National Green Tribunal
Pralay Das & Others vs Union Of India on 28 January, 2022
BEFORE THE NATIONAL GREEN TRIBUNAL
EASTERN ZONE BENCH,
KOLKATA
............
ORIGINAL APPLICATION No. 40/2021/EZ
(I.A. No. 08/2022/EZ & I.A. No. 09/2022/EZ)
IN THE MATTER OF:
1. Pralay Das,
S/o Gopal Chandra Das,
Occupation-Business,
2. Monisha Das,
W/o Sri Gopal Chandra Das,
Occupation-Housewife,
3. Sourav Senapati,
S/o Sri Ashok Senapati,
Occupation-Business,
4. Sri Supriya Mondal,
S/o Sri Kanu Mondal,
Occupation-Bisiness,
5. Sri Sagar Jana,
S/o Sri Bibhu Jana,
Occupation-Business,
6. Shri Koushik Kundu,
S/o Sri Subhas Kundu,
Occupation-Business,
7. Sri Pinaki Mondal,
S/o Late Dilip Kumar Mondal,
Occupation-Service,
All religion-Hindu,
All R/o Balitikuri, Kalitala,
Naskar Para (Dhopa Pukur),
P.O.-Balitikuri, P.S.-Dasnagar,
District-Howrah,
Pin - 711113,
....Applicant(s)
1
Versus
1. The Union of India,
Through Secretary,
Ministry of Environment, Forest and Climate Change,
Indira Paryavaran Bhawan, Jor Bagh Road,
New Delhi - 110003,
2. The Secretary,
Ministry of Environment, Forest and Climate Change,
Indira Paryavaran Bhawan, Jor Bagh Road,
New Delhi - 110003,
3. The State of West Bengal,
Through Additional Chief Secretary,
Department of Environment,
5th Floor, Pranisampad Bhawan, Block-LB-II,
Salt Lake, Sector-III, Bidhannagar,
Kolkata - 700106,
4. The West Bengal Pollution Control Board,
Through Member Secretary,
Paribesh Bhawan, 10A, Block-LA,
Sector-III, Salt Lake City,
Kolkata - 700106,
5. The State of West Bengal,
Through Secretary,
Ministry of Environment,
Department of Home,
HRBC Building, Nabannya,
P.S.-Shibpur, Disrict-Howrah,
Pin - 711102,
6. The District Magistrate, Howrah,
Collectorate Building,
2
P.O.+P.S.+District-Howrah,
Pin - 711101,
7. The Additional District Magistrate, Howrah,
Land and Land Reforms Department,
Collectorate Building, P.O.+P.S.+District-Howrah,
Pin - 711101,
8. The Commissioner of Police,
City Police, P.O.+P.S.+District-Howrah,
Pin - 711101,
9. The Officer-in-Charge, Dasnagar Police Station,
Howrah - 711105,
10. The Assistant Director of Fishery,
Fisheries Department,
Sub-Divisional Land and Land Reforms Department,
Benfish Tower, 31, GN Block, 8TH Floor, IT Building,
Salt Lake, Sector-V, Kolkata - 700091,
11. The Block Land and Land Reforms Officer, Bally-Jagacha,
229, G.T. Road, Belur Bazaar,
Howrah - 711202,
12. The Commissioner, Howrah,
Municipal Corporation,
4, Mahatma Gandhi Road,
Howrah - 711101,
13. Subrata Dhara,
S/o Late Paresh Nath Dhara,
C.T.I. Road, Biradingi,
P.O.-Netajigarh, P.S.-Dasnagar,
District-Howrah - 711108,
3
14. Samita Sinha,
15. Sweta Sinha,
Both D/o of Late Rabi Kumar Sinha,
16. Ragini Sinha,
W/o Late Rajib Sinha,
17. Sudha Rani Sinha,
W/o Late Satyadeo Sinha,
18. Sanjeeb Kumar Sinha,
S/o Late Satyadeo Sinha,
All R/o Balitikuri, Kalitala,
Naskar Para (Dhopa Pukur),
P.O.-Balitikuri, P.S.-Dasnagar,
District-Howrah,
Pin - 711113,
....Respondent(s)
COUNSEL FOR APPLICANT:
Mr. Raju Ravi Das, Advocate
COUNSEL FOR RESPONDENTS :
Mr. Gora Chand Roy Choudhury, Advocate for R-1&2,
Mr. Rajib Ray, Advocate for R-3, 5 to 11,
Mr. Dipanjan Ghosh, Advocate for R-4,
Ms. Amrita Pandey, Advocate for R-12,
Mr. Golam Mustafa, Advocate a/w Mr. Subir Sahu, Advocate for
Respondent Nos. 13 to 18,
JUDGMENT
PRESENT:
HON'BLE MR. JUSTICE B. AMIT STHALEKAR (JIDICIAL MEMBER) HON'BLE MR. SAIBAL DASGUPTA (EXPERT MEMBER) __________________________________________________________________ Reserved On:- 24th January, 2022 Pronounce On:- 28th January, 2022 __________________________________________________________________
