Calcutta High Court
Pradeep Kundalia & Anr vs Mr. Vaishali Manek & Ors on 27 February, 2025
Author: Debangsu Basak
Bench: Debangsu Basak
1
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Original Side
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Md. Shabbar Rashidi
APO 18 of 2024
With
WPO 2635 of 1998
IA NO.: GA 1 of 2024
GA 2 of 2024
GA 4 of 2025
Pradeep Kundalia & Anr.
Vs.
Mr. Vaishali Manek & Ors.
With
APO 20 of 2024
IA NO.: GA 2 of 2024
M/s M. Walters & Co.
Vs.
Mr. Vaishali Manek & Ors.
For Appellants : Mr. Surojit Nath Mitra, Sr. Adv.
Mr. Arindam Banerjee, Sr. Adv.
Mr. Deepnath Raychowdhury, Adv.
Ms. Arpita Saha, Adv.
Ms. Kumkum Mukherjee, Adv.
For Respondents : Mr. Saptangshu Basu, Sr. Adv.
Ms. Vijaya Bhatia, Adv.
Mr. Kaushik Dey, Adv.
Mr. Ganesh Prasad Shaw, Adv.
Mr. Harish Thirani, Adv.
Mr. Barin Banerjee, Adv.
2
For Proforma Respondent : Mr. Ranjan Bachhawat, Sr. Adv.
Mr. Rishad Medora, Adv.
Mr. Meghajit Mukherjee, Adv.
Ms. Brinda Sengupta, Adv.
Mr. Satyaki Mukherjee, Adv.
Ms. Srijeeta Gupta, Adv.
Ms. Sonia Das, Adv.
For KMC : Mr. Alok Kumar Ghosh, Adv.
Ms. Sima Chakraborty, Adv.
Mr. Fazlul Haque, Adv.
Hearing Concluded on : January 30, 2025
Judgment on : February 27, 2025
DEBANGSU BASAK, J.:-
1. An appeal and the applications connected thereto have
been heard analogously as they involve the same premises and
raise similar issues.
2. Appellants have assailed the judgment and order dated
January 30, 2024 passed by the learned Single Judge in WPO
2635 of 1998. By the impugned judgment and order, learned
Single Judge has held that the construction existing at a defined
area of the building was authorised and directed demolition
thereof.
3. Learned Senior Advocate appearing for the appellants has
contended that, learned Single Judge misunderstood the situs and
extent of the alleged unauthorised construction. He has contended
that, the learned Single Judge proceeded on the basis that, open
space on the ground floor of the building was converted into a
3
commercial space. He has pointed out that, the original sanctioned
building plan dated May 18, 1987 treated the ground floor where,
the alleged unauthorised construction was complained to take
place, as a car parking space. He has pointed out that, the
conversion sought for and sanctioned on March 5, 2001 lies within
the building line. He has referred to both the original sanctioned
plan dated May 18, 1987 as also the sanctioned building plan on
conversion dated March 5, 2001 in this regard.
4. Referring to the original sanctioned building plan dated
May 18, 1987, learned Senior Advocate appearing for the
appellants has contended that, the same demonstrates that the
building was walled up from the sides at the ground floor level
leaving appropriate ramps for entry and exit of the vehicles. The
ground floor of the building has never been meant to be kept open.
5. Learned Senior Advocate appearing for the appellants has
pointed out that, the appellants filed GA No. 2 of 2024 being an
application under order 41 to 27 of the Code Of Civil Procedure,
1908 to demonstrate that a number of commercial businesses are
run from different flats of the same premises including some
belonging to few of the writ petitioners themselves.
6. Learned Senior Advocate appearing for the appellants has
contended that, the finding of the learned Single Judge that, flat
4
owners had an indefeasible right in the common areas of the
building including the converted portion, was incorrect. He has
pointed out that, in the original building sanction plan dated May
18, 1987, there were 54 car parking spaces out of which 42 car
parking spaces were required in terms of the prevalent rules.
Appellants had 12 car parking spaces in excess in the building.
Appellant No. 1 did not sell any of the 12 designated car parking
spaces which were excess to any flat owners. Those 12 designated
car parking spaces had continued to remain in the hands of the
appellant No. 1 and did not devolve upon any of the flat owners
including the writ petitioners. He has referred to the title deed
executed in favour of the flat owners in this regard.
