Seema Ghosal vs Rupali Nag & Ors
2022 Latest Caselaw 8258 Cal

22.   13.12.2022
      Ct. No.6
      Tanmoy
                                       MAT 1896 of 2022

                                        Seema Ghosal
                                           -Versus-
                                       Rupali Nag & Ors.

                                              With
                                      IA No: CAN/1/2022


                         Mr. M.P. Gupta, Adv.,
                         Mr. Ayan Mitra, Adv.

                                             ...for the appellant.

                         Mr. Rajendra Banerjee, Adv.,
                         Mr. Joy Chakraborty, Adv.

                                             ...for the writ petitioner/
                                               respondent no.1.

Mr. Sandipan Banerjee, Adv., Mr. Sobhan Majumder, Adv., Mr. Ankit Sureka, Adv.

...for the Howrah Municipal Corporation.

Affidavit of service filed in Court today be kept with

the records.

By consent of the parties, the appeal and the

connected application are taken up together for hearing.

A judgment and order dated November 14, 2022,

whereby the writ petition of the respondent no.1 herein

being WPA 15143 of 2022 was disposed of, is under

challenge in this appeal, at the instance of the private

respondent in the writ petition.

The writ petitioner approached the learned Single

Judge with the grievance that the present appellant was

making unauthorized construction. The learned Judge, by

an interim order dated September 28, 2022, recorded that

a spot inspection had been conducted. The learned Judge

directed that the inspection report be circulated amongst

the parties and directed the matter to be listed on

November 14, 2022.

On November 14, 2022, the matter was taken up by

the learned Judge, the inspection report was taken on

record and copies thereof were handed over to learned

Advocates representing the petitioner as well as the

private respondent. The learned Judge noted that the

report mentions that "presently construction is being done

in the 3rd floor at rear space on the eastern side of old G+3

storied building." The learned Judge also noted that a self-

demolition letter was issued on July 8, 2022, which was

followed by a second self-demolition notice issued on July

26, 2022. Having so noted, the learned Judge disposed of

the writ petition by directing as follows:-

"As it appears from the report that the self-demolition notice is yet to be acted upon by the person responsible for making construction, accordingly, the Howrah Municipal Corporation is directed to proceed with the demolition work in accordance with law, at the earliest."

Being aggrieved, the private respondent in the writ

petition has come up by way of this appeal.

The short grievance of the appellant is that although

by the order dated September 28, 2022, the learned

Judge had directed that the inspection report be

circulated amongst the parties, the same was not done.

The appellant was given a copy of the inspection report on

the day the matter was disposed of. Resultantly, the

appellant did not get an opportunity of dealing with the

report.

The grievance of the appellant appears to have some

substance. Principles of natural justice require that the

copy of the report is made available to the appellant and

she gets an opportunity of responding to the report. This

opportunity, the appellant did not get since on the day

her Advocate was given a copy of the report, the writ

petition was disposed of by the learned Single Judge.

Further, the writ petition was disposed of without

directing exchange of affidavits.

We remand the matter back to the learned Single

Judge having determination to hear the writ petition for

fresh consideration after exchange of affidavits. The

respondents will be at liberty to file affidavit-in-opposition

by December 22, 2022. In her affidavit, the present

appellant will be at liberty to deal with the inspection

report. Reply thereto, if any, be filed by the reopening day

after 'Christmas Vacation' (02.01.2023).

The parties will be at liberty to mention the matter

before the learned Single Judge after completion of

affidavits. Since there are allegations of unauthorized

construction, we request the learned Single Judge to give

some precedence to this matter to the extent the business

of the Court may permit.

The order under appeal is accordingly set aside.

The learned Judge is requested to decide the matter

afresh after exchange of affidavits.

Since we have not called for affidavits, the allegations

in the stay petition shall be deemed not to have been

admitted by the respondents.

The appeal being MAT 1896 of 2022 and the

connected application being IA No: CAN/1/2022 are

accordingly disposed of.

Let urgent photostat certified copy of this order, if

applied for, be made available to the parties upon

compliance with all necessary formalities.

(Apurba Sinha Ray, J.) (Arijit Banerjee, J.)