Sri Manikeswar Roy and Others vs The State of West Bengal and Others

B.M. Mitra, J.—The petitioners are the shebaits of two different deities as mentioned in the writ petition being situate within the jurisdiction of Asansole Municipal Corporation and they are stated to be debuttor property who are the alleged absolute owners of a tank known as "Padma Bandh". The usufructs of the said property are alleged to be used exclusively for the religious purpose for which the dedication of the properties was made in favour of the deities. The further assertion has been made that the petitioners are entitled to retain the said tank and land under provisions of 6(e) and (i) of the West Bengal Estates Acquisition Act. That Asansole Municipality started a scheme by a resolution dated 29th April. 1972 for water supply and for the said scheme the Municipality took a resolution for utilisation of Padma Bandh and pursuant thereto a notice u/s 3(1) of Act II of 1948 and in exercise of the power under Sub-Section (1A) of Section 3 of the said Act, the concerned Collector requisitioned the said tank under L.A. Case No. 25R/79-80 sometime on. 14.10.80. Against the issuance of the said notice a writ petition was moved in this High Court challenging the impugned notice of requisition being CO. No. 11324 (W) of 1980 and upon hearing of the same High Court directed the said Authority not to take possession of the said tank without giving proper notice as contemplated under the Act;'' In terms of. tine directions passed in the aforesaid writ petition and in compliance of the procedural formality the competent Authority of L.A. Department has requisitioned the said tank on 14.10.80. It has been alleged that after requisition instead of utilization of the tank for the purpose for which it was requisitioned, the drain water of the Municipality was stored in the tank in question and even scavengers and contractors were alleged to have dumped rubbish and other refuses in the said tank. In this process time was allowed to run arid a period of 13 years has elapsed but the allegation is centered on the footing that. the scheme for which the requisition was made was not implemented. Thereafter certain moves were initiated to de-requisition the said property and in terms of the averments in the petition, the petitioners had been in possession of the said tank since January, 1995 As it appears on the prima facie grounds from the pert, the averments of the writ petition that for a period covering from 14 14.10.80 to January, 1995 the tank in question was in possession of the Municipal Authorities..Thereafter, the petitioner No. 2 received a notice u/s 1 of Sub-section 17(a) of the West Bengal Inland Fisheries (Amendment) Act, 1993 which has been inserted by amending the subsisting Act of 1984. The subject matter of the instant writ petition is the said impugned notice which is enclosed as annexure ''E'' appended to the writ petition. Though multifarious prayers were made in the writ petition but the matter was contested at the time of hearing only in respect of the impugned notice vide annexure ''E'' and subsequent order passed during the pendency of the writ application which is annexed as a part of the annexure of the supplementary affidavit affirmed by the petitioners sometime on 20.3.96. The prayers as made in the original writ petition though not have been couched in a happy language but the Court is made to wonder as how far it should take them too seriously and construction should be made keeping in view of the language of the prayer itself or on the contrary it should confine its attention to the subject matter of challenge before the Writ Court. this Court is reminded of a celebrated observation of a Supreme Court decision where the Apex Court has occasion to observe and. opine that pleadings should not be read in rigid terms and some reality should be given keeping in view of the low level of literacy of the litigant public and in the particular type of drafting. this Court instead of being bogged up with the technicalities of the prayer ends that the object matter of substantial challenge is the notice issued u/s 170 (2) of the West Bengal Inland Fisheries (Amendment) Act; 1993 and the Subsequent decision taken thereon during the pendency of.the writ application.

The entire debate in the controversy in the pending writ application has been centered-round the legality and/or validity of the impugned notice being annexure ''E'' appended to the writ application and subsequent decision taken thereon pursuant to the leave granted by this Court during the pendency of the Writ application, during the course of hearing, it is the common submission of both the parties that the nature of the impugned notice being annexure ''E'' is in the form of show cause as it has been submitted by Sri Maloy Bose, the learned Advocate appearing on behalf of the respondents that show cause is inbuilt in the provisions of the Act itself. The attention of this Court had been draws to annexure ''E'', of the writ application and before the same was placed, both the parties drew attention of the Court extensively in their own way to the provisions of Section 17(a) (2) of the West Bengal Inland Fisheries (Amendment) Act, 1993. Section 17(a) (2) of the West Bengal Inland Fisheries (Amendment) Act, 1993 has been couched in a manner which does not contemplate issuance of a notice of show-cause. The section as referred to, as it stands is quoted hereinbelow.

