Smt. Gita Mukherjee and Another vs State of West Bengal and Others

Satya Brata Sinha, J.—This appeal is directed against an order dated 8.5.98 passed by a learned Single Judge of this Court whereby and whereunder the writ petition filed by the appellants herein was disposed of directing the Calcutta Municipal to enquire into the matter and if in such enquiry it appears that the private respondent has constructed a building in deviation the plan sanctioned to him, liberty was given to the said Corporation to take necessary steps in accordance with law. The appellant No. 2 who has appeared in person, inter alia, submits that the learned trial Judge went wrong in issuing the aforementioned direction, in as much as, in the writ application the appellants had questioned the authority of Calcutta Municipal Corporation in issuing the aforementioned direction, in as much as, in the writ application the appellants had questioned the authority of Calcutta Municipal Corporation in sanctioning the building plan on the ground that the same had been done in violation of the building rules. It is submitted that the provisions of the building rules framed under the provisions of Calcutta Municipal Corporation Act, are mandatory in nature, and if, by reason of such violation any amenity etc., is curtailed of a neighbour, the neighbour will have a right to move this court for obtaining appropriate relief. It is urged that in this situation, this court may appoint a Special Officer so as to make a spot inspection for the purpose of verification as to whether construction raised by the private respondent were in terms of the building rules, or not.

Having heard the learned counsel for the parties, we are, however, of the opinion that the question as to whether the Calcutta Municipal Corporation has sanctioned the building plan in violation of the building rules framed by it, being essentially a question of fact, it would not be prudent for this court to accede to the prayer of Mr. Mukherjee, appellant no. 2 herein. It is now a well settled principle of law that a although this court in exercise of its power under Article 226 of the Constitution of India in a given case, may issue necessary direction, which the statutory authority itself can do, but normally the statutory authorities should be permitted to perform their statutory duties at the first instance. In the State of West Bengal and Others Vs. Nuruddin Mallik and Others, , the Apex Court while considering a similar submission observed:

The courts can either direct the statutory authorities, where it is not exercising its discretion, by mandamus to exercise its discretion, or when exercised, to see whether it has been validity exercised. It would be inappropriate for the court to substitute itself for the statutory authorities to decide the matter.

In this view of the matter, in modification of the order dated 8.5.98 passed by the learned Single Judge, we direct the Calcutta Municipal Corporation to cause an enquiry also to be made as to whether the building plan sanctioned in favour of the private respondent was in terms of the provisions of the building rules, or not, and in particular. Rules 54, 56 and 57 thereof. Such an order may be passed after giving an opportunity of hearing to the appellants as also the private respondent. If necessary, a fresh inspection of the site may be made by the authorities of Calcutta Municipal Corporation in presence of the parties. For the aforementioned purpose, it would be open to the appellants to file a written representation pointing out the deviations allegedly caused and/or are likely to be caused by reason of sanctioning of the building plan and/or construction raised by the private respondent. The appropriate authority of Calcutta Municipal Corporation may pass a speaking order after hearing the parties concerned, at an early date and preferably within a period of 6 weeks from the date of communication of this order. The appropriate authorities shall communicate the order passed by them to the parties concerned.

The appeal is disposed of with the aforementioned observations and directions.

M.H.S. Ansari, J.

I agree.