Biswanath Somadder, J. - (1.) By consent of the parties, the appeal is treated as on day's list and taken up for consideration along with the application for stay. The instant appeal arises out of a judgment and order dated 14th December, 2016, passed by the learned Single Judge in WP 25165 (W) of 2016 (Bimal Chandra Saha & Anr. vs. The Bidhannagar Municipal Corporation & Ors.). The appellants before us were the private respondent nos.5 and 6 before the First Court.
(2.) Even a bare perusal of the directions given by the First Court reveals that the learned Single Judge even while noticing a civil proceeding pending before the learned Civil Judge (Junior Division), 1st Court at Barasat, between the writ petitioners on the one hand and the private respondent nos.5 and 6 on the other proceeded to grant an option to the writ petitioners to withdraw the suit and the appeal therefrom and thereafter approach the Bidhannagar Municipal Corporation on the basis of a report dated 2nd December, 2016, which was filed by the Bidhannagar Municipal Corporation before the learned Single Judge. The Bidhannagar Municipal Corporation was directed to consequently start a demolition case against the private respondents being the appellants herein within a certain time-frame and conclude the proceedings within a further specified period of time as stated in the impugned order.
(3.) We are unable to appreciate issuance of such directions by the writ Court at the behest of the writ petitioners. A substantive right to seek a decree for demolition as claimed by the writ petitioners against the private respondents was pending adjudication before a competent civil Court. Even while noticing the existence of the civil proceeding, the learned Single Judge proceeded to grant an option to the writ petitioners to withdraw the civil suit and the appeal preferred therefrom notwithstanding the fact that in such a situation, filing of a writ petition, by itself, was patently misconceived. In a fact situation as presented before the First Court, the proper course of action would have been to dismiss the petition for the writ petitioners having abused the process of the writ Court even when a civil suit was pending before the competent civil Court. Instead, the learned Single Judge gave option to the writ petitioners to withdraw the suit and thereafter approach the Bidhannagar Municipal Corporation on the basis of the report dated 2nd December, 2016, to enable the Bidhannagar Municipal Corporation to start a demolition case against the private respondents, being the appellants herein.;