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Judgment
Debangsu Basak, J
The Court : In a suit for permanent injunction declaration and damages, the plaintiff by this interim application seeks an order of restraint on the
defendants.
Learned Advocate appearing for the plaintiff submits that, the plaintiff is the owner of a flat at premises No.12B, Lord Sinha Road, Kolkata- 700 071.
The plaintiff wants to use such flat for commercial purposes. He refers to the tax assessment made by the Kolkata Municipal Corporation Authorities
with regard to the flat in question. He submits that, the plaintiff is being assessed with regard to such flat, by Kolkata Municipal Corporation
Authorities as if flat is being put in commercial use. He refers to the order dated November 18, 2019 passed by the Court in the earlier application for
interim relief. He submits that, such application was disposed of and the relief sought for by the plaintiff was not granted, on the ground that, there was
no material placed before the Court to establish that the plaintiff obtained requisite permission from the Kolkata Municipal Corporation Authorities for
change of user. He submits that, since the Corporation Authorities are assessing the flat in question to be used for commercial purposes, there is no
impediment in the plaintiff using the flat for commercial use. He seeks interim protection to such effect in this application.
Learned Advocate appearing for the defendants submits that, the defendant Nos. 2 to 4 are no longer of office bearers of the first defendant and that
such fact is known to the plaintiff. He refers to the averments made in the petition with regard thereto. According to him, till such time the plaintiff
takes appropriate steps for substituting the defendant Nos.2 to 4 the Court should not consider the present application.
Learned Advocate appearing for the defendants submits, that the decision of Kolkata Municipal Corporation Authorities to treat the flat in question as
one in commercial use is an unilateral decision of Kolkata Municipal Corporation Authorities. The defendants were not heard by the Kolkata
Municipal Corporation Authorities. Such decision is not binding upon the defendants.
Referring to the deed of conveyance of the plaintiff, learned Advocate appearing for the defendant submits that, the schedule to such deed of
conveyance establishes that, the flat in question is a residential one. Moreover, there are a number of flat owners in the building. Majority of the flats
are being used for residential purposes excepting one or two. The first defendant which is the Welfare Association of all the flat owners of the
building filed suits against the offending flat owners. Such suits are pending before the Learned City Civil Court at Calcutta.
Referring to the conduct of the plaintiff, learned Advocate appearing for the defendants submits that, the plaintiff is the founder member of the first
defendant. He draws the attention of the Court to the resolution dated July 29, 2018 of the first defendant as the Welfare Association of the entire
body of the flat owners of the building and submits that, the Association resolved that no flat owners will let out individual flats without the prior
permission of the Welfare Association.
Learned Advocate appearing for the defendants next refers to the prayers in the plaint and submits that, in the event, interim reliefs are granted as
prayed for, the same will tantamount to the disposal of the suit. He submits that, the defendants filed written statement in the suit.
This is the second application by the plaintiff seeking an order of injunction on the defendants. By this application, the plaintiff seeks that, the
defendants be restrained from interfering with the right of the plaintiff and/or the licensees and/or tenants that the plaintiff will induct at the premises
to use and occupy the same without any hindrance from the defendants. The first application of the plaintiff on that score being GA No.286 of 2019
was disposed of by an order dated November 18, 2019 after returning a finding that, there was no material before the Court to establish that the
plaintiff applied for change of user of the flat and obtained requisite permission with regard thereto.
The flat in question was purchased by the plaintiff by a registered deed of conveyance. On a meaningful reading of the registered deed of
conveyance, it appears that, flat in question was a residential property. Subsequently thereto, from the assessment records as produced by the plaintiff
and placed on record, it appears that, the flat in question is being treated as one for non-residential/commercial purposes by the Kolkata Municipal
Corporation Authorities.
The flat of the plaintiff being treated by the Kolkata Municipal Corporation Authorities fit for user as non-residential/commercial purposes, I find no
impediment in the plaintiff using the same for such purpose.
The plaintiff is the member of the first defendant by virtue of the ownership of the plaintiff of a flat in the society concern. There is a resolution dated
July 29, 2018 of the first defendant resolving that, the first defendant will not permit or allow the operation of any existing/new hostel/paying guest
without prior approval of the elected committee of the first defendant.
The embargo imposed by the resolution dated July 29, 2018 is not absolute. Permission to use a flat in the building for non-residential purposes can be
granted by the elected committee of the first defendant. In any event, in the facts of the present case, such resolution is under challenge in this suit.
The contention that, the decision of Kolkata Municipal Corporation to treat the flat in question to be for commercial or non-residential use is unilateral,
cannot be accepted. The first defendant is aware of such decision of the Kolkata Municipal Corporation Authorities. Nothing is on record to establish
that, the first defendant took any steps to challenge such decision. A flat owner being charged for commercial purposes by the Kolkata Municipal
Corporation Authorities is entitled to use the same for such purposes. At this, prima facie, stage, I find no impediment in the plaintiff using the flat in
question for non-residential/commercial purposes.
In such circumstances, there will be orders in terms of prayers (a) and (b) of the petition.
GA No.193 of 2020 newly numbered as GA No.4 of 2020 in CS No.18 of 2019 is disposed of without any order as to costs.