ORDER

1. Leave granted.

2. There is a property known as Vivek Vihar, Premises No. 13/3, Ballygunge Circular Road, Calcutta. The property is situated in a prime locality of the cosmopolitan city of Calcutta. The owner-cum-builder constructed the multi-storeyed building which, as we are told, consists of 7 storeys and 27 flats. When the building plans were initially sanctioned by the Calcutta Municipal Corporation, a substantial area on the ground floor was shown as parking space. We are told that during the course of the hearing that most of the flat-owners have purchased and paid for individual parking space. Nevertheless, the disputed portion of the ground floor was shown in the plan as parking space.

3. In the year 1994, the building owner is alleged to have entered into an agreement for sale of little less than 2000 sq ft area of the ground floor in favour of Respondent 6, M/s Maitry Resources Pvt. Ltd. It is also not in dispute that till date there is no deed of sale executed by the owner in favour of Respondent 6. On 19-2-2001, Respondent 6 moved an application to the Calcutta Municipal Corporation seeking change of use under Section 416 of the Calcutta Municipal Corporation Act, 1980 (hereinafter referred to as "the Act"). The Corporation moved fast. The property was inspected. A demand for charges for converting the change of use was raised on 7-3-2001 and complied with on the same date by depositing Rs 92,100. The revised plan was ready for release on 13-3-2001/14-3-2001 and was actually released on 14-3-2001.

4. In the year 1998, 19 of the flat-owners had filed a writ petition in the High Court seeking restraint on change of use of the open space, designated as parking space, and sought for intervention of the High Court. The writ petition was entertained by the High Court and an interim order of stay was b also granted. Respondent 6 was impleaded as a party in the writ petition and the interim orders were made binding on it also. After hearing all the parties before it, a learned Single Judge of the Calcutta High Court disposed of the writ petition by dismissing the same on 3-12-2002. The principal reason which prevailed with the Single Judge was the availability of alternate remedy to the writ petitioners of approaching the Municipal Corporation c and/or filing a civil suit. The aggrieved writ petitioners filed an intra-court appeal before the Division Bench. On 28-1-2003, the Division Bench dismissed the appeal summarily by an unreasoned order forming an opinion that no case was made out for interference with the order of the learned Single Judge. This is an appeal by special leave impugning the orders of the learned Single Judge and that of the Division Bench.

5. Additional material and documents were made available for the perusal of this Court.

6. Having heard the learned counsel for the parties at length, we are satisfied that the impugned orders of the High Court cannot be sustained. The issues arising for decision in the petition call for a full-fledged hearing on merits.

7. There are several issues 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 f 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?

8. We feel that the writ petition filed in the High Court was not confined to the raising of a dispute between private parties. There was essentially an element of public interest involved a