IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION

APPELLATE SIDE

The Hon’ble Mr. Justice Bivas Pattanayak

W.P.A. 10868 of 2023

(Assigned)

Sri Palas Das

Vs

The Serampore Municipality & Ors.

With

W.P.A 29103 of 2023

(Assigned)

Prasanta Pandit & Ors.

Vs

State of West Bengal & Ors.

For the petitioner : Mr. Tanmoy Mukherjee

In WPA 10868 of 2023 Mr. Souvik Das

Mr. Rudranil Das

Mr. K.R Ahmed

Mr.Tapash Chatterjee

Mr.Soumava Santra

For the petitioner

In WPA 29103 of 2023 : Mr. Syamal Kumar Das

Mr. P. K. Banerjee

Ms. Indrani Nandi,

Ms, Krishna Yadav

Ms. Bushra Neshar

P.K Biswas

For the State

(WPA 10868 of 2023) : Mr. Biswajit Dutta

For Seramopore Municipality : Mr. Gautam Lahiri

For the respondents nos.7 to 10 in : Mr. Sudeep Sanyal, Sr. Adv.

WPA 10868 of 2023 and respondent Mr. Jayanta Kumar Sanyal

nos.8 to 11 in WPA 29103 of 2023 Mr. Dibashis Basu

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Mrs. Tutun Das

Ms. Ketaki Ghosh

Mr. Akash Talukdar

Mr.C. Lahiri

Mr. A Naskar,

Mr. Chandrachur Lahiri

For the Union of India : Mr. Pinaki Ranjan Chakraborty

Mr. Ganga Prasad Mukherjee

Heard on : 31.07.2024, 25.09.2024,

07.11.2024, 20.11.2024,

02.12.2024, 16.12.2024,

10.01.2025, 23.04.2025,

05.05.2025, 13.05.2025,

21.05.2025, 02.07.2025,

Reserved On : 02.07.2025

Judgment on : 20.05.2026

Bivas Pattanayak, J.:-

1. In the writ petition being WPA 10868 of 2023 (in short WP-I) the petitioner

seeks as follows.

(i) Direction upon the respondent municipal authorities to take

immediate and proper steps as per provisions of section 218 of the West

Bengal Municipal Act, 1993 (hereinafter referred to as the „Municipal Act‟)

thereby issuing ‘Stop Work‟ notice as well as to take further steps for

demolition of the illegal and unauthorised construction carried on by the

private respondents herein;

(ii) Direction upon the respondent municipal authorities to take

immediate and proper steps as per provisions of section 21 7 of the

Municipal Act, for the purpose of cancellation of the sanctioned building

plan issued by the municipal authorities in favour of the private

respondents.

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2. In writ petition WP-I it is contended by the petitioner that he is a

neighbouring resident to the municipal premises No. 12, Ray M.C Lahiri

Bahadur Street, Hooghly, PIN-712204 corresponding to L.R Dag no. 8626 &

8627 under R.S Khatian Nos. 1501 & 1502, L.R Dag no. 8492 & 8493 under

R.S Khatian Nos. 1618/4, 725/9 and 3955 within Mouza -Chatra

(hereinafter referred to as the „subject property‟) wherein the private

respondents by engaging one promoter under the name and style of M/s

Balaji Construction have started illegal and unauthorised construction of the

multi-storied building. The alleged construction has been undertaken

without leaving the mandatory open space as required under the West

Bengal Municipal (Building) Rules 2007. The boundary particulars shown in

the plan or incorrect and illusory. Despite the municipal authorities been

informed, they are reluctant to take appropriate steps against such illegal

construction. Being aggrieved by such inaction on the part of municipal

authorities for petitioner has preferred the writ petition seeking for

appropriate reliefs as mentioned hereinabove.

3. The private respondent nos. 7 to 10 in writ petition WP-I filed their affidavit-

in-opposition contending, inter alia, as follows.

(i) That the petitioners have not disclosed that a civil suit is

pending in the Court of learned Civil Judge (Junior Division),

2

nd

Court, Serampore, Hooghly involving the subject property,

wherein an order of injunction has already been passed by the

learned Civil Judge and date has been fixed for hearing of the

injunction application. The writ petition is not maintainable as a

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civil suit is pending relating to the subject property and

alternative remedy is already available to the petitioner.

(ii) That assessment of the subject property and the work of

construction has been undertaken as per the sanctioned

building plan issued by the respondent no.1 -municipal

authorities.

(iii) As per the report submitted by the respondent authority before

the Hon’ble Court, it will be evident that there is no deviation

made encroaching into the side/portion of the petitioners’ area

rather the space left is more than the allowed space mentioned

in these sanctioned building plan.

4. The petitioner in WP-I filed his affidavit-in-reply contending that the civil

suit has been initiated at the behest of the private respondents asserting

that they being the promoter have the right to make construction over the

subject property in terms of the sanctioned building plan obtained from the

municipality and prayer was made seeking injunction against the

defendants for restraining them from creating any disturbance in the work

of construction. In the said suit the petitioner is not at all impleaded as a

party and therefore the suit filed by the private respondents cannot create

any legal bar whatsoever in respect of maintainability of the writ petition.

Further considering the height of the building neither the space as per law

in the four sides of the construction has been left nor construction has

been undertaken in terms of the sanctioned building plan. Though the

private respondents have annexed a receipt in their affidavit-in-opposition

5

showing deposit of Rs.10,000/-towards development fee for additional

construction however there is no such law by which the municipality can

allow a person responsible to carry out additional construction apart from

the sanctioned building plan upon deposit of such fee.

5. In the writ petition being WPA 29103 of 2023 (in short WP-II) petitioners

similarly prayed for demolition of the unauthorised construction,

cancellation of the sanctioned building plan and for enquiry into the matter

of illegal construction undertaken by private respondents without leaving

requisite space on the front and the back side, upon consideration of the

objection/representation made by the petitioners dated 20

th

September

2023.

