| SooperKanoon Citation | sooperkanoon.com/1102529 |
| Court | Mumbai High Court |
| Decided On | May-13-2013 |
| Case Number | Public Interest Litigation Petition No. 43 of 2012 |
| Judge | THE HONOURABLE CHIEF JUSTICE MR. MOHIT S. SHAH & N.M. JAMDAR |
| Appellant | Janhit Manch and Another |
| Respondent | The State of Maharashtra Through the Principal Secretary and Others |
N.M. Jamdar, J.
1. Rule. Returnable forthwith. Heard finally by consent.
2. This Petition, purportedly filed for public interest, seeks to question the legality of a 56 storied residential building known as âPalais Royale' and a public parking lot adjacent to it, constructed by Respondent no.5, situated at Worli, Mumbai. According to the Petitioners, the structures are erected in violation of planning norms, and use of discretionary power by the Municipal Commissioner to grant concessions to the respondent no.5, is excessive and bad in law.
3. The challenge is to the approvals and commencement certificates in respect of the residential building and Public Parking Lot (hereinafter referred to as âPPLâ). A writ of mandamus is also sought for demolition of additional floors of the Residential Building.
4. The Petitioners have filed the petition in the public interest claiming that the Petitioner No.1 is a non-governmental organization working for the cause of good governance in the city of Mumbai dealing with various issues as a non-political forum. Petitioner No.2 is the Honorary Secretary of the Petitioner No. 1. The Respondent No. 1 is the State of Maharashtra, through Principal Secretary, Urban Development Department (hereinafter referred to as âthe State). The Respondent No.2 is the Municipal Corporation of Greater Mumbai (hereinafter referred to as âthe Corporationâ) which is also a planning authority for city of Mumbai. Respondent No. 3 is the Municipal Commissioner (hereinafter referred to as âthe Commissionerâ) and Respondent No.4 is the Deputy Chief Engineer of the Respondent No. 2-Corporation. Respondent no. 5 is the Developer of the two structures in question.
5. As per the property records, the Respondent No. 5 is the owner of the property bearing Cadastral Survey Nos. 288, 289, 309, 310, 1/1540, 2/1540, 3/1540, 1547, 1548, 1549, 1/1539 and 1550 of Lower Parel Division at Ganpatrao Kadam Marg, Worli. The larger property is subdivided in 9 sub plots in the following manner: No. 1- a tenanted building; No.2- a residential building known as Ansal Heights; No.3-Municipal Primary School, No. 4- play ground; No.5-is in dispute; No. 7 and 8 are with the Maharashtra Housing And Area Development Authority (MHADA) and the Corporation. No. 5B-6 admeasuring 28,409.57 sq. mtrs. is subject matter of the petition as, it is on this plot that the Residential Building and PPL are being constructed.
6. As per the sanctioned layout dated 24th May 2005, a 56 storied residential building known as Palais Royale and PPL are being constructed on the subdivided plot No. 5B+6. The Petitioners have questioned the legality of the said two structures.
7. On 24th January 2005, the architect of the Respondent no. 5 submitted a building proposal along with plans to the office of the Corporation. On 24th February 2005 a commencement certificate was granted to Respondent no. 5 for the proposed commercial building and for car sales and service centers.
Thereafter, plans were amended from time to time and lastly proposing a residential building. On 20th August 2010 and 8th February 2011, the plans were approved for construction of a PPL with its potential available under Regulation 33(24) of the Development Control Regulations (referred to as DCR) as applicable in the city of Mumbai. Plans for residential building were also approved. They were as under.
a) Residential building: 2 Basements + lower ground + entrance level + parking levels + amenity levels + Girder + Service Floor + Stilt/refuge +13th to 54th floors + 55 and 56 (AC Plant) + terrace.
b) Public Parking Lot: 3 basements + lower ground + stilt + 15 floors.
8. On 30th December 2006, the Chief Fire Officer granted a Certificate which accorded no objection for refuge area and passages and area around periphery of habitable floors, in addition to regular refuge floors to be provided at various floors. The objection certificate issued by the Chief Fire Officer contained certain directions as regards the refuge area.
9. On 6 August 2010 , the Chief Engineer of the Corporation issued a Letter of Intent in favour of the respondent no.5 in respect of the PPL. In the Letter of Intent, it was informed that the State Government had accorded approval in principle for construction of multi storied PPL under DCR 33(4) for accommodating 900 public parking spaces. The Letter of Intent specified certain conditions upon which it was issued. The condition no. 13 of the letter of intent stated that conditions prescribed by the Committee constituted for that purpose and the Corporation should be complied with. The commencement certificate up to plinth level was issued on 1st October 2010.
10. The plans for three level basement + ground + 15 floors of the public car parking were approved and Intimation of Disapproval (IOD) was also issued on 20 August 2010. On 22nd June 2011, certain general directions came to be issued to restrict the public parking lots under DCR 33(24) only up to 4 floors in the city of Mumbai. These directions were subject matter of challenge in several petitions and the Division Bench of this Court directed the State Government and Municipal Corporation not to act on the basis of the Circular in respect of the petitioners therein.
11. On 30th October 2010, a Concession Report was prepared by the Assistant Engineer (Building and Planning Department of the Corporation). In the Concession Report it was stated that the architect proposed amended plans for residential building to utilize the additional FSI as available as per DCR 33(24). The Concession Report sought approval of the Corporation to allow additional FSI of 31002.90 sq.mtrs. of PPL admeasuring 62005.81 sq.mtrs. as per DCR 33(24). Approval was also sought to allow additional typical sky apartment along with elevation features. It was also requested to allow additional areas of staircase, lift, lobby and other facilities free of FSI by charging premium on habitable floors as per DCR 35(2)(c) and DCR 35(2) (m). The approval was sought for additional balcony enclosure by charging enclosure fees. Primarily the Concession Report sought approval of the Commissioner as under:
â(i) To continue all the concessions granted earlier for the proposed building under reference by the then Hon. M.C. In order to maintain the continuity of elevation of the
proposed building.
(ii) To allow additional F.S.I. Of Public Parking Lot as per D.C. Regn. 33(24) of D.C.Regn.1991 as per approval of High Power Committee, Govt. Order and LOI u/No.CHE/387/MC/ Rds.and Traffic dated 6.8.2010 as explained in Point No. 1 as at Pg.N-22 to N-23.
(iii) To allow additional typical sky apartment floors which were approved earlier the then Hon. M.C., in lieu of additional F.S.I. As per D.C. Regn. 33(34), as explained inPoint No.2 as at Pg.N-23
(iv) To allow additional area of stair case, lift, lobby and cut off passages of habitable floors free of F.S.I. By charging premium as explained in Point No. 3 as at Page No. N-23 to N-24.â
The Concession Report was endorsed by the concerned officers of the Corporation and it was granted by the Commissioner.
12. It appears that on 7th May 2011, a letter was received by the Corporation from the Respondent No. 5 in which the Respondent No. 5 informed the Corporation that all conditions of IOD as well as amended plans have been complied with and the Respondent no. 5 completed work unto plinth level as per the approved plan. The Respondent no. 5 called upon the Corporation to check the plinth and grant further commencement certificate.
13. On 16th July 2011, a notice under 354(A) of the Mumbai Municipal Corporation Act (MMC Act) was issued to the respondent no.5 by the Corporation. The schedule to notice specified in the notice was issued for misrepresentation while submitting the plans by way of showing amalgamation of leasehold and free hold plots. On 11th November 2011, the notice dated 16th July 2011 was withdrawn by the Corporation.
14. The Corporation carried out an inventory on 22nd July 2011. In the inventory it was noted that the work of residential tower was carried out up to 180 meters (36 floors) within the commencement certificate granted on 6th July 2010 and the work of PPL was in progress up to plinth level. On 11th November 2011 another inventory was carried out wherein it was recorded that the work of residential building was up to 180 meters and the work of PPL was up to plinth level.
15. On 29th November 2011, the Corporation issued a notice to the Respondent No. 5 under Section 51 of the Maharashtra Regional and Town Planning Act (MRTP Act). The notice stated that a circular modifying the policy regarding public parking lots in the city is issued on 22nd June 2011 prescribing certain conditions. It was stated that as per the Circular, the height of PPL would be limited to ground + 4 floors and 2 basements. The notice called upon the Respondent no.5 not carry on further constructions and respondent no.5 was directed to show cause as to why the commencement certificate issued on 10th October 2010 should not be revoked or modified as the Respondent no. 5 had not carried out the construction beyond plinth.
16. On 14th December 2011 the Respondent no.5 replied to the notice dated 29th November 2011. The Respondent no. 5 stated that section 51 of the MRTP Act was not applicable to the facts of the case. The Respondent no. 5 placed on record the various steps taken by the Respondent no. 5 for construction of the PPL. The Respondent no.5 pointed out that they had engaged services of structural engineers, architect, consultants etc. And that they had invested substantially and created huge infrastructure. It was pointed out that more than 600 workers were employed and contracts were awarded for carrying out ancillary work. It was submitted that pursuant to the Commencement Certificate, the Respondent no. 5 had substantially altered their position and had commenced construction not only of the PPL but of the main residential building on the basis of incentive FSI. The Respondent no. 5 also referred to the affidavit filed by the Deputy Director of Town Planning on 1 July 2011 in Writ Petitions on the issue pending in this Court. The Respondent no. 5 contended that the provisions of DCR 33(24) could not be modified by a mere letter.
17. It appears that several petitions were filed in this Court, challenging the circular dated 22nd June 2011. The petitions were disposed of by directing the Corporation to consider the plans submitted by Petitioners therein ignoring the circular dated 22nd June 2011. Copies of orders passed in these petitions have been placed on record.
18. On 19th December 2011 a notice under section 53 (1) of the MRTP Act was issued by the Corporation to the Respondent no. 5. The notice stated that the work of construction of PPL from 1st to 6th floor (entire) and 7th to 9th floor (part) which was beyond commencement certificate dated 1st October 2010 was illegal being without permission.
19. The Respondent no.5 filed a Civil Suit bearing No. 2492 of 2011 in the City Civil Court, Mumbai. In the said suit the Respondent no. 5 challenged the notices issued and the Respondent no.5 contended that it had carried out construction as per sanctioned plan and construction has reached up to 9 floors.
The Respondent no. 5 contended that it had applied for commencement certificate on 7th May 2011 which was neither granted or refused and therefore deemed to have been granted. The learned City Civil Court Judge, by his order dated 24th December 2011 granted ad interim order by observing as under:
âI have heard Ld. Adv. Nandnwar for MMC deft. He submitted that Plaintiff carried on unauthorized work beyond C. C. It is submitted that Plaintiff has to take commencement certificate at every phase. Plaintiff has undertaken that they would not carry construction in contravention of sanctioned plan. I have carefully perused impugned notice. The Plaintiff has allotted plot to give parking to public in some floors. Government approved their plan under Government's scheme. IOD is also issued. The Plaintiff has submitted his application on 07/05/2011 for CC at plinth level but it is neither rejected nor approved. The Plaintiff has carried construction upto 10th floor. It is not described how the work in progress of Plaintiff is unlawful. The work of construction is in progress. The Municipal Commissioner has not pass any order on the Application of Plaintiff dated 07/05/11. So Plaintiff has prima facie case to seek ad-interim relief. The Ld. Adv. For deft. Sought time to take detail reply. So, I find it just to pass following order.
Order
1) Ad interim relief granted.
2) Deft/MMC is restrained from taking action in view of impugned notice.
3) MMC to file reply by 10/01/2012.
4) Plaintiff shall communicate this order to office of concerned department.
Authenticated copy be given to Plaintiff.â
20. The above Notice of Motion came up for further consideration on 20th April 2012 before the learned City Civil Court, when the Advocate for the Corporation filed written statement, and it was agreed that the suit itself be finally argued. Simultaneously hearing on notice under section 51 of the MRTP Act was also concluded and the matter is pending with the Corporation.
