Calcutta High Court (Appellete Side)
Somser Layek & Anr vs The State Of West Bengal & Ors on 17 January, 2017
Author: Debangsu Basak
Bench: Debangsu Basak
1
IN THE HIGH COURT AT CALCUTTA
17-01-2017 Constitutional Writ Jurisdiction
Appellate Side
Subrata
.
W.P.No.29684(W) of 2016 Somser Layek & Anr.
-vs-
The State of West Bengal & Ors.
Mr. Kishore Dutta Mr. N.C. Bihani Mr. Santimoy Bhattacharya ...for the petitioners Mr. Chandi Charan De Mr. Soumitra Bandyopadhyay ...for the State Mr. Pundarikaksha Bhattacharya ...for the private respondents The petitioners in this writ petition under Article 226 of the Constitution assail an order passed by the Assistant Director of Fisheries, Burdwan dated September 23, 2016 directing filling up of the pond.
Learned senior advocate appearing for the petitioners refers to an order of the Court dated May 16, 2016 passed in WP No.8363(W) of 2016 (Shyamal Kumar Dutta & Anr. v. District Magistrate, Burdwan & Ors.) wherein the respondent no.5 was directed to conduct inquiries in presence of the representatives of the petitioners and the private respondents and take a decision in accordance with law with regard to filling up of the pond. He submits that the respondent no.5 had conducted the inquiry. However, the impugned order does not disclose the reasons on the basis of which the respondent no.5 has formed the opinion that the land was 2 a pond and that it is required to be restored to its original position.
The State and the private respondents are represented.
Learned advocate appearing for the private respondents submits that, on a previous occasion the authorities had found the petitioners to have filled up the pond.
I have considered the rival contentions of the parties and the materials made available on record.
This is the second writ petition with regard to an alleged filling up of a pond at Dag No.2129 (L.R)/2123 (R.S.) of Mouza - Godo, J.L. No.41.
The private respondents had filed a writ petition being WP No.8363(W) of 2016 complaining of inaction on the part of the authorities in arresting the misdeed for filling up of the pond at such plot of land. Such writ petition was disposed of by an order dated May 16, 2016.
The operative portion of the order dated May 16, 2016 is as follows:-
"The respondent no.6 shall look into the notice demanding justice, have enquiries conducted in the presence of the representatives of the petitioner and the private respondents, ensure that the copies of the enquiry report are given to the parties and thereafter proceed to take appropriate reasoned decision in accordance with the relevant provisions of law. Needless to observe, the private parties shall be duly communicated the decision taken by him.3
Let this exercise be completed as early as possible but not later than 8 (eight) weeks from date of receipt of the enquiry report."
The respondent no.5 had held an inquiry and had prepared an inquiry report. He had thereafter passed the impugned order. In the impugned order he has found that, the plot of land was a pond, after considering the relevant documents. However, the impugned order does not specify the documents considered by him. The inquiry report refers to a direction on the Block Land and Land Reforms Officer, Burdwan for certain documents. The impugned order does not bear clarity as to the result of the direction on the Block Land and Land Reforms Officer and the stand taken by it. Since the impugned order does not specify the documents which prompted the respondent no.5 to arrive at such a finding, I am of the view that the impugned order suffers from the vice of lack of reasons.
In view of the impugned order, not appearing to be informed with reasons, the same is required to be set aside and is hereby set aside. The respondent no.5 shall continue to act in terms of the order dated May 16, 2016 passed in WP No.8363(W) of 2016 from the stage subsequent to the inquiry report. However, the respondent no.5 will not be influenced by any observations made in the present writ petition. He is at liberty to arrive at the same finding, as appearing in the impugned order which is set aside today. No doubt the respondent no.5 shall give reasons for arrival at the findings to be returned by him.
4Time to comply with the order dated May 16, 2016 is extended for a period of eight weeks from date. It is clarified that no portion of the order dated May 16, 2016 is varied or modified in any manner whatsoever.
With these directions, WP No.29684(W) of 2016 stands disposed of. There shall be no order as to costs.
Certified website copy of this order, if applied for, shall be given to the parties.
(Debangsu Basak, J)