IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 272  OF 2009 (Arising out of S.L.P.(C) No.9743/2007)

Kolkata Municipal Corp. & Ors. ...Appellant(s)

Versus

KERBS & CIE (I) Ltd. & Ors. ...Respondent(s)

CIVIL APPEAL NOS.273 & 274 OF 2009 (Arising out of S.L.P.(C) No.9805 & 9809 of 2007)

O R D E R

Leave granted.

From the impugned judgment of the Division Bench of the Calcutta High

Court affirming the decision of the learned Single Judge, these appeals are filed by

the  Kolkata  Municipal  Corporation.   The  learned  Single  Judge  has  struck  down

Section 275(1)(aa) of the Kolkata Municipal Corporation Act, 1980.  Against the said

decision, number of Writ Appeals were filed by the Corporation.  It appears from the

impugned decision that at one stage, the matter stood adjourned on the ground that

the State had agreed to amend the law.  However, that did not materialize.  By a

cryptic order, the Division Bench has stated that they have perused the judgment and

they did not find any scope for interference in the order of the learned Single Judge.

We are of the view that in matters involving constitutionality, it would not be open

for the High Court to dismiss Writ Appeals on such cryptic grounds.

    ..2/-

-2-

In the circumstances, we set aside the impugned judgment of the Division

Bench and  we  restore  A.P.O.No.233 of  2003 and other  Appeals  to  the file  of  the

Kolkata High Court.  We direct the High Court to expeditiously hear and dispose of

the said appeals in accordance with law.

At this stage, learned counsel appearing for the Corporation states that the

Corporation prays for stay of the judgment given by the learned Single Judge.  We

cannot  grant such  a prayer particularly  when we are setting aside  the impugned

order passed by the Division Bench.  However, it would be open to the Corporation to

move the Division Bench in the pending Appeals for interim relief, if so advised.

Civil Appeals are, accordingly, allowed with no order as to costs.

                         ...................J.               (S.H. KAPADIA)

                        ...................J.

                                       (AFTAB ALAM) New Delhi, January 16, 2009.