21. The Petition is moved at this stage to impugn and stay the construction of the residential building.
22. Before proceeding with the examination of the contentions raised by the Petitioners, the preliminary objection raised by the Respondent no. 5 regarding locus of the Petitioners to move this petition in public interest, needs to be examined. The Respondent no. 5 contended that it owns a large property and the present development is being carried out only on one sub plot. It is submitted that as regards the adjoining sub plot ,the Respondent No.5 is involved in a litigation with M/s Kalpataru Properties Pvt. Ltd. ,who has set up the present Petitioners. The Respondent no. 5 further contended that the Chairman of the Petitioner No.1 Mr. Rayani is himself a developer and the petition is not in public interest, but for settling a private dispute. The Respondent no. 5 in its affidavit has given particulars of its litigations with M/s Kalpataru Properties Pvt. Ltd. The Petitioners have filed a rejoinder and have denied the allegation. The Petitioners in the petition as well as in the rejoinder have stated that Petitioner no.1 is a leading non-governmental organization and has taken steps to stop several illegal constructions in the City of Mumbai. Be that as it may, we do not think that the present public interest litigation can be dismissed at the threshold only the ground that the Petitioners do not have locus to question decisions and actions of the Corporation. It is not the cases of the Respondent no. 5 that Petitioner are directly involved in litigation against the Respondent no. 5. Several issues are raised in this petition, especially regarding the exercise of discretionary power by the Commissioner. Such legal issues concern several cases of multi storied building in City of Mumbai. It cannot be said that there is no public interest involved in adjudication of these issues. We therefore overrule the preliminary objection raised by the Respondent no. 5 and proceed to examine the challenge on merits.
23. Since the case involves consideration of several provisions of the relevant Acts and Regulations and have been referred to repeated in this judgment it will be useful to reproduce the relevant parts of the provisions. The subject matter of the petition is governed by the provision of the MMC Act, MRTP Act, 1966 and DCR. The relevant provisions of respective enactments are as under:
A) Relevant provisions of MRTP Act.
44. Application for permission for development:- 1[(1)
Except as otherwise provided by rules made in this behalf, any person not being Central or State Government or local authority intending to carry out any development on any land shall make in application writing to the Planning Authority for permission in such form and containing such particulars and accompanied by such documents, as may be prescribed:
45. Grant or refusal of permission:- (1) On receipt of an application under section 44 the Planning Authority may, subject to the provisions of this Act, by order in writing-
(i) grant the permission, unconditionally;
(ii) grant the permission, subject to such general or special conditions as it may impose with the previous approval of the State Government; or
(iii) refuse the permission.
(2) Any permission granted under sub-section (1) with or without conditions shall be contained in a commencement certificate in the prescribed form.
46. Provisions of Development plan to be considered before granting permission:-
The Planning Authority in considering application for permission shall have due regard to the provisions of any draft or final plan or proposals published by means of notice submitted or sanctioned under this Act.
44. Application for permission for development:-
(1) Except as otherwise provided by rules made in this behalf, any person not being Central or State Government or local authority intending to carry out any development on any land shall make in application writing to the Planning Authority for permission in such form and containing such particulars and accompanied by such documents, as may be prescribed:
45. Grant or refusal of permission:- (1) On receipt of an application under section 44 the Planning Authority may, subject to the provisions of this Act, by order in writing-
(i) grant the permission, unconditionally;
(ii) grant the permission, subject to such general or special conditions as it may impose with the previous approval of the State Government; or
(iii) refuse the permission.
(2) Any permission granted under sub-section (1) with or without conditions shall be contained in a commencement certificate in the prescribed form
46. Provisions of Development plan to be considered before granting permission:-
The Planning Authority in considering application for permission shall have due regard to the provisions of any draft or final plan or proposals published by means of notice submitted or sanctioned under this Act.
51. Power of revocation and modification of permission to development:-
(1) If it appears to a Planning Authority that it is expedient, having regard to the Development plan prepared or under preparation that any permission to develop land granted 1[or deemed to be granted] under this Act or any other law, should be revoked or modified, the Planning Authority may, after giving the person concerned an opportunity of being heard against such revocation or modification, by order, revoke or modify the permission to such extent as appears to it to be necessary:
Provided that-
(a) where the development relates to the carrying out of any building or other operation, no such order shall affect such of the operations as have been previously carried out; or shall be passed after these operations have substantially progressed or have been completed;
(b) where the development relates to a change of use of land, no such order shall be passed at any time after change has taken place.
(2) Where permission is revoked or modified by an order made under sub-section (1) and any owner claims within the time and in the manner prescribed, compensation for the expenditure incurred in carrying out the development in accordance with such permission which has been rendered abortive by the revocation or modification, the Planning Authority shall, after giving the owner reasonable opportunity of being heard by the Town Planning Officer, and after considering his report, assess and offer, subject to the provisions of section 19, such compensation to the owner as it thinks fit.
(3) If the owner does not accept the compensation and gives notice, within such time as may be prescribed, of his refusal to accept, the Planning Authority shall refer the matter for the adjudication of the Court, and the decision of the Court shall be final and be binding on the owner and Planning Authority.
52. Penalty for unauthorised development or for use otherwise than in conformity with Development plan:-
(1) Any person who, whether at his own instance or at the instance of any other person commences, undertakes or carries out development or institutes, or changes the use of any land-
(a) without permission required under this Act; or
(b) which is not in accordance with any permission granted or in contravention of any condition subject to which such permission has been granted;
(c) after the permission for development has been duly revoked; or
(d) in contravention of any permission which has been duly modified shall, on conviction,[be punished with imprisonment for a term [which shall not be less than one month but which may extend to three years and with fine which shall not be less than two thousand rupees but which may extend to five thousand rupees, and in the case of a continuing offence with a further daily fine which may extend to two hundred rupees] for every day during which the offence continues after conviction for the first commission of the offence.
(2) Any person who continues to use or allows the use of any land or building in contravention of the provisions of a Development plan without being allowed to do so under section 45 or 47, or where the continuance of such use has been allowed under that section continues such use after the period for which the use has been allowed or without complying with the terms and conditions under which the continuance of such use is allowed, shall, on conviction be punished 4[with fine which may extend to five thousand rupees;] and in the case of a continuing offence, with a further fine which may extend to one hundred rupees for every day during which such offence continues after conviction for the first commission of the offence.
