ANIRUDDHA BOSE,J. - (1.) The main dispute, out of which this appeal arises relates to leasehold right of a large waterbody known as 'Choto -Boroparesh Bheri' in Dhapamanpur Mouza under Bidhan Nagar (South) Police Station in the district of 24 - Parganas (North). The appellant claims to have legitimate right to continue with their fishing activities in that waterbody and their case is that the original owner thereof had granted lease to them by a Deed of Lease executed on 21st February, 1995. The writ petition, out of which this appeal arises, was instituted by sixteen individuals, who are represented before us in this appeal by Mr. Bikash Ranjan Bhattacharya, learned Senior Counsel. They claim to be dependent on fishing activities from that waterbody and have alleged attempt on the part of the appellant to effect their illegal ouster in the writ petition.
(2.) In the writ petition, they have also questioned legality of claim of the appellant (Madhumita Construction Limited) over the subject waterbody. Their further allegation is that the appellants are taking steps in changing the nature and character of the waterbody illegally. In the writ petition, their prayers include direction upon the State authorities to grant them lease in respect of the said waterbody. They have also prayed for an order to prevent the appellant from carrying on fishing activities from the said waterbody. The writ petition was initially taken up for hearing on 6th January 2016. We find from the order passed on that date that affidavit -of -service was filed in Court but none had appeared on behalf of the respondents. In such circumstances hearing of the matter was adjourned till 11th January 2016. On 11th January 2016, the writ petition was disposed of in the following terms: - "When the matter is taken up for consideration, learned advocate representing the State submits, on instructions, that in respect of lease of 'Chhotto O Baro Paresh Bhery', the matter is placed before a five -man committee headed by District Magistrate as its Chairman. Considering this aspect of the matter, the writ petition is disposed of with a direction upon the concerned respondent authority to ensure that the five -man committee headed by the District Magistrate, North 24 Parganas, decides the issue as expeditiously as possible, preferably within a period of four weeks, but not later than six weeks from date of communication of a photostat certified copy of this order. Till such time a decision is taken by the five -man committee, the local authority shall ensure that no fishing activity takes place in 'Chhotto O Baro Paresh Bhery'. The writ petition stands disposed of accordingly. Urgent photstat certified copy of this order, if applied for, be given to the learned advocates for the parties."
(3.) It is admitted position that there was no service of the copy of the petition on the appellant, who were impleaded as Respondent No. 8 in the writ petition. The order by which the writ petition was disposed of was passed ex -parte so far as the appellant is concerned. The appellant, upon obtaining certified copy of the order, applied before the learned First Court by filing an independent application (CAN No. 2798 of 2016) for recalling and/or setting aside and/or vacating the order passed on 11th January 2016. This application was taken up for hearing on 1st April 2016. On that date, the writ petitioners went un -represented before the learned First Court. Upon hearing the learned counsel appearing for the appellant/applicant as also the State, direction was given for filing affidavit -in -opposition within a fortnight from that date and reply thereto was directed to be filed within a week thereafter. It was also specified in this order: - "Taking into consideration the fact that the order dated 11th January, 2016 was obtained by the petitioner without serving notice upon the applicant, being the respondent no. 8 in the writ proceeding, pending final hearing of the instant application, the local authority shall permit the applicant, to conduct fishing activity in the bhery, strictly in accordance with law." ;