(2) If the competent authority, on receipt of an information of on his own motion or otherwise, is satisfied that

(a) Any water area including embankment or manually or artificially depressed land holding, referred to in clause (s) of Sub-section (1) is being, or is about to be, put to in use, other than fishery, or

(b) Any such water area including embankment is being, is about to be divided into parts, or in part of any such water area including embankment or naturally or artificially depressed land holding of a divided land being, or is about to be, transferred to any other person, in contravention of the provisions of Sub-section(l) and that it is necessary for the purpose of promotion of pisciculture, checking of destruction of fisheries and prevention of environmental degradation so do. he may. by order in writing, take over the management and control of such water area including embracement or naturally or artificially depressed land holding, as the ease may be.

The aforesaid section as quoted amply reveals that competent authority is conferred with'' powers and jurisdiction to take over management and control of such water area if it is used for any purpose other than for fishing or if the tank in question is about to be filed up or the same is after artificially depressed being divided and/or transferred to any other person and/or necessity has arisen for preoption of pisciculture, checking of destruction of fisheries and prevention of environmental degradation. Therefore, if a satisfaction of the competent authority is arrived at, for user of the tank for any use other than for fishery or for filling up the tank or it may be transferred to some other person after causing it artificially depressed add it becomes necessary for the production of pisciculture; checking of destruction of fisheries and prevention of environmental degradation and on such condition being fulfilled the competent authority can form its satisfaction. Therefore, the expression ''satisfaction'' as'' used by way of a prefix to the relevant provisions apparently denotes that the same is not subjective but objective and are being laid down in terms of the statute. Such objective test being fulfilled, the competent authority can form subjective decision to take over the management and control of such tank. Therefore, the provisions of Section 17a) ((2) of the said Act is a warrant for the appropriate authority to take answer management on fulfillment of specific terms and conditions as embodied in the statute. The said decision is to be arrived at before final decision of taking over of management is proposed to be taken and before that there can be no room for formation of satisfaction. In view of common submissions of both the parties that the provision of show-cause is built in act, therefore, there cannot be any question of satisfaction at the form of issuance of show-cause notice. If by way of abundant caution the competent authorities want to issue a show-cause notice by way of a compliance of the known principle of natural justice, than it has to offer opportunity to the recipient of the notice, to show cause and at that sage the mind of the authority issuing show-cause notice should be open. Mr. Ajit Panja, the Learned Counsel appearing for the petitioners has just made his submission and grievance about the sustainibility of the impugned notice vide annexure ''E'' appended to the writ application as according to him the same smacks of closed mind. According to Mr. Panja, the impugned notice is replete with repetitions of germane expression contained therein being borrowed from the statute and as a result of which cart has been attempted to be placed before the horse. Mr. Panja has further submitted that the notice as read will make it abundantly clear that the competent authority is already satisfied about the condition as envisaged u/s 17(a) (2) of the West Bengal Inland Fisheries (Amendment) Act, 1993 and as such notice becomes an empty formality. Even it there is question of procedural compliance but the same should not be reduced to an empty formality and if the mind is allowed to be closed then the answering recipient of the show-cause notice will be made to clamour before the deaf ears of the authority making issuance of the notice. It could have been appreciated if at a later stage on the grounds of infraction of the provisions of Section 17(a) (2) of the West Bengal Inland Fisheries (Amendment) Act. 1993 the said notice would have been issued indicating formation of satisfaction but at the stage of issuance of notice of show-cause it cannot display any element of formation of satisfaction. Mr. Maloy Bose, the learned Advocate for the respondents has tried to impress upon this Court by contending that the word ''satisfaction'' has been used in a loose sence and there is a qualitative distinction of satisfaction at the stage of show-cause notice and at the stage of final notice under the provisions of the Act as referred to. It becomes very difficult to draw the line of water-shed of distinction of the pith and connotation of the nomenclature of the expression ''satisfaction'' at two stages and there can neither be any qualitative differentiation nor can it be rated as to be distinguishable from the point of degree. The submission made by Mr. Bose appears to be ingenuous and it becomes very difficult for this Court to appreciate the term of distinction made about.the word ''satisfaction'' by way of two tier stage. Mr. Panja has contended with force that an this score alone the impugned notice of show-cause should be deemed to be treated as to have been denued of any basis of sustainibility as it is manifestly contrary to all.known canons of the principles of natural justice, the very purpose of natural justice may appear to have been defected simultaneously with the issuance of the impugned notice the concerned makes up its mind and thereafter tries to conform formality for the sake of the same without being bothered to do justice in accordance with modalities of due hearing and fair opportunity.

