Calcutta High Court (Appellete Side)
Moitry Dutta vs South Dum Dum Municipality & ... on 9 February, 2023
09.02.2023
Item no.8
Court No.6.
AB
M.A.T. 28 of 2023
With
I A CAN 1 of 2023
Moitry Dutta
Vs
South Dum Dum Municipality & Others
Mr. Arjun Roy Mukherjee,
Mr. Pratip Mukherjee,
Mr. Sudip Basu ....for the Appellant.
Mr. N. C. Bihani,
Ms. P. B. Bihani .....for the Municipality.
Mr. Sabyasachi Mukherjee,
Mr. Bibek Dey,
Mr. Syed Neaz Ahmed
....for the Respondent No.6.
By consent of the parties, the appeal and the
application are taken up for hearing together.
Supplementary Affidavit filed on behalf of the
appellant, be kept with the records.
This appeal is directed against a judgment and
order dated December 13, 2022, whereby the writ
petition of the private respondent herein being WPA
813 of 2020 was disposed of.
The writ petitioner had approached the learned
Single Judge with the case that the appellant herein,
who was the private respondent in the writ petition, is
making illegal construction in deviation from the
building plan that was sanctioned in her favour by the
concerned Municipality. The writ petitioner says that
he had made a representation to the Municipality,
firstly to demolish the illegal construction and
secondly, to revoke the plan sanctioned in favour of
the appellant herein.
It appears that during the pendency of the writ
petition, the Municipality passed an order of
demolition on September 7, 2022. Such order has
been carried in appeal by the present appellant before
the appellate forum. Initially, there was an order of
stay before the appellate forum. It appears that such
stay order has not been extended after November,
2022.
The present appellant was not represented
before the learned Single Judge. This was noted by the
learned Judge. The learned Judge disposed of the writ
petition with the following observations:
"In view of the order that I propose to pass, no
prejudice shall be caused to the non appearing
respondent, if the writ petition is disposed of in the
following manner.
The instant writ petition is accordingly
disposed of by directing the South Dum Dum
Municipality to take steps for consideration of the
petitioner's prayer seeking revocation/setting aside of
the sanctioned plan granted in favour of the private
respondent Ms. Moitry Datta and to execute the order
of demolition, provided, the same is not
stayed/modified/varied or set aside by any Court of
competent jurisdiction.
The entire exercise shall be completed by the
Municipality in accordance with law, after giving
reasonable opportunity of hearing to all the necessary
parties positively within a period of twelve weeks
from the date of communication of a copy of this
order. A reasoned order shall be passed and
communicated to the parties immediately thereafter."
Being aggrieved, the private respondent in the
writ petition has come up by way of this appeal.
We are not inclined to enter into the merits of
the case, since the appellant herein was not present
before the learned Single Judge on the day the
impugned order was passed. Learned Advocate for the
appellant produces track report to show that notice of
the writ petition was received by the appellant at 4.48
p.m. on the day the matter was disposed of. Therefore,
it is evident that the appellant received notice of the
writ application after disposal of the same.
The appellant will be at liberty to approach the
learned Single Judge with an appropriate application
stating the aforesaid facts. If so approached, the
learned Single Judge is requested to decide such
application in the manner the Learned Judge deems fit
and proper.
Since we have not called for affidavits, the
allegations in the stay application are deemed not to
be admitted by the respondents.
M.A.T. No.28 of 2023 is, accordingly, disposed of
along with IA CAN 1 of 2023.
Urgent photostat certified copy of this order, if
applied for, be supplied expeditiously after compliance
with all the necessary formalities.
(Apurba Sinha Ray, J.) (Arijit Banerjee, J.)
