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2021 DIGILAW 449 (CAL)

Niranjan Maity v. State Of West Bengal

2021-11-17

PRAKASH SHRIVASTAVA, RAJARSHI BHARADWAJ

body2021
JUDGMENT : (Prakash Shrivastava, J.) : 1. This appeal is directed against the order dated 04.09.2019 whereby the learned Single Judge has dismissed WP. No. 16234(W) of 2019 by imposing cost. 2. On the examination of the record, we find that the writ petition was filed by the appellant with the prayer to direct the official respondent to demolish the unauthorized illegal encroachment on vacant land on the roadside of the National Highway No. 116B, Nandakumar to Digha Road. There is an allegation that private respondents have encroached upon the said roadside vacant land. 3. When the matter was taken up on 04.09.2019, the learned Single Judge found that the appellant had not served the respondents in entirety as on opening of the envelopes in the Court by learned Counsel for the private respondents, it was found that the envelope did not contain the entirety of the writ petition. Learned Single Judge found it to be a sharp practice and dismissed the petition with cost of Rs. 1 lakh to be paid by each of the appellant to the State Legal Services Authority, Kolkata. 4. Having regard to the nature of controversy which was raised in the petition, we are of the opinion that on payment of some reasonable cost by the appellant, the learned Single Judge ought to have given opportunity to the appellant to prosecute the writ petitioner. The cost which is imposed is also on the higher side. The order reveals that the right of the petitioner to agitate the issue before this Court has been closed on the technical default of not sending a copy of the entire petition to the respondent at the time of service of notice. The order acts very harshly against the appellant. 5. Hence, considering the totality of the circumstances of the case, we partly allow this appeal and direct that subject to payment of cost of Rs. 1 lakh jointly by all the appellants to the State Legal Services Authority, Kolkata within a period of four weeks from today, the order of the learned Single Judge is set aside and the W.P. No. 16234(W) of 2019 is restored to its original position for decision in accordance with law. 6. The appeal and the connected applications are disposed of.