Mr. Panja has again drawn attention of this Court from the impugned annexure ''E'' appended to the writ petition by pointing out that a reference was made about the enquiry report dated 2.11.95 of the B.L. & L.R.O., Asansole and an order dated 3.11.95 of the Executive Magistrate, Asansole in a proceeding u/s 144 of the Code of Criminal Procedure. Mr. Panja''s submission is on the footing that when they have been referred to in the show-cause notice itself and opportunity should have been provided, to the answering respondent by annexing them to the show-cause notice or by placement of the same to the writ petition so that they may be adequately dealt with. Mr. Bose, by way of reply to the same, has submitted that the order of the Executive Magistrate in a judicial proceeding is open to all and therefore the same is not required to be furnished. As far- as the other enquiry report is concerned, it has been submitted by Mr. Bose that the answering respondent did never ask for production of the copy of the same from the competent authority and as they did not grumble about non disclosure of the same it is not open to them to ask for it Mr. Panja, Learned Counsel for the petitioners, of course has heavily relied on the case of Union, of India v. Md. Rajan Khan, reported on AIR Supreme Court, page 47] where the Court has come to the conclusion that supply of copy of the initial report, along with recomnendation of the show-cause notice will be within the ambit of the rules of natural justice. A further reference was made regard to an. earlier decision in the ease of Mrs Sovachand Mulchand. Appellant v. Collector of Central Excise and Land Customs & Others Respondents reported in MR 1968, 174 at para 40 and it appears therefrom from the nothings in the file'' that the Collector acted merely on the information supplied and reports made to him by others but they were never placed before the answering respondent. The court was unable to hold that the well established rules; of natural justice have been observed in the case. It is further viewed that it was the duty of the collector to place the aforesaid information report before the answering respondent and to invite comments and criticism, if any on the said information and reports whether the appellant asked for it or not Such opportunity should have been given for contravention of the allegations made. Even Mr. Panja has referred to the decision of Alfred Thangarajah Dumyappah v. W.J. Phemando & Others, reported in 1967 Volume 2, P.C. 337 and it has been submitted as to what matters are to be considered in order to attract the principle of audi altarim pattern. The competent authority is required to comply the twin principles of audi altarem partem and fair play in order to arrive at a decision. If something is attempted to he referred to by either side but the same is not produced, the procedure becomes vitiated with irregularity. Mr. Panja has further assailed the concluding portion of the. first paragraph of the impugned notice vide annexure ''E'' where the competent authority has expressed its satisfaction for non-utilization of the tank to accordance with prevailing norms of pisciculture. According to Mr. Panja. the user of expression of prevailing norms of pisciculture is a deviation from the language of the statute as it contemplates promoton of ptaci-eulture coupled With user of the tank for a period mettoned u/s 17A(1) (a) for such use other than fishery. Mr. Panja has contended that non adherence to prevailing norms of pisciculture is not an expression contained in the statute and some togenugus deviation has been made from the provisions of the stature which have been purported to be written in a manner, Mr. Panja has repeated the same by saying that such use cannot be resorted to unless the same Is sanctioned by the statute. The operative portion of the impugned notice suggest the same to foe one u/s 17A of the West Bengal Inland Fisheries Act, 1993 a such contains three contingencies as delineated in clauses a, b and c thereof and if a notice of show-cause is attempted to be issued, the same has to be issued on foundation of any of the tipple stipulations as envisaged u/s 17(A) (1) but not under the conditions as contemplated u/s 17(2). The conditions covered by 17(A) (2) are pre requisite conditions for taking over management and conditions as exemplified in 17 (A) (1) of the West Bengal Fisheries (Amendment) Act, 1993 are the conditions which may be, ascribed to the, conditions for issuance of a show-cause notice if it is to be taken as inbuilt in the statute. The impugned annexure ''E'' become a queer juxtaposition and/or amalgam of Section 17 (A) (2). Therefore, the impugned notice tends to suffer from misdirection in exercise of jurisdiction and a third mode has been attempted to be devised in annexure ''E'' which is not sanctioned by any of the alternative namely, Section 17 (A) (1) or Section 17 (A) (2). Therefore, this Court finds it difficult to sustain annexure ''E'' being inconformity with the provisions of the statute.

