Calcutta High Court (Appellete Side)
Asok Roy Chowdhury & Ors vs The State Of West Bengal & Ors on 17 May, 2024
17.05.2024
Serial no.6
Piya
Ct. No. 30
WPA 13039 of 2023
[Assigned]
Asok Roy Chowdhury & Ors.
Vs.
The State of West Bengal & Ors.
For the Petitioners: Mr. Pratik Dhar, Ld. Sr. Advocate
Mr. Samir Halder,
Ms. Cardina Roy.
For the Respondent No.8 : Mr. Rabindra Nath Dutta,
Mr. Soumyajit Bhatta, Mr. Prabir Majumder.
For the Respondent Nos. 16 & 18 : Mr. Aniruddha Singh, Ms. Saloni Bhattacharya, Mr. Rajesh Naskar.
1. The Learned Counsels for the parties have been heard at length on the point of maintainability, as raised by the Respondent no.8/ Chairman Panihati Municipality.
2. The Respondent no. 8/ Chairman Panihati Municipality has submitted that the impugned reasoned order under challenge vide memo no. PM/LC/2022-23/25/1 dated 14.03.2023 and order dated 13.03.2023 issued by the municipality, being orders passed under Section 218 of the West Bengal Municipality Act, 1993, an appeal lies as provided under Section 218 (3) of the said act.
3. It is further submitted that the Petitioners remedy also lies before the Civil Courts under the said West Bengal Municipality Act, 1993.
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4. There thus being an effective alternative remedy available to the Petitioners, the present Writ Petition is not maintainable.
5. In support of their submission, the Respondent No. 7/ Panihati Municipality has relied upon the following Judgments:-
i) Dr. Ranbeer Bose & Anr. Vs. Anita Das and Anr., SLP (Civil) Appeal No.(s) __of 2024, decided on 19 October, 2023.
ii) United Bank of India Vs. Satyawati Tandon and Ors., 2010 (8) SCC 110, decided on 26 July, 2010.
iii) PHR Invent Educational Society Vs. UCO Bank and Ors., Civil Appeal No. ___ of 2024, decided on 10 April, 2024.
iv) Central Coalfields Ltd. Vs. State of Jharkhand and Ors., 2005 (7) SCC 492, decided on 1 September, 2005.
v) Samir Chandra Das Vs. Bibhas Chandra Das., 2010 (6) SCC 432, decided on 7 May, 2010.
6. On the other hand, the Learned Counsel for the Petitioners has relied upon the following Judgments:-
i) Dipak Kumar Mukherjee Vs. Kolkata Municipal Corporation & Ors., (2013) 5 SCC 336, decided on 8 October, 2012.3
ii) Supertech Limited Vs. Emerald Court Owner Resident Welfare Association & Ors., (2021) 10 SCC 1, decided on 31 August, 2021.
iii) Esha Ekta Apartments Cooperative Housing Society Ltd. & Ors. Vs. Municipal Corporation of Mumbai & Ors., (2013) 5 SCC 357, decided on 27 February, 2013.
iv) Arasmeta Captive Power Company Private Limited and Anr. Vs. Lafarge India Private Limited., (2013) 15 SCC 414, decided on 12 December, 2013.
v) Central Board of Dawoodi Bohra Community and Anr Vs. State of Maharashtra and Anr., (2005) 2 SCC 673, decided on 17 December, 2004.
vi) Bibekananda Mondal Vs. State of West Bengal., (2002) SCC Online Cal 571, decided on 24th September 2002.
vii) Popcorn Entertainment and Anr. Vs. City Industrial Development, (2007) 9 SCC 593, decided on 23 February, 2007.
viii) Uttar Pradesh Power Transmission Corporation Ltd and Anr. Vs. CG Power & Industrial Solutions Ltd., (2021) 6 SCC 15, decided on 12 May, 2021.4
ix) Godrej Sara Lee Ltd. Vs. Excise & Taxation Officer- cum- Assessing Authority and Ors., (2023) SCC Online SC 95, decided on 1st February 2023.
x) Whirlpool Corporation Vs. Registrar Of Trade Marks, Mumbai & Ors., (1998) 8 SCC 1, decided on 26 October, 1998.