7. Learned Senior Advocate appearing for the Appellants has
relied upon 2017 Volume 3 Calcutta High Court Notes 547
(Premjit Guha Thakurta & Ors. vs. Kolkata Municipal
Corporation & Ors.) for the proposition that, car parking space
provided in an integrated building is not an easement right or
appurtenant to each flat. Car parking spaces cannot be common
or commonly enjoyed by each flat owner of the integrated building.
8. Learned Senior Advocate appearing for the appellants has
contended that, the writ petitioners have no right or interest in the
converted portion. He has contended that, Section 416 of the
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Kolkata Municipal Corporation Act, 1980 permit conversion. He
has contended that, such provisions do not require any of the writ
petitioners to be heard with regard to the proposed conversion. In
any event, an order of conversion is an appealable order under
Section 416 (6) of the Act of 1980. The writ petitioners have not
challenged the order of conversion before the appropriate forum.
9. Learned Senior Advocate appearing for the appellants has
contended that, learned Single Judge erred in holding that the
applicant for conversion did not have the requisite locus to apply
for the change of user. He has referred to Section 416 of the Act of
1980 and contended that, Section 416 of the Act of 1980 uses the
word "person" as opposed to "owner". In any event, the applicant
for conversion, namely Maitry Resources Private Limited
(hereinafter referred to as MR for the sake of convenience) was
recorded in the assessment register of Kolkata Municipal
Corporation (hereinafter referred to as KMC) since the first quarter
of 1996-1997. The housing society has also been collecting
maintenance charges from MR in respect of the disputed portion
since at least October 1996. Accordingly, MR had sufficient
footprint in the disputed portion to maintain an application for
conversion on March 12, 1999.
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10. Learned Senior Advocate appearing for the appellants has
contended that, although the writ petitioners were aware of the
presence of MR at the building, they deliberately suppressed such
material fact and did not array MR as a respondent in the writ
petition which was filed on November 30, 1998.
11. Learned Senior Advocate appearing for the appellants has
contended that, the interim order dated December 3, 1998 passed
in the writ petition did not stand in the way of MR in applying for
conversion of the disputed portion. According to him, the order of
injunction was only on the appellant No. 1 and not on MR.
Moreover, MR was deliberately kept out of the array of parties in
the writ petition. Furthermore, application for conversion had been
made on March 12, 1998 when MR was not a party to the writ
petition. He has pointed out that, the MR was added as a party
respondent in the writ petition on January 22, 2001 and the order
of injunction was made applicable on MR on such date. He has
pointed out that the learned Single Judge found the application for
change of use had been filed in December 1998.
12. Learned Senior Advocate appearing for the appellants has
contended that, there was no breach of the order dated December
3, 1998. The steel structures and the steel shutters found at the
disputed portion had been present prior to the time of the filing of
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the writ petition itself. Therefore, according to him, there no
change in the nature or character of the premises had been made
till such time the interim order was in force, that is, December 3,
2002 when, the writ petition was dismissed. He has pointed out
that, learned Single Judge specifically found that there was no
express prohibition on KMC from processing the application for
conversion and disposing of the same in accordance with law.
13. Relying upon 2005 Volume 4 Calcutta High Court Notes
487 (Shree Vardaan Improvement Pvt. Ltd. vs. Puspa Devi
Agarwal & Ors.), learned Senior Advocate appearing for the
appellants has contended that, injunction cannot be passed to
restrain statutory authorities from exercising their statutory
functions.
14. Learned Senior Advocate appearing for the appellants has
contended that, Section 416 of the Act of 1980 allows KMC to
permit conversion. He has pointed out that, the learned Single
Judge erred in holding that excess sanctioned covered car parking
space cannot be converted as the same will render Section 416 of
the Act of 1980 otiose. He has contended that, the conversion was
not in respect of any mandatory open space. According to him,
Section 424 of the Act of 1980 has no manner of application in the
present case.
8
15. Learned Senior Advocate appearing for the appellants has
contended that, learned Single Judge has proceeded on the basis
of survives and conjectures on the alleged failure of KMC to
produce records pertaining to the proceedings of conversion.
According to him, presumption of regularity attaches to the acts of
KMC. He has pointed out that, original records were produced by
KMC pursuant to an order dated January 17, 2003 which was
kept in the safe custody of the Registrar, Original Side and
directed to be released on a specified date. He has also referred to
the affidavit of KMC affirmed on January 20, 2005 where
photocopies of the original building plan dated May 18, 1997, the
revised plan dated March 5, 2001 and the application for change of
use with calculation sheets and typed copies of the noting dealing
with the application for change of use along with the photocopy of
the original note sheet were produced.
