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2016 DIGILAW 802 (CAL)

Kolkata Municipal Corporation v. Balkrishna Shroff

2016-10-04

BISWANATH SOMADDER, SANKAR ACHARYYA

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JUDGMENT : Biswanath Somadder, J. 1. By consent of the parties, the appeal is taken up for hearing by treating the same as on day’s list along with the application for stay. 2. The appeal as well as the application for stay arises out of an order dated 29th June, 2016, passed by the learned Single Judge in WP 6507 (W) of 2015. 3. The appellants before us are Kolkata Municipal Corporation, its Mayor as well as other authorities of Kolkata Municipal Corporation. The short point which arises for consideration in the instant case is whether the learned Single Judge – even when shown two judgments passed by two coordinate Benches on the point of law involved – could have held that they “wrongly decided” the provision of law involved and thereafter proceed to give his own reasons and dispose of the writ petition with a mandatory direction upon Kolkata Municipal Corporation to refund or adjust a certain amount against any present due of the writ petitioner within a certain time-frame. 4. In the scenario presented before the learned Single Judge, he had four options before him. First option was to follow the ratio of the judgments rendered by the two coordinate Benches. The second option was to distinguish the two judgments – on facts – by giving cogent reasons. The third option was to record reasons as to why he disagreed with the views expressed by the two coordinate Benches and thereafter send the matter to the Hon’ble, the Chief Justice, for constitution of a larger Bench to decide the issue. The fourth option before the learned Single Judge was to refer to and rely upon any judgment rendered by a superior Bench or the Supreme Court specifically on the point of law decided by the two coordinate Benches – which was neither referred to nor relied upon in the said two judgments cited before him – and thereafter observe, with reasons, that since the coordinate Bench judgments did not take notice of the said judgment rendered by a superior Bench or by the Supreme Court on the same point of law involved, the two coordinate Bench judgments were per incuriam in nature. 5. The learned Single Judge, however, did not exercise any of the four options before him. The learned Single Judge proceeded in the matter without following the well-established principles of judicial propriety. 5. The learned Single Judge, however, did not exercise any of the four options before him. The learned Single Judge proceeded in the matter without following the well-established principles of judicial propriety. An almost obstinate approach and complete apathy towards judicial discipline, appears to have been consciously and palpably demonstrated by the learned Single Judge in the given facts of the instant case. Even the expression used by the learned Single Judge that the two judgments of coordinate Bench had “wrongly decided” a certain provision of law, was wholly unwarranted and is certainly not an acceptable or proper observation to be made by any learned Judge when coordinate Bench decisions are cited before him. 6. For reasons stated above, the appeal is allowed and the impugned order dated 29th June, 2016, passed in WP 6507 (W) of 2015, by the learned Single Judge is liable to be set aside and is accordingly set aside. 7. The application for stay is accordingly disposed of. 8. Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties.