Swagata Banerjee vs State Of West Bengal & Ors

C.A.N. 6427 of 2018 is an application at the instance of the private respondents in W.P. 5774(W) of 2017 seeking recall of an order dated August 01, 2018 passed by a coordinate Bench of this Court whereby it was disposed of. The short order dated August 01, 2018 is quoted hereinbelow:

"It is submitted on behalf of the appearing parties that by reason of the order dated 3rd November, 2017 passed by the District Magistrate, Birbhum, the grievance of the writ petitioner in this writ petition stands redressed.

Needless to say that the order dated 3rd November, 2017 passed by the District Magistrate, Birbhum, shall be implemented in its true spirit and intent immediately without causing any unnecessary delay.

The writ petition and the application being CAN 855 of 2018 filed in connection with this writ petition are disposed of.

Let the copy of the order dated 3rd November, 2017 passed by the District Magistrate, Birbhum, be kept with the record."

The ground on which recall of the aforesaid order has been prayed for is that the learned advocate for the private respondents was ill and, therefore, could not participate in the proceedings before the coordinate Bench.

It appears that the petitioner in W.P. 5774(W) of 2017 had earlier approached this Court by filing a public interest litigation, registered as W.P. 16957(W) of 2015. It was her allegation in such writ petition that the private respondents had converted a water body into solid land and proceeded to make construction thereon illegally and despite the relevant authorities being urged to take appropriate action in accordance with law, she was greeted with silence. Such writ petition was disposed of on August 14, 2015 with a direction upon the District Magistrate, Birbhum to pass a reasoned order upon taking into consideration the report of the Block Level Water Bodies & Biodiversity Management Monitoring & Preservation Committee.

Despite the aforesaid order, the district magistrate had not passed any final order, which resulted in filing of W.P. 5774(W) of 2017 on February 28, 2017 wherein relief claimed was as follows:

"(a) A writ of and/or in the nature of Mandamus directing and/or commanding Respondent Authorities particularly the Respondent Nos. 3 to 8 and/or their men, agents, servants and assigns to cause an immediate and appropriate enquiry and investigation into the matter in accordance with law under the supervision of this Hon'ble Court and take all actions on the basis of the solemn Order dated 14.08.2015 passed in W.P. No. 16957(W) of 2015 forthwith;

(b) A Writ of and/or in the nature of Mandamus directing and/or commanding the respondent Nos. 3 to 8 and/or his men, agents, servants and assigns to demolish the illegal buildings constructed over Dag No. 1716 and 1716/5216, at Mouza-Karidhya, J.L. No. 106, Block- Suri-I, P.S.-Suri, District-Birbhum within Tilpara Gram Panchayat and restored the said Pond (water body) locally known as Sukdini appertaining to Dag No. 1716 and 1716/5216, at Mouza- Karidhya, J.L. No. 106, Block-Suri-I, P.S.-Suri, District-Birbhum."

During the pendency of W.P. 5774(W) of 2017, the Block Development Officer, Suri-I Development Block had issued a notice dated July 04, 2017 to the private respondents. Such notice was the subject-matter of challenge before a learned single Judge of this Court in W.P. 19145(W) of 2017. By an order dated July 24, 2017, the learned Judge upheld the challenge to the notice dated July 04, 2017 and, accordingly, set aside such notice. However, the district magistrate was directed to take action in accordance with law in compliance with the observations made and direction given by the coordinate Bench in W.P. 16957(W) of 2015 upon giving opportunity of hearing to all concerned within a period of three months.

Acting in compliance with the order dated August 14, 2015 passed by the coordinate Bench as well as the order of the learned Judge dated July 24, 2017, the district magistrate passed an order on November 03, 2017 in exercise of power conferred on him by the West Bengal Inland Fisheries Act, 1984 (hereafter the '1984 Act'). Some of the directions were adverse to the interest of the applicants, yet, the applicants did not choose to challenge the order of the district magistrate before the appropriate forum.

Soon thereafter, W.P. 5774(W) of 2017 came up for consideration before the coordinate Bench and as has been noted above, the said writ petition was disposed of observing that the grievance of the petitioner had been redressed coupled with a further observation that the district magistrate's order should be implemented in true spirit and intent.

After disposal of W.P. 5774(W) of 2017, the block development officer has issued a notice to the private respondents calling upon them to demolish the buildings that have been constructed on conversion of the water body into solid land. On receipt of such notice, this application has been filed before us seeking recall of the order dated August 01, 2018.

Having regard to the nature of relief claimed in W.P. 5774(W) of 2017, the coordinate Bench could have, upon final hearing of the writ petition, directed the district magistrate to act in compliance with the aforesaid orders dated August 14, 2015 and July 24, 2017. However, that stage was not even reached because the district magistrate, in the meanwhile, had passed the final order dated November 03, 2017. Since such order has not been subjected to appeal in terms of the provisions contained in section 18 of the 1984 Act, we see no reason to recall the order dated August 01, 2018 for the simple reason that nothing survives for decision on such writ petition in view of the district magistrate proceeding to pass the order dated November 03, 2017.

The application for recall (C.A.N. 6427 of 2018) stands dismissed, without any order for costs.

Needless to observe, this order shall not preclude the applicants to pursue their remedy in accordance with law before the appropriate forum and if at all a proceeding is initiated by them, we have no doubt in our mind that the relevant adjudicator shall proceed to decide the same in accordance with law.

If the applicants make out sufficient cause for condonation of delay in approaching such authority, law will take its own course.

Urgent photostat certified copy of this order, if applied for, be furnished to the parties expeditiously.