DAYAMOY CHATTERJI Vs. CORPORATION OF CALCUTTA

JUDGEMENT

(1.) This is a Second Appeal from the judgment and decree of the appellate Court in T.A. 1065 of 1966 affirming the judgment and decree of the trial Court in Title Suit No. 242/65. This suit and the Title Suit No. 230/65 were treated analogous in the Courts below. But the Second Appeal arising from Title Suit No. 230/65 is not yet ready for hearing.

(2.) Title Suit No. 242/65 was instituted by the Plaintiffs who are the owners of certain premises on or near about a projected public street under the Calcutta Corporation. Defendant No. 1 is the Calcutta Corporation and 2 to 6 are the owners of the premises Nos. 106/12 and 106/13, Hazra Road, which have been subsequently amalgamated and numbered as No. 106/12, Hazra Road.

(3.) On July 19, 1940, the Corporation of Calcutta, Defendant No. 1 sanctioned an alignment 30' wide through the premises No. 106/12 and 106/13, Hazra Road. The learned Advocates for both the sides agree that it is not a street alignment as defined in Sec. 5(71) of the Calcutta Municipal Act; it is really a projected public street. I would, therefore, call it a projected public street. The provisions of Sec. 356, 357 and 358 are applicable to a projected public street. This is under Sec. 364 of the Calcutta Municipal Act, 1951. Such sanction of the Calcutta Corporation is evidenced by Ex. D/10. This resolution relates to a projected public street. Thereafter, certain plans which are marked Ex. 1 series were sanctioned by the Corporation of Calcutta to different persons in the locality and these plans depicted the projected public street 30' wide. Under Sec. 382(1)(a) of the Calcutta Municipal Act, no new building shall be erected unless the site of such building abuts a projected public street or a public street or a private street. According to the Plaintiffs, plans as in Ex. 1 series were sanctioned because they abutted on the projected public street sanctioned on July 19, 1940. On behalf of the Defendant Nos. 2 to 6 it is pointed out that all the plans marked 1 series would show that the plans were sanctioned not on the basis of the projected street but on the basis of the existing street, the projected street might have been merely shown in the sanctioned plans. However, all these plans were sanctioned between 1947 and 1957 during which period the resolution dated July 19, 1940, of the Calcutta Corporation was in force. The resolution for projected public street of 30' wide was modified by another resolution (Ex. E) by the Corporation on January 18, 1957, and the width of the projected street was reduced from 30' to 20' by this second resolution. Again on December 2, 1960, the Calcutta Corporation passed another resolution Ex. D/8 modifying the resolution dated January 18, 1957, and the width of the projected street was restored to 30' as originally resolved on July 19, 1940. Subsequently, it appears, there was some doubt in the Calcutta Corporation as to the validity of the said resolutions modifying the original resolution dated July 19, 1940, and they thought it fit to take the opinion of the Advocate -General, West Bengal, as to the validity of the modification made. I have accepted additional evidences with the consent of the learned Advocate for all the parties in this Second Appeal - -the said case for the opinion of the Advocate -General and the opinion of the Advocate -General. They have been marked Exs. H.C.(A) and H.C.(B). I shall discuss this matter of additional evidence later on. After having received the opinion of the Advocate -General the Corporation passed another resolution Ex. D/7 on December 8, 1961, by which the Corporation resolved as follows: