Calcutta High Court
Anr vs The Kolkata Municipal on 18 September, 2025
OD-1 to 3
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
WPO/847/2013
IA No.GA/2/2025
M/S. POPAT & KOTECHA PROPERTY &
ANR.
-VERSUS-
THE KOLKATA MUNICIPAL
CORPORATION AND ORS.
WPO/30/2021
M/S. POPAT & KOTECHA PROPERTY &
ANR.
-VERSUS-
THE KOLKATA MUNICIPAL
CORPORATION AND ORS.
WPO/354/2020
IA No.GA/1/2025
M/S. POPAT & KOTECHA PROPERTY &
ANR.
-VERSUS-
THE KOLKATA MUNICIPAL
CORPORATION AND ORS.
BEFORE:
The Hon'ble JUSTICE SHAMPA DUTT (PAUL)
Date : 18th September, 2025.
Appearance:
Mr. Mainak Bose, Sr. Adv.
Mr. Sankarsan Sarkar, Adv.
Mr. Tanmoy Sett, Adv.
Ms. Sucheta Das, Adv.
...for the petitioner.
2
Mr. Ashok Kumar Banerjee, Sr. Adv.
Mr. Alak Kumar Ghosh, Adv.
Mr. Biswajit Mukherjee, Adv.
Mr. Fazlul Haque, Adv.
Ms. Manisha Nath, Adv.
...for the KMC.
Ms. Tapati Samanta, Adv.
...for the State.
The Court: All the three writ applications are being heard together.
Vide an order dated 14th February, 2019 the Hon'ble Supreme Court in
Popat & Kotecha Property & Anr. vs. Kolkata Municipal Corporation & Ors. in
SLP(C) No.22074/2018, upon hearing the parties passed the following order:
"We are informed that Writ Petition (C) No.847/2013 is still
pending before a learned Single Judge of the High Court. The
petitioners are at liberty to amend that petition to add additional
grounds which may cover the grounds already taken in the other two
writ petitions being Writ Petition (C) No.109/2016 and Writ Petition
(C) No.166/2014. The amendment to be carried out within a period
of eight weeks from today. The respondents are given four weeks'
time thereafter to reply to the amended writ petition The learned
Single Judge shall then take up the amendment application and the
writ petition and dispose of the same as expeditiously as possible.
The Special Leave Petitions are disposed of accordingly.
Pending applications, if any, also stand disposed of."
By virtue of the said order, the grounds taken in WPO/354/2020 and
WPO/30/2021 was brought on record by way of an amendment in WPO/847/2013
which resulted in WPO/847/2013 being a composite writ application of the said
three writ petitions.
IA No.GA/2/2025 has been filed by the petitioner praying for leave to
amend the writ application of the year 2013. It appears that the said application for
amendment has been filed after 12 long years.
Learned counsel for the Kolkata Municipal Corporation (KMC) has raised
the point of maintainability on the ground of alternative remedy, which has been
strongly objected to by the writ petitioner on the ground that the said issue has
been raised at a belated stage. The said contention of the petitioner has been met
by the learned Advocate for the Kolkata Municipal Corporation, who submits that
the issue of maintainability was raised at the earliest opportunity i.e., in the
affidavit-in-opposition filed by the respondent/KMC.
It appears from the said affidavit-in-opposition that the KMC raised the
issue of maintainability at paragraph 4(XXV), which is as follows:
"XXV. Since the Hearing Officer had passed the orders in
respect of annual valuations for the periods w.e.f. 4/1993-94, 4/1999-
2000, 4/2005-06 and 4/2011-12 and the same is appealable in terms
of the KMC Act, 1980, the present proceedings are not maintainable
as the petitioners can agitate all points before the Tribunal
including the alleged procedural violation."
As such, the contention of the writ petitioner that the issue of
maintainability has been raised at a belated stage, is not substantiated.
Admittedly, the order in the present case has been passed by the Hearing
Officer-XV. The writ application has been preferred challenging the order dated
24th December, 2019 passed by the Hearing Officer-XV.
