Dibyendu Ghosh vs Saibal Kumar Acharyya & Ors
2022 Latest Caselaw 7515 Cal

           IN THE HIGH COURT AT CALCUTTA
                     Civil Appellate Jurisdiction
                            (Appellate Side)
                           MAT 1239 OF 2022
                                  With
                        I. A. No. CAN 1 of 2022

                            Dibyendu Ghosh

                                   Vs.

                     Saibal Kumar Acharyya & Ors.


Before:             The Hon'ble Justice Arijit Banerjee
                                  &
                    The Hon'ble Justice Apurba Sinha Ray


For the Appellant           : Mr. Srijib Chakraborty, Adv.
                              Mr. Sabyasachi Chatterjee, Adv.
                              Mr. Akashdeep Mukherjee, Adv.
                              Mr. Pintu Karan, Adv.
                              Mr. Pritam Chatterjee, Adv.
                              Mr. Soummyadeep Nag, Adv.

For the respondent No. 1    : Mr. Subir Sanyal, Adv.

Mr. Biswabrata Basu Mallik, Adv.

Mr. Tarun Kumar Das, Adv.

Mr. Sujit Bhunia, Adv.

Mr. Pradip Paul, Adv.

Mr. Arka Bhattacharya, Adv.

For the respondent No. 3 : Mr. Sankha Subhra Ray, Adv. to 5

For the State respondents : Ms. Jayeeta Sinha, Adv.

Mr. Ranjit Rajak, Adv.

CAV On                      : 06.09.2022

Judgment On                 : 14.11.2022





Apurba Sinha Ray, J. :-

1. The present appeal is directed against an order dated 01.08.2022

passed by the Learned Single Judge in connection with WPA No. 13005 of

2022.

2. Mr. Srijib Chakraborty, the Learned Counsel appearing on behalf of

the appellant, has submitted that the Learned Judge disposed of the writ

petition by an order dated 28.07.2022 passed in connection with the

property in question and further was pleased to pass another order on

01.08.2022 at the instance of the respondent No. 1 of the present appeal

and in the absence of the present appellant in gross violation of the

principles of natural justice. Learned Counsel has pointed out that when by

the order dated 28.07.2022, the Learned Judge disposed of the writ petition

being WPA No. 13005 of 2022, the Hon'ble Court became functus officio and

could not pass the order dated 01.08.2022 without recalling its earlier order

dated 28.07.2022.

3. Learned Counsel, Mr. Subir Sanyal appearing on behalf of the

respondent No. 1 has submitted that when the Court passed an order on the

basis of fraudulent representation made on behalf of a party, the Hon'ble

Court can pass an order modifying its earlier order and in that event the

court cannot be treated as functus officio. In this connection Learned

counsel has relied on the following decisions: State of U.P. Vs. Ravindra

Kumar Sharma reported in 2016(3) CHN (SC) 229, M.M. Thomas Vs.

State of Kerala and Anr. reported in (2001) 1 Supreme Court Cases 666,

Ram Chandra Singh Vs. Savitri Devi & Ors. reported in (2003) 8

Supreme Court Cases 319, Union of India & Ors. Vs. Ramesh Gandhi

reported in (2012) 1 Supreme Court Cases 476.

4. The backdrop of the present appeal may be narrated hereunder.

5. The allegation against the present appellant in the relevant writ

petition was that he was making unauthorized construction on the land in

question and for which the Kamarhati Municipality had directed him to

demolish the unauthorized construction but without paying any heed to

such direction, the present appellant was continuing with his unauthorized

construction and consequently, the writ petitioner/ the respondent No. 1

herein was compelled to file the Writ Application No. 13005 of 2022. During

hearing, the Learned advocate appearing on behalf of the present appellant

submitted that a Municipal Appeal had been preferred against the

demolition order dated 18.07.2022 being Misc. Appeal No. 5 of 2022 before

the Learned Civil Judge (Junior Division), 2nd Court at Barrackpore and the

Learned counsel, as per the observation of the Hon'ble Single Judge,

submitted before the Hon'ble Court that an application for stay was pending

for consideration. The Hon'ble Single Judge disposed of the Writ Application

by order dated 28.07.2022. The operative portion of the said order is as

follows:-

"......As it appears that the order of demolition is an appealable one and an appeal has been preferred, accordingly, it will be open for the petitioner to contest the appeal before the aforesaid forum. In the meantime, the Municipality is to ensure that no further construction is being carried on in the said premises.

