D.B. Bhosale, J.
1. The petitioner-co-operative society has been fighting this litigation since 1986-87 and this is a third occasion for them to approach this Court, by means of instant writ petition. The long standing dispute, in the present petition, centers around the question as to whether the municipal authorities namely respondent Nos. 1 and 2 in this petition could have permitted respondent Nos. 3 and 4 to convert their flat Nos. 3 and 4 from residential purpose to that of a commercial one for opening of surgical nursing home. In other words, whether opening of a surgical nursing home by respondent Nos. 3 and 4 in purely residential zone is in accordance with the Development Control Regulation for Greater Bombay, 1991 (for short 'Regulation of 1991').
2. The factual matrix, giving rise to the present writ petition, reveals that respondent No. 5 M/s. Amar Builders (for short 'builder') submitted plans to the Municipal Corporation of Greater Bombay on July 25, 1979 for construction of a building consisting of ground floor and other 13 floors at Kasturchand Mills Compound, Opposite Kabutar Khana, Dadar, Mumbai. The plan which was approved by the Corporation indicated that the ground floor was to be used for clinic and garages while upper floors were to be used for the residential purposes. The said builder after construction of the building sold different flats in all the 13 floors to various persons who are members of the petitioner-society. Respondent Nos. 3 and 4 are the Medical Practitioner who had purchased flat Nos. 3 and 4 on the second floor. It is admitted position that each floor of the building has five flats and respondent Nos. 3 and 4 purchased flat Nos. 3 and 4 for opening of a surgical nursing home and one another flat on the same floor for their residential use. The case of the petitioners is that respondent Nos. 3 and 4 have converted their flat Nos. 3 and 4 to surgical nursing home whereby they have not only violated the terms and conditions of the sanctioned plan but also by having surgical nursing home within residential building is unhygienic and hazardous to the persons living. The members of the society objected to such user by respondent Nos. 3 and 4 before the Additional Municipal Commissioner. In view of the objection, the Architect of the building applied for occupation certificate on September 2, 1986 in respect of entire building except flat Nos. 3 and 4 on the second floor. The respondent-corporation granted provisional occupation certificate on January 14, 1987 for the entire building except flat Nos. 3 and 4 on the second floor.
Respondent Nos. 3 and 4, therefore, made an application on January 25, 1987 to the respondent-corporation seeking change of user of flat Nos. 3 and 4 on the second floor of building from residential to commercial. The petitioner-society as well as the builder objected to grant of such permission. The Executive Engineer, Building Proposals (City) vide its order dated April 20, 1987 rejected the application of respondent Nos. 3 and 4 on the ground that proposed user was not in conformity with the existing rules and regulations. The Executive Engineer had also indicated in his order that members of the society have complained about serious inconvenience to be caused to them on account of such user by respondent Nos. 3 and 4 by the opening a surgical nursing home. Against the aforesaid order of the Executive Engineer, respondent Nos. 3 and 4 approached the Commissioner, who by his order dated July 31, 1987 reversed the order of the Executive Engineer and granted 'no objection' certificate for change of user of flat Nos. 3 and 4 on the second floor on certain terms and conditions.
The petitioner-society then moved this court by filing Writ Petition No. 2740 of 1987 challenging the order of the Municipal Commissioner dated December 16, 1987. The said writ petition came to be disposed of by the order dated August 20, 1987 holding that there has been a violation of the principle of natural justice and the society has not been given opportunity of hearing. The learned single Judge while disposing of the writ petition directed respondent No. 2 - Municipal Commissioner to reconsider the matter. After the matter was remanded, the parties were allowed to file their representation in writing before the Commissioner. The Additional Municipal Commissioner finally by his order dated December 16, 1987 disposed of the matter- and came to the conclusion that user of two flats as surgical clinic is in conformity with the then existing Development Control Rules and Building Byelaws applicable to the Greater Bombay and further the occupants of building were aware of the fact that two flats were intended to be used for running a surgical nursing home. With this conclusion he permitted change of user as sought by respondent Nos. 3 and 4.
