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2022 DIGILAW 269 (TRI)

Rahul Dey v. State of Tripura

2022-06-20

T.AMARNATH GOUD

body2022
JUDGMENT T. Amarnath Goud, J. - The writ petitioner has approached this Court with a prayer to issue a writ in the nature of Mandamus and/or any other direction or directions and/or order or orders of like nature directing the respondents to implement the Order of demolition of the unauthorized building, dated, 23.08.2021 and 29.01.2021 issued by the Assistant Municipal Commissioner, Central Zone AMC. 2. The case of the writ petitioner is that he has prayed for necessary direction upon the respondents No. 1 to 4 to demolish the unauthorized and illegal structure of the respondent No. 5 as per the orders dated 23.08.2021 and 29.01.2021 issued by the Assistant Municipal Commissioner, Central Zone, AMC. 3. The petitioner earlier filed WP(C) No. 504 of 2020, before the Court of the then Chief Justice, High Court of Tripura, Mr. Akil Kureshi objecting to the construction of a building which has been started by the respondent No. 5. This Court vide order dated 10.12.2020 disposed of the said writ petition by directing the AMC to complete the proceeding for removal/demolition of the construction. This Court further directed that respondent No. 5, shall not carry out any construction without obtaining permission and approval of plans for construction from the AMC. 4. The petitioner issued a legal notice, dated 16.01.2021 to the respondent Nos. 3 & 4 to comply with the order dated 10.12.2020 passed in WP(C) No. 504 of 2020 and to ensure that the respondent No. 5 cannot further violate the Order of the this Court. 5. The respondents did not comply with the order dated 10.12.2020. The petitioner again issued a legal notice dated 24.03.2021 informing the respondents No. 3 & 4 that the un-official respondent has been carrying on the construction violating the Order of this Court. The petitioner further requested to demolish the illegal construction of the un-official respondent in terms of Section 133(1) of the Tripura Municipal Act, 1994. 6. Despite the legal notice dated 24.03.2021, respondent No. 5 has been carrying out the illegal construction. The unofficial respondent along with some others entered the house of the petitioner and assaulted his family members. The sister of the petitioner lodged an FIR at the police station. 7. Since the un-official respondent then filed Contempt petition before this Court vide Cont. Cas(C) No. 58 of 2021. The unofficial respondent along with some others entered the house of the petitioner and assaulted his family members. The sister of the petitioner lodged an FIR at the police station. 7. Since the un-official respondent then filed Contempt petition before this Court vide Cont. Cas(C) No. 58 of 2021. Respondents No. 2, 3 & 4 filed a reply by way of affidavit that on 23.08.2021, the Assistant Municipal Commissioner, Central Zone, passed an order of demolition of the entire building construction as per the judgment and order of this Court and to submit execution report within 10 days. Failing which the AMC will forcefully demolish the said building and the required cost for removal will be recovered from the respondent No. 5. 8. Thereafter, this Court by order dated 11.11.2021, closed the Cont. Cas(C)58 of 2021 since the final order has been passed by the AMC for demolition of illegal building construction. It is open for AMC to take such necessary steps against the private respondents strictly in accordance with the law. 9. Till date, respondent No. 5 did not demolish the unauthorized construction nor has submitted the execution report. 10. Thereafter, the Assistant Municipal Commissioner Central Zone, AMC by letter dated 29.01.2021 directed respondent No. 5 to stop illegal building construction which is considered without any approval from AMC within 15 days failing which the Municipal Authority will take an ex-parte decision according to Tripura Municipal Act, 1994. But till date, respondent No. 5 has not stopped the illegal building construction. 11. Under such circumstance as stated above, the writ petitioner herein has filed this instant writ petition and prayed for the following relief:- 'I. Issue Rule upon the respondents to show cause as to why a writ in the nature of Mandamus and/or order/orders and/or direction/directions of like nature shall not be issued whereby directing the respondents to implement the order of demolition of unauthorized building, dated 23.08.2021 issued by the Assistant Municipal Commissioner, Central Zone, AMC. II. Issue Rule upon the respondents to show cause as to why a writ in the nature of Mandamus and/or order/orders and/or direction/directions of like nature shall not be issued whereby directing the respondents to directing the respondents to implement the Order of demolition of unauthorized building dated, 29.01.2021 issued by the Assistant Municipal Commissioner, Central Zone, AMC. III. Make the rule absolute. IV. Call for records. III. Make the rule absolute. IV. Call for records. V. Pas any further Order/Orders as this Hon'ble High Court considered fit and proper.' 12. Heard Mr. P. Roy Barman, learned Sr. counsel assisted by Ms. A. Debbarma, learned counsel appearing for the petitioner as well as Mr. M. Debbarma, learned Addl. G.A. appears for the respondents. 13. Mr. P. Roy Barman, learned Sr. counsel appearing for the petitioner submitted that respondent No. 5 is the neighbor of the petitioner herein and has been carrying on building construction violating the Order of this Court. Learned Sr. counsel further contended that the duty of the Agartala Municipal Corporation is that they should see that the unauthorized construction should be demolished and they relied upon Section 133(1) of the Tripura Municipal Act, 1994 14. Heard Mr. M. Debbarma, learned Addl. G.A. appearing for the State-respondents. 15. After considering the arguments advanced by the petitioner's counsel, this Court is of the opinion that it is purely a private civil dispute between the petitioner and respondent No. 5. The petitioner has an effective remedy in approaching the concerned Civil Court by filing a suit seeking relief against unauthorized construction by the un-official respondent, if there is any, causing hindrance to the petitioner. When there is an effective alternative remedy, the petitioner cannot invoke Article 226 of the Constitution of India. It is not proper to give a finding under Article 226 with regard to the issues of whether the petitioner and the unofficial respondent are neighbours, to what extent the property of the petitioner is constructed, to what extent the un-official respondent is constructing the property, whether he is having a plan or not and what are the deviations. All the above issues are involving the disputed question of facts and the same needs to be demonstrated before the proper Trial Court. 16. All the above issues are involving the disputed question of facts and the same needs to be demonstrated before the proper Trial Court. 16. The provision of Section 133(1) of the Tripura Municipal Act, 1994 reads as under:- '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 nay 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 said owner.' 17. As per the above section, the Municipal authorities shall take steps in accordance with the law in regard to the issues of issuing notice, demolition, and stopping unauthorized construction. So, it is the duty of the Agartala Municipal Authorities to look into such constructions. This is not public interest litigation to entertain and take cognizance upon the compliant of the petitioner. It is purely a private dispute between the petitioner and the respondent and involving Agartala Municipal Corporation and invoking Article 226 of the Constitution of India may not be warranted. 18. When the petitioner can always agitate his legal rights and seek appropriate relief before the Civil Court, adopting this method of arm twisting against the un-official respondent by way of filing complaints before the Municipal Corporation and invoking Article 226 of the Constitution of India and seeking mandamus to take action, he is only abusing the process of the law. It cannot be said that the petitioner mere filing complaints before the official respondents has approached with clean hands. It cannot be said that the petitioner mere filing complaints before the official respondents has approached with clean hands. Even the bonafide of the petitioner, as well as the conduct of the un-official respondent No. 5, requires legal scrutiny and the same is not possible under Article 226 of the Constitution of India but it is more effective before the Civil Court. The action of the petitioner in converting the litigation under the Civil Court into petition under Article 226 of the Constitution of India by way of writ jurisdiction is unwarranted and, accordingly, the same is dismissed.