MD Salim Vs Kolkata Municipal Corporation and Ors. — Calcutta HC (2024) — LawSathi Research

MD Salim Vs Kolkata Municipal Corporation and Ors. — Calcutta HC (2024) — LawSathi Research

What the court decided

AI extract

Outcome

No relief against the impugned order; the appellant remains free to approach the learned Single Judge with an appropriate application for appropriate relief if entitled in law, and any such application is to be decided uninfluenced by the observations in this order.

Issue for consideration

Whether, in the absence of service of notice of the restoration application on the appellant, the learned Single Judge's restoration and same-day disposal of the writ petition breached the principles of natural justice so as to require the impugned order to be set aside.

Court's answer

The annexures to the affidavit of service establish that the restoration application was served on the appellant on April 24, 2023, well before the impugned order was passed; therefore the principles of natural justice were not flouted.

Ratio / Principle

No apparent infirmity was found in the order under appeal; since the appellant chose not to appear before the learned Single Judge on the date the matter was disposed of, the bench was not inclined to interfere with that order.

Key takeaways

The appellant should have been more diligent and vigilant in the matter.obiter¶10
The dismissal will not prevent the appellant from approaching the learned Single Judge with an appropriate application for appropriate relief, if he is entitled to do so in law.ratio¶16
Any such application filed by the appellant is to be decided by the learned Judge without being influenced by any observation in this order.ratio

Detailed headnote1 paragraphs

Md. Salim, who had been respondent no.8 in a writ petition dismissed for default, appealed (M.A.T. 2166 of 2023, with IA CAN 1 of 2023) against the learned Single Judge's order restoring and disposing of the writ petition on the same day, contending that notice of the restoration application was never served on him and that the same-day disposal breached natural justice. On production of the affidavit of service filed before the Single Judge, the bench found the restoration application had been served on the appellant on April 24, 2023, well before the impugned order, so natural justice was not flouted; the appellant's absence on the day of disposal was attributed to his own lack of diligence. Finding no apparent infirmity in the order under appeal, the bench dismissed the appeal and the connected application, while preserving the appellant's liberty to seek appropriate relief before the learned Single Judge, any such application to be decided uninfluenced by this order's observations.

02.02.2024 Item no.12. Court No.6. AB

M.A.T. 2166 of 2023 With

IA CAN 1 of 2023

Md. Salim Vs Kolkata Municipal Corporation & Others

Mr. Tarique Quasimuddin, Md. Irshad Yaqub, Md. Faizan Yakub ….for the Appellant. Mr. Srijan Nayak, Mr. Subrata Sikdar …..for the KMC. Mr. Abdul Hadi …..for the Respondent No.8. Mr. Lalit Mohan Mahata, Mr. Jagabandhu Roy …..for the State.

Read order dated January 29, 2024.

The short grievance of the appellant, who was the respondent no.8 in the writ petition filed by the respondent no.8 in this appeal, is that no notice of the application for restoration of the writ petition, which stood dismissed for default, was served on the appellant herein. Therefore, the appellant could not be present before the Court on the date the matter was restored. On the same day, the learned Judge took up the writ petition for hearing, after restoring the same and disposed it of by passing the order impugned in this appeal. This amounted to breach of the principles of natural justice. The order under appeal should be set aside.

2

On the last occasion i.e., January 29, 2024, learned Advocate for the respondent no.8/writ petitioner had submitted that his instructions are that the restoration application was served on the appellant herein. We had directed the writ petitioner to produce evidence of such service.

Today, learned Advocate for the writ petitioner produces a copy of the affidavit of service that was filed before the learned Single Judge. From the annexures to such affidavit, it is clear that the restoration application was served on the appellant herein on April 24, 2023. The impugned order was passed much after that. Hence, it cannot be said that the principles of natural justice were flouted. The appellant should have been more diligent and vigilant in the matter.

Copy of the aforesaid affidavit of service filed in Court today be kept with the records.

In view of the aforesaid, we find no apparent infirmity in the order under appeal. Since the appellant chose not to appear before the learned Single Judge on the date the matter was disposed of, we are not inclined to interfere with the order under appeal.

The appeal and the connected application are dismissed.

This will not prevent the appellant from approaching the learned Single Judge with an

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appropriate application for appropriate relief, if he is entitled to do so in law.

If any such application is filed, the learned Judge is requested to decide the same without being influenced by any observation in this order.

Urgent photostat certified copy of this order, if applied for, be supplied expeditiously after compliance with all the necessary formalities.

(Arijit Banerjee, J.)

(Supratim Bhattacharya, J.)