Calcutta High Court Upholds KMC’s Action Under Fisheries Act: “Petitioner Failed to Substantiate Ownership Claim”
Safiya Malik
The Calcutta High Court delivered a judgment dismissing the writ petition challenging the takeover of a water body by the Kolkata Municipal Corporation (KMC) under the West Bengal Inland Fisheries Act, 1984. The case was adjudicated by Justice Partha Sarathi Sen.
The petitioner, Usha International Limited (formerly Jay Engineering Works Limited), sought a writ of mandamus against KMC, challenging its takeover of a water body situated in Ward No. 95 under Borough X. The takeover was initiated under Section 17A of the West Bengal Inland Fisheries Act, 1984, purportedly for pisciculture and environmental conservation for a period of 25 years.
The petitioner contended that no prior notice was served before the takeover despite the property being recorded in its name in the assessment register of KMC. The petition also argued that the municipal authorities had failed to establish the existence of a fishery on the premises and had acted in contravention of natural justice. The petitioner referred to its title deed and other relevant documents, asserting that the land was never a water body and was wrongly classified by the authorities.
It was submitted that after publication of the takeover order dated 15.03.2012, the petitioner objected through a letter dated 28.06.2012, arguing that no notice had been served before the purported action. The petitioner contended that the land was originally owned by Jay Engineering Works Limited and later merged with the present company. Additionally, the petitioner alleged that KMC had made prior attempts to take control of the land since July 12, 2010, under the pretext of environmental protection and pisciculture.
The respondents, represented by their counsel, defended the action, stating that the water body was ill-maintained and that the petitioner had failed to substantiate its ownership claim. It was argued that Section 17A permitted the takeover of water bodies for conservation and pisciculture purposes, and the municipal authority was acting within its jurisdiction. Furthermore, the municipal authority argued that alternative remedies under Section 18 of the Act were available to the petitioner and that the issue involved disputed facts unsuitable for writ jurisdiction.
The respondents contended that due notice was served through public notices published in two widely circulated newspapers, which sufficed under the law. The KMC also argued that the disputed land was never part of the petitioner’s property and that the municipal assessment records reflected the existence of a water body independent of the petitioner’s title claim.
The Court examined whether the petitioner’s property was included within the purported water body, as per the records and a survey conducted by an appointed special officer. The Court noted 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.”
The Court also noted that the KMC had conducted inspections and identified the property as a water body. “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 guesswork,” indicating the lack of precise demarcation. However, KMC's records indicated that the property was categorized as a water body under municipal records.
Regarding the petitioner’s argument that Section 17A was never brought into force, the Court referred to a prior Division Bench judgment in Anuradha Sen v. KMC and Ors., which affirmed that the provision came into force on June 16, 1994. Consequently, the petitioner’s argument that the law was never brought into effect was dismissed as baseless.
On the issue of whether natural justice was violated, the Court noted that the authorities had issued a general public notice in newspapers and served notices to recorded owners. “The principle of natural justice has been followed prior to the passing of the order under challenge since show cause notice was 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.”
The Court also held that the petitioner failed to prove that the municipal authority acted beyond its jurisdiction or contrary to statutory requirements. The Court observed, “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 property over which the competent authority has passed an order under Section 17A of the said Act.”
Furthermore, the Court examined the special officer’s report, which found no conclusive evidence that the petitioner’s premises were affected by the takeover order. The surveyor reported: “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.” However, the surveyor also stated that the respondents did not provide any documents to establish what constituted premises no.2/1/2.
The Court found that the petitioner did not produce contrary materials to establish its claim that the subject property was wrongly included as a water body. The municipal authority had designated the area as a protected water body under the relevant statutory provisions.
In conclusion, the Court dismissed the writ petition, stating that the petitioner lacked standing to challenge the municipal authority’s decision. The order stated:
- The writ petition (WPA 16554 of 2012) is dismissed for lack of merit.
- Connected applications stand disposed of.
- WPA 29374 of 2013 is also dismissed as no further issues remain to be decided.
Advocates Representing the Parties
- For the Petitioner: Mr. Saptansu Basu, Senior Advocate, and Mr. Subhabrata Das, Advocate.
- For the Respondents: Mr. Alak Kumar Ghosh, Advocate, and Ms. Era Ghosh, Advocate.
Case Title: Usha International Limited v. Kolkata Municipal Corporation & Ors.
Case Numbers: WPA 16554 of 2012 and WPA 29374 of 2013
Bench: Justice Partha Sarathi Sen
