Judgment:
WP597of 2004 IN THE HIGH COURT AT CALCUTTA ORIGINAL SIDE SHOME NATH ROY CHOWDHURY & ANR.
Versus THE K.M.C.BEFORE: The Hon'ble JUSTICE DEBANGSU BASAK Date : 23rd April, 2015.
Mr.Jishnu Chowdhury,Advocate appeaRs.Mr.Nilay Sengupta,Advocate appeaRs.For KMC : Mr.Jugal Chandra Porel,Advocate Mr.Debangshu Mondal,Advocate The Court : - The challenge in the writ petition is directed against an order dated November 27, 2003 passed by the Special Officer (Building).Initially when the writ petition was heard it was submitted by the learned Counsel appearing for the writ petitioners that he required time to take instructions as to whether or not the writ petitioners would comply with the order impugned by paying the fine imposed.
The writ petition was adjourned from time to time to allow the learned Counsel to obtain such instructions.
Today the learned Counsel for the writ petitioners submits that the earlier prayer for adjournment was made on a mistaken appreciation of facts.
The writ petitioners seek to proceed with the hearing of the writ petition on merits.
It is submitted on behalf of the writ petitioners that they had suffered a notice under Section 401 of the Kolkata Municipal Corporation Act, 1980.
Being aggrieved the writ petitioners had challenged such stop work notice which was disposed of by the order dated September 8,2000.
It is contended that the Special Officer could not have imposed the fine which has been sought to be done.
It is also submitted that the Building Rules of 1990 were not violated by the writ petitioners in carrying out the repaiRs.Reference has also been made to the legality of the structure certificate issued at the behest of the Corporation authorities.
On the question of availability of an alternative remedy, reliance has been placed on (2010) 4 Cal LT591(M/S.Automobile Association of Eastern India versus Board of Trustees for the Port of Kolkata & Ors.) as also (2004) 13 SCC665(Durga Enterprises (P) LTD.& Anr.
versus Principal Secretary, Government of U.P.& Anr.) On behalf of the Corporation authorities it is submitted that the writ petition is not maintainable as the writ petitioners have an alternative remedy.
The order impugned is appellable under Section 400(3) of the Kolkata Municipal Corporation Act,1980.
The writ petitioners had initially applied for permission to repair.
Such permission to repair was granted on the condition that only repair be carried out and that if any work carried out is found to be beyond what has been permitted, the same would be demolished treating it as an unauthorised construction.
I have considered the rival contentions of the parties and the materials made available on record.
The subject matter of the challenge in the writ petition is the order dated November 27, 2003 passed by the Special Officer (Building) in a demolition case.
The proceedings have been initiated under Section 400(1) of the Kolkata Municipal Corporation Act, 1980.
The order finds unauthorised construction being made by the writ petitioneRs.It proceeds to record that no order of demolition is passed in respect of the unauthorised construction subject to the writ petitioners’ fulfilling the three conditions set out therein.
The order further records that in the event such conditions are not fulfilled, the unauthorised construction would be demolished at the cost and risk of the writ petitioneRs.The fiRs.writ petitioner claims to be the owner of premises No.219B, Old China Bazar Street, Kolkata.
The fiRs.writ petitioner claims to have authorized the second writ petitioner to carry out repairs at such premises.
The fiRs.writ petitioner had applied for and obtained a legality of structure certificate dated May 24,2000 in respect of the three storeyed building standing at the said premises.
By a letter dated the fiRs.writ petitioner had applied for permission to carry out repairs in terms of Rule 3(2) of the Calcutta Municipal Building Rules,1990.
The Corporation authorities by their letter July 26,2000 was of the view that no building permit was required for carrying of repair under Rules 3(2) of the Building Rules,1990.
The writ petitioners claim to have carried out repairs in such context.
The Corporation authorities had issued a stop work notice dated August 28,2000.
The same was challenged by a writ petition.
