Form No. J(2) IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE BEFORE: THE HON’BLE JUSTICE OM NARAYAN RAI WPA 21883 OF 2022 SRI NARAYAN MOSKARA & OTHERS …PETITIONERS -VERSUS- THE STATE OF WEST BENGAL & OTHERS …RESPONDENTS For the Petitioners : Mr. Mukteswar Maity, Adv. Ms. Manika Sarkar, Adv. For the Respondent Nos.1, 2 & 5 : Ms. Soma Chakraborty, Adv. Mr. Rohit Banerjee, Adv. For the Respondent Nos. 3 & 4 : Mr. Chayan Gupta, Adv. Mr. Saaqib Siddiqui, Adv. Heard on : 14.09.2026 Judgment on : 14.09.2026 OM NARAYAN RAI, J.:- 1. This writ petition seeks inter alia issuance of a writ of mandamus directing “the respondent nos.2, 3 and 4 to stop the encroachment work of the un-acquired portions of the land of the petitioners without any delay” and commanding the respondent no.2 “to make exact demarcation of acquired and un-acquired land according to Section 4(1) notification to enable the petitioners of their land to construct boundary wall with their own cost and such demarcation be made considering the representation dated 02.05.2022 within a certain time”. 2. Briefly put, it is the petitioners’ case that the petitioners have purchased two several stretches of land in R.S. Dag No.139 measuring about 4 cottahs and 8 chittacks in aggregate through two several deeds of conveyance executed and registered on January 21, 2011. Earlier, one Kashinath Nayak had filed a writ petition being WP No.6577 (W) of 2011 seeking a direction upon the respondents to demarcate the unacquired portion of land so that the said Kashinath Nayak could construct a boundary wall around the same. The said writ petition was disposed of by an order dated September 10, 2015, thereby directing the Land Acquisition Collector, North 24 Parganas to cause “physical demarcation of the land acquired by him from the land that still remains with the owners.” It is the writ petitioners’ case that such physical demarcation was not done and as such, the said Kashinath Nayak filed another writ petition being WP No. 26292(W) of 2017 but the said writ petition, ended in dismissal for default on September 13, 2019. 3. The petitioners have alleged that thereafter the respondents entered into the land of the petitioners with a bulldozer and started excavation work over the unacquired part of the land on or about October 09, 2019 and as such the petitioners approached this Court by filing WPA 119 of 2021. The said writ petition was dismissed as withdrawn by an order dated August 11, 2021. 4. The present writ petition has been field thereafter asserting that WPA 119 of 2021 was dismissed as not pressed by a Co-ordinate Bench of this Court with liberty to file a fresh writ petition on the selfsame cause of action. 5. Mr. Maity, learned advocate appearing for the petitioners, submits that the writ petitioners are entitled to get the unacquired portion of the land which the petitioners have purchased, demarcated and segregated from the acquired portion of the land. It is submitted that it would be evident from the averments made in the writ petition that the respondent-authorities have not demarcated the land physically. Mr. Maity asserts that the respondents have only done the demarcation on paper. 6. Mr. Gupta, learned advocate appearing for the respondent nos. 3 and 4, submits that the writ petition is not maintainable inasmuch as the writ petitioners have relinquished/abandoned all their claims as against the respondents. In support of his submission, he invites the attention of this Court to the order dated August 11, 2021 passed by a Co-ordinate Bench of this Court whereby WPA 119 of 2021 was dismissed as not pressed. 7. Mr. Gupta submits that the said order would reveal that no liberty to file afresh was ever prayed for and, therefore, no such liberty was reserved in favour of the petitioners for filing a fresh writ petition on the selfsame cause of action. It is submitted that once a writ petition is withdrawn without liberty to file afresh, another writ petition on the selfsame cause of action would be barred by public policy considerations. In such context, he relies on a judgment of the Hon’ble Supreme Court in the case of Sarguja Transport Service vs. State Transport Appellate Tribunal, M.P., Gwalior & Others1. 1 (1987) 1 SCC 5 8. It is further submitted that in any case, even if this Court ignores the said aspect, then also no relief should be granted to the writ petitioners as they have not approached this Court with clean hands. He invites the attention of this Court to paragraph 19 of the writ petition to demonstrate that it is the petitioners’ case that the earlier writ petition filed by them had to be withdrawn with liberty to file afresh since the representation that formed the basis of such writ petition was not annexed thereto. He then takes this Court through the representation dated May 02, 2022 and submits that the said representation was not in existence at the time when the writ petition was instituted inasmuch as the writ petition was filed in the year 2021 while the representation was made on May 02, 2022. It is submitted that that the petitioners have, therefore, made a false assertion in paragraph 19 of the writ petition that the writ petition was withdrawn with liberty to file afresh due to omission to annex the representation to the writ petition. It is submitted that since the order dated August 11, 2021 neither records grant of liberty to file afresh nor withdrawal due to omission, the petitioners’ case is false. 