7. The Petitioners case herein is that the dispute in this Writ Petition relates to the prima facie illegal constructions by the private respondents and inaction of the Respondents No. 7/ Panihati Municipality.
8. On a Joint Spot Inspection on 27.04.2022, it was found that though the building had a sanction for (G +3) floors only, there was unauthorized/illegal construction of two extra floors.
9. A co-ordinate bench of this Court in (W.P.A No 19531 of 2022) on 30.09.2022 directed as follows:-
"W.P.A No 19531 of 2022 Dated: 30.09.2022 ....The petitioners refer to the inspection report of the Municipality dated June 10, 2022 which was conducted pursuant to the order passed by this Court on March 3, 2022 in WPA 1009 of 2022. The inspection report of the Municipality mentions that plan was sanctioned for construction of G+3 storied building.
The person responsible constructed the fourth floor and a community hall at the roof without taking any permission from the Municipality.
The learned advocate for the petitioner submits that the Municipality afforded several opportunities of hearing to the 2 parties but the Municipality is yet to pass a final order in the matter.5
Learned advocate for the Municipality is yet to receive proper instruction from his client. The Court on the earlier occasion directed the Municipality to complete the entire exercise within four months from the date of communication of a copy of this order. The said time period has long expired. It is high time that the Municipality concluded the proceeding in accordance with law by passing a reasoned order and communicate the same to the parties. The Municipality shall ensure that the reasoned order is passed and communicated by November 30, 2022.
In the meantime, the Municipality shall ensure that no construction is carried on at the said premises. The Officer-in-Charge, Khardah Police Station is directed to keep strict vigil over the premises to ensure that no construction is being made thereon without proper permission from the Panihati Municipality. The developers/promoters/owners are restrained from creating any third party interest in respect of the portions of the structure that has been constructed without a proper sanctioned plan. The writ petition stands disposed of....
Sd/-
Amrita Sinha, J."
10. The said reasoned order is at Page 285/286 of the Writ Petition marked as "Annexure 'P-10' Collectively", it reads as follows:-
"Reasoned order Ref: WPA. 19531 OF 2022 Dated: 13/03/2023 Perused the above records. It is found that a building plan (G+3) was sanctioned by the Municipality vide sanction no. 321 dated 24/03/2021 as per West Bengal Municipal Building Rules, 2007. Subsequently, the Owner/developer submitted a revised building plan for further sanction of fourth floor constructions and also for regularization of deviation from Ground to third floor, the Sub-Assistant Engineer, PWD, Panihati Municipality made enquiry in the spot and examine the said revised building plan and note, sent the file. It is also found from the enquiry report of the Sub- Assistant Engineer, PWD that the developer, M/s. Apace Constructions made construction on the fourth 6 floor roof, which is totally illegal and unauthorized beyond the scope to accord approval. Accordingly it is ordered that the revised building plan in respect of the fourth floor constructions and also the portion of deviation in respect of Ground Floor to third floor, in Premises No. 86, School Road, Ward No.17 within Panihati Municipality, P.S. Khardah, Kolkata- 700110 may be accorded and/or regularize subject to payment of necessary charges and fines and the developer and/or owners in respect of Premises No. 86, School Road, Ward No.17 within Panihati Municipality, P.S. Khardah, Kolkata-700110 are directed to demolish the constructions as made on the fourth floor roof as evident from the report of the Sub- Assistant Engineer, PWD, Panihati Municipality, immediately within 3 weeks, failing which necessary steps will be taken to demolish the said unauthorized constructions in premises No. 86, School Road, Ward No.17 within Panihati Municipality, P.S. Khardah, Kolkata-700110 Hence, the above matter is thus disposed of.