The petitioner-society, therefore, challenged the said order by filing Writ Petition No. 826 of 1988 in this Court. The Division Bench of this court, however, disposed of that writ petition, placing reliance upon Regulation 51(iii) of the regulation of 1991, holding that the Commissioner had sufficient powers to grant 'no objection' for change of user under the aforesaid regulation and the order passed by him cannot be considered as suffering from any infirmity. Feeling aggrieved by the order dated September 14, 1994 passed by the Division Bench of this Court, the petitioner preferred Special Leave Petition No. 18187 of 1995 in the Supreme Court of India. The Supreme Court while allowing Civil Appeal No. 3239 of 1996, from Special Leave Petition, held that the Commissioner as well as the High Court erred in law in holding that the Commissioner had power to allow such change of user even though when the application for change of user was made, the regulation did not authorise such change of user. However, it is further held by the Apex Court that the order of the Additional Municipal Commissioner dated December 18, 1987 allowing such change of user form residential purpose to surgical clinic, by placing reliance upon the regulation of 1991 which was not in force, the High Court ought not have pressed the said regulation into service for deciding the legality of the order of the Additional Municipal Commissioner dated December 18, 1987. However, while disposing of the said special leave petition the Supreme Court observed thus:
'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 order in accordance with the Regulations of 1991 which is said to be in force. This appeal is allowed.'
3. In view of the aforesaid observations made by the Apex Court, respondent Nos. 3 and 4 once again approached the respondent-corporation seeking change of user of flat Nos. 3 and 4 from residential to surgical nursing home. The Commissioner in exercise of the powers vested in him under Regulation 51(iii) allowed the application holding that the provisions of the said regulation permits use of residential flat as surgical nursing home, if it has separate access as required under the said provision. The Commissioner in the impugned order dated June 7, 1996 has read the expression 'separate access', appearing in the said regulation, to mean that the access which does not interfere with the residential premises in the building and such access can be either common passage or staircase. This order dated June 7, 1996 is challenged in the present writ petition. Though initially Mr. Tulzapurkar, learned senior counsel for the petitioner made grievance that the principles of natural justice have not been followed by the Commissioner while passing the impugned order, he did not press that submission and stated that without going into that aspect I should examine the merits of the impugned order. In view thereof, I need not consider whether the impugned order has been passed in breach of the principles of natural justice.
4. The respondent-corporation has filed affidavit of one Prafull Shankar Sabnis, Assistant Engineer working with respondent No. 1 - Corporation in support of the impugned order passed by the Commissioner. He has denied the contentions advanced by the petitioners in the writ petition and specifically contended that the impugned order is just and legal and it is passed by the Commissioner in exercise of special powers vested in him under Regulation 51(iii) of the Regulation of 1991. Respondent Nos. 3 and 4 have also filed affidavit stating that the interpretation of Regulation 51(iii) made by the Commissioner is just and legal and writ petition deserves to be dismissed. It has also been stated that they are practising doctors and they purchased two flats way back in 1979. The said flats were purchased from the said builder on specific condition that they would be used for running a surgical clinic. The aforesaid condition, according to respondent Nos. 3 and 4, is reflected in the agreement for sale dated April 1, 1981 executed in respect of the said flats. The petitioners have filed rejoinder dated July 3, 1997 denying all the contentions of the respondents in their respective affidavits.
5. In this backdrop of the case I heard Mr. Tulzapurkar, learned senior counsel for the petitioners, Mr. K.K. Singhvi, learned senior counsel for respondent Nos. 1 and 2 and Mr. C.J. Sawant, learned senior counsel for respondent Nos. 3 and 4 at length, perused the writ petition and documents annexed thereto and the affidavits filed by the respondents. As stated in the first paragraph of the judgment, the controversy involved in the present writ petition centers around the question as to whether the Commissioner has power to grant application of respondent Nos. 3 and 4 of change of user from residential to surgical nursing home under Regulation 51(iii) of the Regulation of 1991.
