Altamas Kabir, J. - (1.) The writ Petitioner/Respondent No. 1 Hindusthan Auto Distributors Pvt. Ltd., a partnership firm, registered under the Indian Partnership Act, 1932, constructed a multi -storeyed building in a portion of premises, No. 12B Russell Street, Kolkata 700 016 and in the process entered into several transactions for sale of flats comprised in the said multi -storeyed building. From the facts as disclosed during the hearing of the stay application in this appeal, it is evident that the multistoreyed building has been constructed on a portion of premises No. 12B, Russell Street, and that certain other portions of the premises are lying vacant. The owners of the respective flats in the multi -storeyed building have formed themselves into a Society, namely, the Russell Apartment Society, which is the Appellant, No. Tin this appeal and the Secretary of the Society is the Appellant No. 2.
(2.) The writ Petitioner/Respondent No. 1 appears to have attempted the repair and/or construction of a boundary wall along the common passage to the south of the multi -storeyed building and, as alleged, it was obstructed from making such repairs and/or construction of the boundary wall not only by the members of the Appellant -Society but also certain other persons referred to as anti -socials. On such obstruction being made, the writ Petitioner/Respondent No. 1 moved the Court of the learned Executive Magistrate on June 10, 2002, when a direction was given to the Officer -in -Charge, Shakespeare Sarani Police Station, to make an inquiry as to whether there was any apprehension of breach of the peace in the locality or not. The police was directed to see that in the meantime there was no breach of the peace. The Respondent -writ Petitioner also appears to have applied to the Calcutta Municipal Corporation on January 15, 2003, seeking permission to repair the wall which was alleged to have been damaged and/or broken so as to prevent any damage to human life. It appears that the said Respondent was informed by the concerned authorities of Calcutta Municipal Corporation that no sanction was required for the erection of a boundary wall upto 3 metres in height. Thereafter, the writ Petitioner/Respondent No. 1 once again tried to repair and/or construct the boundary wall in question but was again prevented from doing so. According to the writ Petitioner/Respondent No. 1, complaints made to the Officer -in -Charge of the Shakespeare Sarani Police Station were ignored, and, ultimately, the writ Petitioner/Respondent No. 1 was compelled to move a writ petition before this Court, being W.P. No. 1905 of 2003, inter alia, praying for a direction upon the State and the State Respondents to discharge their statutory duties and also to restrain the Respondent No. 5, namely, the Appellant No. 2 in this appeal and his associates from causing any hindrance to the execution of the repair job of the boundary wall in question.
(3.) The writ application appears to have been moved upon notice to the Respondent no. 2 as will appear from the order dated September 19, 2003, passed by the learned Single Judge. It has been recorded in the said order that the registered cover sent to the Secretary of the Appellant -Society was returned with the postal mark 'refused'. Treating the same to be good service, the learned Single Judge after hearing the learned Counsel appearing for the writ Petitioner/Respondent No. 1 and the State Respondents and after considering the facts and circumstances of the case disposed of the writ petition by directing the Deputy Commissioner of Police (South) to provide adequate police assistance to the writ Petitioner/Respondent No. 1 for the purpose of repairing the broken wall at the premises in question. strictly in accordance with law. Thereafter, on September 26, 2003; the said order appears to have been modified to the extent that the Deputy Commissioner of Police (South) was directed to provide adequate assistance to the writ Petitioner/Respondent No. 1 for the purpose of repairing and/or constructing the broken wall at the premises in question, A note of caution was included in the order to the effect that in the guise of construction of the boundary wall the police authorities were not to permit the writ Petitioner/ Respondent No. 1 to encroach upon any new area which did not belong to the writ Petitioner/Respondent No. 1. Coming to learn of the first order dated September 19, 2003, upon the attempt of the writ Petitioner/Respondent No. 1 in trying to implement the said order, the Society preferred the instant appeal, being A.P.O.T, 575 of 2003, Since the Society was not a party In the writ proceedings, leave to file the appeal was prayed for and such leave was duly granted. In addition, leave was also given to the Secretary of the Society to be added as Appellant No. 2 in the appeal.;