03. 28.03.2024
Court No.6
(Tanmoy)
MAT/589/2024
SHYAMAL KUMAR BANIK AND ORS.
VS
MRS. LOLITA LEKHA (NEE MAJUMDER) ANR ORS.
WITH
IA NO: CAN/1/2024, CAN/2/2024
Mr. Bikash Ranjan Bhattacharya, Ld. Sr. Adv.,
Mr. Debashis Banerjee, Adv.,
Mr. Rakesh Jana, Adv.
…for the applicants/appellants.
Mr. Pratik Majumdar, Adv.,
Mr. Abul Mullick, Adv.,
Mr. Snehasish Dey, Adv.
…for the respondent/
writ petitioner.
Mr. Sk. Md. Galib, Adv.,
Mrs. Ashmita Chakrabarty, Adv.
…for the State.
Mr. Alak Kr. Ghosh, Adv.,
Mr. Anand Farmania, Adv.
…for Kolkata Municipal Corporation.
Affidavit of service filed in Court today be kept with
the records.
In Re: IA No: CAN/1/2024
The respondent no.1 herein (Mrs. Lolita Lekha),
approached a learned Judge of this Court by filing the
present writ petition, praying for orders which would
have the effect of removal of certain stall owners who
have been running their business from the pavement of
Kolkata Municipal Corporation (in short, ‘KMC’),
adjacent to the concerned property. Since such stall
owners were not impleaded as party-respondents in the
writ petition, they filed an application for addition of
party before the learned Single Judge.
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On March 4, 2024, the learned Judge passed the
following order:
“The writ petition is taken up for consideration in
presence of the learned advocates representing the petitioner
and the Kolkata Municipal Corporation.
An application being CAN 4 of 2024 is also on board. The
said application has been taken out as it has been submitted
on behalf of the applicants by the stall owners who were
directed to be removed by this Court.
Since Mr. Alak Kr. Ghosh, learned advocate representing
the Kolkata Municipal Corporation has prayed for 1 (one) week
time to obtain instructions whether stall owners have removed
the stalls or not pursuant to the order passed by this Court
previously, hearing of this writ petition stands adjourned till
Monday next, 11th March, 2024.”
Being aggrieved, the stall owners, whose application
for impleadment was pending before the learned Single
Judge, came up before a co-ordinate Bench by filing
MAT 474 of 2024 along with an application for leave to
prefer appeal. That Bench granted the stall owners leave
to prefer appeal. Thereafter, the appeal was disposed of
by the following order:-
“… The order appealed against has decided nothing. It
has only directed learned advocate for Kolkata Municipal
Corporation to obtain instructions “whether stall owners have
removed the stalls or not pursuant to the order passed by this
Court previously, hearing of this writ petition stands adjourned
till Monday next, 11th March, 2024”.
Learned advocate for the appellants says that the
appellants are vitally affected by the order directing removal of
the stall owners. They should be heard before any order is
passed on the writ petition which may affect them.
To our query as to whether the appellants hold requisite
license for running their stalls, learned advocate said that
applications have been made to the concerned authority, but no
license has yet been granted.
Be that as it may, since the appellants had made an
application before the learned Single Judge, we request the
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learned Judge to dispose of that application prior to passing
any substantive order on the writ petition, which may adversely
affect the present appellants. We clarify that we are not putting
any kind of seal of approval on the running of the stalls by the
appellants. The learned Single Judge is requested to decide the
matter in accordance with law...”
It appears that on March 11, 2024, the writ petition
and the connected application had also been listed
before the learned Single Judge. The learned Judge
recorded an order on that date, which reads as follows:-
“The writ petition is taken up for consideration pursuant
to the order dated 4th March, 2024 in presence of the learned
advocates representing the parties.
Mr. Alak Kr. Ghosh, learned advocate representing
Kolkata Municipal Corporation has submitted a report prepared
by Executive Engineer (Civil), Br-X, KMC signed on 11th March,
2024 and the same is taken on record.
On perusal of the said report it appears that though notice
has been issued to the stall owners for removal of their
belongings and vacate the space in question, but the stall
owners have not followed such notice by vacating the space as
a result whereof according to the corporation police force will be
required for taking appropriate steps to vacate the space in
question. Corporation is apprehending that there might be
commotion in an around the locality when the eviction drive will
be taken by corporation with the help of police authority that
may hamper the final examinations which are going on in three
different schools in the area in question.
Final examinations under CBSE as well as ICSE and ISC
examination and Higher Secondary Examination are going on.
Considering the academic interest of the students KMC as well
as concerned police authority are directed to take steps to
vacate the space in question by evicting the stall owners after
3rd April, 2024 since according to the report filed on behalf of
the KMC all final examinations will be over by 3rd April, 2024.
KMC is granted another three weeks time to be counted from 3rd
April, 2024 for taking necessary steps in order to vacate the
space in question.
Hearing of this matter stands adjourned.
List the matter under the same heading for further
consideration on 29th April, 2024.”
4
Being aggrieved, the stall owners intend to prefer
appeal against the said order and have filed this
application for leave to prefer appeal.
Having heard Mr. Bhattacharya, learned Senior
Counsel representing the applicants in this application,
we are of the view that the applicants have sufficient
locus standi to prefer appeal against the order dated
March 11, 2024. Accordingly, we grant leave to them to
prefer appeal.
The application being IA No: CAN/1/2024 is
accordingly disposed of.
In Re: MAT 589/2024
With
IA No: CAN/2/2024
It appears that before the Division Bench passed its
order on March 11, 2024, the writ petition and the
connected applications were taken up by the learned
Single Judge and the order that is impugned in this
appeal, was passed. Ideally, the present appellants
should have mentioned the matter before the learned
Single Judge and drawn His Lordship’s attention to the
order of the Division Bench. It does not appear that the
same was done as the order impugned does not even
refer to the order of the Division Bench.
We are not very happy with the conduct of the
appellants. There is no error or deficiency on the part of
the learned Single Judge since in our understanding, the
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Division Bench order dated March 11, 2024, was not
placed or could not have been placed before the learned
Judge before His Lordship passed the order dated March
11, 2024.
However, since a co-ordinate Bench has passed an
order requesting the learned Single Judge to grant an
audience to the appellants herein by disposing of their
application for addition of party prior to passing any
substantive order on the writ petition which may
adversely affect them, we request the learned Single
Judge to give effect to the Division Bench order dated
March 11, 2024. Parties will be at liberty to draw to the
learned Judge’s attention that order of the Division
Bench as also the present order. We further request the
learned Single Judge to dispose of the appellants’
application for addition of party prior to April 29, 2024,
when, we are told, the matter has been made returnable
by the learned Judge.
Since the appellants herein are to be heard by the
learned Single Judge before any adverse order is passed,
no steps for removal of the appellants be taken till the
learned Judge decides the application of the appellants
for addition of party.
Mr. Majumdar, learned Advocate for the
respondent/writ petitioner, prays for leave to file
affidavit-in-opposition to the application for addition of
party made by the present appellants before the learned
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Single Judge. Let such affidavit be filed within a week
from date (04.04.2024). Reply thereto, if any, be filed by
April 8, 2024. Parties will be at liberty to mention the
matter before the learned Single Judge thereafter.
The appeal being MAT 589 of 2024 and the
connected application being IA No: CAN/2/2024 are
disposed of accordingly.
Urgent photostat certified copy of this order, if
applied for, be made available to the parties upon
compliance with all requisite formalities.
(Arijit Banerjee, J.)
(Supratim Bhattacharya, J.)