6. Mr. Tulzapurkar, learned senior counsel for the petitioners submitted that the impugned order is wrong as regards the interpretation of Regulation 51(iii). He submitted that the interpretation made by the Commissioner in the impugned order in respect of said regulation is perverse. The object of rule is not taken into consideration. According to Mr. Tulzapurkar, the object of rule is that in residential building if commercial activity is to be carried out, there has to be 'separate staircase'. The word 'separate' means 'distinct area' which is not supposed to be shared. He further submitted that the Commissioner ought to have interpreted word 'separate' in its plain grammatical meaning. In short, according to Mr. Tulzapurkar, ancillary use namely surgical nursing home, cannot be granted in purely residential zone unless it has separate means of staircase from within the building or outside and unless the conditions reflected in 51(iii) stand strictly complied with. In support of his argument Mr. Tulzapurkar placed reliance on the observations made by the Apex Court in Kanai Lal Sur v. Paramnidhi Sadhukhan : [1958]1SCR360 , He also placed reliance on different dictionaries namely Webster's dictionary of the English Language, Random House Unabridged dictionary, Law Lexicon and Black's Law dictionary in support of his submission in respect of expression 'separate' appeared in Regulation 51(iii). He submitted that if the interpretation placed in the impugned order were correct, there was no need for providing separate access to the premises to be used for commercial purpose. The question was not whether each flat has kept separate entrance but the question was whether the access to the flat which are being used for commercial purpose is independent and separate and not to be shared with others. The object of the regulation, according to Mr. Tulzapurkar, is to avoid nuisance to the persons using the other premises for residential purposes or having an unobstructed access to the clinic for the benefit of the patients who are urgently required to be attended to, Mr. Tulzapurkar further submitted that the impugned order is violative of Article 14 as the said Regulation 51(iii) is interpreted in case of two other buildings as meant a separate stair case. He submitted that the respondent-corporation has interpreted Regulation 51(iii) and given effect to in its proper perspective and rejected the application for change of user from residential to commercial in respect of 'Inder Tower' and 'Manish Market', He further submitted that interpretation placed by respondent No. 2 totally negates the objects of Regulation of 1991 which are framed for ensuring that the staircase/lifts of a residential building are not strained by having to serve commercial clinic/nursing home.
7. Mr. K.K. Singhvi, learned senior counsel for respondent Nos. 1 and 2, however, submitted that the order passed by respondent No. 2 does to suffer from any infirmity. The impugned order is in consonance with the Development Control Rules of 1991. He further submitted that the respondent-corporation was fully justified in allowing the application of the allottee namely respondents Nos. 3 and 4 for change of user from residential to commercial, Mr. Singhvi, reiterated that the Regulation of 1991, which has come into force with effect from March 25, 1991, surgical nursing homes are permissible in residential zone upto second floor with the condition that there should be separate access. He also invited my attention to the various provisions of Maharashtra Regional and Town Planning Act, 1966 (for short 'MRTP Act') and submitted that the Regulation of 1991 became part of the plan and in view thereof the Commissioner has not committed any illegality while allowing the application for change of user. He further submitted that having regard to the provisions of MRTP Act and the relevant regulation it is for the commissioner to decide, taking into consideration, inter-alia, the problems of the Mumbai city including the acute dearth of vacant sites, crowded residential areas/zones and cost of the properties: The Commissioner is, therefore, conferred with the powers to regulate, in the Regulations of 1991 and, therefore, the order passed by him does not suffer from any infirmity.
8. Before I consider the merits, it would be advantageous to make reference to the observations made by the Supreme Court in its judgment dated February 9, 1996, while disposing of Civil Appeal No. 3239 of 1996. The Apex Court in its judgment, after adverting to the various provisions of MRTP Act has recorded its findings which in my view need to be reproduced for better appreciation of the merits of the contentions advanced by learned counsel for the parties in the present writ petition. The relevant observations read thus :
'A combined reading of the aforesaid provisions and the definitions of 'building operation' in Section 2(5), development in Section 2(7) and 'land' in Section 2(14) make it explicitly clear that a building or a part of a building if it has been sanctioned for a specific purpose, user of the same for any other purpose unless permitted by the competent Authority, would be in contravention of the provisions of the Act. It is indeed on this score the Architect of the building did not apply for completion certificate in respect of flat Nos. 3 and 4 allotted to respondents as they wanted to use the same for commercial purposes though under the sanctioned plan only the ground floor has been permitted to be used as commercial purpose and it is then in 1987 the respondent Nos. 3 and 4 made application for change of user. We are unable to accept the submissions made by the counsel appearing for the Development Authority as well as Mr. Sorabjee, learned senior counsel appearing for respondent Nos. 3 and 4 that since such change of user could have been allowed when the plan was originally sanctioned there is no bar in allowing the same in the year 1987. It is conceded that when application for change of user was made under the regulation in force it was not permissible for allowing change of user from residential to commercial though at later point of time the regulation has been changed and such permission can be accorded subject to certain terms and conditions which included the requirement of making an independent access to the building. Keeping in view the very object of the Act and regulations made therein and keeping in view the fact that regulations are changed from time to time in keeping with the need of the time it is difficult for us to accept the contentions of the counsel appearing for the Development Authority that since a change of user could have been granted when the original plan was sanctioned, such a change can be allowed even after a lapse of two decades. Such a view will make the regulations form time to time fully redundant and will frustrate the very purpose for which such regulations are made. It would be only reasonable to hold that at the point of time when a change of user is intended whether the regulations do not permits such change and if the regulations do not permit such change the concerned Authority will have no power to allow such change of user. This being the position we have no hesitation to come to the conclusion that the Commissioner as well as the High Court totally erred in law in holding that the Commissioner had the power to allow such change of user even though when the application for change was made the regulations did not authorise such change of user. The order of the Commissioner as well as the High Court, therefore, is not sustainable.'....................................