The petitioner, countering the point of maintainability raised by the
Kolkata Municipal Corporation, has relied upon the following judgments:
i) 2023 SCC OnLine SC 95 (Godrej Sara Lee Ltd. vs. Excise and Taxation
Officer-cum-Assessing Authority & Ors.) paragraphs 4 and 8:
4. Before answering the questions, we feel the urge to say a few
words on the exercise of writ powers conferred by Article 226 of the
Constitution having come across certain orders passed by the high
courts holding writ petitions as "not maintainable" merely because
the alternative remedy provided by the relevant statutes has not
been pursued by the parties desirous of invocation of the writ
jurisdiction. The power to issue prerogative writs under Article 226
is plenary in nature. Any limitation on the exercise of such power
must be traceable in the Constitution itself. Profitable reference in
this regard may be made to Article 329 and ordainments of other
similarly worded articles in the Constitution. Article 226 does not, in
terms, impose any limitation or restraint on the exercise of power to
issue writs. While it is true that exercise of writ powers despite
availability of a remedy under the very statute which has been
invoked and has given rise to the action impugned in the writ
petition ought not to be made in a routine manner, yet, the mere fact
that the petitioner before the high court, in a given case, has not
pursued the alternative remedy available to him/it cannot
mechanically be construed as a ground for its dismissal. It is
axiomatic that the high courts (bearing in mind the facts of each
particular case) have a discretion whether to entertain a writ
petition or not. One of the self-imposed restrictions on the exercise of
power under Article 226 that has evolved through judicial
precedents is that the high courts should normally not entertain a
writ petition, where an effective and efficacious alternative remedy
is available. At the same time, it must be remembered that mere
availability of an alternative remedy of appeal or revision, which the
party invoking the jurisdiction of the high court under Article 226
has not pursued, would not oust the jurisdiction of the high court
and render a writ petition "not maintainable". In a long line of
decisions, this Court has made it clear that availability of an
alternative remedy does not operate as an absolute bar to the
"maintainability" of a writ petition and that the rule, which requires
a party to pursue the alternative remedy provided by a statute, is a
rule of policy, convenience and discretion rather than a rule of law.
Though elementary, it needs to be restated that "entertainability"
and "maintainability" of a writ petition are distinct concepts. The
fine but real distinction between the two ought not to be lost sight of.
The objection as to "maintainability" goes to the root of the matter
and if such objection were found to be of substance, the courts would
be rendered incapable of even receiving the lis for adjudication. On
the other hand, the question of "entertainability" is entirely within
the realm of discretion of the high courts, writ remedy being
discretionary. A writ petition despite being maintainable may not be
entertained by a high court for very many reasons or relief could
even be refused to the petitioner, despite setting up a sound legal
point, if grant of the claimed relief would not further public interest.
Hence, dismissal of a writ petition by a high court on the ground
that the petitioner has not availed the alternative remedy without,
however, examining whether an exceptional case has been made out
for such entertainment would not be proper.
*** *** ***
8. That apart, we may also usefully refer to the decisions of
this Court reported in (1977) 2 SCC 724 (State of Uttar Pradesh &
ors. vs. Indian Hume Pipe Co. Ltd.) and (2000) 10 SCC 482 (Union of
India vs. State of Haryana). What appears on a plain reading of the
former decision is that whether a certain item falls within an entry
in a sales tax statute, raises a pure question of law and if
investigation into facts is unnecessary, the high court could
entertain a writ petition in its discretion even though the alternative
remedy was not availed of; and, unless exercise of discretion is
shown to be unreasonable or perverse, this Court would not
interfere. In the latter decision, this Court found the issue raised by
the appellant to be pristinely legal requiring determination by the
high court without putting the appellant through the mill of
statutory appeals in the hierarchy. What follows from the said
decisions is that where the controversy is a purely legal one and it
does not involve disputed questions of fact but only questions of law,
then it should be decided by the high court instead of dismissing the
writ petition on the ground of an alternative remedy being available.
ii) (2025) 4 SCC 1 (Tamil Nadu Cements Corporation Ltd. vs. Micro and
Small Enterprises Facilitation Council & Anr.) paragraphs 54 and 55
54. The access to High Courts by way of a writ
petition under Article 226 of the Constitution of India, is not just a
constitutional right but also a part of the basic structure. It is
available to every citizen whenever there is a violation of their
constitutional rights or even statutory rights. This is an inalienable
right and the rule of availability of alternative remedy is not an
omnibus rule of exclusion of the writ jurisdiction, but a principle 14
For short, 'CPC'. 15 Section 2(d) of the MSMED Act defines 'buyer'
as - (d) "buyer" means whoever buys any goods or receives any
services from a supplier for consideration. Civil Appeal a/o. SLP (C)
Diary No.3776/2023 Page 18 of 24 applied by the High Courts as a
form of judicial restraint and refrain in exercising the jurisdiction.
The power to issue prerogative writs under Article 226 of the
Constitution is plenary in nature and the same is not limited by any
provision of the Constitution and cannot be restricted or
circumscribed by a statute.
55. It has been well settled through a legion of judicial
pronouncements of this Court that the writ courts, despite the
availability of alternative remedies, may exercise writ jurisdiction at
least in three contingencies - i) where there is a violation of
principles of natural justice or fundamental rights; ii) where an
order in a proceeding is wholly without jurisdiction; or iii) where the
vires of an Act is challenged. Noticeably, the MSEFC as a statutory
authority performs a statutory role and functions within the four
corners of the law."
