G.C.Gupta, J. - (1.) By this writ petition a notice dated 19th October, 1991 issued by the Calcutta Municipal Corporation under section 401 of the Calcutta Municipal Corporation Act, 1980 asking the petitioner "to stop forthwith all constructions including additions and alterations at premises No. 46E, Rafi Ahmed Kidwai Road, Calcutta" is under challenge. Another notice dated 24th October, 1991 was issued by the Calcutta Municipal Corporation to the petitioner stating that guards have been posted to oversee that the unauthorised construction is not continued and for that purpose the petitioner was sought to be made liable to pay Rs. 200/- per day. Both the notices are under challenge on the following grounds: "(a) That the petitioner has done some exterior plastering works as well as white washing at premises No. 46F, Rafi Ahmed Kidwai Road. He also claims to have replaced the old and wretched this over the roof and placed new tins over the said room. He alleges that the work undertaken by him does not come within the meaning of addition, alteration and/or construction nor does the same require any permission from the Calcutta Municipal Corporation authority. (b) The impugned notice dated 19th October, 1991 is contrary to the provisions of the Calcutta Municipal Corporation Act and/or Rules and/or Regulations made thereunder."
(2.) Mr. Das Adhikary, learned advocate appearing for the petitioner submitted that in the facts of this case no notice under section 401 could have been issued. He also submitted that in view of the fact that no affidavit-in-opposition dealing with the allegations made in the writ petition has been filed, the averments made in the writ petition should be deemed to be true and relief should be granted on that basis following the theory of non-travers. In support of his submission Mr. Das Adhikary relied on a judgment reported in AIR 1973 SC 627 (Controller of Court Ward, Kolhapur & Anr. vs. G. N. Gharpade & Ors.)
(3.) Nobody appeared for the Corporation nor any affidavit-in-opposition has been filed but that in my view, is no reason for the purpose of granting or passing an order, as prayed for. Relief, in my view, can only be granted provided the writ petitioner has been able to make out a case, which is unfortunately not the case here.;