The main legal point established in the judgment is the interpretation of the word 'building' in Rule 73 of the Kolkata Municipal Corporation Building Rules, 2009 and its application to the construction of a gangway between two adjacent buildings.

Mr. Harish Tandon, J.

The important and interesting point has arisen in the instant writ petition pertaining to the meaning and interpretation of the word "building" appearing in Rule 73 of the Kolkata Municipal Corporation Building Rules, 2009 in the context of the peculiar and admitted facts.

2. Admittedly, the respondent no. 7 is the owner of flat no. B-3 at 3rd floor and top floor at premise no. 530, Parnasree Pally and is also the owner of the adjacent building situated at the northern side being premise no. 522, Parnasree Pally, Kolkata. Both the premises are distinct and separate and demarcated by the boundary walls.

3. The premises no. 530, Parnasree Pally, Kolkata is developed by the owner on the basis of a sanctioned plan dated August 4, 2004 by constructing four storied building. The said newly constructed building comprised of several flats earmarked by numbers and have been sold to the petitioners and the private respondents. Each of those persons are exclusively possessioning, occupying and owing separate flats along with common rights in the common areas and facilities.

4. The disputes cropped up when the respondent no. 7 applied before the Kolkata Municipal Corporation for granting permission to construct a gangway connecting the said flat being B-3 with adjacent building constructed at premise no. 522, Parnasree Pally, Kolkata. The Corporation granted such permission by approving the plan in this regard under Rule 73 of the said Rules. The petitioners being the owners of three respective flats have challenged the action of the Corporation in granting such permission and seeks an order for demolition of the gangway.

5. On the basis of the aforesaid admitted facts the learned Advocate appearing for the petitioners submits that Rule 73 of the said Rules does not contemplate the situation as existed in the present case and therefore the granting of permission is contrary to the spirit, object and the intention behind the incorporation of Rule 73 of the said Rules. It is, further submitted that West Bengal Apartment Ownership Act, 1972 defines apartment to mean the part of the property having a direct exit to the road, street or straightway or to a common area leading to such lane, street or straightway together with the undivided interest in the common area or facilities and includes a flat. The definition of a "building" under Section 3(c) of the said Act is expressive in the sense to mean a "building" containing two or more apartments or more than one building each being a complete unit or each containing two or more apartment comprised in the said property. The common areas and facilities are also defined in Section 3(d) which is comprehensive and imbibed within itself not only anything attached to the building or the other areas within the building but also easement rights and appurtenance belonging to the land and the building.

6. According to the petitioner, though the "building" is defined in Section 2(5) of the Kolkata Municipal Corporation Act to mean a structure constructed for whatsoever purpose and material and includes the foundation, plinth, walls, floors, roofs, chimneys, fixed platforms, verandas, balcony, cornice or projection or part of a building or anything affixed thereto or any wall (other than a boundary wall less than three metres in height) enclosing or intended to enclose any land, signs and outdoor display structures but does not include a tent, samiana or tarpaulin shelter. Such definition must be harmoniously interpreted with the object and purposes of the West Bengal Apartment Ownership Act, 1972.

7. It is further submitted that the user of the word "means" and "includes" in a definition clause is merely extensive and cannot be interpreted to destroy the words used therein and placed reliance upon a judgment of Supreme Court in case of Feroze N. Dotivala v. P.M. Wadhwani & Ors. reported in (2003) 1 SCC 433. It is vehemently submitted that the respective deeds executed by the then o