Tripura High Court
Sri Subrata Dasgupta vs The State Of Tripura & Ors on 31 July, 2024
Author: T. Amarnath Goud
Bench: T. Amarnath Goud
HIGH COURT OF TRIPURA
AGARTALA
WP(C) No.514 of 2024
Sri Subrata Dasgupta Petitioner(s)
Versus
The State of Tripura & Ors. Respondent(s)
For the Petitioner(s) : Mr. B N Majumder, Sr. Advocate.
Mr. D J Saha, Advocate.
For the Respondent(s) : Mr. Kohinoor Narayan Bhattacharjee, GA.
Date of hearing and delivery of
Judgment & Order : 31.07.2024
Whether fit for reporting : YES.
HON'BLE MR. JUSTICE T. AMARNATH GOUD
J U D G M E N T & O R D E R(ORAL)
This present writ petition has been filed under Article 226 of the
Constitution of India seeking the following reliefs:-
"i. Show cause the respondents as to why a writ in the nature of
Mandamus, mandating/directing/commanding the respondent
Authorities to dispose of the complaint dated 12.08.2022, 17.08.2022,
18.04.2023 and 19.02.2024 within a specified time limit, shall not be
issued.
ii. Show cause the respondents as to why a writ in the nature of
Mandamus directing/commanding/mandating them to immediately
abstain the respondent No.5 from constructing the building in his
premises till the complaints of the petitioner dated 12.08.2022,
17.08.2022, 18.04.2023 and 19.02.2024 is disposed of shall be not
issued.
iii. Show cause the respondents as to why a writ in the nature of
Mandamus directing/commanding / mandating them to take appropriate
steps according to law if it is found that the construction of the
respondent No.5 violates the norms of the prescription of law shall be
not issued.
iv. Issue rule NISI.
iv. In case the respondents show causes or not be kind enough to make
prayers No. i,ii, and iii absolute.
v. Pending disposal of the instant Writ Petition, be kind enough to direct
the respondents to immediately abstain the respondent No.5 from
constructing any further."
[2] Brief facts of the case is that the petitioner of this case noticed
that in the year 2022, respondent No.5, who is his neighbor constructing his
building by violating the norms of the Tripura Municipal Act and the Tripura
Building Rules. Objecting to such illegal construction, the petitioner has
submitted his objection before the Municipal Authority on 12.08.2022,
17.08.2022, 18.04.2023 and 19.02.2024 but it is needless to say that the
respondents authority neither rejected the complaints nor disposed those
complaints of violation of the statutory provisions. Hence, this present writ
petition.
[3] Mr. BN Majumder, learned senior counsel assisted by Mr. D J
Saha, learned counsel appearing for the petitioner submits before this Court
that the petitioner herein approached the concerned authority by filing written
complaint dated 12.08.2022, 17.08.2022,18.04.2023 and lastly on 19.02.2024
regarding the illegal construction of respondent No.5 who is the neighbor of the
petitioner herein and has been carrying out building construction violating the
rules of Tripura Municipal Act, 1994 and Tripura Buildings Rules, 2017, Rule 48
wherein it has been specifically stated that there is a provision for minimum
permissible vacant space in every residential and other than residential
buildings within a property.
[4] The provision of Rule 48 of Tripura Building Rules, 2017 reads as
under :-
"..........(2) The minimum front open spaces shall be as follows:-
Use of building Height of building Minimum front open space at
(metres) ground level at its narrowest
part (metres)
Residential Upto 14.50 1.80
Assembly/Institutional/Educati Upto 14.50 3.00
onal/Club
Commercial having built up Upto 14.50 4.00
area more than 100 sqm
Industrial/ Upto 14.50 5.00
Mercantile(wholesale)/storage
Others not specified above Upto 14.50 1.80
Thus, he prayed to allow this writ petition.
[5] On the other hand, Mr. Kohinoor Narayan Bhattacharjee, learned
Government Advocate appearing for the respondents-State vehemently
opposed the prayer of the petitioner and prayed to dismiss the same as Writ of
Mandamus under Article 226 of the Constitution of India is not maintainable as
there is an effective alternative remedy lies before the Civil Court.
[6] Heard both sides and perused the evidence on record.
[7] 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. On laches and delay has not
taken legal action promptly to get the issue resolved. The petitioner has an
effective remedy in approaching the concerned Civil Court by filing a suit
seeking relief against building construction by the unofficial 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 neighbors,
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.
[8] This court in similarly situated matters i.e. WP(C) No. 471 of
2022, dated 20.06.2022 passed the following orders, which reads as under :-
"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. Even the
bonafide of the petitioner, as well as the conduct of the unofficial
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."
[9] It is also seen that even according to the petitioner when the
construction work is in progress from 2022, except filing a complaint and
reminders thereafter, allowing it to go on till now in 2024 appears to this Court
that the petitioner is not having a serious concern about the issue involved.
The delay and laches approaching this Court rather approaching Civil court can
also be viewed on the ground of laches even according to the petitioner when
the work is in progress till date.
[10] In view of the above discussion, this court is of the opinion, since
the issue is not public interest litigation to entertain and take cognizance upon
the complaint of the petitioner. It is purely a private civil dispute between the
petitioner and the Un-official respondent and now involving Official-respondents
by invoking Article 226 of the Constitution of India is un-warranted and the writ
jurisdiction is misconceived. The petitioner can always agitate his legal rights
including if any violation of Building construction Rules and seek appropriate
relief before the appropriate forum.
Thus, the present writ petition is not maintainable under Article
226 of the Constitution of India and the same is liable to be dismissed.
Accordingly, the writ petition is dismissed.
As a sequel, miscellaneous application(s) pending if any, shall
stand closed.
JUDGE
RAJKUMAR Digitally signed by
RAJKUMAR SUHANJIT
SUHANJIT SINGHA
Date: 2024.08.16 16:27:05
SINGHA +05'30'
Paritosh
