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2017 DIGILAW 423 (CAL)

Sudip Agarwal v. Sasanka Sekhar Halder

2017-04-26

BISWANATH SOMADDER, SANKAR ACHARYYA

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JUDGMENT : Biswanath Somadder, J. Affidavit of service filed in Court today indicates that an attempt to serve upon the respondent No. 1, being the writ petitioner, was unsuccessful since the postal authorities have returned the envelope containing notice along with the application for condonation of delay and the application for stay with the remark, "no such person live in this address. Hence insufficient address. Return to sender", as stated in paragraph 4 of the said affidavit. 2. The record of the First Court, however, reveals that the writ petitioner had provided the same address in the cause title of the writ petition. The appellants, while sending the notice along with the application for condonation of delay and the application for stay, used that very address. The postal authorities having returned the envelope with remark, "insufficient address", simply means that at the time of moving of the writ petition, the petitioner did not provide his complete address. The writ petitioner, in such circumstances, has been deemed to have been served at the address as provided in the cause title of the writ petition. In re: CAN 3516 of 2017 3. After considering the submission made by the learned advocate for the appellants and upon perusing the application for condonation of delay, it appears that sufficient cause has been shown to explain the delay in filing the appeal and as such, the delay is condoned. 4. The application for condonation of delay, being CAN 3516 of 2017 is accordingly allowed. In Re: MAT 250 of 2017 with CAN 3517 of 2017 5. By consent of the parties present before us, the appeal is treated as on day's list and taken up for consideration along with the application for stay. 6. The appeal arises out of a judgment and order rendered by the learned Single Judge on 15th September, 2016, in WP 14876 (W) of 2015 (Shri Sasanka Sekhar Halder v. The Kolkata Municipal Corporation & Ors.). 7. The appellants before us were the private respondent nos. 4 & 5 before the writ Court. 8. It is the specific case of the appellants that they had no knowledge of the writ petition filed before the learned Single Judge nor the order passed therein, being the impugned order dated 15th September, 2016. 9. 7. The appellants before us were the private respondent nos. 4 & 5 before the writ Court. 8. It is the specific case of the appellants that they had no knowledge of the writ petition filed before the learned Single Judge nor the order passed therein, being the impugned order dated 15th September, 2016. 9. The statements made in paragraphs 5, 6 & 7 in the application for stay clearly reveal that relevant facts were misrepresented before the learned Single Judge. It appears that the appellants came to know about the writ proceedings when they received a letter dated 24th November, 2016, issued by the Assistant Assessor Collectors, whereby they were informed that the mutation granted in their favour had been cancelled in terms of the order passed by the learned Single Judge on 15th September, 2016. 10. Although it has been specifically stated in Ground VI of the Memorandum of Appeal that the appellants do not reside at premises No. 38/1 K.N Sen Road, Kolkata 700 042 and the mailing address in respect of the property in question is recorded in the municipal records as premises No. 229A, Rashbehari Avenue, Kolkata 700 019, the cause title of the writ petition reveals that the appellants' address, as stated by the writ petitioner, is 38/1 K.N. Sen Road, Kolkata 700 042. The learned Single Judge, however, proceeded to record the submission made on behalf of the writ petitioner that the appellants were attempted to be served but they avoided service. A copy of the writ petition was hung up on the door of the address as provided in the cause title i.e., 38/1, K.N. Sen Road, Kolkata 700042. It was under these circumstances, the learned Single Judge made the following observation:- "Since the private respondents are avoiding this court, the case of the petitioner is un-controverted. It appears that the mutation was done in favour of the private respondents in doubtful circumstances as alleged." 11. It is palpably evident that the writ petitioner obtained the impugned order by misstating the appellants' address as 38/1 K.N. Sen Road, Kolkata 700 042, which ought to have been the address as appearing in the municipal records, i.e., 229A, Rashbehari Avenue, Kolkata 700 019. It is palpably evident that the writ petitioner obtained the impugned order by misstating the appellants' address as 38/1 K.N. Sen Road, Kolkata 700 042, which ought to have been the address as appearing in the municipal records, i.e., 229A, Rashbehari Avenue, Kolkata 700 019. The impugned judgment and order, as such, has been obtained behind the back of the appellants and on this ground alone the same is liable to be set aside and is accordingly set aside. 12. The matter will be heard afresh by the First Court after ensuring adequate notice is served by the writ petitioner to the appellants herein as well as the Kolkata Municipal Corporation. 13. Needless to mention that all consequential action of the Kolkata Municipal Corporation pursuant to the impugned judgment and order passed by the learned Single Judge shall have no effect. 14. The appeal along with the application for stay stands disposed of accordingly. Sankar Acharyya, J. - I agree.