1. Whether the Judgment is allowed to be published on the net? Yes 4
2. Whether the Judgment is allowed to be published in the NGT Reporter? Yes JUSTICE B. AMIT STHALEKAR (JUDICIAL MEMBER) This is an Original Application filed by the Applicant with the allegation that Respondent Nos. 13 to 18 (Private Respondents) are filling up the water body commonly known as 'Dhopa/Pukur' situated in Mouza-Balitikuri, J.L. No. 101, Old J.L. No.1, R.S. Dag No. 3511, 3518 and 3521. It is stated that area of the respective Dag numbers as per Land Record is 54 decimals, 1.50 acre and 25 decimals respectively totaling around 7 bighas. It is also alleged that the said Respondents are filling up the pond illegally leading to reduction in the water table and affecting the aquatic flora and fauna causing ecological disturbance.
2. At the time of admission, the Tribunal constituted a Committee comprising of the following Members:-
(i) Senior Scientist, Integrated Regional Office of Ministry of Environment, Forest and Climate Change, Bhubaneswar/Kolkata;
(ii) Senior Scientist, West Bengal State Pollution Control Board;
and
(iii) The District Magistrate, Howrah;
The Senior Scientist, Integrated Regional Office of Ministry of Environment, Forest Climate Change, Bhubaneswar/Kolkata was the Nodal Office for all logistic purposes and the Committee was 5 directed to submit its report. Notices were also issued to the Respondents directing them to file their responses.
3. A counter-affidavit has been filed on behalf of the Respondent Nos. 13 to 18, stating therein that the Plot No. L.R. 3511 is still recorded as 'Doba' and it exists as a 'Doba' (page 6) except more or less an area of 17 decimal out of a total area of 54 decimal in which the said Respondents have converted an area of about 12.5 decimal to residential premises. It is also stated that the said premises are well demarcated by fencing and wall and the Plot No. 3511 has been shown as 'Doba/Bastu'. It is also stated that the Respondent Nos. 13 to 18 have no interest over the plot of land marked as Plot No. L.R. 3521. So far as the Plot No. L.R. 3518 is concerned, it is stated that the Respondents No. 14 to 18 have right only over an area of about 50 decimal out of a total area of 1.5 acres. It is also stated that some portion of Plot No. L.R. 3518 has been shown as Sali Land but in the R.S. R.O.R. it has been shown as Danga/Puratan Patit and in other Record of Rights, namely, L.R. R.O.R. it has been shown as Danga/Bastu. This plot is nowhere mentioned or shown as 'Pukur/Doba'. It is also stated that a complaint was made against the said Respondents when certain boundary wall was constructed by the Respondent Nos. 14 to 18 and their predecessors in between the two plots i.e., Plot No. 3511 and Plot No. 3518 and the Respondent No.14/their predecessors had also paid a sum of Rs. 19,231/- (Rupees Nineteen Thousand Two Hundred Thirty One only) on August 10, 2015 towards development fees for Plot No. 3518. The Respondent Nos. 14 to 18 and their 6 predecessors also approached the Block Land and Land Reforms Officer, Bally Jagachha for permission to fill up some portion of their Plot No. 3581 with earth as such portion of land was lower than the pathway and accordingly a direction was given on this application by the District Land and Land Reforms Officer, Howrah to Rajib Kumar Sinha, Sanjeeva Kumar Sinha, and Sudha Rani Sinha, the concerned Respondents, and a sum of Rs. 57,108/- (Rupees Fifty Seven Thousand One Hundred Eight only) was also paid to the Government vide challans dated 29.08.2016.