Sd/-
Chairman Panihati Municipality"
11. It is thus submitted on behalf of the Petitioners that:-
i) The Petitioners Constitutional / Fundamental right and quality of life has been effected.
ii) Laws must protect the legitimate concerns of the people.
iii) Principles of Natural Justice has thus been violated.
12. The petitioners further relies upon the following observations of the Supreme Court:-
a) Popcorn Entertainment and Anr. Vs. City Industrial Development, (2007) 9 SCC 593, decided on 23 February, 2007.
Pr. 22 Firstly, if the action of the
respondent is illegal, and without
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jurisdiction,
Secondly, if the principles of natural justice is violated, Thirdly, if fundamental rights have been violated.
Pr. 47 High Court committed a grave mistake by relegating the appellant to the alternative remedy.
b) Uttar Pradesh Power Transmission Corporation Ltd and Anr. Vs. CG Power & Industrial Solutions Ltd., (2021) 6 SCC 15, decided on 12 May, 2021.
Pr.67 (i) Where the writ petition seeks enforcement of a fundamental right,
(ii) where there is failure of principles of natural justice (iii) where impugned orders or proceedings are wholly without jurisdiction. (iv) the vires of an Act is under challenge.
Pr.69 Even in a case arising out of contract.
c) Godrej Sara Lee Ltd. Vs. Excise & Taxation Officer- cum- Assessing Authority and Ors., (2023) SCC Online SC 95, decided on 1st February 2023.
Pr.6 Where the writ petition seeks enforcement of a fundamental right,
(ii) where there is failure of principles of natural justice (in) where impugned orders or proceedings are wholly without jurisdiction. (iv) the vires of an Act is under challenge.
Pr.8 "What follows from the said decisions is that where the controversy is a purely legal one and it does not involve diputed question of fact then it should be decided by the High Court instead of dismissing the writ petition on the ground of an alternative remedy being available."
8Pr.12 High Court by dismissing the writ, committed a manifest error of law.
d) Whirlpool Corporation Vs. Registrar Of Trade Marks, Mumbai & Ors., (1998) 8 SCC 1, decided on 26 October, 1998- Pr.15 + 20.
13. From the materials on record, it is evident that the Petitioners are fighting a long drawn battle (this being the third Writ Petition).
14. Section 218 of the West Bengal Municipality Act, 1993 lays down:-
"Section 218- Order for demolition or alteration of buildings in certain cases.-
(1) If the Board of Councilors is satisfied-
(a) that the erection of any building-
(i) has been commenced without obtaining sanction or permission under the law, or
(ii) is being carried on or has been completed otherwise than in accordance with the particulars on which such sanction or permission was based, or after such sanction or permission has been lawfully withdrawn, or
(iii) is being carried on or has been completed in breach of any provision contained in this Act or in the Schedule or in any rules or regulations in this behalf, or
(b) that any building or projection exists in violation of any condition, direction or requisition lawfully given or made under this Act or the rules or the regulations made thereunder, or
(c) that any material alteration of, or addition to, any building has been commenced or is being carried on or has been completed in breach of any provision contained in this Act or the Schedule or in any rules or regulations in this behalf, it may, after giving the owner of the building a reasonable opportunity of being heard, make an order directing that such erection, alteration, addition or projection, as the case may be, or so much thereof as has been executed unlawfully, be demolished or altered and, upon such order, it shall be the duty of the owner to 9 cause such demolition or alteration to the satisfaction of the Board of Councilors within such period as may be fixed in this behalf. In default, such erection, alteration, addition or projection, as the case may be, may be demolished or altered by the Board of Councilors at the expense of the said owner.
