Calcutta High Court (Appellete Side)
Sri Palas Das vs The Serampore Municipality & Ors on 20 May, 2026
2026:CHC-AS:791
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 217 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),
2nd 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 andalternative 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
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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 20th 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), 2nd 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
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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 23rd 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
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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 31st 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
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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 construction, the
developers are required to Act within the framework of law. This
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
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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
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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
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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, 5th 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 show
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
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contention, he relied on the De Smith’s Judicial Review of
Administrative Action, 4th 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, 34th 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
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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, 6th 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 authority 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
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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 23rd 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 31st 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 succeeded 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
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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 adumbrated. 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
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„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. To 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
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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 8th 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 28th 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
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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
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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), 2nd 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
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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 defendants 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 right of the
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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 23rd December, 2022 passed by the
learned Civil Judge was vacated on 31st 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 31st
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 5th March 2024,
praying for restoration of the ad interim order passed on 23rd 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 sanction building plan issued by
Serampore Municipality pursuant to Board meeting dated 31st August 2018,
and sanction dated 5th 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
252026:CHC-AS:791
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 23rd 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
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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
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administration of justice can only be effective if it has the means to
enforce court orders. Therefore, the argument advanced on behalf 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 petition 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
282026:CHC-AS:791
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)
292026:CHC-AS:791
Ltd. v. State of West Bengal & Ors., AIR 1962 SC 1044; Rajendra Singh
v. State of Madhya Pradesh, AIR 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,
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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 31st
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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 31st 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 31st 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 21st 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
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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
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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.)