16. Learned advocate appearing for KMC has contended that,
initially the writ petition was dismissed. The order of dismissal of
the writ petition has been upheld on appeal. However, Hon'ble
Supreme Court has remanded the writ petition for fresh hearing
after framing some issues which are required to be considered.
17. Learned advocate appearing for the KMC has contended
that, fresh hearing of the writ petition was restricted to the
9
questions raised in the order of remand of the Hon'ble Supreme
Court. He has contended that, report submitted by the KMC is
relevant to the issues raised subsequent to the order of remand.
18. Referring to the report of KMC, learned advocate appearing
for KMC has contended that, a small portion of the ground floor of
the building was about to be changed as a car showroom. The
category of the building as a residential one has not been changed
due to change of sanctioned use of car parking on the ground floor
of the building as car showroom. The open spaces of the building
on all 4 sides are still lying open subsequent to the sanction for
conversion.
19. Learned advocate for KMC has contended that, the learned
Single Judge proceeded to decide the case on completely erroneous
basis that mandatory open space around the building sanctioned
for open car parking spaces was allowed to be converted into a
commercial space. Quite to the contrary, a portion of the covered
car parking space in the ground floor of the building had been
permitted to be converted into commercial space. The application
for conversion had been considered strictly in terms of Section 416
of the Act of 1980.
20. Learned advocate appearing for KMC has contended that,
the interim order dated December 3, 1998 was not a prohibition
10
upon KMC to consider an application under Section 416 of the Act
of 1980. According to him, grant of sanction does not amount to
making any change in the nature and character of the premises
particularly when, the nature and character of the premises
residential character has not been changed at all by the grant of
sanction for conversion of a minor portion of the building. That
apart, he has contended that, the restraint order was against the
respondent No. 5 who ought not to have proceeded with any work
in terms of the sanction.
21. Learned advocate appearing for KMC has contended that, it
is not necessary that the person submitting the proposal for
change of use under Section 416 of the Act of 1980 has to acquire
title over the area to be permitted for change of the sanctioned use.
According to him, the right to obtain sanctioned use change may
be granted irrespective of acquiring title. According to him, the
rights of the flat owners are limited to the extent of the terms and
conditions as enumerated in the conveyance deed. The areas not
common to use for all the flat owners may not be an area of
dispute to be raised at the instance of the flat owners. According to
him, flat owners cannot claim any right to participate at the
hearing of an application under Section 416 of the Act of 1980.
11
22. Learned Advocate Appearing for KMC has relied upon 2003
Volume 2 Calcutta Law Times (HC) 588 (Smt. Rinkoo Mitra vs.
State of West Bengal & Ors.) in support of his contentions.
23. Learned Senior Advocate appearing for the respondents has
contended that, the respondent No. 6 in the writ petition applied
for conversion under Section 416 of the Act of 1980 after the order
of injunction was passed as against him. In this regard, he has
referred to order dated January 22, 2001 passed in WPO 2365 of
1998. He has submitted that, such application was filed
subsequent to the order of injunction as will appear from the note
on the body of such application.
24. Learned Senior Advocate appearing for the respondents has
relied upon 2008 Volume 14 Supreme Court Cases 561 (Patel
Rajnikant Dhulabhai and Another vs. Patel Chandrakant
Dhulabhai and Others) and 2013 Volume 14 Supreme Court
Cases 689 (Jehal Tanti and Others vs. Nageshwar Singh) in
support of such contention.
25. Learned Senior Advocate appearing for the respondents has
referred to the second schedule to the registered deed of
conveyance existing in favour of a flat owner. He has contended
that, undivided one half of one car parking space on the ground
floor of the premises was sold to his client. He has pointed out
12
that, the original sanctioned plan contained 54 slots of parking. 23
of the 54 slots of parking were at the basement, 12 were in the
open space out of which 4 were in the open front space and 8 were
in the back space and the rest 19 car parking spaces were
earmarked in the covered area on the ground floor.
26. Learned Senior Advocate appearing for the respondent has
drawn the attention of the Court to the order dated July 11, 2001
passed in the writ petition. He has pointed out that, KMC
authorities were directed to submit report in compliance with the
earlier order dated March 17, 1999. He has also pointed out that
KMC authorities were directed to produce relevant records
regarding the sanctioned plan being B.S Plan No. 27 (B. VIII) dated
May 18, 1987 accorded by the DG Building on March 5, 2001 in
respect of the concerned premises.