It is to be noted that the order of Additional Commissioner is dated December 18, 1987, allowing such change of user of the flats from residential to surgical clinic and the regulation of 1991 came into force with effect from 25th March 1991 and, therefore, the said Regulation should not have been pressed into service for deciding the legality of the order of the Additional Commissioner.'
9. Keeping in view the aforesaid observations of the Apex Court and the liberty granted by it to respondent Nos. 3 and 4 to approach afresh, seeking change of user to the concerned authority, under regulations of 1991, I would now like to advert to the merits of the case. The MRTP Act is intended to make provisions for planning the development and use of land and to ensure that Town Planning Schemes are made in proper manner and their execution is made effective. In a city like Bombay where there is acute dearth of vacant sites where there is rapid increase of population, unless developmental authorities are conferred with powers to regulate constructions of building and unless development takes place in a planned manner it will be hazardous for a healthy living. With this end in View the Act had been enacted constituting Regional Planning Boards and providing for development plans by a Development Authority. The MRTP Act provides the procedure to be followed in preparing and sanctioning development plans and it also provides for control of development and use of land included in the development plans. The Act confers power on the Planning Authority to take such remedial measure if it comes to its notice that there had been unauthorised development. The 'development' is defined under Section 2(7) of the Act which means 'carrying out of building, the making of any material change, in any building or land or in the use of any building or land.' The drastic power has been conferred on the authority, under the provisions of the Act, with the obvious object that the said authority would act in a manner which is not detrimental to the human health and the unauthorized development or user of the land should be prohibited from such user so that there would be development of the city in a planned manner. With this object in view and the typical problems of Bombay city the Regulation of 1991 with moderate modifications to the earlier regulations was brought in force on March 25, 1991. Part IV of the Regulation of 1991 deal with 'Land Use Classification and Uses Permitted.' In the present writ petition we are concerned with Regulation 51 which deals with Purely Residential Zone and Ancillary uses permitted. Under this regulation apart from residential use, the 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. Clause (iii) of Regulation 51 which falls for consideration read thus :
'(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 of outside, but not within the prescribed marginal open spaces in any case, and with the special permission of the Commissioner.'
To appreciate the arguments advanced by learned counsel appearing for the parties it would be advantageous to reproduce Clauses (ii) and (iv), of Regulation 51. Clauses (ii) and (iv) of Regulation 51 read thus:
'(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.
(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 of a resident of the building with only out patient treatment facilities without any indoor work, each not occupying a floor area exceeding 30 sq.mts.'
10. Mr. Tulzapurkar, learned senior counsel for the petitioner submitted that Clause (iii) is distinct from Clause (iii) and (iv). Clause (iii), according to him, specifically imposes a condition that unless there is a separate means of staircase, the permission for change of user cannot be granted by the Commissioner. Such a condition is not present in Clause (ii) and (iv) of Regulation 51. Keeping in mind the submission of Mr. Tulzapurkar, let me examine the provisions of Regulation 51. Under Clause (ii) medical and dental practitioners' dispensaries or clinics, including pathological or diagnostic clinics with a restriction of 'one dispensary or clinic per building' could be permitted on the ground floor, on the floor just above the stilts or on the first floor. However, under Clause (iv) medical and dental practitioners dispensaries or clinics of 'a resident' of the building 'with only out patient treatment facilities without any indoor work' is permitted. The difference between the two clauses is obvious. Under Clause (ii) 'only one dispensary or clinic per building' is of a person who may not be resident of the said building.' Whereas under Clause (iv) no restriction of number of dispensary is imposed insofar as dispensary or clinics 'of a resident of the building' is concerned. The restriction is only in respect of the floor area which under Clause (iv) cannot exceed 30 sq. m. The plain reading would show that no restriction of 'separate means of access/staircase, from within the building or outside' is put under Clauses (ii) and (iv) of Regulation 51.
