JUDGMENT
D.G. Karnik, J.
1. This Writ Petition is directed against the order dated 2nd September, 2002 passed by the Additional Municipal Commissioner, Municipal Corporation of Greater Mumbai, after hearing the petitioners and the respondent No. 2 in pursuance of an order dated 10th January, 2002 passed by a Division Bench of this Court in Appeal No. 897 of 2001. Background facts and disputes
2. Respondent No. 2 is the owner of the property known as ‘Ganga-Jamuna Cinemas’ which houses twin cinema theatres known as Ganga and Jamuna. According to the petitioners by an agreement dated 1st May, 1985 the respondent No. 2 let out to them 2520 sq.feet area partly situated on the ground floor and partly in the stilts of the building for use as an office and a store. Execution of the tenancy agreement is denied by the respondent No. 2 and there are several litigations pending between the petitioners and the respondent No. 2. The present dispute relates to about 1000 sq.ft. of area situated in the stilts of the building (that area of about 1000 sq.feet in the stilts is hereinafter referred to as the suit premises).
3. According to the petitioners, they were permitted to use the entire area of 2520 sq.feet as an office and a store. Admittedly, out of the total area of 2520 sq.feet suit premises admeasuring about 1000 sq.ft are situated in the stilts which is to be used only as a parking space as per the sanctioned building plans. However, in view of the permission allegedly given by the respondent No. 2 landlord, who of course has denied to have granted any permission, to use the entire demised area of 2520 sq.feet for office and storage the petitioners have been using the entire premises including the suit premises for the purpose of storage and office since the year 1985. For the purpose of convenient user of the suit premises in the stilts the petitioners have made some constructions therein though the nature and extent of the construction is disputed. In the year 1995, the respondent No. 1 Municipal Corporation, perhaps at the instance of the landlord, issued a notice to the petitioners for demolition of the unauthorised constructions made by them in the suit premises in the stilts. After considering the petitioners reply, an order for demolition was passed which was challenged by the petitioners by filing a suit, bearing Suit No. 1367 of 1995, in the City Civil Court, Mumbai. In the motion taken out in the said suit, the City Civil Court declined to grant an ad interim injunction and the A.O. No. 190 of 1995 filed in this Court was also dismissed but with a direction that the petitioners may apply for regularization, if permissible, in accordance with law. The petitioners accordingly applied for regularisation of the unauthorised construction made in the suit premises in the stilts. By a letter dated 1st August, 1995 the respondent No. 1 rejected the said application on the ground that the petitioners had not annexed a no objection certificate (for short the “N.O.C.”) from the respondent No. 2 landlord. On 17th September, 1997 the petitioners filed a fresh application for regularisation of the unauthorised construction and filed a Writ Petition, bearing Writ Petition No. 1608 of 1997, in this Court praying for issuance of a writ of mandamus directing the respondent No. 1 to consider the petitioners application without insisting upon a N.O.C. of the landlord. As the writ petition involved disputed questions of facts this Court disposed of the Writ Petition with a direction to the petitioners to file a suit if they so desired. The petitioners thereafter filed a suit bearing Suit No. 6342 of 1997 in the City Civil Court, Mumbai praying that the unauthorised construction should not be demolished and also praying that their application for regularisation should be considered without insisting upon a N.O.C. from the landlord. In the Motion (bearing Notice of Motion No. 6080 of 1997) taken out in the said suit ad interim relief was refused and the appeal bearing A.O. No. 1404 of 1997 against that order was also dismissed by this Court. In Special Leave Petition No. 5025 of 1998 the Honourable Supreme Court however directed the parties to maintain status quo pending hearing of the motion. Thereafter, the motion was heard on merits and by an order dated 3rd September, 1998 the City Civil Court, Mumbai allowed the motion and directed the respondent No. 1 to consider the application made by the petitioners for regularisation on its own merits and without insisting upon a N.O.C. from the landlord and further injuncted the respondent No. 1 from demolishing the unauthorised structures erected in the suit premises in the stilts pending decision of the suit. The appeal (bearing A.O. No. 953 of 1998) filed by the respondent No. 2 landlord challenging the said order, has been dismissed in default and an application for restoration is pending. Present dispute
4. In the year 1999 or thereabout the respondent No. 2 landlord filed a suit for eviction of the petitioners from the suit premises. In the said suit, the respondent No. 2 took out a motion bearing Notice of Motion No. 2460 of 1999 for an injunction restraining the petitioners from using the suit premises for any purpose other than parking which alone was the permitted use under the sanctioned building plans. The injunction was granted and the aggrieved petitioners filed an appeal (bearing Appeal No. 897 of 2001) which came up for hearing before a Division Bench of this Court. By an order dated 25th October, 2001 the appeal was disposed of with certain directions which are summarised below :
(i) The petitioners were permitted to make an application to the respondent No. 1 Municipal Corporation for use of the suit premises for the purpose of which they were actually used. (This application was necessary because the area in the stilts could be used only for the purpose of parking as per the sanctioned building plans while the petitioners were using the suit premises as a store and an office in pursuance of the permission allegedly granted to them under the tenancy agreement dated 1st May, 1985.)
