TaxTMI 
TaxTMI 
2013 (12) TMI 1667
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..... 143/2012 filed by the Respondents was allowed, and which quashed the stop work notice dated 22.12.2011 issued by Executive Engineer (Building Proposal) City-III, Municipal Corporation of Greater Mumbai, and order dated 27.4.2012 passed by the Additional Municipal Commissioner restricting to four floors the height of Wing 'C' (providing for public parking lot - 'PPL' for short) of the buildings being constructed on Plot No. 46 of Town Planning Scheme-III, N.C. Kelkar Road, Shivaji Park, Dadar, Mumbai. Dispute between the parties, settlement thereof and Part-I of the order dated 25.7.2013: 3. This appeal was initially heard by a bench of G.S. Singhvi and H.L. Gokhale, JJ. Mr. Harish Salve and Mr. R.P. Bhatt, both learned Senior Counsel appeared for the Appellants, and Mr. F.S Nariman, learned Senior Counsel appeared for the Respondent. The Appellants wanted to restrict the PPL up to four floors only, but before the issuance of the restrictive circular dated 22.6.2011, in this behalf, the Respondents had already consumed higher FSI (Floor Space Index) on the basis of the Commencement Certificates issued earlier. In view of the discussion in the Court however, a....
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....d pleaded that the amended DCR 33(24) cannot be made applicable to its buildings because substantial construction had already been made at a cost of Rs. 167/- crores. Thereafter, the concerned Executive Engineer issued stop work notice dated 22.12.2011 and directed Respondent No. 1 to restrict the work of public parking to 4 floors instead of 13 floors. After about six months, Additional Municipal Commissioner passed order dated 27.4.2012, the relevant portion of which is extracted below: As there is a substantial construction on core part of the plot, PPL done in this part shall be allowed to the extent of already executed construction as per report dated 27.12.2011. In the remaining portion of the plot, where there is no substantial construction, PPL shall be limited to G + 4, Developer is to be asked to modify his plans in consonance with modified DCR. 5. The Respondent challenged the stop work notice and the order of the Additional Municipal Commissioner in Writ Petition No. 143/2012, which was allowed by the High Court in the following terms: In the facts of this case, the admitted position as accepted in the order of the Additional Municipal Commissioner ....
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.... Settlement signed by the representatives of the parties and their advocates on 18.4.2013 together with the annexure are taken on record. We note that this settlement is arrived at on the backdrop of the facts and circumstances of this case. We clarify that we have not in anyway held the Municipal Circular dated 22.6.2011 to be bad in law. We direct that the parties shall strictly abide by the terms of settlement. (Emphasis supplied) 6. The settlement has brought about the change as desired by the Appellants, while taking care of interest of the Respondents. The complex is going to be on the land which earlier belonged to Kohinoor Textile Mill at Dadar, Mumbai. Wing 'A' is to consist of 3 basements + ground to 5 Floors, and Wing 'B' is to consist of 3 basements + ground to 48 floors with a total height of 195.90 meters. Wing 'C' was to be in two parts as originally proposed. Ground + 14 Floors, thereof, were to be meant for PPL, and 15 to 30 floors were to be kept for residential purposes. Under the Municipal circular dated 22.6.2011 prescribing conditions under Clause (iv) of DCR 33(24), the public parking building was to be confined only to gro....
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....t matter a higher FSI has been given in lieu of making a provision for public parking, leading to a high-rise building. Such high-rise constructions bring along with them more population and more vehicles on the adjoining narrow roads and into an already congested area, and that aspect did not appear to have been examined by the Appellant-Municipal Corporation. In the instant case, the approved complex is bounded on four sides by four roads, and these roads are not, at all, wide. The height of the complex is going to be quite disproportionate to the width of these roads, but that has been permitted amongst other reasons in view of making a provision for public parking. Under DCR No. 31 (1), the height of the building has to be in proportion to the width of the road which is adjoining a building, but the proviso to that DCR makes another exception to this rule with respect to construction schemes under DCRs Nos. 33(7), (8) and (9). DCR 33(7) is regarding reconstruction or redevelopment of cessed buildings in the island city, by co-operative housing societies, or of old buildings belonging to the Municipal Corporation or the police department, and it grants FSI of 2.5 plus incentive ....
