The present appellant issued notice under section 53(1) of the Maharashtra Regional and Town Planning Act, 1966 on the ground that in the residential premises, the respondent plaintiff is running a medical dispensary without permission as such should discontinue the said unauthorised use i.e. medical dispensary. The respondent plaintiff filed a suit before the trial court challenging the said notice seeking relief of declaration that the act of defendant No.1 objecting the use of the part of the premises for running medical dispensary is illegal, null and void and also sought injunction restraining the defendant from executing the same. The trial court decreed the suit. Aggrieved thereby, the present appeal.
Mrs. Joglekar, the learned counsel for the appellant submits that the plaintiff, in a residential premises, is running her medical dispensary and the same is not permissible without prior permission. According to the learned counsel, though Regulation 51(iv) of the Development Control Regulations, 1991 (D. C. Regulations) permits the incidental use of residential premises for running a medical dispensary, still the same has to be after prior permission of the appellant. According to the learned counsel, the court below has not properly appreciated the provision in this regard.
Mr. Dhakephalkar, the learned senior counsel for the respondent submits that there is no provision which requires permission of the appellant to run a medical dispensary in a part of the residential premises. The plaintiff is running her medical dispensary in one small room and the rest of the part of the room is being used as a residential premises. The said room is not exceeding 180 sq.ft. Indoor patients are not admitted.
It is not in dispute that Flat No.A2 is the residential premise of the plaintiff (i.e. in R1 zone). The only dispute is about the plaintiff running her medical dispensary in one room in the said flat being used for residential purpose. The court, on appreciation of evidence has
found that whole flat is used for residential purpose and only a small area less than 30 sq. mtr. is being used for running medical dispensary.
It is also not the case of the corporation that plaintiffs admit any indoor patients.
Rule 51(iv) of the D.C. Regulations reads thus:
51. Purely Residential Zone (R1 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) ………………….
(ii) ………………….
(iii) ………………….
(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.m.”
The learned counsel for the appellant could not point out any provision under which the plaintiff is required to seek prior permission for running medical dispensary with only outpatient treatment facilities without any indoor work in her residential flat, more particularly, when the whole flat is being used for residential purpose and medical dispensary is being run in an area less than 30 sq.mtr.
In absence of any such provision, requiring permission of Municipal Corporation for Medical Practitioner’s dispensary with only
outpatient treatment facility in an area of less than 30 sq. mtr. in residential premises, it would not be within the jurisdiction of the appellant to issue such notice. The court below has properly considered the said aspect of the matter and has rightly decreed the suit.
In the light of the above, appeal is dismissed, however, with no order as to costs.
In view of dismissal of the appeal, nothing survives in the civil application. Hence, the same stands dismissed.
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