53. Power to require removal of unauthorized development:-
(1) Where any development of land has been carried out as indicated in sub-section (1) of section 52, the Planning Authority may, subject to the provisions of this section, serve on the owner a notice requiring him, within such period, being not less than one month, as may be specified, therein after the service or the notice, to take such steps as may be specified in the notice,
(a) in cases specified in clause (a) or (c) of sub-section (1) of section 52, to restore the land to its condition existing before the said development took place.
(b) in cases prescribed in clauses (b) or (d) of sub-section (1) of section 52, to secure compliance with the conditions or with the permission as modified:
Provided that, where the notice requires the discontinuance of any use of land, the Planning Authority shall serve a notice on the occupier also.
(2) In particular, such notice may, for purposes of subsection
(1), require-
(a) the demolition or alteration of any building or works;
(b) the carrying out on land of any building or other operations; or
(c) the discontinuance of any use of land.
(3) Any person aggrieved by such notice may, within the period specified in the notice and in the manner prescribed, apply for permission under section 44 for retention on the land of any building or works or for the continuance of any use of the land, to which the notice relates, and pending the final determination or withdrawal of the application, the mere notice itself shall not affect the retention of buildings or works or the continuance of such use.
(4) The foregoing provisions of this Chapter shall, so far as may be applicable apply to an application made under subsection (2).
(5) If the permission applied for is granted, the notice shall stand withdrawn; but if the permission applied for is not granted, the notice shall stand; or if such permission is granted for the retention only of some buildings, or works, or for the continuance of use of only a part of the land, the notice shall stand withdrawn as respects such buildings or works or such part of the land, but shall stand as respects other buildings or works or other part of the land, as the case may be and thereupon, the owner shall be required to take steps specified in the notice under sub-section (1) as respects such other buildings, works or part of the land.
(6) If within the period specified in the notice or within the same period after the disposal of the application under subsection (4), the notice or so much of it as stands is not complied with, the planning Authority may:
a) prosecute the owner for not complying with the notice; and where the notice requires the discontinuance of any use of land any other person also who uses the land or causes or permits the land to be used in contravention of the notice; and
(b) where the notice requires the demolition or alteration of any building or works carrying out of any building or other operations, itself cause the restoration of the land to its conditions before the development took place and secure compliance with the conditions of the permission or with the permission as modified by taking such steps as the Planning Authority may consider necessary including demolition or alteration of any building or works or carrying out of any building or other operations; and recover the amount of any expenses incurred by it in this behalf from the owner as arrears of land revenue.
(7) Any person prosecuted under clause (a) of sub-section (6) shall, on conviction, be punished with imprisonment for a term (which shall not be less than one month but which may extend to three years and with fine which shall not be less than two thousand rupees but which may extend to five thousand rupees, and in the case of a continuing offence with a further daily fine which may extend to two hundred rupees) for every day during which such offence continues after conviction for the first commission of the offence.
B). Relevant provisions of the DCR DCR 2(11)
2 (11) "Building " means a structure, constructed with any materials whatsoever for any purpose, whether used for human habitation or not, and includes-
(i) Foundation, plinth, walls, floors, roofs, chimneys, plumbing and building services, fixed platforms;
DCR 5(5)
5. Procedure for obtaining Development Permission and
Commencement Certificate.-
(5) Processing of the development permission application.
(ii) Fire brigade scrutiny.-The plans for all multi-storied, high rise and special buildings shall also be subject to the scrutiny of the Chief Fire Officer, and development permission shall by given be the Commissioner only after the clearance by the Chief Fire Officer.
DCR 6(4)
6. Procedure during construction.-
(4) Checking of plinth columns upto plinth level :-
 The owner through his licensed surveyor, engineer, structural engineer or supervisor or his architect shall give notice in the form of Appendix XVI to the Commissioner on completion of work upto plinth level to enable the Commissioner to ensure that the work conforms to the sanctioned plans. The Commissioner may inspect the work jointly with the licensed technical personal or architect within fifteen days from the receipt of such notice and either give or refuse permission for further construction as per the sanctioned plans in the form in Appendix XVII. If within this period, the permission is not refused, it shall be deemed to have been given provided the work is carried out according to the sanctioned plans.
DCR 30(e)
30. Features permitted in open spaces:-
Certain features may be permitted in the prescribed open spaces as enumerated below:â
(e) A chajja, cornice, weather shade, sun-breaker and other ornamental projection projecting not more than 1.2 m. from the face of the building. No chajja, cornice, weather shade, sun-breaker or other ornamental projection, etc. shall be permissible, which will-reduce the width of the required open space to less than 2.5 m.
DCR 33(24)
33. Additional Floor Space Index which may be allowed in certain categories:-
(24) [Development of Multi storied/Parking lots: - With previous approval of Govt., for development of multistoried/parking lots on any plot abutting the roads and/or stretches of road, additional FSI, as specified below on built up parking area, created and handed over to MCGM free of cost, shall be allowed on the land belonging to the private owners, which is not reserved for any public purposes.
This will be subject to following conditions :
i) The minimum area of plot shall be 1000 sq.mt. in Island City and 2000 sq.mt. In suburb and extended suburbs of Gr. Mumbai. The minimum number of Motor Vehicle public parking spaces provided shall not be less than 50 subject to minimum parking space of 700 sq.mt. The location of parking spaces can be in basement, ground floor or upper floors, with access through ramps / lift or combination of both subject to clearance from Chief Fire Officer with special emphasis on fire hazard.
ii) A Committee under the Chairmanship of Municipal Commissioner, MCGM shall earmark / select the plots for public parking, on the basis of their suitability and seek Government's approval for it. The Committee shall comprise of (I) Joint Commissioner of Police (Traffic) or it's representative (ii) Metropolitan Commissioner, Mumbai Metropolitan Region Development Authority or it's representative (iii) Dy. Director of Town Planning, Gr. Mumbai (iv) Chief Engineer (Road, Municipal Corporation of Gr. Mumbai (Member Secretary).
iii) The incentive FSI given on this account will be over and above the FSI permissible under any other provisions of DCR. This incentive FSI shall be allowed to be used on the same plot in conformity with DCR/DP, within the overall cap/limit of total maximum permissible FSI as given (vii) below.
iv) The proposed development shall be further subject to such conditions as mentioned / prescribed by the Municipal Commissioner.
v) Concerned land owner/development/society/company shall not be allowed to operate the public parking.