27. Learned Senior Advocate appearing for the respondents has
contended that, by the subsequent permission for conversion,
KMC authorities permitted conversion of the covered car parking
spaces at the ground floor which is not permissible. He has
submitted that, such conversion infringed upon the right of the flat
owners to the common spaces between the car parking spaces.
28. Learned Senior Advocate appearing for the respondents has
submitted that, the original sanction was granted on May 18,
13
1987. At that relevant point of time, the building rules of 1950
were prevalent. He has referred to Rule 4, 5 and 22 (2) of the Rules
of 1950.
29. Learned Senior Advocate appearing for the respondents has
relied upon All India Report 1974 Supreme Court 2177 (K.
Ramadas Shenoy vs. Chief Officers, Town Municipal Council,
Udipi and Others) and 2005 Volume 3 Calcutta Law Time 67
(Basana Dutta & Ors. Vs. State of West Bengal & Ors.) for the
proposition that, the respondents were entitled to a hearing prior
to an order under Section 416 of the Act of 1980 being passed by
the KMC authorities.
30. Learned Senior Advocate appearing for the proforma
respondent has submitted that, his client is the present owner of
the disputed portion of the concerned premises. He has sought to
assail the impugned judgment and order since the same affects the
right title and interest of his client in respect of the disputed
premises.
31. Learned Senior Advocate appearing for the proforma
respondent has referred to the writ petition and contended that,
the basis of the claim of the writ petitioners was the conversion of
the car parking space. He has contended that the scope of the writ
petition was limited to the right based on ownership of the car
14
parking spaces involved. He has referred to the impugned order
and contended that the impugned judgment and order proceeds on
the basis that the disputed area is within the mandatory open
space. He has pointed out that, learned Single Judge erred in
arriving at such finding. He has also contended that, the finding of
the learned Single Judge that the KMC authorities failed to
produce the sanctioned plan or that, the application of the
respondent No. 6 of the writ petition as an agreement holder was
non est, are erroneous.
32. Learned Senior Advocate appearing for the proforma
respondent has referred to the provisions of Section 416 of the Act
of 1980. He has contended that, no appeal under Section 416 (4)
was preferred by any of the parties. Moreover, the case of
ownership had been abandoned by the writ petitioners themselves.
33. Learned Senior Advocate appearing for the proforma
respondent has contended that, the finding of the learned Single
Judge that mandatory open space was converted was erroneous.
The disputed area is not within the mandatory side spaces of the
building. The disputed area was within the covered area.
Therefore, the direction contained in the impugned judgment and
order for demolition of the disputed portion is unworkable.
15
34. Learned Senior Advocate appearing for the proforma
respondent has contended that, his client is a bona fide purchaser
for value without notice of the alleged misdeeds in relation to the
Act of 1980. He has pointed out that, when his client purchased
the disputed area, there was no interim order in force. The
proforma respondent had deliberately not been impleaded as a
party respondent to the writ petition despite the writ petitioner
being aware of the right, title and interest of the proforma
respondent therein.
35. Learned Senior Advocate appearing for the proforma
respondent has contended that, his client had preferred an
independent appeal which was disposed of by an order dated
September 2, 2024 by directing addition of his client as a proforma
respondent in the pending appeal. He has pointed out that, a
Special Leave Petition is pending against the order dated
September 2, 2024.
36. Relying upon 2017 Volume 3 Calcutta High Court Notes
547 (Premjit Guha Thakurta & Ors. vs. Kolkata Municipal
Corporation & Ors.) learned Senior Advocate appearing for the
proforma respondent has contended that, the car parking space
covered in an integrated building is not an easement right nor
appertaining to each flat.
16
37. Some flat owners of premises No. 13/3, Ballygunge
Circular Road, Kolkata-700019 filed a writ petition being WPO
2625 of 1998 complaining of unauthorized construction at such
premises.
38. KMC had sanctioned a building plan in respect of such
premises on May 18, 1987, KMC for construction of a ground plus
partly 5 and partly 8 storied building meant exclusively for
residential purposes.
