2013 (12) TMI 1667 - SC - Indian Laws

Supreme Court Settlement on High-Rise Building Restrictions: Parking, DCR Compliance

The Supreme Court addressed the appeal regarding the validity of a stop work notice and height restriction on Wing 'C'. A settlement limited the Public ... Mandatory minimum recreational/amenity open space - podium as open-to-sky recreational space - read down - fire-protection maneuverability and clear open space requirement - discriminatory provision violative of Articles 14 and 21 - prospective application where plans/commencement certificates not issued - locality-wise assessment of additional FSI and traffic impactMandatory minimum recreational/amenity open space - podium as open-to-sky recreational space - read down - right to life under Article 21 - The minimum recreational area mandated by DCR 23 cannot be reduced by relying upon DCR 38(34); recreational space on podium under DCR 38(34)(iv) is additional and not a substitute for the ground-level requirement. - HELD THAT: - DCR 23 prescribes mandatory minimum recreational/amenity open spaces (15%, 20% or 25% depending on plot size) which must be permanently open to the sky and accommodate tree growth; definitions in the DCRs (including 'open space' and 'site') indicate ground-level requirement. DCR 38(34)(iv) merely permits that recreational space 'may be provided' on an open-to-sky podium and contains no non-obstante clause to override DCR 23. Reading DCR 38(34)(iv) as allowing reduction of the ground-level mandatory recreational area would lead to erosion of essential open space, adverse environmental effects and impairment of the right to life under Article 21; therefore Clause (iv) must be read down as inapplicable to the extent it purports to reduce the DCR 23 requirement. Developers may, however, provide additional recreational area on podiums over and above the DCR 23 minimum at ground level. The Court recorded these conclusions after considering the DCR text, affidavits and submissions and in light of environmental and living-standards concerns. (See paragraphs 15-28, 60.) [Paras 28, 60]DCR 23's minimum recreational area is mandatory and cannot be reduced by DCR 38(34); podium recreational space, if provided, must be in addition to the DCR 23 requirement.Fire-protection maneuverability and clear open space requirement - discriminatory provision violative of Articles 14 and 21 - refuge floors and internal fire safety - periodic certification and inspection - The second proviso to DCR 43(1)(A) (treating 1.5 m side open space as adequate for certain redevelopment proposals) is invalid; even for redevelopment proposals under DCR 33(7) on plots up to 600 sq. mts., a clear open space of 6 meters on at least one side within the plot accessible from the road must be maintained, subject to limited exceptions and the written decision of the Chief Fire Officer. - HELD THAT: - DCR 43 prescribes fire protection requirements including minimum clear open spaces to permit maneuverability of fire appliances: 9 m for certain heights and, where podiums exist, adjustments to ensure adequate clear space. The second proviso to DCR 43(1)(A) treating 1.5 m as adequate for some redevelopment schemes cannot be justified given the practical inability of fire appliances to operate through such narrow gaps, the limitations of fire-fighting reach, and the demonstrated failures in recent fires. The Court found the proviso discriminatory as it denies the same standard of safety to occupants of such plots, thereby infringing Articles 14 and 21. Consequently, a 6 m clear open space within the property accessible from the road on one side is required unless the building abuts two roads of 6 m or more on two sides or another appropriate 6 m access exists; this is subject to the Chief Fire Officer's written decision. The Court also directed periodic certification by developers/societies (at least once in six months) and periodic checks by the fire department of access, internal exits and internal fire-fighting arrangements. (See paragraphs 29-39, 60.) [Paras 39, 60]The second proviso to DCR 43(1)(A) is struck down; minimum 6 m internal clear open space accessible from road is required for redevelopment plots up to 600 sq. mts., with specified exceptions and supervisory safeguards.Locality-wise assessment of additional FSI and traffic impact - planning authority discretion and Development Plan formulation - recommendations to drafters of Development Plan - Issues concerning the validity of exemptions from DCR 31(1) for development schemes under DCR 33(7), (8) and (9) and the impact of additional FSI on traffic were not adjudicated as final legal determinations but were left to the Government, the Development Plan Drafting Committee and the Municipal Corporation to consider; the Court made recommendations for locality-wise assessment, supervision of scheme-wise exemptions, and measures to restrict additional pressure on infrastructure. - HELD THAT: - Given the complexity and policy dimensions, the Court refrained from issuing definitive statutory interpretations or nationwide mandates on exemptions to height restrictions and on traffic-impact assessments. Instead, after recording submissions and data, the Court recommended that exemptions from DCR 31(1) be applied on a scheme-wise and locality-wise basis, that the impact of additional FSI on local infrastructure and traffic be assessed before granting permissions, and that contributions by existing occupants or State financing be considered to limit additional entrants. These suggestions are to be examined by the Government of Maharashtra, the Development Plan Drafting Committee and the Municipal Corporation in framing the new Development Plan. The Court confined itself to making these