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2018 DIGILAW 371 (CAL)

Shiromani Flat Owners Association v. Kolkata Municipal Corporation

2018-05-14

ARINDAM MUKHERJEE, BISWANATH SOMADDER

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JUDGMENT : 1. The instant appeal is directed against an order dated 23rd April, 2018 passed by a learned Single Judge in W.P. No. 45 of 2018, Shiromani Flat Owners Association and Others vs. Kolkata Municipal Corporation and Others. It appears that the said order is purely ad-interim in nature. When the order was passed, none appeared for the respondents. Relevant portion of the order is quoted herein-below: “It appears from the records that, there is a sanctioned plan in respect of the premises concerned. It would not be appropriate to stop the construction without hearing the respondents. In such circumstances, directions for filing an affidavit are given. Let the affidavit in opposition be filed within four weeks day from date, reply thereto, if any, within three weeks thereafter. The petition will appear “for hearing” on June 28, 2018. Needless to say that the construction will abide by the result of the writ petition.” 2. Records reveal that the writ petition was filed as far back as on 31st January, 2018. The “Presentation Form” further reveals that the matter was to be listed on 7th February, 2018. However, when the matter actually appeared and was taken up for consideration, that is on 23rd April, 2018, one Mr. Sanjay Kumar appeared in-person. On that day there was a Vakalatnama of one Mr. Atish Ghosh, Advocate, which was on record. How Sanjay Kumar could appear in-person without Atish Ghosh either retiring from the matter or having given Sanjay Kumar a “No Objection” is not known to us. Sanjay Kumar could not have appeared in-person, in such circumstances. 3. Be that as it may, since the impugned order is purely ad-interim in nature, we refrain from interfering with the same as any observation made by us can cloud the reasoning of the learned Single Judge at the time of final adjudication of the writ petition. That apart and in any event, in an Intra-Court Mandamus Appeal emanating from an ad-interim order, interference is warranted only when palpable infirmities or perversities are noticed on a plain reading of the order the same being wholly absent in the instant case. 4. That apart and in any event, in an Intra-Court Mandamus Appeal emanating from an ad-interim order, interference is warranted only when palpable infirmities or perversities are noticed on a plain reading of the order the same being wholly absent in the instant case. 4. We, therefore, dispose of the appeal along with the application for stay by treating the same as on day’s list while directing the respondents herein to either file or to serve advance copies of their respective affidavits-in-opposition in respect of the writ petition on or before the reopening day (4th June, 2018) reply thereto, if any, be filed or advance copies thereof served - within 12th June, 2018. The appellant will have liberty to mention for pre-ponement of hearing before the learned Single Judge immediately after 12th June, 2018, upon notice to the parties. 5. Since the appellants are now appearing through counsel, the Vakalatnama of Atish Ghosh, Advocate, as maintained in the record of the learned Single Judge shall remain in force.