Calcutta High Court (Appellete Side)
Jay Engineerings Work And Limited) vs The Kolkata Municipal Corporation & Ors on 6 March, 2025
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present :-
The Hon'ble Justice PARTHA SARATHI SEN
WPA 16554 of 2012
With
CAN 1 of 2012 (Old No. CAN 8808 of 2012)
With
CAN 2 of 2019 (Old No. CAN 8961 of 2019)
Usha International Limited (Formerly known as The
Jay Engineerings Work and Limited)
Vs.
The Kolkata Municipal Corporation & Ors.
With
WPA 29374 of 2013
Usha International Limited
Vs.
Kolkata Municipal Corporation & Ors.
For the Petitioner: Mr. Saptansu Basu, Sr. Adv.,
Mr. Subhabrata Das, Adv.
For the respondents: Mr. Alak Kumar Ghosh, Adv.,
Ms. Era Ghosh Adv.
Hearing concluded on: 03.03.2025. Judgment on: 09.03.2025. PARTHA SARATHI SEN, J. : -
1. By filing the instant writ petition the writ petitioner/company has
prayed for issuance of writ of mandamus against the respondent no.1/
Kolkata Municipal Corporation (hereinafter referred to as the ‘KMC’ in
short) and its functionaries for quashing and/or setting aside and/or
rescinding the proceeding as initiated on 15.03.2012 whereby and
whereunder the respondent no.2 took over the management and control
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of the water body situated in Ward no.95 under Borough X of KMC by
invoking Section 17 A of the West Bengal Inland Fisheries Act, 1984
(hereinafter referred to as the ‘said Act’) for the purpose of promotion of
pisciculture and prevention of environmental degradation of the area for a
period of 25 years.
2. In course of hearing Mr. Basu, learned Senior Counsel appearing on
behalf of the writ petitioner at the very outset submits before this Court
that from page nos. 35 and 36 as well as from page no.37 of the instant
writ petition it would reveal that premises no.2, Prince Golam Hossain
Shah Road (hereinafter referred to as the ‘said premises’) stood recorded
in the assessment register of KMC in the name of Jay Engineering Works
Ltd. which was subsequently merged with the writ petitioner/company.
3. Drawing attention to page nos. 49 and 50 of the instant writ
petition being a copy of the letter dated June 28, 2012 it is submitted by
Mr. Basu that immediately after publication of the said order under
challenge dated 15.03.2012 the writ petitioner under cover of the said
letter dated 28.06.2012 raised objection with the respondent no.2 stating
inter alia that prior to passing of the said order dated 15.03.2012, no
notice was served upon the writ petitioner though the property which is
the subject matter of the said order dated 15.03.2012 belongs to the writ
petitioner but the same was not adhered to by the respondent no.2 for the
reason best known to him.
4. Drawing attention to Section 17A (1) and (2) of the said Act vis-à-vis
the order/notice dated 15.03.2012 it is further submitted by Mr. Basu
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that on conjoint perusal of the aforesaid statutory provisions and the
contents of the said order/notice dated 15.03.2012 it would reveal that
the respondent no.2 had miserably failed to make any observation
regarding the existence of any fishery at the said premises of the writ
petitioner. It is further submitted by Mr. Basu that respondent no.2 most
unilaterally invoked the provisions of Section 17A of the said Act even
without serving any show cause notice upon the writ petitioner though
from the materials as placed before this Court it would reveal that the
purported water body belongs to the writ petitioner. It is further
submitted by Mr. Basu that from page nos. 43 and 44 of the instant writ
petition it would reveal further that the respondent no.2 since July 12,
2010 made an attempt to grab the said property of the writ petitioner
which is why the KMC Authority had displayed ‘Do not Throw Garbage.
Area Protected for Garden’ board on the said property of the writ
petitioner.