(2)The procedure relating to the opportunity of hearing to be given to the owner of the building under sub- section (1) shall be such as may be prescribed. (3)An appeal against an order made by the Board of Councilors in this behalf shall lie with the [Court having jurisdiction] [(4) Omitted.] (5) Notwithstanding anything contained in the foregoing provisions of this section or elsewhere in this Chapter, if the Chairman-in-Council is of opinion that immediate action is necessary in respect of any building being constructed, or any work being carried on, in contravention of the provisions of this Act, it may, for reasons to be recorded in writing, cause such building or work to be demolished forthwith."
15. Admittedly, the reasoned order under challenge has been passed on the direction of the Court by the chairman of the Respondent No.7/ Panihati Municipality.
16. In spite of there being prima facie materials on record that the 4th floor and a construction of a community hall on the 5th floor are unauthorized and illegal, there is clear inaction on the part of the Respondent No. 7/ Panihati Municipality thus effecting the basic rights of the Petitioners to live in a civilized society, where the rule of law is in force.
17. The rule of Law is the principle that all people and institutions are subject to and accountable to law that is fairly applied and enforced. It's a cornerstone of democratic societies, ensuring equality, justice and protection of individual rights.
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18. In Dipak Kumar Mukherjee Vs. Kolkata Municipal Corporation & Ors., (2013) 5 SCC 336 decided on 8 October, 2012, the Supreme Court further held:-
"8. What needs to be emphasised is that illegal and unauthorised constructions of buildings and other structures not only violate the municipal laws and the concept of planned development of the particular area but also affect various fundamental and constitutional rights of other persons. The common man feels cheated when he finds that those making illegal and unauthorised constructions are supported by the people entrusted with the duty of preparing and executing master plan/development plan/zonal plan. The reports of demolition of hutments and jhuggi jhopris belonging to the poor and disadvantaged section of the society frequently appear in the print media but one seldom gets to read about demolition of illegally/unauthorisedly constructed multi-storeyed structures raised by economically affluent people. The failure of the State apparatus to take prompt action to demolish such illegal constructions has convinced the citizens that planning laws are enforced only against poor and all compromises are made by the State machinery when it is required to deal with those who have money power or unholy nexus with the power corridors."
19. In Supertech Limited Vs. Emerald Court Owner Resident Welfare Association & Ors., (2021) 10 SCC 1 decided on 31 August, 2021, the Supreme Court held: -
"161. The judgments of this Court spanning the last four decades emphasise the duty of planning bodies, while sanctioning building plans and enforcing building regulations and bye-laws to conform to the norms by which they are governed. A breach by the planning authority of its obligation to ensure compliance with building regulations is actionable at the instance of residents whose rights are infringed by the violation of law. Their quality of life is directly affected by the failure of the planning authority to enforce compliance. Unfortunately, the diverse and unseen group of flat buyers suffers the impact of the unholy nexus between builders and planners. Their quality of life is affected the most. Yet, confronted with the economic might of developers and the might of 11 legal authority wielded by planning bodies, the few who raise their voices have to pursue a long and expensive battle for rights with little certainty of outcomes. As this case demonstrates, they are denied access to information and are victims of misinformation. Hence, the law must step in to protect their legitimate concerns."
20. In Popcorn Entertainment and Anr. Vs. City Industrial Development, (2007) 9 SCC 593 decided on 23 February, 2007, the Supreme Court further held:-
"22. He invited our attention to Whirlpool Corpn. case [(1998) 8 SCC 1] wherein this Court has held that there are three clear-cut circumstances wherein a writ petition would be maintainable even in a contractual matter. Firstly, if the action of the respondent is illegal and without jurisdiction, secondly, if the principles of natural justice have been violated, and thirdly, if the appellants' fundamental rights have been violated.
47. We have given our careful consideration to the rival submissions made by the respective counsel appearing on either side. In our opinion, the High Court has committed a grave mistake by relegating the appellant to the alternative remedy when clearly in terms of the law laid down by this Court, this was a fit case in which the High Court should have exercised its jurisdiction in order to consider and grant relief to the respective parties. In our opinion, in the instant case, 3 of the 4 grounds on which writ petitions can be entertained in contractual matter were made out and hence it was completely wrong of the High Court to dismiss the writ petitions. In the instant case, 3 grounds as referred to in Whirlpool Corpn. [(1998) 8 SCC 1] have been made out and accordingly the writ petition was clearly maintainable and the High Court has committed an error in relegating the appellant to the civil court."