The Officer-in-Charge, Dakshineswar Police Station is directed to keep strict vigil over the property to ensure that no construction in any manner whatsoever is carried on in the said premises till a decision is arrived at by the appellate forum in this regard.

The report filed by the Municipality is taken on record.

The writ petition stands disposed of."

6. Though the aforesaid order dated 28.07.2022 in the said writ petition

was passed in presence of the Learned Counsels of both the parties, on

29.07.2022 the Learned Counsel appearing on behalf of the writ petitioner

mentioned the matter ex-parte before the Hon'ble Single Judge and

submitted that there was fraudulent misrepresentation on behalf of the

respondent No. 8 of the said writ petition and the Learned counsel further

submitted before the Hon'ble Single Judge that though the Learned counsel

of the respondent No. 8 therein submitted on 28.07.2022 that one stay

petition was pending for consideration in the relevant Municipal Appeal in

the Civil Court at Barrackpore, but in reality, the said stay petition had been

rejected by the Learned Civil Judge (Junior Division) Barrackpore. It was

also alleged that though the Learned counsel appearing for the respondent

No. 8 therein had tried to impress upon the court that the said Municipal

Appeal was filed against the demolition order dated 17.05.2022 passed by

the Kamarhati Municipality but in fact the respondent No. 8 challenged the

letter of reminder dated 18.07.2022 issued by the Chairman Kamarhati

Municipality in the said municipal appeal.

7. After taking serious note of such submission the Hon'ble Single Judge,

after getting the disposed of writ petition listed, passed the order dated

01.08.2022, the material portion of which may be reproduced herein below:-

".... It appears that the private respondent is adopting sharp practice and trying to play with the order passed by the Court and ignoring the direction passed by the Municipality continuing with the construction work.

In view of the submissions made in Court today, the Court is constrained to pass the following directions for ends of justice.

The Kamarhati Municipality is directed to put bold signage on the said premises clearly mentioning that the building in question is "unauthorized construction".

The Kamarhati Municipality is restrained from providing any services to the said premises including sewerage and drinking water connection. The Officer-in-Charge, Dakhineswar Police Station is directed to put a padlock on the main gate of the said premises so that the private respondent cannot take any step to sell out and transfer the said property in favour of any other person. The padlock be put immediately upon communication of the order to the Officer-in-Charge, Dakhineswar Police Station today itself.

The Court is compelled to pass such order with the view to prevent the prospective buyers to be cheated and duped by the private respondent in purchasing a property which has been constructed unauthorisedly and is facing an order of demolition. As the building in question is yet to be completed and the completion certificate cannot be issued, accordingly, none can be permitted to occupy any portion of the said constructed area.

Learned advocate for the petitioner will be at liberty to take steps for impleading the petitioner in the proceeding that is pending before the Learned Court below.

Learned advocate for the State respondents who is present in Court shall immediately communicate this order to the Officer-in-Charge, Dakhineswar Police Station for implementation of the order passed herein.

The Court takes serious note of the fact that at the time when the hearing of the matter was in progress, the Learned advocate for the respondent No. 8, without taking the leave of the Court has simply left the Court room and a different Learned advocate took up the matter therefrom. The same is not the practice of the High Court and the Learned advocate for the private respondent ought to

maintain the dignity of the Court at the time of addressing the same."

8. In the present appeal the above order dated 01.08.2022, inter alia,

was challenged by the present appellant/respondent No. 8 in the writ

petition, on the ground that the Hon'ble Single Judge could not pass the

order dated 01.08.2022 without recalling the earlier order dated 28.07.2022

and also without calling for affidavit from the present appellant. Learned

Counsel has relied on the decision in the case of Vinod Kumar Singh Vs.

