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HIGH COURT OF CALCUTTA
Lahiri, Guha Ray
AJIT KUMAR ADDY - Appellant
Versus
S. M. MAITRA, COLLECTOR, 24-PARGANAS - Respondent
A. F. O. O. (Mandamus) 71 Of 1951
Decided On : DECEMBER 3, 1952
EMBANKMENT ACT - SECTION 7, 8, 9, 25 - CONSTRUCTION - MANDAMUS - RIGHT TO ENFORCE - LACHES - INFRUCTUOUS WRIT - DISMISSAL OF APPEAL.
Fact of the Case:
The appellants, joint receivers of the Auddy Estate, were the settlement holders from the Government in respect of certain Sundarban lands, known as Mouza Sridharnagore in P. S. Mathurapore in the district of 24-Parganas. One of the terms of the lease was that the lessees were responsible for the efficient maintenance of the existing embankments, sluice gates, etc. to the standard which is necessary for keeping the lot under cultivation and it was open to the Collector, in whose favour the lease was executed, to give notice to the lessees calling upon them to remedy the breach of any ' condition including the condition relating to the efficient maintenance of the embankment.
Finding of the Court:
1. The Collector's action under Section 25 was not mala fide, although it might have been negligent. 2. The Collector's order, dated 2-1-1951, directing the execution of the work under Section 25 was bad, as no notice had been issued under Section 7 previously to the initiation of proceedings under Section 25. 3. The appellants had no right to enforce the maintenance of the embankment in a proper state of repair, as it was a duty or obligation and not a right. 4. The appellants were guilty of laches in not carrying out their obligations to repair the embankments and in trying to shift the responsibility on to their chakdars. 5. The work of repair had been completed, making the issuance of a writ of mandamus or a direction in the nature of a writ of mandamus infructuous.
Issues: 1. Whether the Collector's action under Section 25 was mala fide? 2. Whether the Collector's order, dated 2-1-1951, directing the execution of the work under Section 25 was bad? 3. Whether the appellants had a right to enforce the maintenance of the embankment in a proper state of repair? 4. Whether the appellants were guilty of laches? 5. Whether the work of repair had been completed?
Ratio Decidendi: 1. The Collector's action was not mala fide, as there was nothing to suggest that it was anything but honest, although it might have been negligent. 2. The Collector's order, dated 2-1-1951, was bad, as Section 25 of the Bengal Embankment Act requires a notice to be issued under Section 7 before proceedings under Section 25 can be initiated. 3. The appellants had no right to enforce the maintenance of the embankment in a proper state of repair, as it was a duty or obligation and not a right. 4. The appellants were guilty of laches in not carrying out their obligations to repair the embankments and in trying to shift the responsibility on to their chakdars. 5. The work of repair had been completed, making the issuance of a writ of mandamus or a direction in the nature of a writ of mandamus infructuous.
Final Decision: The appeal was dismissed, and the parties were directed to bear their own costs in both the Courts.
( 1 ) THE appellants are the joint receivers of the Auddy Estate, Chetla, who are the settlement holders from the Government in respect of certain Sundarban lands, known as Mouza Sridharnagore in P. S. Mathurapore in the district of 24-Parganas. One of the terms of the lease is that the lessees are responsible for the efficient maintenance of the existing embankments, sluice gates, etc. to the standard which is necessary for keeping the lot under cultivation and it was open to the Collector, in whose favour the lease was executed, to give notice to the lessees calling upon them to remedy the breach of any ' condition including the condition relating to the efficient maintenance of the embankment.
( 2 ) ON 4-5-1950, on receipt of a telegram from a number of cultivating tenants of the said lot, the Collector called for a report from the Assistant Engineer and the report of the Assistant Engineer, printed at page 11 of the paper book, is to the effect that there were several breaches in both the western and southern boundary embankments of village Sridharnagore on 2-5-1950, and the breaches in one of the embankments were being mended, and although the breaches in the other had been mended, they had not been mended so strongly, with the result that breaches occurred again therein on 31-5-1950, and upto 1-6-1950, they were all left to the mercy of the weather and the saline water was entering the paddy field.
( 3 ) ON the receipt of the said report, the Collector, on 15-6-1950, directed a copy of it to be forwarded to the receivers of the Auddy Estate for taking immediate action and report compliance by 20-7-1950. There was no response from the Auddy Estate till 10-3-1950, when they filed a petition before the Collector, printed at page 13 of the paper book, saying that the chakdars under them were responsible for the maintenance and repair of the embankments of their chaks under their contract with the lessees, and that the said chakdars had so long been maintaining the said bheris in pursuance thereof and it was their prayer that the Collector should call upon those chakdars to show cause for their wilful negligence in the works of repair.
( 4 ) THE Collector by his order, dated 10-8-1950, observed that the responsibility to maintain the embankment lay on the lotdars, that is, the Auddy Estate, but as a concession to the prayer of the lotdars he directed notices to be issued on the chakdars calling upon them to take up reparis and report compliance by 15-9-1950. Only one of the chakdars appeared and he denied his liability in the matter. When on 21-12-50 on behalf of the lotdars an undertaking was given that they would carry out substantial repairs before the end of February 1951 and agreed to file a written petition to that effect in two days' time, the Collector ordered that the papers should be put up on 2-3-1951 on which date appearance was to be put in by both the parties for assessment of the repair work carried out by the lotdars.
( 5 ) ON 2-1-1951, however, he passed the following order:"whereas the private embankment of Sridharnagar L. Plot P. S. Mathurapur (western and southern side) was badly damaged by the cyclone and flood in September last and it is necessary for the protection of life and property that repair work should be taken up immediately. "and I am of opinion that the delay in the execution of the work occasioned by proceedings commenced by a general notice under the 7th and following sections of the Act would be attended with grave and imminent danger to life and property. I do not (sic) hereby order that the execution of the work should be taken up forthwith under Section 25 of the Embankment Act in anticipation of the completion of the proceedings. "issue notices under Sections 25 and 7/8 of the Act fixing 22-2-51 for enquiry and hearing objection if any. A. E. will furnish the names of Mouzas to be benefited. "
( 6 ) THE actual notice issued in pursuance of this order is printed at page
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