreements with foreign countries and implementing the treaties, agreements and conventions with foreign countries - so far as the department is concerned (entry 14 List I)."
21. From the above allocation of business in respect of department of Land and Land Reforms it will appear that under item no. 6 land that is to say, rights in or over land, land tenures and the collection of rents, transfer and alienation of agricultural land, colonization etc. are vested in the department of Land and Land Reforms. Similarly, under item 37 no. 8 land revenue including the assessment and collection of revenue, maintenance of land records, survey for revenue purpose and records of rights and alienation of revenues are also assigned to the same department. Particularly, from Chapter XIII it will appear that in the assignments made in three parts namely, part 1, part 2 and part 3 no power has been vested in the other departments to transfer any land in possession of the Government. The Refugee Relief and Rehabilitation Department is basically concerned about relief and rehabilitation of displaced person from East Bengal, distressed persons, social welfare activities and promotion of tribal welfare and regulation of all matters in connection therewith including relations with the Backward Class Commission etc. Similarly, from Chapter XVIII it will appear that the Department of Fisheries' allocated business includes development and utilization of the state fisheries (item no. 1 of part 1) and fishing and fisheries beyond territorial waters (item no. 3 of part 3). Therefore, Fisheries Department is not empowered to acquire and transfer any vested or acquired land of the State as per the business allocation made and specified in the Rules of Business.
22. Mr. Roy has, therefore, submitted that in terms of such Rules of Business framed by the State and followed all along by the State the 38 Government, the Land and Land Reforms Department is the only authority to hold, acquire and transfer land, vested or acquired, in accordance with the said policy. But neither the Fisheries Department nor the Refugee Relief and Rehabilitation Department can assume such power in violation of the Rules of Business. This transgression of power by other departments will not only constitute a breach of the said Rules of Business but also against the mandate of the Constitution. Therefore, the action taken by those departments relating to the disputed matter should be considered from such point of view.
23. Mr. Jayanta Mitra, learned Senior Counsel representing the Fisheries Department has held on the contrary that the allocation of business as mentioned in the Rules of Business has not been violated in the matter of granting lease to the writ petitioners in the instant case because it will come within the purview of fishing and fisheries under the item no. 2 of Part II. In the implementation of the said provision some latitude is necessary for all practical purposes for fulfiling the objects specified in the Rules of Business. Mr. Mitra has also argued that the joint ministerial responsibility of the Governor gives ample power to the Minister-in-charge of a department to act independently on behalf of the State Government for implementing the objects assigned to the 39 department under the Rules of Business. A Minister, so long as he holds office during the pleasure of the Governor, is therefore, a representative of the State in the true sense of the term and, therefore, if any piece of land in possession of the Fisheries Department is allotted to the fishermen representing poorer section of the society it cannot be treated as unconstitutional in a welfare State like us.
24. Mr. Mitra has drawn my attention to Article 164(2) of the Constitution which provides that the Council of Ministers shall be collectively responsible to the Legislative Assembly of the State. This power will prevail upon the provisions of Clause 3 of Article 166 of the Constitution which empowers the Governor to make rules for more convenient transaction of the business of the Government of the State and for the allocation of duties among ministers of the said business to which the Governor by or under this Constitution requires to act in his discretion. If this clause is construed in its true sense it is mere an administrative function of the Governor for the purpose of convenient transactions which cannot override or takeaway the ministerial responsibility contemplated in Clause 2 of Article 164 of the Constitution.
40
25. Mr. Mitra further submits that from Rule 7 of the Rules of Business it will appear that the Council of Ministers shall be collectively responsible for all advice tendered to the Governor and all orders issued in the name of the Governor, where such advice is tendered or such order is authorised for an individual Minister on a matter pertaining to his department or as the result of discussion on a meeting of the council or the cabinet or whatsoever otherwise. He has also referred to Rule 9 of the said Rules which provides that without prejudice to the provision of Rule 7, the Minister-in-charge of a department shall be primarily responsible for the disposal of the business pertaining to the department. Referring to this rule Mr. Mitra has further argued that since Minister-in-charge of a department is primarily responsible for the disposal of the business allotted by the Governor he is constitutionally empowered to act independently and take appropriate decision in respect of item no. 1 of Chapter XVIII, in respect of item in part I dealing with development and utilization of State Fisheries. Now in course of developmental activities if it requires change of the nature of any fishery, consent of the Fisheries Department is required and without that the Land and Land Reforms Department cannot allot any portion of fisheries in favour of respondent no. 8 which shall be treated as illegal. In this connection 41 he has also referred to page 725 of the observations made by D. Basu in his Shorter Constitution of India, 13th Edition, 2001 dealing with the allocation of business. Referring to the principles laid down by the Hon'ble Apex Court in Godabari Shamrao Parulkar -Vs.- State of Maharashtra, reported in AIR 1964 SC 1128 Dr. Basu has mentioned the ratio which postulates that the allocation of business among ministers need not be made with reference to each law after it is made. It is made with reference to the subjects of legislation under the three list in the 7th Schedule. He has also referred to the principles laid down by the Hon'ble Apex Court in the case of State of Karnataka - Vs.- Union of India reported in 1978 SC 68. It has been held therein that read with Article 154(1) of the Constitution the present provisions, i.e., the executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution and that the executive action of the State may be exercised not only through the Council of Ministers as held, but also through individual ministers as authorised by the rules. Each minister being an 'officer' for purposes of Article 154(1), his official acts cannot be distinguished from those of the State on whose behalf he acts. Moreover, Rule 26 of the Rules of Business specifically provides that if a question arises as to the 42 department to which a case primarily belongs, the matter shall be referred for the decision of the Chief Secretary who will, if necessary, obtain the order of the Chief Minister.
26. Having regard to the aforesaid provision I find that unfortunately in the instant case no such question was referred to the Chief Secretary of the Government before executing such deeds in question in favour of the writ petitioners by the Fisheries Department. From a conjoint reading of all the aforesaid provisions what ultimately emerges is that the exact function of the Governor has been divided in various segments and allotted to various departments under the scheme of the Rules of Business. Whereas in the relevant Rules of Business for the Fisheries Department there is no provision for dealing with acquisition or transfer or disposition of the land vested in or acquired by the State, the Fisheries Department cannot transfer any such land in exercise of its constitutional power. The allocation of the business of the State through different departments is a constitutional mandate exercised by the Governor and any deviation from such norms and departure must be routed through the Chief Secretary and decided by the Council of Ministers in the cabinet otherwise there would be absolute discord, administrative stalemate and constitutional crisis in executing policy decision of the Government regard being had to its financial 43 resources. For example, if every Minister-in-charge of a department decides that for the purpose of effective and diligent discharge of any of the businesses enumerated in the First Schedule of the Rules of Business at his sweet will without any regard for the annual budgetary provision, this would ultimately lead the state to bankruptcy. Therefore, in the Rules of Business there is provision that in all financial matters the concurrence of the Finance Department is necessary. In this way there should be coordination, harmony and interdependence in the various departments of the Government so far as it relates to their respective business mentioned in the First Schedule annexed to the Rules of Business. Since there is provision for removal of any doubt regarding exercise of such power in rule 26, without taking recourse to such power no department can, on its own accord, deal with any subject which is not included in the Rules of Business framed by the Governor in exercise of his power conferred under Article 166(3) of the Constitution.
27. Mr. Chatterjee, learned Senior Counsel for the writ petitioners has argued that Section 49 of the Land Reforms Act lays down the principles of distribution of land. Land in dispute, he claims, is not 'vested land' but 'acquired land'. The total area of 47.63 acres of land in R.S. Plot no. 1 is not vested land. He claims that out of it 14.53 44 acres was acquired by KMDA, 9.29 acres acquired by R.R and R Department and 23.81 acres was vested in the State. It will be evident from Notification no. 7548L. Dev. dated 22.04.1955 that CS/RS plot no. 1 is wholly acquired land (annexure P-3). By Notification no. 19772L Dev. dated 16.11.1956 part of CS plot no. 1 of Madurdaha Mouza was cancelled and by Notification no. 19774L Dev. dated 16.11.1956 part of CS plot no. 1 of Madurdaha Mouza. In the relevant Possession Certificate it is shown that 33.10 acres of land in Madurdaha Mouza is acquired land while 14.53 acres was not acquired. This fact has not been disclosed and reflected in paragraph 4(viii) of the affidavit-in-opposition filed by the State. But it is apparent on the face of record as per notice dated 27.03.1983 mentioned at page 36 of their A.O. He has further claimed that by annexure P-16, 83 ponds and stocking ponds (very deep) were handed over to the Fisheries Department in 1988 as shown in the Sketch Map at Annexure P-16. Therefore, in terms of Section 49 of the L.R. Act, 1955 read with Rule 20A of the W.B. Land Reforms Rules, 1955, Fisheries Department is the only authority to hold and transfer such land for public interest. But I am unable to accept such proposition because, Section 49 of the L.R. Act deals with principles of distribution of land amongst local residents 45 which land is used for the purpose of agriculture and not psciculture and it is intended for the benefit of Bargaders and not fishermen. This will be more reflected in and fortified by Rule 20A of the W.B. Land Reforms Rules, 1955 which is quoted below:
"Rule 20A. Terms and manner of settlement of lands at the disposal of the State Government under Section 49-(1) Settlement of lands which are at the disposal of the State Government may be made by the Collector of the district or the District Land and Land Reforms Officer or the Subdivisional Officer of the sub-division of the district in which the lands are situated."
All the aforesaid officers work under the administrative control of the Land and Land Reforms Department for the purposes of said provision. So, Fisheries Department cannot claim any benefit from the aforesaid provision.
