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.

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 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 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 Advoca