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2006 DIGILAW 548 (CAL)

LALITA ALMAL v. KOLKATA MUNICIPAL CORPORATION

2006-08-30

JYOTIRMAY BHATTACHARYA

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( 1 ) THE Municipal Authority disconnected the supply of water to the petitioner's premises at No. 2. Garstin Place, Kolkata-700 001, by invoking its jurisdiction under section 275 (1) (aa) of the Kolkata Municipal corporation Act. 1980, for non-payment of the rates and taxes of the said premises. The provision contained in section 275 (1) (aa) of the Kolkata municipal Corporation Act has already been declared as ultra vires by Justice bhaskar Bhattacharya in the case of Neelambar Finevest Pvt. Ltd. and Ors. vs. Kolkata Municipal Corporation and Ors. reported in 2003 (1) CHN 253. Admittedly, the supply of water was disconnected on 29th November, 2005 after the said provision was declared as ultra vires by His Lordship. ( 2 ) MR. Das Adhikary, learned Senior Advocate appearing for the petitioner, submits that the said judgment of Justice Bhattacharya has already been appealed against and an interim order of stay of the judgment of Justice bhattacharya was passed in the said appeal, being APOT No. 25 of 2003. ( 3 ) HEARD the learned Advocates of the parties. Considered the materials on record. ( 4 ) IT is no doubt true that the order, which was passed by the learned single Judge declaring the provision of section 275 (1) (aa) of the Kolkata municipal Corporation Act as ultra vires, has been stayed by the Hon'ble appeal Court. But simultaneously the Hon'ble Appeal Court made it clear that the application of section 275 (1) (aa) of the Kolkata Municipal Corporation act as far as the petitioner is concerned shall remain stayed until further order of this Court, Thus, the Appeal Court has protected the right of the petitioner therein by staying operation of the said provision of the Kolkata municipal Corporation Act meaning thereby that the supply of water to the writ petitioner therein cannot be disconnected during the pendency of the appeal. ( 5 ) SINCE the challenge with regard to the vires of the particular provision is still under consideration before the Hon'ble Appeal Court, this Court holds that the respondents-authorities should not have disconnected the water-supply connection of the petitioner pending final adjudication of the dispute by the Appeal Court in the said appeal. ( 5 ) SINCE the challenge with regard to the vires of the particular provision is still under consideration before the Hon'ble Appeal Court, this Court holds that the respondents-authorities should not have disconnected the water-supply connection of the petitioner pending final adjudication of the dispute by the Appeal Court in the said appeal. ( 6 ) THAT apart, it is also the settled principle of law that until and unless the final adjudication of law made by the learned Trial Judge is reversed and/or set aside by the Appeal Court, the general declaration of law which was declared by the learned Trial Judge will be applicable to the public at large. ( 7 ) IT is also a settled position in law that the interlocutory order either by way of stay or injunction binds only the parties to the proceedings. The public at large, who are not parties to the appeal, are not bound by such interlocutory order passed in appeal. Thus, if this Court looks into the problem from that angle, then it follows that the interim order which was passed by the Appeal Court is binding between the parties to the said appeal and none else. If the aforesaid principles are applied, then it goes without saying that the declaration which was made by Justice Bhattacharya, as aforesaid, is the law which is applicable in general till date. ( 8 ) EVEN assuming that the said conclusion cannot be arrived at by this court in view of that tenor of the order passed of the Hon'ble Appeal Court in the aforesaid appeal, still then this Court cannot be unmindful about the protection which was given by the Hon'ble Appeal Court to the writ petitioner by way of interim arrangement. ( 9 ) IN such view of the matter, this Court disposes of this writ petition by directing the Municipal Authority to restore the supply of water to the petitioner's premises positively within a period of 3 weeks from date. Needless to mention here that the Municipal Authority may, however, take steps for realization of its dues towards arrear rates and taxes of the said premises, including current rates and taxes from the petitioner in accordance with law. The writ petition is, thus, disposed of. Writ petition disposed of.