4. An affidavit-cum-Status Report dated 20.07.2021 has been filed by the Respondent No.9, Officer-in-Charge, Dasnagar Police Station, Howrah Police Commmissionerate, stating therein that a complaint was filed by the Applicants on 13.11.2020 alleging filling up of the L.R. Dag No. 3518 and 3511, L.R. Khatin No. 12386, 12387 & 12388, Mouza-Balitikuri, P.S. Dasnagar, Howrah, by the concerned Respondents and, therefore, the matter was enquired by the I.O. and Block Land and Land Reforms Officer, Bally Jagacha, Howrah, and Sub-Divisional Officer, Howrah Sadar, Howrah, were requested to provide information regarding L.R. Dag No. 3518 and 3511, Khatian No. 12386, 12387 and 12388 under Police Station Dasnagar, Howrah on the following points:-
1. Nature and character of the above mentioned land.
2. Owner of the land.
3. Any other points for interest of investigation of the case.7
It is also stated that the Block Land and Land Reforms Officer, Bally Jagachha submitted a memo dated 08.01.2021 stating therein that suit property i.e., L.R. Dag No. 3518, Khatian No. 12386, 12387 & 12388, J.L. No. 101, Mouza-Balitikuri, Police Station Dasnagar, District-Howrah, is classified as 'Bastu' and the suit property within L.R. Dag No. 3511 Khatian No. 12386, 12387 & 12388, J.L. No. 101, Mouza-Balitikuri, Police Station Dasnagar, District-Howrah, is also classified as 'Bastu'. It is also stated in the affidavit that during local enquiry, some portions of the land was found to be covered with water adjacent to which a portion of plot was fenced with tin sheets. Plot Nos. 3511, 3521 and part of Plot No. 3518 were mostly covered with pucca building structure including number of workshops and factories and machine shops. Accordingly, a final report was submitted by the Police on 25.01.2021. It is also stated that the Respondents, Samit Sinha, Sweta Sinha, Ragini Sinha, Sudharani Sinha, Sanjeeva Sinha and Subrata Dhara filed T.S. No. 712/2020 against Pralay Das and others (Applicants herein) before 6th Civil Judge (Jr. Division) at Howrah, in respect of Danga (Puratan Patit/Bastu), land measuring 46.20 decimal situated within Mouza-Balitikuri, J.L. No. 101 (old J.L. No. 1) comprised in L.R. Dag No. 3518 corresponding to Khatian No.539, L.R. Khatian No. 12386, 12387 & 12388, under Dasnagar Police Station, District-Howrah, and the court of the 6th Civil Judge (Jr. Division) passed an order on 01.12.2020 directing the Officer-in-Charge, Dasnagar Police Station to visit the suit property and see whether the order of ad-interim injunction dated 8 14.09.2020 was still being violated and to ensure compliance of the order.
5. The Block Land and Land Reforms Officer in his affidavit dated 25.08.2021 has stated that with regard to the Plot No. 3511 comprising total area of 54 decimal as per land records, the same is recorded as ''Doba/Bastu' over which there is a water body measuring 14 kathas or 23 decimal (approximately) and the remaining 31 decimal of the said plot is covered with residential house and common passage. The Plot No. 3518 having a total area of 150 decimal is recorded as 'Danga Puratan Patit' and Plot No. 3521 having a total area of 28 decimal which is recorded as 'Doba/Bastu'. It is also stated that a physical inspection of the land in question was carried out to ascertain its present status and the findings of the enquiry report of the Revenue Inspector which are mentioned in para 15 of the affidavit may be reproduced herein for proper appreciation of the case and which read as under:-
i. The plot no. 3511 with the total area being 54 decimal is recorded as "Doba/Bastu" wherein there is a wter body measuring 14 kathas or 23 decimal (approximately) and the rest 31 decimal is covered with residential houses, running karkhana and common passage.
