- (1.) THE petitioner purchased the landed property measuring about 5 bighas of land from the erstwhile owner thereof, namely, Hemendra Kumar Bose, by a registered deed of conveyance dated 4 th may, 1956. The petitioner 's said property comprises of various plots of land, namely Plot Nos. 422, 418/117, 422/924 and 422/925 etc. in Mouza Arakpore, P.S. Tollygunge (presently Jadavpur). After extension of the Municipal limits of Kolkata Municipal Corporation, the said land falls within the jurisdiction of Kolkata Municipal Corporation and the petitioner 's said property was numbered as Premises No.2, Prince Golam Hossain Shah Road. The name of the petitioner has also been recorded as owner thereof. The Municipal authority never disputed the petitioner 's title in the said property. Problem started in March, 2012 when the Municipal Commissioner, being the competent authority under the West Bengal Inland Fisheries Act (Amendment), 1993, issued a notice for taking over the management and control of water body in the ward in which the petitioner 's property situates, by invoking Section 17A of the said Act for the purpose of promotion of pisciculture and prevention of environmental degradation of a portion of the land lying in the said ward for a period of 25 years. Though, in the said notice dated 15 th March, 2012 it was mentioned that the competent authority will take over management and control of the water body lying at Premises No. 2/1/2 Prince Golam Hossain Shah Road by invoking Section 17A of the said Act, but the petitioner claims that instead of taking over possession of any water body at Premises No. 2/1/2 Prince Golam Hossain Shah Road, the Municipal authority, in fact, is taking steps for taking over possession of a part of the petitioner 's property lying at Premises No.2 Prince Golam Hossain Shah Road, Kolkata by wrongly claiming that part of the petitioner 's property as ill-maintained water body. The petitioner claims that the petitioner purchased a solid land from the erstwhile owner thereof in 1956 and there was and/or is no existence of any water body in any portion of the petitioner 's property lying at Premises No. 2, Prince Golam Hossain Shah Road. Even the age-old title deed of the petitioner does not show that any water body was transferred to the petitioner. The petitioner, thus, claims that the competent authority exceeded its jurisdiction by taking steps for taking over possession of a part of the petitioner 's property under the provisions of Section 17A of the said Act, though no water body exists in the petitioner 's said property.
(2.) MR . Saktinath Mukherjee, learned Senior Counsel, appearing for the petitioner, raised a very substantial question of law relating to workability of the provision of the said Act by contending that in spite of making vigorous searches, he is unable to trace out any notification issued by the State Government under Section 1(2) of the said Act for implementation of the provisions of the said Act. Mr. Mukherjee submitted that, of course, a notification was issued on 16 th June, 1994 for creation of said Act, but no such notification under Section 1(2) of the said Act was issued for making the provisions of the said Act operative. He, in his usual fairness, submitted that if any such notification can be produced by the State Government to show that a notification has already been issued under Section 1(2) of the said Act to make the provisions of the said Act operative then, of course, his submission will be of no relevance in the facts of the instant case. An affidavit has been used by the petitioner disclosing compendium of the Acts, Rules and Notification, Order etc. which was issued under the Inland Fisheries Act, wherefrom it appears that excepting the notification issued for creation of the said Act on 16 th June, 1994, no other notification was issued under Sub-Section 2 of Section 1 of the said Act for appointing any date on which the said Act will come into force. Though Mr. Banerjee, learned Senior Counsel, appearing for the Kolkata Municipal corporation submitted a copy of the notification issued on 16 th June, 1994 showing that the said Act came into operation on 16 th June, 1994, but the original notification could not be produced by him before this Court. A copy of said notification which was produced by Mr. Banerjee has been annexed to the Supplementary Affidavit used by the petitioner at page 9 thereof. On perusal of the said notification this Court finds that the said notification is not the true copy of the original as the part of the said notification is missing. The Press where such notification was printed has not been indicated in the copy of the notification produced by Mr. Banerjee before this Court. As such, some suspension has arisen