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2009 DIGILAW 666 (CAL)

Kolkata Municipal Corpn. v. Khartar Seva Trust

2009-08-26

BHASKAR BHATTACHARYA, PRASENJIT MANDAL

body2009
JUDGMENT 1. Instead of hearing of the application for stay, we propose to hear out the appeal itself by treating it as on day's list. 2. This appeal is at the instance of the Kolkata Municipal Corporation, the defendant in a suit for declaration and injunction and is directed against the order No.8 dated 6th February, 2009 passed by the learned Judge-in-Charge. VIIIth Bench, City Civil Court at Calcutta, in Title Suit No. 5494 of 2008 thereby disposing of an application for temporary injunction filed by the respondent by restraining the Kolkata Municipal Corporation, its men and agents, from making any construction of any urinal and/or toilet or causing any obstruction towards egress and ingress of the plaintiff in the suit property blocking the entrance gate facing B.K. Paul Avenue till the disposal of the suit. 3. Being dissatisfied, the defendants have come up with the present appeal. 4. The respondent before us filed in the City Civil Court at Calcutta a suit being Title Suit No. 5494 of 2008 thereby praying for declaration that the plaintiff was entitled to use the entrance gate of the suit premises facing B.K. Paul Avenue, Kolkata, without any obstruction by the defendants or further declaration that the defendants had no right to block or obstruct the entrance gate of the suit property facing B.K. Paul Avenue by raising any wall or erecting any permanent structure thereat and for permanent injunction restraining the defendants, their men and agents from making any construction of any urinal or any toilet or any other construction in front of the suit premises facing B.K. Paul Avenue. 5. The case made out by the respondent may be summed up thus: (a) The plaintiff was a long-term lessee of the part of the premises No. 25, Gopi Krishna Pal Lane, Kolkata and in terms of the order passed by this High Court, the lease had been granted to the plaintiff by a registered deed of lease dated 1st October, 1996. The said lease is for the period of 61 years and is subsisting. (b) The plaintiff applied for building-sanction-plan from the defendant No.1 and accordingly, the same was duly sanctioned. The said lease is for the period of 61 years and is subsisting. (b) The plaintiff applied for building-sanction-plan from the defendant No.1 and accordingly, the same was duly sanctioned. In the said sanctioned plan, the gate facing B. K. Paul Avenue was shown for the user of the plaintiff and the plaintiff had been using the two gates of the said premises Those two gates are exclusively meant for the users of the plaintiff only, (c) The suit premises were situated at the junction of B.K. Paul Avenue and Gopi Krishna Pal Lane and for all material time there were two gates of the said premises; one was facing B.K. Paul Avenue and the other was facing Gopi Krishna Pal Lane and at all material time, the plaintiff had been using both the gates. (d) All of a sudden, on 17th December, 2008 the plaintiff noticed that some unknown persons started digging up a big hole on the road in front of the suit premises facing B.K. Paul Avenue. The plaintiff immediately raised objection towards such illegal activities and on being protested, those persons became furious and started using filthy language and issuing threats. (e) The plaintiff immediately lodged a complaint before the Officer-in-Charge, Jorabagan Police Station, and asked for the intervention in the matter, but the police authority asked the plaintiff to approach Court for appropriate order. (f) At that juncture, the plaintiff came to learn that the persons who are carrying out the work were actually engaged by the defendants and the intention of the defendants was to erect one permanent construction in front of the said gate to make one urinal and toilet. (g) No notice of such proposed construction had been issued to the plaintiff and consent of the plaintiff was never sought for by the defendants. Due to erection of such wall, the egress and ingress of the plaintiff through the said gate facing B.K. Paul Avenue had been completely stopped. (h) If the proposed urinal is constructed in front of the gate, in that event, the said gate would be permanently blocked. Due to erection of such wall, the egress and ingress of the plaintiff through the said gate facing B.K. Paul Avenue had been completely stopped. (h) If the proposed urinal is constructed in front of the gate, in that event, the said gate would be permanently blocked. 'Moreover, in the suit property there is a temple of "Radhakrishna" where daily Seva Puja held with much respect and the said temple is located at the side of the said entrance gate and the erection of a toilet or urinal would emit bad smell all the time and the sanctity of the temple-area would be at stake. Hence, the suit. 6. On the basis of self-same allegation as made in the plaint, the plaintiff came up with an application for temporary injunction restraining the defendants from making any such construction at the place indicated above, 7. The application was opposed by the defendants by filing written objection thereby denying the material allegations made in the plaint and in the application for injunction. It was specifically denied that in the sanctioned plan, the gate facing B.K. Paul Avenue was shown for the user of the plaintiff or that the plaintiff had been using two gates for the purpose of egress and ingress from the plaintiffs property. According to the defendants, there exists a wall covering "the entire B.K. Paul Avenue side