WPA/23921/2026 of RATAN BARUI AND ANR Vs STATE OF WEST BENGAL AND ORS. on 2 September 2026

1. Affidavit-of-service filed in Court today on behalf of the petitioners is taken on record. However, despite service, none appears on behalf of the Baranagar Municipality as well as the respondent nos. 5 and 6 herein.

2. The present writ petition has been preferred primarily praying for the following reliefs :- “ (a) Issue a writ and/or order and/or direction in the nature of Mandamus commanding the Respondent Nos. 2 and 3 to forthwith conduct an inspection and enquiry in respect of the said premises and ascertain whether any valid, subsisting and lawful sanctioned building plan and/or permission exists in favour of the Respondent nos. 4 and 5 for carrying out any construction therein; and in the event the said found to be unauthorized, direct demolition of the same”.

3. Mr. Syamal, learned Advocate appearing for the petitioners, submits that the building forming the subject matter of the present writ petition is a two-storied building. He submits that the ground floor of the said building is owned by the petitioners, whereas the first floor is owned by respondent nos. 5

and 6. He further submits that respondent nos. 5 and 6 have attempted to raise construction on the roof of the said building without obtaining a sanctioned building plan or the requisite permission from the competent authority. According to him, respondent nos. 5 and 6 have no exclusive right, title or interest in respect of the roof of the said building and, therefore, cannot unilaterally raise any additional floor thereon. He submits that, notwithstanding the absence of such authority and permission, respondent nos. 5 and 6 have already commenced construction on the roof.

4. In the aforesaid circumstances, the petitioners were constrained to institute Title Suit No. 139 of 2015 before the learned Civil Judge (Junior Division), Bidhannagar. Mr. Syamal submits that the said suit was instituted seeking a declaration that the defendants therein, being respondent nos. 5 and 6 herein, had no right to raise any unauthorised construction over the suit property. The suit was ultimately dismissed. Aggrieved thereby, the petitioners preferred an appeal, which is presently pending before the learned Additional District Judge at Barrackpore for final adjudication. Mr. Syamal submits that, during the pendency of the said appeal, respondent nos. 5 and 6 have once again commenced construction over the suit property. He, therefore, submits that immediate intervention by this Court is warranted.A copy of the plaint filed on behalf of the petitioners is taken on record.

5. Mr. Dutta, learned Advocate appearing for the State respondents, submits that the appeal preferred by the petitioners is presently pending before the competent court. He further submits that, despite the pendency of the appeal, the petitioners have not taken any steps before the appellate court by filing an application seeking an interim order restraining respondent nos. 5 and 6 from carrying out any construction on the suit property. According to him, the appropriate remedy of the petitioners lies before the court where the appeal is pending. However, he submits that, if the matter is relegated to respondent no. 2 for consideration of the issues raised in the writ petition, he would have no objection thereto.

6. Heard the learned Advocates appearing for both the parties and perused the materials on record.

7. From the pleadings in the plaint, it appears that the petitioners had, inter alia, sought a decree declaring that respondent nos. 5 and 6 had no right to raise any construction over the suit property. The petitioners had also prayed for reliefs by way of permanent injunction, temporary injunction and mandatory injunction. In view thereof, this Court is prima facie of the opinion that, during the pendency of the appeal, the petitioners ought to have approached the appellate court by filing an appropriate application seeking interim relief, including an order restraining respondent nos. 5 and 6 from carrying out any construction over the suit property. The petitioners cannot, in the circumstances, bypass the efficacious remedy available before the appellate forum and seek substantially similar reliefs in the present writ petition.

8. However, the pendency of the civil proceedings and the availability of an efficacious remedy before the appellate court do not preclude the competent municipal authority from examining the independent question as to whether the construction allegedly being undertaken by respondent nos. 5 and 6 is supported by a sanctioned building plan and is otherwise in conformity with the applicable municipal laws and building regulations.

9. In view of the allegations made by the petitioners in their representation dated 24 August 2026, particularly that respondent nos. 5 and 6 are undertaking construction without any sanctioned building plan and in contravention of the West Bengal Municipal Building Rules, 2007 (hereinafter referred to as “the 2007 Rules”), the writ petition is disposed of by directing respondent no. 2 to consider the said representation and pass a reasoned order thereon, after affording an opportunity of personal hearing to the petitioners as well as respondent nos. 5 and 6. The aforesaid exercise shall be completed within a period of eight weeks from the date of receipt of a copy of this order.

10. It is clarified that respondent no. 2 shall confine the consideration to the legality of the construction from the standpoint of the sanctioned building plan, if any, and the applicable municipal laws and building regulations. Respondent no. 2 shall not adjudicate upon the inter se civil rights, title or interest of the parties in respect of the suit property, which shall remain subject to the decision of the competent civil court in the pending appeal. It is further clarified that this Court has not expressed any opinion on the merits of the allegations made by the petitioners.

11. If, upon consideration of the representation dated 24 August 2026, respondent no. 2 is satisfied that the allegations made by the petitioners are justified, he shall take appropriate steps in accordance with law. While considering and disposing of the said representation, respondent no. 2 shall also take into account the fact that an appeal arising out of the civil proceedings is pending before the competent court. Until the representation is considered and disposed of in terms of the directions contained hereinabove, all parties shall maintain status quo with regard to the nature and character of the property in question.

12. With these observations and directions, WPA 23921 of 2026 is disposed of.

13. Since no affidavits have been filed by the respondents, the allegations made in the writ petition shall be deemed to have not been admitted by the respondents.

14. There shall be no order as to costs.

15. Let urgent Photostat certified copy of this order be made available to the parties, if applied for, upon compliance of usual formalities.

(Partha Sarathi Chatterjee, J.)