It is salient to mention as appearing from the supplementary affidavit as referred to earlier affirmed by the writ petitioners from which a final order has seen the light of the day which is dated 15.1.96. The said order has been passed in terms of an order dated 20.12.95 passed by Altamas Kabir, J. where the concerned Authority is directed to pass a final order but the same may hot be given effect to for a certain period as mentioned therein. Mr. Bose learned Advocate of the respondents, has submitted that the final order being dated 15.1.96 is not the subject matter of challenge in'' the writ petition and sort of manner of the writ petition the same cannot be brought within the ambit of the pending writ application. The said submissions of Mr. Bose apparency appears to be acadmic as this Court has already found it difficult to sustain the show-during notice. Be that as it may If pursuant to the directions of the Court during the pendency of a writ application throwing a challenge with regard to particular cause of action and the same Is expanded during the pendency of a pending its by operation of the Court''s order, then the cause of action which is continuing pursuant to the Court''s order may appear to be a part of the cause of action itself. A reference in the context to be made to the welknown decision of B. Banerjee v. Anita Pan, reported in AIR 1975 1146 where the Apex Court made a pertinent observation, "We cannot heritualistie in insisting with a return of the plaint and a. representation thereof incorporating amendment is the sacred requirement of the law on the other hand social justice and the substance of the matter find fulfilment but the fresh pleadings are put in...". "We are conscious that to shorten litigation we are straining language to the little extent of interpreting the expression "institution of the suit" as amounting to filing of fresh pleadings... ruinuous protraction of litigation whoever may temporarily seem to benefit by delay, bankrupts both in the end and inflicts wounds on society by sterile misuse of money." this Court feels that if under the permission of the Court the ambit of pending his is attempted to be extended, that can be brought for resolution in the pending litigation itself and if the party is driven to a separate proceeding, the same will lead to multiplicity of ruinuous litigation. Though it has been observed that consideration of the final order passed on 15.1.96 by the Competent Authority under the Act Is of academic significance but in order to resolve any possible controversy, this Court deals with some aspects of the same. Mr. Panja has drawn the attention of this Court to the purported placement of a mass petition dated 8.11.95 which was not placed before the writ petitioners nor they were given the opportunity to deal with the same. According to Mr. Panja, it is strange that in the show-cause notice itself dated 27.11.95 no reference was made about mass petition dated 8.11.95 which is prior to re-issuance of show-cause notice. According to Mr. Panja, it is incumbent on the part of the Competent Authority to refer to the mass petition dated 8.11.95 in the original show-cause notice. The other allegations are allegations as to the onus of liability as to who has filled up the tank and caused environmental degradation by storing of refuses on the said tank, Mr. Panja has drawn attention of this Court to a conspicuous fact that for a long duration of 13 years preceding to the currency of the present controversy, it has been under the occupation of the Municipal Authorities. It is required to be investigated by the proper authority as to who has done the mischief to the tank itself. The Writ Court is not a fact finding Court and it cannot deal with the said question but that should be thoroughly (sic) by an independent fact-finding body If the show-cause''-notice cannot withstand the test scope of scrutiny than the initial order dated 15.1.96 passed by the component Authority the West Bengal Inland Fisheries Act loses its foundation. The said final order also appears to have been passed in complete disregard and derogation of all known principles of the rule of natural justice. The findings in the report also appear to be perfected and not based on cogent analysis of evidence. The procedure adopted for placement on some records also appears to be grossly improper as the same has been hinted before. Therefore, along with the original show-cause notice which is the subject matter of the present writ application, a final order dated 15.1.96 passed by the competent Authority of the West Bengal Inland Fisheries (Amendment) Act, 1993 are required to be set aside for the ends of justice. However, it will not preclude the concerned authorities to proceed in accordance with law in terms of the relevant statute de novo if it so chooses. The writ petition succeeds in part in view of issuance of a Writ of Mandamus restraining the concerned respondents from giving effect of farther effect to the impugned notice-vide annexure ''E'' dated 27.11.95 as the said impugned notice along with the final order passed by the said Authority on 15.1.96 are set aside for the reasons as aforesaid. The writ petition thus stands disposed of and the other prayers are not dealt with by this Court as controversy has been raised and restricted only to the sustainibility of the impugned notice vide annexure ''E'' to the writ petition and the final order dated 15.1.96 passed by the said Authority. Mr. Nandy, learned Advocate appearing on behalf of the Asansol Municipal Corporation, prays for stay for a limited period with a view to explore the possibility to initiate the proceeding de novo in terms of the statute but this Court is not in a position to grant any interim order on the basis of the said submission about a contemplated move de novo as there, shall be existing basis for issuance of any order of status quo. this Court is, therefore, constrained to reject the prayer of status quo as made by the learned Advocate appearing on behalf of the Asansol Municipal corporation.