Appeal No.520 of 2003,Writ Petition No.779 of 1997

10th February, 2009

Petitioner Counsel: V. V. TULZAPURKAR,Kanga and Co.
Respondent Counsel: K. K. SINGHVI,T. H. PURANIK,C. J. SAWANT,VIJAY PATIL

Cases Cited:
Nelson Motis Vs. Union of India, (1992) 4 SCC 711 [Para 2,5]

JUDGMENT

D. K. DESHMUKH, J.:- 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. That permission was granted by the Municipal Commissioner by his order dated 7th June, 1996. The Municipal Commissioner rejected the objections raised by the appellant - Society to the grant of special permission in favour of the respondent Nos. 3 and 4. The principal objection of the appellant - Society was that there is no separate means of access as contemplated by Regulation 51(iii) of 1991 Regulation to the flat Nos. 3 and 4 of respondent Nos. 3 and 4. Feeling aggrieved by the order dated 7th June, 1996, writ petition No. 779 of 1997 was filed in this Court challenging the order of the Municipal Commissioner. That writ petition was finally decided by the learned Single Judge of this Court by order dated 30th January, 2003. The learned Single Judge dismissed the writ petition filed by the appellants. The appellant - Society is in appeal against that order.

2. The learned Counsel appearing for appellants submits that the provisions of Regulation 51 of 1991 Regulation are plain and clear. There is no question of placing any interpretation on those provisions. The learned counsel submits that the plain reading of Regulation 51(iii) shows that an owner of a flat on second floor of a multi-storeyed building becomes entitled to special permission of the Municipal Commissioner, when the flat is an independent part of the building with separate means of access/staircase from within the building or outside. The learned counsel submits that if the persons who are coming to the dispensary on the second floor or the first floor use the same means of access viz. elevator or staircase, then the flat owner does not become entitled to special permission because they will be using access which is common to all the occupants of the building. The learned Counsel submits that there is a separate door provided to the flat which separates the flat from other flats and therefore becomes independent, is not what is contemplated by Regulation 51(iii). The learned counsel submits that the access or approach to the premises which are to be used as clinic or nursing home has to be independent as distinguished from a common approach or common access. The learned Counsel submits that as the words are clear, there is no question of interpreting the provision. The question of interpreting the provision comes in only if there is some ambiguity or giving plain meaning results in absurdity. The learned Counsel submits that even if the flats are on second floor, it is possible to provide a separate access either by means of separate staircase or by means of providing separate elevator either from inside the building or outside the building and therefore, reading the provision does not result in any absurd situation. The learned Counsel submits that the emphasis of Regulation 51(iii) appears to be that the permission to be granted to an owner of the flat to run his dispensary or nursing home should not result in additional burden on the common facilities available to the occupants of the building. The learned Counsel relied on the observations of the Supreme Court in its judgment in the case of Nelson Motis Vs. Union of India and Anr. reported in (1992)4 SCC 711. He also took us through dictionary meaning of the words 'access' and 'separate'.

3. The learned Counsel appearing for the Corporation submitted that Part IV of the Development Control Regulation for Greater Bombay 1991 deals with the subject 'Land Use Classification and Uses Permitted' and Regulation 51 deals with the subject 'Uses and Ancillary Uses' permitted in purely residential area. He submitted that plain reading of Regulation 51 makes it clear that the Municipal Commissioner has power to permit user of flat on second floor for the purpose of surgical clinic. He submitted that the requirement of 1991 Regulation is that the clinic should be an independent part of the building and the expression 'independent part of the building' must be construed as separate unit which is not interrelated to the building in any manner. He submits that the submission of the appellants that the expression 'independent part of the building' means separate unit in the building which is not connected with any other unit of the building is incapable of being accepted. He submitted that perusal of the building plans shows that the two flats occupied by respondent Nos. 3 and 4 on the second floor are independent part of the building. He submits that the submission of the appellants that the flats must have independent access cannot be accepted. He submitted that the expression 'separate means of access' cannot be literally construed. He submitted that it is common ground that in Bombay, most of the newly constructed buildings have only one entrance, one staircase and common elevator. He submits that the expression 'separate means of access' means that the access to the particular unit should not be through any other unit in the building and the access should not be by entering upon the property belonging to somebody else. He submits that the expression 'separate means of access' only means that the persons having access to the unit should not be required to use the property of any other unit holder. We have heard the learned Counsel appearing for respondent Nos. 3 and 4. The learned counsel supported the interpretation placed on the provision of Regulation 51(iii) by the learned Counsel appearing for Municipal Corporation. In addition, he took us through the affidavits filed by the respondent Nos. 3 and 4 to contend that the premises were sold to the respondent Nos. 3 and 4 by the builders for putting up the clinic therein. He pointed out that when the flats were purchased, the area was reserved for industrial purpose. The learned Counsel also pointed out that since the permission was granted in the year 1987, though the permission was ultimately set aside by the Supreme Court, the respondent Nos. 3 and 4 are using the premises as surgical clinic since 1987.

