SRI AUROBINDO ABASAN Vs. SWASTIK PROJECTS PVT. LTD.

JUDGEMENT

(1.) Being aggrieved and dissatisfied with the final judgment and order dtd. 01/07/2022 passed by the Hon'ble Single Judge in WPO No. 2187 of 2022, the appellant is before us.

(2.) The seeds of the present litigation were sown way back in the year 1984 when M/s. Mitra, Bhattacharjee and Associates purchased a plot of land of holding No. 46 which was being subdivided as 46C, Murari Pukur Road (Old), presently Biplabi Barin Ghosh Sarani comprising 9 Bighas 10 Cottahs and one Dr. Bhajan Chaudhuri being the Power of Attorney Holder of the said Associates and Secretary of Sri Aurobindo Abasan had developed the said land with the permission of the Kolkata Municipal Corporation. An agreement between KMC and the said Power of Attorney Holder was executed for the purpose of development of a private road on the aforesaid land on certain conditions in a time bound manner and subsequently as per Sec. 368 of the Kolkata Municipal Corporation Act the said private road measuring about 10.3 metres was taken over by the Kolkata Municipal Corporation. However, a resolution dtd. 16/4/1988 was adopted by the Mayor-in-Council Committee wherein it was stated that the developer by a letter dtd. 12/3/1988 requested Kolkata Municipal Corporation for taking over the road as the development work pursuant to the agreement between Kolkata Municipal Corporation and the said Power of Attorney Holder was complete. It is also revealed from the material on record that on 20/9/1988 the Developer and Secretary of the appellant/Abasan Committee addressed a letter to the Mayor-in-Council, Kolkata Municipal Corporation stating that though the representatives of the sister departments of the Kolkata Municipal Corporation attended the site of 1988 for formal taking over of the road but unfortunately the said taking over could not be effected for the existence of an iron gate and electric meter room at the main entrance of the road. By the said letter the Developer and the Secretary of the appellant Abasan had requested for conditional taking over or temporarily putting in abeyance the taking over of the road by the Kolkata Municipal Corporation. The record further shows that the said request made by the Developer-cumSecretary of appellant /Abasan committee was not paid heed to and subsequently on the basis of undertakings given by the said Secretary, it was resolved by the Kolkata Municipal Corporation and notified for all concerned that pursuant to the resolution dtd. 20/1/1989 adopted by the Mayor-in-Council, the Kolkata Municipal Corporation at their meeting held on 20/1/1989, the 10 metre wide road along with iron gate, watch man's room and boundary wall at 46 Biplabi Barin Ghosh Sarani in Ward No. 14 as delineated in the plan prepared for the purpose, has been taken over by the Kolkata Municipal Corporation under Sec. 368 of the Kolkata Municipal Corporation Act, 1980 and the road was declared as public.

(3.) It is also revealed that on the connected road from Biplabi Barin Ghosh Sarani in Ward No. 14 Borough - III to Sri Aurobindo Abasan being Premises No. 46C, Biplabi Barin Ghosh Sarani an iron gate, watch man's room and boundary wall surrounding the said Aurobindo Abasan was taken over by the Kolkata Municipal Corporation but a licence for operation of the gate was given to the Secretary of Sri Aurobindo Abasan for further five years as resolved in Item No. 60.31 in a meeting of the Mayor-in-Council dtd. 20/1/1989. In the said meeting, it was also resolved that after expiry of five years, the said structures would be demolished so as to make unobstructed connections of the new road within the said Abasan. According to Kolkata Municipal Corporation as well as the writ petitioner, who purchased plots adjoining Aurobindo Abasan, the appellant Aurobindo Abasan has no right to look after the iron gate along with boundary wall and 10 metre inside road after five years from 20/1/1989. The gate and the watch man's room at premises No. 46C, Biplabi Barin Ghosh Sarani were all made public and Sri Aurobindo Abasan cannot claim them now as its own properties since the Kolkata Municipal Corporation has taken over the land and five years period as referred to above has already expired. As 10 metres road as aforesaid has already been taken over by the Kolkata Municipal Corporation, none can claim personal right over the gate, watch man's room and the relevant boundary wall. The writ petitioner being resisted from using the 10 metre wide road as aforesaid moved before the Hon'ble Court at Calcutta by filing the Writ Petition No. 2187 of 2022 on the grounds, inter alia, that the appellant Abasan herein and its men and agents are creating obstruction and disturbance to the writ petitioner and its men and agents for using the road as public road. After taking reports from the concerned officer of Kolkata Municipal Corporation the Hon'ble Single Judge has passed the following order on 01/07/2022:-