In reply, learned Advocate for the Kolkata Municipal Corporation relied
upon the following two judgments:
AIR 2009 SC (Supp) 927 (State of U.P. & Anr. vs. U. P. Rajya Khanij
Vikas Nigam S.S. & Ors.) paragraphs 42, 43 and 44;
"42. There is yet one more reason. In the High Court, the
Corporation filed an application stating therein that regarding
absorption of employees, statutory rules had been framed by the
State Government in exercise of power under the proviso to Article
309 of the Constitution. A prayer was, therefore, made to allow the
application to bring statutory rules on record and to consider them.
The Court, however, rejected the prayer. In our opinion, the High
Court was not right in rejecting such prayer. If there were statutory
rules and such rules provide for absorption of employees on certain
grounds and on fulfillment of some conditions laid down in those
rules, it was the duty of the High Court to consider those rules and
to decide whether under the statutory rules, such absorption could
be ordered.
43. After all, the High Court was considering the prayer of the
petitioners to grant a writ in the nature of mandamus. It was,
therefore, expected of the High Court to keep in view the relevant
provisions of law. The High Court mainly relied upon an assurance
said to have been given by the Secretary on behalf of the Corporation
that excess employees would be absorbed either in the Government
Department or in other Public Sector Undertakings. From the record
it appears that it was the case of the Secretary of the Corporation
that no such assurance was given by him to the Hon'ble Court. But
even if he had given such assurance, it was of no consequence since
in the teeth of statutory rules, such assurance had no legal efficacy.
Moreover, an application was made on affidavit by the Secretary of
the Corporation clarifying the position and praying for modification
of the earlier order passed by the High Court in which such
statement on behalf of the Corporation appeared. The High Court,
however, rejected even that application. In our considered opinion,
even on that ground, the High Court ought not to have issued final
directions.
44. It is settled law that there can be no estoppel against a
statute. If the field was occupied by statutory rules, the employees
could get right only under those rules. The High Court was equally
bound to consider those rules and to come to the conclusion whether
under the statutory rules, the retrenched employees were entitled to
absorption either in Government Department or in any other Public
Sector Undertaking. Statement, assurance or even undertaking of
any officer or a counsel of the respondent-Corporation or of the
Government Pleader of the State is irrelevant. The High Court, in
our view, ought to have considered the prayer of the Corporation and
decided the question if it wanted to dispose of the matter on merits
in spite of availability of alternative remedy to the employees."
1992 (Supp) SCC 312 (H.B. Gandhi, Excise & Taxation, Officer-cum-
Assessing Authority, Karnal & Ors. vs. Gopi Nath & Sons & Ors.) paragraph 7.
"7. In the present case, the stage at and the points on which the
challenge to the assessment in judicial review was raised and
entertained was not appropriate. In our opinion, the High Court was
in error in constituting itself into a court of appeal against the
assessment. While it was open to the respondent to have raised and
for the High Court to have considered whether the denial of relief
under the proviso to Section 39(5) was proper or not, it was not open
to the High Court to re-appreciate the primary or perceptive facts
which were otherwise within the domain of the fact-finding
authority under the statute. The question whether the transactions
were or were not sales exigible to sales tax constituted an exercise in
recording secondary or inferential facts based on primary facts found
by the statutory authorities. But what was assailed in review was, in
substance, the correctness - as distinguished from the legal
permissibility -- of the primary or perceptive facts themselves. It is,
no doubt, true that if a finding of fact is arrived at by ignoring or
excluding relevant material or by taking into consideration
irrelevant material or if the finding so outrageously defies logic as
to suffer from the vice of irrationality incurring the blame of being
perverse, then, the finding is rendered infirm in law."
Section 189 of the Kolkata Municipal Corporation Act, 1980 is the
relevant provision to appeal before the Municipal Assessment Tribunal. Section 189
of the Kolkata Municipal Corporation lays down:
189. Appeal before the Municipal Assessment Tribunal.
(1)There shall be a Municipal Assessment Tribunal for hearing
and disposal of an appeal against an order passed under section 188.
*** *** ***
From the judgments relied upon by the petitioner, it appears that the
Supreme Court, in Tamil Nadu Cements Corporation Ltd. (supra) has, in
paragraphs 56 and 57 further held as follows:
"56. Following the aforesaid dictum, this Court in Harbanslal
Sahnia v. Indian Oil Corpn. Ltd. [Harbanslal Sahnia v. Indian Oil
Corpn. Ltd., (2003) 2 SCC 107] , had taken notice of the fact that the
High Court had referred to the rbitration clause which the writ
petitioner could take recourse to, to hold that the rule of exclusion of
writ jurisdiction is a rule of discretion and not of compulsion. In an
appropriate case, in spite of availability of alternative remedy, the
writ courts can exercise its jurisdiction at least in three
contingencies, as referred to above. In the facts of the said case, this
Court interfered observing that there were peculiar circumstances
as the dealership had been terminated on an irrelevant and non-
existence cause. Therefore, there was no need to drive the parties to
initiate arbitration proceedings.