ii. That in the plot no. 3518 with the total area of the instant plot being 150 decimal is recorded as "Danga, Puratan Patit" within which an area of approximately 47 decimal land is barricaded with corrugated tin. It is a low land full of shrubs and herbsand some water. The area of the about 1.03 acres consists of different small-scale industries and foundry including common passage which his located along the east-west on the plot.9
iii. That in the entire plot no. 3521 with the total area of the plot being 28 decimal is recorded as "Doba/Bastu"
consists of dwelling houses and karkhanas in small scale industries"
6. The Applicant has filed a rejoinder affidavit dated 26.08.2021 to the counter-affidavit of the Respondent Nos. 13 to 18, reiterating the allegations as made in the Original Application, and also stated that the land in question was always water logged and it cannot be called a 'Danga' land and if it is recorded in the Land Revenue Record of Rights as Danga/Puratan Patit/Bastu, the same is without any order of conversion of the Land Reforms Department as per the provisions of Land Reforms Act, 1965.
7. An affidavit dated 25.11.2021 has been filed on behalf of the Ministry of Environment, Forest and Climate Change, bringing on record the Report of the Committee constituted by the Tribunal vide its order dated 11.06.2021 in respect of an inspection carried out on 17.08.2021. The observations and the recommendations made by the Committee may be reproduced herein for proper appreciation of the case which read as under:-
"The Committee as per the order will do a site visit and submit a detailed report with respect to:
1. Whether respondent number 13 to 18 or any other persons are trying to fill up the water body or any portion of the water body has been filled up
2. Determine the extent of damage caused to the environment
3. Assess the environment compensation as per guideline issued by CPCB which will be required to be recovered from the polluters.10
4. Provide series satellite images (between 2010 and 2020-21) of the concerned water body and other photographic evidence to show the extent of encroachment and damage caused to the water bodies.
The Committee visited the said inspection site on 17th August, 2021.
1.0. Major Observations of the field visit by the Committee.
a) In plot number 35611, approximately 23 dec. consist of water body and the rest is covered with residential houses, factories and common passage.
b) Plot 3518 is a low land filled with water, shrubs and herbs which was surrounded with corrugated tins. This low lying area amounted for approximately 47 dec., while other part of the plot consists of small scale industries and foundry.
c) In plot 3521,there were houses and small scale industries.
2.0. Observation of Block Land and Land Revenue Officer, Bally-
Jagacha A report has been submitted by Block Land & Land Reforms Officer, Bally-Jagacha Block to ADM & District Land & Land Reform Officer, Howrah, vide Memo no. 4123/BJ/21 dated 17.08.2021.
The Report for land use change is presented in the table below, wherein it is mentioned that only 14 or 15 decimal area is under water. Rest area is converted for residential houses, shops, workshops & karkhanas etc. Dag Total area Recorded Present status No. of the plot Classification 3511 54 dec. Doba Existing areas of water body - 14 kathas (23 dec.) Rest area of 31 decimal is occupied with residential houses, karkhanas and 11 common passage 3518 150 dec. Danga, Approx. 47 dec. is Puratan Patit lowland, filled with shrubs and herbs and some water fenced by corrugated tins.
Rest 103 dec. is occupied
by different small scale
industries and foundry
including common
passage which his
situated along the east-
west of this plot.
3521 28 dec. Doba Entire plot consisting of
dwelling houses and
karkhanas to small scale
industries in future.
Further, with reference to the Memo No. 4760/BJ/21 date 16.09.2021 it is mentioned that conversion Order of the mentioned plots are not readily available to the Office during searching of the said cases.
3.0. Observation made by Shri Bholanath Dutta, Revenue Inspector, Office of the block land and land reform officer, Bally Jagacha Shri Bholanath Dutta, Revenue Inspector, BL-LRO, Bally Jagacha has made observations which are as follows:
a) Shri Dutta has indicated that Plot Nos. 3511 & 3521 were converted 50 years back for construction of houses, workshops, shops and industries (small).
The plots known as Dhopa Pukur (pond for washing clothes) is now reduced to 14/15 decimal.
b) He also expressed that it is difficult to recognize the Plot No. as those three plots are divided into many small land parcels for use of residential houses, 12 shops, workshops and mechanical units. Therefore, he has highlighted the need of detailed survey to locate the position of the mentioned plot.
