LexDADAR AVANTI COOPERATIVE HOUSING SOCIETY LTD. BOMBAY versus MUNICIPAL CORPORATION OF GREATER BOMBAY AND ORS.
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DADAR AVANTI COOPERATIVE HOUSING SOCIETY A LTD. BOMBAY v. MUNICIPAL CORPORATION OF GREATER BOMBAY AND ORS. FEBRUARY 9, 1986 [S.C. AGRAWAL AND G.B. PATTANAIK, JJ.] Maharashtra Regional and Town Planning Act, 1966-Section 2(5), 2(7), 2(27), 43,52 and 56-Building or part of it sanctioned for specific pur- pose-Change of user from Residential to Non-residential--Pemiission granted on ground that it was pemiissible under the regulation when the 01iginal plan was sanctioned-Held, not justified as regulation in force at the time of application did not pemiit it. B c According to the approved plan, of the building of the appellant D society, the ground floor was to be used for clinic and garage, while the upper floors 8 were to be used for residential premises. Respondents no. 3 and 4 had purchased flats no. 3 & 4 on the second floor and converted them into Surgical Nursing Home. Such user was objected by the Members of appellant society, before the Additional Municipal Commissioner. In view of this objection, the architect of the building had applied for the 'occupation certificate' in respect of the building except flats no. 3 & 4 and E the same was granted. Respondents No. 3 & 4 made an application to the Municipal Corporation seeking change of user of flats no. 3 & 4, from residential to commercial, which was rejected as not in conformity with the existing rules and regulations. Thereafter, respondents no. 3 & 4 repre- F sented to Municipal Commissioner who by his order granted "No objec- tion" Certificate for change of user in respect of the flats no. 3 & 4 on second floor on certain terms and conditions, like se~arate water supply and drainage. The appellant society then moved the High Court by filing a writ petition challenging the order of the Municipal Commissioner. It G was allowed by a Single Judge on the ground that there had been violation of principle~ of natural justice as the society had not been giveii an opportunity of hearing and directed the Municipal Commissioner to reconsider the matter. The Additional Commissioner after taking the representation of the H 353 354 SUPREME COURT REPORTS [1996) 2 S.C.R. A parties in writing, finally, disposed of the matter holding that the user of the said two flats as Surgical Nursing Home was in conf~rmity with the existing Development Control Rules and the building bye-l~ws applicable to Grater Bombay and permitted the change of user as sought for by respondents No. 3 & 4. The appellant society challenged the said order by B filing a writ petition before the High Court. It was dismissed. Hence this appeal. Allowing the appeal, this Court HELD : 1. A combined reading of the provisions regarding change C of user of building, and definitions of "Building operation" in Sec. 2(5), "Development" in Section 2(7) and "land" in Sec. 2(14) of the Maharashtra Regional and Town Planning Act, 1966, makes it explicitly clear that a building or a part of the building if it has been sanctioned for a specific purpose, user of the same for any other purpose unless permitted by the competent authority, would be in contravention of the provisions of the D Act. [364-C-D] 2. It cannot be said that since the change of user could have been granted when the original plan was sanctioned, such a change can be allowed even after lapse of two decades, such a view will make the regula- E lions from time to time fully redundant and will frustrate the very purpose for which regulations are made. At the point of time a change of user is intended, the Authority should ~ee whether regulation in force permits such change and if regulations do not permit such change, the Authority concerned will have no power to allow such change of user. In this case, when application for change of user was made under the regulation in force F it was not permissible though at a later point of time the regulation has been· changed and such permission could be accorded subject to certain terms and conditions. The High Court erred in law in holding that the Addi. Commissioner had power to allow such change of user even though when the application for change of user was made the regulations did not G authorise such change of user from residential to non- residential. Accord- ingly order of the Addi. Commissioner as upheld by High Court is set .aside. (This court observed that it would be ·open to the respondents to move the authority afresh and the said
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