6. In writ petition WP-II the petitioners contend that the petitioner no.1

purchased a part of the property measuring 0.012 acre comprised within

premises no.13, Ray M.C Lahiri Bahadur Street, Hooghly and the

petitioners are residing in the said property permanently without any

interruption from any corner whatsoever. The private respondents who are

the promoters under the name and style of M/s Balaji Construction are

raising illegal and unauthorised construction of G+4 multi-storied building

on the subject land without leaving requisite side space as required under

the rules. The petitioners are the adjoining landowners to the subject

property. The petitioners made several representations before the

municipal authorities, however, no steps have been taken. Hence this writ

petition.

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7. The private respondent nos.8 and 10 in writ petition WP-II, filed their

affidavit- in-opposition contending, inter alia, as follows.

(i) That the writ petitioners reside on the southern side of the

constructed building. In terms of sanctioned plan as well as

report of the licensed municipal surveyor it is shown that the

side space of the southern side i.e petitioners’ side is 4 feet.

However, in reality the side space is more than 11 feet. The

surveyor has not mentioned the actual measurement.

(ii) There is no statutory provision which obligates the petitioner to

construct by leaving any space between railway lines and his

own plot of land. The municipality which is the authority to

sanction building plan has considered this aspect prior to

sanctioning the building plan. It has also not been shown that

the Railway authority raised any objection against sanctioning

of building plan next to railway tracks although the Railway

authority are aware that a work of construction has been

undertaken by the answering respondents. Moreover, there is

no government notification prohibiting the municipality from

sanctioning building plans near railway tracks. There is existing

boundary built by the railways to demarcate their property from

the others. The railways, not being the owner of the property,

have no right to prevent the private respondents from

undertaking the work of construction. There is also no

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requirement in law for obtaining any „No Objection Certificate‟

from the railway authority in this regard.

(iii) The writ petitioners being defendants in the Title Suit being no.

667 of 2022 pending before the learned Civil Judge (Junior

Division), 2

nd

Court, Serampore, Hooghly, has not disclosed the

pendency of the said suit. The learned civil court has passed

order of injunction restraining the writ petitioners from

disturbing the work of construction undertaken by the

answering respondents and the order of injunction has been

made absolute. The petitioners have approached this Hon’ble

Court with unclean hands in order to harass the answering

respondents.

8. In their affidavit-in-reply, the petitioners contended that the private

respondents being the promoters in the locality are influential persons and

they are trying to grab the property of the petitioners. The promoters have

not left required space of 10 ft from the back side. Similarly in the front

side according to building plan 22 ft frontage/approach the road is

necessary whereas the passage is only 8 ft broad. The requisite space from

the south and north side has also not been left. There is a Shib Mandir

situated just southern side of the petitioners’ house however, the

petitioners house is not shown in the plan.

9. Mr. Tanmay Mukherjee, learned Advocate for the petitioner in writ petition

WP-I submitted that the petitioner is a next-door neighbour of the private

respondents. The writ petition has been filed on the ground that the

municipal authority failed to consider the written complaint of the

8

petitioner against illegal and unauthorized construction raised by the

private respondents over the subject property at municipal holding No.12,

Ray M.C. Lahiri, Bahadur Street, Serampore, Hooghly. The private

respondents has obtained sanction building plan upon suppression of

material facts and as such the same is required to be cancelled as per

provisions of Section 217 of the Municipal Act and the rules framed

thereunder. The alleged construction undertaken has largely deviated from

the sanction building plan and, therefore, proceeding should be initiated by

the municipal authority against the private respondents by invoking

section 218 of the Municipal Act and consequently issue order for

demolition of such unauthorised construction.

Pursuant to direction of this Hon’ble Court an inspection was carried out

in the subject property by the municipal authority upon notice to the

parties and a report dated 23

rd

November, 2023 is filed by the Municipal

Authority before this Hon’ble Court. As per the West Bengal Municipal

(Building) Rules, 2007 (hereinafter referred to as „Building Rules, 2007‟) it is

mandatory that when the height of the building is above 12.5 metres and

upto 15.5 metres, the front side and rear open spaces should be as follows.

The front open space should be 2 metres (equivalent to 6.5 feet at least).

The front open space on one side should be 1.5 metre. The front open

space of side two should be 2.5 metres and the rear open space should be

4 metres. However, from point no.4 of the inspection report it is

abundantly clear that the eastern direction of front open space of the

building has been mentioned 6 feet 7 inches upto a stretch of 22 feet but

thereafter the remaining front open space has been reduced to 6 feet 2

9

inches due to aerial encroachment and further reduced to 5 feet 0 inch for

the rest of the area. The rear open space of the construction as per

requirement ought to have been 4 meters (equivalent 13 feet at least).

However, from point no.5 of the inspection report it will be apparent that

the rear open space is 10 feet. Further the open space on the both side of

the building at the side one should be 1.5 metres (equivalent 4 feet 9

inches) and open side space on side two should be 2.5 metres (equivalent 8

feet 2 inches). However, point no. 6 & 7 of the inspection report shows that

the open space in side one is 4 feet and upon aerial encroachment made

above the ground floor the same has been reduced to 2 feet 10 inches from

first floor onwards. While on the southern direction of side two the open

space is 4 feet which is far less than the side rear open space prescribed

under Building Rules 2007. The alleged construction hence has been

undertaken without leaving requisite adequate open space on the four

sides of the construction without adhering to Rule 50 of the Building

Rules, 2007 which is apparent from the inspection report itself and thus,

such violation suggests a proceeding to be immediately drawn up under

Section 218 of the Municipal Act by the Board of Councillors of the

concerned Municipality.

