SWAPAN KUMAR PAUL vs THE STATE OF WEST BENGAL AND ORS.

Form No.J(2)
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present : The Hon’ble Mr. Justice Sabyasachi Bhattacharyya
&
The Hon’ble Mr. Justice Sandip Kumar De
MAT 663 of 2026
with
CAN 1 of 2026
Swapan Kumar Paul
Vs.
The State of West Bengal and Ors.
For the appellant : Mr. Pampa Dey (Dhabal),
Ms. Debangana Dey, Advs.
For the State : Ms. Susmita Saha Dutta, Adv.
For the Maheshtala
Municipality : Mr. R. N. Chakraborty,
Mr. R. Singh, Advs.
Heard on : September 8, 2026.
Judgment on : September 8, 2026.

Sabyasachi Bhattacharyya , J. :

1.
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

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allegedly owned by the appellant, which was, as per the writ
petitioner/appellant, encroached upon and constructed on by the
Maheshtala Municipality.
2. 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.
3.
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.
4.
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

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undertaking given by the Municipality, by placing reliance merely on
the submission of the Municipality that no equity will be claimed by it.
5. Heard learned counsel for the parties.
6. 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.
7.
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.
8. 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.
9. However, we concur with the conclusion of the impugned order on a
different ground.
10.
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

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the order dated May 19, 2022 and exactly what further construction
and/or alteration has been made on the said property thereafter.
11. 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.
12. In the present case, there is already a pending partition suit
between the parties, where the Municipality is also arrayed as a party.
13. 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.
14. 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

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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.
15. 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.
16. CAN 1 of 2026 is accordingly disposed of as well.
17. There will be no order as to costs.
18. Urgent Photostat certified copies of this judgment, if applied for, be
supplied to the parties upon compliance of requisite formalities.
I agree. ( Sabyasachi Bhattacharyya, J .)
( Sandip Kumar De, J .)
AD -10
Ct No.16
(sss)