The central legal point established in the judgment is the power of the High Courts under Article 226 of the Constitution of India to issue writs for enforcement of fundamental rights and other purposes, and the distinction between permanent and temporary structures on public property.

1. The petitioners have filed this application under Article 226 of the Constitution of India praying for direction upon the respondents to demolish the permanent structure constructed by the private respondent nos.5, 6 and 7 on the public drain (Nayanjali) with the permission of the Howrah Zilla Parishad.

2. The petitioners claim to be the owners of the land appertaining to R.S. Plot no.1167, Khatian no.984, Mouza - Ranihati, which is situated on the adjacent of the public road, namely, Bauria-Domjurh Road. There is one public drain (Nayanjali) situated in between the public road and the land of the petitioners and the said public drain is used as waterways. It is alleged that Howrah Zilla Parishad, respondent no.2 granted lease of the said public drain (Nayanjali) in favour of the private respondent nos.5, 6 and 7 for the purpose of construction of shop room on the said land and licence was also granted in favour of the said private respondents for running the shop. The petitioners challenged the action of Howrah Zilla Parishad, respondent no.2 in granting licence to the private respondents for running the shop on the public drain (Nayanjali) by filing a writ petition W.P.19321(W) of 2004. It is alleged that the private respondents have made illegal permanent structure on the public road (Nayanjali) and thereby obstructed the waterways and ingress and egress of the petitioners from the main road to their land.

3. The petitioners also filed one writ petition being W.P. 18117(W) of 2013 before this Court seeking issuance a mandatory order upon the Sabhadhipati of Howrah Zilla Parishad to demolish the construction situated on the public drain (Nayanjali) on June 27, 2014. The said writ petition was disposed of by learned single Judge of this Court by making observation that the private respondents have stopped making any construction on the public drain (Nayanjali) and the private respondents were given an opportunity to approach the Howrah Zilla Parishad for the purpose of seeking renewal of lease in accordance with law. The said order of learned single Judge was challenged before the Hon'ble Division Bench by preferring M.A.T. no.1431 of 2014. On September 19, 2014 the Hon'ble Division Bench disposed of the said writ appeal and connected application by making observation that the present petitioners were successful in obtaining the order of stoppage of any kind of construction on the public drain (Nayanjali). The further observation made by the Hon'ble Division Bench in the said writ appeal is that the construction made by the private respondents so far on the public drain (Nayanjali) was asked to be demolished. Accordingly, the Hon'ble Division Bench disposed of the writ appeal under the impression that the construction of the structure on the public drain (Nayanjali) was stopped and the construction which was already made by the private respondents had been demolished.

4. With the above factual matrix, this Court appointed Sri Surajit Roy, learned advocate, as Special Officer for making an inspection of the structure situated on the public drain (Nayanjali) in presence of all the concerned parties. Sri Roy has submitted the report before this Court and the same is kept on record. It appears from the said report that the structure consisted of two rooms situated on the public drain (Nayanjali) is made of brick and cement with plaster on the wall and on the floor, but the roof of the structure is made of corrugated tin shed. Learned counsel representing the respondent nos.2, 3 and 4 submits that the structure made of brick wall and cemented floor cannot be construed as permanent structure as the roof is thatched with corrugated tin shed. Learned counsel representing the private respondents submits that the private respondents have constructed the structure after obtaining permission from the Howrah Zilla Parishad and the licence of the private respondents to run the shop in the said structure is renewed by Howrah Zilla