(ii) If such an application was made, the Commissioner/Additional Commissioner of the respondent No. 2 Municipal Corporation was directed to consider the said application on its own merits in accordance with law after granting an opportunity of hearing to the petitioners and the respondent No. 2.
(iii) The Commissioner/Additional Commissioner was directed while considering the application, to consider the question of validity or otherwise of the licence granted by the Fire Brigade Authority permitting the petitioners to use the suit premises for storages.
(iv) In case the application filed by the petitioners was rejected by the Municipal Commissioner then after expiry of 4 weeks from the date of communication of the order, the petitioners were rejected from using the suit premises for storage or as an office. In case the Municipal Commissioner granted the permission for change of user, the Notice of Motion filed by the respondent No. 2 would stand disposed of.
(v) The aforesaid orders were passed without prejudice to the rights and contentions of the petitioners that the High Court in its original side, being only a Principle Civil Court of Original jurisdiction had no jurisdiction to entertain and try the suit filed by the respondent No. 2 landlord.
5. By a subsequent order dated 10th January, 2002 the Division Bench extended the time granted to the petitioners for making an application for regularisation of the change of use by 4 weeks. In pursuance of the order dated 25th October, 2001 as extended by the order dated 10th January, 2002 the petitioners made an application to the respondent No. 1 for regularisation of change of use of the suit premises from parking for which building plans were sanctioned to a store and an office. After hearing the petitioners and the respondent No. 2 by an order dated 2nd September, 2002 the Additional Municipal Commissioner, Mumbai rejected the petitioner’s application for permission for change of use of the suit premises. That order is impugned in this writ petition.
Submissions of the Counsel
6. Learned counsel for the petitioners submits that the impugned order dated 2nd September, 2002 is not only erroneous but perverse and was passed without following principles of natural justice. Site inspection was carried out by the Deputy Chief Engineer (Building Proposal) on 1st July, 2002, ex parte and behind the back of the petitioners. The report of the site inspection was not shown to the petitioners and they were not given an opportunity of explaining it. In the circumstances, there has been breach of principles of natural justice and the order deserves to be set aside. Learned counsel further submits that the permissible FSI was 4087.53 sq.yards and only FSI of 4021.88 sq.yards was consumed leaving a balance FSI of 65.65 sq.yards. (about 594 sq.feet) Additional construction of 594 sq.feet was permissible and therefore change of use should have been allowed by permitting the petitioners to use the suit premises as a store and an office by permitting them to consume 594 sq.feet of unconsumed FSI. Learned counsel for the petitioners also invites my attention to the letter of the joint Chief Fire Officer dated 1st August, 1994 and the letter of the Senior Inspector of Licence, D Ward written to the petitioners and points out that neither the Joint Chief Fire Officer nor the Senior Inspector of Licence had rejected the petitioners request for permission for change of use and the Additional Municipal Commissioner had not properly appreciated the said two letters and had wrongly held that the petitioners request was rejected by the Joint Chief Fire Officer. The order of the Additional Municipal Commissioner is thus based upon an erroneous assumption of facts that the Joint Chief Fire Officer had rejected the petitioners request for change of use and needs to be set aside. Smt. Joshi appearing for the respondent No. 1 Municipal Corporation and Mr. Diwan appearing for the respondent on 2 controvert each of the above submissions and support the order passed by the Additional Municipal Commissioner. Town Planning and permitted uses