9. It is next submitted that even if all of the aforesaid is kept aside, then also the writ petitioners have no case for a favourable order. He relies on the report in the form of affidavit filed on behalf of the respondent nos.3 and 4 and submits that demarcation of the acquired portion was carried out way back in the year 2016 and the acquired portion of land was separated from the unacquired portion. 10. Mr. Gupta demonstrates from the report of physical verification (which forms an annexure to the report at page 17 thereof) that demarcation exercise in respect of R.S. Dag No.139 (separating the acquired portion from the unacquired portion) had been completed to the satisfaction of the writ petitioner of WP No. 6577(W) of 2011 in compliance with the order dated September 10, 2015 passed by this Court. 11. Mr. Gupta further then takes this Court to paragraphs 9 and 10 of the writ petition to demonstrate that the present writ petitioners had entered into an agreement for sale of a different piece of land in the same Dag i.e. Dag no.139 with the writ petitioner of WP No. 6577(W) of 2011 (i.e. Kashinath Nayak) and thereafter, the present writ petitioners took up the job of overseeing the conduct of the said writ petition that had been filed by Kashinath Nayak before this Court. It is submitted that the averments made by the writ petitioners in the said paragraphs would indicate that the petitioners were in the know of everything. 12. Ms. Chakraborty, learned advocate appearing for the respondent-State authorities files in Court a brief history in respect of WPA 21883 of 2022 prepared by the Special Land Acquisition Officer, North 24 Parganas, Barasat and submits that demarcation in terms of the order dated September 10, 2015 passed in WP No.6577 (W) of 2011 was done in presence of the writ petitioner of WP No.6577(W) of 2011 (i.e., Kashinath Nayak) and to the satisfaction of the said writ petitioner. In support of such contention, she relies on a copy a letter dated July 22, 2016 which forms an annexure to the brief history that has been placed before the Court and submits that the said report of physical demarcation was duly handed over to Mr. Kashinath Nayak who was the writ petitioner in WP No.6577(W) of 2011 on July 25, 2016. 13. Mr. Maity, learned advocate appearing for the writ petitioners submits, in reply, that the objection as regards maintainability of the writ petition on the ground of withdrawal of the earlier writ petition without liberty to file afresh should not countenanced. It is submitted that technical considerations should not stand in the way of rendering substantial justice to litigants. 14. It is next submitted that withdrawal of a writ petition without leave of the Court to file afresh may bar a remedy in case of a person who is not interested in prosecuting or continuing the relevant proceeding as such person has abandoned his claim, but in the present case, it would be apparent from the material on record that the petitioners were never desirous of abandoning their claim. In support of his submission, he relies on a judgment of Hon’ble Supreme Court in Ramesh Chandra Sankla & Others vs. Vikram Cement & Others2. 15. He next relies on a judgment of the Hon’ble Supreme Court in the case of Gherulal Parakh vs. Mahadeodas Maiya & Others3 to contend that public policy is not a branch of law and it should only be invoked in clear and incontestable cases of harm to the public. Mr. Maity further submits that no harm would be caused to the respondent-authorities, in case the respondent-authorities are directed to demarcate the plots once again, even if the respondents’ case is assumed to be true. He, however, insists that physical demarcation was never done. Mr. Maity further submits the petitioners are ready and willing to pay the costs for such demarcation, if necessary. 16. Mr. Maity next submits that the averments made in paragraph 19 of the writ petition should be read to mean that the petitioners had to withdraw the writ petition as the same had been filed without making any representation and the present writ petition has accordingly been made after making the representation on May 02, 2022. 2 AIR 2009 SC 713 : MANU/SC/7810/2008 3 AIR 1959 SC 781 : MANU/SC/0024/1959 17. Heard learned advocates appearing for the respective parties and considered the materials on record. 18. The writ petitioners had admittedly approached this Court by filing WPA No.119 of 2021 which was withdrawn without liberty to file a fresh writ petition on the self- same cause of action. The said aspect would be evident from the order dated August 11, 2021 which forms Annexure P/8 at page 73 of the writ petition. The said order does not record that the writ petitioners had sought for liberty to file a fresh writ petition. The order dated August 11, 2021 reads thus:- “The petitioner is represented and prays for liberty to withdraw the petition. The State respondents and respondent No.3 are represented. Hence, WPA 119 of 2021 is dismissed as not pressed.” 