Sri Palas Das vs The Serampore Municipality & Ors on 20 May, 2026

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    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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    2026:CHC-AS:791
    Mrs. Tutun Das
    Ms. Ketaki Ghosh
    Mr. Akash Talukdar
    Mr.C. Lahiri
    Mr. A Naskar,
    Mr. Chandrachur Lahiri

    SPONSORED

    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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    2026:CHC-AS:791

    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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    2026:CHC-AS:791
    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
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    2026:CHC-AS:791
    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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    2026:CHC-AS:791

    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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    2026:CHC-AS:791
    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
    8

    2026:CHC-AS:791
    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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    2026:CHC-AS:791
    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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    2026:CHC-AS:791
    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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    2026:CHC-AS:791
    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
    14

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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
    15

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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
    16

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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
    17

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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
    19

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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
    20

    2026:CHC-AS:791
    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
    21

    2026:CHC-AS:791
    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

    2026:CHC-AS:791
    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
    23

    2026:CHC-AS:791
    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
    24

    2026:CHC-AS:791
    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
    25

    2026: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
    26

    2026:CHC-AS:791
    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

    2026:CHC-AS:791
    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
    28

    2026: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)
    29

    2026: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,
    30

    2026:CHC-AS:791
    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
    31

    2026:CHC-AS:791
    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
    32

    2026:CHC-AS:791
    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

    2026:CHC-AS:791
    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.)



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