Calcutta High Court (Appellete Side)
Babu Gazi vs The State Of West Bengal & Ors on 26 September, 2014
Author: Arijit Banerjee
Bench: Arijit Banerjee
In The High Court At Calcutta
Constitutional Writ Jurisdiction
Appellate Side
W.P. 11185 (W) of 2012
With
CAN 11311 of 2013
Babu Gazi
-Vs.-
The State of West Bengal & Ors.
Present: The Hon'ble Justice Mr. Arijit Banerjee
For the petitioner : Mr. Piush Chaturvedi, Adv.
Mr. Rezaul Hossain, Adv.
Mr. Anindya Bhattacharya, Adv.
Ms. Anwesha Saha, Adv.
For the respondent : None
Heard On : 28/11/2013, 06/12/2013, 10/01/2014, 25/04/2014
08/08/2014 and 19/08/2014
Judgment on : 26/09/2014
Arijit Banerjee, J.
(1) The case of the petitioner is that he is the authorized representative of 'Neora Dighi Fish Production Group' (hereinafter referred to as "the said group") which is an association of persons engaged in pisciculture. The said group is registered with the Directorate of Fisheries. (2) In August 1995, Neora Dighi, which is a fishery located in North 24 Parganas was settled in favour of the said group by the Government of West Bengal at an annual lease rent of Rs. 17,000/-. Thereafter, since the authorities were not receiving the lease rent in respect of the said fishery at the prescribed rate and were demanding higher lease rental, the said group through the petitioner filed WP No. 28076 (W) of 2009 in this Court. The said writ petition was disposed of by an order dated 11th February, 2011 whereby the said group was granted liberty to deposit the arrear rent. On the basis of such order arrear rent was deposited by the said group. (3) The Learned Sub-Divisional Magistrate, Basirhat, initiated a proceeding under Section 145 (8) of the Code of Criminal Procedure. In The said proceeding an Enquiry Report was filed by the BL&LRO, Basirhat, on 29th November, 2011, recording, inter alia, that the said fishery is in the possession of the said group which is rearing fish thereat. However, notwithstanding such report the Ld. Magistrate directed the BL&LRO, Basirhat to take steps for taking custody of the said fishery and sale of the fish reared in the said fishery.
(4) The said order of the Ld. Magistrate was challenged by the petitioner by filing CRR 3747 of 2011 in this Court. On the said application, the order of the Ld. Magistrate was stayed by an order dated 14th December, 2011. (5) Notwithstanding the aforesaid order of this Court dated 14th December, 2011, the Inspector-in-charge of the Basirhat Police Station started interfering with the activities of the said group in rearing fish at the said fishery and sought to implement the order passed by the Ld. Sub- Divisional Magistrate, operation whereof was stayed by this Court. It was under those circumstances that the instant writ petition was filed by the petitioner on behalf of the said group.
(6) On the above writ petition being moved an order dated 25th May, 2012 was passed by Tandon, J. the material portion whereof is extracted hereunder:
'By order dated 22nd November, 2011 the Sub-divisional Magistrate, Basirhat, directed the Block Land and Land Reforms Officer, Basirhat, to take custody and sale of such property and the Inspector-in-charge, Basirhat Police Station, was also directed to ensure maintenance of peace. Assailing the said order the petitioner filed a Criminal Revision, Being CRR 3747 of 2011, where this Court on 14th December, 2011 stayed the operation of the said order.
If the operation of the order has been stayed by this Court, the Inspector-in- Charge of the said police station cannot obstruct the petitioner for doing cultivation of fish.
Furthermore, the copy of the report submitted by Amin annexed to this writ petition envisages that the petitioner is in possession of the pond. Thus, I find prima facie case has been made out.
The Inspector-in-charge, Basirhat Police Station, being the respondent no. 5, is hereby restrained from creating any obstruction and/or disturbances in cultivation of fish by the petitioner till the disposal of the writ petition. It is further made clear that the petitioner shall continue to cultivate fish upon payment of the requisite fees and charges levied by the competent authority for that purposes, if there be any.' (7) With regard to the settlement of the fishery in favour of the petitioner, a Division Bench of this Court on a writ petition challenging the order dated 21st September, 2012 passed by the West Bengal Land Reforms and Tenancy Tribunal being WPLRT 264 of 2012, by an interim order dated 9th October, 2012 directed the parties to maintain status quo as regards the said fishery. The said proceeding was disposed of by another Division Bench of this Court on 7th March, 2013 by setting aside the judgment and order of the Tribunal dated 21st September, 2012 and remanding the matter back to the Tribunal for de novo consideration.