7. At this stage, it would be useful to notice the relevant provisions of the Maharashtra Regional Town Planning Act, 1966 (for short ‘the M.R.T.P. Act), and the Development Control Regulations framed thereunder. Chapter IV of the M.R.T.P. Act contains provisions relating to the control of development and use of land included in a development plan. Section 43 of the M.R.T.P. Act provides that after the date on which declaration of an intention to prepare a development plan for any area is published in the Official Gazette, no person shall institute or change the use of any land or carry out any development of the land without permission in writing of the planning authority. It is not disputed that the suit premises are covered under a development plan prepared for the city of Mumbai. It was not open for the respondent No. 2 as an owner of the land to carry out any development on the land or to change the use of the land or building constructed thereon except in accordance with the prior permission in writing of the planning authority. The building plans for the building Ganga-Jamuna Cinemas were approved by the planning authority and as per the sanctioned building plans, the entire area of the stilts including the suit premises are permitted to be used only for the purpose of parking of vehicals. The Development Control Regulations for Greater Mumbai as in force from time to time contain provisions for permission to use any property as a cinema theatre and lay down that the permission would not be granted unless parking space is provided for parking of cars equivalent to atleast 4% of the number of seats in the theatre. Building permission cannot be granted by the planning authority unless a provision is made for sufficient parking space in accordance with the Development Control Regulations. The permission was granted for construction of the building Ganga Jamuna housing the two cinema theatres on the basis that the parking space would be adequate taking into consideration that the entire area of the stilts including the suit premises would be used as a parking space. Learned counsel for the respondent No. 1 Municipal Corporation submits that the available parking space in Ganga-Jamuna theatres would not be sufficient and would be far less than that prescribed by the Development Control Regulations if the use of the suit premises is permitted to be changed from parking to a store and an office as requested by the petitioners in their application.
8. No material has been brought on record by the petitioners to show that if use of the suit premises is allowed to be changed from parking space to a store and an office, there would be sufficient parking space as required under the Development Control Regulations. In the absence of sufficient parking space as required by the Development Control Regulations it is not permissible for the respondent No. 2 to use the suit premises for any purpose other than parking. Needless to say that what the respondent No. 2 cannot allow anybody else to use the suit premises for a purpose for which he could not use it himself. I am not concerned here with the disputes between the respondent No. 2 as a landlord and the petitioners as a tenant. If the respondent No. 2 was not permitted to use the premises for any purposes other than parking, he could not have permitted the petitioners to use the premises for any purpose other than parking. If the respondent No. 2 has wrongly represented to the petitioners that the suit premises can be used as an office or a store the petitioners can have whatever remedies available to them in law against the respondent No. 2 but that would not entitle them to any reliefs against the respondent No. 1 Municipal Corporation which is required to control the development of the lands and buildings in accordance with Development Control Regulations. If no permission could initially be granted by the respondent No. 1 for use of the suit premises for any purpose other than parking, the respondent No. 1 cannot subsequently grant a permission for change of use of the suit premises for any purpose other than parking. What could not be done initially by the respondent No. 1 cannot be done by it subsequently by granting permission for change of use. A contrary view would defeat the very purpose of Development Control Regulations. If the respondent No. 1 could not in law have granted permission initially for use of the suit premises for any purpose other than parking, it cannot do so subsequently unless the Development Control Regulations are modified and the modification permits the altered use. Alleged breach of principles of natural justice
9. In his order dated 2nd September, 2002 the Additional Municipal Commissioner has stated that the Site was inspected by the Deputy Chief Engineer Officer (Building Proposal) on 1st July, 2000 and four observations made by the Deputy Chief Engineer in his report are extracted in his order. They are :
i) Jamuna Cinema is presently working; ii) Ganga Cinema is not presently working. iii) On the ground floor of the building is a portion which was approved as a snack bar as per the sanctioned plans and was used for storage of furniture, goods/raw material. iv) The unauthorised and disputed part for which the matter was pending in the Court, was found to be used partly as a godown and partly as an office. As per the plans, approved in the year 1981 this portion was approved as parking space.
