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53. The R.I Atanu Bhattacharya had submitted a report before the Recovery Officer indicating that it was difficult to access plot no.3332 through the multiple properties, as a boundary wall in the western side of the property had been constructed by the petitioner No.1. A mini-gate was situated in plot No.3334 to enter the property where the construction was going on and the petitioner No.2 had dug an open ditch for the construction work. The Plot No.3332 could be reached through a narrow passage, but due to the open ditch, the passage was inaccessible to any vehicle. However, there was a 20 ft. wide passage on plot No.3339, which was used in January 2023, when possession of the Plot No.3332 was taken by the Receiver and the Receiver had been accompanied by the R.I through the said passage. There was a tin structure with a tin gate, which had been locked by the receiver, by affixing a padlock. At the time of taking possession, the lock was removed from the gate. From the sketch map it appears to this court that only a part of plot no.3329 had a common boundary with the plot purchased by the opposite party No.1. In the supplementary report filed by the receiver, objections were taken to the report of the R.I. It had been stated that the lock on the passage and the tin gate, had been affixed by the receiver, but the reason for such action is unknown. The receiver in his supplementary report stated that passage in plot nos.3339 and 3331 was a private passage owned by Mr. Indrajit Mitra, Greater Calcutta Vidya Mandir and Others. The said owners had objected to the use of such passage.

54. On the other hand, the deed of gift on the basis of which Mr. Indraji Mitra had acquired ownership and possession of the property mentioned the existence of a common passage on plot No.3331. The common passage had been used for water connection, electric connection, telephone connection and as a common pathway with easementary rights. Such aspect was relevant in this context. Through such passage, the possession was given to the opposite party No.1, as per the version of the R.I. The Recovery Officer held that the private passage could not be encumbered. The Recovery Officer had exercised the jurisdiction conferred by the 1962 Rules. The law provides that such power could be exercised in case of resistance in obtaining possession of the property 'sold' and not any other property, unless those properties were attached. The Recovery Officer held that he could investigate into the matter, summon the parties creating such resistance and obstruction and also remove the obstruction.

55. In my view, before such order was passed, there should have been a definite conclusion that the blockade was on the property sold and over the area which had been used as a passage. Whether the Recovery Officer had control over the property of the petitioner No.1, either by way of attachment or in the manner as contemplated under Section 25(aa) of the said Act or Rule 39 of the 1962 Rules, was also of vital consideration.

56. From the records, it appears that the R.I had reported that possession was taken in January 2023 through the common passage on plot Nos. 3339 and 3331. The deed of gift of Mr. Indrajit Mitra, mentioned such common passage and right of easement over plot No.3331. Orders had been issued upon the municipality to produce consent of the owners of such property and report whether such 20 ft. wide passage could be declared as a public road. Such order was challenged in the appeal, which is pending. Moreover, a bona fide purchaser for value also had a right to have the applications filed by the opposite party No.1 dismissed, upon proof of such bona fide purchase. The opposite party No.1 filed the application much later than January 20, 2023 and not within 30 days as contemplated under Rule 41 of the said Rules. Although the Recovery Officer had observed that there was an injunction upon the certificate debtor from selling, alienating and transferring all other property, even those which were not part of the mortgaged property, the records do not contain any such order. The sale was liable to be set aside. However, learned Advocate for the bank could not show that the bank had ever approached the learned Tribunal, by taking steps under Section 25(a) or 25(aa) of the Act. The parties have not been able to satisfy this Court about any such order of attachment or injunction. Moreover, the opposite party No.1 is not the alter ego of the bank. Without considering such aspects, powers were invoked under Rule 41 of the 1962 Rules and Rule 16 of the Second Schedule, inter alia, holding that the sales in favour of the petitioner No.1, were illegal. The Recovery Officer could not assume jurisdiction and pass the interim injunction, directing stoppage of all constructions by the petitioner No.2 on the plot purchased from the certificate debtor. The prima facie case of the opposite party No.1, ought to have been adjudicated first, with reference to the questions discussed. Applicability of the provisions of the Income Tax Certificate Proceeding Rules required certain pre-conditions to be fulfilled. Whether such pre-conditions had been fulfilled, was to be determined. Injunction on the ongoing construction and direction upon the learned receiver to inspect the property, every 15 days and further direction upon the O.C. Sonarpur to provide adequate police force during such inspection, amounted to obstructing the right of the owner of the property. Cost of Rs.1 lakh was arbitrarily imposed on the petitioner No.1. Without final adjudication of the issues involved, order of injunction and further mandatory directions, could not be passed.