(8) According to the petitioner, despite the aforesaid orders of this Court, local anti-socials were trying to forcibly grab the said fishery and/or take control of rearing of fish from the said group which compelled the said group to file a complaint before the Inspector-in-charge, Basirhat Police Station on 19th June, 2013. Since there was no action on the part of the police authority, the petitioner was constrained to file CAN 6394 of 2013 in the above writ petition praying for a direction on the police authority to ensure protection to the members of the said group in respect of their pisciculture business and to see that the orders of this Court were implemented. The said application was disposed of by I.P. Mukherjee, J. by an order dated 1st August, 2013 whereby His Lordship directed, inter alia, that the order of Tandon, J. dated 25th May, 2012 should be strictly enforced by the Inspector-in-charge, Basirhat Police Station and furthermore, the Inspector-in-charge was to ensure that the status quo regarding possession as ordered by the Division Bench of this Court on 9th October, 2012 is strictly maintained.
(9) The petitioner filed yet another interim application being CAN No. 11311 of 2013 on the basis of the allegation that in spite of the aforesaid orders of this court the police authorities did nothing to protect the members of the said group and the business of the said group was in serious jeopardy.
In the said application direction was again prayed for on the police authority to ensure implementation of the orders of this Court. The said application is still pending.
(10) On 28th November, 2013 the writ petition came up for hearing before me. I heard the Ld. Counsel appearing for the parties at length and on the prayer of the Ld. Counsel appearing for the State-respondents the application was adjourned till 6th December, 2013.
(11) On 6th December, 2013 affidavit in opposition to the writ petition was filed on behalf of the State-respondents. As prayed for time was granted to the State-respondents to file affidavit-in-opposition in connection with CAN No. 11311 of 2013. Subsequently such affidavit-in-opposition was filed. (12) Thereafter, the matter came up before me on 10th January, 2014 and 25th April, 2014 but the same was adjourned on the prayer of the parties. (13) On 8th August, 2014 when the matter again appeared before me nobody appeared for the respondents. Since the matter was pending for a long time I fixed the matter for hearing on 19th August, 2014 at 2 p.m. and directed the petitioner's Advocate on record to serve a notice on the Ld. Advocate representing the State-respondents communicating that date's order and also the fact that no adjournment would be granted on 19th August, 2014.
(14) On 19th August, 2014 nobody appeared for the State-respondents in spite of notice having been served on the Ld. Advocate for the State as directed by the order dated 8th August, 2014. In the premises I proceeded with the hearing ex parte, and closed the hearing.
(15) From the records of the case, there does not appear to be any dispute that the said group is in possession of the said Neora Dighi Fishery and is carrying on pisciculture business there. The grievance of the petitioner is that local anti-socials are threatening to forcibly take over possession of the said fishery from the said group and repeated complaints by the members of the said group to the police authorities and in particular the Inspector-in- charge, Bashirhat Police Station have fallen on deaf ears. The police authorities have been completely inactive in the matter in spite of the orders passed by this Court as aforesaid and in particular the orders passed by Tandon, J. and I.P. Mukherjee, J.. In stead of, protecting the peaceful possession of the said group in respect of the said fishery it appears that the Inspector-in-charge, Basirhat Police Station is trying to interfere with the possession of the said group on the basis of the order of the Ld. Sub- Divisional Magistrate, operation whereof has been stayed by this Court. This is most unfortunate. It is the duty of the police authorities to protect the lawful rights of the members of the society which duty, it is evident, the authority has failed to discharge in the instant case. The Neora Dighi Fishery has been settled in favour of the said group which is entitled to carry on pisciculture business at the said fishery upon payment of lease rent without any interference or obstruction from the said authorities or private individuals.
(16) The Police Act, 1881 and the Police Regulations of Bengal cast an obligation upon the police authorities not only to maintain law and order but also to act in implementation of orders passed by the Courts of law. However, the facts and circumstances of the case reveal that there has been gross inaction and arbitrary non-performance of statutory duty on the part of the police authorities.
(17) This writ application along with CAN No. 11311 of 2013 is disposed of by directing the police authorities and in particular the Inspector-in- charge, Basirhat Police Station who is the respondent no. 5 in the writ petition to ensure strict implementation of the order dated 25th May, 2012 passed by Tandon, J. as well as the order dated 1st August, 2013 passed by I.P. Mukherjee, J.. The police authority is directed to ensure that the rearing of fish by the said group represented by the petitioner at the Neora Dighi Fishery is not interfered with or obstructed in any manner and also to take prompt steps if any complain is lodged by the petitioner in that regard. It is unfortunate that in spite of notice nobody appeared on behalf of the State- respondents at the final hearing of this application. This reflects the nonchalant attitude of the State-respondents which is not appreciated. In view of their conduct the State respondents will pay costs of this application assessed at Rs. 5,000/- to the writ petitioner.
(Arijit Banerjee, J.)