Omkar Prasad vs. Devanand Choudhury

• 1 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2539 OF 2016 (Arising out of SLP(C) No. 10378/2013) OMKAR PRASAD .. APPELLANT(S) VERSUS DEVANAND CHOUDHURY & ORS. .. RESPONDENT(S) O R D E R 1. Leave granted. 2. Respondent No.1 had filed Writ Pe tition No. 23170 (W) of 2012 in the High Co urt of Calcutta, wherein it was alleged tha t the appellant-herein had constructed a building on the land which was declared surplus and vested in the State and therefore such a construction was illegal and should be demolished. The appellant was also impleaded as one o f the respondents in the writ petition. Notices w ere Signature Not Verified Digitally signed by USHA issued which were served on the appella nt. RANI BHARDWAJ Date: 2016.03.08 17:12:08 IST Reason: However, the appellant did not appear. 2 3. After hearing the matter, the High Court

has passed the impugned order dated 16.01.2013 accepting the contention of respondent No.1 that

the land was surplus and therefore vested in

the State and thus the appellant could not have raised any construction thereupon.

4. This order is under challenge in this appeal. The case set up by the appellant is that he had purchased the land in question and it is further argued that the land cannot be treated as surplus or vested in the State. This is disputed by the respondent(s). Before us the appellant has given sufficient reasons why he could not appear before the High Court and therefore could not present his version. In these circumstances, it would be appropriate to remit the case back to the High Court for fresh decision on merits after hearing all the parties. We, thus, set aside the impugned order passed by the High Court and remit the case back to the High Court. 3 5. The appeal is accordingly allowed. 6. The appellant shall be permitted to file counter affidavit in the writ petition within four weeks from today. Rejoinder thereto may be

filed within four weeks' thereafter.

7. We may note that the appellant shall not create third party rights in the property in question. We request the High Court to make endeavor to dispose of the matter expeditiously.

.....................J. [ A.K. SIKRI ]

......................J. [ R.K. AGRAWAL ]

NEW DELHI, MARCH 04, 2016. ITEM NO.46 COURT NO.12 SECTION XVI

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition(s) for Special Leave to Appeal (C) No(s). 10378/2013 (Arising out of impugned final judgment and order dated 16/01/2013 in WP No. 23170(W)/12 passed by the High Court Of Calcutta) OMKAR PRASAD Petitioner(s) VERSUS DEVANAND CHOUDHURY & ORS. Respondent(s) (With appln. (s) for permission to file additional documents and interim relief and office report)(FOR FINAL DISPOSAL) Date :04/03/2016 This petition was called on for hearing today. CORAM : HON'BLE MR. JUSTICE A.K. SIKRI HON'BLE MR. JUSTICE R.K. AGRAWAL For Petitioner(s) Mr. Soumya Chakraborty, Adv. Mr. Debashis Sinha, Adv. Mr. Danish Zubair Khan,Adv. For Respondent(s) Mr. Sankar Ch. Ghosh, Adv. For State Mr. Mrinal Kanti Mandal, Adv. Mr. Parijat Sinha, Adv. rr.1 Mr. Aditya Dhar, Adv. Mr. Ghalib Kabir, Adv. Dr. Kailash Chand, Adv. Mr. L.C. Agrawala,Adv. UPON hearing the counsel the Court made the following O R D E R Leave granted. The appeal is allowed in terms of the signed order. Consequently, all the applications are disposed of. [ Charanjeet Kaur ] [ Tapan Kr. Chakraborty ] A.R.-cum-P.S. Court Master [ Signed order is placed on the file ]