Dilip Kumar Podder vs Agartala Municipal Corporation And 3 Ors.

Heard Mr. S. Bhattacharjee, learned counsel appearing for the petitioner as well as Mr. K.K. Pal, learned counsel appearing for the Agartala Municipal Corporation-respondents.

The petitioner is a close neighbour of the respondent No.4. The respondent No.4, according to the petitioner, has erected a construction without any building plan. As the said unauthorized construction has been affecting the interest of the petitioner, he had lodged one complaint to Agartala Municipal Corporation on 15.05.2019 [Annexure-1 to the writ petition]. Based on the said complaint, the Assistant Municipal Commissioner issued a notice on 21.06.2021 [Annexure-2 to the writ petition] asking the respondent No.4 to produce the building plan. Meanwhile, she was directed to stop the construction with immediate effect. The said stop-construction order was renewed on 17.07.2019, the first day of hearing. The Assistant Municipal Commissioner caused the survey by competent Surveyors who had produced the inquiry report stating that the respondent No.4 could not produce any approved building plan for the disputed construction. Showing sufficient leniency, the respondent No.4 was asked to regularize the construction by taking expost facto approval of the building plan in accordance with the rule, but it was not known to the petitioner why such leniency was shown in violation of Section 133 of the Tripura Municipality Act, 1994. Thus, he had filed consecutive complaints on 21.12.2019 and 17.01.2020 for taking appropriate action. For his persuasion, the respondent No.4 was given notice to produce the building plan. On that juncture, some allegations were also levelled by the respondent No.4 against the complainant [the writ petitioner] that he had deviated from the approved plan while constructing his own house.

Finally, the order dated 06.07.2020 was passed by the Assistant Municipal Commissioner observing that the respondent No.4 could not show any approved building plan. She has submitted that the building was being constructed by her under PMAY scheme. She was not required to take an approved building plan. By the said order dated 06.07.2020, the respondent No.4 was asked to apply for a building plan for regularization of the matter within one month. The said order dated 06.07.2020 had been questioned by the petitioner. It has been urged in this writ petition that the respondents No.2 & 3 be directed to modify the order dated 06.07.2020 on issuing direction on the respondent No.4 to demolish the unauthorized construction and in the event of failure, such unauthorized construction be demolished by the respondents No.1,2 & 3.

The municipal respondents have filed the reply through Mr. K.K. Pal, learned counsel appearing for them. They have stated that since there is availability of alternative remedy in the form of an appeal under Section 133(3) of the Tripura Municipal Act, 1994, the writ petition is not maintainable. It has been further asserted that the building was constructed by the respondent No.4 under PMAY Scheme and she does not know whether the building plan was required or not and thus, the respondent No.4 was asked to apply for the building plan for regularization of the construction within one month i.e. from 06.07.2020. Even though the reply has been filed on 22.03.2021, the respondents No.1,2 & 3 have failed to state whether such plan has been submitted by the respondent No.4 or not. Mr. Pal, learned counsel has further submitted that this court in Ardhendu Bikash Sengupta vs. Agartala Municipal Corporation and Ors. [the judgment and order dated 17.12.2020 delivered in WA No.672 of 2021] has observed that " if the petitioner is aggrieved by delay in demolition, he may approach Agartala Municipal Corporation afresh for reminding them of their statutory obligation. But for this, he cannot maintain a writ petition." Mr. Pal, learned counsel has also relied on a decision of this court in Bimal Saha vs. Agartala Municipal Corporation and others [the order dated 01.04.2021 delivered in W.P.(C) No.85 of 2017] observing that for purpose of regularization of the unauthorized construction, the municipal authority can give opportunity to the person who has constructed building without any approved plan. According to this court, that decision does not have any relevance in the present context.