in the mind of the Court regarding the correctness of the said notification. Such suspension is required to be dispelled by production of the original notification before this Court. Be that as it may, presently this Court need not enter into such dispute as Mr. Banerjee, learned Senior Counsel, submitted that his client has not taken any step for taking over the possession of any water body lying at Premises No. 2, Prince Golam Hossain Shah Road belonging to the petitioner. By referring to the various proceedings which were taken out by his client even before issuing the impugned notice for taking over possession of the said water body, Mr. Banerjee pointed out that right from the very beginning his client took all steps for taking over the possession of the ill maintained water body lying at Premise No.2/1/2, Prince Golam Hossain Shah Road. Mr. Banerjee further submitted that since the petitioner, admittedly, did not claim any interest in respect of the Premises No. 2/1/2, Prince Golam Hossain Shah Road, the petitioner had no locus to maintain this writ petition even if any illegality was committed by his client in the process of taking over possession of the water body in the Premises No. 2/1/2, Prince Golam Hossain Shah Road belonging to the other owners thereof. This Court finds much substance in such submission of Mr. Banerjee. In my view, it is rightly contended by him that if the competent authority takes any step in respect of the Premises No. 2/1/2, Prince Golam Hossain Shah Road, the petitioner who is not the owner of the said premises, does not have any locus to maintain this writ petition as the petitioner cannot be aggrieved, if the possession of water body lying at Premises no. 2/1/2, Prince Golam Hossain Shah Road, belonging to different owners thereof, is taken over by the competent authority under the said Act. But if it is found that by issuing a notice for taking over possession of the water body lying at Premises No. 2/1/2, Prince Golam Hossain Shah Road, the competent authority, in fact, wants to take over possession of any portion of the petitioner 's property lying at Premises No. 2, Prince Golam Hossain Shah Road, then, of course, this Court has no hesitation to hold that the petitioner has its locus to maintain this writ petition. Since none of the aforesaid two premises is butted and bounded by boundary wall, it is difficult to ascertain the respective boundaries 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.
(3.) 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 No. 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. Thus, for resolving this dispute this Court holds that the boundaries of the petitioner 's land should be ascertained first by way of survey of the petitioner 's property lying at Premises No. 2, Prince Golam Hossain Shah Road which comprises of several plots of land as mentioned in the schedule of his title deed, with reference to the mouza map. Accordingly, this Court appoint Mr. Gour Mohan Sahu, a survey passed Advocate Commissioner (Mobile No. 9231559412), as Special Officer of this Court who is directed to identify and/or demarcate the boundary of the petitioner 's land by relayment and/or survey of the petitioner 's said Premises comprising of various plots of land as mentioned in the petitioner 's title deed dated 4 th May, 1956 with reference to the Mouza map of the concerned mouza, upon notice to the parities and submit a report before this Court on 13 th December, 2012. The parties are also directed to cooperate with the learned Special Officer of the Court so that he can submit the report before this Court on the next returnable date. The petitioner is directed to supply true copy of the title deed to the learned Special Officer within a week from date. The petitioner is also required to produce its original title deed as and when the same will be demanded by this learned Special Officer in course of such survey. The State respondent is also directed to supply the mouza map to the learned Special Officer within a week from date, for carrying out the aforesaid direction of this Court by the learned Special Officer. Let this matter be included in the list on 13 th December, 2012 for submission of Special Officer 's report. The initial remuneration of the Special Officer is presently fixed at Rs.25,000/- to be paid by the petitioner to the Special Officer in advance. Let a plain copy of this order be handed over to the petitioner 's learned Advocate-onRecord who is directed to make over the same to the learned Special Officer who is directed to act on the plain copy of this order, countersigned by the Assistant Registrar (Court). Let a plain copy of this order be given to the learned Advocate, appearing for the respondent on usual undertaking.;