Swapan Kumar Paul vs The State Of West Bengal & Ors.

Sabyasachi Bhattacharyya, J.:

The present challenge has been preferred against an order whereby the writ court disposed of a writ petition filed by the present appellant, seeking restoration of possession in respect of a passage/property allegedly owned by the appellant, which was, as per the writ petitioner/appellant, encroached upon and constructed on by the Maheshtala Municipality.

Learned counsel for the appellant argues that an order of status quo passed by a civil court in a partition suit, where the Maheshtala Municipality has also since been impleaded as a party, has all along been subsisting. In violation of the same, further construction was made on the said property by the Municipality, prompting the appellant to approach the civil court with an application under Order XXXIX Rule 2A of the Code of Civil Procedure alleging violation of its order.

Apart from that, an earlier writ petition was filed alleging violation of the order of the civil court, which resulted in an order dated May 19, 2022, wherein the learned Single Judge categorically recorded the submission of the Maheshtala Municipality that no further construction was going on, as well as the undertaking by the Municipality that further construction on the narrow passage shall not be made and the Municipality will not claim any equity over the road, if the passage is declared to be within the share of the petitioner after conclusion of the partition suit.

Learned counsel argues that such facet of the matter was overlooked by the learned Single Judge at the present instance, disposing of the writ petition without passing any direction for restoration of the appellant’s possession and/or demolition of the construction made in violation of the Court’s order and contrary to the undertaking given by the Municipality, by placing reliance merely on the submission of the Municipality that no equity will be claimed by it.

Heard learned counsel for the parties.

It transpires that by the order dated May 19, 2022, the writ court, in the first instance, i.e. in WPA 5157 of 2021, had disposed of the writ petition on the premise of the specific undertaking by the Maheshtala Municipality that further construction shall not be made on the narrow passage, as well as on the basis of its submission that no further construction was going on.

The additional rider, that the municipality would not claim any equity per se, cannot be construed to give a right to the Municipality to contravene its own undertaking given before a court of law and raise further construction on the concerned passage.

As such, the learned Single Judge ought to have looked into such aspect of the matter, particularly in view of the recording in the impugned order that the Maheshtala Municipality had accepted the order dated May 19, 2022.

However, we concur with the conclusion of the impugned order on a different ground.

Even if the writ court is called upon to pass a direction for removal of the additional construction, if any, made in violation of the undertaking of the Municipality, the writ court would have to undertake a detailed enquiry by taking evidence on a disputed question of fact to ascertain what was the status of the property on the date of the order dated May 19, 2022 and exactly what further construction and/or alteration has been made on the said property thereafter.

It is well-settled that if disputed questions of fact requiring evidence to be taken at length are brought before the writ court for adjudication, such questions cannot be resolved in a writ petition and the civil court would be the appropriate forum for deciding such disputes.

In the present case, there is already a pending partition suit between the parties, where the Municipality is also arrayed as a party.

Thus, it would only be appropriate, particularly since the violation of the civil court’s order has already been alleged before the said court by the appellant, that the appellant be given a liberty to file an application for restoration of his possession and/or demolition of the construction, if any, made in violation of the order of the civil court or the writ court on the earlier occasion. We say so because the civil court would have the necessary resources in law to enter into such factual enquiry and, for such purpose, to look into prima facie evidence adduced by the parties.

Accordingly, MAT 663 of 2026 is disposed of by granting liberty to the appellant to approach the Trial Court, where a partition suit is already pending between the parties, with an appropriate application, if not already filed, for restoration of the appellant’s possession and/or demolition of the portion of construction made on the subject property, if any, by the respondent-Municipality after passing of the order of status quo by the Trial Court as well as after May 19, 2022 when WPA 5157 of 2021 was disposed of, in violation of such orders and in contravention of the undertaking given by the Municipality before the writ court. If such an application has been/is filed, it is expected that the civil court shall decide the same as expeditiously as possible, preferably within six weeks from this date or the date of filing of the same, whichever is later.

If such an application is made, the civil court shall decide the said application on merits and in accordance with law, upon giving adequate opportunity to the respondent no. 2, Maheshtala Municipality, and the other parties to the suit, to controvert such application by way of written objections. We further clarify that this Court has not entered into the merits of the contentions of the parties in that regard and it will be open to the civil court, where the partition suit is pending, to decide all questions in accordance with law.

CAN 1 of 2026 is accordingly disposed of as well.

There will be no order as to costs.

Urgent Photostat certified copies of this judgment, if applied for, be supplied to the parties upon compliance of requisite formalities.