Calcutta High Court
Dev Kumar Kothari vs Kolkata Municipal Corporation & Ors on 4 March, 2009
Author: Tapen Sen
Bench: Tapen Sen
Order Sheet
WP No. 89 of 2009
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
Dev Kumar Kothari
Versus
Kolkata Municipal Corporation & Ors.
For the Petitioner : Mr. Alok Ghosh, Adv.
For the Respondents : Mr. Biswajit Mukherjee, Adv.
Mr. Swapan Debnath, Adv. Mr. Debanshu Mondal, Adv.
BEFORE:
The Hon'ble Justice Tapen Sen Date: 4th March 2009 This case has been listed on the basis of an Order dated 27th February 2009 passed in W.P. No.74 of 2009.
On 27.2.09, the learned Counsel for the Petitioner of that Case i.e. (W.P. No. 74 of 2009) had submitted that he was entitled to the reliefs as prayed for on the basis of a Judgment of the Hon'ble Supreme Court.
Since W.P. No. 74 of 2009 was similar to this case, this Court had, therefore and in the interests of justice, directed both the matters to be listed together.2
So far as this case is concerned, it was directed that the same be listed under the heading "To Be Mentioned" because on 25th February 2009 this Court had granted liberty to Mr. Biswajit Mukherjee to file his Affidavit but had declined to grant interim relief.
Today, however, when the other Writ Petition was taken up i.e. W.P. No. 74 of 2009, this Court has passed an Order giving liberty to Mr. Mukherjee appearing for the Kolkata Municipal Corporation to file Affidavit-in-Opposition within a period of six weeks. Two weeks' time has been given to the Petitioner of that case to file his Reply and the objection with regard to maintainability of the Writ Petition as raised by Mr. Mukherjee has been kept open. On the question of interim relief and taking into consideration the demand made in that case being Rs.27,39,734/-, out of which the Petitioner has deposited a sum of Rs.7,00,000/-, this Court has directed that the impugned demand shall remain stayed provided the Petitioner of that case deposits a further sum of Rs. 10,00,000/- within two weeks.
For the forgoing reasons and since this case is also similar, it would be in the interests of justice therefore, to hear both the Writ Petitions together. However, since an order was passed on 25th February 2009 when the Judgment of the Hon'ble Supreme Court, viz., Calcutta Gujarati Education Society And Another Vs. Calcutta Municipal Corporation And 3 Others reported in (2003) 10 SCC 533 was not even cited by Mr. Alok Ghosh, learned Counsel for the Petitioner and since that judgment has today been cited by the learned Counsel for the Petitioners in W.P. No. 74 of 2009, it is expedient in the interests of justice, to recall the Order dated 25th February 2009.
Accordingly the Order dated 25th February 2009 is recalled and following Order is passed.
While keeping the objection of Mr. Biswajit Mukherjee with regard to maintainability of the Writ Petition open, this Court nevertheless grants him liberty to file Affidavit-in- Opposition within a period of six weeks from today. Two weeks' time is given to the Petitioner to file his Reply. On the question of interim relief in this case, it has been informed that out of a total demand of Rs. 22,00,000/-, the Petitioner has already deposited Account Payee Demand Drafts to the extent of Rs. 12,00,000/- and have also deposited Post Dated Cheques to the extent of Rs. 10,00,000/-. In other words if the Account Payee Demand Drafts and Post Dated Cheques are taken into consideration then the total amounts tendered would be to the extent of Rs. 22,00,000/-.
Since this Court has granted interim relief in the nature indicated above in the other case, this Court would also proportionately Order that subject to deposit of a further sum of Rs. 4, 00,000/- with the Kolkata Municipal 4 Corporation in cash and within a period of two weeks from today, the impugned demand shall remain stayed.
If the said amount is not so deposited, then this Order will be deemed to have lost its force. The Kolkata Municipal Corporation will accordingly not encash the Cheques that they have taken from the Petitioner and would return those Cheques to the Petitioner/Petitioner's Advocate-on-Record.
Let both the matters come up together for final consideration on 29th April 2009.
It goes without saying that these deposits and the payments made will be without prejudice to the rights and contentions of the parties.
All parties concerned are to act on a photostat signed copy of this order on usual undertakings.
(Tapen Sen, J.) R. Bose Asst. Registrar(C.R.)