5. It is further submitted by Mr. Basu that while discharging its
functions under Section 17 A of the said Act the respondent no.2 acts as
a quasi-judicial authority and therefore he is duty bound to follow the
principles of natural justice. It is further submitted on behalf of the writ
petitioner that the said order/notice dated 15.03.2012 does not say
anything about the measurement of the area of the purported water body
though Section 17A of the said Act clearly postulates that in order to
attract the said provisions, the water body must be more than 5 kathas
and the same is capable of being used as a fishery.
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6. In course of his submission Mr. Basu further submits that from
page no.30 of the instant writ petition being a copy of the deed of
conveyance in the name of writ petitioner, it would reveal from the
schedule of the said deed of conveyance that the subject matter of the
property in the order/notice dated 15.03.2012 is not a water body and the
same is/are pieces or parcels of land. It is further contended on behalf of
the writ petitioner that in paragraph 12 of the writ petition the writ
petitioner has specifically denied that the subject matter of the
order/notice dated 15.03.2012 is not a water body as wrongly claimed by
the respondent/KMC and its functionaries.
7. Drawing attention to the order dated 18.10.2012 as passed by a co-
ordinate bench in this writ petition it is submitted by Mr. Basu that since
in course of hearing of the instant writ petition before the said co-ordinate
bench it was contended on behalf of the KMC Authority that the writ
petitioner is not the owner of the water body in question and thus have no
locus to maintain the instant writ petition, the said co-ordinate bench by
its order dated 18.10.2012 appointed a survey passed advocate
commissioner as special officer to ascertain as to whether the alleged
water body as mentioned in the order/notice dated 15.03.2012 comes
under the purview of the various plots of land as mentioned in the
schedule of the deed of conveyance dated 04.05.1956. It is submitted by
Mr. Basu that from the said report of the special officer as appointed by
this Court it would reveal that premises no.2 and 3, Prince Golam
Hossain1Saha1Road1consists1of1and/or1comprise1of1plot1nos.422,422
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/117,422/928,422/925,421,420,423/118,423 and 422 /923 in Mauja
Arakpur.
8. In his next limb of submission Mr. Basu submits further that
Section 17A of the said Act was not at all brought into effect since the
respondent/authorities have miserably failed to establish that the
relevant amending Act whereby and whereunder Chapter III of the said
Act was inserted was at all notified in the gazette by way of publication as
well as the same was made available at the government store for sale of
the said gazette notification.
9. In support of such contention Mr. Basu places his reliance upon
the following reported decisions namely:-
reported in 2000 (1) CHN 332; and
reported in (1987) 1 SCC 658.
10. Drawing further attention of this Court to the order/notice of
15.03.2012 which is the subject matter of the instant writ petition it is
further submitted by Mr. Basu that the said order/notice as has been
issued under Section 17A of the said Act is short of bench mark as
decided in the case of Bajranglal Sarda and Ors. vs. State of West
Bengal and Ors. reported in (2010) 4 CHN (Cal) 125 since in the said
order/notice there is no finding of the respondent no.2 that the alleged
water body is measuring about 5 kathas or more and the same is capable
of being used as fishery. It is thus submitted by Mr. Basu that on this
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score alone the instant writ petition may be allowed in terms of the prayer
made in the instant writ petition.
11. Per contra, Mr. Ghosh, learned advocate appearing on behalf of the
respondent no.2 being the competent authority under the said Act argued
on the following points:-
i. There is sufficient justification on the part of the respondent
no.2/authority in passing the order under challenge since it
has been noticed during inspection by the men of KMC that
the water body is ill maintained.
ii. The very purpose of filing the writ petition is for identification
and demarcation of the writ petitioner’s property being
premises no.2 and 3 Prince Golam Hossain Shah Road.
iii. The issues as involved in the instant writ petition are based
on disputed facts which cannot be decided by a writ court.
iv. Section 18 of the said Act is the relevant provision for filing
an appeal against an order of the competent authority.
v. Therefore the instant writ petition is not maintainable in view
of the availability of alternative remedy.
vi. This Court in exercise of its writ jurisdiction ought not to
have come to a finding on the basis of the survey report since
the respondent/authority got no opportunity to test such
survey report by cross-examination of the said surveyor.