28. I also find corroboration of this fact from the affidavit filed by the Collector, South 24 Parganas claiming that he is a custodian of the vested land in the District and possessing the same on behalf of the Government which is in fact, followed in every district and thereby the 46 Land and Land Reforms Department exercises its power by acquiring and possessing land and incidence of land tenure, acquisition of land for public purposes, right in or over land, land tenures and the collection of rents, transfer and alienation of agricultural land etc. vest in the Department of Land and Land Reforms under Chapter IV of the First Schedule of the Rules of Business and so I hold that this department is only legally empowered to hold, transfer and dispose of vested and acquired land in possession of the State.
29. Question no. 4: What is the nature of the instrument claimed by the writ petitioners as the document of right to possess the fisheries in question?
Answer: Mr. Balai Chandra Roy, learned Advocate General has contended that the so-called lease deed furnished by the writ petitioner cannot be treated as a valid document for claiming any protection of right before the Writ Court. The documents are not properly executed by any authorised person for and on behalf of the Government of West Bengal and thereby no valid right, title and possession can be claimed through such defective documents which, though executed for and on behalf of the Government of West Bengal in the Fisheries Department should be treated as voidable for all practical purposes. He is of the view that at best such an instrument may be treated as a licence. Mr. 47 Shaktinath Mukherjee, learned Senior Counsel for the respondent no. 8 has, however, contended that the said instrument does not conform to the basic requirements of a valid lease deed. In fact, there is no detailed and exact description of the land annexed to the schedule to the said lease deed. If any instrument lacks any detailed description of the property sought to be transferred through any lease deed the same should be treated as void, ab initio. Mr. Jayanta Mitra, learned Senior Counsel for the Fisheries Department has, however, contended that the State of West Bengal has not yet challenged the legality and propriety of the lease deed executed by the various departments in favour of the present petitioners. Therefore, unless the same is changed and cancelled by the Government by due process of law those should be treated as valid document conferring possessory rights in favour of the writ petitioners. Therefore, they cannot be evicted from the properties involved in such instrument without due process of law. For the purpose of proper appreciation the recital of the instrument should now be taken into consideration.
Annexure P-5 to the writ petition is the lease for settlement of Purba Kalikata Fishery executed on 31.05.1989 between the Governor of the State of West Bengal called the Lessor and the Purba Kalikata Matsyajibi Samavai Samity Limited, a registered cooperative society 48 called Lessee. The incidence of lease and terms of such lease are enumerated as quoted below:
"FORM OF LEASE OR SETTLEMENT OF Purba Kalikata FISHERY THIS INDENTURE, made this Thirty First day of May, one THOUSAND NINE HUNDRED AND EIGHTY NINE BETWEEN the Governor of the West Bengal hereinafter called the "LESSOR" (which expression shall be deemed to include his successors in Office and assigns) of the One Part AND The Purba Kalikata Matsyajibi Samavai Samity Ltd., Vill Naskarhat, P.O. P.S. Tiljala Calcutta - 39 registered under West Bengal Cooperative Societies Act, 1983, hereinafter called the Lessee (which expression shall, where the context so admits or implies, be deemed to include its successors and permitted assigns of the OTHER PART. WHEREAS the lessor is seized and possessed of the Fishery bearing particularly described in the Schedule hereunder written and wehreas the Lesses has applied to the Government of West Bengal (hereinafter referred t as the "GOVERNMENT") for the grant of a Lease to it for the said fishery particularly described in the Schedule. Now the Indenture withnessth that in consideration of the rent hereinafter reserved and conditions and consideration the rent hereinafter reserved and performed, the Lessor hereby demises upto the Lessee, all that fishery particularly described in the schedule hereunder written to have and to hold the said fishery upto the Lessee for a term of 10 (Ten) years as from the First day of June, 1989 to the thirty first day of May, 1999 and paying therefore during the said term the rent of Rs. 12,000/- (twelve thousand) (per annum.) subject to subsequent refixing of the rent as referred by the District Fishery Officer, South 24-Parganas, citing an object over the basis of assessment to J.L.R.O. 49 The Lessee hereby covenants with Lessor as follows:
1. That the Lessee shall pay the annual rent for the first years in three instalments within the financial year ending on the 31st day of March for the year immediately preceding the year for which the rent is payable.
2. All arrears of rent shall carry interest at the rate of 6 ½ per annum and shall be realisable as a public demand under the Bengal Public Demands Recovery Act or any statutory modification thereof for the time being in force.
3. That the Lessee shall not catch or take or allow my person or persons to catch or take fish from any part of the said fishery during the closed season as may be fixed by the Director of Fisheries, Government of West Bengal.
4. That the Lessee shall not employ or allow to be employed any means or methods of fishing which are or may be considered as objectionable by the said Director of Fisheries.
5. That the Lessee shall not or allow any one to do any act detrimental to the interest of public health or pollute the water of the fishery or commit any act in connection therewith which in the opinion of the said Director of Fisheries may be undesipable.
6. That the Lessee shall preservs the limits of the property hereby leased and protect the interest of the lessor therein and shall not 50 allow any encroachment or any offer any person to disposses the lessee of the lessor therefrom or from any part thereof.
7. That the lessee will give all facilities for inspection or survey of the property leased which may be desired to be made by the said Director of Fisheries, West Bengal.
8. That the leasee shall have no right to the subsoil of the proportion or any minerals therein.
9. That the lessor will permit the lessee to undertake cultural operations in the fishery to maintain the fishery clean tidy and to catch as and when necessary. The lessee shall keep the demised fishery stocked with fish and replenish and restock the same from time to time and sell the fish according to the direction given by the said Director of Fisheries and shall maintain a minimum annual production of 2(Two) qtl. per bigha.
10. That the lessee shall not undertake any constructional work or any other work which may change the shape, size or area of the property leased.
11. That in case the lessee fails to maintain the property in proper order the Lesser will have the right to cancel the lease forthwith at any time during continuance of the lease and to take step for settlement of the property a new.51
12. That in the event of any default or break by the lessee of any of the terms of the covenants herein before contained then and in any such case this lease shall at the option of the Lessor and notwithstanding the water of any previous breach stand cancelled and determined.
The Lessee shall have option to surrender the lease to the lesser in any year provided he gives two months notices and pays up all dues upto and including the said year.
IN WITNESS whereof the parties hereto have affixed their hands the day month and year above written.
SIGNED for and on behalf of the Purba Kalikata Matsyajibi Samavai Samity Ltd. by in the presence of:
WITNESS:
1. Sd./- (Samasi Dalai)
2. Sd./- (Chittaranjan Sarkar
3.
Signed for and on behalf of Director of Fisheries, West Bengal for the Governor of the State of West Bengal in the presence of:
WITNESS:
1. Sd./- (Samasi Dalai) Police Station Ward No. Holding No. Area Tiljala 108 (enclosed xerox 120 acres copy of the map showing the Borrow pit handed over) Handed over: Sd./- (Director of Fishery Officer) with seal.52
Taken Over: Sd./- (Chairman, The Purba Kalikata Matsyajivi Samavay Samity Ltd.) with seal.
Sd./- (Chairman, The Purba Kalikata Matsyajivi Samavay Samity Ltd.) with seal."
From the above instrument it appears that there are two witnesses namely, Samasi Dalai and Chittaranjan Sarkar on behalf of the Lessee Purba Kalikata Matsyajibi Samavai Samity Limited and one witness Arun Kumar Das on behalf of the Director of Fisheries. But none signed this document on behalf of the Governor of West Bengal. The instrument was handed over by the District Fishery Officer, South 24 Parganas and taken over by the Chairman and the Secretary of the Purba Kalikata Matsyajibi Samavai Samity Limited. Another distinguishing feature of this instrument is that in the schedule of the land the total area is shown as 120 acres within police station Tiljala, word no. 108 and in the relevant column of holding number it is remarked "enclosed Xerox copy of the map showing the borrow pits handed over". But no such Xerox copy of the map has been enclosed or annexed with such instrument. The said lease deed was for a period of 10 years from 1st day of June, 1989.
Thereafter, from Annexure P-7 it will appear that a similar instrument was executed by the Fisheries Department in favour of the writ petitioner as borrower on 16th November, 1994 for taking a loan of 53 78,000/- to enable two projects grafts and gears etc in pursuance with fisheries development schemes of the Government for the development and expansion of its business. The said instrument was executed by the Assistant Director of Fisheries, South 24 Parganas on behalf of the Governor of the State of West Bengal represented by the Director of Fisheries on the one hand and the Chief Executive Officer, the Secretary and the predecessor of the writ petitioners on the other hand. Similarly another lease for settlement was executed on 27th may, 1999 for the period from 1st June, 1999 to 31st day of May, 2004 on similar terms which was signed on behalf of the Director of Fisheries, West Bengal for the Governor of West Bengal by Assistant Director of Fisheries, South 24 Parganas on the other hand by the Secretary of the writ petitioner society.
It was followed by another lease for settlement deed executed on 3rd January, 2006 in favour of the writ petitioner on similar terms with the variation of rate of rent payable for a period of 10 years from 01.06.2004 to 31st day of 2014 without mentioning the month. The said instrument has been executed with retrospective effect by the Assistant Director of Fisheries, South 24 Parganas on behalf of the Director of Fisheries, West Bengal for the Governor of the State of West Bengal on the one hand and the Secretary of the petitioner society on the other 54 hand. But in respect of holding number the same remarks has been written that the "Xerox copy of the map showing the borrow pits is handed over". But no such Xerox copy has been annexed with this instrument.
