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Judgment
By filing this application, the applicant seeks for a review of the Judgement dated 16th September, 2015 in OA 23/THC/2013/PB/17/EZ by which the OA was allowed on the following terms :-
" i) The project proponent (respondent No. 7) is restrained from taking any further steps for construction of Thermal Power Project and Industrial Park in any manner whatsoever in Nayachar Island.
i) The respondent No. 6 shall continue with the Integrated Brackish Water Aqua Culture Development Project at Nayachar Island. The State respondents will take steps and measures for the benefit of fishermen of the locality whose right to 'live' under Article 21 of the Constitution of India and maintenance of their livelihood is to be protected. Compliance report to be filed by the Chief Secretary, Govt. of West Bengal by two months in the Registry of this Tribunal.
ii) As per prayer (c ) i.e. reclassification of Nayachar Island from CRZ I to CRZ III is concerned, we are keeping the point open to consider the same as and when cause of action will arise. If re-classification of Nayachar Island is approved by the MoEF & CC considering the new CZMP by the State Coastal Zone Management Authority, the applicants will be at liberty to approach this Tribunal afresh."
The applicant, who is the respondent No. 7 in the Original Application, is specifically aggrieved by the order at Sl. No. (ii) inter alia, permitting the Respondent No. 6( in the OA) i.e., Benfish, the Bengal State Fishermen's Co-operative Federation Limited, to continue with the integrated Brackish Water Aqua culture Development Project at Nayachar Island.
It is submitted that this part of the directions is an error apparent on the face of the record inasmuch as the Tribunal while issuing such direction, had overlooked the specific pleadings and the submission that the area in question in Nayachar Island was being held by the applicant as lessee/sub-lessee through the NKID, i.e., New Kolkata International Development Private limited, a company incorporated under the provisions of the Companies Act, 1956 by an agreement of lease dated 19th November, 2009. As per the applicant, this was an admitted position even in the affidavit filed by the Chief Secretary in his compliance report dated 18.1.2016 and the reply of the respondent No. 10, Department of Fisheries, Govt. of West Bengal, in the OA.
The direction permitting the respondent No. 6, Benfish, to carry on its activity was in conflict with the admitted position that an area of 11927.1 acres under its use, had been transferred to the Commerce & Industries Department of Govt. of West Bengal way back on 24.1.2008 only after which lease dated 19th November, 2009 had been entered with the applicant for the purpose of setting up a Thermal Power Plant and an Industrial Park. The impugned order, if allowed to subsist, shall amount to breach of the lease of agreement and go against the rights of the applicant and its group of company over the property.
We have perused the records of the OA, the review application and heard the learned counsel for the parties.
Since the review sought for is limited only to direction No. (ii) contained in the impugned judgement dated 16. 9.2015, we need not go into further details for the sake of brevity and shall confine ourselves only to those facts which are relevant for the purpose of disposal of this application.
In the OA, the respondent No. 10, i.e., Department of Fisheries, Govt. of West Bengal in its affidavit has set out the following facts :-
" (1) The Fisheries Deptt. took possession of Nayachar Island on 11.03.88 and prepared a blue print for starting Brackish water aquaculture project on 4.11.88. The project was taken up sometime in 1996 with financial assistance from NCDC & State Govt.
(2) That later the land was leased out to WBFC & BENFISH the prospective authorities for proper utilisation of land for pisciculture and Eco Tourism.
(3) That vide Memo No. 7-CI/OIP/MISC-10/07(Pt.II) a prayer was made by commerce & Industries Deptt. Govt. of West Bengal to Deptt. of Fisheries for relinquishment of land in Nayachar Island under possession of Fisheries Deptt. in favour of L & LR Department,
(4) That vide memo No. 458-GE(M)/LL-N-300/98 transfer of entire land at Nayachar was made to Commerce & Industries Department for establishment of Petroleum chemicals & Petrochemical Investment Region by L & L R Deptt. Govt. of West Bengal. "
The Chief Secretary on his part, in his compliance report affirmed on 18.1.2016 pursuant to the order of the Tribunal dated 16.9.2015, has unambiguously corroborated the fact that the Deptt. of Commerce & Industries, Govt. of West Bengal had leased out the demised land of Nayachar island to PCR Petrochemical Private limited, a company, through a lease dated 19.11.2009. It would be relevant to note that PCR Petrochemicals Private Ltd. is admittedly a group concern of the present applicant. We find that, with the compliance report of the Chief Secretary, a copy of the Lease Agreement dated 19.11.2009 has also been filed as annexure R2 which confirms indisputably the contention of the review applicant that the land in question had been leased out to its group company, M/s PCR Petrochemicals Private Limited.
In the aforesaid circumstances, undoubtedly the review applicant, being a group concern of the original lessee PCR Petrochemicals Private Ltd., would continue to be a lessee notwithstanding the direction that the project proponent i.e., the applicant, stood restrained from taking any further steps for construction of thermal power project and industrial park in Nayachar Island.
The factum of the lease in respect of the land having been executed in favour of the PCR Petrochemicals Pvt. Ltd. and the earlier relinquishment of the lease hold property by the Fisheries Deptt. in favour of the Land & Land Reforms Deptt. which in turn allotted it to the Commerce & Industries Deptt., before it leased out to PCR Petrochemicals Pvt. Ltd., were specifically pleaded in the OA and dealt with by the parties as noted above.
In the above circumstances, we unhesitatingly hold that direction No. (ii) impugned in the RA is a result of an error apparent on the face of the record. Submission to the contrary made on behalf of the applicant in the OA does not appear to be based on a sound foundation.
The factual position discussed in short above, being clear and unambiguous, we need not go into the arguments on law and the judgements cited at the bar by the Learned Counsel for the applicant in OA.
For the reasons aforesaid, the judgement dated 16. 9.2015 stands reviewed to the extent that direction (ii) contained therein stands deleted. Direction No. (iii) is renumbered as direction No. (ii).
The Review Application is hereby allowed subject to the modification of the judgement set out above.
No order as to costs.