4.0. Detail observations from Satellite Imagery For detail interpretation Google Image from May 2005 to May 2021 is being considered. Google image of summer season is the best option to analyze the land use of the area. Google image of summer season starting from 2005 to 2021 is present in the table below. In this table analysis was done for the plot nos. 3511 & 3518 only as plot no. 3521 has been converted for residential/shop/workshop before 2000.
Time Series Land Use Changes
Sl. No. Period Area of water body/sq.m Remarks
Plot No. Plot No.
3511 3518
1. May 2005 1146 2041 Clear water
bodies observed.
2. May 2007 1219 1470 Water body
covered with
algae.
3. May 2010 1369 1493 Water body
covered with
algae.
4. May 2011 1273 1593 Water body
covered with
green & brown
algae.
5. May 2012 1243 1587 Water body
covered with
green & brown
algae.
6. April, 2013 1181 1484 Water body
covered with
green & brown
algae.
7. March, 1386 1431 Water body
2014 covered with
13
algae giving
meadow
appearance.
8. April, 2015 1268 1733 Water body
covered with
algae giving
meadow
appearance.
9. April, 2016 1126 1640 Entire water body
giving meadow
appearance.
10. May, 2020 492 704 Land filling
observed.
11. March, 237 0 Plot 3511-
2021 Fragmentation of
the water body.
Plot 3518-Land
filling is observed.
% Ref: 2005 79.32 100
Decrease
in the
water
body
• Due to unavailability of Google image before 2005,
the time series analysis or land use change was conducted taking the year 2005 as a reference year. It is observed that the water body of the plot no. 3511 is reduced by 79.32% and in the plot no. 3518, entire water body is converted by the land filling.
• Time series land use data shows that the area of water body during the year 2005 in the plot 3511 and 3518 are 1146 and 2041 sqm respectively. Previously total wter body area is 3187 sqm. Which has been reduced to 237 sqm in the year 2021.
Conclusion General Aspect:
14
(a) The mentioned plot nos. 3511, 3518 and 3521 of Mouza Balitikuri have slowly changed for residential area/shops/workshops/small industries with pace of time to satisfy the need of the local people.
(b) Observation made from Google image reports that out of 7 bighas (10080 sqm.) of land only 3187 sqm are were under water body in the year 2005 i.e. it is reduced by 68.2% from the original status. Similarly land filling activity was slowly going on and it came down to 237 sqm in the year 2021.
(c) It is needless to mention that land of any individual has the right to use/benefit for their own purpose.
The land cannot be kept fallow for the common purpose for their life time.
Ecological Aspect
a) As submitted by the complainant that the water table of the area is depleted may be true but it is not only due to conversion of the water body of plot no. 3511, 3518 & 3521. In the village, agriculture is the main source of livelihood. Exploitation of underground water for intensive agriculture may be the main reason for depletion of water table in the area.
b) In broad sense, the land filling in small area does not have impact on ecological disturbance. Recommendation
a) Central Pollution Control Board has not formulated any framework to calculate the compensation for land filling of water body so far.
b) However, in case of violation, imposition of penalty may be decided by the Hon'ble NGT as deemed fit for the responsible proponent.
c) A detailed survey of the plots need to conducted by the District Administration.
15
Debarati Ghosh, Debanjan Gupta, Additional District Magistrate(LR) Senior Scientist & DLLRO, Howrah West Bengal Pollution Control Board Department of Environment, Govt. of West Bengal Dr. Shahida Parvin Quazi, (Scientist E) Integrated Regional Office, MoEF&CC, Kolkata
8. A perusal of this Report and the findings recorded by the Committee would indicate that the Plot Nos. 3511 and 3521 were converted about 50 years back for construction of houses, workshops, shops and industries (small). The plots known as 'Dhopa/Pukur' (pond for washing clothes) is now reduced to 14/15 decimal. These plots are divided into many small parcels for use of residential houses, shops, workshops and mechanical units. The satellite pictures which have been filed with the affidavit of the Ministry of Environment, Forest and Climate Change relate only to the Plot Nos. 3511 and 3518. It is noted by the Committee that the Plot No. 3521 has already been converted for residential/ shop/workshop before the year 2000. The Committee has also noted that the complaint of the complainants (Applicants herein) that the water table of the area has depleted may not be only due to conversion of the water body of the Plot No. 3511, 3518, 3521 but due to use of the water for agriculture by the surrounding village and land filling in a small area does not have any impact on ecological disturbance.
