Kolkata Municipal Corp.& Ors vs Kerbs & Cie (I) Ltd.& Ors

CIVIL APPEAL NO. 272 OF 2009 (Arising out of S.L.P.(C) No.9743/2007)

Kolkata Municipal Corp. & Ors. ...Appellant(s)

Versus

KERBS & CIE (I) Ltd. & Ors. ...Respondent(s)

CIVIL APPEAL NOS.273 & 274 OF 2009 (Arising out of S.L.P.(C) No.9805 & 9809 of 2007)

ORDER

Leave granted.

From the impugned judgment of the Division Bench of the Calcutta High

Court affirming the decision of the learned Single Judge, these appeals are filed by

the Kolkata Municipal Corporation. The learned Single Judge has struck down

Section 275(1)(aa) of the Kolkata Municipal Corporation Act, 1980. Against the said

decision, number of Writ Appeals were filed by the Corporation. It appears from the

impugned decision that at one stage, the matter stood adjourned on the ground that

the State had agreed to amend the law. However, that did not materialize. By a

cryptic order, the Division Bench has stated that they have perused the judgment and

they did not find any scope for interference in the order of the learned Single Judge.

We are of the view that in matters involving constitutionality, it would not be open

for the High Court to dismiss Writ Appeals on such cryptic grounds.

..2/-

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In the circumstances, we set aside the impugned judgment of the Division Bench and we restore A.P.O.No.233 of 2003 and other Appeals to the file of the

Kolkata High Court. We direct the High Court to expeditiously hear and dispose of

the said appeals in accordance with law.

At this stage, learned counsel appearing for the Corporation states that the

Corporation prays for stay of the judgment given by the learned Single Judge. We

cannot grant such a prayer particularly when we are setting aside the impugned

order passed by the Division Bench. However, it would be open to the Corporation to

move the Division Bench in the pending Appeals for interim relief, if so advised.

Civil Appeals are, accordingly, allowed with no order as to costs.

...................J. (S.H. KAPADIA)

...................J. (AFTAB ALAM) New Delhi, January 16, 2009.