- (1.) HEARD the learned Advocates appearing for the parties.
(2.) CHALLENGING the order dated 20th September, 2007 passed by the Learned Trial judge in W. P. No. 2173 of 2004 allowing the application being G. A. No. 3560 of 2006 for amendment of the writ application whereby amendment was sought for seeking declaration of the Court that Section 192 of kolkata Municipal Corporation Act, 1980 is ultra vires, this application has been preferred by the Kolkata Municipal Corporation. There is a delay in preferring this appeal for about 118 days. We are considering the averments made in paragraph 5 assigning the reason for such delay which is set out below : "5. That after the said Judgment and order dated September 20, 2007 was passed, the Law Department of the KMC intimated the concerned department of the kmc about such order and the concerned department, in turn, intimated the appropriate and higher authority of the KMC regarding the same. The appropriate and higher authority asked the Law Department of the KMC through the concerned department to take opinion of Senior Counsel, specially when the Constitutionality of Section 192 of the KMC Act, 1980 is already settled before this Hon'ble Court. Upon obtaining senior Counsel's opinion the direction was issued to obtain a certified copy of the order. Thereafter the appropriate and higher authority of the KMC took decision on the same. The appropriate and higher authority also asked the Law Department regarding the nature of the matter and the Law department suggested that the matter involves a serious question of law. The Law department also applied for the certified copy on February 8, 2008 and the Certified copy was delivered on February 14, 2008. Thereafter, the certified copy was sent to the junior Counsel to draw the Memorandum of Appeal and Application and thereafter the same was sent to the Ld. Senior Counsel for settling the appeal and the appeal was filed on 21-2-2008. However, in this process there has been delay of 118 days which was beyond the control of the petitioners and the same is required to be condoned. "
(3.) THIS application has been opposed by the writ petitioners/respondents by filing an affidavit-in-opposition wherein in paragraph 10 stand as taken by the writ petitioners/ respondents is to this effect : "10. With reference to the statements and/or contentions made in paragraph 5 of the said application, save and except what are the matters of records I deny and dispute the statements and/or contentions made therein. In reply thereto I further state that the points raised by the writ petitioners as per amended writ petition in respect of the arbitrariness, unreasonableness and illegality in certain provisions of Section 192 of the Kolkata Municipal Corporation Act, 1980 cannot be said to have finally been decided by the Hon'ble Court as has been wrongly alleged. Further, in respect of the period since the date of order dated 20th september, 2007 till the date of applying for certified copy on February 8, 2008, the appellants have utterly and deliberately failed to explain the every day delay even in filing the application for certified copy and thereby have failed to take a common and diligent step for fulfilling the requirements of filing an appeal. Furthermore under any stretch of imagination it can be said that the Law department of the Kolkata Municipal corporation and the concerned Department are at a very far away distance but are in the same premises of Kolkata Municipal corporation and furthermore it was the Learned senior Counsel Mr. Ashok Das Adhikary himself who appeared on behalf of the corporation in the case and as such for his opinion to decide the appeal it cannot be expected to take about four months or more time. In such circumstances, the appellants have failed to explain day to day and/or every day's delay in filing appeal on 21-2-2008 and as such their explanation of delay given in the said paragraph under reference may kindly be considered to be no explanation for condonation of the delay of 118 days and on this ground alone the said application is liable to be and may please be dismissed. ";