21. In Uttar Pradesh Power Transmission Corporation Ltd and Anr. Vs. CG Power & Industrial Solutions Ltd., (2021) 6 SCC 15 decided on 12 May, 2021, the Supreme Court held:-
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"67. It is well settled that availability of an alternative remedy does not prohibit the High Court from entertaining a writ petition in an appropriate case. The High Court may entertain a writ petition, notwithstanding the availability of an alternative remedy, particularly: (i) where the writ petition seeks enforcement of a fundamental right; (ii) where there is failure of principles of natural justice or (iii) where the impugned orders or proceedings are wholly without jurisdiction or (iv) the vires of an Act is under challenge. Reference may be made to Whirlpool Corpn. v. Registrar of Trade Marks [Whirlpool Corpn. v. Registrar of Trade Marks, (1998) 8 SCC 1 :
AIR 1999 SC 22] and Pimpri Chinchwad Municipal Corpn. v. Gayatri Construction Co. [Pimpri Chinchwad Municipal Corpn. v. Gayatri Construction Co., (2008) 8 SCC 172] , cited on behalf of Respondent 1."
22. In Godrej Sara Lee Ltd. Vs. Excise & Taxation Officer- cum- Assessing Authority and Ors., (2023) SCC Online SC 95 decided on 1st February 2023, the Supreme Court held: -
"6. At the end of the last century, this Court in paragraph 15 of the its decision reported in (1998) 8 SCC 1 (Whirlpool Corporation v. Registrar of Trade Marks, Mumbai) carved out the exceptions on the existence whereof a Writ Court would be justified in entertaining a writ petition despite the party approaching it not having availed the alternative remedy provided by the statute. The same read as under:
(i) where the writ petition seeks enforcement of any of the fundamental rights;
(ii) where there is violation of principles of natural justice;
(iii) where the order or the proceedings are wholly without jurisdiction; or
(iv) where the vires of an Act is challenged."
23. In Whirlpool Corporation Vs. Registrar Of Trade Marks, Mumbai & Ors., (1998) 8 SCC 1 decided on 26 October, 1998, the Supreme Court held: - 13
"15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field.
20. Much water has since flown under the bridge, but there has been no corrosive effect on these decisions which, though old, continue to hold the field with the result that law as to the jurisdiction of the High Court in entertaining a writ petition under Article 226 of the Constitution, in spite of the alternative statutory remedies, is not affected, specially in a case where the authority against whom the writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation."
24. It is on record that, the order under challenge in the present Writ has been passed by the chairman of the Respondent No. 7/ Panihanti Municipality and not the Board of Councillors and thus the order under challenge clearly does not come within the ambit of Section 218 of the West Bengal Municipality Act, 1993.
25. In the present case, there prima facie appears that:-
a) The Writ Petitioners seek enforcement of a Fundamental Right.14
b) And there has been a failure of principle of Natural Justice.
26. The writ petition is thus maintainable and the matter be fixed for final hearing and orders on 14th June 2024.
27. Taking note of the reasoned order under challenge, passed by the chairman (the Respondent no. 8 herein), this court hopes that during the intervening vacation, the Respondent No. 7/ Panihati Municipality shall act as per the observations made in the said order, so as to enable all stakeholders herein to ensure that justice is done and rule of law prevails.
28. WPA 13039 of 2023 is accordingly allowed.
29. All connected applications, if any, stand disposed of.
30. Interim order, if any, stands vacated.
31. Copy of this order be sent to the learned Trial Court for necessary compliance.
32. Urgent Photostat certified copy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(Shampa Dutt (Paul), J.)