4. Now, if in the light of these rival submissions the record of the case is perused, it becomes clear that admittedly the flats of the respondent Nos. 3 and 4 where they are running a surgical clinic are on the second floor. There are three elevators in the building which are available to all the occupants of the building. There is only one staircase in the building which is used by all the occupants of the building. In this factual situation, we have to read the provision of Regulation 51. For the present purpose, in our opinion, provisions of Regulations 51(i) to 51(iv) are relevant. They read as under :

"51. Purely Residential Zone (R-1 Zone) - Ancillary uses permitted - Apart from residential use, the following uses and specified ancillary uses to the extent of 50 per cent of the floor space of the principal use shall be permitted in buildings, premises or plots in the purely residential zone :

(i) Customary home occupations

(ii) Medical and dental practitioner's dispensaries or clinics, including pathological or diagnostic clinics with a restriction of one dispensary or clinic per building to be permitted on the ground floor, on the floor just above the stilts or on the first floor.

(iii) Nursing homes, polyclinics, maternity homes and medical practitioners/consultants in different disciplines of medical sciences in independent buildings or independent parts of buildings on the ground floor, floor 1 and floor 2 with separate means of access/staircase from within the building or outside, but not within the prescribed marginal open spaces in any case, and with the special permission of the Commissioner.

(iv) Professional offices and studies of a resident of the premises and incidental to such residential use, or medical and dental practitioners, dispensaries or clinics or a resident of the building with only outpatient treatment facilities without any indoor work, each not occupying a floor area exceeding 30 sq.m..

Perusal of the above quoted provisions shows that they make a provision for permitting ancillary use in purely residential zone. Regulation 51(i) permits customary home occupation to be carried on in a flat which is purely residential. Regulation 51(ii) permits medical or dental clinics among other types of clinics in a purely residential building either on ground floor, floor above the stilts or on first floor but the number of such clinics cannot exceed one in one building. In other words, permission on the ground floor or on the first floor of the building can be for running one medical, dental etc. clinic. Regulation 51(iii) permits construction of an independent building for running a nursing home etc. in a residential zone. It also permits running a nursing home etc. in a building which is purely residential in such part of the building which is independent on ground, first or second floors. Another condition is that such independent part of the building must have separate means of access/staircase from either within the building or outside the building. It further provides that while providing separate access or staircase to the independent part of the building, the prescribed marginal open space cannot be permitted to be used and such a use is permissible only with the special permission of the Municipal Commissioner. Reading of Regulation 51(iii) makes it clear that in a purely residential zone, it is permissible to construct an independent building only for running a nursing home. A nursing home can be permitted to be established in a purely residential building also subject to the following conditions. The part of the residential building where nursing home is to be established must be an independent part of the building and that independent part of the building must be on the ground floor, first floor or second floor. Such independent part of the building must have separate means of access or staircase from within the building or outside the building. Mitra's Legal and Commercial Dictionary gives the meaning of word 'access' as under:

Access : The act, opportunity, or means of approaching, passage, the right or opportunity to reach, use or visit; an opportunity or ability to enter, approach, pass to and from or communicate with.

The Random House Dictionary of the English Language gives the meaning of word 'access' as under :

Access : 1. ability or permission to approach, enter, speak with, or use admittance; they have access to the files;

2. state or quality of being approachable; The house was difficult of access; 3.a way or means of approach; The approach to God through Jesus Christ; 5. an attack or onset, as of a disease; 6. a sudden and strong emotional outburst; 7. accession

It thus appears clearly that access means means of approach, right to reach or ability to enter. Perusal of Regulation 51(iii) also makes it clear that means of access and staircase have been used as interchangeable words. Therefore, means of access can also be a staircase. It may be an elevator fitted either inside the building or outside the building or if the flat is an independent part on the ground floor, it can be right of way also."