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....y ground? (2) Whether the exemption from DCR 31(1) under DCR Nos. 33(7), (8), and (9) is justified, valid and legal particularly in the island city of Greater Mumbai. If so, to what extent and in which context? (3) What is the impact of the addition of FSI in the island city on the traffic situation? How can it be controlled? (4) Whether the present mechanism for protection against the fire hazards is adequate and is being implemented effectively? If not, what should be the mechanism for enforcement with respect to the provisions concerning the fire safety? 12. For that purpose, affidavits were sought from the following: (A) From the Municipal Corporation: (i) The affidavit of the Chief Engineer, Town Planning on issues No. 1 and 2. (ii) The affidavit of the Chief Engineer, concerning traffic on issued No. 3. (iii) The affidavit of the Chief Fire Officer on issue No. 4. (B) From the State of Maharashtra: (i) By the Secretary, Urban Development Department on issue Nos. 1, 2 and 3 above. (ii) By the Commissioner of Police (Traffic) on issue No. 3 above. 13. The excessive construction at the cost of minimum recreational space, as seen in the present....
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.... (iv) Property Redevelopers Association. They have all assisted in the examination of these four issues. We will deal with their submissions in the context of the Maharashtra Regional and Town Planning Act, 1966 (the 'MRTP' Act for short), and the Development Control Regulations for Greater Mumbai, 1991, framed thereunder which govern these issues. Issue No. 1 concerning the reduction in the minimum recreational space from the one as required under DCR 23: 15. The Development Control Regulations are referable to Section 22(m) of the MRTP Act. Section 21 of the said Act requires the planning authority, i.e. the local authority (Appellant No. 1 in the instant case) to prepare a development plan for the local area within its jurisdiction. Section 22 of the Act lays down what should be the contents of a development plan, and in that behalf it provides under Sub-section (m) that it shall contain amongst others: (m) provision for permission to be granted for controlling and regulating the use and development of land within the jurisdiction of a local authority.... The present DCR's for Greater Mumbai, 1991 were sanctioned by the State of Maharashtra on 20.2.1991 a....
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....m. or part thereof to be grown in a plot for which a subdivision or layout is not necessary. (g) Structures/uses permitted in recreational open spaces: (i) In a recreational open space exceeding 400 sq.m. in area (in one piece), elevated/underground water reservoirs, electric substations, pump houses may be built and shall not utilise more than 10 per cent of the open space in which they are located. (ii) In a recreational open space or playground of 1000 sq.m. or more in area (in one piece and in one place), structures for pavilions, gymnasia, club houses and other structures for the purpose of sports and recreation activities may be permitted with built-up area not exceeding 15 per cent of the total recreational open spaces in one place. The area of the plinth of such a structure shall be restricted to 10 per cent of the areas of the total recreational open space. The height of any such structure which may be single storey shall not exceed 8 m. A swimming pool may also be permitted in such a recreational open space and shall be free of FSI. Structures for such sports and recreation activities shall conform to the following requirements: (a) The ownership of such struc....
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....sed for construction of buildings for banks, canteens, welfare centers, offices, crèches and other common purposes considered necessary for industrial users as approved by the Commissioner. The provision regarding the podium: 17. As has been noted in paragraph 13 of the order dated 25.7.2013, the Appellants did not look into the issue of reduction in recreational area at the ground level very seriously, probably because the rule permits recreational space on the podium. Some of the interveners very seriously canvassed that in view of the provision concerning recreational space on the podium, the recreational/amenity open space at the ground level could legitimately be reduced. The provision regarding the podium is seen in DCR No. 38 (34). DCR 38 lays down the requirements concerning parts of buildings. DCR 38 (34) reads as follows: (34) Podium. (i) A podium may be permitted on plot admeasuring 1500 sq.mt. or more. (ii) The podium provided with ramp may be permitted in one or more level, total height not exceeding 24 m. above ground level. However, podium not provided with ramp but provided with two car lifts may be permitted in one or more level, total heig....
