Calcutta High Court (Appellete Side)
Arijit Sen & Ors vs The State Of West Bengal & Ors on 10 July, 2009
Author: Surinder Singh Nijjar
Bench: Surinder Singh Nijjar
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
THE HON'BLE CHIEF JUSTICE SURINDER SINGH NIJJAR
And
THE HON'BLE MR. JUSTICE BISWANATH SOMADDER
W.P.No. 1254 (W) of 2009
ARIJIT SEN & ORS.
-VERSUS-
THE STATE OF WEST BENGAL & ORS.
For the Petitioners: Mr. Ashok Banerjee ............ Senior Advocate.
For the respondent no.10: Mr. Sakti Nath Mukherjee....Senior Advocate,
Mr. Saptangsu Basu...................... Advocate, Mr. Abhrajit Mitra........................ Advocate, Mr. Jishnu Chowdhury..................Advocate.
For the respondent no. 9: Mr. Husn-Ara Begum......................Advocate.
Heard on: 10.07.2009 Judgment on: 10.07.2009
BISWANATH SOMADDER, J.- Seventeen persons have joined hands to bring this application, styled as a matter of 'Public Interest Litigation' under Article 226 of the Constitution of India. All of them claim to be citizens of India and residents of a particular locality adjoining Diamond Park and Baruipara, falling within village and P.O. Joka, under P.S. Thakurpukur, District South 24- Parganas.
It has been contended by them that they are acting in common interest of the locality where the cause of action arose and thus they have locus standi to move the instant writ petition, for and on behalf of the residents of the locality.
It has been contended that the locality-in-question was once upon a time a village, having few residents who were "living" their livelihood by agriculture, pisiculture, daily labourers and very few office goers. It has also been contended that a vast area of land was purchased by Siemens Company Ltd. consisting of agricultural land and doba comprised of various Dag and Khatian numbers. It is also stated that the petitioners came to know that the said company, by executing several deeds of conveyance, transferred the entire property in favour of the private respondent no.10 herein for valuable consideration. They further came to know that the private respondent no.10, after such purchase, recorded their names in the record of rights as owners of the said property.
It has also been contended that from the true copy of the record of rights, annexed to the writ petition, it would appear that the land-in-question was recorded both, as Sali (agricultural land) and Doba (water body). It has also been stated that prior to transfer of those lands to the respondent no.10, the nature and character of the land was not changed. However, the respondent no.10, without obtaining necessary permission from the competent authority to change the classification of the land, obtained sanction of building plan from the competent plan sanctioning authority and also illegally filled up those water bodies, without obtaining permission from the competent authority of the state respondent.
The petitioners have referred to various provisions of the West Bengal Land Reforms Act, 1955 and have stated that it is mandatory to obtain permission for change of the character of the land. The petitioners have also stated that the respondent no.10 is making illegal and unauthorized construction over the plot of land in complete disregard of the West Bengal Land Reforms Act, 1955 and the West Bengal Panchayat Act, 1973, without obtaining any lawful permission to change the nature of the land, in as much as by filling up the water body, which is punishable under the statute and such construction is continuing day to day.
It has also been stated by the writ petitioners that the State of West Bengal had acquired some of the plots for public purpose but subsequently released them from such acquisition except one. According to the writ petitioners, the action of the private respondent no.10 as well as the exercise of power by the respondent authorities in declaring private respondent no.10 as a "Rayat" in respect of the lands held under acquisition and allowing them to continue with construction was wholly illegal and also mala fide and colourable exercise of power by the respondent authorities.
On the other hand, the respondent no.10 in their affidavit-in-opposition have stated that the writ petition is motivated and is not in public interest and this would be evident from the fact that the writ petitioner no.1 is a local promoter and is interested in preventing the mini-township, which is being developed by respondent no.10 at the property-in-question, to be fully functional. It has been further stated that the writ petitioner no.1 is carrying on business as developer, inter alia, under the name and style of M/s. Legend Construction and a brief description of the properties that have been developed by him in the locality have also been narrated. It has also been stated in the affidavit that the petitioner no. 1 had been approaching the management of the respondent no.10 since the time it had acquired the property-in-question from Siemens Company Ltd. by registered conveyance deed sometime in 2003. All throughout the period when the property was being developed pursuant to the building plan sanctioned on 20th December, 2005 by Joka-II Gram Panchayat, the petitioner no.1 had been approaching the respondent no.10's officers and making various illegal demands and holding out various threats. The property comprised of 20.93 acres of land where a mini-township comprising of 1875 number of flats, car parking spaces, water tank, play ground, recreational facilities are situated and has been constructed between December, 2005 and end of the year, 2008. It has also been stated that the writ petitioner filed the instant writ petition some time in January, 2009 and moved it on 13th February, 2009 by which time the entire residential township had been completed. By this time the respondent no.10 had also entered into agreement for sale of 1525 number of flats and have received payments from the prospective purchasers. Possession has also been handed over to the flat buyers.
