FOR SECTION 17A OF WEST BENGAL INLAND FISHERIES ACT, 1984 TO APPLY, IT IS IMPERATIVE TO ESTABLISH THAT NOT ONLY A WATER AREA OF THE REQUISITE SIZE IS BEING SOUGHT TO BE FILLED UP OR HAS BEEN FILLED UP FOR USE OTHER THAN FISHERY AS MAY RESULT IN ABOLITION OF FISHERY BUT ALSO THAT SUCH WATER AREA IS CAPABLE OF BEING USED AS FISHERY.

1. CHALLENGE in this petition is to an order passed by the Municipal Commissioner, Kolkata Municipal Corporation (hereafter the Corporation) holding that the plot of land which the petitioners intend to develop was a tank/water body and therefore the bar of section 17A of the West Bengal Inland Fisheries Act, 1984 (hereafter the Fisheries Act) is attracted. It was further held by him that since the petitioners had been gradually filling up the tank/water body, they shall restore the same in its original position.

2. THE impugned order is undated and has been forwarded to the first petitioner by the Executive Engineer (C)/PMU of the Corporation by his letter dated 19.4.2008. For the purpose of proper adjudication of the issue involved in this writ petition, the genesis of the dispute may be noticed.

3. THE first two petitioners are Joint Directors of M/s. Ornate Builders Private Limited, a company within the meaning of the Indian Companies Act, the third petitioner (hereafter the company). They claim that the company is the owner of a plot of land measuring about 10 cottahs 36 sq. ft. situate at 26A, Upendra Chandra Banerjee Road (formerly known as Kankurgachi Road) under P.S. Phoolbagan, Kolkata -700 054 (hereafter the said property). It is further claimed that the company purchased the said property in the year 1988 from its lawful owner by virtue of a registered deed of sale being No. 407 for the year 1988. On such purchase, the name of the company has been mutated in the records of the Corporation and it has been asserted that due taxes are being paid. THE first two petitioners, it is also claimed, became Directors of the company on 20.1.2001.

4. THE erstwhile Directors of the company had submitted an application before the Corporation for construction of a multi-storied residential building on the said property. THE Corporation had initiated steps for sanctioning the building plan and as a part thereof, the land was inspected by the Surveyor/Assistant Valuer and a report to that effect was submitted on 28.4.1988. Interestingly, the report does not reveal that the said property comprises a water body. In pursuance of the aforesaid report dated 28.4.1988, the Deputy City Architect, Borough No. Ill of the Corporation had written a letter dated 28.4.1989, Annexure P-13 to the petition, to the company in connection with its plan for development of the said property. A bare perusal thereof reveals that the proposal for erection of multistoried building for residential purpose had obtained clearance under the Town and Country (Planning and Development) Act, 1979 (hereafter the TCPD Act) and that the Municipal Building Committee of the Corporation had suggested certain measures to be taken on compliance whereof further action would be taken on the prayer of the company for issuance of building plan.

5. IT appears from one of the annexures to the petition that this Court's writ jurisdiction had been invoked by the company whereupon an order dated 27.8.1992 was passed by a learned Judge directing the Corporation to take effective steps to consider grant of sanction to the building plan as per the prevailing law on the date of filing of application within a period of four months without prejudice and subject to the order of the Hon'ble Supreme Court on a pending matter. Constitutional validity of the Calcutta Municipal Corporation (Amendment) Act, 1990 was the subject matter of adjudication there.

6. THE proposal was once again placed before the Municipal Building Committee for its consideration on 8.2.1994 when, it appears, the following resolution was passed :

"THE Municipal Building Committee considered the plan proposal and recommended it for sanction subject to compliance with the following requisition a. THE entire ground-floor beside the service unit shall have to be provided for car parking spaces only and an essential Service Unit in the ground- floor should be furtherest away from the Upendra Ch. Banerjee Road. b. Ve