Mr. S. Bhattacharjee, learned counsel appearing for the petitioner has submitted that immediately after the order dated 06.07.2020 was passed, the petitioner approached the municipal authority and other authorities by filing an application for taking action against the unauthorized and illegal construction carried out by the respondent No.4. By the writ petition, the grievance of the petitioner has been enumerated in detail and finally, he has urged that in terms of the Tripura Municipal Act and the rules made thereunder, the unauthorized building as constructed by the respondent No.4 be demolished. Mr. Bhattacharjee, learned counsel has referred to Section 123 of Tripura Municipal Act, 1994 to show the requirement that over a land within Agartala Municipal Corporation, nobody can construct any building without taking prior permission from the Municipal Corporation. Section 123 of the said act provides that no land shall be used for construction of a building and no building shall be constructed unless a building plan is sanctioned for such purpose in accordance with provisions of the said Act. He has also referred to Section 133(1) of the said Act which provides as follows:

"133 (1) If the Municipality is satisfied that the construction has been commenced without obtaining sanction or permission or otherwise than in accordance with the particular on which such sanction or permission was based on any material alteration of, or addition to, building has been commenced or is being carried on or has been completed in breach of any provision contained in this Act or rules or regulations 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 executed unlawfully, be demolished or altered and, upon such order it shall be the duty of the owner to cause such demolition or alteration to the satisfaction of the Municipality within such period as may be fixed in this behalf. In default, such erection, alteration, addition or projection, as the case may be, demolished or altered by the Municipality at the expense of the said owner."

Based on thereupon, Mr. Bhattacharjee, learned counsel has urged this court to direct the respondents to demolish the construction erected by the respondent No.4. Be it noted in this juncture, the respondent No.4 did not file any reply to the allegations made by the writ petitioner. In respect of maintainability of the writ petition, Mr. Bhattacharjee, learned counsel has referred to a decision of the apex court in Hari Krishna Mandir Trust vs. State of Maharashtra and others, reported in (2020) 9 SCC 356 where the apex court has observed as follows:

In appropriate cases, in order to prevent injustice to the parties, the Court may itself pass an order or give directions which the government or the public authorities should have passed, had it properly and lawfully exercised its discretion. In Directors of Settlements, Andhra Pradesh and Others v. M.R. Apparao and Anr. : (2002) 4 SCC 638, Pattanaik J. observed:

'17........One of the conditions for exercising power under Article 226 for issuance of a mandamus is that the court must come to the conclusion that the aggrieved person has a legal right, which entitles him to any of the rights and that such right has been infringed. In other words, existence of a legal right of a citizen and performance of any corresponding legal duty by the State or any public authority, could be enforced by issuance of a writ of mandamus, "Mandamus" means a command. It differs form the writs of prohibition or certiorari in its demand for some activity on the part of the body or person to whom it is addressed. Mandamus is a command issued to direct any person, corporation, inferior courts or government, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. A mandamus is available against any public authority including administrative and local bodies, and it would lie to any person who is under a duty imposed by a statute or by the common law to do a particular act. In order to obtain a writ or order in the nature of mandamus, the applicant has to satisfy that he has a legal right to the performance of a legal duty by the party against whom the mandamus is sought and such right must be subsisting on the date of the petition [see Kalyan Singh vs. State of UP : AIR 1962 SC 1183. The duty that may be enjoined by mandamus may be one imposed by the Constitution, a statute, common law or by rules or orders having the force of law.‟

The Court is duty bound to issue a writ of Mandamus for enforcement of a public duty. There can be no doubt that an important requisite for issue of Mandamus is that Mandamus lies to enforce a legal duty. This duty must be shown to exist towards the applicant. A statutory duty must exist before it can be enforced through Mandamus. Unless a statutory duty or right can be read in the provision, Mandamus cannot be issued to enforce the same.