Further, it would be evident from the answer given by the Central Public

Information Officer (under the Right to Information Act, 2005), being the

Director/land and Amenities, Railway Board, in respect of a query “what

is the statutory provisions as regards of keeping the mandatory open

spaces from Railway track and/or land under the Municipal area in the

State of West Bengal for construction of multi-storied building”, that as per

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Railway Boards letter no. 2015/LML-I/19/2 dated 25th June, 2015 as

well as paragraph no.827 of the Indian Railway Workmen Manual, there

is a procedure of obtaining „No Objection Certificate‟ for work of

construction/development of any property, particularly on the land

adjoining to the railway boundary within 30 metres.

Although the private respondents in their affidavit-in-opposition has

raised the issue of suppression of material facts is not disclosing the

pendency of the civil suit being Title Suit No.667 of the 2022 before Civil

Judge (Junior Division), at Serampore yet such ground is not sustainable

for the reason that the petitioner is not arraigned as a party in the civil

suit. That apart, from the affidavit-in-reply at page 25 it is palpable that

though initially an order of injunction was passed by the learned Civil

Judge at the first instance but the same has been vacated vide order no.

16 dated 31

st

January, 2024. Since the municipal authorities and the

petitioner is not a party to the suit, hence pendency of the suit cannot

debar municipal authority from taking action as per section 217 of the

Municipal Act.

Moreover, the private respondents in their affidavit-in-opposition annexed

one miscellaneous receipt at page 8 (Annexure-B) showing payment of

Rs.10,000/- on account of development fee for additional construction on

the subject property and tried to impress upon of this Hon’ble Court that

the Municipal Authority by virtue of an amended provision of Rule 50 of

the Building Rules, 2007 have regularized such unauthorized

construction. Such action to deposit fees for regularization of the alleged

construction is acknowledgement of the illegal construction. As per the

11

amended provision of Rule 50 of the Building Rules, 2007, Vice-Chairman

does not have the power to regularize any construction whatsoever. The

power of regularization has to be exercised by Board of Councillors upon

consideration of all objection raised by local inhabitants.

Relying on the decision of Hon’ble Supreme Court in Supertech Limited

versus Emerald Court Owner Resident Welfare Association and

Others reported in (2021) 10 SCC 1 , he submitted that from the

commencement till the completion of the work of cons truction, the

developers are required to Act within the framework of law. Th is

regulatory framework ensures that all status of construction including

allocation of land, sanction of plan for construction, regularization of

structural integrity under construction, obtaining clearance from different

departments, fire, mutation sewerage etc. and issuance of occupation and

completion certificates. Therefore, for making such construction it is

apparent that the municipal laws and other rules are to be adhered to.

Further a Coordinate bench of this Hon’ble Court in Syed Md. Aoun and

Ors versus Board of Wakf, West Bengal & Ors (Re: WPA 1631 of

2022) relying on the judgment of Hon’ble Supreme Court has held that

for complaining unauthorized construction the locus of the writ petition is

not important. Whenever information of unauthorized construction is

reported to the Municipality by any party particularly a tax payer of the

country, it has to take appropriate steps in accordance with law.

In light of his aforesaid submissions, he prayed for cancellation of the

sanctioned building plan issued by the municipal authorities and for

12

demolition of the illegal and unauthorised construction carried on by the

private respondents.

10. Mr. Shyamal Kumar Das, learned Advocate representing the petitioners

in writ petition WP-II, submitted that in terms of section 203 of the

Municipal Act and Rule 4 of the Building Rules 2007 it is mandatory

that before submission of building plan, approval of building site has to

be obtained from the Municipal authority. However, the Municipality at

the time of sanctioning building plan in respect of the alleged

construction did not adhere to such provisions. In the instant case the

private respondents did not obtain such approval and as such violated

the rules in submitting the building plan before the Municipal Authority.

Rule 49 of the Building Rules provide that the permissible height of the

building depends upon width of access i.e Frontage Road. In the instant

case the height of the building is 46 feet as per sanction plan, then the

means of access should be above 7 meters. However, the width of the

frontage road in the instant case is less than the required width and,

therefore, the sanction building plan is void ab initio. Further as per Rule

50 of the Building Rules, 2007 where the height of the building is 46

feet, the rear space of 4 meters and front open space of 2 meters is to be

maintained, which is lacking in the present case. As per paragraph 827

of the Railway Works Manual a „No Objection Certificate‟ for construction

of building is to be obtained. However, the private respondents did not

obtain such „No Objection Certificate‟ from the authority concerned. The

private respondents also failed to obtain permission as per Rule 11(5) of

the Building Rules, 2007. The Municipality has acted illegally in

13

sanctioning the building plan in favour of private respondents No.8 in

violation of section 203 of Municipal Act as well as Rules 4, 49 and 50 of

the Building Rules 2007. He seeks for appropriate orders for cancellation

of the sanction building plan and for demolition of the alleged

construction.

11. Mr. Sudip Sanyal, learned Senior Advocate appearing for respondent

nos. 7 to 10 in writ petition WP-I and respondent nos. 8 to 11 in writ

petition WP-II, on the contrary, submitted in respect of WP-I that the

petitioner’s contention is that the provisions of Rule 50 of Building

Rules, 2007 have not been followed in undertaking such work of

construction. Such argument is not tenable in view of the non-obstante

clause in Note iii of Rule 50 which gives the actual mandatory open

space by providing that „Notwithstanding anything contained in Clause (a)

of Sub-rule 2, the minimum distance across the side open space from

every new building to an existing building with a door or window opening

shall be 1.80 metres. Rule 51 (2) provides a canopy or canopies and/or a

porch or porches each not exceeding 15 square metres in area or one

percent (1%) of the ground floor area whichever is higher, having a clear

width of not less than 2.5 metres may be allowed at a minimum clear

height of 2.5 metres from the ground level. The petitioners have ignored

such provisions while making complain primarily of such deviation.

