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2019 DIGILAW 73 (CAL)

SUNIL KARMAKAR v. STATE OF WEST BENGAL

2019-01-16

ARINDAM MUKHERJEE, BISWANATH SOMADDER

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JUDGMENT : BISWANATH SOMADDER, J. 1. In Re: CAN 10213 of 2018 This is an application under section 5 of the Limitation Act. 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 applicant to explain the delay in filing of the appeal. As such, the delay is condoned. The application for condonation of delay is accordingly allowed. In Re: CAN 9315 of 2018 with MAT 1440 of 2018 2. Despite service neither the concerned Gram Panchayat nor the respondents/writ petitioners are represented even at the time of second call. 3. By consent of the parties present in Court, 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 11th September, 2018, passed by a learned Single Judge in W. P. 648 (W) of 2018 (Najrul Islam Mondal & Ors. vs. The State of West Bengal & Ors.). 5. By the impugned judgment and order, the learned Single Judge while keeping the writ petition pending for further consideration directed the concerned Gram Panchayat to demolish the shop room on Plot No.403, if necessary by taking the help of the Officer-in-Charge of Joynagar Police Station, who has been directed to deploy police force if requested by the concerned Gram Panchayat and the Pradhan of the Gram Panchayat was directed to file a report as to compliance of the order of demolition of the shop room. 6. From the facts of the instant case it appears that a civil suit, being Title Suit No.26 of 2017, is pending adjudication before the learned Civil Judge (Junior Division), Baruipur, South 24-Parganas, between the appellant on one hand and the respondents/writ petitioner on the other. The learned Single Judge, while referring to the said civil suit which was brought to the notice of the Court in the affidavit-in-opposition has not taken into consideration a significant fact, i.e., existence of a private dispute purely civil in nature between the appellant on one hand and the respondents/writ petitioners on the other. The learned Single Judge, while referring to the said civil suit which was brought to the notice of the Court in the affidavit-in-opposition has not taken into consideration a significant fact, i.e., existence of a private dispute purely civil in nature between the appellant on one hand and the respondents/writ petitioners on the other. In this type of a fact situation, the learned Single Judge ought not to have issued a mandatory order directing the concerned Gram Panchayat to demolish the shop room on Plot No.403, the effect of which can render the civil proceedings virtually infructuous. 7. For reasons stated above, the impugned judgment and order is liable to be set aside and stands accordingly set aside. 8. The appeal along with the application for stay is allowed accordingly. 9. Urgent photostat certified copy of this order, if applied for, be given to the parties. Arindam Mukherjee, J. : I agree.