Smt Gita Rani Dutta vs State Of West Bengal & Ors
2023 Latest Caselaw 333 Cal

04.   11.01.2023
       Ct. No.6
      Tanmoy
                                         MAT 1069 of 2021

                                      Smt Gita Rani Dutta
                                             -Versus-
                                   State of West Bengal & Ors.

                                                With
                                        IA No: CAN/2/2021


                       Mr. Debashis Kundu, Ld. Sr. Adv.,
                       Ms. Soumi Guha Thakurta, Adv.

                                        ...for the appellant.

                       Mr. Malay Kumar Singh, Adv.,
                       Mr. Md. Masood, Adv.

                                        ...for the State.

                       Mr. Sudip Sarkar, Adv.,
                       Mr. Krishna Pada Santra, Adv.,
                       Ms. Reshmi Khatun, Adv.

                                        ...for the respondent no.3.

Mr. Debdatta Basu, Adv., Mr. Sukdeb Sarkar, Adv.

...for the respondent nos. 9-12.

By consent of the parties, the appeal and the

connected application are taken up together for hearing.

This appeal is directed against a judgment and order

dated March 9, 2021, whereby WPA 3336 of 2021, filed by

the private respondents in the appeal, was disposed of.

The private respondents in this appeal approached

the learned Single Judge as writ petitioners alleging illegal

and unauthorized construction on their land encroached

upon by the appellant herein, who was the private

respondent in the writ petition. Apparently, the Pradhan of

the concerned Gram Panchayat, by a communication dated

October 14, 2020, intimated learned Advocate for the writ

petitioners that no permission for constructing the present

appellant's house had been granted by the Gram

Panchayat. The writ petitioners applied before the Pradhan

of the Gram Panchayat for taking steps for demolition of

the appellant's house. Alleging that the Pradhan was failing

in his duty, the writ petitioners approached the learned

Single Judge.

It appears that the present appellant was not

represented on the day the writ petition was disposed of

and the impugned order was passed.

On the basis that there is no house building approval

in favour of the appellant herein, the learned Judge

directed demolition of the appellant's house at the earliest,

but positively within six months from the date of

communication of the order. Being aggrieved, the private

respondent in the writ petition has come up by way of this

appeal.

We have heard learned Counsel for the parties. Since

the appellant herein did not appear before the learned

Single Judge when the writ petition was heard and

disposed of, we are not inclined to hear the appellant on

merits of the case. The appellant should have appeared at

the hearing of the writ petition and made submission

before the learned Single Judge. The learned Judge did not

have the benefit of hearing the appellant herein. It will not

be proper for us to interfere with the order under appeal.

The appellant may approach the learned Single Judge with

an appropriate application to explain her absence on the

day the writ petition was disposed of ex parte, insofar as

she is concerned. If the learned Judge is satisfied that

there was sufficient cause for the appellant not to be

represented, Her Ladyship is requested to pass appropriate

orders as may be deemed fit and proper.

We do not interfere with the order under appeal.

However, when the appeal was admitted, an order

dated October 1, 2021 was passed whereby the operation

of the impugned order was stayed until further orders.

Since we are not interfering with the order under appeal,

we vacate that order. However, for the ends of justice we

direct that if the appellant makes an appropriate

application before the learned Single Judge within a

fortnight from date, no steps will be taken for demolition of

the appellant's house until disposal of that application. The

learned Single Judge is requested to decide such

application, if any, without being influenced by any

observation in this order. We only clarify that if the learned

Judge is satisfied that the appellant herein had sufficient

cause not to appear on the day the matter was disposed of

and the learned Judge then hears the appellant herein on

merits, still it would be open to the learned Single Judge to

pass the same order if Her Ladyship is not satisfied with

the case of the appellant herein.

The appeal being MAT 1069 of 2021 and the

connected application being IA No: CAN/2/2021 stand

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.)