10. Learned counsel for the respondent Nos. 1 and 2 point out that none of the facts mentioned in the said report were ever disputed by the petitioners. Their correctness was not disputed before the Additional Municipal Commissioner and is also not disputed before me in this writ petition. Since the facts mentioned in the site inspection report are all admitted facts, no prejudice has been caused to the petitioners by the Deputy Chief Engineer inspecting the premises without notice and by reason of non furnishing of a copy of his report. Before me, it is not disputed by the learned counsel for the petitioners that the theatre Jamuna cinema is working and the theatre Ganga Cinema is not working. Thus the first two observations in the report of the Dy. Chief Engineer, apart from being preliminary, are not disputed by either of the parties. The portion shown as a snack bar consisting of 1500 sq.feet situated on the ground floor does not form the subject matter of the application for change of use and does not form the subject matter of the present writ petition. No relief is sought in respect of the same in this petition. The petition only relates to about 1000 sq.feet of area situated in the stilts in the building. Hence the third observation in the report of the Deputy Chief Engineer also is an admitted fact and only a preliminary observation not relating to the suit premises and not affecting the petitioners at all. It is not disputed by the petitioners that the suit premises admeasuring about 1000 sq feet in the stilts is used as a godown and in fact the application for permission for change of use from parking space to a store and an office was made to the Additional Commissioner by the petitioners on that basis. Therefore even the fourth observation made in the report of the Deputy Chief Engineer is not disputed at all. All the observations made in the report of the Deputy Chief Engineer are admitted facts and in any event none of the said facts is disputed before me by the learned counsel for the petitioners. No prejudice was caused to the petitioners by the visit of the Deputy Chief Engineer on 1st July, 2002 without notice to the petitioners nor by reason of non-furnishing of a copy of the report to the petitioners.
11. Learned counsel for the petitioners submits that once a slightest breach, howsoever small and inconsequential, of principles of natural justice is established the order passed in breach must be set aside irrespective of any other consideration. The principles of natural justice says learned counsel, are inviolable and any breach thereof, even inconsequential and which has resulted in no prejudice, must result in invalidation of the order. I am unable to agree to the proposition so broadly stated.
12. As the very name suggests, the principles of natural justice are not statutory and evolved by the Court is order to do justice naturally between the parties. They are not static. The manner in which the principles of natural justice are to be observed and followed also cannot be static and may vary from case to case.
Broadly speaking the principles of natural justice are :
(i) The person concerned should know the nature of accusation made. The accusation, the charge or the improper conduct alleged against a person must be told to the person clearly.
(ii) The person concerned should be given an opportunity to state his case. Whether the opportunity of hearing would include a personal hearing or only an opportunity of making written submissions would depend upon the facts and circumstances of each case. Though hearing in person or through a counsel is usually allowed, there may be exceptions and in a given case an opportunity to make written submissions may suffice.
(iii) The tribunal or the authority taking a decision should act fairly and in good faith. No person should be a judge in his own cause and the tribunal, body or authority deciding the matter should be unbiased.
13. In Hirenath Mishra v. Rajendra Medical College reported in AIR 1973 SC 1260 repelling the contention that the rules of natural justice were not followed as the names of the girl students making the accusation were not disclosed and an opportunity of cross-examination was not given the Supreme Court observed :
“The High Court was plainly right in holding that principles of natural justice are not inflexible and may differ in different circumstances. This Court has pointed out in Union of India v. P.K. Roy, (1968)2 SCR 186 at page 202 that the doctrine of natural justice cannot be imprisoned within the strait-jacket of a rigid formula and its application depends upon several factors.”