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....te the requirement of parking. He has, however, added "in such situation it may not be possible for the planner to provide the entire Recreational/Amenity space on the ground". Later in paragraph 7, he has pointed out that in certain other situations the amenity open spaces are permitted to be reduced. Thus, under DCR 33(1) read with Clause 6.20 of Appendix IV which applies to the redevelopment schemes for slums, the amenity space can be reduced, but still a minimum of 8% of the amenity space shall be maintained. Clause 8 of Appendix III applies the same provision to the reconstruction/redevelopment of cessed buildings under DCR 33(7). As regards the development under DCR 33 (9), Clause 12.14 of Appendix IIIA concerning DCR 33(9), states that, "Even if the recreational open space is reduced to make the project viable, a minimum of at least 10 percent of plot area shall be provided as recreational open space. In addition to this, 10 percent of plot area shall be earmarked for amenity space which can be adjusted against the DP reservation, if any". 20. It was canvassed on behalf of Maharashtra Chamber of Housing Industry by Mr. S. Ganesh, learned Senior Counsel that DCR 38 (34) cl....
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.... prescribed in DCR 23, by stating that the recreational space under DCR 23, may be provided at the ground level, or on the open-to-sky podium. In his submission, if read as an alternative to the minimum recreational space on the ground floor, this provision will lead to the serious erosion of recreational space at the ground level, affecting the minimum necessities of life, and will therefore lead to violation of the right to life, and will have to be held as bad in law, as against the guarantee provided under Article 21 of the Constitution of India. As against that in his submission Clause (iv) can survive only if this clause is read down as inapplicable and not excluding the recreational space provided under DCR 23. In other words, it makes an additional provision for recreational space, over and above the one at the ground level, and does not in any way reduce the same. This is because the podium is basically meant to provide parking, as stated in Clause (iii). Any recreational space provided on the podium is entirely discretionary, and that being so it cannot be read to lead to a reduction in the mandatory provision under Clause (iii). 23. The UDRI was represented by learned....
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....g to increased city temperature 25. Having noted these submissions, it is seen that podium is permissible only on plots admeasuring 1500 sq. mts. or more. So this provision is not applicable to plots smaller than 1500 sq. mts. As can be seen from DCR 23 (1) (a), it speaks of a lay-out or sub-division of 'vacant land' and open spaces. The open spaces 'shall as far as possible' be provided in one place. If a lay-out or sub-division is more than 5000 sq. mts., open space can be provided in more than one place, but at least one such place 'shall be of not less than 1000 sq. mts.'. These provisions clearly show that they are mandatory. Besides under Sub-clause (f) of DCR 23 there is a requirement of keeping the recreational open space permanently open to the sky and trees are to be grown in that space as laid down, i.e. five trees per hundred square meters of the recreational space within the plot. DCR 2 (64) defines 'open space' to mean an area forming an integral part of a site left open to the sky. A 'site' is defined under DCR 2 (83) to mean a parcel or piece of land enclosed by definite boundaries. These DCR's when read together, very ....
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....l. It must be noted that the right to a clean and healthy environment is within the ambit of Article 21, as has been noted in Court on its Own Motion v. Union of India reported in: 2012 (12) SCALE 307 in the following words: The scheme under the Indian Constitution unambiguously enshrines in itself the right of a citizen to life under Article 21 of the Constitution. The right to life is a right to live with dignity, safety and in a clean environment. The right to a clean and pollution free environment, is also a right under our common-law jurisprudence, as has been held by this Court in Vellore Citizen's Welfare Forum v. Union of India and Ors. reported in: (1996) 5 SCC 647 where this Court held: The Constitutional and statutory provisions protect a persons right to fresh air, clean water and pollution free environment, but the source of the right is the inalienable common law right of a clean environment. In the same judgment the Court emphasized the importance of Sustainable Development, and the need for a balance between development and ecological considerations, in the following words: The traditional concept that development and ecology are opposed....
