K.M. Yusuf, J. - (1.) The petitioner has moved the writ court for several relief 's including a direction not to change the residential nature of the building in question for commercial purpose, restraining the police authority from granting police licence in respect of a restaurant or hotel in the premises, in action on the part of the Calcutta Municipal Corporation from stopping or removing of the restaurant or hotel from the said premises. The premises in question is premises No. 40, Jatin Das Road, Calcutta -29. Briefly speaking, the case of the petitioner is that the premises No. 40, Jatin Das Road is a dwelling house within the meaning of Sec. 2(32) of the Calcutta Municipal Corporation Act, 1980 for use wholly or principally for human habitation. The petitioner entered into a registered agreement of lease dated 10th July, 1987 with the respondent No. 14, the owner of the said premises, in respect of a specified portion of the said premises in the ground floor as a lessee for a period of 25 years with effect from July 1987 at a rental of Rs. 1,500/ -per month. The petitioner who is' a legal practitioner is residing in the said premises with his family members and having his chamber at 44B, Jatin Das Road, a few yards away from the said premises. The petitioner states that the premises is exclusively a dwelling house and there is or was no restaurant or hotel in the said premises or in its neighbourhood at any point of time. In the ground floor of the said premises one room is kept by the owner and the same was used for his drawing room. A sketch map has been annexed with the writ application as Annexure 'A' to give an idea of the entire premises. It is the further case of the petitioner that in the front portion of the said premises there was an unused room and this particular room was Jet out to respondents Nos. 15 to 18 where these respondents started a business under the name and style of Quality Grill Food Products on and from 29th April, 1988. Initially the respondents Nos. 15 to 18 were using this particular room as their office room and the owner gave assurance to the petitioner that respondents Nos. 15 to 18 would be using the room as an (sic)ice of their catering business and these respondents had been maintaining a kitchen somewhere at Deshpriya Park. In the sketch map this particular room being used by the respondents Nos. 15 to 18 has been marked as 'X'. In the meantime the respondents Nos. 15 to 18 with a view to change the modus operandi of their business constructed a pucca room at the backyard of the said premises marked as 'Y' in the sketch "map obviously with the consent of the owner and without any sanctioned plan and from 10th October, 1988 (the Mahalaya day) they started moving, preparing and cooking various types of food from 8 a.m. to 11 p.m. daily and converted the front room marked 'X' as eating house -cum -hotel. As the owner, the respondent no. 14, is residing in the first floor and the petitioner is residing in the ground floor absolutely adjacent to the kitchen marked 'Y' it became emphatically impossible for the petitioner to stay in the said premises because of such large scale cooking and smoke, smell, gas, odour, etc. coming out from such food processing for almost 15 hours a day. Such large scale cooking not only pollutes the natural air with gas and foul odour but it creates smoke nuisance and air pollution causing health hazard for the petitioner and his family members. The kitchen is situated very near to the bed room of the petitioner. On the southern end of the premises opposite to the kitchen there is a toilet marked 'Z' and this toilet has been made open to the customers of the restaurant or hotel which is now functioning under the same and style of Quality Gill Food Products. In the eastern side also there is a small passage leading to the toilet. On both eastern and western sides the petitioner has his bed room and both the passages are used by the outsiders (i.e. the customers of the restaurant or public) thus completely doing away with the privacy and security of the petitioner and as such he had to close down his windows and doors all through the day and night. It is the specific case of the petitioner that the respondent no. 14 i.e. the owner, has not obtained any sanction of the construction of the kitchen from the Corporation and that the respondents nos. 15 to 18 are carrying on their business in the said premises without obtaining any police licence, health licence, food licence, fire licence and other statutory licences which are indispensable for running an eating house, restaurant or hotel. It is the further case of the petitioner that The respondent no. 14 had permitted the respondents nos. 15 to 18 to use part of the building for kitchen, toilet and eating house contrary to the provision of Sec. 416(1) Clauses (b), (c) and (d) of the Calcutta Municipal Corporation Act, 1980.
(2.) Apart from this the petitioner had referred to the various Ss. of the Calcutta Municipal Corporation Act, 1980 to bring home the point that the business is being carried on in violation of the provisions of the said Act including the use of water connection for domestic use which is now being used for the business of hotel. Also the petitioner has lodged complaints to the police authorities that the hotel business is being carried on in contravention of Calcutta Police Act. A. similar complaint was lodged with the Secretary, Food & Supplies Department, Government of West Bengal. Though the enquiry was held no action was taken by the authorities. It is stated that the business is being carried on without any food licence from Food Department and also any fire licence from the Directorate of Five Services. It is further contended by the petitioner that he has come to know that the police authority is taking steps for granting police licence to respondents nos. 15 to 18 contrary to' the provisions of law. The whole emphasis of the petitioner is on the point whether a particular business or a manufacturing establishment is or is not a nuisance to those who may be disturbed or annoyed thereto in the place of its location. Hence the writ application for a direction upon respondents nos. 1 to 13 to take appropriate action "against respondents nos. 15 to 18 and to stop or close down the said eating house known as Quality Grill Food Products also known as Fast Food Centre.
(3.) The respondent No. 14, the owner of the premises, by an affidavit -in -opposition stated that since 1950 the premises No. 40, Jatin Das Road has been used for both residential and commercial purposes by various tenants and it is not exclusively for residential purpose. The kitchen at the back yard referred to by the petitioner was constructed in the year 1931 and used as such by the owner of the premises all along. It is stated that the Quality Grill Food Products owned by the respondents Nos. 15 to 18 cater food from 12 noon to 9.30 p.m. It is neither a hotel nor an eating house as alleged. It is stated by this respondent that as he himself is residing with his family in the said premises had there been any nuisance of any nature he would have taken action himself. He contended that there is no foul smell which can be termed intolerable or nuisance. So far the toilet is concerned the owner's case is that the question of violation of privacy or security of the petitioner does not arise. It is further contended by this respondent that the requisite licences for running the business of respondents nos. 15 to 18 had already been obtained and/or are obtainable. He once again emphasises that the kitchen in question is not a new construction at all and this kitchen is not adjacent to the bed room of the petitioner as alleged by him.;