19. Sarguja Transport Service (supra) settles the law governing withdrawal of writ petitions without leave to file afresh in the following words:- “9. The point for consideration is whether a petitioner after withdrawing a writ petition filed by him in the High Court under Article 226 of the Constitution of India without the permission to institute a fresh petition can file a fresh writ petition in the High Court under that article. On this point the decision in Daryao case is of no assistance. But we are of the view that the principle underlying Rule 1 of Order XXIII of the Code should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy as explained above. It would also discourage the litigant from indulging in bench-hunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution once again. While the withdrawal of a writ petition filed in a High Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under Article 32 of the Constitution of India since such withdrawal does not amount to res judicata, the remedy under Article 226 of the Constitution of India should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission. In the instant case the High Court was right in holding that a fresh writ petition was not maintainable before it in respect of the same subject-matter since the earlier writ petition had been withdrawn without permission to file a fresh petition. We, however, make it clear that whatever we have stated in this order may not be considered as being applicable to a writ petition involving the personal liberty of an individual in which the petitioner prays for the issue of a writ in the nature of habeas corpus or seeks to enforce the fundamental right guaranteed under Article 21 of the Constitution since such a case stands on a different footing altogether. We, however leave this question open.” (Emphasis supplied) 20. Applying the law as aforesaid to the facts of the present case, it cannot be said that the present writ petition is not hit by the bar of abandonment as indicated by the Hon’ble Supreme Court in Sarguja Transport Service (supra), all the more so since it is the petitioners’ own case that the writ petition has been filed pursuant to the liberty reserved for them by the order dated August 11, 2021, to approach this Court again on the self-same cause of action. Mr. Maity’s assertion that the petitioners had not abandoned the claim does not impress the Court. The order dismissing the petition “as not pressed” without granting any liberty and without recording refusal of any prayer therefor clearly indicates such abandonment. Further, if the petitioners really felt that the writ petition had been allowed to be withdrawn with liberty to file afresh and the same had not been recorded in the said order, it was open to the writ petitioners to approach the same Hon’ble Court by way of appropriate application and get the same clarified. Not having done so and having accepted the order, the petitioners now cannot take a different turn. 21. Since an alternative argument has also been made that the writ petition was withdrawn since the same had been without making any representation and the present writ petition is based on the representation dated May 02, 2022, the same would also be required to be tested. In such context, the assertions made in paragraph 19 of the writ petition (which justify filing thereof) may be noticed:- “19. That the respondent No.2 despite the said representation of the petitioner No.1 neither taken steps to demarcate the land nor stopped the construction work then the petitioner earlier filed a writ petition vide WPA No. 119 of 2021 but unfortunately the representation was not annexed made in 2021 and the writ petition was withdrawn by order dated 11.08.2021 passed by His Lordship the Hon’ble Justice Ravi Krishan Kapur with liberty to file a fresh writ petition on the self-same cause of action and hence this fresh writ petition.” 22. The aforesaid averments do not indicate that the writ petition was withdrawn since the same had been filed without making any representation. It suggests, at best, that the writ petition was defective as the relevant representation made in 2021 was not annexed. No matter how much the language used in the said paragraph is pardoned, the clear assertion that “unfortunately the representation was not annexed made in 2021 and the writ petition was withdrawn by order dated 11.08.2021 passed by His Lordship the Hon’ble Justice Ravi Krishan Kapur with liberty to file a fresh writ petition on the self- same cause of action” does not imply that the writ petition was withdrawn because no representation had been made. 23. If all of the aforesaid is ignored and the present writ petition is treated as one based on the subsequent representation then also the petitioners’ case does not satisfy the requirements for issuance of a writ of mandamus for the reasons that follow. 