To sum up all these four instruments or the documents on the basis of which the writ petitioners are claiming their right, title and possession over the 120 acres of land in ward no. 108 of Tiljala Police Station are on the strength of the documents executed by the Director of Fisheries on behalf of West Bengal for the Governor of the State.
30. Much argument has been advanced before me by the contending parties claiming the instrument as a document of lease or licence. It has been set at rest by the Hon'ble Apex Court in the case of C. M. Beena & Anr. -Vs.- P. N. Ramachandra Rao reported in (2004) 3 SCC 595 that:
" Generally speaking, the difference between a "lease"
and "licence" is to be determined by finding to the real intention of the parties as decipherable from a complete reading of the document, if any, executed between the parties and the surrounding circumstances. Only a right to use the property in a particular way or under certain terms give to the occupant while the owner retains the control or possession over the premises results in a licence being 55 created; for the owner retains legal possession while all that the licensee gets is a permission to use the premises for a particular purpose or in a particular manner and but for the permission so given the occupation would have been unlawful.
A few principles are well settled. User of the terms like "lease" or "licence", "lessor" or "licensor", "rent" or "licence fee" is not by itself decisive of the nature of the right created by the document. An effort should be made to find out whether the deed confers a right to possess exclusively coupled with transfer of a right to enjoy the property or what has been parted with is merely a right to use the property while the possession is retained by the owner. The conduct of the parties before and after the creation of relationship is of relevance for finding out their intention."
31. Mr. Balai Chandra Roy, learned Advocate General has submitted that from the recital of the above instrument it will appear that by such instrument only the right to rear and catch fish from the tanks has been conferred. In terms of Section 2 of the Government Grants Act, 1985, Transfer of Property Act will not be applicable in respect of Government Grant. He has referred to and relied upon the principles laid down in AIR 1996 SC 207 and contended that in the said case it 56 has been held, inter alia, that the benefit to catch fish from tank is a benefit out of land only.
32. Mr. Ray further contended that the recital of the instruments is still in form of a lease or settlement. It is not the form but the contents which are the determining factor of identifying the nature of transaction made through such instrument as per the decision of the Hon'ble Apex Court cited above. In the aforesaid instruments (Annexure P-5) the subject-matter of the property has been described as "Fishery". The condition no. 3, i.e., the lessee shall not catch or take or allow any person or persons to catch or take fish from any part of the said fishery during the closed season as may be fixed by the Director of Fisheries, Government of West Bengal is a clear indication that the right to catch and take fish from the fishery was restricted for a particular period and not for the entire year. Therefore, the right of possession of the property has been partly retained by the Fisheries Department even after execution of such instrument. By Clause 7 of the instrument the lessor has reserved the right to survey of the property leased which may be desired by the Director of Fisheries, West Bengal and thus, right to entry into the property remains with the Lessor. By Clause 8 of such instrument it has been clearly stipulated that the lessee shall have no right to the sub-soil of the 57 property or any minerals therein. This clearly indicated that the intention of the department was to allow the society the right to psciculture only. By Clause 9 of the instrument the lessor has also retained the right to undertake cultural operations in the fishery and cast an obligation upon the lessee to stock the fishery with fish and replinish and re-stock the same from time to time and sell the fish according to the directions given by the Director of Fisheries and shall maintain a minimum annual production of 2 Quintals per Bigha. Failure to comply with such mandatory production will bring about a consequence laid down in Clause 11 of the instrument. It is laid down therein that in case of failure the lessor shall have the right to cancel the lease forthwith. Clause 12 of the instrument also specifically provides that in the event of any default or break by the lessee of any of the terms of the covenants will empower the lessor at his option to cancel the lease. The intention of the lessor in such transaction has been more explicitly expressed in Clause 6 to the effect that the lessee shall preserve the lease of the property hereby leased and protect the interest of the lessor therein and shall not allow any encroachment or any offer any person to dispossess the lessee or the lessor therefrom or from an part thereof. Therefore, the possessory right of the fishery in 58 question has been jointly retained by the lessor and the lessee in terms of such clause.
33. It is the creation of an interest in immovable property or a right to possess it that distinguishes a lease from licence. If interest in immovable property, entitling the transferee to its enjoyment is created it is lease, if permission to use the land without the right to exclusive possession is alone granted the transaction is a licence. In fact, in Section 52 of the Indian Easement Act, 1882 a licence is defined as a right to do or continue to do, in or upon the immovable property of the grantor, something which would in the absence of such right be unlawful, and such right does not amount to a easement or an interest in the property. The surer test is that a licence does not create any estate or interest in the property to which it relates as the right to enter into the disputed property of the Fisheries Department for cultural operations is retained by the Fisheries Department and even the right to catch fish from the tanks is restricted to a particular period of the year during the closed season is retained by the Fisheries Department the instrument should for all practical purposes be treated as a licence and not a lease.
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34. In this connection the argument advanced by Mr. Mukherjee, learned Senior Counsel for the respondent no. 8 may be taken into consideration. He has contended that there are five essential elements in Section 105 of the Transfer of Property Act which must be fulfilled for identifying an instrument as a lease. These are the rights, the subject-matter of immovable property, the demise or partial transfer, the term or period and the consideration or rent. Mr. Mukherjee has further contended that the subject-matter of the present instrument is vague. Like Mr. Ray he has argued that in the schedule of the property, there is no boundary or demarcation of the land in question. It is simply written as 120 acres of land in ward no. 108 of Tiljala Police Station without any mention of the plot nos. etc. It is claimed that detailed description are enclosed with such instrument in the form of copy of the map showing the borrow pit handed over but in reality there was no such annexure. In the above context Mr. Jayanta Mitra, learned Senior Counsel representing the respondent nos. 1 to 4 has contended that the instant case shall be governed by the ratio enunciated by the Hon'ble Apex Court in the case of The Bihar Eastern Gangetic Fishermen Cooperative Limited -Vs.- Sipahi Singh & Ors. Reported in (1977) 4 SCC 145. In paragraph 8 of the said case it has been pointed out that it is now well settled that the provision of Article 60 299 of the Constitution which are mandatory in character required that a contract made in the exercise of the executive power of the Union or of a State must satisfy three conditions viz., i) it must be expressed to be made by the President or by the Governor of the State, as the case may be; ii) it must be executed on behalf of the President or the Governor, as the case may be AND iii) its execution must be by such person and in such manner as the President or the Governor may direct or otherwise.
35. It is not out of place to mention that a notification issued by the Fisheries Department dated 30.08.1985 vesting power in the Director of Fisheries under the West Bengal Inland Fisheries Act, 1984 such power was delegated to him to discharge the functions of proper utilisation of multi-ownership or other tanks for psciculture as mentioned in Section 8 thereof. Therefore, according to Mr. Mitra it is a valid lease deed. I hold that the said principle will not be applicable in deciding nature of disputed transaction. From the contents of the deeds and purposes stated therein, it appears to me that the transaction can only be described as a licence.
36. Question no. 6: Whether the disputed land is properly described in the instrument so that it can be easily identified or not? 61 Answer: From the documents placed before me and the affidavit-in- opposition and replies thereto as well as the supplementary affidavits filed by the writ petitioner it appears that the total area of the land in possession of the writ petitioner has not been properly described or identified. Mr. Bimal Chatterjee, learned Senior Counsel for the petitioner has tried to refute such argument and contended that uncertainty of document is not fatal because in terms of Section 29 of the Contract Act it is capable of being certain. In Section 29 of the Indian contract Act, 1872 it has been stated that agreements, the meaning of which is not certain, or capable of being made certain are void. Now if there is uncertainty in the description of land in the schedule the Fisheries Department can specify the same by identifying the plot nos. and boundary of the land. Therefore, the disputed property, in his opinion, is capable of being made certain and as such the transaction in question cannot be treated as void as claimed by Mr. Mukherjee.
37. Mr. Chatterjee, learned Senior Counsel has further drawn my attention to the supplementary affidavit filed by the petitioner with the leave of the Court at a later stage. In memo no. 640/PK/2010-11 dated 23.08.2010 (Annexure B to the supplementary affidavit dated 31.08.2010) the details of the schedule land with map have been shown. From the contents of Annexure B it appears that the Assistant 62 Director of Fisheries, South 24 Parganas has supplied copies of lease deeds executed on 31.05.1989, 27.05.1999 and 03.01.2006 respectively in respect of the grant of water-bodies in favour of the petitioner society with certified copy of the map showing the location, area of ponds pertaining to the enclosure of the letter of the Director of Fisheries, West Bengal under his memo no. Coop. 112 dated 14.03.1988 along with certified copy of the plan in respect of 83 ponds referred to by the CMDA in their memo dated 11.07.1988.