There is no such illegality or deviation and the inspection report is in line

with Rule 51(2). Rule 50 is a two -way enactment containing both

mandatory as well as directory provisions. The same section may contain

14

both mandatory and directory provisions. In support of his contention,

he relied on the following portion of book and decisions.

(i) Francis Bennion on Statutory Interpretation, 5

th

Edition,

Page-55;

(ii) Dove Investments (P) Ltd versus Gujarat Industrial

Investment Corporation reported in (2006) 2 SCC 619;

(iii) Rajeev Puri versus Delhi Development Authority reported in

(2022) 11 SCC 1.

The petitioner complains of inadequate side space left from the building

where he resides (Thakurbari) and speaks of fraudulent depiction of

boundary without himself producing the real measurement and

boundary of the building which he says is adjacent and affected by the

construction. The fact is that the building adjacent to the construction of

the private respondents has no side space and is constructed right from

the boundary wall. The measurements made by the Municipality sho w

that more than 4 feet side space exists between the boundary wall and

the construction made by the private respondents in terms of Note iii of

Rule 50. Fees have been paid for regularization, pertaining chajja and

protrusions in terms of Rule 51(2) the Building Rules, 2007 and thus

have been substantially complied with. The petitioner has shown no

substantial prejudice to be entitled to the relief that he has sought. The

petitioner is not the owner of the adjacent building and cannot show its

boundary, yet he complains about fraudulent representation of

boundary. The petitioner has failed to demonstrate any personal right of

his been infringed for which he is aggrieved . In support of his

15

contention, he relied on the De Smith’s Judicial Review of

Administrative Action, 4

th

Edition, Page-142. The petitioner has not

come to court in clean hands and the photographs submitted bear the

testimony of such fact. It is settled proposition of law that one who seeks

equity must do equity. Therefore, the petitioner is not entitled to any

relief. To buttress his contention, he relied on the following.

(i) V. Chandrasekaran & Another versus Administartive

Officer & Ors reported in (2012) 12 SCC 133;

(ii) Snell’s Equity, 34

th

Edition;

(iii) Rajeev Puri (supra).

The petitioner has no locus standi to make such complain. Reliance is

placed on Satyanarayan Sinha versus S.Lal and Co . (P) Ltd reported in

(1973) 2 SCC 696. The judgment of this court sought to be relied in respect

of locus standi in Syed Md. (supra) does not apply to this case in view of the

fact that the petitioner has failed to show as to how he has suffered

substantial prejudice. The petitioner has failed to demonstrate that the

building has been constructed illegally and unauthorisedly for the simple

reason that the spot enquiry shows that the building has been constructed

according to sanction plan. When the authority sanctioned the plan and the

building is constructed in accordance to sanction plan, it cannot be said to

an unauthorized construction.

The argument advanced on behalf of the petitioner that the Vice-Chairman

cannot regularize the deviation and it is upto the Board of Councillors to

decide of such aspect. Such argument is based on the fee deposited for

16

allowing minor deviation. However, from the fee slip it is clear that no

decision has been taken by the Municipality as yet. Terming minor deviation

as illegal is incorrect. Rule 31 (2) gives right to developers/builder to apply

for regularization of the deviation before completion of construction. The fee

deposited by the private respondents is in accordance with the existing

rules. Further under amended Rule 32 (2) such power is further reinforced.

Irregularities may also be cured under statutory powers of modification. In

support of his contention, he relied on Administrative Law, 6

th

Edition,

H.W.R Wade, Page-253.

A per Rule 46 the builder is entitled to cover 65 % of the ground area,

which in the present case has been covered upto 60% which is apparent

from the sanctioned plan. Fact remains that a statutory author ity has

sanctioned a building plan. No fraud has been demonstrated in obtaining

the plan. The Municipality has not found any deviation. It is the plan

sanctioning authority that has the expertise to decide as to whether a plan

is to be sanctioned or not. The Hon’ble court is not equipped with such

experience or expertise and it does not sit in appeal over the decision of the

Municipality.

12. In respect of writ petition WP-II, Mr Sanyal, learned Senior advocate for

private respondents No. 8 to 11, in reply, submitted that the petitioners claim

to be persons of neighbourhood where private respondents have illegally

undertaken alleged work of construction. The private respondents with the

assertion that some people of the neighbourhood were preventing them from

carrying out the work of construction on the subject property, filed a civil suit

17

being Title Suit No. 667 of 2022 before the Civil Judge (Junior Division),

Serampore in which the writ petitioners are also defendants and upon

hearing on 23

rd

December, 2022 an ad interim order of injunction was passed

by the learned Civil Judge restraining the defendants from the creating

disturbance in the work of construction and such order of injunction has

been made absolute on 31

st

August, 2024. The petitioners did not file any

affidavit-in-reply to affidavit-in-opposition of the private respondents and,

therefore, the contention of the affidavit-in-opposition is deemed to be

admitted by the petitioner following the principle of non-traverse.

The present writ petition is a backlash of the civil suit by the private

respondents against the petitioners wherein order of injunction was passed

by the learned Civil Judge restraining the defendants from the creating

disturbance in the work of construction. Not having been succee ded in

stopping the construction by restoring to muscle power, the writ petition has

been filed by the petitioners seeking refuge before the writ court on

ostensible grounds of violation of building rules.

As per the spot enquiry report there is no violation since the gap in the rear

side is above 10 feet and also more than 4 feet from the residence of the

petitioner. It is argued that on a Municipal Road having a width of 20 feet

road, a building with such a height ought not to have been sanctioned.

There is no substantial prejudice caused to the petitioners been shown or

they have suffered due to the height of the building. The Municipality while

sanctioning the plan took care to see the structural safety of the building.

There is no harm caused to anyone owing to the elevation which has been

18

sanctioned by the Municipal Authority. Thus, there is substantial

compliance of the Rules. The chajja and cornices of the building are well

within the land developed and does not abut the street in any way. The

chajja and cornices are as per provisions of Rule 51(2). As such there is no

further deviation. Further the entrance to the building in no way prejudices

the petitioners because they do not reside in the building.

