Allowed

Avenue Supermarts Ltd. v. Navi Mumbai Municipal Corp. and Ors.

Bombay HC5 Aug 2019WP/7610/2019

Case brief

AI extract

What is this about?

This writ petition challenged a notice issued to Avenue Supermarts Ltd alleging unauthorized change of user in its commercial building. The High Court held that since the building remained entirely within commercial use, internal shifts between office, shopping, and storage areas did not constitute a change of user. The notice was therefore unsustainable and quashed.

What did the court decide?

Notice dated 9th May 2019 quashed and set aside; no order as to costs.

Avenue Supermarts Ltd. Vs Navi Mumbai Municipal Corp. and… — Landlord and Tenant | Bombay HC (2019)

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12-ASWP7610-19.DOC

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Shephali

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7610 OF 2019

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Avenue Supermarts Ltd
Versus

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Navi Mumbai Municipal Corporation & Ors

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...Petitioner

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...Respondents

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Ms Prachi Tatake, i/b LD Shah & Co, for the Petitioner.
Ms Sirisha Kurada, h/f SV Marne, for Respondents Nos. 1 to 3.
Mrs RA Salunkhe, AGP for Respondent No4-state.

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CORAM:S. C. DHARMADHIKARI &
G.S. PATEL, JJ
DATED:5th August 2019

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PC:-

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1.This Writ Petition under Article 226 of the Constitution of
India seeks to challenge the notice dated 9th May 2019. This notice
informs the Petitioner that it cannot change the user of an area
specifed in the schedule to this notice for ofce purposes.

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2.The Petitioner in the Writ Petition has said in categorical
terms that it is a company registered under the Companies Act 1956
carrying on business of multi branded retail/departmental
store/supermarket/hypermarket and the 1st Respondent is the Navi

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Page 1 of 4
5th August 2019

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12-ASWP7610-19.DOC

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Mumbai Municipal Corporation whereas Respondents Nos. 2 and 3
are its ofcers and Respondent No.4 is the State.

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3.The City Industrial Development Corporation of
Maharashtra (“CIDCO”) allotted a certain piece of land to the
Petitioner way back on 3rd May 2001. Thereafter, there was an
agreement to grant lease. After that, permissions were granted by
the 1st Respondent for construction of a commercial building of a
basement, ground, frst and second foor in aggregate admeasuring
2492.26 sq. mtrs and a terrace on the third foor. On 6th January
2005, an Occupation Certifcate was issued and there were certain
internal changes made by the Petitioner for which amended plans
were forwarded and they were duly sanctioned on 31st March 2009.
A full Occupation Certifcate was granted and today a business
styled as D-Mart is conducted from these premises.

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4.There is no grievance about payment of taxes and outgoings
but a notice came to be issued alleging violations and that is that a
portion of the basement made for shopping area is being used as an
ofce, the frst and second foor being sanctioned for ofce is used
for commercial purpose and a storage area on terrace is being used
for canteen. The toilet on terrace is being used for storage.

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Page 2 of 4
5th August 2019

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12-ASWP7610-19.DOC

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5.The notice states that this is without permission and that is
why Section 62 of the Maharashtra Regional and Town Planning Act
will come into play.

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6.An Afdavit has been fled on behalf of the Navi Mumbai
Municipal Corporation which says that there are several complaints
received for change of user. Notice was issued and a personal
hearing was given on 11th May 2019. The representatives of the
Petitioner are supposed to have told the Deputy Municipal
Commissioner (Encroachment) that requisite applications for grant
of No Objection Certifcate for the change would be made but that is
not placed on record. Therefore the notice is stated to be valid.

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7.Now, there are other allegations made but these are not the
subject matter of this notice or the Petition.

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8.If the notice is perused it is evident that the development
permission has been granted for use of ground foor as shop/
shopping area and frst and second foor for ofce area. The alleged
unauthorised conversion is in respect of frst and second foor as
shopping area and that the basement is not used for ofce, storage
on terrace has been used for canteen and the area sanctioned as
toilet is being used for storage purposes.

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9.It is evident that the building is used for commercial purpose.
The user continues to be commercial. All that has happened and

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Page 3 of 4

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5th August 2019

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12-ASWP7610-19.DOC

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possibly at site is the internal adjustments made by the Petitioners.
They may have shifted their ofce from the frst and second foor
which they styled as ofce area and they have taken the shops also
on the frst and second foor to that of shopping area. We have
noticed that the change of user that is contemplated by law is
residential to commercial, commercial to some other non-residential
purposes. Broadly, therefore, the residential and non-residential and
one non-residential purpose to another is understood as change of
user. There is no such change allegedly noticed. The user continues
to be commercial. Once that is so we do not see any justifcation for
issuance of a notice for internal adjustments made in a commercial
building and where only commercial activities are going on. An
ofce or a storage area is also an integral part of the business of the
Petitioner known as D-Mart. In these circumstances the notice
issued to the Petitioner cannot be sustained. It is quashed and set
aside. The Writ Petition is allowed in these terms. There will be no
order as to costs.

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(S. C. DHARMADHIKARI, J)

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(G. S. PATEL, J)

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Page 4 of 4
5th August 2019

Avenue Supermarts Ltd. v. Navi Mumbai Municipal Corp. and Ors.

Case brief

What is this about?

What did the court decide?

Avenue Supermarts Ltd. v. Navi Mumbai Municipal Corp. and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

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