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.... They are also to be fought from inside the building with the help of fire safety and protection measures/installations provided in the high-rise buildings as per the building by-laws. He has pointed out the passive safety measures as well as active fire safety measures necessary for the high-rise buildings in his affidavit. Amongst the fire safety measures, he has pointed out that the width of the access road and the open space for maneuverability of fire appliances has to be adequate. 30. It is also pointed out in this affidavit that there is a State Act known as Maharashtra Fire Prevention and Life Safety Measures Act, 2006 under which the developers/society in-charge of the building have to maintain the fire prevention and life safety measures in good repair and efficient condition at all times. In paragraph 7 of his affidavit he has stated that for any high-rise and special type building, No Objection Certificate from the Chief Fire Officer is required at two stages viz. prior to the construction of the building and after the compliance of the requirement. Besides, for buildings having a height above 70 meters, there is a High Rise Technical Committee under the Chairmanship....
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....oad upto 48 tonnes. (d) These open spaces shall be free from any obstruction and shall be motor able. (2) Exits:-Every building meant for human occupancy shall be provided with exits sufficient to permit safe escape of its occupants in case of fire or other emergency for which the exits shall conform to the followings:- (i) Types:-Exits should be horizontal or vertical. A horizontal exit may be a door-way, a corridor, a passage-way to an internal or external stairway or to an adjoining building, a ramp, a verandah, or a terrace which has access to the street or to the roof of a building. A vertical exit may be a staircase or a ramp, but not a lift. (ii) General requirements.--Exits from all the parts of the building, except those not accessible for general public use, shall- (a) provide continuous egress to the exterior of the building or to an exterior open space leading to the street; (b) be so arranged that, except in a residential building, they can be reached without having to cross another occupied unit; (c) be free of obstruction; (d) be adequately illuminated; (e) be clearly visible, with the routes reaching them clearly marked and signs posted to....
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....nder DCR 33(7) (which are for the cessed building) and those under 33(10) (which are for the slum rehabilitation), if the plot of the building exceeds 600 sq. mts. and the building is having height of more than 24 meters, at least one side other than the road side shall have a clear open space of 6 meters at ground level accessible from the road side. The first proviso to Clause 1 (A) makes an exception if the building abuts another road of 6 meters or more. In that case this condition is not insisted. Thus, as can be seen, a minimum access of 6 meters to every building from two sides is insisted, i.e. from a road side and from one side within the property, or from two road sides so that the fire engine can approach the building at least from two sides. The second proviso under Clause 1 (A) however states that if the redevelopment proposal is under DCR 33(7) i.e. for reconstruction or redevelopment of cessed buildings on plots of size upto 600 sq. mts., only 1.5 meters side open space will be deemed to be adequate. This will mean a space of just about 5 feet or so, through which a fire engine can certainly not enter. 33. We asked Mr. R.P. Bhatt, learned Senior Counsel appearing ....
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....ions such as sprinklers and other fire-fighting equipments as provided under Appendix VIII inside the buildings periodically, but the department is understandably over-worked, and therefore not in a position to effectively cover all the buildings in the city. 35. Mr. Shyam Divan, learned Senior Counsel appearing for the UDRI pointed out that the present fire protection requirements contained in DCR 43(1) if strictly complied with, could be considered as adequate for mid-rise buildings and structures up to 13 storeys. However, when it comes to the high-rise buildings, the fire safety requirements are primarily compromised by relaxation in the access under DCR 17 and the side open/setback spaces between the buildings under DCR 28. He submitted that the provision contained in the second proviso of DCR 43(1)(A) could not be justified. 36. As far as the schemes under DCR 33(7) are concerned, Mr. Shyam Divan, learned Senior Counsel appearing for the UDRI has pointed out that there is already a criticism with respect to these schemes viz. that they are working more for the developers and for the private new entrants who buy the flats at higher costs, than for providing the accommoda....
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....sh the fire even in the six storeyed Secretariat building in Mumbai, which has sufficient side spaces on all sides. Not providing a minimum space of 6 meters which makes room for the fire-engine to access the building amounts to violation of the right to life and equality of the residents of these buildings, by not providing the same standard of safety to them which is available to residents of all other buildings. It is true that some of these plots under the DCR 33(7) schemes are small plots and are in congested areas. But if that is so, nothing prevents the State Government from taking over such schemes for which it can finance from the overall cess collection. In such cases, it may have to accommodate only the existing occupants. This can also be achieved by calling upon such occupants to partly contribute towards the construction cost. But human life cannot be made to suffer only on the ground that in the redevelopment scheme sufficient access cannot be provided for the fire engine to enter within the plot even from one side. 39. We are, therefore, of the view that the second proviso to DCR 43(1)(A) is discriminatory as against the occupants of the plots up to the size of 6....