The Railway Authorities pursuant to the order of this Court filed a report

wherein an order of the concerned officer is enclosed directing private

respondents to stop work though no such direction was given by the Hon’ble

Court. Thus, the order of stop work was illegal and arbitrary as because the

Railway Manual is not at all a statute and was no law to be obeyed. An

examination of paragraph 827 of the Railway Manual clearly shows that it

has no statutory force. It is a manual for the guidance of the Railway

personnel where aims and objects are adumbrate d. By no stretch of

imagination, it could be termed as law and therefore has no binding effect

on any third party. In support of his contention he relied on the decision of

Hon’ble Supreme Court passed in Chief Commercial Manager, South

Central Railways Secunderabad & Others versus G.Ratnam & Ors

reported in (2007) 8 SCC 212. None of the provisions of the Railway Manual

have been incorporated in the Municipal Building Rules and there is no

scrap of paper to show of any consultation with the State Government or the

Municipal bodies for incorporating these provisions. Therefore, the plea that

the Municipality illegally sanctioned plan without adhering Railway Manual

is baseless. Schedule 7, List II, Entry 5 of the Constitution of India provides

19

„Local Government, that is to say, the constitution and powers of municipal

corporations. As such the Railways cannot make laws with regard to

municipalities and municipal jurisdiction. Even the Parliament does not

have power to make laws with regard to the State list. T o buttress his

contention, he relied on the decision of Hon’ble Supreme Court passed in

Calcutta Gas Company (Proprietary) Ltd versus State of West Bengal

and Others reported in AIR 1962 SC 1044.

In light of his aforesaid submissions, he prayed for dismissal of both the writ

petitions.

13. Mr. Gautam Lahiri, learned Advocate representing Serampore Municipality -

respondent No.1 to 3, in respect of writ petition WP-I submitted that the work

of construction was started in the year 2018. The petitioner contending to be

a next-door neighbour of the alleged construction did not raise any objection

when the work of construction was undertaken and kept silence for a long

period. The petitioner intentionally in paragraph no.2 contended that such

illegal and unauthorized construction has come to his notice recently, which

is not at all acceptable since the construction has started few years ago. As

per the order of this Court inspection has been carried out and the

measurement of four side space of the building has been mentioned in

paragraph nos.3, 4, 5, 6 and 7 of the said report. The name of the owner of

the holding No.11 has been mentioned in the assessment record of the

Municipality as “Joy Guru Sri Sri Ashok Kr Mukhopadhyay Seva Kendra

Trust”. The petitioner has not raised any ground basing on the restriction of

Railway tracks. The statement in Exception at paragraph no.12 that the

20

building is just facing to the Railway tracks of the Eastern Railways and

therefore should obtain „No Objection Certificate‟ from the Railway, is an

afterthought matter. The letter under Memo No.2023/LML -1/RTI/30/14

MORLY/R/P/01202 dated 8

th

August, 2023 of Director/Land and Amenities,

Railway Board is addressed to one Debojyoti Ghosh (Annexure-C) at page-14

is not related to this case and as such cannot be considered by this Court.

The notification of the Government of West Bengal published in Kolkata

Gazette dated 28

th

July, 2023 permitted Board of Councillors of the Municipal

Authorities to order for regularization of minor unauthorized construction or

minor deviation from the sanction plan on payment fees/charges by the

person responsible.

14. Mr. Lahiri, learned advocate representing Serampore Municipality -

respondent nos. 2 to 4 in writ petitioner WP-II submitted that the there is

considerable delay in raising the issue since work of construction was started

in the year 2018, though the petitioners’ residence is at a short distance from

the alleged construction. The petitioner intentionally did not mention the

name of the owner of the said building. The writ petition is bad for mis-

joinder and non-joinder of necessary parties. The Municipal Act governed

under Schedule IX of the Constitution of India is purely a State Act and not a

Central Act. Section 16 of the Municipal Act provides that the Chairman is

the Head of the Municipality and all Municipal administration shall be under

his control. The restriction provision mentioned in paragraph 827 of the

Indian Railways Works Municipal (in short ‘IRWN’) has no overriding effect on

the Municipal Act. Further the letter issued by the Railway Authorities relate

21

to another person who has got no connection with the present case. The

construction of the building has been completed and during the period of

construction no complain. has been lodged by any authority.

15. Mr Pinaki Ranjan Chakraborty, learned advocate representing Union of

India submitted that as per paragraph 827 of the Railway Works Manual

there has to be an open space of 30 metres from the railway boundary. In the

present case the distance between the alleged building and railway track is

5/6 metres. The rules under the Railway Works Manual have been framed as

per section 2 and 3 of the Railways Board Act and such rules are binding.

Such documents and rules are available in the public domain and therefore

the private respondents cannot say that they were not notified. The Railway

Board Act being a Central Act operates unconditionally and State Act cannot

override Central Act. The rules of the Railways is mandatory and has to be

complied. Since this case relates to infrastructural issue, the court can

intervene.

16. Upon hearing the learned advocates for the respective parties, the question

which is to be determined at the very threshold is whether the issues raised

by the petitioners with regard to alleged illegal and unauthorized construction

over the subject property is maintainable before the court exercising writ

jurisdiction in the facts and circumstances of the case?

17. On bare reading of the contentions and allegations made in both the writ

petitions it is found that precisely the petitioners in the aforementioned writ

petitions have alleged of unauthorised and illegal constructions undertaken

by the private respondents without leaving requisite side space in violation of

22

the existing Municipal Act and Rules. The private respondents by engaging

one promoter under the name and style of M/s Balaji Construction have

started illegal and unauthorised construction of the multi-storied building.

18. Indisputably, the M/s Balaji Construction represented by its partners being

private respondents nos. 7 to 10 in writ petition in WP-I and respondent nos.

8 to 11 filed a civil suit being Title suit no. 667 of 2022 before the learned

Civil Judge (Junior Division), 2

nd

Court, Serampore, Hooghly against the

petitioners nos. 1, 3 and 6 and others. In the said suit the private

respondents categorically contended that the private respondents obtained

sanction building plan from Serampore Municipality for construction of

proposed multi-storied building over the subject property. On sanction of the

building plan the private respondents have demolished the existing old

dilapidated structure after shifting the owners of the subject property to a

rented accommodation. The defendants nos.1, 2, 3 and 4 are the permanent

residents surrounding the suit property of the plaintiffs, where plaintiffs nos.

1, 2 and 3 are residing and having their respective properties on the adjacent

southern side of the suit property of the plaintiffs as well as the defendant no.

4 having residential house on the adjacent northern side of the suit property

of the plaintiffs. After obtaining sanction plan the plaintiffs (private

respondents) have started to construct the project work namely G+ 4 multi-

storied building over the subject-property, living statutory space as per West

Bengal Building Rules and West Bengal Municipal Act. All of a sudden, the

defendants jointly protested the legal constructional work of the plaintiffs

over the subject property without any reason. Since March 2020 due to

23

Covid-19 pandemic the constructional work was stopped. Thereafter, when

the plaintiffs-promoter developer started legal constructional work over the

subject-property defendant no.4 filed a suit against the plaintiffs-promoter

but subsequently did not turn up. The de fendants forcibly and illegally

obstructed the constructional work of the plaintiffs and disturbed the

peaceful possession of the plaintiffs over the subject property. On the basis of

the aforesaid facts the plaintiffs (private respondents herein) prayed for

following reliefs:- (a) A Decree declaring that the plaintiffs is the authorized

promoter developer and having full of right, title and interest to construct

G+4 multi-stored building over the suit property of the proforma defendant

no. 5 & 6; (b) An order of Permanent injunction by restraining the all

defendants along with their men & agents not to disturb the peaceful

possession of the plaintiffs/promoter-developer over the suit property and not

to obstruct the plaintiffs along with their men & agents for construction of

G+4 multi-stored building over the suit property; (c) All cost of the suit; (d)

Any other relief or reliefs as the plaintiffs is entitled to. In the said suit the

plaintiffs (private respondents herein) filed an application seeking for

temporary/ad interim injunction. It is not in dispute that upon hearing the

plaintiffs (private respondents herein) the learned Civil Judge on 23rd

December 2022, passed an ad interim order of injunction restraining the

defendants restraining the defendants, some are writ petitioners herein in

writ petition WP-II, from disturbing the construction of the plaintiffs (private

respondents). Upon bare reading of the contentions made in the plaint as

aforementioned it is manifest that the issue pertaining to rig ht of the

24

plaintiffs (private respondents) to make construction over the subject property

and the related disputes are pending before the jurisdictional Civil Court.

19. In both the writ petitions the petitioners have stated in their affidavit-in-

reply that such order of injunction was ultimately vacated. It is a fact that the

order of ad interim injunction dated 23

rd

December, 2022 passed by the

learned Civil Judge was vacated on 31

st

January, 2024. Be that as it may, in

their affidavit-in-opposition the private respondents nos. 8 to 10 in writ

petition WP-II have annexed a subsequent order being no. 20 dated 31

st

August 2024 passed by the learned Civil Judge in Title Suit No. 667 of 2022.

It appears from the said order of the learned Civil Judge that on an

application of the plaintiffs (private respondents) dated 5

th

March 2024,

praying for restoration of the ad interim order passed on 23

rd

December 2022,

the learned Civil Judge restored the same. Further, the application for

temporary injunction was heard on the said date and upon considering the

submission on behalf of the plaintiffs and the defendants as well as the

documents filed by the respective parties including the development

agreement, power of attorney, two san ction building plan issued by

Serampore Municipality pursuant to Board meeting dated 31

st

August 2018,

and sanction dated 5

th

October 2015, the learned Civil Judge observed and

ordered as follows.

“Perused. Considered. It appears that there lies a prima

facie dispute in respect to the alleged illegal construction.

However, the plaintiffs have successfully established

their right, title and interest over the suit property by

producing cogent documents, whereas the defendants

have failed to file any single cogent document in respect

25

to the alleged illegal construction. This Court is of the view

that plaintiffs are likely to suffer irreparable loss and

injury if their constructional work over the suit property is

stopped on mere allegation. Further, balance of

convenience and inconvenience also lies in favour of the

plaintiffs. Hence it is.

Ordered

That the injunction petition u/or.39 r.1 & 2 r/w Sec. 151

CPC filed by the plaintiffs is hereby considered and

allowed and the ad-interim order being no. 02 dated

23.12.2022 is hereby made absolute till the disposal of

the suit.

Fix 27.09.2024 for payment of costs of Rs. 1000/- to be

paid to the SDLSC by the plaintiffs and framing of issue.”

Thus, the argument advanced on behalf of the petitioners in both the

writ petitions that the ad interim order of injunction was ultimately

vacated by the learned Civil Judge does not hold water. Rather, on

perusal of the aforesaid order, it is found that the learned Civil Judge

upon due consideration of the arguments of the plaintiffs and the

defendant and the considering the documents submitted by the parties

including development agreement and two sanction building plans

furnished by the plaintiffs (private respondents), has been pleased to

make the ad interim order of injunction dated 23

rd

December 2022

absolute till the disposal of the suit.

