: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION (LDG.) NO.610 OF 2009 Jyotindra I. Khokani & Anr. ....Petitioners V/s. Municipal Corpn.of Gr.Mumbai & Ors. ....Respondents Ms.Rajni Iyer, Senior Counsel with Mr.S.A. Sawant for the Petitioners. Ms.Trupti H. Puranik for the B.M.C. - Respondent. Mr.Deshpande, S.E. (Bldg.Prop.) Eastern Subburb present. Mr.Chaudhari, J.E. "N" Ward present. CORAM : S.J. VAZIFDAR, J. DATED : 1ST APRIL, 2009. P.C. : 1. Rule. By consent the rule is made returnable and heard forthwith. 2. The Petitioners challenge a notice dated 31.1.2008 and the order dated 16.4.2008 passed by Respondent No.2, Assistant Commissioner, N/Ward. The Petitioners also seek an order allowing the applications dated 7.2.2008 and 16.2.2008 for permission to continue to use the premises. Although it is not stated in prayer (b) that the application for being permitted to use the same is as an : 2 : ophthalogist. 3. The said notice dated 31.1.2008 was under Section 53 of the M.R.T.P. Act. The authorities called upon the Petitioners to discontinue the allegedly unauthorized user of the premises within one month. The notice stated that there was a change of user from a garage to a clinic. 4. By a letter dated 7.2.2008, the Petitioners stated that the premises were more than 90 years old ; the change of use was more than seven years ago and that therefore Section 53 was not applicable ; that the structure was used by Petitioner No.2 who is a practicing eye surgeon for more than 15 years and the clinic was expressly started for charity work essentially to attend to female patients. It is important to note that the Petitioners also requested earlier for a change of use of premises but that the same had not been considered as they had submitted the plan for reconstruction and demolition of the main structure. The Petitioners further stated that as there was surplus FSI on the plot and that the Respondents may deduct the said area from the total area. Finally, the Petitioners stated that the structure would be demolished to make room for the new building for existing tenants and also requested for a : 3 : change of use. 5. By a further letter dated 16.2.2008, the Petitioners stated that the proposed plans for reconstruction of the existing structure were awaiting approval from the Respondents. By the impugned order dated 16.4.2008, Respondent No.2 directed the Petitioners to comply with the said impugned notice dated 31.1.2008. It is pertinent to note that Respondent No.2 stated that he had been informed by the concerned department of Respondent No.1 that the Petitioners’ proposal had not been approved. . The Petitioners in the letters dated 7.2.2008 and 16.2.2008 did not state that their proposal had been approved. They stated that the proposals were pending approval. The representations made in the letters were required to be decided on the basis of the representations contained therein which had not been done. 6. In any event after the letter dated 16.2.2008, the Petitioners received an I.O.D. on 16.10.2008 (Exhibit "A" to the Petition). Thus in any event the impugned order is required to be set-aside and the matter reconsidered. : 4 : 7. In view thereof, it is not necessary at this stage to consider the Petitioners’ further letter dated 3.5.2008, which was in response to the impugned order dated 16.4.2008. 8. It appears that on a complaint of one of the tenants with whom the Petitioners had a dispute to the concerned police station proceedings have been initiated. The complaint really would not survive in view of the order that I propose passing. 9. In the circumstances, the impugned notice and the impugned order require to be set-aside. The Petitioners’ response to the impugned notice as well as the Petitioners’ applications therein including for permission to continue to use the structure require to be reconsidered. 10. In the circumstances, the Writ Petition is disposed of by the following order :- i). The Writ Petition is allowed in terms of prayer (a). As far as prayer (b) is concerned, the same will be decided by the concerned authorities while considering the Petitioners’ response to the impugned notice and the Petitioners’ applications as stated : 5 : above. On behalf of the Respondents, it is stated that the Municipal Commissioner or any officer delegated by him will decide the Petitioners’ representation. The Petitioners shall be at liberty to file a fresh application and/or composite application and shall also be at liberty to make further applications. The same should be decided by the Municipal Commissioner or by any officer delegated by him.