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....ic situation: 41. As far as the issues No. 2 and 3 are concerned, though they are, in a way, independent issues, they are interrelated also, and therefore, we will deal with them together. These are issues requiring wider consideration and consultation amongst planners, and as far as these issues are concerned, this Court will confine itself to making certain recommendations for consideration of the planners. This is because this Court is conscious of the fact that the new development plan for the city of Mumbai is in the process of being drafted. It is for the planners to examine these issues. However, since these issues have arisen in the context of the present matter, this Court has invited the response from the Appellant-Municipal Corporation as well as the State Government. The concerned interveners have also made their submissions. We shall look into the submissions in this behalf and make certain suggestions for consideration in the light thereof. Issue No. 2-Height of buildings, vis-à-vis width of the roads: 42. DCR 31 (1) lays down that the height of a building shall not exceed one and a half times the total of the width of the street on which it abuts. Iss....
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....n height spelt out in this Regulation shall not be applicable for reconstruction and redevelopment of old buildings undertaken under Regulation 33(7), 33(8) and 33(9) of these Regulations, which are not affected by Coastal Regulation Zone Notification dated 19th February, 1991, issued by the Ministry of Environment and Forests, Government of India, and orders issued from time to time. [Provided however that restrictions on height spelt out in this Regulation shall not be applicable for construction of buildings undertaken under Regulation 33(10) and 33(14) of these Regulations for implementation of Slum Rehabilitation Scheme.] 43. As far as this issue is concerned, response was sought from the Secretary, Urban Development Department, of State of Maharashtra, and the Chief Engineer Town Planning of the Appellant. Shri Manu Kumar Srivastava, Principal Secretary, Urban Development Department, Government of Maharashtra has explained these exemptions in his affidavit. He has pointed out that these schemes under DCR 33(7), 33(8) and 33(9) seek to achieve free of cost in-situ-rehabilitation of the occupants living in old and dilapidated buildings. Therefore, to make the scheme viabl....
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....the authority and the project developer to whom relaxation is granted. He submitted that some of these buildings which were reconstructed with high FSI under DCR 33(7), (8) and (9), had been reduced to vertical slums. The developers do not bother to look into the maintenance of these schemes, the construction is poor and a large number of the occupants for whom these houses are constructed, sell them and the purpose of having the scheme, gets defeated. Issue No. 3 concerning impact of FSI on the traffic situation: 47. As far as issue No. 3 viz. impact of FSI on the traffic situation is concerned, Shri Manu Kumar Srivastava, has pointed that as per the census of 2011, 30.82 lakhs people were staying in the island city. Due to the accelerated economic growth, there is a spurt in the vehicles of the occupants, as well as, those entering the island city. In para 6.3, he has placed on record the steps taken by the State Government in this behalf. This paragraph 6.3 reads as follows: 6.3... i) Revising the captive parking requirements upwards for various categories of buildings. ii) Introducing instruments like Regulation 33(24) for creating public parking lots. iii) Ta....
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....arious suggestions. Its trustees include Mr. Charles Correa, an eminent architect and town planner, Shri Dipak Parekh an eminent economist, Shri D.M. Sukhtankar, retired Municipal Commissioner and former Secretary to Government of Maharashtra and others. This institute has made a detailed study of the problems of the city. With respect to issue No. 2, this institute has submitted as noted above, that there should not be a blanket relaxation for the high rise buildings, and it should be examined locality-wise. Absence of any check in this behalf, has resulted into very tall buildings with no open spaces on extremely narrow streets. It is often seen that whereas the ordinary FSI is 1.33, the minimum FSI available to the schemes under DCR 33(7), 33(8) and 33(9) is 2.5, and there is no upper limit. No assessment is made of the sustainable carrying capacity of the areas in which these projects are implemented. There is no transport impact assessment on the neighbourhood in such projects. A locality-wise approach is therefore required. 51. In its submissions on the issues at hand, UDRI pointed out that whereas the total open space in Mumbai is 3.8%, if we compare it with another crowd....