5. According to the respondents, the expression 'separate means of access' means that the person having access to the unit should not travel upon the property of any other unit holder. In other words, according to the respondents, if for entering flat Nos. 3 and 4, a person has to go through the flat owned by somebody else, then only a surgical unit cannot be permitted, but in our opinion, if that meaning is accepted, most of words in Regulation 51(iii) are rendered surplus. Flat which can be permitted to be used as a surgical clinic etc. has to be in an independent part of the building. If the submission of the respondents is accepted, the words 'independent parts of building' are rendered surplus. On behalf of the Corporation, it was submitted by reference to the provision of the Town Planning Act that even flat in a building is building within the meaning of the Act. In our opinion, the submission cannot be accepted as in Clause 51(iii) the word 'building' is used to connote entire building as can be seen from the term 'independent parts of the building'. Reading of the provision of Regulation 51(iii) makes it clear that the flats where a clinic is to be set up being an independent part of the building is not enough, it also must have a separate means of access/staircase. In other words, the person who wants to reach the clinic shall not be required to use the access/staircase which is common for all the occupants and visitors to the building. It thus clearly appears that the premises where a clinic is to be set up under Clause 51(iii) should be in an independent part of the building with separate access/staircase. Reading Clauses (ii), (iii) and (iv) of Regulation 51 together, it becomes clear that distinguishing features of Clause (iii) are (a) clinic can be permitted upto second floor; (b) the premises must be an independent part of the building and (c) the premises must have a separate means of access/staircase. If the construction placed on the provision of Clause (iii) of Regulation 51 by the learned Counsel for respondents is accepted, the distinguishing features of Clause 51(iii) loose their significance. In our opinion, the idea behind Regulation 51(iii) appears to be that a person who wants to approach the surgical clinic or nursing home, which is to be permitted under Clause 51(iii), should not be required to use the common access available to other occupants of and visitors to the building. In our opinion, the words 'separate means of access' have been used to indicate that there must be a separate approach to the independent part of the building where the clinic can be permitted within the building. The interpretation which has been accepted by the learned Single Judge renders the words 'independent parts of the building' meaningless. Similarly, if that interpretation is accepted, there will be no occasion for anybody to use the open space in the building thereby making the words 'but not within the prescribed marginal open spaces in any case' surplus. In our opinion, the learned Single Judge was also not justified in going into the purpose behind enacting the regulation and making an attempt to interpret the provision of the regulation because the learned Single Judge has not pointed out or held that giving plain meaning to the words of Regulation 51(iii) leads to any absurdity or that the words are capable of more than one meaning. The Supreme Court has clearly laid down a law in this regard in the case of Nelson Motis (supra). The Supreme Court in paragraph 8 observes thus :

"8. The language of Sub-rule (4) of Rule 10 is absolutely clear and does not permit any artificial rule of interpretation to be applied. It is well established that if the words of a statute are clear and free from any vagueness and are, therefore, reasonably susceptible to only one meaning, it must be construed by giving effect to that meaning, irrespective of consequences."

In our opinion, the language of Regulation 51(iii) is absolutely clear. The scheme of Regulation 51 is that one clinic is permitted either on the ground floor or first floor of a building by Regulation 51(ii). The distinguishing features are (a) clinic can be only on the ground or first floor and (b) only one clinic in one building. It is clear that if the submission of the Corporation about the meaning of the word 'building' is accepted, then this clause becomes meaningless. Regulation 51(iii) permits clinics in independent parts of buildings on the ground floor, floor 1 and floor 2 having independent means of access. The distinguishing features of this clause are noted above. Regulation 51(iv) permits any number of residential flats being used for professional purpose by the occupants of the flats provided the area to be used for occupational purpose does not exceed 30 sq.m. The principal purpose of Regulation 51(iii) appears to be that permitting opening of not more than one clinic in a building on ground, first and second floors should not result in burdening the common access which is available to all the occupants of and visitors to the building. In our opinion therefore, the interpretation put by the learned Single Judge on the provisions of Regulation 51(ii) cannot be accepted. The appeal therefore succeeds and is allowed, the order passed by the learned Single Judge impugned in the appeal is set aside. Rule is made absolute in terms of prayer Clauses (a) and (b).

6. At the request of the learned Counsel appearing for respondent Nos.3 and 4, the parties are directed to maintain status-quo in so far as flat Nos. 3 and 4 are concerned for a period of eight weeks from today.

Parties to act on the copy of this order duly authenticated by the Associate/Private Secretary of the Court.

Appeal allowed.