Can't Use Article 226 As An "Arm Twisting Technique" To Settle Private Civil Disputes Without Exhausting Statutory Remedies: Tripura High Court

The observation came from Justice Amarnath Goud:

"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 unofficial 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, is abuse of the process of the law."

The case of the petitioner is that he is the permanent resident of Banamalipur, Agartala. The father of the respondent No.3 had constructed the said building as per the approved plan in the year 1983. Later on, new construction was taken up by the respondent No.3 in terms of the approved plan dated 30.04.2016. The petitioner has contended that there is serious deviation in construction from the approved plan issued by Agartala Municipal Corporation (AMC) and the petitioner is interested to get the property of the unofficial respondent demolished.

There were two rounds of litigations between the parties before this court. In pursuance of the said litigations, the respondents AMC also issued the order of demolition but the respondent No.3 has not demolished the unauthorized construction. Since the respondents AMC allegedly did not take any action on the respondent No.3 and did not implement the Court orders, the present writ petition was filed.

The case of the AMC is that there are deviations made by the unofficial respondent and they have initiated steps for removing the unauthorized deviations and also issued a notice. The unofficial respondent has also filed an application seeking for regularization under the Municipal Rules by compounding. The same is pending for consideration.

The case of the respondent No.3 herein is that the petitioner herein does not have the locus standi to the litigation and has been filing complaints against the respondent, one after another for reasons, known best to him. More particularly, in the present case the petitioner is not the immediate neighbour and he resides in different premises far away from the property in question. None of his legitimate rights are affected. This is an ill motive litigation by the petitioner against the respondent.

After hearing both sides of the argument, the court opined that it is purely a private civil dispute between the petitioner and respondent No.3. The petitioner has an effective remedy in approaching the concerned Civil Court by filing a suit seeking relief against unauthorized 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 whether the petitioner and the unofficial respondent are neighbours, to what extent the right of the petitioner is affected, to what extent the un-official respondent has constructed the property and whether he is having an approved 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 Trial Court." Court said

The Court also noted that the petitioner has not approached court with clean hand. Even the bonafide of the petitioner, as well as the conduct of the un-official respondent No.3, 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.

Further, even according to the petitioners it is argued at one stage contending that they are not the affected party. Their legitimate legal rights have not been infringed. They are not the immediate neighbours of the respondent No.3. The petitioners have not established, by what action of the respondent herein, their rights have been affected or infringed. The petitioners are not affected by the so called deviation or any construction that is made by the unofficial respondent and which is the subject matter of writ petitions.

In view of the above, the court dismissed the present petition.

"The only case of the petitioners is that since in the earlier orders of this court they are the respondents, they are anxious to get the order complied with. The petitioners have not filed any contempt case, if they believe that the orders of the court have not been complied with. Hence, the petitioner's case is liable to be dismissed for the observation made above. "

Case Title : Sri Subrata Saha and anr v The Municipal Commissioner and ors

Citation: 2022 LiveLaw (Trip) 16 

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