14. In City Corner v. Personal Assistant to Collector and Addl. District Magistrate, Nellore reported in (1976) SCC 124 the Supreme Court reiterated that it was well established that the principles of natural justice do not necessarily fit in a fixed formula and would always depend upto the facts of each case.
15. In Chairman, Board of Mining v. Ramzee the Supreme Court observed :
“Natural justice is not unruly horse, no lurking land mine, nor a judicial cure-all. If fairness is shown by the decision maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice without reference to the administrative realities and other factors of a given case, can be exasperating. We can neither be finical or fanatical but should be flexible yet firm in this jurisdiction. No man shall be hit below the belt – that is the conscience of the matter.
16. It is unnecessary to burden the judgment by citing any more decisions in support of the proposition that principles of natural justice are flexible. They are not a judicial missile to be used for striking down any and every administrative action or quasi-judicial decision on the ground of an infraction, howsoever inconsequential. A person alleging infraction of the principles of natural justice may not prove beyond reason of doubt that prejudice was caused to him by reason of the infraction. However he must atleast allege prejudice or injustice. There must be atleast a possibility (not probability) howsoever small, of injustice or prejudice being caused to him. There must be an allegation of prejudice or injustice and a possibility, howsoever remote, of an injustice or prejudice. This may not be true when the allegation is of a bias against the tribunal or authority deciding the matter but that is on account of an oft quoted saying “Justice must not only be done but must be seen to have been done.” Where the allegation is that a certain material is not shown to the petitioner, it must atleast be alleged that the petitioner was not aware of it and that the material was taken into consideration or looked into while deciding the matter. If the material was all within the knowledge of the petitioner, was undisputed and in fact admitted by him a mere fact that it was not again shown to him may not in every case be fatal to the order. The underlying principle in setting aside an order is that there has been an injustice or there is a possibility of an injustice having been caused or likely to have been caused to the petitioner.
17. In the present case what is alleged is that the report dated 1st July, 2000 of the Dy. Chief Engineer was not shown to the petitioner. The report consists of only four observations which are extracted in paragraph No. 9 of the judgment earlier. All the four observations were admitted by the appellant. Observation Nos. 1, 2 and 3 were of preliminary facts and were undisputed. Observation No. 4 states that the petitioner was using the suit premises partly as a godown and partly as an office. It was the case of the petitioner that he was so using the suit premises and it was his application for permission for change of use of parking place to a store and an office which was being considered. The observation No. 4 in the report was therefore not against the petitioner but was supportive of his case for permission for change of user. Thus, no prejudice could ever have been caused to the petitioner by the report of the Dy. Chief Engineer.
18. In any event on the view on other points which I have taken necessitating a remand it is not necessary to dwell further on the issue of infraction of the principles of natural justice. The petitioner today, is certainly aware of all the four observations is made by the Dy. Chief Engineer in his report dated 1st July, 2000. The petitioner will be at liberty to deal with them at the hearing if he in any way feels aggrieved by the said observations.
Reg. Permission to be granted to the petitioners for use of FSI.
19. Learned counsel for the petitioners submits that the permissible FSI is 487.53 sq. yards while the actual construction consumes FSI of only 421.88 sq.yards and therefore FSI of 65.65 sq.yards equivalent to about 594 sq.feet is available for use. The petitioners should have been granted permission to change of use of the suit premises as a store and an office by allowing them to consume that FSI in the stilts. The submission is misconceived for reasons more than one. Firstly, the petitioners are not the owners of the property. The right of construction vests in the owner and not in the petitioners. Assuming that the petitioners prove lawful tenancy, which is disputed, the petitioners cannot consume the FSI which belongs to the respondent No. 2 landlord. Secondly, assuming that the petitioners are entitled to consume the unused FSI, the FSI available even as per the then existing rules was only 594 sq.feet whereas the petitioners have applied for permission for change of use of about 1000 sq.feet of the parking space. Nobody can be permitted to use more than 594 sq.feet of FSI while the petitioners want to change the use of the entire 1000 sq. feet of the area under the stilt. Lastly, learned counsel for the respondent No. 1 has rightly pointed out that the FSI which was 1.66 when the building was initially constructed has since been reduced to 1.33 under the Development Control Regulations in the year 1991. Since the application for change of use was made in 1999 it would have to be considered only under the Development Control Regulations of 1991. There is no balance FSI available in the existing property because of the reduction in FSI. Of course the existing construction would not be demolished in view of the fact that the construction was made prior to the coming of the force of the Development Control Rules, 1991 but no further construction or change of use would be permissible except in accordance with the new rules. Learned counsel for the respondent No. 1 is therefore right in submitting that it is not possible to allow change of use even in respect of a single sq.foot of the parking space as there is no FSI available at all.