recommendations rather than issuing binding directions on these substantive issues. (See paragraphs 41-54, 60.) [Paras 53, 54, 60]Issues 2 and 3 are entrusted to the Government, Development Plan drafters and Municipal Corporation for consideration; the Court's locality-wise and supervisory recommendations are to be considered in the new Development Plan.Prospective application - plans/commencement certificates - The rulings on DCR 23/DCR 38(34) and on the invalidity of the second proviso to DCR 43(1)(A) shall apply prospectively to constructions where plans are not yet approved or where Commencement Certificates have not been issued; authorities are directed to ensure strict compliance accordingly. - HELD THAT: - While declaring the legal position on recreational area and fire-access requirements, the Court recognized practical concerns and, in deference to parties and interveners, limited the operative effect of those declarations to future cases where plans are unapproved or CCs not issued. This preserves settled expectations for projects underway while ensuring future conformity. The Court directed relevant authorities to implement the decisions prospectively and to reconstitute and empower the Technical Committee for High-Rise Buildings to assist in oversight. (See paragraphs 40, 56-59, 60.) [Paras 40, 60]Decisions on Issues 1 and 4 apply prospectively to projects without approved plans or without Commencement Certificates; authorities must enforce compliance.Final Conclusion: The Court recorded the parties' settlement as accepted in the special facts, held that DCR 23's minimum ground-level recreational area cannot be reduced by DCR 38(34) (podium space, if any, must be additional), struck down the second proviso to DCR 43(1)(A) as unconstitutional and mandated minimum internal 6 m clear open space for certain redevelopment plots (with specified exceptions and supervisory measures), left broader questions on exemptions from height restrictions and traffic impact for planners to consider with locality-wise safeguards, applied the principal rulings prospectively where plans/CCs are not yet issued, and directed reconstitution and strengthening of the Technical Committee for High-Rise Buildings. Issues Involved:1. Validity of the stop work notice and height restriction on Wing 'C'.2. Correlation between DCR 23 and DCR 38(34) regarding recreational area.3. Justification of exemptions from DCR 31(1) under DCR Nos. 33(7), (8), and (9).4. Impact of additional FSI on traffic.5. Adequacy of fire safety mechanisms for high-rise buildings.Summary:Issue 1: Validity of Stop Work Notice and Height RestrictionThe Supreme Court addressed the appeal against the Bombay High Court's order quashing the stop work notice dated 22.12.2011 and the height restriction on Wing 'C' to four floors. The Court noted a settlement between the parties, which agreed to limit the Public Parking Lot (PPL) to ground + 4 upper floors and three-level basements, with captive parking from the 5th to 13th floors in Wing 'C'. The Court emphasized that this settlement did not invalidate the Municipal Circular dated 22.6.2011.Issue 2: Correlation Between DCR 23 and DCR 38(34)The Court examined whether the recreational area required under DCR 23 could be reduced by providing it on a podium as per DCR 38(34). It concluded that the minimum recreational area mandated by DCR 23 must be provided at the ground level and cannot be reduced by relying on DCR 38(34). Recreational space on the podium can only be additional to the ground-level requirement.Issue 3: Justification of Exemptions from DCR 31(1)The Court scrutinized the exemptions from height restrictions under DCR 31(1) for schemes under DCR 33(7), (8), and (9). It highlighted the need for a scheme-wise approach and proper supervision, suggesting that the impact of high-rise buildings on the locality and traffic should be examined before granting such exemptions. The Court recommended that these considerations be included in the new Development Plan for Greater Mumbai.Issue 4: Impact of Additional FSI on TrafficThe Court noted the significant increase in vehicular population and the resulting traffic congestion. It recommended that the impact of additional FSI on traffic should be assessed locality-wise, and measures should be taken to manage traffic effectively. The Court suggested that the new Development Plan should consider these aspects to ensure sustainable urban development.Issue 5: Adequacy of Fire Safety MechanismsThe Court addressed the adequacy of fire safety mechanisms for high-rise buildings, particularly those exceeding 70 meters. It found the second proviso to DCR 43(1)(A), which allowed reduced open space for fire engine access in certain redevelopment schemes, to be hazardous and discriminatory. The Court held that even for plots up to 600 sq. mts. under DCR 33(7), a minimum open space of 6 meters must be maintained for fire engine maneuverability.Additional Directions:1. The decision on recreational space and fire safety requirements will apply prospectively to constructions where plans are not yet approved or where the Commencement Certificate (CC) has not been issued.2. The Government of Maharashtra is directed to reconstitute the 'Technical Committee for High-Rise Buildings' with additional terms of reference, including addressing grievances related to development schemes under DCR 33(7), (8), (9), and (10), and making recommendations for the new Development Plan.3. The Appellant-Municipal Corporation is directed to provide necessary assistance and honorarium to the committee members.Conclusion:The appeal was disposed of in light of the settlement and the Court's determinations on the additional issues. The parties were directed to bear their own costs.