vii. The principle of natural justice has been followed prior to the
passing of the order under challenge since show cause notice
7was served upon the recorded owners of the water body as
well as the same was also published in two daily leading
newspapers having wide circulation in the city of Kolkata.
viii. After publication of said show cause notice the writ petitioner
thought it fit not to approach before the competent authority.
ix. No contrary material has been produced by the writ petitioner
to substantiate that the property which is the subject matter
of the order under challenge is not a water body. The KMC
has numbered the said water body as 2/1/2 Prince Golam
Hossain Shah Road, Kolkata in accordance with law and thus
by no stretch of imagination it can be said that the said water
body forms part of the premises no. 2 and 3 Prince Golam
Hossain Road, Kolkata.
x. By a judgement dated 09.01.2024 in MAT 932 of 2022
(Anuradha Sen vs. KMC and Ors) a Division Bench of this
Court came to a finding that Section 17 A of the said Act
came into force on June 16, 1994 and therefore the argument
of the writ petitioner that Section 17A of the said Act was not
at all brought into effect has got no leg to stand upon.
12. Mr. Ghosh thus submits that it is a fit case for dismissal of the
instant writ petition.
13. In course of his reply Mr. Basu, learned Senior Counsel appearing
on behalf of the writ petitioner in his usual fairness submits before this
Court that he was not apprised of the judgement as passed in the case of
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Anuradha Sen (supra). He thus contends that had he got any knowledge
about the findings of the Division Bench in the case of Anuradha Sen
(supra) he would not have argued that Section 17A of the said Act was
not at all brought into effect.
14. It is further submitted by Mr. Basu that from the order dated
21/08/2012 i.e the first order which has been passed by a Co-ordinate
Bench in connection with the instant writ petitioner it would reveal that
for proper adjudication of the instant lis it is required to be ascertained as
to whether the land in question is at all a water body or not and on what
basis the competent authority initiated the proceeding under the said Act
in respect of the said property.
15. This Court has meticulously gone through the entire materials as
placed before it. This Court has given its anxious consideration over the
submissions of the learned advocates for the contending parties. Since in
the case of Anuradha Sen (supra) a Division Bench of this Court has
come to a definite finding that Section 17A of the said Act came into force
on June 16, 1994 and since Mr. Basu in his usual fairness accepts that
had he been made aware of the existence of the said judgement as passed
in the case of Anuradha Sen (supra) he would not contend Section 17 A
of the said Act was never brought into effect, this Court considers that no
discussion in this regard is at all necessary since it has been set at rest by
the Division Bench of this Court in the case of Anuradha Sen (supra)
that Section 17A of the said Act came into force on June 16, 1994.
9
16. This Court thus holds that while passing the order under challenge
dated 15.03.2012 under Section 17A of the said Act the Municipal
Commissioner being the competent body has ample jurisdiction to pass
the order under challenge.
17. On close scrutiny of the pleadings made by the writ petitioner in its
writ petition it appears to his Court that it is the case of the writ petitioner
that by a registered deed of conveyance dated 04.05.1956 one Jay
Engineering Works Limited (with whom the present writ petitioner’s
company merged subsequently) purchased 5 bighas of land in different
plot nos. namely; 422, 418/117, 422/928, 422/925, 421/420, 423/118,
423 and 422/923 at a valuable consideration and after extension of
municipal limitations of KMC the writ petitioner’s said property was
numbered as premises no.2, Prince Golam Hossain Shah Road, Kolkata.
It reveals further from the said writ petition that the writ petitioner has
reason to believe that a substantial portion of premises no.2/1/2 (alleged
water body) forms part of premises no.2 Prince Golam Hossain Shah
Road, Kolkata and for which the writ petitioner made correspondence
with the respondent/authorities under the Right to Information Act but of
no effect.