38. Mr. Mukherjee, learned Senior Counsel has drawn my attention to the seal used in such map showing the area of fishing ponds which does not correspond with the seal used with the office seal used in the instrument. The authority who signed the map with his signature dated 31.05.1989 has used a seal marked with the red ink which is questionable. The Writ Court cannot decide the genuineness of a document unlike a Civil Court. But if any doubt arises the Writ Court should not rely upon such document. Therefore, it appears to me that it is unsafe to accept the aforesaid maps and description of the ponds which were not annexed wit the original lease deeds annexed with the writ petition but subsequently produced in course of hearing. 63
39. The question may be further considered from another point of view. Mr. Mukherjee, learned Senior Counsel has drawn my attention to the conflicting reports of learned Advocates engaged by the Court to identify the nature of land in question. As per direction of this Court dated 23.10.2009 Mr. Soumen Sen, Special Officer appointed, has submitted in his report that in presence of the representative of the petitioner as well as the Fisheries Department he has inspected the land total area of which will be about 15 acres which is recorded as "Layek Jungle" as per relevant records of rights. On inspection he has found that some portion of the land in question was submerged in water. There were six identical low lying plots of land of which two are identified as ponds and/or tanks two are filled with hyacinth and rest two are partly covered with bushes. It was further observed that the entire disputed area has been covered with brick-built boundary wall, a portion of which on the western site appears to have been raised recently. It appears that some bricks and sands are lying in a portion of the disputed land. In the corner of the disputed land a brick-built tile shaded temporary structure is located. Rest of the land within the said area was lying fallow. Another Special Officer MR. Santimoy Panda in his report has stated that on physical verification he found that the entire area is covered with six tanks and its 64 respective banks. The eastern portion of the said site consist of such fallow land over which there is one brick-built temporary structure with tiled roof. Out of the six tanks two are fully filled up with water, two are filled up with water hyacinth floating thereon and from the rest two tanks, most of the water has been pumped out. He also found some bricks and sands lying over the disputed site. Though Mr. Sen and Mr. Panda jointly inspected the disputed plot but because of their divergent opinion they have filed separate reports. Mr. Panda has further submitted that the said six tanks could not be measured as no departmental experts together with their instruments were available at the time of holding the inspection. Therefore, the report of the Special Officers appointed by the High Court will not come in aid for determining the exact location, area and boundary of the total area of land claimed to have been possessed by the petitioner. It is on record that there was departmental meeting held on 14.08.2009 (page 40 of the affidavit filed by the respondent no. 8 dated 30.10.2009) in the chamber of the District Magistrate, South 24 Parganas to resolve the issues related to the boundary of the land settled in favour of the respondent no. 8. In this connection a letter dated 28.11.2006 with reference to another letter dated 28.12.2004 written by the petitioner society addressed to the KMDAas at page 77 of the writ petition that 65 they have asked them to demarcate the land allotted to them as far back as in 2004 is apparent on the face of record that till filing of the writ petition in 2009, there was no boundary or demarcation of 120 acres of land in possession of the writ petitioners. In the above context Mr. Mukherjee, learned Senior Counsel for respondent no. 8 has already contended that the lease deeds are void ab initio for want of uncertainty and proper description and classification of the property in the schedule. He has referred to and relied upon the case of Bhimlesh Kumari Kulashrestha -Vs.- Sambhujirao & Anr. reported in (2008) 5 SCC 58. It is held therein that ordinarily an endevour should be made by Court to give effect to terms of agreement but it is also well settled that an agreement is to be read as a whole so as to enable Court to ascertain true intention of parties. In the given case there was an agreement to sell between the appellant and the respondent but description of the property to be sold was not precisely given except that surroundings of the house on four sides were mentioned in the agreement. A map purporting to give description of the house was mentioned in the agreement but this map was not actually annexed with the agreement. In order to make good this deficiency the appellant enclosed a sketch with her plan but again proper evidence was not produced on this aspect. The Hon'ble Apex 66 Court in this case held that failure to annex map giving full description of the property render the agreement unenforceable. Relying upon such principle Mr. Mukherjee has pointed out that since in the consecutive lease documents no such map of the property, though described in the schedule, was annexed the terms of contract contained therein are unenforceable and from this point of view the petitioners cannot claim any remedy before the Writ Court. Mr. Chatterjee, representing the writ petitioners has, however, laid much emphasis upon the humane and pragmatic approach expected from the Sate who is the protector of the citizen. Merely, for want of technical or procedural defect the rights conferred by one department of the State Government upon the fishermen cannot be withdrawn or forfeited for no fault of their own. Therefore, he has contended that the aforesaid principle will not govern the present case. I find much substance in the contention of Mr. Chatterjee mainly on the ground that I have already held that the transaction by and between the writ petitioners and the respondent nos. 1 to 4 is licence in substance and not lease in which case registration of the document is not mandatory. Therefore, the instruments executed by and between the parties is indicative of a benefit to be derived from the fishery which cannot be denied on ground of uncertainty or vagueness without proper 67 demarcation which is a duty cast upon the estate and unless that legal duty is performed indicating the extent of legal right of the petitioner upon such land the respondent nos. 1 to 4 cannot absolve themselves from their legal obligation.
40. Mr. Mukherjee, learned Senior Counsel has further drawn my attention to a letter dated 19th May, 1993 of the Deputy Secretary, Government of West Bengal, Fisheries Department, annexed with the supplementary affidavit-in-opposition of the respondent no. 8 addressed to the Deputy Director (Marketing and Management), SURAD, CMDA regarding allotment of fish ponds at East Calcutta Area Development project of CMDA to Fisheries Department, Government of West Bengal. From the said letter it will appear that there is no reference to previous correspondence relating to the transfer of 83 number of ponds measuring 117.96 acre at East Calcutta Area Development Project of CMDA to Fisheries Department Government of West Bengal in their letter no. 692/CMDA/MM/EC-47/90 dated 22.04.1993. It is also stated in the said letter that location of the Mouza etc. of the water bodies and the purpose for which they were transferred have also not been mentioned. In the absence of the said particulars, they are unable to trace the relevant papers and taking action in the matter. Therefore, he has requested CMDA to bring the 68 necessary party with necessary particulars and copies of relevant papers and documents relating to transfer of the said water bodies to enable the department to take necessary action in the matter. The said letter, therefore, speaks for itself that up to May, 1993 there has been no valid transfer of the water bodies by the CMDA to the Fisheries Department with demarcation and there was also no demarcation or identification of the water bodies proposed to be transferred in terms of the aforesaid letter of the CMDA dated 22.04.1993.
41. Mr. Mukherjee has further contended that true copies of the map purporting to be annexure of the lease deed of the petitioners relates to 120 acres area said to be handed over to the writ petitioners by the Fisheries Department. The said map was disclosed at the stage of argument. In fact, at no material point there was any such map annexed to the said lease deeds. He has drawn my attention to the fact that the maps annexed as Annexure B to the supplementary affidavit do not disclose that the fish ponds purported to have been handed over to the petitioners belonged to Mouza Madurdaha. From the letter dated 23rd August, 2010 of the Assistant Director of Fisheries it will appear that two maps are annexed to the letters dated 14th March, 1988 and 11th July, 1988 respectively and cannot be treated to be the map referred to in the lease deed. In fact, the letter dated 23rd August, 69 2010 is conspicuous in dealing any reference to maps enclosed with the lease and proceeded to enumerate under item nos. 2 and 3 the "certified copy of map" and "certified copy of plan", "pertaining to the annexure" of the two letters mentioned above. In the said map it is stated that "Area of Fish Ponds Proposed To Be Handed Over to Purba Kalikata Matsyajibi Samavai Samity Limited" and it obviously shows that the plots of land shown therein are proposed to be transferred and not actually transferred to the writ petitioner. The plan in respect of 83 ponds is also an enclosure to the letter dated 11th July, 1988. In fact, this plan was previously disclosed by the writ petitioners in their affidavit dated 8th December, 2009 as annexure P-16 to the affidavit- in-opposition of the State of West Bengal represented by the Land and Land Reforms Department. This further affirms that the maps form enclosures to letters written in 1988 and were not part of the lease document executed on 31.05.1989 and in subsequent lease deeds.
42. From a consideration of all these aspects I hold that the disputed land has not been properly described in the instrument so that it can be easily identified. Because of vagueness of such scheduled property the document in question cannot be treated as a valid lease deed for absence of one of the five essential elements of a lease deed stated 70 above which point has already been discussed in deciding question no.
5.
43. Question no. 7: Is registration of the aforesaid lease deed mandatory? Answer: Relying upon the principle laid down in AIR 1996 SC 207 (Santosh Jaiswal & Anr. -Vs.- State of M.P. and Anr.), the learned Advocate General has contended that from the recital of the lease deeds it will appear that the tenure mentioned therein is more than one year and exceeding value of Rs. 1,00/- and as such the same requires registration otherwise they will be treated as void. In the said case the Hon'ble Apex Court has held that in a case involving right to catch fish in a tank if granted by lease for a period of more than one year it is required to be engrossed with required stamp duty and registration under Section 17(1)(d) of the Stamp Act to be read with Article 35(a) of Schedule 1-A Clauses (1) to (3) of the Stamp Act. Mr. Chatterjee, learned Senior Counsel for the petitioners, however, has drawn my attention to the provisions contained in Section 17(2)(vii) of the Registration Act, 1908 which provides that grant of immovable property by the State Government does not require any registration and so it is exempted from compulsory registration. I hold since the document has not been executed by the appropriate authority and licence in substance the 71 question of registration becomes redundant in this case. Nevertheless I accept the contention of Mr. Chatterjee and hold that the instrument which is licence in substance but lease in form does not require any registration in view of the aforesaid provisions of the Registration Act. Learned Lawyer for respondent no. 8 has referred to and relied upon the principles laid down in AIR 1954 SC 340 (Kiran Singh and Ors. -Vs.- Chaman Paswan & Ors.) to justify non-registration of the lease deed which is not, in his opinion, mandatory. In the said case the Hon'ble Apex Court has held that the words "unless over valuation or under valuation thereof has prejudicially affected the disposal of the suit or appeal on its merits" in Section 11 of the Suits Valuation Act, 1887 clearly show that the decree is passed in such cases are liable to be interfered with in an Appeal Court, not in all cases and as a matter of course, but only if prejudice such as is mentioned in the Section results and that the prejudice contemplated by the Section is something different from the fact of the appeal having been heard in a forum which would not have been competent to hear it at a correct valuation of the suit as ultimately determined. Since nobody has raised any question of prejudice for non-registration of the lease deeds or deeds of settlement in favour of the writ petitioners or respondent no. 8 I hold that in view of statutory exemption of instruments executed by the State from 72 registration, non-registration of the instrument in this case will not vitiate the documents. However in paragraph 11 of the case of Bihar Eastern Gangetic Fishermen Cooperative Limited reported in (1977)4 SCC 145 it has been held that the right to catch and carry on fishing, being "profit a prendre" i.e., a profit or benefit arising out of the land, it is to be recorded as immovable property within the meaning of the Transfer of Property Act read in the light of Section 3(26) of the General Clauses Act. If a "profit a prendre" is tangible immovable property, its sale has to be by means of a registered instrument in case its value exceeds Rs. 100/- because of Section 54 of the Transfer of Property Act. If it is intangible, its sale is required to be effected by a registered instrument whatever its value. Relying upon this principle it can safely be held that the subject-matter of the present writ petition is confined to the right of the petitioners to catch and carry on fishing being a right on tangible immovable property exceeding value of Rs. 100/-, so its registration ought to have been mandatory. But I find that the statutory exemption contemplated in Section 17(2)(vii) of the Registration Act, 1908 makes such ratio inapplicable in this case.
