Nemai Chandra Kundu v. Chairman, Arambagh Municipality
2018-12-17
ARINDAM MUKHERJEE, BISWANATH SOMADDER
body2018
DigiLaw.ai
JUDGMENT : Biswanath Somadder, J. 1. In re: CAN 4487 of 2018 This is an application under section 5 of the Limitation Act. 2. Having heard the learned advocates for the parties and upon perusing the application for condonation of delay, it appears that sufficient cause has been shown by the applicants to explain the delay in filing of the appeal. As such, the delay is condoned. The application for condonation of delay, being CAN 4487 of 2018, is accordingly allowed. In re: MAT 451 of 2018 with CAN 4498 of 2018 3. By consent of the parties, the appeal is treated as on day's list and taken up for consideration along with the application for stay. 4. The instant appeal arises out of a judgment and order dated 9th March, 2018, passed by a learned Single Judge in WP 23645 (W) of 2017 with CAN 10034 of 2017 and CAN 186 of 2018 (Nemai Chandra Kundu & Ors. vs. The Chairman, Arambagh Municipality & Ors.). By the said order, the writ petition filed by Nemai Chandra Kundu and others was disposed of with certain directions upon the concerned Municipality, namely Arambagh Municipality. 5. The instant appeal has been preferred by the writ petitioners. 6. After hearing the learned advocates for the parties, we are of the view that the operative portion of the impugned judgment and order is required to be reproduced and the same is reproduced herein below:- "After considering the submissions made on behalf of the parties this Court holds that in support of prayer (a) the only pleading that has been made by the writ petitioner is that of plantation of saplings on his land which could not be substantiated even after consideration of the learned Special Officer's report and, therefore, prayer (a) cannot be granted. Only substance which makes a basis for interference of this Court is the notice dated 26th December, 2017 by which the alleged sanction plan has been sought to be revoked by the Municipality. Although, Mr. De is right in making the submission that without making amendment of the writ petition simply by filing an application the petitioners cannot seek quashing of the notice dated 26th December, 2017 which according to him, would be misjoinder of causes of action. Although, Civil Procedure Code is not applicable in writ proceedings, yet, the principles apply.
Although, Mr. De is right in making the submission that without making amendment of the writ petition simply by filing an application the petitioners cannot seek quashing of the notice dated 26th December, 2017 which according to him, would be misjoinder of causes of action. Although, Civil Procedure Code is not applicable in writ proceedings, yet, the principles apply. The notice dated 26th December, 2017 at page 18 of C.A.N. 186 of 2018 gives some cause of action for the writ petitioner for which he is entitled to get some relief. The said notice is opposed to the principles of natural justice and, therefore, the writ petitioner at least should get an opportunity to place his case before the Municipal authority and, accordingly, this writ petition along with all connected applications stand disposed of with the direction that the Executive Officer, Arambagh Municipality shall give an opportunity of hearing to the petitioner on the question of the restriction upon the petitioner to make construction on the basis of the plan said to have been issued in his favour. Such hearing should be given within a period of eight weeks from the date of communication of this order. The petitioner is directed to communicate this order to the Municipality within a week from obtaining a certified copy of this order. Since Arambagh Municipality had already issued a notice dated 23rd October, 2017 as disclosed in C.A.N. 10034 of 2017 whereby the petitioner was directed to show cause which he could not do because of the pendency of the writ petition, he is given liberty to file a reply to such show-cause notice to the Municipality within a period of two weeks from date." 7. A bare perusal of the operative portion of the impugned judgment and order as quoted above reveals that the appellants/writ petitioners have been given an opportunity of hearing before the Executive Officer of Arambagh Municipality. As such, there cannot be any justifiable reason to interfere with the directions of the learned Single Judge in an Intra-Court Mandamus Appeal, particularly in the absence of any palpable infirmity or perversity. We also notice that cogent reasons have been supplied by the learned Single Judge while disposing of the writ petition along with all connected applications. 8. For reasons stated above, the appeal and the application for stay are liable to be dismissed and stand accordingly dismissed.