ASHOK KUMAR MATHUR, C. J. - (1.) This is a public interest litigation whereby the petitioner has brought this public cause before this Court with a prayer that a writ of Mandamus be issued commanding the respondent Nos. 3 and 4 to stop concrete construction on the main drain canal at the western side of HIT Canal Road, Howrah and restrain them from causing great public inconveniences by interrupting the sewerage system of the public at large of the city of Howrah. It is also prayed that the respondent Nos. 3 and 4 be restrained from continuing or carrying on such illegal and unauthorised construction of building on the drain canal at the western side of HIT Canal Road, Howrah.
(2.) The petitioner submitted that the city of Howrah is 500 years old and it basically an industrial town with about 40000 small, medium and large scale industrial units. It is alleged that two major civic services like water distribution and drainage in Howrah city are poorest in the country. The natural slope of the city of Howrah from river Ganges side is east to west unlike the city of Calcutta where the normal slope is from west to east. It is alleged that Howrah city is still having 250 kms. Open drains, which are connected to the main drain canal of the city that stands at the western side of the city flowing from north to south. The open drain system of the city caters about 90% of the affluent of more than 1.5 millions of population. The open drains carry considerable quantum of sand, soil, solid waste, etc. The cleaning arrangement of the drains are not up to the mark. Choked open drains full of slurry very frequently cause water logging even during the non-monsoon season and during monsoon season it becomes worst. It is alleged that recently the local residents made complaints that on the main drainage canal some constructions work has been started by the Howrah Municipal Corporation at different spots and the petitioner No. 2 has personally visited the site and found that the construction work was at the alleged site. On inquiry from the workmen engaged there it was found that the labourers were working under the contractor engaged by the Howrah Municipal Corporation. It was alleged that Howrah Municipal Corporation is constructing commercial shops. The petitioners approached the Commissioner of Howrah Municipal Corporation by filing a memorandum dated 14/09/2000 and requested to stop construction work. It was pointed out that this construction work is illegal and this is going to cause serious problem of water logging in different parts of the city. It is alleged that the Howrah Municipal Corporation despite the protest did not refrain from proceeding with the construction. It was pointed out that in terms of Section 142 (1) (b) of the Howrah Municipal Corporation Act, 1980 without prior permission of the Commissioner no wall or other construction shall be erected on the municipal drain. When this writ petition came up for hearing a report was sought from the Howrah Municipal Corporation and the Howrah Municipal Corporation submitted a report through its Commissioner wherein it was pointed out that the drainage canal on the western fringe of Howrah drainage canal road originates from a point opposite to Belilious Park near Asu Bose Lane and runs southwards cutting across Natabar Paul Road, Makardah Road, Ichapur Road, Mahendra Bhattacharjee Road, Sarat Chatterjee Road and Kona Express Way finally draining into Padmapukur Jala, through Railway Culvert No. 6. Thereafter, storm water drain flows through PWD channel and finally drains into River Hooghly at Nazirgunj. It is pointed out that the drain in the starting phase is single barrel one upto Natabar Pal Road thereafter double barrel drain with an average clear size of 11' x 12' for each barrel. The storm drain consists of re-enforced concrete foundation with 20" thick brick walls with solid re-enforced beams and the beams and 3 ring solid brick arch. This drainage is supposed to carry primarily storm water of the South West Quarter of Howrah and was completed by HIT by 1978. The sanitary sewers are a separate system which carries the affluent from the household in an underground sewerage network and finally treating the same at sewerage treatment plant at Dharsa. It is pointed out that to maintain the gradient of the invert level the top of the drain at places remain over the ground and in other places below the ground depending on the updation of the ground level depending on the undulation of the ground level. Since the drain only caters for storm water, it is not at great depth like sanitary sewers. It is pointed out that 60% of length of the covered drain portion remains above the ground and the rest have a cushion of earth depth from 3 ft. to 5 ft. approximately. It is pointed out that this long stretch of land over the drainage has been a lucrative area for the encroachers for setting up temporary stalls, motor repairing shops, tempo parking, thatched house and such other use. The Corporation on number of occasions have tried to remove these encroachment but without any result. There is frequent recurrence of the encroachment. As such it was proposed to construct light weight shopping complex in that area for the local small businessmen and unemployed youths. The scheme was prepared through a Professor of B.E. College who planned the structure, the loads of which would pass through the foundation placed outside the drainage structure. The drainage structure would take the load of the earth and the flooring and light partition structure. The scheme was duly approved by the Mayor-in-Council of the Howrah Municipal Corporation in which the Commissioner of Howrah Municipal Corporation and the Head Engineering Division and Special Officer Conservancy were also present. It is pointed out that at present three units of small shops have been constructed between Makardah Road and Kamardanga Road and one unit near Kona express Way. Each unit measures 30 mts. x 10 mts. and contains 24 small stalls. The rest of the area is proposed to be utilised by constructing a few more units at appropriate locations and parks and gardens all along the area to avoid further encroachment. It is alleged that an order has been passed by the Divisional Forest Officer, Howrah for a sum of Rs. 7 lakhs for beautifying the entire stretch. It is alleged that the entire scheme has been proposed to be on cost recovery basis and would not have any commercial exploitation. It is also pointed out that to avoid any obstruction of the underground strom drains, necessary precautionary measures has already been incorporated in the terms fo the licence. Restriction has also been imposed on the nature of business like no business with heavy materials like iron, etc. or machineries would be transcted. No further construction could be made in the completed shops and no waste material should be thrown outside the stipulated garbage bin and above all the manhole have been made for clearance of the drain. It is submitted that all possible measures have been taken to avoid obstruction to the drainage. Subsequently th Howrah Municipal Corporation was directed to file an affidavit bringing these facts mentioned in this report which was done by the Muncipal Commissiner, Howrah.
(3.) The main contention of the petitioner was that this construction which has been raised is not on the storm water drain but it is on the sewerage system.;