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2013 DIGILAW 89 (CAL)

In re: Ujjal Kundu v. .

2013-02-12

KANWALJIT SINGH AHLUWALIA

body2013
JUDGMENT : - Present petition has been filed under Section 401 read with Section 482 of the Code of Criminal Procedure praying that proceedings being G. R. Case No.1169 of 2011 arising out of Berhampore Police Station Case No.284 of 2011 dated 24th March, 2011 under Section 17A of West Bengal Inland Fisheries Act, 1984 pending in the Court of Chief Judicial Magistrate, Murshidabad, be quashed. 2. Counsel for the petitioners has submitted that petitioners obtained approval from the municipal authority and the same was granted after proper inspection was carried. It is stated that plan to raise construction sanctioned by the municipal authority is still valid. Counsel for the petitioners submits that there is no allegation in the prosecution case that the pond which was being filled by the petitioners, was used for pisciculture or fisheries. 3. On the pointed query raised by this Court, Mrs. Anusua Sinha, Counsel for the State, has submitted that in the charge-sheet, it has been nowhere stated that pond sought to be filled was used earlier for the purposes of pisciculture or fisheries. 4. Counsel for the petitioners has relied upon a judgment reported as 1996 (I) Calcutta High Court Notes 123 (Concern For Calcutta & Ors. Vs. State of West Bengal & Ors.), wherein it is held as under: “90. In the instant case, the petitioners have duly applied to the Municipal Authorities for grant of sanction to the building proposed to be constructed within the compound of the Museum and on account of which a portion of the Northern part of the tank would have to be filled up. Moreover, the State Government, which is the Appellate Authority under the 1979 Act in respect of matters relating to grant of permission or refusal of permission under s.46 of the said Act, has also given its approval to the proposal for construction of the new building of the Museum pond. 91. Regarding the provisions of the West Bengal Inland Fisheries Act, 1984, and the provisions of s.17A thereof, it must be borne in mind that the said Act was enacted to provide for the conservation, development, propagation, protection, exploitation and disposal of Inland fish and fisheries in West Bengal. It is nobody’s case that the Museum tank is being used for the purposes of pisciculture so as to bring it within the ambit of the aforesaid Act. It is nobody’s case that the Museum tank is being used for the purposes of pisciculture so as to bring it within the ambit of the aforesaid Act. Even s. 17A, which imposed a bar to filling up of any water area with a view to converting in into solid land for the purpose of construction of a building thereon or for any other purpose, makes it clear that the water bodies intended to be included within its ambit are such water bodies which were being used as fisheries Clause (e) of sub-s. (1) of S. 17A indicates the nature of the water area and provides that the same should not be put to any use which may result in abolition of the fishery, which again clearly indicates that the water area was being used as fishery. The provisions of clauses (b) and (c) of sub-s. (1) of s. 17A of the said Act refers to holdings of the nature indicated in clause (a), namely, water areas used for purposes of pisciculture. 92. In my view, the provisions of the aforesaid Act would not have application to the Museum tank which does not appear to be used for pisciculture. ” 5. In view of the ratio of law laid above and in the facts and circumstances of the case that petitioners had obtained prior sanction/approval of the municipal authorities for construction and the pond was not used for pisciculture or fisheries, present petition is accepted. Impugned FIR along with all subsequent proceedings is quashed. 6. At this stage, Counsel for the State, Mrs. Anusua Sinha, has submitted that liberty be granted to the State to take recourse to the proceedings under Section 4D of the West Bengal Land Reforms Act as the offence, if any, will fall under the provisions of that Act. 7. Liberty, as prayed for, is granted. 8. Criminal Section is directed to supply urgent photostat certified copies of this order to the parties, if applied for, upon compliance of all necessary formalities.