18. At this juncture I propose to look to the order/judgement dated
18.10.2012 as passed by a Co-ordinate Bench of this Court and the
relevant portion of the said order is quoted hereinbelow in verbatim:-
” Since none of the aforesaid two premises is butted and
bounded by boundary wall, it is difficult to ascertain the respective
10boundaries of the aforesaid two premises. Even the Municipal
authority, in course of inspection of the said water body, found it
difficult to identity of the Premises No. 2, Prince Golam Hossain Shah
Road and expressed its inability to locate the exact boundary of the
said premises. In fact, boundaries of the said premises was
ascertained by guess by the Municipal officials. The notice which was
issued by the competent authority under Section 17A of the said Act
is very much misleading as the boundaries of the water body as
mentioned in the said notice does not support the contention of Mr.
Banerjee as to the situation of the said water body at Premises No.
2/1/2 Prince Golam Shah Road. The Premises No. 2/1/2. Prince
Golam Hossain Shah Road, was shown as the northern boundary of
the plot of land where the said water body situates. If the water body
really situates at Premises no. 2/1/2, Prince Golam Hossain Shah
Road then, of course the northern boundary which is mentioned in
the notice is not correct. Again if the northern boundary as mentioned
in the notice is correct then the plot of land where the water body
situates cannot be the Premises No. 2/1/2, Prince Golam Hossain
Shah Road as the said premises situates on the northern side of the
land where the water body situates.
Thus, this Court feels that for ascertaining the locus of the
petitioner to maintain this writ petition, the boundary of the
petitioner’s land should be ascertained first so that, in case it is
found that the water body lies beyond the petitioner’s premises being
No.2, Prince Golam Hossain Shah Road then the petitioner certainly
cannot have any locus to maintain this writ petition even if any
illegality is committed by the Municipal authority by making an
attempt to take over possession of the said water body lying in any
other plot of land which does not belong to the petitioner.
On the contrary, if it is found that by issuing the notice under
the said Act in respect of a water body allegedly lying at Premises
11No. 2/1/2, Prince Golam Hossain Shah Road, the competent
authority is, in fact, taking step to take over possession of any part of
the petitioner’s property at premises No. 2, Prince Golam Hossain
Shah Road then this Court has no hesitation to hold that the
petitioner has the locus to maintain this writ petition.”
19. The aforementioned observation has been made by the said Co-
ordinate Bench while appointing a special officer who was directed to
identify and/or demarcate the boundaries of the petitioner’s land by
relayemnt and/or survey of the petitioner’s said premises comprising of
various plots of land mentioned in the petitioner’s title deed dated
04.05.1956 with regard to the mauja map of the concerned mauja upon
the notice to the parties with a further direction to submit a report before
this Court on the specified date.
20. Undoubtedly the said surveyor has submitted his report and
respondent/authorities have filed their exception to such report.
21. In the backdrop of the aforementioned factual position, a duty is
cast upon this Court to ascertain as to whether from the said report of the
surveyor it can be ascertained as to whether the writ petitioner’s premises
nos. 2 and 3 Prince Golam Hossain Shah Road, Kolkata falls within the
water body i.e. 2/1/2 Prince Golam Hossain Shah Road, Kolkata. In the
event the answer is affirmative this Court shall have no other alternative
but to hold that the writ petitioner has every right to challenge the order
dated 15.03.2012 since the said order definitely affects the writ
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petitioner’s valuable constitutional right i.e Right to Property as enshrined
under Article 300 A of the Constitution of India.
22. On careful perusal of the annexures to the affidavit-in-opposition as
filed on behalf of the respondent nos. 1, 2 and 3 and as affirmed on
06.11.2013 it reveals to this Court that admittedly while putting premises
no.2/1/2 Prince Golam Hossain Shah Road, Kolkata bearing assesee
no.29-095-07-0271-0 over the alleged water body, the officials of KMC
had practically made a guess work however, the said men of KMC
calculated the area of the said alleged water body to the extent of 4 bighas
8 kathas and also found the names and addresses of the owners of the
said alleged water body wherein the names and addresses of the present
writ petitioner and/or his predecessor company do not find any place. No
material is forthcoming before this Court that the writ petitioner/company
made any venture for making necessary correction either in the
assessment register of the KMC or in the inspection book in respect of
premises no.2/1/2 Prince Golam Hossain Shah Road, Kolkata which
according to the respondent/authority is a water body.
