Judgment:
G. C. Gupta, J.
1. By this writ petition a notice dated 19th October, 1991 issued by the Calcutta Municipal Corporation under Section 401 of the Calcutta Municipal Corporation Act, 1980 asking the petitioner 'to stop forthwith all constructions including additions and alterations at premises No. 46E, Raft Ahmed Kidwai Road, Calcutta' is under challenge. Another notice dated 24th October, 1991 was issued by the Calcutta Municipal Corporation to the petitioner stating that guards have been posted to oversee that the unauthorised construction is not continued and for that purpose the petitioner was sought to be made liable to pay Rs. 200/- per day. Both the notices are under challenge on the following grounds:
(a) That the petitioner has done some exterior plastering works as well as white washing at premises No. 46F, Rafi Ahmed Kidwai Road. He also claims to have replaced the old and wretched this over the roof and placed new tins over the said room. He alleges that the work undertaken by him does not come within the meaning of addition, alteration and/or construction nor does the same require any permission from the Calcutta Municipal Corporation authority.
(b) The impugned notice dated 19th October, 1991 is contrary to the provisions of the Calcutta Municipal Corporation Act and/or Rules and/or Regulations made thereunder.
2. Mr. Das Adhikary, learned advocate appearing for the petitioner submitted that in the facts of this case no notice under Section 401 could have been issued. He also submitted that in view of the fact that no affidavit-in-opposition dealing with the allegations made in the writ petition has been filed, the averments made in the writ petition should be deemed to be true and relief should be granted on that basis following the theory of non-travers. In support of his submission Mr. Das Adhikary relied on a judgment reported in : AIR1973SC627 (Controller of Court Ward, Kolhapur and Anr. v. G. N. Gharpade and Ors.)
3. Nobody appeared for the Corporation nor any affidavit-in-opposition has been filed but that in my view, is no reason for the purpose of granting or passing an order, as prayed for. Relief, in my view, can only be granted provided the writ petitioner has been able to make out a case, which is unfortunately not the case here.
4. The petitioner admits that he has made white washing. He also admits to have many other things. The Calcutta Municipal Corporation Building Rules, 1990-Rule 3 Sub-rule (2) provided that even for a work of white washing the owner is required to give 15 days notice in writing to the Municipal Commissioner stating the nature of work proposed to be undertaken by him. In this case, admittedly no such notice has been issued.
5. Section 401, Sub-section (1) provides as follows:
'Where the erection of any building or the execution of any work has been commenced or is being carried on without or contrary to the sanction referred to in Section 396 or in contravention of any condition subject to which such sanction has been accorded or in contravention of any provisions of this Act or the Rules or the Regulations made thereunder, the Municipal Commissioner may, in addition to any other action that may be taken under this Act, by order, require the person at whose instance the building the work has been commenced or is being carried on to stop the same forthwith.'
6. It would appear from the aforesaid section that a notice to stop work can be issued where any work has been commenced in contravention of any of the provisions of the Act or the Rules or the Regulations. The fact that the work was undertaken by the petitioner in contravention, of the Building Rules adverted hereinabove is an admitted position. Therefore, this Court is unable to sustain the submission made by the learned Counsel for the petitioner that the impugned notice was in contravention of the law or the Rules or the Regulations holding the field.
7. A writ in the nature of mandamus has been prayed for. A writ in the nature of mandamus can be issued to compel the authority concerned to do his legal duty. Before, such a writ can be issued a demand for justice is a precondition. Unless such a demand for justice is a precondition. Unless such a demand for justice is made, it cannot be said that the authority concerned has failed to perform the duty legally enjoined upon him nor can a mandamus be issued in that case. No such demand for justice has admittedly been made.
8. For the reasons aforesaid, this Court has come to the conclusion that the petitioner has not been able to make out a case for issuance of a mandamus.
9. This Court was inclined to impose exemplary cost, but costs are not being imposed for the reasons that (a) no affidavit-in-opposition has been filed; (b) nobody appeared on behalf of the Corporation at the time of hearing; and (c) the Corporation, it appears from the subsequent events, acted in fragrant disregard of the law; demolished the structure at least partially on 17th March, 1992 with the help of police without taking recourse to the machinery of law provided under Section 400 as also in violation of the interim order dated 25th November, 1991 passed by this Court. Mr. Adhikary submitted that the structure has been restored at the cost of the petitioner pursuant to orders of Court passed in contempt proceeding.
10. The impugned notices, in my view, spent their force after the structure was demolished by the Corporation illegally which in my view afforded a fresh cause of action to the petitioner which has already been remedied by this Court by directing restoration of the structure.
11. For the reasons aforesaid the petition is dismissed. This Court is not inclined to pass any further order on the contempt petition. The order allowing repairs passed on 11th June, 1992 is made absolute.
12. Let urgent xerox certified copy of this order, if applied for, be given to the parties as early as possible.