Case Note & Summary
The dispute pertained to a writ petition filed by the petitioners, who claimed tenancy rights over a 2520 sq. ft. area in the Ganga-Jamuna Cinemas building, partly on the ground floor and partly in the stilt. The stilt area of about 1000 sq. ft. (suit premises) was being used by the petitioners as an office and store since 1985, though the sanctioned building plan permitted its use only as parking space. In 1995, the Municipal Corporation issued a demolition notice for unauthorised constructions in the stilts. After litigation, the City Civil Court directed the Corporation to consider the petitioners' regularisation application without insisting on a no objection certificate from the landlord. When the landlord filed an eviction suit and obtained an injunction to restrain the petitioners from using the suit premises for any purpose other than parking, a Division Bench of the High Court in Appeal No. 897 of 2001 directed the petitioners to apply for regularisation of change of use and directed the Municipal Commissioner to decide the application on merits. The Additional Municipal Commissioner rejected the application on 2nd September 2002. The petitioners challenged this order, alleging breach of natural justice because an ex parte site inspection report was not shared with them, and arguing that unutilised FSI permitted additional construction and change of use. The respondents opposed the petition. The court examined the provisions of the Maharashtra Regional Town Planning Act, 1966, particularly Section 43, and the Development Control Regulations for Greater Mumbai. It noted that after declaration of intention to prepare a development plan, no person could change the use of any land without the planning authority's written permission. The building plans had been sanctioned on the basis that the entire stilt area would serve as parking space, a requirement mandated for cinema theatres. The court reasoned that any change adverse to the sanctioned plan would violate statutory norms and reduce parking below the required standard. It thus held that the order of the Additional Municipal Commissioner was justified and in accordance with law. The writ petition was dismissed. (Though the text does not contain an explicit final order, the court's reasoning indicates dismissal.)
Headnote
A) Town Planning - Change of Use - Prior Permission - Maharashtra Regional Town Planning Act, 1966, Section 43 - The court observed that after declaration of intention to prepare a development plan, no person shall change the use of any land without written permission from the planning authority. The suit premises, situated in the stilt of a cinema building, were sanctioned for parking and any change without approval would be in violation of the statutory scheme. (Paras 7). B) Development Control Regulations - Parking Requirement for Cinema - Development Control Regulations for Greater Mumbai - The permission for construction of the cinema building was granted on condition that the entire stilt area would be used for parking to meet statutory requirements. Any change of use would reduce parking space below the mandated standard, making regularisation impermissible. (Paras 7).
Issue of Consideration
Whether the rejection of the application for regularisation of change of use of the suit premises from parking to storage/office was legal and valid under the Maharashtra Regional Town Planning Act, 1966 and Development Control Regulations, and whether the order suffered from any procedural infirmity including breach of natural justice
Law Points
- Change of use of land requires prior permission under Section 43 of MRTP Act
- 1966
- stilt area in cinema building must be used for parking as per sanctioned plans
- additional construction cannot be regularised if it violates Development Control Regulations
- no breach of natural justice when inspection report was not sole basis for rejection
- mere no objection from fire authority does not override planning requirements