vi) Area covered under parking shall not be counted towards FSI consumption.
vii) Additional FSI on built up parking area and total permissible FSI including additional FSI shall be as follows.
| Sr.No. | Location | PermissibleadditionalFSI on built up parking area. | Total maximum permissible FSI including additional FSI. |
| 1 | Within the area of 500 mt. From precincts of Railway Stations, S.T. Bus Depots, Water Jetties and existing Govt. / Semi Govt. and Corporation Offices, Tourist Places identified by Tourism Department, important Religious Places of Worship (Registered under Charity Act), etc having inadequate Public Parking facilities | 50% | a) Island City = 4.00b) Suburb and = 3.00Extended Suburbs Independent as well as composite buildings for public parking. |
| 2 | Remaining area of Gr.Mumbai. | 40% | a) Island City :i)Independent = 3.50Building . ii) Composite = 3.00 Building. For public parking. b) Suburb and Ext. Suburbs : i)Independent = 3.00 Building. ii) Composite = 2.50 Building. For public parking |
(2) The following shall not be counted in FSI:
(iv) Areas covered by staircases/lift wells, including lobbies as specified, excluding those covered under DC Regulation (35(2)(iii) with special written permission of the Commissioner subject to payment of premium; Provided that in the words of the Island city such exclusion from FSI computation will be available in respect of building to be constructed or reconstructed only, the same being not available for existing building or proposals decided by the corporation prior to the coming into force of these Regulations.
Provided further that where the permissible FSI has not been exhausted in the case of existing buildings and cases decided by the Corporation prior to coming into force of these Regulations, the exclusion from FSI computation as in these Regulations will be available for construction of balance potential.
Provided further that the reconstruction scheme under Development control Regulation No. 33(6) Such exclusion will be permissible as per guidelines hereunder:
(i) While working out total existing built up area, the built-up area of existing staircase will be taken into account.
(ii) The premium for the area of the staircase and lift-well will be recovered after working out the area of the staircase and lift-well in the proposed building minus area of the existing staircase, lift-well, etc. if any.
DCR 38(4)
38. Requirements of parts of buildings:-
(4) Bathroom and water closets:âBathrooms and water closets shall be provided at the following scaleâ
(i)Size:â
(a) General:â
The area and floor dimension of a bathroom or water closet shall not be less than the values given below:
| Â | Type | Area(in sq.m.) | Side(in sq.m.) |
| (i) | Bathroom | 1.5 | 1.1 |
| (ii) | Water Closure (WC) | 1.1 | 0.9 |
| (iii) | Combined bathroomand Water Closure(W.C.) | 2.2. | 1.1. |
(ii) High Density Housing and Low Cost Housing:â
The minimum dimensions of an independent bathroom shall be 1.3 m. x 1.1 m. and for combined bathroom and water closet (W.C.) the size shall be 2 sq.m. with minimum width of 1. 1 m.
(iii) Height:âThe height of a bathroom or a water closet measured from the surface of the floor to the lowest point of the ceiling (bottom of slab) shall be not less than 2.2 m.
(iv) Other Requirements:â
(a) Every bathroom or water closet shall be so situated that at least one of its walls shall abut on to an exterior open space or an interior/exterior chowk of the size specified in clause (a) of sub- regulation (3) of Regulation 29 or a ventilation shaft of the size specified in sub-regulation (2) of Regulation 42 with the openings (windows, ventilators, louvers) not less than 0.3 sq.m. in area or 0.3 m. in width.
â¦â¦.
DCR 44 (5)
Regulation 44: Requirements of individual exits at each floor.-
5. Fire escape or external stairs :-
Multi-storeyed, high rise and special buildings shall be provided with fire escape stairs, which will be free of F.S.I., and they should conform to the following :-
(a) They shall not be taken into account in calculating the evacuation time of a building.
(b) All of them shall be directly connected to the ground.
(c) Entrance to them shall be separate and remote from the internal staircase.
(d) routes to the fire escape shall be free of obstruction at all times, except for a doorway leading to the fire escape, which shall have the required fire resistance.
(e) They shall be constructed of non-combustible materials.
(f) They shall have a straight flight not less than 75 cm. wide with 15 cm. treads and risers. not more than 19 cm. The number of risers shall be limited to 16 per flight.
(g) They shall be provided with handrails at a height not less than 90 cm. above the tread.
Regulation 44(7): Refuge Area:
(a) In multi-storied and high rise buildings, at least one refuge area shall be provided on the floor immediately above 24 m.
(b) It shall be on the external walls as a cantilevered projection or in any other manner.
(c) It shall have a minimum area of 15 sq.m. and a minimum width of 3.0 m.
(d) It shall be free of F.S.I.â
Regulation 64 : Discretionary powers:-
(a) in conformity with the intent and spirit of these Regulations, the Commissioner may:
(i) decide on matters where it is alleged that there is an error in any order, requirement, decision, determination made by any municipal officer under delegation of powers in regulation or interpretation in the application of these regulations:
(ii) interpret the provisions of these Regulations where a street layout actually on the ground varies from the street layout shown on the development plan;
(iii) modify the limit of a zone where the boundary line of the zone divides a plot with the previous approval of government; and
(iv) authorise erection of a building or the use of premises for a public service undertaking for public utility purpose only where he finds such an authorisation to be reasonably necessary for the public convenience and welfare, even if it is not permitted in any land use classification.
b) In specific cases where a clearly demonstrable hardship is caused, the Commissioner may for reasons to be recorded in writing, by special permission permit any of the dimensions prescribed by these Regulation to be modified, except those relating to floor space index unless otherwise permitted under these Regulations, provided that the relaxation will not affect the health, safety, fire safety, structural safety and public safety of the inhabitants of the building and the neighbourhood."
C). Relevant Provisions of the MMC Act:
Section 354A. Power of (Designated Officer) to stop erection of building or work commenced or carried on unlawfully.
(1) If the Designated officer is satisfied that the erection of any building or the execution of any such work as is described in Section 342 has been unlawfully commenced or is being unlawfully carried on upon any premises, the Designated Officer may, by written notice, require the persons erecting such building or executing such work to stop such erection or work forthwith.
