RASHID ALLIDINA Vs. JIWANDAS KHEMJI

JUDGEMENT

(1.) This rule was issued by this Court calling upon the Chief Presidency Magistrate of Calcutta as also upon the opposite parties to show cause why the order complained of in the petition should not be set aside on grounds 1, 2 and 8 of the petition. The opposite parties 1 and 2 appeared and showed cause. The petitioner is the owner of the premises No. 17 Ezra Street, Calcutta. On the east of these premises lie the premises No. 16, Ezra Street which along with several other plots were acquired under the Land Acquisition Act for the Calcutta Improvement Trust, as per Notification No. 16268 L.A., dated 28 November 1936 published in the Calcutta Gazette on 3 December 1936. On 18 August 1941, the present petitioner made a petition to the Chief Presidency Magistrate, Calcutta, naming the opposite party 1 Jiwandas Khemji alone as opposite party and alleging, (1) that on the eastern wall of the petitioner's premises there were six windows on each storey (altogether 18 in number) which were ancient windows and had been in existence for over thirty years through which the petitioner had been enjoying the right of light and air; (2) that the opposite party was trying to block these ancient windows by erecting a wall on the adjoining premises No. 16 Ezra Road and with this object in view collected a large number of men and materials and had dug out the land adjacent to the petitioner's eastern wall and were proceeding to fix up iron joists thereon in spite of protests from the petitioner and by force and show of force was trying to make construction thereon blocking the petitioner's aforesaid ancient windows. On this petition the learned Magistrate on the same date recorded the following order: As the matter is urgent and immediate steps appear to be necessary, issue injunction under Section 144 Criminal P.C., on the second party restraining them from proceeding any further with the proposed structure, or from doing anything likely to interfere with petitioner's right of light and air.

(2.) Opposite party 1 in the present case who was the only opposite party in the above petition appeared on 22 August, 1941 and showed cause by stating that the owner of the vacant piece of land was the Board of Trustees for the Improvement of Calcutta, that the structures complained of were being erected on the said land by the said Board of Trustees and that the opposite party was not erecting the structures or hoarding in question. He further stated that the vacant piece of land in question was acquired under the Land Acquisition Act and the land thereupon vested in the Government free from all encumbrances and easements. After this acquisition, the possession of the land was given to the Calcutta Improvement Trust in this condition and by the said acquisition under the Land Acquisition Act all easements, if any, of the premises No. 17 Ezra Street over the acquired land were totally extinguished. The opposite party had only contracted to purchase the said land free from all encumbrances and easements from the Calcutta Improvement Trust.

(3.) On this the present petitioner filed a further petition on 23 August 1941. In this petition, the original opposite party was made opposite party 2 and "servants and employees of the Board of Trustees of the Calcutta Improvement Trust" were made opposite party No. 1. In this further petition the petitioner referred to the earlier petition as also to the statement of the original opposite party Jewandas made while showing cause, controverted some of the statements made by the opposite party and further stated in paras 8 and 9 of the petition that if the obstruction be allowed to be made it would make a portion of the petitioner's premises unhealthy and insanitary, that substructure would be against the Secs.and Rules of the Calcutta Municipal Act, that the petitioner was anxious to avoid an invasion of the rights of easement of his premises and that the proposed structures would lead to obstruction, annoyance or danger to health and disturbance of public tranquillity. Though the Chairman of the Calcutta Improvement Trust was not named in the petition itself as an opposite party the learned Chief Presidency Magistrate made the following order on this petition: Will Chairman, Calcutta Improvement Trust, please let me know by 30-8, what the facts are and in the meantime stay the construction complained of.