Ram Chandra Mondal vs The State Of West Bengal & Ors
2022 Latest Caselaw 8634 Cal

 22.12.2022
Court No. 19
Item no.06
   CP
                           WPA No. 5575 of 2019

                           Ram Chandra Mondal
                                    Vs.
                      The State of West Bengal & Ors.



               Mr. Samiran Giri
                                              ...for the petitioner.

               Mr. Sagnik Chatterjee
                                             ...for the State.



                     The writ petition has been filed challenging the

               decision of the Additional District Magistrate and

               District Land & Land Reforms Officer, Dakshin

               Dinajpur dated June 26, 2015. The petitioner had

               approached the District Land & Land Reforms Officer

               for long term settlement of lease of the tank for a

               period of 33 years. Approximately, more than 50% of

               the said tank vested in the State of West Bengal. The

               said tank is admittedly a fishery. It appears that

               short terms leases were being given to the persons

               for fishing activity, by open tender.

                     The petitioner contends that in order to

               preserve the privacy of the co-sharers who are left

               with less than 50% of the tank, a long term lease

               should be granted.

                     The argument is that the co-sharers have a

               right to use the said retained portion of the tank, for

               domestic purpose.
                            2




      The petitioner relies on a decision of this court

in the matter of Azgar Ali vs. State of West Bengal,

reported in 2018 (4) CHN (CAL) 438. According to the

petitioner, the said decision permits lease of the

remaining portion of a tank, of which more than 50%

had vested in the State, to the private co-sharers.

      Mr. Chatterjee, learned advocate for the State

respondents, refers to Clause 273 of the West Bengal

Land and Land Reforms Manual, 1991. The said

Clause provides that in case of part-vested tanks,

settlement for 30 years may be given to private co-

sharers on payment of salami and rent in the same

manner as in the case of long term settlement of non-

agricultural land. Form 7 and Appendix IV shall be

used for such lease. He further refers to the proviso

and submits that settlement in this case, would be

subject to the proviso. Settlement to the private co-

sharers could be allowed if the private co-sharers

formed Fish Production Group with suitable number

of local fishermen. If local fishermen were not

available, a group could be formed with the local

unemployed youths selected from the families living

below the poverty line. Such settlement could not be

given for more than three years.

This proviso applies to the instant case as

more than 50% of the tank had vested to the State of

West Bengal. The law also casts a duty upon the

private co-sharer to demarcate the area under

his/her occupation by raising an earthen wall, failing

which compensation in the nature of damages would

be recoverable from the private co-sharer for use of a

tank of which more than 50% had vested.

Thus, only as per Clause 273 and the proviso

thereto, can private co-sharers be leased out the

remaining portion of the tank. In this case, the only

issue for which the petitioner has sought a long term

lease of 33 years, is for preservation of privacy of his

family. The law does not envisage such a situation.

This aspect has been also dealt with by a Coordinate

Bench in Azgar Ali (supra). The relevant portion of

the said judgment is quoted below:

"15. The striking feature of Clause 273 of the said Manual can be seen from the enabling provision that settlement of part vested tanks may be made with the private co-owner/co-sharer on payment of salami and rent in the same manner as in case of long term settlement of non-agricultural land.

16. However, the 1st proviso creates an embargo in settlement of the land in such fashion, if more than 50% of the water area of a private tank is vested to the State; in such eventuality, it can only be settled if the private co-sharer forms a Fish Production Group with suitable number of local fishermen, if they are available, otherwise such Group can be formed with local unemployed youths selected from the families belonging below the poverty line.

17. The 2nd proviso appended thereto postulates that in the event private co-sharer is unable to form the Fish Production Group or Co-operative Society, he is required to demarcate the non-vested area by earthen boundary and the consequences for his failure to do so are also provided therein.

18. The Municipal Authorities are managing or administering the vested land and the tanks and there is no specific provision in the Act or the Rules framed thereunder pertaining to part vested tanks and its settlement. This Court feels that the Municipality ought to have taken into account the provisions contained in Clause 273 of the said Manual until a suitable provision is made in the statute or the Rules applicable to the Municipality by the lawmakers.

19. The impugned Notice Inviting Tender is hereby quashed and set aside.

20. The Municipality is directed to act in terms of Clause 273 of the West Bengal Land & Land Reforms Manual, 1991 for settling the part vested tank of the petitioner and it is expected that the entire exercise shall be completed within eight weeks from the date of the communication of this order."

This court respectfully agrees with the

observations of His Lordship cited hereinbefore.

Accordingly, the writ petition is disposed of. No

order can be passed in favour of the petitioner.

However, there will be no order as to costs.

All the parties are directed to act on the basis

of the server copy of this order.

(Shampa Sarkar, J.)