Now if Clause (ii) and (iv) are read together it would mean that there could be more than one dispensary of medical and dental practitioners consisting of only one dispensary of an outsider who is not a resident of the building is permitted. Insofar as the dispensary of a resident of the building is concerned the restriction of the floor is taken off, provided such a clinic does not occupy a floor area more than 30 sq. mts. Thus, it is clear that an outsider cannot have a dispensary above the second floor of the building. In view thereof, in my opinion, the object is not to avoid the visitors in the building, visiting the class of professionals included in Clauses (ii) and (iv), but the object is to allow the activities in residential buildings to provide facility to the residents of the 'area'. If the object was to avoid nuisance to the residents of a building, as contended by the petitioner, the rule framers under Clause (ii) and (iv) also would have imposed a restriction of providing separate means of access or staircase. Under Clause (iii) the basic distinguishing feature is, the activities enumerated therein, require indoor, treatment, admission of the patients etc. Keeping this in mind we have to read Clause (iii) further.
11. While interpreting the expressions namely 'separate', 'means of access/staircase, and 'from within the building or outside', it would be advantageous to bear in mind the observations made by the Apex Court in Kanai Lal v. Paramnidhi (supra,) which read thus:
'However, in applying these observations to the provisions of any statute, it must always be borne in mind that the first and primary rule of construction is that the intention of the Legislature must be found in the words used by the Legislature itself. If the words used are capable of one construction only then it would not be open to the Courts to adopt any other hypothetical construction on the ground that such a hypothetical construction is more consistent with the alleged object and policy of the Act.
The words used in the material provisions of the statute must be interpreted in their plain grammatical meaning and it is only when such words are capable of two constructions that the question of giving effect to the policy or object of the Act can legitimately arise. When the material words are capable of two constructions, one of which likely to defeat or impair the policy of the Act whilst the other construction is likely to assist the achievement of the said policy, then the Courts would prefer to adopt the latter construction.'
Having regard to the observations made by the Apex Court, I would now like to test the argument advanced by the learned counsel appearing for the parties. Clause (iii) of Regulation 51 undoubtedly imposes certain conditions and restrictions for seeking change of user of the floor space from residential to commercial, in a purely residential zone. Firstly, that nursing homes, polyclinics, maternity homes should situate either in independent buildings or independent parts of a building on the ground floor, floor 1 and floor 2. Secondly, such a clinic/nursing home should have separate means of access/staircases from within the building or outside. Thirdly, an access cannot be provided within the prescribed marginal open spaces in any case, and lastly for making such a use the special permission of the Commissioner is necessary. Insofar as the expression 'separate' in Clause (iii) of Regulation 51 is concerned different dictionaries, relied upon by the petitioner, give the following meaning : individual; distinct; particular; disconnected; opposed to 'joint' as given in the Black's law dictionary. The Random House Unabridged dictionary gives the meaning of word 'separate' as to keep apart or divide, to set apart, disconnect, dissociate, detached, disconnected, being or standing apart, existing or maintained independently. The Webster's dictionary, meaning of 'separate' is given as not joined to or mixed with something else. Having regard to the meaning of the word 'separate' given in the dictionaries, Clause (iii) of Regulation 51 shall have to be read. The Commissioner in the impugned order, has read the expression 'separate' to mean 'the access which doesn't interfere with the residential premises in the same building and such access can be either common passage or staircase.' Mr. Tulzapurkar strenuously urged that the object of Clause (iii) of Regulation 51 is that in a residential building if a commercial activity is to be carried out there has to be a 'separate staircase'. The word 'separate' according to him means 'distinct area' which cannot be shared.
