Calcutta High Court
Smt. Maya Sen vs Bhawani Mazumdar And Ors. on 31 July, 1997
Equivalent citations: (1997)2CALLT301(HC)
JUDGMENT Rabin Bhattacharyya, J.
1. This appeal is directed against an order passed by the learned trial Judge on 24.2.97 in connection with the Civil Order No. 6573(W) of 1991.
2. The case reveals a wrangle between the two neighbours over the construction of the premises by the Respondent No. 1 to the adjoining East of the writ petitioner's building in patent violation of the Bengal Municipal Act. It was a cry in despair by the writ petitioner when she vindicated her grievance before the municipal authority about the wanton act of her neighbour. In course of hearing before the learned trial Judge, a special officer was deputed to ascertain about the extent of violation of the impugned construction. The special officer in his turn submitted a report in course of hearing. After considering the material submission made by the rival parties, the learned trial court modified the interim order dated 27.3.91 as extended on 16.5.91, according to the respondent No. 4 to complete the plastering, flooring and white washing of the entire building including fittings of the windows, doors etc. and carry out other works in terms of the prayer made in the application.
3. The order, according to the petitioner appellant has made an infringement of her right since construction was put up hostile to the provisions of the Bengal Municipal Act, 1932. There was a total misrepresentation and suppression of material facts which disentitled the respondent to be armed with an order. The report of the special officer suffers from perversity as it is not in agreement with the plan sanctioned by the authority. The report of the special officer had an edge over the Municipal plan which cannot authorise the impugned construction as legal or authorised.
4. To dislodge the claim for stay, the respondents by the affidavits have denounced the claim of the appellants in as much as the illegality of the construction, as spoken to by the appellants is a ruse. The construction was put up with much respect to the sanctioned plan. The appellant has polluted the truth and has been prosecuting a remedy in the Writ court at a cheaper cost. She has dexterously avoided her unsuccessful actions in other forums, the only object of which is to steal a march on the respondent. She has been trying to make a mountain out of a mole hill when the deviation is inextricably insignificant and minor. She has exaggerated her claim out of proportion.
5. The right to initiate a Writ for relief in the context, survives for consideration.
6. Mr. A Ghosh appearing for the appellant, has strenuously attacked the order impugned on the plea that it has no fulcrum. It, according to him, does not tilt with the provisions of law. The departure and deviation made from the sanctioned plan have been over looked by the learned trial Judge which came to be caught up by the report of the special officer deputed by the court. It is well settled principle of law, according to him, that any construction made de hors the sanctioned plan is liable to be dismantled. There are certain ups and downs which have resulted in failure of justice. The same can be repaired by a command of the court directing the Municipality to pull down the unauthorised construction. The inaction on the part of the Municipality speaks a considerable volume against the conduct of it. The court should not be caught unawares about the unhappy situation generated by the Respondent No. 1 by her acts and deeds. The court in such circumstances have all along frowned at the action and compelled times without number the restoration of right. The developing thrust of the argument of Mr. Ghose is that it will be the duty of the court to discourage such construction and restore the balance by dismantling the structure. In the situation, the court ought not to have modified the interim order of injunction dated 27.3.91 and vacated it outright.
7. Mr. Kashikanta Moitra appearing for the Respondent No. 1 has argued with much vehemence that the boot is on the other leg. The petitioner appellant, after having explored remedies in other forum, has made an attempt, infact really did, to frustrate the process of construction of the building. It stares on our face that she made successive assaults on the civil court for injunction and for other reliefs which ultimately became abortive. She hunted the writ court for relief with that end in view that the action in a writ court would be an enzyme for the desired objective come what may.
8. It is absolutely a private dispute between the parties verges on disputed question of fact and, therefore, the writ court would be slow to interfere with the order complained of. The power under the writ could only be invoked, if there is an element of public law. The report of the special officer does not for a moment afford any scope to conclude the violation of the sanction plan. On the contrary, the report of the special officer, in particular, in paragraph 22 indicates that the writ petitioner appellant never raised any finger of protest about first, second and third storey of the building in dispute.
9. Further, there is no slender material on record to contradict the report of the special officer. The violation is fractional, as found by him. The appellant petitioner has come through the back-door to excavate the relief which is impermissible when the dispute assumes the jurisdiction of civil court. Unless there be an element of public law, the invocation of writ jurisdiction is impermissible. More so, when the dispute for decision is founded upon the doctrine of exhaustion of statutory remedies, the Election of the alternative forum is admittedly barred. The appellant petitioner could not make out any ground in her application to bring the case within the wing of writ court. A petition under Article 226 cannot be explored to prolong the proceedings, if it does not infringe the fundamental right and the order, if any, passed contrary to the principle of natural justice.
10. There could be no bone of contention that there is any jurisdiction or lapses committed by a different forum while prima-facie adjudicating upon the dispute between the parties which is of civil nature.
11. The appellant, it will not be out of place to mention has camouflaged the action in other forum and being baffled by her attempt to secure relief there, the handy provision of writ has been made to be the main thrust of her claim. The blatant misuse of useful instruments, as for example, Mandamus, Certiorary, Prohibition, Quo warranto and habeas corpus has often been taken aid of under the pretence of violation of fundamental right or infringement of natural justice, but when we taste the bottom of it as in the instant case, the court often finds that the claim within the fold of writ degenerates into decay.
12. Accordingly, we are of the view, after having considered the documents on record and after having heard the submission of the learned Counsel for the parties the, claim of the appellant petitioner does not foreshadow that the writ jurisdiction could be availed of to accord to her the relief. Accordingly, judicial redress could not be extended in the facts and circumstances of this case.
13. In the premise, we reject the stay application and dispose of the appeal by our order.