9. We have heard the learned Counsel for the parties and perused the documents on record.
16
10. From the documents on record and the averments of the Respondents, we find that the land in question is recorded as Danga/Puratan Patit/Bastu in Plot No. 3518 over an area of 150 decimal which is also noted by the Committee. So far as the Plot No. 3511 is concerned, it is recorded as 'Doba' over an area of 54 decimal of which the water body exists only on 23 decimal and the rest area of 31 decimal is occupied by residential houses, karkhanas (workshops) and common passage. The Plot No. 3521 measuring 28 decimal is recorded as 'Doba' and the entire plot consists of 'dwelling houses, karkhanas and small scale industries of which 47 decimal is low land filled up with shrubs and herbs and some water area is fenced by corrugated tin sheets and the rest 103 decimal is occupied by different small scale industries, foundry and common passage.
11. So far as the Plot No. 3518 is concerned, we have no hesitation in holding that merely because there is some water collected over the plot because it is low land would not convert it into a water body and it is not disputed that it is a low lying area and, therefore, we hold that the constructions of residential houses/workshops/foundry or common passage over the area cannot be said to be illegal or an encroachment over a water body by the Private Respondent Nos. 13 to 18, the same being recorded as Danga/Puratan Patit/Basu.
12. Mr. Rajib Ray, learned Counsel appearing for State Respondents, Govt. of West Bengal has referred to the West Bengal 17 Land and Land Reforms Manual Rules, 1991 in particular Rule 166 Sub-rules (i), (ii), (iii) & (iv) which may be reproduced herein and read as under:-
(i) While disposing of a petition for conversion, it may come to the notice of the Collector that the land has been already converted to some use other than that appearing from the record-of-rights. Such a case should normally be dealt with under Section 4(4). In such cases, it should be enquired as to whether the change in use has been made in the usual course of nature or by deliberate action on the part of the applicant or any other person; and, in the latter case, it should also be ascertained whether the change took place before 24.03.1986, i.e. the date of publication in the official Gazette of the West Bengal Land Reforms (Amendment) Act, 1981.
(ii) If the change in the use of land has occurred (a) in the usual course of nature, or (b) has occurred at a time when such change was not unlawful, (vide proviso to Section 4B), or (c) has occurred due to developmental activities of the Government or of a local body in the surrounding area, or (d) due to urbanization in the surrounding area, the applicant should be informed that the change is being noted in the record-of-rights, and the said record should be corrected accordingly in due course. If there was a reasonable cause made behind the change that occurred, the Collector may consider on the merit of the case if post factor permission should be granted. [In this connection the expression "without any reasonable cause" in section 4(4)(a) may be referred to.] On the other hand, if it is proved that the change was deliberately made without reasonable cause after 24.03.1986, the land may be vested under section 4 (4) (a) or penal action may be taken under section 4(D) unless prosecution under 18 section 4D is barred by limitation under the Code of Criminal Procedure.
(iii) It is apprehended that there may be many cases of unauthorized change in land-use where no application for permission to make such change has even been made. Revenue Inspector shall make enquiries regarding such unauthorized conversion during their tour in their areas. If any such case comes to notice, penal action as contemplated in Sub-section (4) of Section 4 or Section 4D should be taken, unless the Collector grants post facto permission as mentioned in sub-rule (i) above.
(iv) While deciding a matter as mentioned in sub-rules (i),(ii) and (iii) above, the emphasis should be on the bona fides or absence of bona fides of the person making change in land-use."
