Safiya Malik

The Calcutta High Court Division Bench in a judgment delivered by Justice Debangsu Basak and Justice Md. Shabbar Rashidi, directed the Kolkata Municipal Corporation (KMC) to restore a disputed portion of a multi-storeyed building to its originally sanctioned form. The court found that the conversion of car parking spaces into a commercial showroom was approved despite an injunction being in place and without providing a reasonable opportunity of hearing to the affected flat owners.

A group of flat owners in a residential complex filed a writ petition challenging the conversion of covered car parking spaces into a commercial showroom. The building, located at 13/3, Ballygunge Circular Road, Kolkata, was sanctioned for residential purposes by KMC in a building plan dated May 18, 1987. This plan included designated car parking spaces in both the basement and the ground floor. The dispute arose when a portion of these parking spaces was converted into a commercial showroom.

The appellants contended that the conversion violated the original building plan and that any change required compliance with statutory provisions, including public notice and approval from all affected parties. They referred to the Kolkata Municipal Corporation Act, 1980, particularly Section 416, which mandates adherence to due process before altering the approved use of premises. The appellants also argued that common spaces, including car parking areas and access pathways, cannot be unilaterally altered as they are integral to shared residential infrastructure.

KMC defended its decision, stating that it acted within its statutory powers under Section 416 and that the conversion was legally permissible as long as it did not alter the fundamental character of the building. It also argued that the injunction imposed in December 1998 did not explicitly restrict it from considering such applications.

The respondents, who were flat owners opposing the conversion, argued that KMC failed to follow principles of natural justice by not notifying them of the change and not affording them an opportunity to raise objections. They submitted that their rights over common areas had been affected, and they were entitled to be heard before any modification was approved.

The court examined the facts and statutory provisions and stated:

"The application for conversion was not maintainable as it was not made by all the owners of the disputed portion and could not have been permitted without hearing all the owners in respect thereof."

Examining the sanctioned plan, the court noted:

"19 car parking spaces were sanctioned by the original plan and obviously had common passages to enter and exit. These common passages vested in all flat owners and could not have been converted without their consent."

The court found that KMC proceeded with the approval despite an existing injunction:

"KMC authorities had acted in breach of subsisting orders of injunction in considering and allowing an application for conversion which resulted in the change of the nature and character of the disputed portion of the premises in question."

Regarding ownership rights, the court observed:

"An application under Section 416 of the Act of 1980 could not at all be maintained by a person in whose favour there was only an agreement for sale and who had not acquired the title."

The judgment further stated:

"Statutory authorities cannot act in a manner that disregards ownership rights or breaches judicial orders."

Citing judicial precedents, the court relied on K. Ramadas Shenoy vs. Chief Officers, Town Municipal Council, Udipi and Basana Dutta & Ors. vs. State of West Bengal & Ors., stating that municipal authorities must ensure that residential areas are not altered in a way that affects the rights of lawful occupants.

The court directed the Kolkata Municipal Corporation to restore the disputed portion of the premises to its original state as per the sanctioned plan dated May 18, 1987, within four weeks. It set aside the conversion permission granted on March 5, 2001. The court ordered that any commercial activities in the disputed portion must cease immediately.

The court further directed that if any future application for conversion is made, all affected flat owners must be given an opportunity to be heard before any decision is taken.

Case Title: Pradeep Kundalia & Anr. vs. Vaishali Manek & Ors.
Case Number: APO 18 of 2024 with WPO 2635 of 1998, and APO 20 of 2024
Bench: Justice Debangsu Basak and Justice Md. Shabbar Rashidi

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