In paragraph 6 of the affidavit-in-opposition the respondent no.10 has stated that pursuant to the representation made by the petitioners before the concerned authority on or about 3rd March, 2008, the Block Land and Land Reforms Officer, Thakurpukur, had taken action by instituting a proceeding under Section 4(D) of the Land Reforms Act, 1955 and the said authority issued a notice on 26th December, 2008, in the nature of a show-cause notice, upon the respondent no.10 which was duly replied to by way of objection filed on 18th February, 2009. Hearing has also taken place before the Block Land and Land Reforms Officer, who directed a survey to be made on the subject property. Such survey was carried out by the officers of the Block Land and Land Reforms Office, Thakurpukur on 23rd March, 2009. A Survey report was submitted by the surveyor to the Block Land and Land Reforms Office, Thakurpukur, and on the basis of that report, the Block Land and Land Reforms Office has to submit its report to the A.D.M. of the Block Land and Land Reforms Office, Thakurpukur, although copy of the report has not been made available to the respondent no.10. As such, it has been contended by the respondent no.10 that the state respondent had already taken necessary action with regard to the writ petitioners' complaint and there is no scope for maintaining the present writ petition. The respondent no.10 has prayed that the writ petition is liable to be dismissed, inter alia, on this ground alone.
After hearing the learned counsel appearing on behalf of the respective parties and upon perusing the pleadings filed before us it appears that a representation was made by the petitioners to the concerned authorities on or about 3rd March, 2008 and the Block Land and Land Reforms Officer, Thakurpukur had taken action pursuant thereto by instituting a proceeding under Section 4(D) of the Land Reforms Act, 1955 in the form of a show-cause notice upon respondent no.10 on 26th December, 2008, which was replied to on 18th February, 2009. It further appears that hearing has also taken place before the Block Land and Land Reforms Officer, Thakurpukur in that regard. It further appears that a survey was also directed to be made which was carried out by the officers of the Block Land and Land Reforms Office, Thakurpukur on 23rd March, 2009 and a survey report was prepared and on the basis of that report, the Block Land and Land Reforms Officer, Thakurpukur is to submit his report to the A.D.M. of the Block Land and Land Reforms Office, Thakurpukur. It is, thus, clear that the state respondents have taken adequate steps in the matter, even without Court's intervention.
It is also obvious that the writ petitioners waited till this year for the purpose of filing the instant writ petition in so-called 'public interest'. There is no explanation in the writ petition as to why the writ petitioners, who have all claimed to be of the same locality, chose not to bring about any action before this Court between 2005 and till date of filing of the writ petition in 2009. We are of the view that if one has to show bona fide in order to bring about an action in public interest of this nature, he has to do so at the earliest available opportunity and cannot afford to be merely a fence-sitter, waiting for an opportune moment to approach the Court. That apart, it has been categorically stated by the respondent no.10 in their affidavit-in-opposition that the writ petition has not been filed in public interest and the writ petitioner no.1, Arijit Sen, is a local promoter carrying on business as a developer, inter alia, under the name and style of M/s Legend Construction and thus, is an interested party himself. From the affidavit-in-reply filed by Arijit Sen on behalf of himself as well as on behalf of other writ petitioners it appears that he has not denied the fact that he is a local promoter. He has, in fact, stated that there is no bar for a law abiding promoter to approach the Court as well as to bring it to the notice of the Court the illegal action of the respondent authorities and that the respondent no.10 was trying to make vengeance with the petitioner no. 1 to cover up its illegal acts and actions. We are not quite convinced with such assertion since it is obvious that the writ petitioner no. 1 himself is an interested party and he has never denied the specific allegations brought against him by the respondent no.10 in paragraph 4 of their affidavit-in-opposition.
For all the above reasons, we do not find any merit in the instant writ application and the writ petition is accordingly dismissed. I agree.
(SURINDER SINGH NIJJAR, CJ.) (BISWANATH SOMADDER, J.)