The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner's right to relief questions of fact may fall to be determined. In a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is, it is true, discretionary, but the discretion must be exercised on sound judicial principles. Reference may be made inter alia to the judgments of this Court Gunwant Kaur v. Municipal Committee, Bhatinda : (1969) 3 SCC 769 and State of Kerala v. M.K. Jose : (2015) 9 SCC 433. In M.K. Jose (supra), this Court held:-

"16. Having referred to the aforesaid decisions, it is obligatory on our part to refer to two other authorities of this Court where it has been opined that under what circumstances a disputed question of fact can be gone into. In Gunwant Kaur v. Municipal Committee, Bhatinda, it has been held thus:

"14. The High Court observed that they will not determine disputed question of fact in a writ petition. But what facts were in dispute and what were admitted could only be determined after an affidavit-in-reply was filed by the State. The High Court, however, proceeded to dismiss the petition in limine. The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner's right to relief questions of fact may fall to be determined. In a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is, it is true, discretionary, but the discretion must be exercised on sound judicial principles. When the petition raises questions of fact of a complex nature, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute may not appropriately be tried in a writ petition, the High Court may decline to try a petition. Rejection of a petition in limine will normally be justified, where the High Court is of the view that the petition is frivolous or because of the nature of the claim made dispute sought to be agitated, or that the petition against the party against whom relief is claimed is not maintainable or that the dispute raised thereby is such that it would be inappropriate to try it in the writ jurisdiction, or for analogous reasons.

From the averments made in the petition filed by the appellants it is clear that in proof of a large number of allegations the appellants relied upon documentary evidence and the only matter in respect of which conflict of facts may possibly arise related to the due publication of the notification under Section 4 by the Collector.

In the present case, in our judgment, the High Court was not justified in dismissing the petition on the ground that it will not determine disputed question of fact. The High Court has jurisdiction to determine questions of fact, even if they are in dispute and the present, in our judgment, is a case in which in the interests of both the parties the High Court should have entertained the petition and called for an affidavit-in reply from the respondents, and should have proceeded to try the petition instead of relegating the appellants to a separate suit."

(Emphasis in original and supplied)

Having appreciated the rival submissions as advanced by the counsel for the parties and also having due regard to Rule 54 of Tripura Building Rules, 2017 which according to the court does not waive any private individuals from taking approval of the building plan prior to its construction, this court is of the view that the respondents No.1,2 & 3 have some statutory obligations to discharge and a writ petition is maintainable to the limited extent of issuance of mandamus directing the statutory persons to discharge their obligations as provided by a statute. It has surfaced from the records that the respondent No.4 has not come forward by submitting the building plan for regularizing the construction. That apart, the application dated 11.11.2020 [Annexure-13 to the writ petition] for passing the order of demolition has not been attended to by the Assistant Municipal Commissioner, Central Zone, Agartala Municipal Corporation. Even in the reply, the respondents No.1,2 & 3 did not reveal whether within the stipulated time as prescribed by the order dated 06.07.2020 the respondent Nno.4 had filed any building plan for regularizing the construction which has been disputed by the petitioner.

In the circumstances, the Municipal Corporation-respondents are directed to decide the application dated 11.11.2020 within 30 days from the day when a copy of this order be made available by the petitioner. At the time of passing the order, the municipal corporation-respondents shall remember of their statutory obligation as provided under Section 133 (1) of the Tripura Municipal Act, 1994 and the rules made thereunder. If the writ petitioner is aggrieved by the order that would be passed in terms of this order by the municipal corporation-respondents, the writ petitioner will be at liberty to approach the appellate authority challenging the said order. Further, it is observed that even though the court has the power to mandate any officer saddling the responsibility to implement the statute or Act, but when there is an appellate provision as in this case it was available under Section 133(3) of the Tripura Municipal Act, 1994, that should have been ordinarily exhausted before approaching this court, inasmuch as the area of consideration is closely germane to the appellate jurisdiction. On every fall of hat, the High Court would not exercise their special jurisdiction under Article 226 of the Constitution where an alternative remedy is available.

In terms of the above, this writ petition stands allowed to the extent as indicated above.

There shall be no order as to costs.