1. This case raises an important question of principle, namely, whether the Commissioners for the Port of Calcutta cannot be restrained by injunction by a civil Court from proceeding with a certain criminal prosecution instituted by them against the respondents under Section 84, Calcutta Port Act (Act 3 of 1890 B.C.) for contravention by the respondents of the provisions of Section 83 of the said Act.
2. The facts, shortly stated, are as follows : The plaintiffs who are the respondents before us are the lessees of certain lands on the west side of the river Hooghly near Ghuseri. They started construction of a jute mill on a portion of the sairl lands and it appears that during the construction of the mill they put up am earthen bund on the bank of the river nearest to their land to facilitate the landing of building materials intended for constructing the said mill. On or about 11th May 1927, the Port Commissioners wrote a letter to the plaintiffs enclosing a coloured plan depicting the bund which they stated to be an encroachment on the high-water mark of the river and directing its removal within a month, failing which action was to be taken under Sections 83 and 84, Calcutta Port Act. The plaintiffs took no notice of this letter till 20th June and then started a correspondence into the details of which it is unnecessary to enter. On 16th August 1927, the Port Commissioners instituted a complaint against the plaintiffs before the Chief Presidency Magistrate of Calcutta, he being the authority before whom complaints relating to offences committed within the limits of the port of Calcutta could be brought. On 18th August 1927 the present suit, out of which this appeal has arisen, was instituted by the plaintiffs in the Court of the Subordinate Judge of Howrah praying inter alia that it might be declared that the bund in question was erected on the plaintiffs' lands and it was not an encroachment on the high-water mark of the river Hooghly and that the Port Commissioners might be permanently restrained from interfering in any manner with the plaintiffs' possession of the said bund and from taking any steps whatsoever in any criminal Court in respect of the said alleged encroachment. In their written statement which was filed on or about 20th September 1927, the Port Commissioners stated that the bund in question had been erected on the foreshore of the river below the high-water mark, the bund going in time of flow under the high-water mark, that the land on which the said bund had been erected formed part of the foreshore of the river and that it was really an attempt on the part of the plaintiffs to carve out for their own purposes a portion of the foreshore. The Port Commissioners contended that in the circumstances they were entitled to have the bund removed and to institute proper proceedings in a proper Court, to wit, the Court of the Chief Presidency Magistrate of Calcutta, against the plaintiffs and that no injunction could be issued under the law for restraining them in manner referred to in the plaint. On 2nd November 1927 the plaintiffs applied before the Subordinate Judge of Howrah for a temporary injunction against the Port Commissioners in terms of the prayer in the plaint. They alleged that there was a bona fide dispute between the parties as to the location of the high-water mark of the river Hughly and that in the event of the Port Commissioners being allowed to remove the said bund before the determination of the suit, they would suffer irreparable loss and damage. The Port Commissioners, in opposing the said application, pointed out that the plaintiffs had applied, after the institution of the said criminal proceedings, to this Court in its criminal revisional jurisdiction for stay thereof and that such application had been refused by this Court. They further pointed out that if the proceedings in the criminal Court were not proceeded with and the bund removed, there would be danger to navigation with the further result that the confined area would be lost to the river by gradual siltation of the encroached part to their at detriment of river navigation and that such loss would cause considerable inconvenience and irreparable injury to them as also to the public. It was also pointed out that the Calcutta Port Act with a view to preventing such encroachments leading to siltation and interference with navigation had provided a summary procedure under Section 84, Calcutta Port Act, and that the civil Court could not and should not interfere with the said criminal proceedings. Lastly they contended that the balance of convenience was in their favour and against the plaintiffs.
3. The learned Subordinate Judge held that there was a substantial question to be investigated and that until the matter was finally disposed of everything should remain in status quo. Accordingly he granted a temporary injunction against the Port Commissioners as prayed for by the plaintiffs restraining the former from proceeding with the said criminal proceedings.