20. The petitioner in WP-I in his affidavit-in-reply has contended that since

the writ petitioner is not arraigned as a party in the civil suit, hence the

suit being initiated at the behest of private respondents cannot create

26

any legal bar whatsoever in respect of maintainability of the present writ

petitioner. Be that as it may, the petitioner in WP-I in his affidavit-in-

reply has annexed the copy the plaint, temporary injunction application

and certain orders passed in the suit. Therefore, it can well be presumed

that the petitioner in WP-I has the knowledge of the civil proceedings

pending before the jurisdictional civil court. Although, the petitioner is

not a party to the suit however, that per se cannot be a reason for the

order of temporary injunction passed by the civil court to be not binding

or to have no effect or consequence. The petitioner raising grievance of

alleged illegal construction by the private respondents can very well

approach the civil court, before which the suit is pending, for redressal

of his grievance.

21. An injunction is a most solemn and authoritative form of order made by

the court expressly enjoining a party either to do a particular act, in

which case the injunction is known as a mandatory injunction, or to

refrain from doing a particular act, in which case the injunction is

known as a prohibitory injunction. When an injunction order has been

issued, by a competent court the same must be obeyed and respected by

all concerned till it is set aside or vacated. If any party concerned is

aggrieved by the order which in its opinion is wrong or against rules it

should either approach the court that passed the order or invoke the

jurisdiction of the Appellate Court. Till the order stands and its operation

has not been suspended by another court or by the court which passed

the order, no person should disobey such order. It is so because

27

administration of justice can only be effective if it has the means to

enforce court orders. Therefore, the argument advanced on b ehalf of

petitioner in WP-I that as he is not a party to the civil suit there is no

legal bar in invoking writ jurisdiction is not sustainable for the reason

that order of temporary injunction passed by the civil court is binding

upon all concerned.

22. Mr Sanyal, learned, Senior advocate for the private respondents relying

on Satyanarayan Sinha (supra) have vociferously argued in writ petition

WP-I, that the petitioner failed to demonstrate of any substantial

prejudice caused to him and therefore the writ peti tion in not

maintainable at his instance. In order to deal with such argument, it

would be profitable to examine the pleadings of the petitioner. The

petitioner in paragraph no.2 of the writ petition contended that being the

neighbor in the locality he has recently noticed that the private

respondents herein by engaging one promoter under the name and style

of M/s Balaji Construction have started illegal and unauthorized

construction of multi-stored building over the subject-property. At this

juncture it would be apposite to refer to the following decisions of

Hon’ble Supreme Court.

23. The Hon’ble Supreme Court in Mani Subrat Jain and Others versus

State of Haryana reported in (1977) 1 SCC 486 observed as follows:

“9. The High Court rightly dismissed the petitions. It is elementary

though it is to be restated that no one can ask for a mandamus without

a legal right. There must be a judicially enforceable right as well as a

legally protected right before one suffering a legal grievance can ask for

28

a mandamus. A person can be said to be aggrieved only when a person

is denied a legal right by someone who has a legal duty to do

something or to abstain from doing something (See Halsbury's Laws of

England 4th Ed. Vol. I, paragraph 122; State of Haryana v. Subash

Chander Marwaha & Ors.(1) Jasbhai Motibhai Desai v. Roshan Kumar

Haji Bashir Ahmed & Ors. (2) and Ferris Extraordinary Legal Remedies

paragraph 198.”

24. Further in Ayaaubkhan Noorkhan Pathan versus State of

Maharashtra and Others reported in (2013) 4 SCC 485 the Hon’ble

Supreme Court observed as follows:

“9. It is a settled legal proposition that a stranger cannot be permitted

to meddle in any proceeding, unless he satisfies the Authority/Court,

that he falls within the category of aggrieved persons. Only a person

who has suffered, or suffers from legal injury can challenge the

act/action/order etc. in a court of law. A writ petition under Article 226

of the Constitution is maintainable either for the purpose of enforcing a

statutory or legal right, or when there is a complaint by the appellant

that there has been a breach of statutory duty on the part of the

Authorities. Therefore, there must be a judicially enforceable right

available for enforcement, on the basis of which writ jurisdiction is

resorted to. The Court can of course, enforce the performance of a

statutory duty by a public body, using its writ jurisdiction at the behest

of a person, provided that such person satisfies the Court that he has a

legal right to insist on such performance. The existence of such right is

a condition precedent for invoking the writ jurisdiction of the courts. It is

implicit in the exercise of such extraordinary jurisdiction that, the relief

prayed for must be one to enforce a legal right. Infact, the existence of

such right, is the foundation of the exercise of the said jurisdiction by

the Court. The legal right that can be enforced must ordinarily be the

right of the appellant himself, who complains of infraction of such right

and approaches the Court for relief as regards the same. (Vide : State of

Orissa v. Madan Gopal Rungta, AIR 1952 SC 12; Saghir Ahmad & Anr.

v. State of U.P., AIR 1954 SC 728; Calcutta Gas Company (Proprietary)

29

Ltd. v. State of West Bengal & Ors., AIR 1962 SC 1044; Rajendra Singh

v. State of Madhya Pradesh, A IR 1996 SC 2736; and Tamilnad

Mercantile Bank Shareholders Welfare Association (2) v. S.C. Sekar &

Ors., (2009) 2 SCC 784).

xxxxxxxx

10. A “legal right”, means an entitlement arising out of legal rules.

Thus, it may be defined as an advantage, or a benefit conferred upon a

person by the rule of law. The expression, “person aggrieved” does not

include a person who suffers from a psychological or an imaginary

injury; a person aggrieved must therefore, necessarily be one, whose

right or interest has been adversely affected or jeopardised. (Vide:

Shanti Kumar R. Chanji v. Home Insurance Co. of New York, AIR 1974

SC 1719; and State of Rajasthan & Ors. v. Union of India & Ors., AIR

1977 SC 1361).

xxxxxxxxxx

17. In view of the above, the law on the said point can be summarised

to the effect that a person who raises a grievance, must show how he

has suffered legal injury. Generally, a stranger having no right

whatsoever to any post or property, cannot be permitted to intervene in

the affairs of others.”

