Baby Ghosh & Anr vs Siddhartha Ghosal & Ors

Debangsu Basak, J

The private respondents in a writ petition seek review of the order dated July 18, 2018 disposing of the writ petition.

Learned senior advocate appearing for the review applicants submits that, the Court while disposing of the writ petition on July 18, 2018 proceeded on

the basis of an issue of fact, which is erroneous. He submits that, such error is apparent on the face of the record itself. According to him, the Court

proceeded on the basis that, there was no application under Rule 61 of the Howrah Municipal Corporation Rules, 1991 (Rules of 1991) and, therefore,

the review applicants did not comply with such Rule 61. Consequently, the decision of Howrah Municipal Corporation to invoke Rule 61 of the Rules

of 1991 was not sustained. He draws the attention of the Court to the affidavit filed on behalf of Howrah Municipal Corporation. He submits that, the

review applicants complied with Rule 61 of the Rules of 1991. Such compliance will appear from the documents available with Howrah Municipal

Corporation. He draws the attention of the Court to the fact that, an asmade plan was submitted with the Howrah Municipal Corporation and that,

Howrah Municipal Corporation imposed fine which the review applicants paid and Howrah Municipal Corporation received. He draws the attention of

the Court to the averments made in the affidavit of Howrah Municipal Corporation and submits that, although, the asmade plan is no longer available in

the records of the Howrah Municipal Corporation, they found the relevant entry with regard to the imposition of the fine and the receipt of payment

thereof. Consequently, he submits that, this material evidence ought to be evaluated by the Writ Court at the final hearing of the writ petition to arrive

at the finding as to whether the decision impugned by the writ petitioner in the writ petition is correct or not.

Learned senior advocate appearing for the writ petitioner submits that, no ground of Order 47 of the Code of Civil Procedure, 1908 exist for the Court

to invoke such jurisdiction. He submits that, the issue as to whether there was an asmade plan as contended on behalf of the review applicants was an

issue in the earlier two writ petitions. At no point of time did the review applicants raise such issue before the Court. Therefore, this issue is sought to

be raised for the first time in a review and should not be allowed to be raised by the Court.

Learned senior advocate appearing for the writ petitioner submits that, Rule 61 of the Rules of 1991 does not permit an asmade plan to be taken into

consideration. He refers to the Rules and submits that, the Rule contemplates an intended construction and not a construction already made. An

asmade plan is in respect of construction already made. Rule 61 covers situations where the construction is yet to be made. Therefore, Rule 61 of the

Rules of 1991 has no manner of application in the facts of the present case. In such factual background, according to the senior advocate appearing

for the writ petition, no review is called for.

The private parties are litigating on a construction for a considerable period of time. The first writ petition alleging unauthorised construction was

disposed of by an order dated August 5, 2005. By such order, the issue of unauthorised and illegal construction was left open to be decided by the

Howrah Municipal Corporation. Howrah Municipal Corporation heard the private parties and came to a finding.

Such decision of the Howrah Municipal Corporation was challenged in the second writ petition. By an order dated October 29, 2009, the second writ

petition was disposed of. By such order, the exercise of power by the Borough Committee of Borough-V of Howrah Municipal Corporation was

found to be without jurisdiction. Howrah Municipal Corporation was directed to decide afresh.

Howrah Municipal Corporation will took a decision which was impugned in the third writ petition resulting in the order dated July 18, 2018, review of

which is being sought in the present review petition.

The review applicants were not represented at the time when the order dated July 18, 2018 was passed. The review applicants seeks to explain their

non-appearance on such date. For the ends of justice, such explanation is accepted as sufficient.

In its affidavit Howrah Municipal Corporation relies upon documents to suggest that there was an application at the behest of the review applicants in

terms of Rule 61 of the Rules of 1991 and that, fine was imposed which the review applicant paid. The point as to whether Rule 61 could be invoked

or not be best left to be decided at the hearing of the writ petition. However, for the limited purpose of review of the order dated July 18, 2018, it is

sufficient to find that, there are materials which ought to be taken into consideration while disposing of the writ petition.

The contention of the writ petitioner that, the materials which the review applicant seeks to bring on record today, was capable of being brought on

record previously and that, the review applicants not having done so, they are estopped from doing so, cannot be accepted, in the facts of the present

case. The review applicants seek to bring on record a decision of Howrah Municipal Corporation dated January 12, 2005. An effort of Howrah

Municipal Corporation on January 12, 2005 with regard to the construction in question is noted in the order disposing of the second writ petition on

October 29, 2009. In the first writ petition, the issue was left open to be decided by Howrah Municipal Corporation. Therefore, it cannot be said that,

while disposing of the writ petition, the issue as sought to be raised by the review applicants today stood decided. In the second writ petition, the issue

was not decided and kept open since the Court found the decision of the Howrah Municipal Corporation to be without jurisdiction. In my view, the

issue that the review applicants seek to bring today, is not barred by issue estoppel as contended.

In such circumstances, it would be appropriate to allow the present review application.

R.V.W. 168 of 2019, C.A.N. 7271 of 2019 and C.A.N. 7273 of 2019 are disposed of by recalling the order dated July 18, 2018.

There shall, however, be no order as to costs.

Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.