Banaras Hindu University & Ors. reported in (1988) 1 Supreme Court

Cases 80 in support of his contention. On the other hand, Learned counsel

appearing on behalf of the present respondent No. 1/writ petitioner has

submitted that fraud and justice never dwell together and any order passed

on the basis of fraudulent misrepresentation is non-est. As there is serious

suppression of material facts before the Hon'ble Single Judge, the Hon'ble

Judge could modify her earlier order without calling for affidavit from the

present appellant.

9. After considering the above submissions of the parties and also the

case laws cited above, we have no hesitation to opine that fraudulent

misrepresentation made to the Court would certainly entitle it to

modify/recall its earlier order, if the said fraudulent misrepresentation

attacks the core issues involved in the matter and compels the Court to

arrive at a decision which is not otherwise desirable in the factual matrix of

the case. In this case, it transpired that the relevant order dated 28.07.2022

was passed in presence of counsels of both the parties, but unfortunately on

that day the Learned counsel for the writ petitioner was unable to highlight

the alleged fraudulent misrepresentation made on behalf of the respondent

No. 8 before the Hon'ble Judge. The record shows that it was only on

29.07.2022 that the Learned counsel for the writ petitioner pointed out the

alleged misrepresentation made on behalf of the respondent No. 8 on

28.07.2022. In our view, had he been able to point out the same even on

28.07.2022, the order dated 28.07.2022 may not have been otherwise.

10. The order dated 01.08.2022 shows that though Learned counsel for

the respondent No. 8 in the writ petition submitted that the order of

demolition issued by the Kamarhati Municipality was the subject matter of

municipal appeal pending before the Civil Judge (Junior Division) at

Barrackpore, in fact, it was the letter of reminder dated 18.07.2022 issued

by the Chairman Kamarhati Municipality which was the subject matter of

the said appeal. The above materials on record show that there might have

been a mistake on behalf of the Learned counsel of the respondent No. 8 in

the writ petition in submitting the case of his client before the Hon'ble Court.

Astonishingly, it is found that in the present memo of appeal also, he has

again stated before us the same thing at Ground No. (XI):-

"For that the Single Judge erred in law did not consider that a Municipal Appeal No. 05 of 2022 is pending before the Learned Civil Judge (Junior Divn.) 2nd Court, at Barrackpore challenging the order passed by the Chairman Kamarhati Municipality".

11. Actually, what the Learned Counsel wanted to mean by the aforesaid

statement is not clear. Whether he meant the demolition order dated

17.05.2022 or the letter of reminder dated 18.07.2022 issued by the

Chairman, Kamarhati Municipality is a matter of debate. However, it may be

said that issue of demolition of the property in question as reminded by the

said letter was under challenge before the Learned Court at Barrackpore.

But the question is whether failure to mention specifically that the

Municipal Appeal relates to the letter dated 18.07.2022 reminding the

Appellant to demolish the unauthorized construction, instead of his

submission that such appeal was filed to challenge the order of demolition

dated 17.05.2022, or failure to mention the stay petition was rejected

tantamounts to material misrepresentation or not.

12. If we peruse the materials on record we shall find that the entire

building in question is not an unauthorized construction. It is revealed that

extent of the unauthorized construction is 2' (two feet) each in front side and

back side cantilever projections and the appellant was directed to remove

the same within 15 days. Therefore, as the unauthorized construction is in

respect of cantilever projection in both the front and back sides of the

construction only, it cannot be said that the entire building is the result of

unauthorized construction and beyond the sanctioned plan.