(2) If the erection of the building or execution of the work is not stopped as required by the Designated Officer, or permission approved by the competent authority in favour of the erection of the building or execution of the work is not produced within twenty-four hours from the service of notice refereed to in sub Section (1), the Designated Officer may, without further notice, remove or pull down the building or work and the expenses thereof shall be paid by the said person or owner of the building or work. The Designated Officer may also direct that any person directing or carrying out such erection or work shall be removed by any police officer from the place where the building is being erected or the work is being executed.
(3) In addition to the action that the Designated Officer may take under sub Section (2), he may, without further notice, cause to be removed any material, machinery equipments, services or articles used in the process of erection of the building or execution of such work.
(4) If the expenses incurred by the Designated Officer may take under sub-section (2) and (3) are not paid wthin the month from the date of demand, such sum as remains unpaid shall be treated, as arrears of property tax and the procedure prescribed under this Act for recovery of arrears of property tax shall, mutatis mutandis, apply to the recovery of such unpaid sum.
24. As far as the pleadings of the parties are concerned, the Petitioners have enumerated the grounds of challenge in the
Petition, thereafter the Petitioners have filed an affidavit in rejoinder on 2 May 2012 and an additional affidavit in rejoinder on 20th June 2014 and further additional affidavit on 5th October 2012 and written submissions. Respondent no. 5 has filed replies on 4th April 2012 and 4th October 2012, and has also filed written submissions on record. The Corporation had initially filed an affidavit in reply on 4th May 2012. Thereafter additional affidavits have been filed on behalf of the Corporation on 23rd July 2012 and 18th September, 2012. The parties have submitted compilation of documents including charts as regards the FSI calculations. The Petitioners and the Respondent no. 5 have also submitted compilation of judgments on which they seek to rely upon.
25. We have heard Mr. Navroze Seervai, Senior Advocate for the Petitioners, Dr. Milind Sathe, Senior Advocate for Respondent No.5, learned counsel Dr. Birendra Saraf, learned counsel for the Corporation and Mr. G.W. Mattos, learned AGP for the State.
26. The submissions and the challenge of the Petitioners can be broadly categorized under following heads.
(a) PPL and stop work notices;
(b) Main residential building and the commencement certificates
(c) Refuge area/fire facilities;
(d) Compensation for set back area.
(e) Height of habitable floors.
(f) Passages at manor level.
(g) Service floors
(h) Amenity floor
(i) FSI of duplex floors
(j) Other issues such as servant toilets, structural columns, toilets at duplex level, flower beds.
27. Since the learned counsels have advanced arguments addressing these grounds, it will be useful if each of these above grounds are taken up for consideration in the above mentioned order.
28. PPL and stop work notices.
(a) A letter of intent was issued to the Respondent no. 5 on 6th August 2010 to develop a PPL to accommodate 900 parking spaces under DCR 33(24). The plan submitted by Respondent no. 5 were approved on 20th August 2010 for three basements + ground + 15 story car park having an excess of 62000 sq. mtrs.
(b) The arguments advanced by the Petitioners in respect of PPL is primarily on the ground that since the commencement certificate was granted only up to plinth level, no construction could have been carried on beyond the plinth level. It is also submitted that unauthorized work in contravention of the stop work notices has been carried out and the construction of PPL is illegally carried out only for gaining incentive FSI.
(c) Learned counsel for the Petitioners submitted that the commencement certificate was granted in respect of the PPL up to plinth level only and no further commencement certificate was issued. It is submitted that since the commencement certificate was issued only up to plinth level no construction could have been carried out beyond the plinth. The learned counsel for the Petitioners submitted that the case of the Respondent no. 5 that it had deemed permission in respect of the PPL on 7th May 2011 is not borne out by the record. The learned counsel submitted that on 22nd July 2011, when inspection of construction was carried out, the PPL was only up to plinth. It was contended that when a notice was issued on 29th November 2011, the Respondent no. 5 in the reply did not deny that construction was not carried out beyond plinth. It was further urged that in the suit filed by Respondent no. 5 the Corporation did not take steps to get the ad interim stay vacated.
(d) The learned counsel for the Petitioners urged that circular dated 22nd June 2011 regarding the height of PPL was not merely an executive circular but was issued pursuant to Clause 4 of DCR 33(24). The notice issued to Respondent no. 5 based on the circular was not challenged by the Respondent no. 5 in any court of law.
(e) It was also urged on behalf of the Petitioners that whatever work of PPL that was carried out was in violation of the stop work notice and a benefit arising from such work cannot accrue to Respondent no.5. It was urged that there was no substantial progress in the construction so as to enable the Respondent no. 5 to take benefit of proviso (a) of section 51 of the MRTP Act.
(f) It was urged on behalf of the Respondent No. 5 that the rights to construct the PPL emanated not from the commencement certificate but from the principal approval granted by the State Government, which permission validly subsisted with the Respondent No.5. It was contended that after obtaining the principal approval from the State Government under DCR 33(24), the role of the Respondent No.2 was confined to being supervisory and ministerial in nature and the commencement certificate was limited to ensuring compliance with the approved plans from where the right to construct accrued to the Respondent No. 5. It was further contended on behalf of the Respondent No. 5 that no substantive rights accrue from a commencement certificate, and its issuance is merely a procedural to ensure that construction is carried out in accordance with the approved plans.
(g) The learned counsel for the Respondent no. 5 submitted that the work of PPL is carried out as per the original approved plans and original commencement certificate dated 1st October 2010. The learned counsel submitted that the Corporation has not denied that the letter of 7th May 2011 was received and it is not denied that no decision thereon was taken. The learned counsel submitted that there was no stop work notice for the PPL till 14th December 2011 and which notice was stayed by the City civil Court. The learned counsel further submitted that the inventories were not signed by Respondent no. 5 and do not depict the correct state of affairs. It is further urged that the inventories were in respect of stop work notice issued to residential building.
(h) The learned counsel for the Respondent no. 5 submitted that once the work had substantially progressed, Section 51 of the MRTP Act cannot be invoked. A decision of this Court in the case of Kohinoor CTNL Infrastructure Company Private Limited and anr. Vs. The Municipal Corporation of Greater Mumbai and ors. (Writ Petition 143 of 2012 decided on 9th July 2012) was relied upon.. The learned counsel submitted that the grant of permission under DCR 33(24) stipulate that incentive FSI will be available and the PPL has been completed and therefore the Respondent no.5 is entitled to incentive FSI on the basis of plans approved for residential buildings.
