Uttam Mondal vs The State Of West Bengal & Ors
2023 Latest Caselaw 3925 Cal

   D/L
Item No 19
19.06.2023
 KOLE
                              FMA 146 of 2022
                                   With
                            IA No. CAN 1 of 2021
                                  With
                            IA No. CAN 2 of 2021

                             Uttam Mondal
                                   -Vs.-
                      The State of West Bengal & Ors.

             Mr. Shibaji Kumar Das,
             Ms. Rupa Seemani,
                                                       ... for the appellant.


                    From the affidavit of service filed in court today it

              appears that the respondents have received notice of the

appeal. However, none appears for the respondents.

The original of CAN 1 of 2021 and CAN 2 of 2021 are

not available in the records. The Department has given a

note that the same could not be traced. Let two

authenticated copies of CAN 1 of 2021 and CAN 2 of 2021 be

made available to our Court Officer in course of the day, to

be retained with the records.

In Re: CAN 1 of 2021 in FMA 146 0f 2022

This is an application for condonation of delay of 316

days in filing the appeal as noted by the Additional Stamp

Reporter.

Causes shown being sufficient, we condone the delay.

CAN No. 1 of 2021 is, thus, allowed.

In Re: FMA 146 of 2022 with CAN 2 of 2021

This appeal is directed against a judgment and order

dated September 30, 2020, whereby the appellant's writ

petition being WPA 6914 of 2020 was dismissed.

The appellant had approached the learned Single

Judge with a prayer for issuance of a writ of mandamus

against the Baranagar Municipality to provide separate

water connection to him. There appears to be a partition suit

pending in respect of the concerned property, between the

appellant and his brother. The water connection appears to

be in the portion which is in the occupation of the appellant's

brother. Therefore, the appellant says that he does not have

access to water connection which is causing him serious

prejudice. He and his family have been without water for

days together.

The learned Judge disposed of the writ petition

observing as follows:-

"The issue raised in the present writ petition is completely private in nature and the same can only be addressed appropriately before the Civil Court where the suit for partition is pending.

That being the position, the writ petition being WPA 6914 of 2020 is dismissed.

However, dismissal of the writ petition will not prevent the petitioner to approach the Civil Court for appropriate relief in the pending suit."

Being aggrieved, the writ petitioner is before us by

way of this appeal.

Learned Advocate for the appellant says that the

appellant's only prayer is that his representation dated

August 18, 2020 made to the Chairman of Baranagar

Municipality be considered in accordance with law. In

principle, we find no infirmity in the order of the learned

Single Judge. However, it is unlikely to harm anybody if an

order for consideration of the appellant's prayer is passed.

Accordingly, we direct the Chairman of the

Baranagar Municipality to consider and dispose of the

representation dated August 18, 2020 made by the

appellant, in accordance with law, by passing a reasoned

order within four weeks from the date of receipt of a copy of

this order along with a copy of the representation after

affording an opportunity of hearing to the appellant and the

respondent no. 8 or their authorized representatives. The

decision so taken shall be communicated to the parties

within a week from the date of the decision. We clarify that

we have not gone into the merits of the appellant's claim for

a separate water connection. It will be up to the Chairman

of the Municipality to take an informed decision in

accordance with law and the applicable rules and

regulations. If the Chairman is of the opinion that a local

inspection of the site in question is necessary, he will be at

liberty to do so, either himself or through his authorized

officer.

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.)