JUDGMENT The judgment of the Court was as follows :–– The defendant-respondent was a tenant in respect of Plot No. 14, Interest No. 970, Mouza Konnagar, P.S. Ghatal. According to the plaintiff-appellant, in 1960 the Executive Engineer, Irrigation Department, West Midanapore Division had detected that the defendant had erected a structure on the said land. The said structure had been erected between the fore-shore of the river Silabati and the right bank embankment of the said river and within Chetua Circuit. According to the appellant the said structure had been constructed within the limits of the tract included in a prohibitory notification under Section 6 of the Bengal Embankment Act, 1882, being B.G. Notification No. 79 of 11th March, 1901. The defendant was prosecuted under Section 79(b) of the Bengal Embankment Act, 1882 but he was acquitted by the Criminal Court. Thereafter, the State of West Bengal instituted the present suit for declaration that the land was within the prohibited area under Act II of 1882 for recovery of possession and for mandatory injunction for removal of the structure erected by the defendant allegedly obstructing the flow of the river, Silabati. The defendant contested the said suit by filing a written statement. 2. The learned Munsif, Additional Court, Ghatal decreed the said suit in part. He ordered that the plaintiff would be entitled to remove the suit structure and he directed the defendant to remove the said structure and to restore the suit land to its original position within two months failing which the plaintiff would be entitled to apply for execution of the decree. The defendant being aggrieved, preferred an appeal. The learned Subordinate Judge, Midnapore allowed the said appeal, set aside the judgment and decree of the learned Munsif and dismissed the suit. The appellant thereafter preferred the second appeal to this Court. 3. I hold that the suit brought by the plaintiff-State was not maintainable in law, although I do not necessarily agree with all the reasonings given by the learned Subordinate Judge, Midnapore for allowing the appeal and reversing the decision of the learned Munsif. The defendant-respondent was admittedly a non-agricultural tenant in respect of the suit property. 3. I hold that the suit brought by the plaintiff-State was not maintainable in law, although I do not necessarily agree with all the reasonings given by the learned Subordinate Judge, Midnapore for allowing the appeal and reversing the decision of the learned Munsif. The defendant-respondent was admittedly a non-agricultural tenant in respect of the suit property. Even assuming that the defendant had any statutory obligation under the Bengal Embankment Act, 1882, not to erect the structure in question and such obligation was enforceable by institution of a suit in Civil Court, the State of West Bengal cannot in any event pray for declaration of its title and for recovery of possession. The non-agricultural tenancy in question was not terminated and the State had no right to recover possession even according to the learned Munsif who passed a decree for mandatory injunction in favour of the plaintiff-State. Section 19 of the Bengal Embankment Act, 1882 provides that whenever the Collector be of opinion that the removal of any trees, houses, huts or other buildings, situated between a public embankment and the river, is necessary he should submit a report to that effect to the State Government in order that the proceedings may be taken for obtaining possession of such trees, houses, huts and buildings or land in accordance with the provisions of the Land Acquisition Act, 1894 or other Law for the time being in force for the acquisition of land for public purposes. In the instant case, the State Government or its Officers including the Executive Engineer, Midnapore Western Division, did not take recourse to the provisions of Section 19. 4. Section 6 of the Bengal Embankment Act, 1882 empowers the State Government to declare by Notification in the official gazette the limits of any tract within which the provisions of Clause (b) of Section 76 shall take effect. Section 76 (b) provides for penalty for unauthorized interference with the embankment or drainage in prohibited tract. Thus, after publication of a prohibitory notification anybody making any erection or causing or wilfully permitting any erection to be made within the limits of the prohibited tract would be liable, on conviction, to a fine not exceeding Rs. 500/- or in default of payment to imprisonment of either description for a period not exceeding six months. Thus, after publication of a prohibitory notification anybody making any erection or causing or wilfully permitting any erection to be made within the limits of the prohibited tract would be liable, on conviction, to a fine not exceeding Rs. 500/- or in default of payment to imprisonment of either description for a period not exceeding six months. Thus, even assuming a statutory obligation is created by reason of publication of a notification under Section 6 of the Bengal Embankment Act, 1882, Section 76 (b) provides 2l remedy for enforcement of such obligation. Section 79 of the Act empowers the Magistrate to order for removal of the embankment or obstruction, or repair the damage, in respect of which conviction is held within a period to be fixed in such order. Section 79 further provides that if such person neglects or refuses to obey such order within the fixed period the Engineer may remove such embankment or obstruction or repair such damage, and the cost of such removal or repair shall be levied from such person in addition to any other penalty in the manner provided in Sections 386, 387 and 389 of the Criminal Procedure Code, 1898. 