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2019 Supreme(Cal) 585
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
Debangsu Basak, J.
Jayanta Ray - Appellant
Versus
The Kolkata Municipal Corporation & Others - Respondent
W.P. Nos. 10159 (W) of 2009 with 9635 (W) of 2016
Decided On : 01-08-2019
Subir Sanyal, Biswajit Mukherjee, Swapan Debnath, Tanushree Das, Alok Kumar Ghosh, S.T. Mina, N. Pal, Advocates.
The main legal point established in the judgment is the jurisdiction of the authorities under Section 17 A of the West Bengal Inland Fisheries Act, 1984 as amended in 1993, and the applicability of Section 17 A to the constructions at the subject plot.
Headnote:
Jurisdiction - West Bengal Inland Fisheries Act - Section 17 A - [WP No. 10159 (W) of 2009 and WP No. 9635 (W) of 2016] - Section 17 A of the Act of 1984 as amended in 1993 - Summary of Acts and Sections: The court discussed the jurisdiction of the Kolkata Municipal Commissioner under Section 17 A of the West Bengal Inland Fisheries Act, 1984 as amended in 1993. It also considered the prospective nature of Section 17 A, the existence of the notification, and the perversity of the impugned order.
Fact of the Case:
The petitioner claimed ownership of certain premises and challenged a notice and decision issued under Section 17 A of the Act of 1984. The petitioner argued that the impugned notice and decision were without jurisdiction and that the provisions of Section 17 A were not attracted to the constructions at the subject plot.
Finding of the Court:
The court found that the impugned notice and decision were within the jurisdiction of the authorities. It also held that Section 17 A of the Act of 1984 was attracted to the constructions at the subject plots. The court concluded that the petitioner was not entitled to any relief in the two writ petitions.
Issues: 1. Jurisdiction of the impugned notice and decision under Section 17 A. 2. Applicability of Section 17 A to the constructions at the subject plot. 3. Entitlement to relief in the two writ petitions.
Ratio Decidendi: The court held that the impugned notice and decision were within the jurisdiction of the authorities and that Section 17 A of the Act of 1984 was attracted to the constructions at the subject plots. It also concluded that the petitioner was not entitled to any relief in the two writ petitions.
Final Decision: W.P. No. 10159 (W) of 2009 and W.P. No. 9635 (W) of 2016 are dismissed. No order as to costs. The prayer for stay made on behalf of the petitioner is considered and refused.
JUDGMENT :
Two writ petitions have been taken up for analogous hearing as they involve the same immovable property. In WP No. 10159 (W) of 2009, which is referred to as the first writ petition for the sake of convenience, the petitioner has challenged the notice dated March 16, 2004 issued under Section 17 A of the West Bengal Inland Fisheries Act, 1984 as amended in 1993 and the decision dated February 2, 2009 of the second respondent. In WP No. 9635 (W) of 2016, which is referred to as the second writ petition for the sake of convenience, the petitioner has called upon the first respondent to provide water supply to the immovable property concerned.
2. Learned advocate appearing for the petitioner has submitted that, the impugned decision dated February 2, 2009 is without jurisdiction. By such decision, the authorities found a particular immovable property to be a water body governed under the provisions of the Act of 1984 as amended in 1993. He has submitted that, the impugned order was passed by the Kolkata Municipal Commissioner. According to him, Kolkata Municipal Commissioner is not the competent authority under Section 17 A of the Act of 1993. He has referred to the notification dated July 15, 2005 in support of his contentions. He has relied upon 2013 Volume 10 SCC 136 (Jagmittar Sain Bhagat & Ors. v. Director, Health Services, Haryana & Ors.), 2015 Volume 6 SCC 412 (Foreshore Cooperative Housing Society Limited v. Praveen D. Desai (Dead) Through Legal Representatives & Ors.), 1990 Volume 3 SCC 481 (British India Steam Navigation Co. Ltd. v. Shanmughavilas Cashes Industries & Ors), 2012 Volume 1 SCC 369 (T. Varghese George v. Kora K. George & Ors.) and 2003 Volume 4 SCC 147 (Sarwan Kumar & Anr. v. Madan Lal Agarwal) in support of his contentions that, when, an authority passes an order without jurisdiction, the same is a nullity.
3. Referring to Section 1 (2) of the amended Act of 1993, learned Advocate appearing for the petitioner has submitted that, no notification under the amended Act of 1993 has been published by the Government. In absence of such notification, no effect can be given to the provisions of Section 17 A of the Act of 1984. Consequently, the impugned order is bad in law. He has contended that, no notification under Section 1 (2) of the amended Act of 1993 is available with the Government offices such as Government Press, Secretariat Library, Assembly Library, State Archive, State Central library, Cabinet Secretariat Library, New Delhi and the National Library. He has referred to the letter dated April 23, 2019 of the National Library by which, National Library has informed the petitioner that, the copy of the Calcutta Gazette dated June 16, 1994 is not available in the library. The Cabinet Secretariat Library, New Delhi has also informed the petitioner that, Calcutta Gazette dated June 16, 1994 is not available in its records. According to him, authenticated copy of the notification not being available, it has to be construed by the Court that, no notification under the Act of 1993 exists. He has referred to the order dated March 28, 2019 passed by the court and submitted that, the photo copy of the notification handed over by the learned Additional Advocate General, cannot be the authenticated copy of the notification. He has submitted that, it is not the authenticated copy of the notification. Similar photo copy was produced before the High Court in WP No. 16554 (W) of 2012 (Usha International Ltd. v. The Kolkata Municipal Corporation and others) when the Court disbelieved the authenticity and correctness of the photo copy and doubted the fact of issuance of such notification under Section 1 (2) of the amending Act of 1993. According to him, therefore, there being no authenticated copy of the Gazette Notification dated June 16, 1994 it has to be held by the Court that, no such notification exists. Consequently, Kolkata Municipal Commissioner had no jurisdiction to pass the impugned order.
4. Without pr
