The Court held that the mere erection of an internal wall without any roof or the cornice or the weather-shade and/or in open to sky does not offend the restrictions created for keeping the open space, provided such open space remains the open space for all time to come, if it forms the condition at the time of granting the sanction permitting the person to have the advantage of the excess Floor Area Ratio permissible under the Act or the Rules framed therein.

Harish Tandon, J.

1. The challenge is made to an order of the Special Officer (Building) of the Kolkata Municipal Corporation dated 10th August, 2006, directing the demolition of the wall, which was affirmed by the Building Tribunal.

2. Admittedly, the plan was sanctioned for construction of G + 10 building way back in the year 1973 and such construction was completed in all respect as different persons have purchased the flats of the said building; some of them with the car parking space and some thought not to purchase such car parking space.

3. The dispute arose between the flat owners of the constructed building, who formed the Society and the owner relating to parking of cars in the space, other than those specified in their respective deeds. Several litigations came to be filed and ultimately reached before this Court.

4. The petitioners herein tried to resist the members of the Society from encroaching the other portion, which was never intended to be transferred to them from parking their cars and even approached the Police Authorities to render assistance and help. The inaction on the part of the Police Authorities constrained the petitioners to file a writ petition being WP 1905 of 2003 before this Court, which was disposed of, directing the Deputy Commissioner of Police (South) to provide adequate police assistance to the petitioners for the purpose of repairing the broken wall at the premises in question strictly in accordance with law.

5. The Society assailed the said order before the Division Bench and raised a plea that by making the wall, the petitioners are intending to separate the premises and depriving the owners of the respective flats to enjoy the undivided portions of the premises for which the sanction was granted by the Corporation. It is tried to contend before the Division Bench that excess Floor Area Ratio (FAR) was enjoyed by the petitioners showing the vacant space pertaining to premises no. 12A and 12B of Russel Street, Kolkata - 700 016 and by erecting the wall, they wanted to separate the premise no. 12B from premise no. 12A of Russel Street, Kolkata. It was contended before the Court that there was an existence of a wall and, therefore, there is no impediment in proceeding to repair the said wall, which was damaged and/or broken by passage of time.

6. The Division Bench appointed a Special Officer, who submitted a report and both parties laid their submissions on the said report. The Society placed reliance upon a portion of the report, which suggest that there was no existence of a wall in continuance of and after the boundary wall and, therefore, the question of repair does not arise. On the other hand, the petitioners relied upon the penultimate paragraph of the said report, which suggest the existence of bricks running along the line of the common passage indicating there was a wall in existence.

7. By an order dated 9th July, 2004, the Division Bench dismissed the said appeal with categorical findings that if any person, who claims right in the vacant portion of the land situated at the South of the common passage, he may establish such right before the Civil Court and declined to interfere with the order passed by the Single Bench.

8. The Society, in turn, filed a writ petition being WP 1444 of 2004 before this Court and prayed for a direction upon the Kolkata Municipal Corporation to take immediate steps for demolition of the unauthorized construction undertook by the petitioners. While disposing of the said writ petition on 1st October, 2004, the Single Bench recorded that the Corporation have already initiated a proceeding for demolition, which is pending before the Special Officer (Building) and directed the said demolition proceeding to be disposed of within three months from the date of the communication of the said order.

9. Several civil proceedings were initiated by the respective parties, wherefrom the Division Bench was approached in connection with the First Miscellaneous Ap