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....ction. Suggestions on issue Nos. 3 and 4 for consideration when the new Development Plan is drafted: 53. We have noted the submissions on both these issues, and what we find is that the exemptions from DCR 31 (1) for schemes under Section 33(7), 33(8) and 33(9), though apparently meant for laudable purpose, are very often resulting into extreme crowding, and traffic congestion. It is necessary that while granting exemptions from DCR 31(1), there must be a scheme-wise approach, and there ought to be a proper supervision of the construction. These development schemes and the additional FSI thereunder, should be examined locality-wise. The impact of such high-rise buildings on the adjoining locality as well as on the traffic, is required to be examined before granting such permission. 54. In our view, there is a need to restrict the additional pressure on existing infrastructure so that it does not affect the quality of life. The existing social infrastructure like educational institutions, open spaces, hospitals etc, and physical infrastructure like water supply and drainage is already over-burdened. Therefore, wherever possible, the State Government, the planning authority,....
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.... (1) The building proposals which are to be referred to the committee (2) The procedure to be followed by the committee (3) The points to be considered by the committee, viz., a) Architectural Points: (1) Clear width of access available. (2) Location, width & No. of staircase. (3) Natural ventilation to staircase and common lobby. (4) Whether benefit of D.C. Rule 33 (24) is availed? (5) The minimum net plot size for High Rise proposal is prescribed as 1000 Sq. Mt. and 850 Sq. Mts. for proposals under D.C.R. 33(7). (6) Depth & Nos. of the basement. (7) Area & location of the refuge floors. (8) Open spaces, podiums, etc. (9) Two wheeler & four wheeler parking provisions in the building. (10) Width of common lobby & ventilation. b) Structural and Geotechnical Points: (1) Soil Report indicating soil strata, depth of the hard rock, etc. (2) Type of foundation i.e. pile foundation or raft foundation or open foundation. (3) Design Base Report (D.B.R.) for the proposal. (4) Various type of tests carried on site i.e. wind tunnel test. (5) Gust factor & deflection. (6) Details of the rock anchors, if any provided for basement. (7....
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....) Dr. Rakesh Kumar, Director and Gr. Scientist and Head NEERI Regional Centre as the Environmental Expert. 56. It has been suggested that we appoint a new committee, though the State Government has expressed its willingness to extend the term of the present committee. Mr. Nariman has, in fact, suggested that the committee should consist of members who will play a pro-active role. Mr. Divan submitted that it should be a Development Plan over-sight committee, and it should at-least look into the grievances with respect to the schemes under 33(7), (8),(9), and (10). Mr. Joaquim Reis, learned senior counsel instructing Dr. Abhishek Singhvi, learned senior counsel appearing for the Property Redevelopers Association, suggested inclusion of an architect in the committee. Considering that the architectural points as mentioned in the municipal note, are also to be gone into by the committee, the suggestion is quite apt. He suggested the inclusion of eminent architect Mr. Charles Correa, who is associated with UDRI (and which is represented by Mr. Divan). We are, however, not including his name only for the reason that we are informed that he is a very busy architect, though the committee....
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.... learned Counsel who have assisted us in deciding the issues, and particularly Senior Counsel Mr. Nariman and Mr. Salve, who appeared for the Respondents and Appellants respectively, at the stage of the earlier order which was passed on 25.7.2013, but assisted the Court in deciding the four issues. In the circumstances we pass the following order: 60. (1) The memorandum of settlement dated 18.4.2013, concerning the Public Parking Lot (PPL) arrived at between the Appellant-Municipal Corporation of Greater Mumbai and the Respondents was taken on record, as noted in Part-I order dated 25.7.2013, in the facts and circumstances of the present case. Both the parties shall act strictly in accordance with the same. It is clarified that as held in the said order, the Municipal circular dated 22.6.2011 is not in any way held to be bad in law. (2) The four additional issues framed in Part-II of the above order are decided as follows: Issue No. (i) - The minimum recreational space as laid down under Development Control Regulation (DCR) 23, cannot be reduced on the basis of DCR 38(34). The recreational space, if any, provided on the podium as per DCR 38(34)(iv), shall be in addition....