39. In such writ petition, learned Single Judge had passed an
interim order dated December 3, 1998. Such interim order had
restrained the respondent No. 5 in the writ petition being the
appellant No. 1 before us from making any change in the nature
and character of the premises in question. Learned Single Judge
by an order dated March 17, 1999 had called upon KMC
authorities to carry out inspection of the building upon notice to
the writ petitioners and the respondent No. 5 therein. Report had
been submitted before the learned Single Judge. Before the learned
Single Judge, the writ petitioners had contended that, no notice of
inspection was served upon the writ petitioner in terms of the
order dated March 17, 1999.
40. By an order dated January 22, 2001, learned Single Judge
had added MR as respondent No. 6 in the writ petition and made
17
the subsisting order of injunction dated December 3, 1998
applicable to them.
41. MR claiming to be holder of an agreement to purchase a
unit at the said premises along with car parking spaces, applied
for change of use of a portion of such premises with the KMC.
Such application of MR is undated. However, there are
endorsements of KMC authorities on such application. The first of
such endorsement is dated February 19, 2001. KMC had allowed
the application for conversion of car parking spaces, within the
building, on the ground floor of the premises covered by an order
dated March 5, 2001.
42. For the sake of convenience such portion of the premises
concerned which was allowed to be converted is hereinafter
referred to as the "disputed portion".
43. By the order dated March 5, 2001 KMC authorities had
allowed the disputed portion of the premises to be used as an air-
conditioned car showroom measuring about 177.288 square
metres.
44. By an order dated July 11, 2001, the learned Single Judge
had directed MR to produce the agreement of purchase and sale
deed in his favour. MR had failed to do so.
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45. By an order dated December 3, 2002, learned Single Judge
had dismissed the writ petition on the ground of availability of
alternative remedy. Appeal preferred against the order of dismissal
dated December 3, 2002 had been dismissed on January 28,
2003.
46. Special Leave Petition filed against the order dated January
28, 2003 had been disposed of by setting aside the order of the
Division Bench dated January 28, 2003 and remanding the writ
petition for fresh hearing after noticing some of the issues which
arose for consideration in the writ petition.
47. Relevant portion of the order of remand of the Hon'ble
Supreme Court dated February 25, 2005 is as follows :-
"There are several issued arising for consideration. Some of
them are: whether what was shown as an open space in a multi-
storeyed building complex could at all be permitted to be changed to
another use? Whether an application under section 416 of the Act
could at all be maintained by a person in whose favour there was only
an agreement for sale and who had not acquired the title? Whether
such an application could be heard and disposed of in the manner in
which it has been done by the Municipal Corporation and without
affording an opportunity of hearing to the flat buyers whose interests
were apparently adversely affected? Whether a building essentially
residential in character, could be permitted under the local law to be
used for commercial purposes?
We feel that the writ petition filed in the High Court was not
confined to raising disputes between private parties. There was
essentially an element of public interest involved as serious questions
19
alleging violations of building laws and the town planning were raised.
Whether the power under section 416 was available to be exercised
and if so, whether it was rightly exercised by the local authority, was
another question. They called for a serious consideration on the part of
the High Court. If at all a case of illegal change of use and violation of
building laws or town planning was made out, then it was a clear case
of calling for an order of demolition of unauthorised construction. We
may also place on record that the learned counsel for the petitioners
was at pains in submitting that the change of use and the
constructions were done during the pendency of the writ petition and
also in defiance of the interim orders passed by the High Court which
contention has not received the consideration of the High Court."
48. Hearing of the writ petition subsequent to the order of
remand has resulted in the impugned judgment and order before
us.
49. Some of the issues which had arisen for consideration in
the writ petition had been tabulated by the Supreme Court in the
order of remand. The issues that have fallen for consideration are
as follows:-
(i) whether what was shown as an open space in a multi-
storeyed building complex could at all be permitted to be changed to
another use?
(ii) Whether an application under section 416 of the Act of 1980
could at all be maintained by a person in whose favour there was only
an agreement for sale and who had not acquired the title?
(iii) Whether such an application could be heard and disposed of
in the manner in which it has been done by the Municipal Corporation
and without affording an opportunity of hearing to the flat buyers
whose interests were apparently adversely affected?
20
(iv) Whether a building essentially residential in character, could
be permitted under the local law to be used for commercial purposes?
(v) Whether the change of use was in defiance of the interim
orders of the Court?
(vi) To what relief or reliefs are the parties entitled to?