(i) The Corporation has filed three affidavits. The Corporation has contended that the it had issued notice under section 51 of the Act to the Respondent no.5 in view of Circular dated 22nd February 2011 and reply has been filed to the said notice. It is also stated that the stop work notice under Section 354(A) of the MMC Act was issued and the Respondent No. 5 has instituted a civil suit in which an order of injunction has been passed. The Corporation has stated that the question as to whether there is any deemed conveyance is under consideration of the civil court. The Corporation submitted that against the decision given by the Division Bench of this Court in the case Kohinoor CTNL Infrastructure Company Private Limited (supra) on 9th July 2012, the Corporation has filed special leave petition which is pending in the Apex Court.
(j) While considering the rival submissions it has to be kept in mind that we are considering a public interest litigation. The construction in question is of a public parking lot is ultimately a public amenity. In a city like Mumbai need for public parking cannot be emphasized enough. The present PPL assures 900 parking places. It is in this backdrop that we have to consider the submissions made by the Petitioners made in public interest. It also needs to be considered as to whether the Respondent no. 5, who has constructed the PPL which is to be handed to the Corporation for benefit of general public, should be deprived of the incentive FSI.
(k) The Corporation has accepted the factual position in the affidavit dated 4th May 2012 that the construction of PPL has substantially progressed and it is near completion. The 900 parking lots meant for use of general public are thus nearly ready for public use. The Petitioners have primarily relied upon inventory reports and stop work notices issued by the Corporation to contend that the construction of the PPL is illegal. It is to be noted that the inventories which were carried at have not been signed by Respondent no. 5. If the entire case is sought to be built on the inventory reports then such reports need to be unquestionable documents. The inventory reports, on the face of it do not show that they have been signed by the Respondent no.5. As far as the stop work notice is concerned, Corporation has itself admitted that the stop work notice dated 16th July 2011 was not in respect of construction of PPL.
(l) The Respondent no. 5 has contended that it had submitted a letter on 7th May 2011 under DCR 6(4) for further commencement certificate and the application having not been refused, deemed to have been granted. The Petitioners have laid heavy emphasis on the fact that the said letter purported to be of 7th May 2011 is undated and therefore there is no question of deemed permission. It is true that the said letter is undated but there is a receipt by the Corporation of having received the application on 7th May 2011. During the course of the hearing the learned counsel for the Corporation produced the original inward register. We perused the said inward register and found nothing suspicious or out of ordinary. There is an entry of 7th May 2011 as regards receipt of the application of the Respondent No. 5 which seems to be made in usual course. Admittedly this application is not decided by the Corporation. In the circumstances, we do not find that the submission made by the Respondent no. 5 that it had deemed permission is without any substance. The Respondent no. 5 has filed a Civil suit taking this contention in which there is an interim order passed in favour of Respondent no. 5.
(m) As far as the notice issued by the Corporation on the basis of circular dated 22nd June 2011 is concerned, it is true that the Respondent no. 5 has not challenged the circular. However, we cannot ignore the fact that in series of orders Division Bench of this Court held that the said circular was not a valid instrument and have passed orders directing the Corporation not to implement the said circular against the petitioners therein. Apart from this position, Division Bench of this Court in the case of Kohinoor CTNL Infrastructure Company Private Limited (supra) has held that once the work has substantially progressed then the Corporation ought not to invoke power under section 51 of the MRTP Act. In the said decision the Division Bench clarified that what is âsubstantial progress' will depend on facts of each case and no general principle can be laid down in that regard. The Respondent no.5 in its reply to the stop work notice had given details of the steps taken by it and the monies spent, which have been referent earlier. Details have been given about the workforce employed, third agencies appointed and investment made and expenses incurred. The principle laid down in the case of Kohinoor CTNL Infrastructure Company Private Limited (supra) is an equitable one that when a party substantially alters its position based on a position of law then equities are created in its favour. This position is statutorily recognized in the proviso to the section 51 of the MRTP Act itself.
(n) In the present case the assertion of the Petitioners as regards the factual position is based primarily on the inventory carried out by the Corporation, to demonstrate that substantial work had not progressed. As noted above the inventories are not signed by the Respondent no. 5 acknowledge them as true and on the basis of such inventories. If the construction had progressed substantially then Respondent no. 5 will be entitled to seek protection of the observation made by the Division Bench of this Court in the case of Kohinoor CTNL Infrastructure Company Private Limited (supra). In a public interest litigation we are not inclined to hold that the construction of PPL is illegal on the basis of an inventory which is not signed by the aggrieved party and deprive it the protection of an equitable principle laid down in the aforesaid decision of the Division Bench.
(o) The Respondent no. 5 has placed on record that it carried on construction on the basis of deemed permission. The Respondent no. 5 has placed on record that there was no stop work notice in respect of PPL till 14th December 2011, which notice was stayed by the City Civil Court. We find force in the submission of the Respondent no. 5 that it had deemed permission to continue with the construction and in fact the construction had come up substantially. The civil suit filed by the Respondent no.5 is pending in which the Civil Court has passed an interim order finding prima facie substance in the case of the Respondent no. 5. We do not find any grave error in the order of interim relief passed so as to override the same and hold that the construction of PPL as illegal. The construction of PPL has been completed in accordance with sanctioned plan. As noted earlier, the said PPL will be handed over to the Corporation free of costs for the use of general public. Once that is done the Respondent no.5 will be entitled to avail of the incentive FSI.
29. Main residential building and the commencement certificates:
(a) On this ground it is submitted by the Petitioners that under the provisions of DCR 33(24) grant of incentive FSI in lieu of PPL is contemplated with the previous approval of the State Government and it is available only after such PPL is constructed and handed over to the Corporation free of costs. It is submitted that the State Government, while according approval on 18th June 2010, made this condition clear. It is submitted that incentive FSI of 31002.9 sq.mtrs. was being claimed by Respondent No. 5 though the said FSI had not accrued to Respondent no. 5. It is submitted that when the amended plans were approved on 8th February 2011 for 56 floors, the FSI that was approved to the Respondent no.5 was taken into consideration. It is submitted that that FSI for construction of additional floors from 44 to 56 was solely dependent on the incentive FSI . It is submitted that till date mandatory precondition of handing over the PPL has not been fulfilled by the Respondent No.5.