"57. Following the judgments in Whirlpool Corpn. v. Registrar,
Trade Marks [Whirlpool Corpn. v. Registrar, Trade Marks, (1998) 8
SCC 1] and Harbanslal Sahnia [Harbanslal Sahnia v. Indian Oil
Corpn. Ltd., (2003) 2 SCC 107], this Court in Radha Krishan
Industries v. State of H.P. [Radha Krishan Industries v. State of
H.P., (2021) 6 SCC 771 : (2021) 88 GSTR 228] laid down the
following principles : (Radha Krishan Industries case [Radha
Krishan Industries v. State of H.P., (2021) 6 SCC 771 : (2021) 88
GSTR 228] , SCC p.795, para 27)
"27. The principles of law which emerge are that:
27.1. The power under Article 226 of the Constitution to
issue writs can be exercised not only for the enforcement of
fundamental rights, but for any other purpose as well.
27.2. The High Court has the discretion not to entertain a
writ petition. One of the restrictions placed on the power of the
High Court is where an effective alternate remedy is available to
the aggrieved person.
27.3. Exceptions to the rule of alternate remedy arise where :
(a) the writ petition has been filed for the enforcement of a
fundamental right protected by Part III of the Constitution; (b)
there has been a violation of the principles of natural justice; (c) the
order or proceedings are wholly without jurisdiction; or (d) the vires
of a legislation is challenged.
27.4. An alternate remedy by itself does not divest the High
Court of its powers under Article 226 of the Constitution in an
appropriate case though ordinarily, a writ petition should not be
entertained when an efficacious alternate remedy is provided by
law.
27.5. When a right is created by a statute, which itself
prescribes the remedy or procedure for enforcing the right or
liability, resort must be had to that particular statutory remedy
before invoking the discretionary remedy under Article 226 of the
Constitution. This rule of exhaustion of statutory remedies is a rule
of policy, convenience and discretion.
27.6. In cases where there are disputed questions of fact, the
High Court may decide to decline jurisdiction in a writ petition.
However, if the High Court is objectively of the view that the
nature of the controversy requires the exercise of its writ
jurisdiction, such a view would not readily be interfered with."
The matter was then referred to a five Judge Bench and as such the
judgment in Radha Krishan Industries vs State of Himachal Pradesh & Ors.,
Supra) still stands.
The judgment of the Supreme Court in Radha Krishan Industries vs
State of Himachal Pradesh & Ors., (Supra), was followed in Tamil Nadu Cements
Corporation Limited vs Micro and Small Enterprises Facilitation Council and
Anr.,(Supra).
In the present case, this Court finds that there is no prima facie case of
any infringement of fundamental right been made out.
There has been also no prima facie violation of the principle of natural
Justice.
Finally, the controversy involved in this case relates to facts based on
records, provisions of the KMC Act, 1980, etc. And, as such, the controversy is not
purely legal one. Hence, the writ Court is not required to hear the writ petition on
the basis of the findings in Godrej Sara Lee Ltd. (supra).
A case of the order or proceedings being without jurisdiction is also not
prima facie made out and is an issue which is to be considered by the appellate
authority and finally there is also no challenge to the vires of a legislation in the
present case, which though the petitioner has tried to bring in after 12 years.
The petitioner further submits that as the Supreme Court has permitted
amendment of the writ application of 2013, the petitioner cannot be relegated to the
appellate authority. It appears that the amendment allowed by the Supreme Court
was regarding the facts of the other two writ applications to be brought on record in
WPO/847/2013. As such, the point of maintainability which is being now considered
by this Court, was not before the Hon'ble Supreme Court. And in view of the
observation as made above, this court finds that this is a fit case where the
petitioner should have been invoked the provision of appeal.
Accordingly, WPO/847/2013 along with IA No.GA/2/2025, WPO/354/2020
and WPO/354/2020 with IA No.GA/1/2025 and other pending applications, if any,
are disposed of with the direction that the petitioner shall be at liberty to prefer an
appeal against the order under challenge in the present writ application within 30
days from the date of this order. Leave is also granted to the petitioner to raise all
issues in the present writs before the appellate authority.
The period of limitation is accordingly extended for a period of 30 days
from the date of this order in the interest of justice.
The point of limitation is decided accordingly.
All connected applications, if any, stand disposed of.
Interim order, if any, stands vacated.
Urgent certified website copy of this Order, if applied for, be supplied
expeditiously after complying with all, necessary legal formalities.
(SHAMPA DUTT (PAUL), J.)
A.Sadhukhan