Mr. Mukherjee has vigorously assailed the contention of the respondents that the writ petitioners have not acquired any enforceable legal right by virtue of the lease deeds extending for a period of 10 years 73 without registration. He has referred to and relied upon the principles laid down in AIR 1990 Calcutta 135 (Pieco Electronics and Electricals Limited -Vs.- Smt. Tribeni Devi). In the said case this Hon'ble Court has held that the lessor cannot ask for ejectment of the lessee solely on the basis of duration clause in the unregistered deed of lease. The unregistered deed can at best be looked into for ascertaining the commencement of possession, rate of rent or some other provision which are collateral to the principal transaction. This should be the true import of the proviso to Section 49 of the Registration Act, 1908. Their Lordships further observed therein that it could never have been the intention of the legislature that under the first part of the section non- registered document should be discarded for want of registration and at the same time under the camouflage of the proviso the Court should be permitted to look into and rely upon all the terms of the inoperative document which had formed the integral parts of the proved transactions. I hold that the said principle should govern the instant claim of the writ petitioner. Accordingly I hold that registration of the lease deeds of settlement in question between private party and the State Government in the facts of present case is not compulsorily registrable.
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44. Question no. 8: What is the nature of the disputed land in possession of the writ petitioners as per record of rights? Can the Writ Court decide this disputed question of fact?
Answer: From the office of the Settlement Officer, 24 Parganas one order being general order no. 1 dated 21st November, 1973 was issued for the purpose of preparation of record of rights under Section 51 of the West Bengal Land Reforms Act specifying different classes of agricultural and non-agricultural lands to be recorded in such record of right. In the said notification 94 nomenclature of land had been identified with the remarks "no other class of land should feature in the ROR" (memo no. 69/17040(25)P/73 dated 21.11.1973). In the said list it appears that item no. 12 relates to the land described as "Lyek Jungle" or "Jhuri Jungle", i.e., in order to denote culturable lands having jungles grown out of natural growth/ culturable lands having jungles grown out of natural growth inside the protection embankment. Mr. Mitra, learned Senior Counsel for respondent nos. 2, 3 and 4 has contended that the said plot of land was in reality converted to water body which before coming into force the provisions of the West Bengal Land Reforms (Amendment) Act, 1986 was converted on account of construction of E. M. Bypass by taking out soil from the adjoining areas. For such development activities of CMDA (KMDA) classification of the 75 said plot of land has been changed to water body in the procedure of such development. The said water bodies were transferred to the Fisheries Department for psciculture in letter no. 627/CMDA/Sectt.(Prog.)/G-2/85 dated 19th August, 1987. Therefore, though in the records of rights the nature of the land has been noted as "Layek Jungle" it is now non-existent. It is the duty of the Collector to take notice of such events which had taken place long back and he ought to have issued direction upon the Revenue Officer concerned to correct the record of rights under Section 50/50(a) of the West Bengal Land Reforms Act, as the case may be. Therefore, according to Mr. Mitra failure on the part of Revenue Officer to correct the relevant record of rights on account of change of classification of the land cannot be treated as a valid ground to deny the existing feature of the land in question within the meaning of fisheries area water bodies created on account of artificial depressed land. I have already pointed out that in the conflicting reports of the learned Special Officers there is reference of some ponds as well as fallow open land relating to the disputed property. The total area of the land is not at all water bodies as per relevant record of rights.
The settled proposition of law is that the finally published record of rights has a presumptive value regarding nature and classification of 76 the lands as well as possession etc. such presumption of course is rebuttable. But until and unless such presumption is rebutted by cogent evidence the Writ Court is bound to accept the finally published record of rights as a valid document to establish identity and nature of the disputed land as "Layek Jungle" as defined in the aforesaid general order no. 3 dated 21.11.1973 of the Settlement Officer under the heading "Non-agricultural Land". Like Civil Courts the Writ Court cannot determine the evidentiary value of a document without allowing parties to prove or disprove the same. It will have to place reliance on the prima facie value of the documents and if there be any dispute it is for the Civil Court to decide the matter.
It is also a question of principle and policy of the State Government to change the classification of vast track of agricultural lands styled a "Layek Jungle" to "Non-agricultural" land as tank or pond (pukur), pit (doba), big tank (jhil/ dighi), unculturable water logged area (jala bhumi) etc. as classified in the said order dated 21.04.1973. So long as such policy decision is not adopted by the State Government and acted upon the presumptive value of the record of rights remains unrebuttable and the Court is under legal obligation to rely upon such document and accept the same as authentic document to identify the classification of disputed property as agricultural land.
77The sudden change of such classification whimsically has a far- reaching effect. In this connection the decision taken by this Hon'ble Court in the case of People United for Better Living in Calcutta - Public & Anr. -Vs.- State of West Bengal & Ors. Reported in AIR 1993 Cal 215 may be taken into account. In the said case the Hon'ble Court has tried to strike a balance between environment and development so that both co-exist and justified the importance of wetland and part played in appropriate maintenance of environmental equilibrium. In the said case the Hon'ble Court has discouraged quick and whimsical reclamation of wetland in the following manner:
"Wetland being a bounty of nature do have a significant role to play in the proper development of the society - be it from environmental perspective or from economic perspective. Wetland is precious, wetland enures to the benefit of the society at large and wetland assists making to live in a cleaner and purer environment - which one cannot afford to lose neither the Court of Law can lend assistance to contra-belief or contra-action of a State Agency. Wetland acts as a benefactor to the society and there cannot be any manner of doubt in regard thereto and as such encroachment thereof would be detrimental to the society which the Law Courts cannot permit. This benefit to the society cannot be weighed on mathematical nicety so as to take note of the requirement of the society - what is required today may not be a relevant consideration in the 78 immediate future, therefore, it cannot really be assessed to what amount of nature's bounty is required for the proper maintenance of environmental equilibrium. It cannot be measured in terms of requirement and as such, the Court of Law cannot, in fact, decry the opinion of the environmentalist in that direction. Law Courts exists for the benefit of the society - Law Courts exists for the purpose of giving redress to the society when called for and it must rise above all levels so that justice is meted out and the society thrives thereunder. In the instant case the Court did not find any justiciable reason to disagree with the opinion expressed by the environmentalists that wetland should be preserved and no interference or reclamation should be permitted. Therefore, injunction granted against proposed reclamation of wetland situated near Calcutta "
Keeping the said principle in view and the presumptive value of the relevant record of rights, I hold for the purpose of this writ petition the disputed property cannot be held to be ponds or wetland but it shall be treated as Layek Jungle or culturable lands until otherwise decided by the State Government as indicated in the relevant record of rights and until such correction will be made or a policy decision is taken writ Court cannot decide such disputed question of fact.
45. Question no. 9: Why the tragedy of errors?
Answer: Mr. Bimal Chatterjee, learned Senior Counsel for the writ petitioners has contended that by virtue of the aforesaid three 79 instruments the writ petitioners have acquired valid right, title and possession to the entire disputes property for the purpose of psciculture. It is a co-operative society constituted by the local fishermen and they are actually catching and rearing fishes. In fact, the entire land of 47 acres was acquired by the Government in two L.A. proceedings in 1956 and 1970 and 85 tanks were excavated on plot no. 1 as mentioned in the schedule and other adjoining plots. Though the initial object of acquisition was for settlement of refugees by Refugee Relief and Rehabilitation Department they transferred their interest in respect of unused land to KMDA and the KMDA decided to settle the same to fishermen and accordingly after observance of usual formalities the cooperative society took possession of such land. He has further contended that in terms of such lease of settlement dated 03.01.2006 the writ petitioners are in lawful possession of the entire property and entitled to retain it with effect form 01.06.2004 to 30th day of 2014, they cannot be dispossessed or removed from such possession without due process of law. I find, herein lies the error because such claim is based on wrongful exercise of administrative power b different agencies. It has already been pointed out that in the relevant rules of business the power for acquisition and transfer of land has been vested in the Land and Land Reforms Department as mentioned in the First Schedule 80 thereof. Under item no. 6 of VII of Chapter 4 of such schedule, the Department of Land and Land Reforms is legally and constitutionally the only authority to transfer and alienate any agricultural land like "Layek Jungle" as described above.