4. In our opinion the order of the learned Subordinate Judge is an extraordinary one and ought never to have been made in the circumstances of this case. The plaintiffs' action in instituting the present suit two days after the institution of the complaint in the Chief Presidency Magistrate's Court was a manifest device on their part to evade the provisions of the Calcutta Port Act. Now, under Section 56, Sub-section (e), Specific Relief Act, a civil Court has no jurisdiction to stay by means of a permanent injunction proceedings in any criminal matter and it is settled law that where the legislature has indicated a mode of procedure before a Magistrate, a civil Court will not interfere unless in very special circumstances by way of injunction or declaration of right : see in this connexion Corporation of Calcutta v. Bijoy Kumar Addy : AIR1924Cal334 . If these be the principles relating to the issue of permanent injunctions, it follows as a necessary corollary that there is no warrant for the issue of a temporary injunction against the Port Commissioners in this case. The learned Subordinate Judge states that the expression 'high-water mark' has not been defined in the Calcutta Port Act and that the balance of convenience was on the side of the plaintiffs. Now, on an application for an interlocutory injunction the Court has got to be satisfied that the plaintiff has made out a prima facie case that he is entitled to relief. It appears to us on the materials placed before us that there ought not to be any difficulty in the determination of the high-water mark of J the river Hughly. The learned Subordinate Judge refers to the notification issued under the Indian Ports Act, 1875, defining the high-water mark of the river Hughly and seems to throw doubt on the question whether that definition is operative at the present day. Now, under Section 83, Caloutta Port Act it is not lawful for any person save the Port Commissioners to make, erect or fix below high-water mark within the port any wharf, quay, stage, jetty, pier, erection or mooring, unless the assent of the Local Government is first obtained. The limits of the Port of Calcutta, as is well known, were defined by notification under the Indian Ports Act (Act 12 of 1875) under date the 18th August 1879. Thereafter, on the 13th August 1889, a further notification was issued under the same Act defining the high-water mark of the river Hugbli. The said notification was as follows:
The 13th August 1880.... In continuation of the notification of the 18th August 1879 defining the limits of the Port of Calcutta which was published as p. 841 of the Calcutta Gazette of the 20th August 1879, the Lieutenant-Governor is pleased, with the sanction of the Government of India, to declare in accordance with the provisions of Sections 5 and 6, Indian Ports Act 12 of 1875, that high-water mark shall extend to 1509 feet above the sill of the Kidderpore Dock, that being the highest point reached by ordinary spring tides in any season of the year.
On the Howrah side of the river this boundary has been defined and marked off by stone blocks fixed level with the river bank to mark the exact position of the 1509 feet water line between the Port Commissioners' land at Sibpur on the south and the southern boundary of the East Indian Railway Company's premises on the north as shown on a plan submitted by the Commissioners.
5. It is true that Act 12 of 1875 was repealed by the Indian Ports Act of 1889, (Act 10 of 1889), but by virtue of Section 2 of the last-mentioned Act the notifications referred to above were deemed to have been made and issued under the last mentioned Act and were therefore, continued. Act 10 of 1889, was repealed by Act 15 of 1908. Though there is nothing said in Act 15 of 1908 about the continuance of the notifications issued under the earlier Acts, it is to be remembered that meanwhile the General Clauses Act (Act 10 of 1897) had come into operation. Now, what was the effect thereof? Under Section 24, General Clauses Act it is provided that
where any Act of the Governor-General in Council or regulation is after the commencement of this Act repealed and re-enacted with or without modification, then unless it is otherwise expressly provided any appointment, notification, order, scheme, rule, form or by-law made or issued 'under the repealed Act or regulation, shall so far as it is not inconsistent with provisions re-enacted continue in force and be deemed to have been issued under the provisions so re-enacted unless and until it is superseded by any appointment, notification, order, scheme, rule, form or by-law made or issued under the provisions so re-enacted.
6. In view of the above, there would seem to be no justification for the learned Subordinate Judge's doubts as to the existence of a recognized definition of the high-water mark of the river Hughli at the present moment. No doubt it will have to be determined in the suit itself whether the contention of the Port Commissioners, viz., that the bund in question is below the high-water mark is correct or not, but it is reasonably clear that if the Commissioners are right and if by reason of the erection of the said bund there is obstruction to public navigation, resulting in the loss of lives of passengers in vessels and also property, no amount of pecuniary compensation would be sufficient or adequate to meet such loss and that the balance of convenience is, on an interlocutory application such as was brought on before the Subordinate Judge, against the plaintiffs and in favour of the Commissioners. To restrain the Port Commissioners in manner indicated above in a matter like this is a very serious thing and in our opinion the learned Subordinate Judge would have been well advised if he had refused the plaintiffs' application and directed an early hearing of the suit.
7. The result, therefore, is that this appeal is allowed and the connected Rule is also made absolute with costs, the hearing fee being assessed at five gold mohurs in each case. The appellants will be entitled to the costs in the lower Court and to the costs of the preparation of the paper-book in this appeal.