- (1.) The petition has been filed by way of Public Interest Litigation praying for relief to remove construction over the canal situated at Mouza Amtala, Khatian No. 494, J.L. No. 73, Plot No. 694 within Police Station Bishnupur in the District of South 24-Parganas. Appropriate order or direction requiring the respondents forbearing from obstructing the public canal from draining out the refuses and rainwater in the locality and direct the respondents to stop construction over the public canal in question by the respondent. It is averred in the petition that the canal is used by general public at large for draining out the wastage water as well as water in the rainy season. There is entry of the canal in the records of the Land Reforms Department. The marked portion of the said Mouza regarding canal in the map has been filed as Annexure TV to the petition. The Record of Rights also records the same as canal for public use for draining out water and the same is connected with river Diamond Harbour. Record of Rights is annexed as Annexure 'P2' to the petition. There is big water pipe under the land which carries drinking water and with the said water pipe there is a valve which has been installed over the said canal for draining out the water which are coming out from the said valve and water of the canal is used not only by the petitioner but also by the people at large of the locality. The canal is still in existence which is apparent from the photographs taken out on 23rd September, 2012 and 3rd October, 2012. The private respondent has erected pillars and has taken steps for construction of a house over the canal. The petitioners approached the local Panchayat authorities as well as police authorities but no action has yet been taken. An application under section 144(2) of the Code of Criminal Procedure was also filed before the 2nd Executive Magistrate, Alipore, who directed the police authority to submit a report on 21st August, 2012 and to see that no breach of peace and tranquility occurs in the area. The documents in this regard have been placed on record. Police submitted a report on 14th September, 2012. It has been submitted that the respondent No. 14 without obtaining any permission from the competent authority trying to make illegal construction over the suit land, that is water canal. As needful has not been done the petition has been preferred in this Court. It is submitted by the private respondent that though he is covering part of the canal, however, he claimed plea of negative equality, that large number of similar construction over the canal have been made by AXIS Bank, HDFC Bank, Indusind Bank, Union Bank, Kotak Mahindra Bank, Reliance Bank, ICICI Bank and also Government office, namely, Block Krishi Adhikarik Building. There is also foreign liquor shop which was sanctioned by the department of excise upon holding enquiry. Besides various residential multistoried buildings are there as like the construction of the respondent No. 14. Gram Panchayat has sanctioned plan for construction which is being made. Existence of the canal has not been denied in the Return. The dispute is a private dispute. The petitioner No. 1 wants to grab the property and hence, has filed the petition.
(2.) We have heard the learned Counsel for the parties. It is not disputed by any of the learned Counsel for the respective parties that the canal is in existence as recorded in the Record of Rights and documents, which are annexed as Annexures 'P1' and 'P2' to the petition. The case of the respondent No. 14 is that Gram Panchayat has granted permission. On being specifically told to point out where the permission of the Gram Panchayat in respect of the coverage of the canal. The learned Counsel appearing on behalf of the respondent No. 14 has stated before us that it is not possible to find out from the sanctioned plan that any permission has been granted to cover the canal. Whatever that may be, canal is in existence and it is for the public use, the same is held by the Panchayat in trust. Nobody can be permitted to raise construction over the said property.
(3.) The Courts in India, considering Articles 48, 48-A, 51-A (g) of the Constitution of India have issued directions from time to time with respect to natural resources, process of distribution to private persons, doctrine of public trust was evolved as part of Indian Jurisprudence, polluter-pay-principle was developed in M.C. Mehta v. Kamal Nath, 1997 1 SCC 388 and has been followed in Jamshed Hormusji Wadia v. Board of Trustee, 2004 3 SCC 214. The Apex Court in the case of Centre for Public Interest Litigation referred to the decision in Fomento Resorts and Hotels Limited v. Minguel Martins, 2009 3 SCC 571 and has laid down that the public trust doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. It has also been observed that public has special interest in public land water etc. It is the duty of the State not to impair such resources. The Apex Court emphasized that there is obligation to use such resources in such a manner as not to impair or diminish the people's rights and the people's long-term interest in that property or resource, including down slope lands, waters and resources. The Apex Court in Fomento Resorts and Hotels Limited v. Minguel Martins has laid down thus: 53. The public trust doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. This doctrine puts an implicit embargo on the right of the State to transfer public properties to private party if such transfer affects public interest, mandates affirmative State action for effective management of natural resources and empowers the citizens to question ineffective management thereof. 54. The heart of the public trust doctrine is that it imposes limits and obligations upon Government agencies and their administrators on behalf of all the people and especially future generations. For example, renewable and non-renewable resources, associated uses, ecological values or objects in which the public has a special interest (i.e., public lands, waters, etc.) are held subject to the duty of the State not to impair such resources, uses or values, even if private interests are involved. The same obligations apply to managers of forests, monuments, parks, the public domain and other public assets. Professor Joseph L. Sax in his classic article, "The Public Trust Doctrine in Natural Resources Law: Effective Judicial Intervention" (1970), indicates that the public trust doctrine, of all concepts known to law, constitutes the best practical and philosophical premise and legal tool for protecting public rights and for protecting and managing resources, ecological values or objects held in trust. 55. The public trust doctrine is a tool for exerting long-established public rights over short-term public rights and private gain. Today every person exercising his or her right to use the air, water, or land and associated natural ecosystems has the obligation to secure for the rest of us the right to live or otherwise use that same resource or property for the long-term and enjoyment by future generations. To say it another way, a landowner or lessee and a water right holder has an obligation to use such resources in a manner as not to impair or diminish the people's rights and the people's long-term interest in that property or resource, including down slope lands, waters and resources.;