While appreciating the arguments advanced by learned senior counsel for the petitioner it would be necessary to bear in mind the condition of the residential zones in the city of Mumbai. The city of Mumbai is thickly populated/crowded in all and every residential zone. There is a dearth of open plots/land which could be used for constructing independent buildings for commercial activities enumerated in Clause (iii) of Regulation 51. It is a common knowledge that in 1990-91 there was a boom of construction of the residential buildings all over Mumbai. Looking to the cost of the properties in Mumbai and the difficulties one require to face in procuring an independent land, it would not be possible to expect an individual doctor or consultant to construct his own clinic or nursing home. However, the need of medical facilities to the citizens/public, particularly in a purely residential zone, cannot be overlooked. The size of the city, costs of properties and dearth of open plots/land has made it impossible to the government or local authority to provide medical facilities to the people living in every nook and corner of the city. It is in this backdrop the provisions of Clause (iii) in the Regulation 51 of the regulations of 1991 appears to have been reintroduced.
From the plain reading of Clause (iii) of regulation 1991, in my view, the words/expressions used therein are capable of only one construction. At the outset I accept the meaning read by Mr. Tulzapurkar of the word 'separate' in Clause (iii). However, the word 'separate' will have to be read with the expression 'means of access/staircase.' The use of Virgule between access and staircase indicate 'either access or staircase'. Now taking this into account if expression 'separate' and 'means of access/staircase' are read together, it would read 'separate means of access' or 'separate means of staircase', which in my view does into necessarily mean that there has to be a separate staircase. The separate access also would be sufficient to grant permission for change of user. Coming to the next expression that 'separate means of access from within the building or outside', if it is from outside there is no difficulty as long as it does not fall within the prescribed marginal open space. However, if it is from within building it has to be a part of the building. But if we exclude the word 'staircase' and 'or outside' it would read thus: 'separate means of access from within the building'. In my view, the expression 'separate means of access from within the building' shall have to be read to mean the access to the nursing home from within the building, separate from the access to the other residential part of the building or could be separated or there is no interference between the two for having access to the nursing home and residential part and such access could be either common passage or staircase or common landing space or corridor on each floor. The subjective satisfaction of the concerned authority while exercising power conferred on him under Clause (iii) of Regulation 51 to grant special permission to run nursing home, which has a separate means of access from within the building, is an essential condition. In my view what is necessary to be taken care of, while exercising power under Clause (iii), is only to see that the access to the nursing home is not interfering with the access to the residential flats in the building. Does not matter even if it is common passage or corridor on the same floor and common staircase in the building. It is not possible to accept the contention of the petitioner that the nursing home should be in the independent part of a building which has no connection or concern whatsoever with the other part of the building. That does not appear to be the intention. Having come to this conclusion, let me test the petitioner's contention in the present case. The perusal of a sketch of the building annexed to the petition leaves no manner of doubt that five fiats on each floor are separate and absolutely independent from each other. The building has three lifts and one staircase. The residential flats on the second floor, where the surgical nursing home of respondent Nos. 3 and 4, exists, is independent of residential flats in the building. As a matter of fact from the sketch it is clear that access to the residential flat from lift and staircase would not cause any hindrance either to the occupants of the residential flats to have access to their flat or to the persons visiting nursing home. The nursing home is on one side and the residential flats are on other side of the second floor of the building. It is not possible for me to accept the submissions of learned senior counsel for the petitioners that the area should be a distinct one to mean that there should be a dividing line between the residential part and nursing home on the same floor, I have no manner of doubt that the persons landing in the corridor of the second floor need not have to interfere or disturb each other while leading to the residential flat or nursing home. The plain reading of regulations make it clear that the Commissioner is conferred with the power to change the user of a flat in a residential building for the opening of a surgical clinic. The jurisdiction conferred under Clause (iii) of Regulation 51, in the present case, in my view, has been exercised in a just and legal manner and after having satisfied of the compliance of other conditions prescribed under Clause (iii). The impugned order, therefore, cannot be faulted and interfered with.
12. Coming to the next submission of Mr. Tulzapurkar that the order of the Commissioner is violative of Article 14 as Regulation 51(iii) is interpreted in case of two buildings as to mean 'separate' staircase. The facts of those cases are not before me. It is not possible to appreciate the submission in the absence of material as to under what circumstances the order came to be passed in respect of two buildings referred to in writ petition namely 'Inder Tower' and 'Manish Market.' Even if it is assumed that the permission was rejected in those cases on the ground that no separate staircase was provided that cannot be cited as precedent in the present case and that would not change the meaning read by me of Clause (iii) of Regulation 51 of the regulations of 1991.
13. In the circumstances the writ petition is dismissed. No orders as to costs.
14. The parties may be provided an ordinary copy of this order duly authenticated by the Associate/Court Stenographer of this Court.