5. Where in a statute creating a duty, no special remedy is prescribed for compelling performance of the said duty or punishing its neglect, the courts will, as a general rule, presume that the appropriate common law remedy is intended to apply. But, where the statute creating the duty also provides a special remedy for its enforcement, the common law remedies may be available cumulatively or alternatively to the special remedy contained in the statute. The scope and language of the statute and considerations of policy and convenience should be considered for deciding whether the Act intended the special remedy to be exclusive. (See Craies on Statute Law, 6th Edition, Chapter 4, Page 130). 6. Section 76(b) confers power upon the State to prosecute a person who makes unauthorized interference with an embankment included in a Notification under Section 6. In the instant case, the said power had been already once exercised against the defendant and he was acquitted ay the Criminal Court. After the said power has been once exercised, I find no provision in the Bengal Embankment Act, 1882 authorizing the State Government to approach the Civil Court in substance for the same remedy against the defendant. In the instant case, the said power had been already once exercised against the defendant and he was acquitted ay the Criminal Court. After the said power has been once exercised, I find no provision in the Bengal Embankment Act, 1882 authorizing the State Government to approach the Civil Court in substance for the same remedy against the defendant. The Magistrate having acquitted the defendant of an alleged offence under Section 76 (b), the Stale can no longer contend that the defendant had contravened Section 76 (b) of the Act. For this reason alone the present prayer made in the Civil Court for demolition of the structure erected by the defendant cannot be sustained. 7. The above finding is sufficient for dismissal of this Second Appeal. But since the Lower Appellate Court had dealt with the scope and effect of Section 6 read with Section 80 of the Bengal Embankment Act, 1882. I propose to briefly consider the said point. The first part of Section 6 prescribes the manner in which a prohibitory declaration may be made, i.e., by publication of a notification in the official gazette. Section 6 further clearly enacts that such a prohibitory notification would take effect one month after the publication of such notification. Publication of the said notification in the mode prescribed by Section 80 has been held to be only directory and not mandatory. In this connection reference may be made to the Division Bench decisions in (1) Lakhmi Kanta Hazra v. Emperor, ILR 46 Calcutta 825 : 23 CWN 572 and (2) Superintendent and Remembrancer of Legal Affairs, Bengal v. Harakali Biswas and others, 35 CWN 163. These decisions by down that the provisions of the latter part of Section 6 and Section 80 are merely directory. The contrary decision in (3) Gobordhone v. Queen Empress, ILR 11 Calcutta 570, which was over-ruled in another point in (4) Ajodhya Nath v. Raj Krista, ILR 30 Calcutta 481 has not been subsequently followed by this Court. 8 The Lower Appellate Court has also found that the Executive Engineer Irrigation Department and not the Collector having signed the Vakalatnama and the plaint of the suit, the suit was not maintainable. There is no evidence that the Executive Engineer by any general or special order have been unauthorized to sign the plaint or to verify the same. 8 The Lower Appellate Court has also found that the Executive Engineer Irrigation Department and not the Collector having signed the Vakalatnama and the plaint of the suit, the suit was not maintainable. There is no evidence that the Executive Engineer by any general or special order have been unauthorized to sign the plaint or to verify the same. In this case Order 27, Rule I of the Code of Civil Procedure was not complied with. But, at the same time because of such defects a suit cannot be straight-away dismissed. In any view of the matter, the plaintiff might have given an opportunity to rectify these defects which were of formal nature and did not affect the merits of the case. However, as the Second Appeal is bound to fail on the ground that the present suit is not maintainable, this point need not be further pursued. 9. I, accordingly dismiss the said appeal. There will be no order as to costs.