25. Bearing in mind the aforesaid proposition as laid down by the Hon’ble

Court and reverting to the facts pleaded, it found from the writ petition WP-

I that the petitioner contended that he is a neighbouring resident to the

subject property wherein the private respondents by engaging one

promoter under the name and style of M/s Balaji Construction have started

illegal and unauthorised construction of multi-storied building. The alleged

construction has been undertaken without leaving the mandatory open

space as required under the West Bengal Municipal (Building) Rules 2007.

The boundary particulars shown in the plan or incorrect and illusory.

Despite the municipal authorities been informed, they are reluctant to take

appropriate steps against such illegal construction. Be that as it may,

30

petitioner failed to establish that he suffered any legal injury or has any

judicially enforceable right. There is no assertion in the writ petition of any

legal injury caused to the petitioner. The petitioner having not suffered any

legal injury is a stranger to the subject property. A stranger having no right

whatsoever on the property cannot be permitted to intervene or meddle

with the right of others by seeking mandamus invoking writ jurisdiction.

26. Mr. Mukherjee, learned advocate for the petitioner in writ petition WP-I

relying on the decision of a Co-ordinate Bench of this Court passed in Syed

Md. Aoun (supra) tried to impress upon the court that unauthorized

constructions are against public interest and affect the environment and

rights of the citizen to live in a planned and organized city. In such

circumstances the writ jurisdiction is very much attracted and can be

invoked by the Hon’ble Court.

27. In Syed Md. Aoun (supra) the petitioners alleged that they used to offer

their prayer in Imambara which has been demolished and unauthorized

constructions have been allegedly made. The facts in the cited decision are

at variance with the case at hand inasmuch as the dispute regarding the

alleged construction is pending before the Civil Court which has protected

the rights of the private respondents in making construction by an order of

injunction till the disposal of the suit. There is no quarrel that the civil suit

is still pending before the learned Civil Judge. Such being the position, the

ratio of the cited decision does not apply to the facts of this case. Therefore,

such arguments are not at all sustainable.

28. In writ petition WP-II the petitioner no.1, 3 and 6 are defendant nos. 3, 1

and 2 in the Civil Suit. The order of the learned Civil Judge dated 31

st

31

August 2024, shows that the petitioners along with other defendants have

entered appearance in the suit and have also contested the temporary

injunction application. It is relevant to note that the writ petitioners have

admitted the pendency of the Civil Suit in the writ petition and the order of

ad interim injunction passed by the learned Civil Judge. Be that as it may,

the petitioners in their affidavit-in-reply admitting of the pending civil suit

made an incorrect statement that the order of ad interim injunction was

ultimately vacated by the learned Civil Judge. It has already been found

that by order dated 31

st

August 2024, the learned Civil Judge restored the

ad interim injunction and was made absolute till the disposal of the suit

upon hearing the parties including the petitioners in the writ petition WP-II

some of whom are defendants in the suit. Such order having passed in

presence of the defendants, some of whom are petitioners herein, it can

well be said that despite knowledge of the said order of the learned Civil

Judge making the order of ad interim injunction absolute, the petitioner

chose not to disclose the same. Upon perusal of the order the learned Civil

Judge dated 31

st

August 2024 it is found that the defendants in connection

with the alleged construction also filed a suit being Title suit no. 217 of

2019 wherein an order of status quo was passed and the plaintiffs (private

respondents) contested the same. However, the suit was dismissed for non-

compliance on 21

st

December 2022. An application seeking restoration of

the said suit has also been filed before the learned Civil Judge. The

aforesaid fact has also not been disclosed by the petitioners in the present

writ petition. Needless to mention that the orders passed in the civil suit

filed by the private respondents in respect of the prayers made therein and

32

the suit filed by the petitioners are material facts which have been

suppressed by the petitioners. For the reasons of such suppression of

material facts the petitioners do not qualify to obtain any relief in the writ

petition.

29. In this context it would be profitable to reproduce the observation of

Hon’ble Supreme Court in S.J.S. Business Enterprises (P) Ltd. versus

State of Bihar and others reported in (2004) 7 SCC 166 , that

suppression of a material fact by a litigant disqualifies such litigant from

obtaining any relief. The relevant portion has been extracted below:

'13. As a general rule, suppression of a material fact by a

litigant disqualifies such litigant from obtaining any relief. This

rule has been evolved out of the need of the courts to deter a

litigant from abusing the process of court by deceiving it. But the

suppressed fact must be a material one in the sense that had it

not been suppressed it would have had an effect on the merits of

the case. It must be a matter which was material from the

consideration of the court, whatever view the court may have

taken '

30. Mr. Chakraborty, learned advocate representing Union of India submitted

that as per the Railway Works Manual the distance between the alleged

construction and the railway boundary should be 30 meters. The private

respondents have violated such Rule by making construction within 5/6

meters from the railway boundary.

31. Indisputably, the alleged construction has been undertaken by the private

respondents over the subject property since 2018. The Railway authority

during this period has neither taken any steps/endeavour against such

construction having been undertaken by the private respondents nor have

raised any objection till the filing of the writ petitions. Moreover, the

33

learned Civil Judge after considering the development agreement as well as

two sanction building plan, has been pleased to pass an order of temporary

injunction restraining the defendants from obstructing the construction

undertaken by the private respondents. Since the civil court is seisin of the

matter the railway authority can approach the civil court raising such

issue.

32. In view of the above discussion the writ petitions being no WPA 10868 of

2023 and WPA 29103 of 2023 stands dismissed being not maintainable.

33. No order as to costs.

34. It is made clear that this Court has not expressed any opinion with regard

to the merits of the case.

35. It is left open to the petitioners as well as railway authority to approach the

jurisdictional Civil Court for redressal of the issues raised, if so advised.

36. Interim order, if any, stand vacated.

37. All connected applications, if any, stand disposed of.

38. Urgent photostat certified copy of the order if applied for be given to the

parties upon compliance of all necessary legal formalities.

(Bivas Pattanayak, J.)