Appropriate remedy would have been to approach Municipal Authorities: Top Court expresses reservations on exercise of writ jurisdiction by Calcutta HC in private dispute between neighbours
Justices B.R. Gavai & Sandeep Mehta [03-05-2024]

Read Order: DR. RANBEER BOSE & ANR v. ANITA DAS & ANR [SC- CIVIL APPEAL NO(S). 5941 OF 2024]

LE Correspondent

New Delhi, May 7, 2024: In a private dispute between neighbours where it was alleged that the appellants did not maintain the open spaces prescribed under Rule 50 of the West Bengal Municipal(Building) Rules, 2007 while raising the construction of the residential property, the Supreme Court has held that the appropriate remedy would have been to approach the municipal authorities instead of the High Court. The Top Court further explained that if no proper response was forthcoming, then the civil Court was the appropriate forum for ventilating such grievances.

The appellants, before the Top Court, were assailing the order of the Division Bench of the Calcutta High Court affirming the order of the Single Judge. The appellants had raised a grievance that the directions issued by the Single Judge in the contempt petition had direct bearing on their residential premises. 

It was contended that the private respondent(respondent No.1), filed the writ petition before the Single Judge alleging that while raising the construction of the residential property, the appellants did not maintain the open spaces prescribed under Rule 50 of the West Bengal Municipal(Building) Rules, 2007.

It was the case of the appellants that the Single Judge was not justified in entertaining the writ petition which raised a purely private dispute between two neighbours. It was further submitted that acting under the pressure of the contempt proceedings, the municipal authorities had issued a show cause notice to the appellants with the observation that the building raised by the appellants herein was in contravention of Rule 50 of the Rules of 2007. It was urged that the appellants may be given liberty to challenge the enquiry report and the show cause notice by taking recourse to the provisions contained in West Bengal Municipal Act, 1993.

The respondent argued that after extensive consideration of the material available on record, the Single Judge had found that the sanctioned building plan was violated by the appellants while raising construction of their residential premises and as such, the direction to conduct an enquiry into the matter was justified.

At the outset, the Division Bench of Justice B.R. Gavai and Justice Sandeep Mehta said, “We express our reservations on the exercise of writ jurisdiction by the learned Single Judge of the High Court of Calcutta in a controversy, which appears to be a purely private dispute between the appellants herein and the private respondent(respondent No.1 herein), being immediate neighbours.”

Prima facie, the Bench observed, “...if at all the private respondent(respondent No.1 herein) was aggrieved of irregularity committed, if any, in the construction raised by the appellants on their own plot, the appropriate remedy for him would have been to approach the municipal authorities and if no proper response was forthcoming, then the civil Court was the appropriate forum for ventilating the grievances of the nature which have been raised before the writ Court.”

The Bench took note of the enquiry report presented before the High Court by the municipal authorities wherein it was mentioned that the construction made by the appellants had not been found to be in violation of the building plan. It was also mentioned therein that the sanction plan to construct the building was granted in violation of Rule 50 of the Rules of 2007.

“Indisputably, the appellants have a right to challenge the said enquiry report and the show cause notice”, the Bench said while further adding, “Hence, we leave the appellants at liberty to challenge the show cause notice dated 24th April, 2024 and the enquiry report(s) by resorting to the provisions contained in the West Bengal Municipal Act, 1993. 

Needless to say that the objections so raised by the appellants will be considered and decided objectively without being prejudiced by either the pending contempt proceedings or the orders passed in the writ proceedings. It was also noted that as per sub-clause(3) of Section 218 of West Bengal Municipal Act, 1993, in case the objections raised by the appellants do not find favour of the Board of Councillors, they would have a right to file an appeal in the Court having jurisdiction. Thus, the Bench disposed of the appeal in these terms.