having no entrance gate all along and in front of the said wall, on the pavement belonging to the KMC there is an existing vat from very long time. According to the defendants, the Kolkata Municipal Corporation has decided to construct a pay and use toilet for the benefit of the people locality and for betterment of civic amenities in Kolkata on the pavement belonging to the Kolkata Municipal Corporation without causing any difficulty to anybody and therefore the Kolkata Municipal Corporation was not required to issue any notice for the purpose of construction of the said toilet. It was denied that the proposed urinal would be constructed by blocking the entrance gate of the plaintiff. It was further denied that there was any temple in the premises or that construction of the toilet would emit bad smell or that the sanctity or cleanliness of the temple would be at a stake. 8. It was denied that the proposed urinal would be constructed by blocking the entrance gate of the plaintiff. It was further denied that there was any temple in the premises or that construction of the toilet would emit bad smell or that the sanctity or cleanliness of the temple would be at a stake. 8. The learned Trial Judge on consideration of the materials on record came to the conclusion that prima facie, to prevent nuisance the defendant was interested to construct the said urinal but after the construction of the urinal, the public would use the same for the purpose of discharging urine which will cause bad smell and the sanctity of the temple, no doubt, would be at stake and therefore, it is a fit case for grant of injunction. 9. Being dissatisfied, the Kolkata Municipal Corporation has come up with the present appeal. 10. After hearing Mr. Das Adhikari, the learned Senior Advocate appearing on behalf of the appellants and Mr. Saha, the learned Advocate appearing on behalf of the plaintiff-respondent, we find that undisputedly, there are two gates of the premises of the plaintiff; one facing Gopi Krishna Pal Lane and other B.K. Paul Avenue. It is, however. strenuously contended by Mr. Das Adhikari that the gate facing B.K. Paul Avenue was subsequently constructed and such ejection was not used for carriage purpose as would appear from the report given by the concerned engineer itself. Mr. Das Adhikari contends that if a new gate is to be constructed for the carriage purpose, the required sanction in terms of Kolkata Municipal Corporation Act from the appropriate authority should be taken and the concerned engineer is not such a person. 11. Mr. Das Adhikari, however, submits that the proposed pay and use toilet will not be constructed covering the said gate facing B. K. Paul Avenue. 12. After going through the aforesaid materials, we find that the learned Trial Judge was under the impression that the proposed urinal was an open urinal made for public. It is apparent that Kolkata Municipal Corporation wants to construct a pay and use "urinal" and "toilet" and therefore, there is no apprehension of any nuisance as mentioned in the order impugned. After going through the aforesaid materials, we find that the learned Trial Judge was under the impression that the proposed urinal was an open urinal made for public. It is apparent that Kolkata Municipal Corporation wants to construct a pay and use "urinal" and "toilet" and therefore, there is no apprehension of any nuisance as mentioned in the order impugned. After all, the proposed construction is on a footpath over which the plaintiff had no right, title and interest and according to the Kolkata Municipal Corporation Act, it is for the appropriate authority of the Corporation to decide whether in a particular place on footpath, a pay and use urinal would be constructed. The plaintiff cannot have any say in the matter unless it interferes with any of its rights in the property. 13. We, therefore, find that there was no justification of restraining the Kolkata Municipal Corporation from constructing any pay and use toilet on the land belonging to the Corporation itself over which the plaintiff has no right. However, while meaking such construction, the gate of the plaintiff facing B.K. Paul Avenue which was earlier permitted to be constructed by the KMC should not be obstructed in any way. 14. We however, make it clear that if the said gate is tried to be used as a carriage way, the Kolkata Municipal Corporation will be free to take appropriate step in accordance with law. 15. We make it clear that we have not gone into the question whether there was really a valid sanctioned plan for construction of a gate for the purpose of using as a carriage way. 16. We further make it clear that our observations as regards the existing right of the parties are all tentative for the purpose of disposal of this appeal and will not be binding upon the Court at the time of final hearing of the suit. 17. We, thus, set aside the order impugned and allow the appellant to construct pay and use "toilet" at the place indicted above. 18. The appeal itself is, thus, disposed of with the above order. 19. In view of disposal of the appeal itself, the connected application for stay being CAN 2151 of 2009 has become infructuous and the same is disposed of accordingly. 20. 18. The appeal itself is, thus, disposed of with the above order. 19. In view of disposal of the appeal itself, the connected application for stay being CAN 2151 of 2009 has become infructuous and the same is disposed of accordingly. 20. Xerox certified copies of this order, if applied for, be given to the parties within a week from the date of making of such application upon compliance of all formalities. Appeal disposed of.