Construction on a municipal drain without prior permission of the Municipal Commissioner is illegal under Section 142 (1) (b) of the Howrah Municipal Corporation Act, 1980, but this provision may not be violated if the Municipal Commissioner and the entire Corporation participate in the decision to construct the commercial complex.

( 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 p