13. From a perusal of the Rule 166 of Rules, 1991, it will be noticed that the cut-off date for conversion of the land is 24.03.1986 i.e., the date of publication in the Official Gazette of the West Bengal Land Reforms (Amendment) Act, 1981. Any land which has been occupied prior to 24.03.1986 cannot be said to be unlawful as it is only the land which has been occupied after 24.03.1986 i.e., coming into force of the Amendment Act, 1981, that would be unlawful if there was no permission of the Collector. Even in a case of unlawful use or occupation of such land without an order of conversion, Sub-rule (ii) of Rules 166 provides that the Applicant should be informed that the change is being noted in the Record of Rights and the said record should be corrected accordingly in due course and if it is found that there was a reasonable cause behind the change that occurred, the Collector 19 may consider the matter of post-facto permission on merit and grant such post-facto permission.
14. However, Sub-rule (ii) of Rule 166 also provides that if in the alternative it is found that the change was made deliberately without reasonable cause after 24.03.1986, the land may be vested under Section 4(4)(a) of the West Bengal Land Reforms Act, 1981 or penal action be taken under Section 4D unless prosecution is barred by limitation under the Code of Criminal Procedure.
15. Sub-rule (iii) of Rule 166 further provides that if there is any case of unauthorized change in land use without application for permission to make such change, the Revenue Inspector shall enquire the matter and take contemplated penal action as provided in Section 4 Sub-section (4) or Section 4D, as the case may be, unless the Collector grants post-facto permission. The bonafides of the person making change of land use shall be a determining factor for the Collector to take his decision under the rules.
16. In the present Original Application, it is alleged that on or about the year 2006 Sri Rajib Kumar Sinha (since deceased) and one Sanat Dey tried to fill up the water body known as 'Dhopa/Pukur' and order was issued by the Government of West Bengal vide Memo No. 2894 dated 11.10.2006 directing Sanat Dey and Rajib Kumar Sinha not to make any attempt to fill up any portion of the water body. It is also stated that a similar attempt was made by Rajib Kumar Sinha and some other persons in the 20 year 2011 to fill up the Dhopa/Pukur and, therefore, a police complaint was lodged.
17. The learned Counsel for Respondent Nos. 13 to 18 thereupon submitted that the Original Application is grossly barred by limitation since it has been filed only in 2021 whereas the cause of action, if any at all, had accrued to the Applicants as far back as 2006 and, therefore, the Original Application was not maintainable.
18. However, having regard to the express provisions of Rule 166 of the West Bengal Land Reforms (Amendment) Act, 1981 and the principle of law being well established that there is no estoppel against the law, we are not inclined to dismiss this Original Application on the ground of limitation as admittedly the land in question is public land as per the revenue records and it is not the case of the Respondents that the land belonged to any other private party from whom they had acquired this land. However, we cannot ignore the other aspects of the matter, namely, the findings and facts recorded by the Committee constituted by this Tribunal, namely, that the constructions over the plots in question relating to the observations of the Revenue Inspector, Block Land and Land Reforms Officer, Bally Jagachha that the land was converted about 50 years back for construction of houses, workshops, shops and industries (small), which takes the constructions in question prior to the cut off date of 24.03.1986. There is nothing on record to show that the conversion has taken place nor have the Respondent Nos. 13 to 18 filed any document on record to show that they had 21 been in possession of this land prior to 24.03.1986. Even in their counter-affidavits Respondents have not claimed that they have been in possession over the plots in question i.e., 3511 and 3518 since prior to 24.03.1986.
19. That being the factual position, the question whether the land has been converted or not is a matter which needs to be examined by the Government of West Bengal since no records relating to conversion were produced before the Committee either.
20. We, therefore, dispose of this Original Application with a direction to the Respondent No.6, District Magistrate, Howrah and Respondent No.11, Block Land and Land Reforms Officer, Bally Jagachha, to take a decision with regard to the plots in question which are in occupation of the Private Respondent Nos. 13 to 18 strictly in accordance with the provisions of Rule 166 and Sub-rules
(i) (ii) (iii) & (iv) of the Act, 1991 within a period of four months.
21. In view of above, the I.A. No. 08/2022/EZ and I.A. No. 09/2022/EZ also stand disposed of accordingly.
22. There shall be no order as to costs.
............................................ B. AMIT STHALEKAR , JM ....................................... SAIBAL DASGUPTA, EM Kolkata, January 28th, 2022, Original Application No.40/2021/EZ (I.A. No. 08/2022/EZ & I.A. No. 09/2021/EZ) AK 22