IMPORTANT POINT
The main legal point established is that any change of use must comply with the law and afford affected parties an opportunity of hearing. The court emphasized the importance of upholding the rights of property owners and ensuring compliance with building laws.

JUDGMENT :

Ravi Krishan Kapur, J.

1. The petitioners are flat owners of a multi-storeyed building ‘Vivek Vihar’ situated at 13/3, Ballygunge Circular Road, Kolkata-700019. The grievance of the petitioners is directed against an illegal and unauthorised construction whereby an open space on the ground floor of the building has been converted to a commercial space.

2. Briefly, the respondent no.5 was the owner and developer of the premises and had constructed a building comprising of residential flats. The building was constructed in terms of a plan dated 18 May, 1987 sanctioned by the Kolkata Municipal Corporation. The plan was for construction of a ground + partly 5 and partly 8 storied building meant exclusively for residential purposes. The ground floor of the building was always meant to be kept open. It is contended that in contravention of the sanction plan, a portion of the mandatory open space has been converted to a commercial space by putting steel structures and steel shutters to cover the same.

3. Upon the filing of this petition, an interim order dated 3 December, 1998 was passed as follows:

“having regard to the fact that the petitioners made a complaint against the alleged unauthorised construction by the respondent no.5 in the premises in question with the Calcutta Municipal Corporation, no steps have yet been taken by it, there will be an ad interim order of injunction restraining the respondent no.5 from making any change in the nature and character of the premises in question.”

4. By an order dated 17 March, 1999 the respondent authorities were directed to carry out an inspection of the building upon notice to the petitioners and the respondent no.5 and submit a report within a period of six weeks. No notice of any inspection was served on the petitioners in terms of the order. In the report, it was stated the respondent no.6 alleging to be the owner of unit No.”G-1”, on the ground floor alongwith 3 car parking spaces, applied to the Corporation for change of use. The respondent Corporation approved such change of use on the ground that there were allegedly excess car parking spaces more than required under the existing Rules.

5. It is also alleged that in order to circumvent the order of injunction dated 3 December 1998, the respondent no.5 set up a third party, Maitry Resources Private Limited, who on the basis of an alleged agreement of sale was shown to have purchased unit G-1 in the building alongwith the car parking spaces. Thereafter, Maitry Resources Private Limited submitted an application alongwith a plan for change of use of the disputed portion of the premises wherein an order dated 5 March 2001 was passed for conversion. The area proposed for conversion was meant to be used as an air conditioned car show room measuring 177.288 sq.m. By an order dated 22 January, 2001 Maitry Resources Private Limited was impleaded as respondent no.6 and the injunction order made applicable to them.

6. Thereafter, by an order dated 11 July, 2001 the Court had also directed the respondent no.6 to produce the agreement of purchase and the sale deed in its favour. Notwithstanding such order, the respondent no.6 failed to produce any deed or agreement in its favour.

7. Ultimately, by an order dated 3 December 2002, the writ petition was dismissed on the ground of alternative remedy. An appeal against the order dated 3 December 2002 was also dismissed on 28 January, 2003. Thereafter, a Special Leave Petition filed against the order dated 28 January 2003, was disposed of by setting aside the order dated 28 January 2003 and remanding the matter for hearing afresh.

8. By the order dated 25 February, 2005, the Supreme Court inter alia observed as follows:

“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