50. Building at premises No. 13/3, Ballygunge Circular Road,
Kolkata-700019 had been construed on the basis of the
sanctioned plan dated May 18, 1987. Such sanctioned plan has a
basement car parking as well as car parking on the ground floor of
the building.
51. The number of car parking shown in the sanctioned plan
dated May 18, 1987 had exceeded the number of flats that were
sanctioned and constructed in terms of such building. Building
had therefore, excess car parking spaces after sale of the flats
along with one car parking space to each of the flat owners.
52. In the writ petition filed by the writ petitioner, alleging
illegal and unauthorised construction, an order dated December 3,
1998 had been passed by the learned Single Judge restraining the
appellant No. 1 from making any change in the nature and
character of the premises in question. MR had been added as a
party respondent in such writ petition and by an order dated
January 22, 2001, the interim order dated December 3, 1998 was
made applicable to them.
21
53. Both the orders dated December 3, 1998 and January 22,
2001 had been passed in the writ petition in which, Kolkata
Municipal Corporation Authorities were party respondent. It is not
the claim of KMC and cannot be so, that they were not aware of
the order dated December 3, 2001 when it had granted the
sanction for conversion on March 5, 2001.
54. Application of MR on which, the sanction for conversion
had been granted by the KMC on March 5, 2001 is undated. The
first endorsement of KMC authorities on such an undated
application is February 19, 2001. On February 19, 2001 there
subsisted an order of injunction dated December 3, 1998 as made
applicable to MR by the order dated January 22, 2001.
55. The undated application of MR is for conversion of the
disputed portion of the concerned premises which comprised of car
parking spaces in the original sanction plan to one of air-
conditioned car showroom. The application by itself has sought to
change the nature and character of at least a portion of the
concerned premises. Car parking spaces have been sought to be
converted for commercial use.
56. In our view the application for conversion could not have
been made by MR simply on the ground of subsistence of the order
of injunction dated December 3, 1998. Even if one is to allow a
22
degree of latitude to MR since they were not parties to the writ
petition, originally, then also they were made parties to the writ
petition on January 22, 2001 and the order of injunction dated
December 3, 1998 had been made applicable to them by the
learned Single Judge on such date. Therefore, they could not have
proceeded with their undated application for conversion, assuming
or not admitting that, they were entitled to do so and that their
application was made prior to the order dated January 22, 2001,
on the strength of an agreement to purchase, before any authority
far to speak before the KMC authorities, subsequent to January
22, 2001.
57. In our view KMC authorities were bound by the order dated
December 3, 1998 and January 22, 2001 passed by the learned
Single Judge. KMC authorities had acted in breach of subsisting
orders of injunction in considering and allowing an application for
conversion which resulted in the change of the nature and
character of the disputed portion of the premises in question. The
subsisting orders of injunction were in respect of the entirety of
the concerned premises which included the disputed portion.
58. Admittedly, KMC authorities did not hear any of the flat
owners while considering the undated application of MR for
23
conversion of the car parking spaces in the ground floor and
allowing the same.
59. 19 car parking spaces have been allowed to be converted by
KMC by the subsequent sanction dated March 5, 2001. 19 car
parking spaces were sanctioned by the original sanction dated May
18, 1987 had obviously common passages to enter into and exit
such 19 car parking spaces.
60. Premjit Guha Thakurta & Ors. (supra) has held that,
individual car parking space is allotted to an individual flat owner
and that such individual car parking space cannot be construed as
a common area of all the flat owners. It has however not held that,
the passage leading up to the individual car parking space is not
the common passage.
61. Our attention has been drawn to a sample deed of
conveyance in respect of a flat sold in the premises in question.
There are a number of schedules in the deed of conveyance. Such
schedules tabulate the properties that stood transferred to and
vested with the purchase of the flat. We are concerned with the 3rd
schedule clause 3 thereof which is as follows:-
"THE THRIRD SCHEDULED ABOVE PREFERRED TO
........................................................................
3. Common passage, driveways, common areas, expecting specified car
parking space."
62. All common passages in the premises in question, therefore
had stood vested with an individual owner of a flat at the
concerned premises by virtue of the deed of conveyance executed
by the builders and owners of the concerned premises in favour of
such individual flat owner.
63. 19 car parking spaces which had been allowed to be
converted by the KMC on March 5, 2001, obviously have common
passages leading up to such individual car parking spaces.
