The main legal point established in the judgment is that the petitioner is not liable to pay the one-time premium for change of user and penalty as demanded by the impugned notice, and the application for regularisation shall be considered and processed without insisting for a no-objection certificate from the Estate Department of the Municipal Corporation.

JUDGMENT

A. S. Chandurkar, J. - Rule. Rule made returnable forthwith and heard the learned counsel for the parties.

The challenge raised in this writ petition is to the communication dated 27/09/2017 issued by the office of the Assistant Commissioner (Estates) by which the petitioner has been informed that the no-objection certificate for undertaking repairs of the building standing on plot No.175 of Naigaon estate would be granted subject to payment of an amount of Rs.20,87,700/-. The demand of one time premium for change of user from residential use of Nursing Home activity by paying Rs.13,15,800/- along with amount of Rs.3,79,900/- towards breach deposit is being objected to by the petitioner. A further direction is sought to be issued to the respondents to process the petitioner's application for regularisation without insisting for no-objection from the Estate Department of the Mumbai Municipal Corporation.

2. The facts in brief are that pursuant to a lease agreement on 15/06/1949 executed by the Municipal Corporation, the petitioner claims right through M/s Vincent Court Private Ltd., a Company that constructs buildings in consonance with the object of the Municipal Corporation. As per Clause-15 of the said lease agreement the building in question was permitted to be used for offices, go-downs, residential purposes and shops that were not prohibited. The petitioner has interest in Block No.15 of the first floor of the building. The petitioner utilized the same for residential purposes since 1990. In 1996 the petitioner sought to utilize the premises partly for residential and partly for starting a Nursing Home. Since the petitioner intended to start the Nursing Home, the petitioner's lessor filed a civil suit before the City Civil Court to restrain him from doing so. Initially an order of injunction was issued by the City Civil Court against the petitioner restraining him from starting the Nursing Home. However this Court in Appeal From Order No.113/1998 by order dated 06/02/1998 stayed the order passed by the trial Court as a result of which the petitioner started operating the Nursing Home. The aforesaid civil suit was subsequently decreed and the petitioner was restrained from using the premises for commercial activities in excess of 30 meters. Being aggrieved, the petitioner challenged the decree passed by the City Civil Court by filing First Appeal No.473/2010. In the said first appeal, the petitioner sought interim relief. On 11/03/2011 an interim order was passed protecting the petitioner's activities.

3. On 28/02/2011 the petitioner was informed by the Municipal Corporation that he would be required to pay penalty before considering his case for regularisation of the change of user. It is the case of the petitioner that such amount was paid by him. The proposal that was submitted by the petitioner seeking regularisation was however kept pending. Ultimately, on 27/08/2014, the Executive Engineer (Building Proposal) informed the petitioner that subject to paying penalty for effecting change of activity, for alteration and interior work as well as lucrative activities premium coupled with no-objection certificate from the Estate Department, the plan seeking approval and regularisation would be considered. It is the case of the petitioner that these amounts have been paid to the Municipal Corporation. The petitioner however is aggrieved by the direction of obtaining a no-objection certificate from the Estate Department. The petitioner attempted to convince the Authorities that such no-objection certificate was not necessary and the same may not be insisted upon. Ultimately on 27/09/2017 the impugned communication came to be issued to the petitioner demanding one time premium for change of user as well as amount towards breach deposit. It is in this backdrop that the petitioner has filed this writ petition seeking the reliefs stated herein above.

4. Dr Virendra Tulzapurkar, learned Senior Advocate for the petitioner submit