From the affidavit-in-reply to the affidavit-in-opposition on behalf of the State of West Bengal filed by the writ petitioner dated 9th December, 2009 it will appear that in terms of notification no. 7548L Dev. Dated 22nd April, 1955 the Governor has acquired land of 24 Parganas district which is likely to be needed for a better purpose, i.e., for the settlement of emigrants who have migrated into the State of West Bengal on account of circumstances beyond their control in the villages of Laskarat, jurisdiction list no. 11, Madurdaha, jurisdiction list no. 12, Nonadanga, jurisdiction no. 10, Chowbogha, jurisdiction list no. 8 and Paschim Chowbogha, jurisdiction list no. 9, Police Station Tollygongue, District 24 Parganas measuring more or less about 1155.25 acres. The said notification was made under the provision of Section 4 of the West Bengal Land Development and Planning Act of 1948 and the Collector of 24 Parganas was authorised by the Governor to enter upon and survey the land as per schedule and to do all other acts required or permitted by that Section. By subsequent notification no. 197742L Dev. dated 16.05.1956 (page no. 4411 of the Calcutta Gazette dated 6th December, 81 1956) he has acquired 265.20 acres of land for the same purpose under Section 6 of the West Bengal Land Development and Planning Act, 1948 and also acquired 13.875 acres of land within the villages of Santoshpur, Jadavpur and Rajapur of erstwhile 24 Parganas district under notification no. 20242 L Dev. Dated 23.11.1956. Now the question arises if the land so acquired by the Governor is not utilized for the purpose for which it is acquired what shall be the legal consequence? Who will dispose of unused acquired land?
In paragraph 3(iv) of their affidavit dated 08.12.2009 the answering respondent nos. 5 and 6 has claimed that the land referred to by the petitioner was initially used for Kolkata Metropolitan Development Authority for excavating earth for the purpose of construction of Eastern Metropolitan By-pass road.
This alienation begins with error. Refugee Relief and Rehabilitation Department has not executed any document with the concurrence of Land and Land Reforms Department in favour of respondent nos. 5 and 6 for such purpose. This may be identified as the First error. However, as a result of such excavation, in some portion of the land water was accumulated by natural process which was given to the Fisheries Department for the purpose of utilization only through a letter issued by the answering responding authorities and not by any agreement 82 whatsoever. Therefore, admittedly KMDA has transferred the disputed land in favour of the Fisheries Department without any lawful authority and without any valid agreement. They have also admitted in such affidavit-in-opposition that the activities of the Fisheries Department/ Directorate appear to have been undertaken on the basis of informal possession of the land without giving any importance to the vital issue of title/ ownership of the land concerned in accordance with law. This appears to be the second error involved in this tragedy on same ground of transfer of government land by KMDA without executing any document and consent of Land and Land Reforms Department. In respect of such transactions Mr. Bimal Chatterjee, learned Senior Counsel for the petitioners has contended that the poor, illiterate fishermen are not conversant with the legal power to be exercised by any State authority. Therefore, why the KMDA allowed the Fisheries Department for utilization of the land unused by them cannot be explained by the writ petitioner but there is no denial that they are possessing and enjoying the property in the manner described in the writ petition on payment of annual rent and financial assistance from government.
Since the Refugee Relief and Rehabilitation Department is not impleded as a necessary party their stand is not placed on record. But the right to 83 possess the land by way of transfer of the same by the Refugee Relief and Rehabilitation Department in favour of the KMDA is equally erroneous and constitutes a breach of Rules of Business in force. When the Government has acquired some land for the settlement of refugees, i.e., for a specified purpose and Refugee Relief and Rehabilitation Department is the authorised department under the Rules of Business to deal with the matter as discussed in question no. 4 either they will utilize the same or return the land in favour of the Land and Land Reforms Department who is authorised to deal with subject-matter and hold possession of all Government land through the Collectors of the districts. Therefore, I hold that the transfer of the disputed property or the water land or fisheries, tanks etc. by the KMDA in favour of the Fisheries Department is without any lawful authority which is virtually admitted by KMDA in their aforesaid affidavit-in-opposition which needs no further clarification or elucidation by this Writ Court. If the initial transfer of any land in favour of a person or authority is void, ab initio, subsequent transfer of such land without consent or approval of the lawful authority will be equally treated as void. Therefore, the execution of the so called lease deeds dated 21.05.1989, 27.05.1999 and 03.01.2006 by the Fisheries Department is also unwarranted and beyond the scheme of the Rules of Business. So 84 this may be treated as third error committed in the process of transfer of government land.
From the averments of the respondent nos. 2, 3 and 4, i.e., the Fisheries Department it will appear that initially the Refugee Relief and Rehabilitation Department, Government of West Bengal acquired total 260.20 acres of land in different Mouzas of erstwhile North 24 Parganas district. Thereafter, they handed over 4.9 acres of land in Mouza Madurdaha to the KMDA on 16th September, 1979. This transfer is untuthorised and an error on the part of the Refugee Relief and Rehabilitation Department. It is further claimed by the answering respondent nos. 2, 3 and 4 that KMDA handed over informal possession of 83 ponds covering 117.96 acres of land to the Fisheries Department in their letter dated 11th July, 1988 for the purpose of psciculture. They have claimed that the disputed property measuring 46.63 acres of land was within R.S. plot no. 1, JL no. 12 of Mouza Madurdaha, district South 24 Parganas including those 83 ponds.
It also appears from their averment that on the recommendation of the Director of Fisheries, Government of West Bengal in his memo no. Coop- 112 dated 14.03.1988 the District Fisheries Officer, South 24 Parganas suggested the names of suitable existing cooperative societies who would be in a position to undertake psciculture in the aforesaid 83 85 ponds. This is the fourth error because without public auction this type of selecting private parties is opposed to public policy and incompatible with the concept of bureaucratic transparency. Accordingly, the said R.S. plot no. 1 was leased out in favour of the writ petitioners in 1988. This settlement is also not legally tenable because the intention of the Fisheries Department, reflected through the aforesaid lease of settlement, was to transfer rights in favour of the writ petitioners without any concurrence of the Land and Land Reforms Department. This is fifth error committed by the Fisheries Department in executing the lease deeds.
Mr. Chatterjee, learned Senior Counsel for the writ petitioners has drawn my attention to a notification being no. 3961-Fish/C-i/9R-7/84 dated 30.08.1985 in terms of which the District Fishery Officer is empowered to execute such type of lease deed or document. From the recital of such notification it appears that the said notification was issued by the Government in exercise of the power conferred by Clause
(i) of Section 2 of the West Bengal Inland Fisheries Act, 1984 to authorise the District Fisher Officers in charge of Fishery Districts of West Bengal to perform within their respective jurisdictions the functions of the competent authority under Section 8 of the said Act with effect from the first day of October, 1985.
86In Section 2(ii) of the said Act of 1985 "competent authority" has been defined as any person or authority authorised by the State Government by notification to perform the functions of the competent authority under this Act. Section 8 of the Act deals with the proper utilisation of multi ownership or other tanks for psciculture which is quoted below:
"Section 8. Proper utilization of multi-owenrship or other tanks for piscitulture. - (1) If the competent authority, on receipt of an information or on his own motion or otherwise, is satisfied with that a multi-ownership tank is not utilized in accordance the prevailing norms of pisciculture and that it is necessary for any public purpose so to do, he may, after giving fifteen days' notice to the owner and the possessor of such tank, by order in writing take over the management and control of such tank.
(2) The management and control of such tank or water area may be transferred by the competent authority to any person for proper utilization of such tank or water area in such manner as may be prescribed.
(3) Every co-sharer or co-owner of a multi-owenrshi0p tank shall be entitled to receive rent for taking over the management and control of such tank by the competent authority the rate of 25% of average crop value for the last three years per annum.
(4) The management and control of a multi-ownership tank may be taken over under sub-section (1) for a period not 87 exceeding 25 years or transferred to any person under sub-
section (2) for a period not exceeding 10 years at a time. (5) If the person referred to in sub-section (2) fails to utilize the multi-ownership tank in accordance with the prevailing norms of pisciculture, the competent authority may, after giving notice to such person, resume the management and control of such tank without payment of any rent or compensation to such person; and such tank may thereafter be managed by the competent authority or transferred to some other person for pisciculture. (6) In respect of any part vested tank, the competent authority shall resume the management and control of such tank and arrange to hand it over to any primary Fishermen's Co-operative Society or any Fish Production Group on lease on such terms and conditions as may be specified by notification. Any person or persons having any interest in the form of share as per finally published record- of-rights of the Revisional Settlement operation last carried out, shall be entitled to receive rent from such tank at the rate of 25% of average crop value for the last three years per annum according to his share on such tank."
From the said provision it will appear that Section 8 of the Act does not empower the District Fisheries Officer to execute any such lease deed or deed of settlement on behalf of the Governor and the purpose and object of the said Act is to specify the manner of utilization of the land and not 88 the power to transfer such land other than the department specified in the Rules of Business. This is error committed by the respondent nos. 2 to 4 discloses lack of cohesion in Government departments contemplated in the Rules of Business.
