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Calcutta High Court
Ltd vs The Kolkata Municipal on 8 July, 2025
OD-1
WPO/43/2021
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
PIC DEPARTMENTALS PVT.
LTD.
-VERSUS-
THE KOLKATA MUNICIPAL
CORPORATION & ORS.
BEFORE:
The Hon'ble JUSTICE SHAMPA DUTT (PAUL)
Date : 8th July, 2025.
Appearance:
Mr. Joydeep Kar, Sr. Adv.
Ms. Suparna Mukherjee, Sr. Adv.
Mr. Raghunath Chakraborty, Adv.
Mr. Anjan Kumar Mukherjee, Adv.
...for the petitioner
Mr. Alak Kumar Ghosh, Adv.
Mr. Swapan Kumar Debnath, Adv.
..... for the KMC.
Mr. Soumya Majumdar, Sr. Adv.
Mr. Arindam Banerjee, Sr. Adv.
Mr. Sumanta Biswas, Adv.
Mr. Bikash Shaw, Adv.
Sk. Saad Nafirul Islam, Adv.
...for the respondent no.6.
1. The writ application has been preferred challenging the
resolution passed in the MIC meeting as communicated by
the order of the Special Officer Building dated 27th February,
2020, the order of the Special Officer Building dated 27 th
February, 2020 and the communication dated 16th July,
2020.
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2. The respondent no. 6 has raised the point of maintainability
of the writ application, on the ground that the order
challenged in the writ application is appealable under
Section 400(3) of the Kolkata Municipal Corporation Act
1980 and as such a writ is not maintainable.
3. Learned senior counsel Mr. Kar appearing from the
petitioner has submitted that the writ petition is
maintainable in this case as there has been violation of
natural Justice and thus an abuse of process of law.
4. The following judgments have been relied upon by the
petitioners in support of their said argument:-
i. Tamil Nadu Cements Corporation Limited vs Micro
and Small Enterprises Facilitation Council and Anr.,
(2025) 4 SCC 1.
ii. Radha Krishan Industries vs State of Himachal
Pradesh & Ors., (2021) 6 SCC 771.
5. Section 400 (3) of the Kolkata Municipal Corporation Act,
lays down:-
“Section 400(3) KMC Act:-
Any person aggrieved by an order of the Municipal
Commissioner made under sub-section (1) may,
within thirty days from the date of the order, prefer an
appeal against the order to the Municipal Building
Tribunal appointed under Section 415.”
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6. Admittedly the order under challenge has been passed by
the special officer building, who has been delegated as per
clause 2 to Section 400 KMC Act.
7. From the judgments relied upon by the petitioner, it appears
that, the Supreme Court in Tamil Nadu Cements
Corporation Limited vs Micro and Small Enterprises
Facilitation Council and Anr., (Supra), has 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
arbitration 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)
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“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.””
8. 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.
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9. 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).
10. In the present case, this Court finds that there is no prima
facie any infringement of a fundamental right.
11. There has been also no prima facie violation of the principle
of natural Justice.
12. Considering, the fact that though the petitioner has
repeatedly contended that no notice was served upon them,
and as such they were not heard is not supported by the
order under challenge. It is clearly noted in the Order under
challenge that notice was served upon the petitioners on
30.01.2019.
13. 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.
14. The learned counsel for the petitioner has also submitted
that as the order challenged is of the year 2020, the question
of limitation arises. But in view of the observation as made
6above, this court finds that this is a fit case where the
petitioner should have been invoked the provision of appeal.
15. Accordingly, the writ application is 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.
16. The period of limitation is accordingly extended for a period
of 30 days from the date of this order in the interest of
justice.
17. The point of limitation is decided accordingly.
18. All connected applications, if any, stand disposed of.
19. Interim order, if any, stands vacated.
20. Urgent certified website copy of this Order, if applied for, be
supplied expeditiously after complying with all, necessary
legal formalities.
(SHAMPA DUTT (PAUL), J.)
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