23. At his juncture I propose to look to the relevant portion of the
surveyor report dated 11.04.2013 as submitted by Gour Mohan Saha,
learned advocate cum survey passed special officer and the same is
reproduced hereinbelow in verbatim:-
“18. That after superimposition, I have relayed the suit Dags and
depicted them in my CASE MAP. From the photo stat copy of the
Assessment certificate, it is found that M/s Jay Engineering Works
13Ltd. is the Owners of Premises No. 2, Prince Golam Hossain Shah
Road. From the Photostat copy of Tax collection Department, it is also
found that the Kolkata Municipal Corporation do collect rent from the
said Owner for the above mentioned Premises of which Assessee
Number is 210950700026. Again from the Xerox copy of the
purchased Deed of the Petitioner, dated 04.05.1956 it has been
found that the pre Nos. 2 & 3, Prince Golam Hossain Shah Road
consists or, comprises of Dag Nos. 422, 422/117, 422/928,
422/925, 421, 420, 423/118, 423 and 422/923 of Mouza-Arakpur,
District 24 Parganas. After superimposition, I find that most part of
the identified land are situated within the abovementioned Dags
though at present there are some encroachment portions. Hence it is
palpably clear that the Identified land is the Premises No. 2, Prince
Golam Hossain Shah Road as other Number as per statement of the
officer of the Petitioner has been merged with the said premises
number.
19. That the Respondents did not supply any papers/maps or
documents to me. As such I am unable to hold that the Premises No.
2/1/2, Prince Golam Hossain Shah Road, consists of or, comprises of
what Dags, or, alternatively, what Dags at present is known as
Premises No. 2/1/2, Prince Golam Hossain Shah Road.”
24. It thus reveals to this Court that even from the survey report it
cannot be ascertained even prima facie that a portion of premises no. 2
and 3 Prince Golam Hossain Shah Road, Kolkata is included within
premises no.2/1/2 Prince Golam Hossain Shah Road, Kolkata i.e the
alleged water body.
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25. It thus appears to this Court that the survey report as filed in
connection with the instant writ petition is thus of no help to the writ
petitioner.
26. Admittedly the writ petitioner has failed to substantiate either by
filing any cogent document or otherwise that the property over which the
competent authority is going to take steps under section 17A of the said
Act is included in his property.
27. This Court is thus of considered view that the writ petitioner has
failed to discharge his burden to substantiate that he has locus to
maintain the instant writ petition.
28. It is settled position of law that like a plaintiff in a civil suit the writ
petitioner is duty bound to make out his own in order to obtain a relief as
prayed for and he cannot succeed based on the lacuna of the
respondents.
29. In the reported decision of Bajranglal Sarda (supra) a Co-ordinate
Bench of this Court while dealing with Section 17A of the said Act
expressly held that while exercising its power under Section 17A a
competent authority is duty bound to record a finding that the property in
question indeed comprises of a water body measuring more than 5 kathas
and the same is capable of being used as fishery.
30. In considered view of this Court the reported decision of Bajranglal
Sarda (supra) is of no help to the writ petitioner in view of the fact that
the writ petitioner has miserably failed to establish its right over the
15
property over which the competent authority has passed an order under
Section 17A of the said Act.
31. This Court thus finds no merit in the instant writ petition.
32. Accordingly the instant writ petition is dismissed.
33. There shall be no order as to costs.
34. With the disposal of WPA 16554 of 2012 all connected applications
are also disposed.
35. Urgent photostat certified copy of this judgement, if applied for, be
given to the parties on completion of usual formalities
WPA 29374 of 2013
1. In view of the aforementioned decision nothing remains to be decided
and thus WPA 29374 of 2013 is also dismissed.
2. All connected pending interlocutory applications, if any, stands hereby
disposed of.
3. There shall be however no order as to costs.
4. Urgent photostat certified copy of this judgement, if applied for, be
given to the parties on completion of usual formalities.
(PARTHA SARATHI SEN, J.)
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