Calcutta High Court (Appellete Side)
Ankur Sharma vs State Of West Bengal & Ors on 19 September, 2023
Author: Hiranmay Bhattacharyya
Bench: Hiranmay Bhattacharyya
1
18 19.09.2023 WPA(P) 506 of 2023
Ct. No. 01
AN
Ankur Sharma
Vs.
State of West Bengal & ors.
Mr. Sabyasachi Chatterjee
Mr. Sandipan Das
Mr. Bodrul Karim
Mr. Dipankar Das
... for the petitioner
Mr. N. C. Bihani
Ms. Papiya Banerjee Bihani
... for the W.B.P.C.B.
Mr. Saptanshu Basu
Mr. Anil Kr. Chowdhury
Mr. Chandan Nath Dutta
Mr. Soumyajit Bhalla
... for the private respondent
1. Affidavit-of-service filed is taken on record. Heard learned counsel for the respective parties at length.
2. As undertaken by the learned counsel appearing for the private respondents, there shall be no construction activity done by the private respondents in the lands which are classified as 'pukur' which are stated to be comprised in L.R. Dag No. 718.
3. The respondent Municipality is directed to show cause as to how the building plan was approved when admittedly, as per the record of rights, Dag No. 718 is registered as a water body. Apart from that the land comprising of Dag No. 716 is classfied as a 'Bagan' and the Municipality shall also show cause as to on what basis the building plan was approved and construction activities were permitted to be conducted. Further, we note that the West 2 Bengal Pollution Control Board has already issued direction in exercise of powers conferred under Section 33A of the Water (Prevention and Control of Pollution) Act, 1974 and Section 31A of the Air (Prevention and Control of Pollution) Act, 1981 and the Environmental Protection Act, 1986 and the Rules framed therein. In the said order passed by the West Bengal Pollution Control Board dated 29.08.2023, the private respondents have been directed not to proceed with the construction activities and certain other directions have been issued in that regard. One other issue which needs to be considered in the instant case is that whether if a land which is classified as a water body no longer retains the features of a water body, can it automatically re-classified as a 'Bastu land' or a homestead land. The West Bengal Pollution Control Board would state that the private respondent should submit necessary permission of the competent authority regarding creation of a compensatory water body to the State Board. It cannot be disputed that the water always takes its course and the natural course of water further cannot be altered and if there is human interference that will result is flooding. Therefore, the larger question would be as to whether the policy framed by the Government of West Bengal stating that the water bodies can be permitted to be re-classified as homestead lands whenever the water body looses its character or the water body gets surrounded by a construction being put up in other homestead lands, can that be a reason to re-classify the water body and convert it into a homestead land and 3 whether by constructing a compensatory water body will give the desired result.
4. In this regard, we require response in the form of an affidavit of the State of West Bengal, particularly, the Principal Secretary, Department of Urban Development & Municipal Affairs, Government of West Bengal. This is of utmost importance because the State being the Trustees of these lands which are public purpose lands have to preserve the same as it is and if any attempt is made by a State to undo the existing water bodies, it would tantamount to breach of public trust. The State should be reminded of the public trust doctrine in this regard. Therefore, this aspect of the matter will be considered by this Court after a response, to be filed by the 3 rd respondent on behalf of the State of West Bengal.
5. List the matter on 16.10.2023 for further consideration.
(T. S. Sivagnanam) Chief Justice (Hiranmay Bhattacharyya, J.)