Ashwani Kumar vs. Municipal Corporation Of Delhi

Held

The Court held that while the petitioner has an alternative remedy before the Appellate Tribunal, MCD, under Section 347B of the DMC Act, the interest of justice would be met by granting temporary protection. The Court noted that it had not gone into the merits of the contentions raised by either party. The ratio decidendi is that in cases where an alternative statutory remedy exists, a writ petition may not ordinarily be entertained, but temporary relief can be granted to enable the petitioner to pursue the statutory remedy. The Court directed that no coercive steps be taken against the petitioner pursuant to the demolition order for a period of two weeks to allow him to approach the Appellate Tribunal, MCD. Any continuation of interim protection beyond this period would be subject to the orders of the Appellate Tribunal.

Facts

The petitioner, Ashwani Kumar, filed a writ petition before the Delhi High Court challenging a demolition order dated 05.09.2022 passed by the Municipal Corporation of Delhi (MCD). The demolition order was issued following the petitioner's failure to take requisite action in relation to unauthorized construction on his property, despite a Show Cause Notice. The respondent/MCD raised a preliminary objection to the maintainability of the writ petition, arguing that the petitioner's remedy lies with the Appellate Tribunal, MCD, as per Section 347B of the DMC Act. The respondent relied on judicial precedents emphasizing that writ petitions should not ordinarily be entertained when an alternative statutory remedy is available.

Key Issues

1. Whether the writ petition under Article 226 of the Constitution of India is maintainable before this Court, given the existence of an alternative statutory remedy under Section 347B of the DMC Act, turning on the interpretation of the principles governing the exercise of writ jurisdiction when an alternative remedy is available. Petitioner's Arguments: The judgment does not record any specific arguments made by the petitioner regarding the maintainability of the writ petition or any exceptions to the alternative remedy rule. Respondent's Arguments: The respondent contended that the writ petition is not maintainable as the petitioner has an alternative remedy before the Appellate Tribunal, MCD, under Section 347B of the DMC Act. They relied on the decision in Municipal Corporation of Delhi & Anr. v. Tata Engineering & Locomotive Co. Ltd. and the Supreme Court's ruling in Assistant Commissioner of State Tax and Others v. Commercial Steel Limited, which states that writ petitions are generally not entertained if an alternate remedy exists, unless exceptional circumstances like breach of fundamental rights, violation of natural justice, excess of jurisdiction, or challenge to vires of a statute are established.