Although, by reason of the ratio laid down in Premjit Guha
Thakurta & Ors. (supra) existing flat owners may not have
exclusive right in respect of any of the 19 designated car parking
spaces in the original sanction plan dated May 18, 1987,
nonetheless, the common passage leading up to those 19
designated car parking spaces stood vested to all the flat owners of
the concerned premises. In absence of their consent such common
passage could not have been allowed to be converted by KMC.
64. Application for conversion had been made by MR authority
as an agreement holder. Right to the property of which MR had
held the agreement was yet to devolve completely on it at the time
of its application for conversion. The application was not
supported by the person or entity through which MR was claiming
right in respect of the disputed portion, in the sense that such
transferor was not before KMC stating that it had no objection to
the conversion.
65. Moreover as has been noted above, the common passages
for the 19 car parking spaces comprised in the disputed portion
stood vested with the individual flat owners when KMC received
the application, considered and allowed it.
66. It was therefore incumbent on KMC to hear the individual
flat owners apart from the transferor from whom MR was claiming
right in respect of the disputed portion prior to processing the
application for conversion, in the facts and circumstances of the
present case. We hasten to add that, mitigative finding against the
conversion is in addition to the other grounds noted herein.
67. KMC had acted in breach of principles of natural justice in
considering and deciding the undated application for conversion
which was allowed by them on March 5, 2001 without affording a
reasonable opportunity of hearing to the individual flat owners of
the concerned premises in whom the right in respect of the
common passages to the car parking spaces stood vested.
68. K. Ramadas Shenoy (supra) has held that, an illegal
construction materially affects the right to an enjoyment of the
property of the persons residing in the residential area. It has also
held that, Municipal authorities owe a duty and obligation under
the statute to see that the residential area is not spoiled by
unauthorized construction.
69. Basana Dutta & Ors. (supra) has held that, where an
application is made for revision of a building plan, all formalities
for revision and/or the change of the original plan are required to
be followed. It has also noticed that, the entirety of the premises
concerned had been sold to individual persons and therefore, the
original builder cannot hold himself out as to the owner and apply
for conversion without the consent of the other owners.
70. In a contempt proceedings, Supreme Court in Patel
Rajnikant Dhulabhai and Another (supra) has held that,
creation of any third party interest during the subsistence of an
interim order, should not be accepted.
71. In Jehal Tanti and Others (supra), Supreme Court has
held that, execution of a sale deed during the currency of
temporary injunction restraining alienation is a nullity.
72. Shree Vardaan Improvement Pvt. Ltd. (supra) has
decided a first appeal directed against the interim order of
injunction passed in a suit for permanent injunction. There, the
application for construction of a capsule lift in the premises by a
lessee has been found not to breach any right of the sub-lessees of
the premises.
73. Section 416(1) of the Act of 1980 prohibits any person from
changing the user of a premises without prior permission of KMC.
Any person used in such sub-section would include a person other
than an owner also. However such sub-section does not authorise
KMC to allow change of user made by a person other than the
owner without hearing the owner of the property concerned.
74. In the facts of the present case, change of user was allowed
subsequent to the filing of the writ petition and during the
subsistence of order of injunction passed therein. Writ Court can
take into account such conduct of the parties to grant appropriate
relief notwithstanding the existence of statutory alternative remedy
of appeal under Section 416(6) of the Act of 1980.
75. In view of the discussions above, the first four issues are
answered by holding that the application for conversion was not
maintainable as it was not made by all the owners of the disputed
portion and could not have been permitted without hearing all the
owners in respect thereof.
76. The fifth issue is answered by holding that both MR and
KMC had acted in breach of subsisting orders of injunction in
making, considering and allowing the application for conversion.
77. The last issue is answered by directing KMC to restore the
disputed portion to the position as obtaining in terms of the
original sanction, within four weeks from date.
78. APO 18 of 2024 and APO 20 of 2024 along with all
connected applications therein are disposed of without any order
as to costs.
[DEBANGSU BASAK, J.]
79. I agree.
[MD. SHABBAR RASHIDI, J.]
Later:-
Learned advocate appearing for the added respondent
seeks stay of the judgment and order.
Since our judgment and order require the KMC authorities
to restore the position of the disputed portion, as that of the
original sanction, within a period of four weeks from date, we do
not find any necessity to grant stay.
Prayer for stay is, therefore, refused.
[DEBANGSU BASAK, J.]
I agree.
[MD. SHABBAR RASHIDI, J.]