13. After considering the entire materials on record we think that even,

had the Learned advocate for the respondent No. 8 in the writ petition

conceded during hearing of the writ petition that the stay petition had been

rejected and the municipal appeal before the Learned Civil Judge (Junior

Division) at Barrackpore was pending against the letter of reminder dated

18.07.2022 for demolition of the unauthorized construction and not the

order of demolition dated 17.05.2022, there would not have been any further

scope for the Hon'ble Single Judge to pass more appropriate order than the

relevant operative portion of the order dated 28.07.2022. The operative

portion of the relevant of the order as aforesaid was all pervading and

comprehensive, even had the alleged submission of the Learned advocate for

the respondent No. 8 been made in accordance with the factual matrix of the

case.

14. We would like to conclude by saying that the operative portion of the

order dated 28.07.2022 passed by the Hon'ble Single Judge would still hold

good, even if the Learned advocate for the respondent No. 8 in the writ

petition could have submitted that the stay petition was rejected and the

subject matter of the municipal appeal was in respect of the letter dated

18.07.2022. Therefore, in our view, even in the changed circumstances, as

depicted in the order dated 01.08.2022, we do think that the operative

portion of order dated 28.07.2022 still holds good and as such we would like

to restore the operative portion of the order dated 28.07.2022 passed by the

Hon'ble Single Judge in connection with W.P.A No. 13005 of 2022, which

has been extracted in paragraph 5 hereinabove. Moreover, as the building in

its entirety is not an unauthorized one the order dated 01.08.2022 is

required to be set aside. Thus, the same is hereby set aside.

15. We should briefly dilate also on the point raised by the appellant that

having become functus officio upon disposing of the writ petition by the order

dated 28.07.2022, the Learned Judge did not have jurisdiction to pass any

further order on the writ petition without first recalling the order dated

28.07.2022. Mr. Sanyal, Learned Advocate for the respondents submitted

that if an order is obtained by practising fraud on Court, the Court would

have inherent jurisdiction to recall the order upon such fraud being

discovered. There can possibly be no dispute with the said proposition.

Fraud unravels everything. A person who obtains an order from Court by

making fraudulent misrepresentation, cannot be permitted to enjoy the

benefit of such order.

However, in the present case, without recalling the earlier order, the

Learned Judge went on to pass further directions in a disposed of writ

petition. This could not have been done. The Supreme Court decision in

Vinod Kumar Sing (supra) and the decision of a Special Bench of this

Court in Mallikarujan Rao & Ors. v. The State of West Bengal reported

in 2016 SCC OnLine Cal 3952 are authorities for the proposition that once

a judge dictates a judgment and signs it, the Judge loses jurisdiction over

the lis in question. Without restoring the matter on valid grounds following

due process of law, no order can be passed in a matter which has been

disposed of. This is also a ground on which we are inclined to allow the

appeal and set aside the order dated 01.08.2022.

16. We have noted above that a Municipal Appeal at the instance of the

appellant herein is pending before Learned Civil Judge (Junior Division), 2nd

Court at Barrackpore. It appears that instead of challenging the demolition

order, the appellant in such Municipal Appeal has challenged a reminder

letter issued by the concerned municipality calling upon the appellant to

comply with the demolition order. Whatever it be, the issue of demolition is

pending before the aforesaid Court in the municipal appeal. We are of the

view that the municipal appeal should be disposed of on an early date. We

accordingly direct Learned Civil Judge (Junior Division), 2nd Court at

Barrackpore to dispose of Municipal Appeal No. 05 of 2022 as expeditiously

as possible and positively within a period of 6 months from the date of a

copy of this order being placed before the Learned Court. Needless to say,

the Municipal Appeal will be decided in accordance with law and relevant

rules/regulations, if any, observing the principles of natural justice. If the

Respondent no. 1/writ petitioner has not been added as a party in the

municipal appeal by the appellant herein, the Learned Court below shall add

the Respondent no. 1/ writ petitioner herein as a party respondent in the

Municipal Appeal and shall allow him to participate in the appeal

proceedings.

17. The appeal and the connected application are hereby disposed of.

18. Urgent certified website copies of this judgment, if applied for, be

supplied to the parties subject to compliance with all the requisite

formalities.

I agree.

(APURBA SINHA RAY, J.)                           (ARIJIT BANERJEE, J.)