20. Learned counsel for the respondent No. 2 submits that there are two twin cinema theatres in the building; one is presently working and an application has already been made by the respondent No. 2 for permission to restart the second theatre which was not running for sometime in the past. With the increase affluence more and more people come to the cinema theatres in cars and therefore parking space even for the existing single screen theatre is insufficient. Shortage of parking space would become more acute once second theatre starts. In case of fire, proper exists must be available and open stilts serve as an useful exit in case of fire or any other emergency. If parking space is allowed to be closed and used as a store or an office then there would not be sufficient exits for the people to get out and therefore permission for change of use has rightly been refused by the Additional Municipal Commissioner. Learned counsel further submits that assuming that the Additional Municipal Commissioner had not properly appreciated the letter of the Joint Chief Fire Officer dated 1st August, 1994 the order is otherwise correct as in any event the Additional Municipal Commissioner has taken into consideration the relevant circumstances. The use had been unauthorisedly changed without prior permission and taking into consideration public safety and security it would not be proper to grant permission for change of use.
21. After having perused the letter of the Chief Fire Officer dated 1st August, 1994 and the letter of the Senior Inspector of licence dated 26th October, 1994 referred by the Additional Municipal Commissioner in his report, I am satisfied that the Additional Municipal Commissioner has not properly appreciated the said two letters. The Deputy Chief Fire Officer, by his letter dated 1st August, 1994 had not rejected the case nor declined to consider the request for change of use of the suit premises for the purpose of storage. On the contrary, he had stated that he had no objection for granting the permission subject to certain compliances. It is not the case of the respondents that compliances required in the letter of the Joint Chief Fire Officer dated 1st August, 1994 were not complied with by the petitioners. Similarly, by a letter dated 16th October, 1994 the Senior Inspector of licence D Ward had only asked for the copies of rent receipts and shop and establishment licence. In the circumstances, I am satisfied that the interpretation made by the Additional Municipal Commissioner of the letters dated 1st August, 1994 and 26th October, 1994 written by the Joint Chief Fire Officer and the Senior Inspector of Licence have been misread. The Additional Municipal Commissioner has rejected the application for permission for change of use on several grounds including that Dy. Chief Fire Officer has objected to the grant of permission. This is obviously not correct. From the reading of the order of the Additional Municipal Commissioner it is not possible to find out how much these letters have weighed on his mind in rejecting the petitioner’s application. It would be conjecture for this Court to say whether the Additional Municipal Commissioner would have granted permission for change of use if these two documents were properly read. It is therefore necessary to remand the matter back to the Additional Municipal Commissioner for considering it afresh after properly interpretating the letters/report dated 1st August, 1994 and 26th October, 1994 of the Joint Chief Fire Officer and the Senior Inspector of Licence respectively. Needless to say that it is open to the Additional Municipal Commissioner to refuse the permission despite no objection given by the Joint Chief Fire Officer if the Additional Municipal Commissioner is satisfied that granting of such permission would violate the Development Control Regulations or such permission should not otherwise be granted for any other valid reason. Hence, I pass the following order :
“The impugned order is set aside and the matter is remitted back to the Additional Municipal Commissioner for considering the matter afresh in the light of the observations made hereinabove. Since the matter is old, the Additional Municipal Commissioner is requested to expedite it as expeditiously as possible preferably within three months of the knowledge of this order.”