24. The writ petitioners purchased the relevant properties in Dag No.139 in the year 2011. As would be evident from the averments made in paragraphs 9, 10, 11 and 12 of the writ petition, they were aware that an exercise for demarcation was going on in respect of R.S. Dag No.139. Since the relevant pieces of land which the petitioners assert to have purchased by the two deeds of conveyance fall under the R.S. Dag No.139 therefore if the writ petitioners were aggrieved by the non- demarcation and non-segregation of the acquired portion from the unacquired portion, the writ petitioners could have approached the Court there and then. However, the petitioners did not do so. This suggests that the petitioners were never aggrieved by reason of the respondents not carrying out any demarcation exercise, as alleged. 25. The writ petition indicates that one Kashinath Nayek (with whom the petitioners had entered into an agreement for sale of a different stretch of land in Dag no.139) had filed another writ petition being W.P. No. 26292(W) of 2017) and that the said writ petition stood dismissed for default. Mr. Gupta has referred to the website copies of the orders passed in that case to demonstrate that the same was dismissed for default on September 13, 2019 after a series of non-representation on behalf of the petitioner therein. Indeed in terms of the averments made in paragraphs 10 of the writ petition, the petitioners herein had taken upon themselves the task of overseeing the case filed earlier on behalf of Kashinath Nayek. Although the present writ petition is silent about the petitioners’ role as regards W.P. No. 26292(W) of 2017, yet, in the wake of the statements made in paragraphs 9 and 10 of the writ petition, there is enough reason for this Court to infer that the petitioners were, at least, in the know of the order dated September 13, 2019 whereby W.P. No. 26292(W) of 2017 was dismissed for default. Since the petitioners’ land was a part of the same Dag i.e. Dag No.139 for demarcation wherefor W.P. No. 26292(W) of 2017 had been filed, there could be no reason for the petitioners to wait till the year 2021 and then institute WPA No. 119 of 2021 once W.P. No. 26292(W) of 2017 was dismissed for default in 2019 itself. 26. From a copy of the writ petition that has been produced in Court by Mr. Gupta, learned Advocate for the respondent nos. 3 and 4 it appears that the case run in the said writ petition was that the respondents “entered into the land of the petitioners with Bull Dozer and started excavation work and/or soiling work on the unacquired part of the land from 9th October, 2019.” The writ petitioners therefore approached this Court seeking an order of restraint on the respondents to stop the encroachment work as well as for demarcation. 27. The same averments have been repeated in paragraph 13 of the present writ petition as well. If that is the case, then the writ petitioners’ cause of action evidently arose because of the alleged encroachment and the prayer for demarcation appears to be an attempt to achieve that purpose by a side-wind presumably because a writ petition would not be entertained in cases where there are disputed questions of fact. The respondent nos. 3 and 4 have filed a report in the form of an affidavit and in paragraph 9 thereof they have asserted that “Plot No.139, Mouza- Teghoria, J.L. No.9 has been duly surveyed and established that WBHIDCO has no encroachment over the unacquired portion of land”. 28. The petitioners have filed an exception to such report in the form of affidavit but the petitioners have not denied such stand of the respondent nos. 3 and 4. Moreover, in paragraph 13 of the writ petition, the petitioners have stated that when they asked the respondent nos. 2 and 4 about the alleged “excavation” and “soiling work”, the said respondents “told that no encroachment is done and that is done within their acquired land…..”. The questions of whether an encroachment occurred as alleged and, if so, who is responsible, are undoubtedly questions of fact. Given the stand taken by the respondents, these questions have become highly disputed. The same cannot be effectively answered on the basis of affidavit evidence in proceedings under Article 226 of the Constitution of India. 29. The judgments in the case of Ramesh Chandra Sankla (supra) and Gherulal Parakh (supra) lay down salutary propositions as regards the application of the doctrine of public policy but the same do not aid the writ petitioners in the facts of the present case where the writ petitioner has not only evidently withdrawn the writ petition without liberty to file a fresh writ petition but has also raised highly disputed factual issues that cannot be adjudicated without a full-fledged trial on evidence and merits. 30. For all the reasons aforesaid, this writ petition is not entertained. WPA 21883 of 2022 stands disposed of. No costs 31. It is clarified that this order will not preclude the petitioners from pursuing any available legal remedy for their grievances regarding the respondents' alleged encroachment on their land. 32. Urgent Photostat certified copies of this judgment, if applied for, be given to the parties upon compliance of all requisite formalities. (Om Narayan Rai, J.) Court No. 07 D/L-16 Bpg.