Much argument has been advanced by Mr. Mitra, learned Senior Counsel regarding illegal settlement of a portion of such wetland or fishery under their control by the Land and Land Reforms Department without observing the mandates of clause (a) of Section 17A (1) of the West Bengal Inland Fisheries Act, 1984. According to him if any land which retain water for a minimum period of six months in a year it shall be styled as fishery if the same is utilised for a said purposes. In the instant case the Land and Land Reforms Department did not consult the Fisheries Department for allotment of a portion of the disputed properties in favour of respondent no. 8 and thus their conduct constitutes a breach of the provision of Section 17A of the Inland Fisheries Act, 1984 as aforesaid because the competent authorities in the case is the Fishery Department and not the Land and Land Reforms Department. Therefore, after settlement of the land in favour of respondent no. 8 they also cannot change the nature and character of the land without permission of the Fisheries Department. As the respondent no. 8 intended to do the same without their permission the 89 writ petitioners have rightly lodged complaint before respondent no. 7 the Officer-in-Charge, Tiljala Police Station to prevent such filling of the land and construction of boundary walls. Such action depends upon the satisfaction of the competent authority. Therefore, even if the respondent no. 8 acquires any valid title to the disputed property they will enjoy it as a fishery and not as solid land for construction of any educational institute. He has drawn my attention to clause 1 of sub-Section (1) of Section 17A of the Act which provides, inter alia:
"No water area including embankment or naturally or artificially depressed land holding, referred to in clause (1) of sub section (1) shall be -
(a) put to any other than fishery, or
(b) filled up with a view to converting into solid land, for the purpose of implementation of any development scheme by an department of the Central Government or the State Government or any public undertaking under the administrative control of the Central Government or the State Government or any statutory body or local authority or any organization in the public sector or any organization or individual in the private section, except with the prior approval of the State Government in the Department of Fisheries.90
7. That Clause (a) of Section 17A(1) of the West Bengal Inland Fisheries Act, 1984 states that no person shall put any water area including embankment measuring 5 cottah or 0.035 hectare ro more which is capable of being used as fishery or any naturally or artificially depressed land holding measuring 5 cottah or 0.035 hectare which retains water for a minimum period of six months in a year to such use other than fishery as may result in abolition of fishery. Thereafter, the words "within the jurisdiction of any Municipal Corporation or any Municipality" have been inserted after the words "as may result in abolition of fishery" in the West Bengal Inland Fisheries (Amendment) Act, 2008. ..."
Mr. Mitra has tried to defend the action of the respondent nos. 1 to 4 to maintain ecological balance by preserving the fisheries or water bodies, as the case may be. He has contended that even if the water body is transferred in favour of respondent no. 8 for the purpose of educational institute by raising any building thereon such action will be impermissible in view of the West Bengal Town and Country (Planning and Development) Act, 1979 to be read with the Kolkata Municipal Corporation Act, 1980 and the Building Rules 1990 framed thereunder. In this connection he has referred to and relied upon the case of Concern For Calcutta and Ors. -Vs.- State of West Bengal & Ors. reported in 91 1996(1) CHN 123. In the said case the Hon'ble Court held if the limited area of a water body is not diminished by raising a construction on a portion of it then there is no chance of ecological imbalance and that unless a water body is used for psciculture, provision of Section 17A of the Inland Fisheries Act, 1984 has no application. The fourth direction in the said case appears to me to be in favour of the respondent no. 8. It was held therein that when the appropriate authorities of the Government and the Calcutta Municipal Corporation have allowed the Museum authorities to construct a building over a portion of the pond, the Court should not interfere in the matter unless it is shown that such sanction would create serious ecological and environmental problem. The Fisheries Department has not substantiated any such claim against the respondent no. 8 and as such grant of lease in their favour seems to me to be legally valid and enforceable.
Mr. Roy has challenged the action of the Fisheries Department constituting breach of public trust doctrine. The borrow pits, depressed land or the wetland, as the case may be, emerged out of conversion of the developmental work of the KMDA has admittedly changed the nature of the land in question. But its classification as 'Layek Jungle' is the recorded patent nature and classification of the land in question and will be treated as a natural resource. This natural resource cannot be 92 misused by the Government Department who held such property under the public trust doctrine for preservation of ecological balance. The manner of allotment of this 120 acres of land in favour of one particular registered society without any public tender, without adoption of any policy decision by the Government in its cabinet is surely an abuse of the trust reposed in the State. In this connection he has referred to and relied upon the principles laid down by the Hon'ble Apex Court in the case of N. C. Mehta -Vs.- Kamal Nath and Ors. reported in (1997) 1 SCC
288. In the said case the Hon'ble Apex Court has held, inter alia, that the public trust doctrine primarily rests on the principal that certain resources like air, sea , water and the forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. The said resources being a gift of nature, they should be made freely available to every one irrespective of the status in life. The doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. For the aforesaid reason the Hon'ble Apex Court has quashed the grant of lease in favour of the Motel interfering with natural flow of river by blocking natural relief/ spill channel of the river without prior approval granted by Government of India, Ministry of 93 Environment and Forest. From this point of view Mr. Roy contends that the allotment of 120 acres of land in favour of the writ petitioners for their commercial purposes is opposed to public trust doctrine and should not be protected by the Writ Court. This exercise of discretionary power in a discriminatory way by the Fishery Department in favour of a private persons affecting ecological balance gives vent to sixth error in this tragic episode. In poetic diction such incoherence and competition in government departments can be narrated in the following lines:
"........ Path bhabe ami deb, rath vabe ami Murti bhabe ami deb, hase antarjami."
The Almighty laughs while the pathway, the chariot and the idol each thinks itself as God. In our case Refugee Relief and Rehabilitation Department, KMDA, Land and Land Reforms Department and Fisheries Department each claiming itself as the 'State' for the above purpose in total disregard of their existence as limbs of a body the soul of which is the State. Herein lies the pathos of this tragedy of error exposing the image of the unitary concept of the State as illusory and leading illiterate mass (fishermen here) to litigation.
46. Question no. 10: Has any right of the writ petitioners invaded by respondent no. 8? If so, to what extent?
94Answer: In short the writ petitioners have claimed that the respondent no. 8 has unlawfully taken possession of about 15 acres of land out of their 120 acres lease hold water bodies. In their affidavit-in-opposition dated 30.10.2009 the respondent no. 8 has claimed that the Government of West Bengal has allotted 15 acres of land forming part of R.S. Plot No. 1 of Mouza Madurdaha, J.L. No. 12 on long term lease for a period of 99 years on a Selami of Rs. 4,75,08,268/- at an annual rental of Rs. 1,42,225/- which was subsequently enhanced to Rs. 3,55,562/-. They have annexed a copy of such lease deed (R-1) along with such affidavit. From the same it appears that on 8th January, 2008 a registered lease deed was executed between the State of West Bengal and Dr. Moni Bhowmick Educational Foundation by the Additional District Magistrate and District Land and Land Reforms Officer, South 24 Parganas for and on behalf of the Governor of the State of West Bengal through the Land and Land Reforms Department in presence of departmental witnesses. The said instrument contains detailed description of the schedule of land with boundaries conveying 15 acres of land out of total area of R.S. Plot No. 1 measuring 47.93 acres. From the letter dated 14.11.2007 of the office of the Additional District Magistrate and District Land and Land Reforms Officer, South 24 Parganas being memo no. XVIII/4951/LR-ATM 225/07 dated 95 14.11.2007 addressed to the respondent no. 8 it will appear that the executing authority of this lease deed has clarified that title of the said 15 acres of land in favour of the respondent no. 1 is settled on long term lease basis. The land in question pertains to the vested portion of the plot. The portion settled with the foundation is absolutely owned by the Land and Land Reforms Department, Government of West Bengal which was never allotted to the KMDA or to any such fisheries cooperative department. There is no dispute that the area settled with the foundation in dealing with possessory right of the writ petitioner over the suit land. It has already been pointed out that there is no prima facie material on record to show that the entire 120 acres of land in dispute is wetland or fishery or borrow pits or depressed land, as the case may be. Its components are various kinds of lands a portion of which obviously is in occupation of the writ petitioner. From the report of the Special Officers it further appears that three sides of the said 15 acres of land has already been duly identified, demarcated and boundary wall has been constructed thereon leaving very little scope for raising any question regarding identity of the plot. From the proceedings of the meeting held on 14.08.2009 of the District Magistrate, South 24 Parganas in presence of the Additional District Magistrate (LR), representative/CEO, KMDA, ADF Fisheries, BLLRO, ATM Kasba and 96 Officers of the Land and Land Reforms Department it transpires that it was unanimously decided that the all kinds of administrative help shall be given to the respondent no. 8 for construction of boundary wall. It is also placed on record by such resolution that the said plot of land has been butted and bounded by boundary wall on the northern, eastern and southern side. Remaining portion of the boundary wall in the northern and western side shall be erected with immediate effect. In paragraph 4 of such proceedings it is also placed on record that the aforesaid decision was taken with the concurrence of the Secretary, Fisheries Department followed by detailed telephonic conversation made in accordance with the meeting in presence of ADF, Fisheries. This being the factual position, it appears to me that the respondent no. 8 has acquired valid right, title and possession over the 15 acres of land out of the disputed property which has been recorded as "Layek Jungle" and not "water body". Therefore, they have not invaded any right of psciculture over the indeterminate vast track of land comprising some ponds, some depressed lands etc. which still requires proper identification by actual survey and relayment of the entire land as demanded by the writ petitioners and encroachment, if any detected, may be decided later on but that cannot be presupposed in deciding merit of this writ petition. What appears to me is that a large area of the 97 indeterminate land is in actual physical possession of the writ petitioners. They are rearing and catching fishes in the same by virtue of the so called lease deeds in their favour. They have also furnished relevant certificate from the National Productivity Counsel of India for the year 1997-98 in recognition of their productivity performance during 1997-98 as well as Dr. Hiralal Chowdhury award for 1999-2000. The second certificate of course relates to operation at Naskkarhat Mouza which is not the subject-matter of this writ petition. The very execution of the lease deeds in favour of the writ petitioners without demarcation of the entire area is error which is curable for which there is actual apprehension of invasion of the right of psciculture by the cooperative society.
