Sanjib Kumar Mazumder vs The Commissioner
2023 Latest Caselaw 5349 Cal

   D/L
Item No. 02
21.08.2023
 KOLE
                                MAT 1321 of 2023
                                     With
                                IA CAN 1 of 2023

                         Sanjib Kumar Mazumder
                                  -Vs.-
                   The Commissioner, Howrah Municipal
                           Corporation & Ors.


              Mr. Anindya Bose,
              Mr. D. Mondal,
                                                          ... for the appellant.
              Mr. Sandipan Banerjee,
              Mr. Ankit Sureka,
              Mr. S. Majumder,
                                                               ... for the HMC.


                      By consent of the parties, the appeal and the

               connected application are taken up for hearing together.

                      This appeal is directed against a judgment and order

               dated June 26, 2023, whereby the appellant's writ petition

               being WPA 6891 of 2023 was disposed of by a learned Single

               Judge of this Court.

                      The appellant approached the learned Single Judge

               with the grievance that a vat has been constructed by the

               private respondent, which is an Ashram, in from of the

appellant's house. The private respondent denied having set

up the vat. Learned Advocate for the Howrah Municipal

Corporation (in short 'the Corporation') submitted before

the learned Judge that the vat in question is regularly cleared

and there is no accumulation of rubbish in that vat. It was

further submitted that the vat cannot be removed unless a

suitable alternative place is identified for the same.

The learned Judge disposed of the writ petition with

the following observations and directions:-

"It appears from the report forwarded by the concerned department of the Howrah Municipal Corporation that the place for shifting the vat at an alternative accommodation is yet to be identified.

Accordingly, there is no scope for passing any direction upon the Corporation to remove or shift the vat.

The only way the grievance of the petitioner can be redressed is to pass a direction upon the Corporation to ensure that the vat is regularly cleared so that no foul smell emanates from the said place and the garbage is removed in frequent periods several times a day. There should not be collection of filth and the vat should not act as breeding place of mosquitoes and other insects.

The concerned department of the Howrah Municipal Corporation is directed to take necessary steps in the matter to redress the grievance of the petitioner."

Being aggrieved the writ petitioner has come up by

way of this appeal.

Learned Advocate for the writ petitioner/appellant

draws our attention to a reply dated August 22, 2013, by the

Corporation in response to an application made by the

appellant under the Right to Information Act, 2005. The

material portion of the said reply reads as follows:-

"The vat, as per record, has not constructed by the HMC. Engineering Department has forwarded the complaint with proposal for demolition to the higher authority for decision."

Learned Advocate says that way back in 2013, the

Corporation had decided to demolish the vat in question but

no action was taken thereafter.

We have also heard Mr. Banerjee, learned Advocate

for the Corporation. Mr. Banerjee suggests that the matter

may be referred to the Commissioner of the Corporation to

take an informed decision. We think it is a good suggestion.

Learned Advocate for the appellant also agrees.

Accordingly, we permit the appellant/writ petitioner

to make a fresh comprehensive representation to the

Commissioner of the Corporation with supporting

documents, within a fortnight from date. If such

representation is made, the Commissioner being the

respondent no. 1 herein, or any competent officer authorized

by him, shall take a reasoned decision in the matter, in

accordance with law, within a period of four weeks from the

date of receipt of the representation, after giving an

opportunity of hearing to the appellant or his authorized

representative and any other concerned party. In the event,

the Commissioner or his delegate finds that the vat has been

illegally constructed, prompt steps will be taken in

accordance with law. The order of the learned Single Judge

is modified to the above extent.

Since we have not called for affidavits, the allegations

made in the stay application are deemed not to be admitted

by the respondents.

The appeal and the connected application are,

accordingly, disposed of.

Urgent photostat certified copy of this order be

supplied to the parties, if applied for, as early as possible.

(Arijit Banerjee, J.)

(Apurba Sinha Ray, J.)