ASHOKE KUMAR DASADHIKARI,J. - (1.) This writ petition has been filed by the writ petitioner/appellant before the Municipal Building Tribunal being aggrieved against the order dated 23rd August, 2004 passed by the Chairman, Municipal Building Tribunal, Kolkata Municipal Corporation. In the order passed in Appeal No. 74 of 1995, the Appellate Tribunal recorded that the demolition case is pending since 1995 and the case record was called for. On 19th June, 1995 and 54 reminders were issued for the record but neither any record nor any intimation in respect thereof was received from the Municipal Commissioner or any other officers on his behalf in spite of drawing personal attention of the Municipal Corporation. It was observed by the Appellate Tribunal that the case cannot be heard in the absence of the relevant records and documents. Accordingly, the learned Tribunal passed the following order : "That the appeal be disposed of with direction upon the C.M.C. not to give effect to the demolituion order challenged in this appeal. This order does not preclude the CMC from initiating fresh proceeding u/s 400 CMC Act, 1980. If, however, the D. Case Record is traced out, the CMC would be at liberty to file application along with the demolution case record for vacation of this order. Such petituion shall precede the notice upon the appellant intimating the date of hearing of such petition."
(2.) Mr. Banerjee, learned Counsel appearing in support of the writ petition, submits that the order itself shows contradiction. First part says that the CMC will give effect to the demolition order challenged in the appeal and the second part says that if the demolition case is traced out, the CMC would be at liberty to file an application for vacating the order and such petition shall precede the notice upon the writ petitioner/appellant intimating the date of hearing of that application.
(3.) Mr. Banerjee also submits that the appeal Court is to decide the appeal finally and this way the appeal Court cannot keep the matter hanging. In view of the order passed by the appellate Tribunal, the matter has reached its finality and this order is, therefore, sustainable and the order should be set aside.;