Oral Judgment:

D.K. Deshmukh J.

1. By this appeal, the appellants challenge the order dated 30th January 2003 passed by the learned Single Judge of this Court in writ petition No.779 of 1997. That writ petition was filed by the present appellants challenging the order dated 7th June 1996 passed by the Commissioner of Bombay Municipal Corporation granting special permission to respondent Nos.3 and 4 to use flat Nos.3 and 4 of second floor of the building known as Avanti Apartment, situated at Senapati Bapat Marg, Dadar, Mumbai 400 028, which is owned by the Society, for running a surgical clinic. The relevant facts that are material and relevant for deciding this appeal are that the building where these flats are situated was constructed by the builders by name M/s Amar Builders pursuant to building plans sanctioned by the Corporation. It consists of ground plus 13 floors. According to the sanctioned building plans, ground floor premises could be used for clinic and garages while upper floors could be used only for the purpose of residence. After construction of the building, the builder sold various flats and premises in the building to various persons. Flat Nos.3 and 4 were purchased by the respondent Nos.3 and 4. On each floor of the building, there are five flats. The Architect of the building had applied for occupation certificate on 2nd September 1986 in respect of entire building except flat Nos.3 and 4 on second floor. The Corporation granted provisional occupation certificate on 14th January 1987 for the entire building except flat Nos.3 and 4. The respondent Nos.3 and 4 therefore made an application on 25th January 1987 to the Corporation seeking permission to change the user of the flat nos.3 and 4 from residential to commercial. The application was objected by the appellant - Society and the builders. It appears that the permission was initially declined by the Executive Engineer, however, the Municipal Commissioner by order dated 31st July 1987 granted no objection certificate for the change of user of flat Nos.3 and 4. A writ petition was filed by the appellant - Society in this Court challenging that order. That order was set aside by the Court on the ground that it was passed without hearing the Society. The matter was remitted back to the Corporation. The Additional Municipal Commissioner, on remand, heard the parties and passed an order dated 16th December 1987. The respondent Nos.3 and 4 were granted permission to change the user of the flats. Writ petition No.826 of 1988 was filed by the appellants in this Court challenging the order of the Commissioner. That writ petition was dismissed by the Division Bench of this Court. The order of the Division Bench of this Court was challenged by the appellants in the Supreme Court, the proceedings were registered as civil appeal No.3239 of 1996. The Supreme Court allowed the appeal, set aside the judgment of this Court, also set aside the order of the Municipal Commissioner which was impugned in the writ petition filed in this Court. It appears from the judgment of the Supreme Court that it was pointed out to the Supreme Court that the Development Control Regulation for Greater Bombay 1991, which have come into force on 25th March 1991, permit use of residential area upto second floor for the purpose of clinics and therefore, the Supreme Court observed thus :-

"We accordingly set aside the order of the Additional Commissioner as well as the High Court and allow this appeal. Needless to mention that since the Regulation of 1991 empowers the concerned authority to allow change of user it would be open for the Respondents to move the authority afresh and the said authority may pass appropriate orders in accordance with the Regulation of 1991 which is said to be in force. This appeal is allowed. There will be no order as to costs."

It appears that the respondent Nos.3 and 4 moved the Corporation for special permission under clause 51(iii) of the 1991 Regulation.