Form No.J(2) IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE Present : The Hon’ble Justice Raja Basu Chowdhury WPA 5610 of 2025 Sachin Seth & Ors. Versus Kolkata Municipal Corporation & Ors. For the petitioners : Mr. Gopal Chandra Ghosh, Sr. Advocate Mr. Rajkrishna Mondal For the Kolkata : Mr. Alok Kumar Ghosh Municipal Corporation Mr. Arijit Dey Heard on : 11.03.2026, 05.05.2026, 08.06.2026 30.06.2026 & 15.07.2026 Judgment on : 15.07.2026 Raja Basu Chowdhury, J (Oral): 1. Challenging the order passed by the appellate authority under Section 18 of the West Bengal Inland Fisheries Act, 1984 (hereinafter referred to as the “said Act”), dated 19th September, 2024, the instant writ petition has been filed. 2. The matter has a chequered history. Questioning the taking over of the management of the water body comprised in 112 Swinhoe Lane, Ward No.67, Police Station – Kasba, under Kolkata Municipal Corporation, measuring about 5 cottahs and for release thereof from 2 WPA 5610 of 2025 the takeover under Section 17A of the said Act as also for restoration of the portion of the land belonging to the petitioners, a writ petition, being WPA 11545 of 2021 was filed before this Hon‟ble Court. Such writ petition came to be disposed of by an order dated 18th January, 2022 by noting that since the water body was not maintained and was creating an unhealthy environment apart from being a breeding ground for disease, the Kolkata Municipal Corporation in exercise of power under Section 17A of the said Act had passed the order for taking over the management of the water body. Since the order passed by the Kolkata Municipal Corporation was appealable, the Court did not intervene by recording the water body has been restored to ensure a healthy and pollution free environment for the benefit of all. At the same time, the coordinate Bench also observed that neither the petitioners nor the Kolkata Municipal Corporation could utilize the water body for any other purpose other than fishing activities. 3. Though an appeal was carried from the aforesaid order which was registered as FMA 619 of 2022, the Hon‟ble Division Bench of this Court by an order dated 16th June, 2022 did not interfere with the order impugned, leaving it open to the appellants/petitioners to prefer a statutory appeal against the order of the competent authority. Subsequently, the petitioners had preferred an appeal which was registered as Appeal No.3 of 2022 before the appellate authority under Section 18 of the said Act. The said appeal was heard on merit and was 3 WPA 5610 of 2025 disposed of by an order dated 19th September, 2024, inter alia, observing as follows:- 4. Mr. Ghosh, learned senior advocate appearing on behalf of the petitioners has drawn the attention of this Court to the provisions of the said Act and the order passed by the learned Single Judge as also the Hon‟ble Division Bench of this Court and would submit that the power of the municipality to take over the management and control is 4 WPA 5610 of 2025 restricted to water body, the same does not extend to any part or portion of the land. By referring to the order impugned he would submit that admittedly in this case, the appellate authority has given a factual finding that the Kolkata Municipal Corporation is maintaining a garden, the management whereof has been taken over from the petitioners. According to him, the provisions of the said Act did not authorize the municipality to take over any part or portion of the land which is not a water body. In view of the aforesaid, he seeks interference of this Court and insists that the municipality cannot hold on to any portion of the land in the guise of maintaining a garden by renumbering such plot as 164B, Swinhoe Lane and the municipality is bound to return the same to the petitioners. 5. Mr. Dey, learned advocate appears on behalf of the Kolkata Municipal Corporation. He would submit that the challenge made by the petitioners, to take over the management under Section 17 of the said Act did not succeed. Even the appeal filed by the petitioners also did not succeed. According to him, the respondents had only taken over the management of the water body. He submits that the water body has been taken over along with its embankment, however, he has no submission to offer with regard to the finding returned by the appellate authority concerning the adjoining piece of gardened land that has been fenced and marked with address 164B Swinhoe Lane labeled as “Ratan Sarkar Smriti Sarobar”. 5 WPA 5610 of 2025 6. Having heard the learned advocates appearing for the respective parties I find that the property in question was taken over under Section 17A of the said Act. It is not in dispute that on a challenge being made by the petitioners before this Hon‟ble Court in WPA 11545 of 2021, the co-ordinate Bench of this Court had clearly returned a finding that no portion of the property can be utilized either by the petitioners or by the KMC for any other purpose apart from fishing activity. It is not in dispute that an appeal filed from the aforesaid order did not succeed on the ground that a factual finding returned by the competent authority cannot be interfered with by the writ Court. Since then the petitioners had preferred an appeal. The appellate authority though did not interfere with the order of taking over management under Section 17A(4) of the said Act, has returned a factual finding that the water body with the adjoining piece of garden land had been fenced and marked as 164B Swinhoe Lane which has been labeled as „Ratan Sarkar Smriti Sarabar‟, I find that the learned advocate for the Corporation has not been able to make any submissions as to why the adjoining piece of land has been taken over and how and under what circumstances a property belonging to the petitioners could be labeled as „Ratan Sarkar Smriti Sarabar‟ though, on the basis of the submissions of Mr. Ghosh, learned senior advocate, Ratan Sarkar is not associated with the petitioners. 7. Be that as it may, the power of the municipal authority to take over management under Section 17A is in relation to water body, and is 6 WPA 5610 of 2025 not in relation to any land. The municipality has no power or authority to take over the management of land adjoining the water body or to beautify the same as a tank or garden. The co-ordinate of this Court in its order dated 18th January, 2022 had duly clarified the above. The Division Bench of this Court by an order dated on 16th June, 2022 had affirmed such order. 8. Having regard thereto, I am of the view that the municipal authorities cannot in the guise of taking over management of a water body take over possession of an adjoining land, and retain possession thereof by beautifying the same. Though at this stage, the municipal authority would submit that the petitioners had failed to establish ownership and such ownership can be established only before the Civil Court, I find that it is the petitioners who has challenged the order passed by the municipal authorities under Section 17A of the said Act. None apart from the petitioners had challenged such order. 9. The municipal authorities had never raised the question of title of petitioners at the initial stage before this Court when the order under Section 17A of the said Act was challenged. Accordingly, the municipal authorities are estopped from questioning the title of the petitioners to the same, the municipal authorities cannot have the better title than the petitioners by virtue of Section 17A of the said Act. Accordingly, the writ petition succeeds in part. The municipal authority is directed to make over the demarcated portion of the land at premises No. 164B Swinhoe Lane unto and in favour of the petitioners upon obtaining an 7 WPA 5610 of 2025 indemnity from the petitioners within a period of four weeks from the date of communication of this order. 10. With the above observations and directions the writ petition is disposed of. Urgent Photostat certified copy of this order, if applied for be given to the parties upon compliance with the requisite formalities. (Raja Basu Chowdhury, J.) sb/sayandeep A.R. (Court)