Calcutta High Court (Appellete Side)
Usha International Limited vs Kolkata Municipal Corporation & ... on 2 August, 2023
W.P.A. 17412 of 2018
20 02.08.2023
rkd Ct.15
Usha International Limited
-vs-
Kolkata Municipal Corporation & Ors.
Mr. Saptansu Basu,
Mr. Subhabrata Das
....for the petitioner.
Mr. Sudeep Sanyal,
Mr. Lopa Mudra Moitra,
Mr. Chandrachur Lahiri
....for the private respondents.
Mr. Alak Kumar Ghosh,
Ms. Era Ghose
.... for the KMC.
By presenting the instant writ petition
petitioner has prayed for review of the order passed
by the coordinate Bench on a writ petition being
WPA 9434 of 2018 (Chandi Charan Sardar & Ors. -
vs- The State of West Bengal & Ors.). The order was
passed by the coordinate Bench on 2nd July, 2018
and the writ petitioners in the said writ petition are
respondents in the present writ petition.
The prayer (A) of the present writ petition
runs infra:
"A) Issue a Writ in the nature of
Mandamus for recalling, reviewing,
modifying and/or set aside the order
dated 2nd July, 2018 passed in W.P.
No.9434 (W) of 2018 by His Lordship
the Hon'ble Justice Debangsu Basak."
At the time of hearing of the present writ
petition petitioner, Kolkata Municipal Corporation
and private respondents are represented by learned
advocates. Parties are heard to some length.
During course of hearing question has
arisen for consideration whether the present writ
petition is maintainable seeking review of the order
dated 2nd July, 2018 passed by a coordinate Bench
on the aforesaid writ petition.
According to the understanding of the
Court appropriate remedy which was available to
the present writ petitioner was to file review
application before the coordinate Bench which
passed order on 2nd July, 2018.
Mr. Basu, learned senior advocate
representing the petitioner in order to satisfy the
query of the Court has placed reliance on the
following judgments:
i) AIR 1963 SC 1909 (Shivdeo
Singh & Ors. -vs- State of
Punjab & Ors.).
ii) (2009) 4 CLT 301 (HC) (Smt.
Diblu Naskar -vs- State of West
Bengal & Ors.).
iii) (2018) 2 CLJ (Cal) 505 (Sri
Pabir Agasty & Ors. -vs- The
State of West Bengal & Ors.).
In addition to placing reliance on the
aforesaid three judgments on factual issue it has
been submitted on behalf of the petitioner that in
the writ petition being WPA 9434 of 2018
petitioners prayed for conclusion of proceeding
pending before the concerned authority of Kolkata
Municipal Corporation (for short "KMC") in
connection with mutation and according to the
present writ petitioner said proceeding was initiated
at the instance of the writ petitioners in the
aforesaid writ petition.
Petitioners in the aforesaid writ petition
claimed conclusion of mutation proceeding by the
concerned authority of KMC by giving necessary
directions. It has also been submitted on behalf of
the present writ petitioner that the present writ
petitioner was not made party to the aforesaid writ
petition and without hearing the petitioner the
aforesaid writ petition was disposed of vide order
dated 2nd July, 2018 giving direction upon the
concerned authority of KMC to intimate the parties
who were heard by the concerned authority of KMC
the result of the hearing in connection with
mutation proceeding.
It was also directed vide order dated 2nd
July, 2018 that such mutation proceeding would be
completed within a period of six weeks from the
date of communication of the order dated 2nd July,
2018.
It has been contended on behalf of the
present writ petitioner that the present writ
petitioner was required to be arrayed being
necessary party to the aforesaid writ petition since
according to the present petitioner the land in
connection with which mutation proceeding was
initiated at the instance of the petitioners in the
aforesaid writ petition is owned by the present writ
petitioner and reliance is placed on the deed of
conveyance which is annexed at page 33 onwards
of the present writ petition. According to the
present writ petitioner the said deed of conveyance
was executed in favour of the petitioner on 4th May,
1956.
Mr. Sanyal, learned advocate representing
the private respondents has disputed the title of the
present petitioner in connection with the land in
respect of which mutation proceeding was initiated
at the instance of the petitioners in the aforesaid
writ petition and the deed has been disputed on
behalf of the private respondents.
In the aforesaid backdrop of facts as
narrated in the preceding paragraphs, this Court is
of the view that on the strength of deed of
conveyance executed in favour of the present
petitioner in the year 1956 in connection with the
land in question albeit disputed on behalf of the
private respondents, in the aforesaid writ petition
the present writ petitioner ought to have been made
party. Since behind the back of the present writ
petitioner an order was passed by the coordinate
Bench on the aforesaid writ petition filed by the
private respondents it appears that it is an instance
of abuse of due process of law as well as Court.
However, in order to find an answer with
regard to maintainability of the present writ
petition seeking review of the order dated 2nd July,
2018 passed in the aforesaid writ petition this
Court is required to rely upon the judgments
placed before this Court on behalf of the
petitioners. In Shibdeo Singh (supra), the Hon'ble
Supreme Court has held that there is nothing in
Article 226 of the Constitution to preclude a High
Court from exercising the power of review which
inheres in every Court of plenary jurisdiction to
prevent miscarriage of justice or to correct grave
and palpable errors committed by it. This decision
of the Apex Court was considered in two
subsequent judgments one in Diblu Naskar (supra)
and another in Sri Prabir Agasty (supra).
In both the judgments passed by two
coordinate Benches the judgment of the Apex Court
delivered in Shivdeo Singh (supra) has been duly
considered and it has been held therein that
second writ petition seeking review of the order
passed in the first writ petition is maintainable if it
is found that the order was passed in the first writ
petition in abuse of due process of law. It has also
been held that this Court while exercising the writ
jurisdiction is having plenary jurisdiction under
Article 226 of the Constitution of India therefore
the writ Court is empowered to cure the defects and
pass necessary order to obviate miscarriage of
justice.
As it has been discussed in the preceding
paragraphs that this Court finds that the present
writ petitioner ought to have been made party in
the first writ petition which was disposed of vide
order dated 2nd July, 2018, the order dated 2nd
July, 2018 needs to be recalled.
Accordingly, the order dated 2nd July, 2018
passed in WPA 9434 of 2018 stands recalled and
the said writ petition stands revived.
The department is directed to implead the
present writ petitioner as respondent in the writ
petition being WPA 9434 of 2018 within ten days
from date.
Let the aforesaid writ petition appear under
the heading "Motion (Group-V) (Municipality)" in
the monthly combined list of September, 2023.
The present writ petition stands disposed
of.
However, there shall be no order as to
costs.
Urgent photostat certified copy of this
order, if applied for, be given to the learned
Advocates for the parties on the usual
undertakings.
(Saugata Bhattacharyya, J.)
