Pattanaik, J. - (1.) Leave granted.
(2.) This appeal is directed against the judgment of the Bombay High Court dated September 14, 1994, dismissing the Writ Petition No.826 of 1988. The dispute centres round the question as to whether the Municipal Authorities respondents 1 and 2 in this appeal could have permitted respondents 3 and 4 to convert their flats on the second floor of the building (Flat No.3 and 4) from residential purpose to that of a commercial one for opening of a Surgical Nursing Home. The Co-operative Society is the appellant whose members have purchased different flats in the building in question. M/s. Amar Builders submitted a plan to Municipal Corporation of Greater Bombay on July 25, 1979 for construction of the building consisting of the ground floor and other 13 floors at Kasturchand Mills Compound, opposite Kabutar Khana, Dadar, Bombay. The plan which was approved by the Corporation indicated that the ground floor was to be used for clinics and garages while upper floors were to be used for residential premises. The said Builder after construction of the building sold different flats in all the 13 floors to various person who are members of the society and respondents 3 and 4 who happen to be the Medical practitioner had purchased flat Nos. 3 and 4 on the second floor. The grievance of the Society and its members is that the respondents 3 and 4 have converted their flat Nos.3 and 4 on the second floor to Surgical Nursing Home and thereby they have not only violated the terms and conditions of the sanctioned plan but also by having a Surgical Nursing Home within a residential building is unhygienic and hazardous to the common living. The members of the Society objected to such user by respondents 2 and 4 before the Additional Municipal Commissioner. In view of such objection, the Architect of the building applied for occupation certificate on September 2, 1986 in respect of the entire building except flat Nos.3 and 4 on the second floor. The Municipal Corporation granted provisional occupation certificate on January 14, 1987 for entire building except flat Nos. 3 and 4 on the second floor. The respondents 3 and 4, therefore, made an application to the Municipal Corporation seeking change of user of flats 3 and 4 on the second floor of the building from residential to commercial. The appellant society and its members as well as the builder objected to grant of such permission. The Executive Engineer Building Proposals (City) by its order dated 20th April, 1987, rejected the application of the respondents 3 and 4 on the ground that the proposed user was not in conformity with the existing Rules and Regulations. The said Executive Engineer had also indicated in his order that the members of the Society have complained about serious inconvenience to be caused to them on account of such user by respondents 3 and 4 by opening a Surgical Nursing Home. Against the aforesaid order of the Executive Engineer, respondents 3 and 4 (approached) the Commissioner who by order dated 31st July, 1987 reversed the order of the Executive Engineer and granted 'No objection' certificate for change of user of flats Nos.3 and 4 on the second floor on certain terms and conditions. One of the conditions was that separate water supply and drainage shall be provided by licenced plumber and the stability of the structure shall not be disturbed. The appellant society then moved the Bombay High Court by filing a Writ Petition challenging the order of the Municipal Commissioner which was registered as Writ Petition No.2740 of 1987. The learned Single Judge disposed of the matter by order dated August 20, 1987 and allowed the Writ Petition on the ground that there has been violation of principles of natural Justice and the society had not been given the opportunity of hearing. The learned Judge directed the Municipal Commissioner to re-consider the matter. After the matter was remanded, the parties filed their representation in writing before the Commissioner. The Additional Commissioner finally by his order dated December 18, 1987, disposed of the matter and came to the conclusion that the user of the two flats as Surgical Clinic is in conformity with the existing Development Control Rules and the Building Bye-laws applicable to Greater Bombay and further the occupants of the building were aware of the fact that the two flats were intended to be used for running a Surgical Clinic. With this conclusion he permitted change of user as sought for by respondents 3 and 4. The appellant society, therefore, challenged the said order by filing a Writ Petition which was registered as Writ Petition No.826 of 1988. The High Court having dismissed the same by an order dated September 14, 1994 the appellants have approached this Court by way of Special Leave Petition.
(3.) Mr. Dave the learned counsel appearing for the appellant contended that in view of the provisions of the Maharashtra Regional and Town Planning Act, 1966 (Maharashtra Act No.XXXVII of 1966) (hereinafter referred to as 'The Act') the permission for the building in question having been granted with the specific condition that only ground floor can be used for commercial and clinical purpose and the permission for change of user having been applied for only in the year 1987 at which point of time under the Building Regulations it was not permissible for changing of user, the Commissioner as well as the High Court wholly erred in law in granting such permission for change of user merely on the ground that such permission could have been granted when originally the plan for the building was sanctioned. According to the learned counsel for the appellant an allottee cannot claim to have substantive right of change of user and, therefore, when such an application for change of user is made the relevant Regulations in force must be adhered to by the authority considering such application. Consequently, it is contended that the Commissioner wholly erred in law in relying upon the Regulations of 1966 and then granting the permission to change over and the High Court also erred in law in granting such permission for change of user. Learned counsel for the Development Authority and Mr. Sorabjee, learned Senior counsel appearing for the allottees in whose favour the permission to change over has been accorded, on the other hand contended, that the authorities were fully justified in allowing the application of the allottees for change of user from residential to commercial since they could have got this permission when the plan itself was originally sanctioned and the authorities rightly accorded such permission. The correctness of the rival submissions would require an indepth examination of the provisions of the Act and the Regulation framed thereunder.;