Mr. Chatterjee, learned Senior Counsel for the writ petitioners has contended that the State initially acquired the land under the Land Acquisition Act for the purpose of settlement and rehabilitation of the refugees by invoking urgency clause. Possession of such land taken by the Government will be treated as vested in the State free from all encumbrances on the date of taking possession. He has referred to and relied upon the principles laid down in AIR 2002 SC 2532 (Re: Naladri Narayan Chadradhurja (D) by L.R.S. -Vs.-State of West Bengal). It is held therein the issuance of such notification under West Bengal Estates 98 Acquisition Act subsequent to date of taking possession of the land is illegal because land already vested in estate Land Acquit son Act cannot be vested in estate under the West Bengal Estates Acquisition Act. Consequently, land owners could be entitled to only compensation under the Land Acquisition Act. His line of argument is that the land in possession of the writ petitioners is vested land which cannot be acquired by the State in view of above proposition of law and thereafter Land and Land Reforms Department cannot transfer such land in favour of respondent no. 8.
Mr. Chatterjee, learned Senior Counsel for the writ petitioners has relied upon and referred to the case of Chandra Alim & Ors. -Vs.- State of West Bengal and Ors., reported in (2009) 3 Cal LT 471 (HC) to substantiate his contention that without permission of the Fisheries Department as required under Section 17(a) of the West Bengal Inland Fisheries Act, 1984 nobody can change the water area for any other purpose. From this point of view the grant of lease in favour of respondent no. 8 by the Land and Land Reforms Department is illegal and contrary to law. It is held in the said case that under Section 17(a) of the said Act, there is a complete bar to conversion of water area for other use. However, under Section 17(9) limited permission can be granted to the Central Government or the State Government or any 99 public undertaking or any statutory body or local authority for conversion of a water body for developmental works which would be beneficial to the general community. Such argument, in my opinion, is premature because from the materials on record I find that the Fisheries Department has not lawfully taken possession of the 120 acres of land by any valid document from KMDA and the Land and Land Reforms Department. If their possession is not warranted under the law they cannot claim as a statutory authority whose permission is necessary for conversion of the water area. Therefore, I am unable to accept such contention of Mr. Chatterjee. So I hold that grant of lease in favour of respondent no. 8 by Land and Land Reforms Department has not at all invaded any enforceable right of the writ petitioners.
47. Question no. 11: What reliefs can be granted to the writ petitioners in the facts and circumstances?
Answer: I have already discussed and held that the lease deeds executed by the writ petitioner by the Fisheries Department are not valid documents conferring any title or right to retain the possession. However, in distinguishing lease and licence I am of the opinion that the status of the writ petitioners in respect of the disputed property shall be treated as licensees under the Fisheries Department on the basis of 100 such voidable documents but their continuous possession of the same for more than a decade and acceptance of rents by the Government for such occupation and carrying out business of fishery is acknowledgement of their right to retain possession of the same though by virtue of some defective documents. Learned Advocate General has rightly pointed out that if the documents are invalid they cannot remain in lawful possession of the entire property. The licence can be revoked at any point of time by the State Government. But there is no denial of the fact that the writ petitioners can be evicted without due process of law and their possessory right cannot be affected simply on account of series of errors committed by KMDA and Fisheries Department who have failed to surrender the land at first in favour of the actual custodian, the Land and Land Reforms Department. It also appears that by virtue of the instrument dated 16th November, 1994 the writ petitioner has taken a loan of Rs. 78,000/- from the Government for the purpose of purchasing grafts and gears in pursuance with fisheries development scheme of the Government and the fisheries department has also purchased some shares of the writ petitioners showing their active involvement in the promotional activities of this cooperative society at the behest of the Sate Government. In clause 11 of the deed of settlement dated 27th May, 1999 as well as in the deed of settlement 101 dated 3rd January, 2006 it has been specifically provided that in case the lessee fails to maintain the property in proper order the lessor will have the right to cancel the lease forthwith at any time during continuation of the lease and to take steps for settlement of the property afresh. It appears to me that though the writ petitioners are in possession of the vast tracks of land they are unable to maintain it properly and even failed to demarcate the land in their possession at the lapse of 18 years. Under such circumstances the Sate of West Bengal is quite at liberty to exercise this option as laid down in clause 11 of the aforesaid deed at any time if they are inclined to do so. In this connection a letter from the writ petitioner addressed to the KMDA dated 28.11.2006 is very significant. In the said letter they have brought to the notice of the KMDA authorities stating, inter alia, that from 1989 they are in possession of 120 acres of land within Nonadanga, Madurdaha and Naskkarhat Mouza but they are facing acute problem for want of exact demarcation of those water bodies. For this purpose they already wrote a letter dated 28.12.2004 to KMDA under memo no. 18/2004-05, but to no effect. Therefore, they have again approached the KMDA for demarcation of the entire land in their possession. In fact, KMDA is the actual authority who have without any written instrument virtually delivered possession of the disputed property in favour of the Fisheries 102 Department in their turn has executed the lease deed. This falsifies the entire claim of the writ petitioner that they are in actual physical possession of the 120 acres of land. Mr. Chatterjee, learned Lawyer for the petitioner has made extensive argument regarding nature of the disputed land as to whether it is vested or acquired by the State of West Bengal. Since the Writ Court will not decide any title to the suit property such argument will be of no use for the purpose of determining the extent of possessory right of the writ petitioners. I also find sufficient merit in the submission of Mr. Chatterjee representing the writ petitioners. The poor fishermen for formed a cooperative society for maintaining their livelihood and for preserving the borrow pits or the depressed land created on account of development project of the KMDA. In their honest effort the Fisheries Department has extended cooperation but the manner in which they have exercised their right is not in conformity with the Rules of Business. On account of procedural irregularities of a responsible Government department poor litigant should not suffer and where the livelihood of a large number of fishermen and the question of maintaining ecological balance without changing existing nature of land is a purely policy decision of a welfare State. I think the entire claim of the writ petitioner should not be denied since they are able to prove their 103 possessory right over a good number of borrow pits/ tanks out of disputed 120 acres of land.
I support the contention of Mr. Chatterjee, learned Lawyer for the writ petitioner who has referred to and relied upon the principle laid down in AIR 1960 Patna 344 (Bastacolla Collier Co. Litd. -Vs.- Bandhu Beldar & Anr). In the said case the Full Bench of the Hon'ble Patna High Court has dealt with the effect of possession of lessee under void lease. It is held therein that the possession of a lessee becomes wrongful from the time of his entry on the basis of a void or invalid lease (i.e, lease created by Kabuliyat executed by lessee before 1929 amendment of T.P. Act), but if he pays rent, which is accepted by the lessor, his possession ceases to be adverse to the lessor and the relationship of landlord and tenant comes into existence. The writ petitioners have annexed a good number of rent receipts showing tender of annual rent for the disputed land and receipt of the same by the State. Therefore, they cannot be evicted without due process of law.
In the fitness of things, therefore, I hold it is a fit case where the State should take appropriate policy decision in regard to the demarcation of the land allotted to respondent no. 8 and the area of land to be in possession of the writ petitioners for which a voidable contract has 104 already been executed and existing on payment of usual rents agreed upon. If the State Government decides that after demarcation of the land given to the respondent no. 8 the total area in possession of the writ petitioner falls short of, they may compensate them on the basis of annual profits shown in their audited accounts of preceding three years or reduce the annual rental or revoke the licence, as the case may be, but the writ petitioners cannot be evicted without due process of law. In the result the petition partly succeeds.
48. Accordingly, I dispose of this writ petition with the following directions:
a) Interim order granted earlier stands vacated;
b) Prayer (d) of the writ petition is only allowed till otherwise decided by the State Government in light of the observations made above;
c) Fisheries Department in consultation with KMDA shall move the Government in Land and Land Reforms Department for rectification of relevant record of right in respect of disputed Layek Jungle nature of which has been changed into various categories like tank, doba etc. so as to classify its nature on account of conversions;
d) The respondent no. 1, Fisheries Department, shall move the Government through the Chief Secretary for taking a policy decision 105 as to whether under the circumstances of the present case the licence granted to the writ petitioners will be retained for the remaining period up to 2014;
e) Government will decide if there is any necessity for execution of any further new document for retention of such possessory right of psciculture enjoyed by the writ petitioners so far the land in their actual possession is concerned in light of the observations made above;
f) The boundary of respondent no. 8, Dr. Moni Bhowmick Educational Foundation shall be identified and demarcated by the appropriate authority as per schedule of their lease deed validly executed by and under the authority of the Governor exercising power through the Land and Land Reforms Department which is the only department to deal with the matter as per Rules of Business in force;
g) If the State Government finds that on account of such demarcation the total area of land in possession of the writ petitioner is reduced they may either compensate it by reducing the annual rent payable 106 for such possession or revoke the licence to the extent of total area falling short of 120 acres;
h) The writ petitioners and KMDA as well as the Refugee Relief and Rehabilitation Department shall be given an opportunity of hearing before taking such decision;
i) The State Government shall decide how the illegal and unauthorised delivery of possession of the land passing through the Refugee Relief and Rehabilitation Department to the KMDA as well as the Fisheries Department as discussed in the body of this judgement will be regularized;
j) If after measurement of the borrow pits, depressed land etc. it is found that Refugee Relief and Rehabilitation Department, KMDA, Fisheries Department are retaining any land out of said 120 acres which will not serve purpose of acquisition, Government may also decide if the concerned department would be asked to surrender excess land not requisitioned for the specific purposes for which they were given such property and how they will surrender the excess Layek Jungle land which cannot be handed over to the petitioners for the purpose of fisheries;107
k) The entire process shall have to completed within a period of four months from the date of communication of this order and shall be conducted and regulated strictly in terms of the Rules of Business in light of the decision of the State Government in Cabinet and observations made in the body of this judgement.
56. Learned Advocate on record of respective parties are at liberty to take note of operative part of this judgement, if so desire.
57. Urgent certified photocopies of this order, if applied for, be supplied to the parties, on compliance of all requisite formalities.
(Syamal Kanti Chakrabarti, J.)