Calcutta High Court (Appellete Side)
Tapan Kanti Bera vs The State Of West Bengal And Others on 4 January, 2021
Daily List 15
Bpg.
January 4,
2021
In the High Court at Calcutta
Constitutional Writ Jurisdiction
(Via Video Conference)
W.P.A. No.9719 of 2020
Tapan Kanti Bera
Versus
The State of West Bengal and others
Mr. Somnath Roy Chowdhury,
Ms. Arpita Roy Chowdhury.
...for the petitioner.
Mr. Ashim Kumar Ganguly.
...for the respondent nos.1, 2, 4, 5 and 6.
Ms. Sukla Das Chanda.
...for the State.
Mr. Arjun Ray Mukherjee.
...for the respondent no.3.
The petitioner is the co-owner of a brick kiln,
the operation of which was stopped by an order of the
National Green Tribunal, Principal Bench, New Delhi
dated September 4, 2020. By the said order, it was
observed that the State Pollution Control Board, vide
order dated March 20, 2020, was directed to inspect
the unit in question, verify on the factual aspect and to
submit a report; in pursuance of the direction, report
was filed by the SPCB stating that the brick kiln was
found to be running without obtaining consent to
establish and consent to operate from the Board and,
therefore, order of closure and disconnection of
electricity was issued against the brick kiln by order
dated July 8, 2020. The National Tribunal further
observed that the action taken was appropriate,
however, directing the SPCB further to assess the
environmental compensation in accordance and with
the guidelines framed by the CPCB and recover the
same from the respondent after following the due
process within one month from the said date.
The present grievance of the petitioner, who
was one of the co-owners of the brick kiln, is that, as
per the Division Bench judgment of this Court
rendered on August 4, 2017 in W.P. 12249(W) of 2017,
the owner of a brick kiln, who is running the brick kiln
in contravention of law, cannot claim any legal right to
reap the benefit of an illegal act and be heard to say
that the owner is entitled to dispose of the bricks so
manufactured by sale or otherwise and enjoy the
usufructs. The Division Bench further granted liberty
to the District Land and Land Reforms Officer
concerned to auction the bricks manufactured in the
unit of the petitioners therein as early as possible but
not later than two months from the date of receipt of
the copy of that order and the sale proceeds of such
auction was directedto be donated to the Chief
Minister's Relief Fund.
It is submitted on behalf of the respondent
no.3, that is, the West Bengal Pollution Control Board,
that the private respondent subsequently filed an
application for modification of its order. However,
learned counsel for the petitioner submits that such
application has already been disposed of.
It is submitted on behalf of the respondent
nos.1, 2, 4, 5 and 6 that the order of the Tribunal has
already been complied with and files a compliance
report in that regard.
Be that as it may, it is clear from the order of
the Division Bench, cited by the petitioner, that a
binding precedent has been laid down therein as
regards owners of an illegally operating brick kiln not
being entitled to reap the usufructs of the brick
manufactured during illegal operation of the brick kiln.
Such precedent is binding on this Court as well.
As such, W.P.A. No.9719 of 2020 is disposed
of by directing the respondent no.4, that is, the
District Land and Land Reforms Officer, Purba
Medinipur to immediately enquire and assess the
quantity of bricks and other allied products
manufactured by the brick kiln-in-question during its
period of illegal operation, as per the observation of the
Tribunal. The respondent no.4 shall thereafter put up
such products, if any, for auction sale and forward the
proceeds of such sale, upon deducting the expenses of
the process of auction, to any fund created by the
State Government to deal with the current pandemic
situation. Such process shall be completed as early as
possible, positively within two months from this date.
The respondent no.4 shall be entitled to obtain
adequate protection from the police to ensure that the
products manufactured by the unit-in-question during
the period of illegal operation are not encumbered
and/or transferred in the meantime. If so approached,
the police shall afford necessary protection in that
regard.
There will be no order as to costs.
Urgent website certified copies of this order,
if applied for, be given to the parties upon compliance
of all formalities.
(Sabyasachi Bhattacharyya, J.)
