Calcutta High Court (Appellete Side)
Dr. Partha Jyoti Mandal vs The State Of West Bengal & Ors on 24 November, 2021
Author: Prakash Shrivastava
Bench: Prakash Shrivastava
32
ss/SB 24.11.2021
WPA(P) 115 of 2021
Dr. Partha Jyoti Mandal
Vs.
The State of West Bengal & Ors.
(Through Video Conference)
Mr. Shibshankar Banerjee
Mr. Somnath Mukherjee
Ms. Papiya Shaw
Mr. Mainak Naskar
Ms. Anupa Banerjee
... ... for the petitioner
Mr. Jaharlal De
Mr. Shamim ul Bari
... ... for the State
Mr. Aniruddha Chatterjee
Mr. Chiranjib Sinha
... ... for the respondent no. 8
Mr. Parthapratim Roy Mr. Siddhartha Banerjee Mr. Abhisek Barman Das ... ... for the respondent no. 9 The allegation in the petition is that the respondent nos. 8 and 9 are filling up the pond (water body) and raising construction contrary to law.
The record reflects that earlier with the similar allegation WP 32258(W) of 2014 (Dr. Partha Jyoti Mandal Vs. State of West Bengal & Ors.) was filed and it was disposed of by directing the Assistant Director of Fisheries to treat the petition as a representation and take a reasoned decision within a time bound period.
The Assistant Director of Fisheries had passed the order dated 6th May, 2015 asking one Sri Gopal Chandra Ghosh to restore the tank to its previous condition within one month after receiving of order as per Section 17A of the West Bengal Inland Fisheries Act, 1984. 2 Learned counsel for the petitioner has submitted that thereafter the previous owner of the land had transferred it to another person who had filed an application for conversion in terms of Rule 5A of the West Bengal Land Reforms Rules, 1965 and the said application was made on 9th September, 2020 and the final order of conversion was passed within 12 days on 21st September, 2020, whereas Section 4C(2) of the West Bengal Land Reforms Act, 1955 requires the Collector to make an inquiry and also give the persons interested an opportunity of being heard but the same was not followed. It is also pointed out that no NOC from the Fisheries Department was taken.
Rule 5A(2) requires the applicant to give an affidavit in Form 1B along with application for conversion. The said Sub-Rule 2 reads as follows:-
"(2) If the application as mentioned in sub-rule (1) relates to permission for change, conversion or alternation of any land having water body of any description or size, such application shall be accompanied by an affidavit in Form 1B for creation of compensatory water body of equal or larger size of such water body which is sought to be changed, converted or altered in the same mouza or in the adjoining mouza."
Clauses 6 and 7 of the affidavit which is described in Form 1B read as under:-
"(6) That I/we undertake that in case of failure to create such compensatory water body within the stipulated period of 90 days I/we shall not raise any objection for cancellation of the order granting change, conversion or alteration of the water body for which permission is sought for.
(7) I/we also undertake to restore the said water body at my/our own cost if already changed, 3 converted or altered within a period of 90 days from the date of issue of direction by the District Land and Land Reforms Officer for such restoration."
In terms of the aforesaid clauses the applicant seeking conversion of land is required to create compensatory water body within the stipulated period of 90 days, failing which he cannot raise any objection for cancellation of the order granting conversion. Clause 7 requires to restore the water body to its original position at its own cost within the period of 90 days from the date of issuance of direction of the District Land and Land Reforms Officer.
Nothing has been pointed out to the Court to show that if a compensatory water body has been created after passing of the conversion order dated 21st September, 2020 though more than a year has passed.
In these circumstances, we direct the counsel for the State Government to file an affidavit of the competent authority disclosing the action which has been taken for non-compliance of the condition of creation of water body and on failure on the part of the respondent nos. 8 and 9 to comply with the condition of the affidavit in Form 1B.
List on 14th December, 2021.
(Prakash Shrivastava, C.J.) (Rajarshi Bharadwaj, J.)