The writ petition was disposed of by an order dated September 8,2000.
By such order the Corporation was granted liberty to cause inspection of the unauthorized construction, if any.
In case it was found that the repair work did not conform to Rule 3(2).the Corporation was granted liberty to initiate proceedings and take steps under Section 400(1) of the Act of 1980.
On inspection the Corporation authorities had found unauthorized construction and had initiated proceedings under Section 400(1) of the Act of 1980 in respect thereof.
The order dated November 27,2003 passed by the Special Officer (Building) in such proceedings under Section 400(1) of the Act of 1980 is under challenge in the present writ petition.
The order impugned herein has been passed under Section 400 (1) of the Kolkata Municipal Corporation Act,1980 and is appealable under Section 400(3) of the Kolkata Municipal Corporation Act,1980.
In M/S.Automobile Association of Eastern India(supra) this Hon’ble Court has held that the existence of an alternative remedy is not an absolute bar to maintaining a writ petition.
In exceptional cases, a writ petition can be entertained notwithstanding the existence of an alternative remedy and specially when the order impugned is found to be violative of principles of natural justice and/or without jurisdiction.
In the instant case, I do not find that the impugned order has been passed in violation of the principles of natural justice or that order impugned is without any jurisdiction.
The writ petitioners were heard by the Special Officer (Building).The impugned order is reasoned.
The Special Officer (Building) has exercised jurisdiction vested upon it by law.
It did not travel beyond its jurisdiction in returning the proceedings recorded or in arriving at the conclusion.
The contention of the writ petitioners that some Building Rules are not applicable or some fees are not payable, are contentions which relate to the merits of the matter and does not impugn upon the jurisdiction of the Special Officer (Building) to hear and dispose of the proceedings initiated under Section 400(1) of the Kolkata Municipal Corporation Act,1980.
It is not contended on behalf of the writ petitioners that the Special Officer (Building) had assumed jurisdiction which it was not vested with in law.
There is no exceptional circumstance existing in favour of the writ petitioners to entertain the writ petition.
In Durga Enterprises (P) LTD.& Anr.
(supra) the Hon’ble Supreme Court has found that since the High Court had entertained the writ petition in which pleadings were also complete the same ought to have been decided on the merits instead of relegating the parties to a suit.
The writ petition should not have been summarily dismissed on the ground that there is a remedy of civil suit.
The fact scenario in the present is different.
Durga Enterprises (P) LTD.& Anr.
(supra) does not deal with a situation where an alternative remedy is provided by the statute which allows the passing of the order impugned.
In this case, the writ petitioners have assailed the order dated November 27, 2003 passed by the Special Officer (Building) of the Kolkata Municipal Coporation.
The impugned order is appealable under the statute which allows passing of such order.
The impugned order records that the Special Officer (Building) had considered various exhibits and the pleadings before it.
All such exhibits and documents considered by the Special Officer are not made available for consideration by the writ petitioneRs.The writ petitioner had an alternative efficacious remedy available.
No ground has been made out as to why such alternative remedy was not availed of by the writ petitioneRs.The order impugned herein is dated November 27,2003.
Te writ petition has been affirmed on March 22,2004.
Section 400(3) of the Act of 1980 which allows an appeal to be filed prescribes a period of 30 days to do so.
Even if one takes the date of receipt of the order dated November 27,2003 to be received b the writ petitioners on February 20,2004 as pleaded in the writ petition to be correct, this writ petition is not within the prescribed period of 30 days under Section 400(3) of the Act of 1980.
The writ petitioners had allowed the statutory remedy to be banned by the limitation prescribed by the Act of 1980 and has thereafter assailed the impugned order.
Such a couRs.of conduct also disentitles the writ petitioners any remedy under Article 226 of the Constitution of India.
In such circumstances, I find the writ petition not to be maintainable.
WP No.597 of 2004 is dismissed.
No order as to costs.
(DEBANGSU BASAK, J.) S.Chandra