(b) It is submitted on behalf of the Petitioners that there is no commencement certificate to construct the residential building beyond 43rd floor however the Respondent no. 5 has constructed the residential building up to 56 floors without there being any commencement certificate. It is submitted that since the construction is in breach of law it should not be permitted to be regularized. It is further submitted that in the written statement filed by the Corporation it is placed on record that the work in the main building has reached completion. In spite of the pendency of the suit the Respondent no. 5 has undertaken construction in a hurried manner.
(c) The learned counsel for the Respondent no. 5 on the other hand submitted that the grant of commencement certificate is only a ministerial action and substantive rights of the parties are governed by the sanction of plans. It is submitted that the plans have been approved from time to time and the residential structure is approved till 56 floors. It is submitted that the work has been carried out as per the sanctioned plan and non endorsement of commencement certificate is not a breach of the DCR. It is further submitted that the position has been recognized under section 53 of the MRTP Act and in such situation there is an option for regularization under section 44 of the MRTP Act. The Learned counsel for the Petitioners have placed on record circulars dated 17th June 2006, 6th July 2005 and 4th February 2011 in respect of the regularization.
(d) The learned counsel for the Corporation submitted that commencement certificate for residential building is granted up to 43rd floor, however plans are sanctioned till 56 floors and the decision thereupon is pending.
(e) The position thus emerges that the building plans of the Respondent no. 5 for the residential building are sanctioned up to 56 floors. It is true that the commencement certificate has been issued only till 43rd floors. The question is whether the action of the Respondent no. 5 to continue construction up to 56 floors is so patently illegal so as to warrant an order of demolition. It is to be noted that the plans are sanctioned up to 56 floors and the construction per se is not in violation of the sanctioned plans. The Corporation has placed on record that before occupation certificate is granted these aspects will be considered. Section 52 of the MRTP Act envisages different categories of constructions. Once a construction is found to be as falling in the category of constructions enumerated in section 52 then a notice under section 53 of the MRTP Act is issued . At this stage it is open to the developer to make an application for regularization as per the Act and the circulars and it is open to the Corporation to consider the requests as per law. Since the Corporation has not yet granted occupation certificate to the Respondent no. 5, the Corporation has not yet taken a final decision in the matter. At this stage considering the fact that there is a sanctioned plan which permits the Respondent no. 5 to construct up to 56 floors, we do not think it necessary to intervene and issue a drastic order of demolition on the ground that the work is carried out beyond commencement certificate. When the statutory planning body has not yet taken final decision in the matter, it will not be appropriate to prejudge the issue and direct demolition.
30. Refuge Area/fire facilities.
(a) On the issue of refuge area extensive arguments were made by the learned counsel for the Petitioners. The provision for refuge area is contained in DCR 44(7). As per this DCR, the refuge area is to be free of FSI. The refuge area is meant for safety of occupants in emergency situations. Providing for refuge area is more relevant in high rise building such as the present one.
(b) The learned counsel for the Petitioners submitted that there are guidelines issued in Circular dated 21st September 1993 and National Building Code more particularly chapter IV thereof regarding fire protection.
The learned counsel submitted that approval of Chief Fire Officer has to be obtained who ensures that the plans are in compliance with stipulation for fire safety.
Learned counsel submitted that considering the fact that the refuge areas are free of FSI, they shall not exceed permissible limit. The learned counsel submitted that as per clause 3 of circular dated 2nd September 1993 the refuge area shall be 4% for floors above 24 meters, its area shall not be less than 16 meters and refuge area shall not be more than 50% of the total built area of the floor. The learned counsel submitted that the Respondent no. 5 has been granted area in excess of permissible limits by the Commissioner on 9 July 2007 and therefore approved plans are in contravention of DCR.
(c) The learned counsel for the Petitioners submitted that the fire escape passages are not passages at all and they are refuge area who should have been included in the calculation . The learned counsel for the Petitioners has sought to produce a chart on record to demonstrate that the excessive refuge area has been approved by the Commissioner and cumulative area granted free of FSI by the Chief Fire Officer is 39446.91 sq. mtrs. The learned counsel for the Petitioners submitted that the refuge area/fire escape come to about 72.22% of total habitable built up area when as per the circular, only 4% can be provided. The learned counsel in the alternative submitted that even assuming other common areas such as passages, planters etc. were added to ascertain total built up area, still the percentage of refuge area will be 38.57% which is in excess of 4%. The learned counsel further submitted maximum limit for refuge area has been supplied by way of a circular dated 21st September 1993 by providing maximum cap of 4% .
(d) The learned counsel for the Petitioners submitted that the refuge area and fire escape passages are even as per the plans produced on record, are being misused. The access to the refuge areas is not provided through stair cases as mandated but it is provided through habitable areas. The learned counsel submitted that the Respondent no. 5 has in fact sold the said refuge areas which have been claimed as free of FSI.
(e) The learned counsel for the Respondent no. 5 on the other hand submitted that the validity of plans has to be looked into only with reference to DCR 44(7) and there is no other requirement. It is submitted that the circular dated 21st September 1993 is not statutory circular and does not amend the DCR. The learned counsel sought to place reliance on the decision of the Division Bench of this Court in the case of Gulmohor Area Societies Welfare Group Vs. State of Maharashtra and others PIL (L) No. 46 of 2012. It is also contended that a possible misuse of planning permission cannot be a ground for revoking the same. The learned counsel submitted that the Chief Fire Officer had rightly granted NOC. The learned counsel submitted that the chart submitted by the Petitioners is fallacious as the Petitioners are confusing between habitable floor area and total built up area. Fire escape passages have been considered as refuge area. The learned counsel submitted that amendments to the DCR have been brought in by notification dated 6th January 2012; prior to this there were no restriction on location, size and specification of the refuge area.
(f) The learned counsel for the Corporation submitted that the Respondent no. 5 is constructing a high rise building within the meaning of DCR 2(11)(i) and for such building clearance of Chief fire Officer under DCR 5(5)
(ii) is necessary. The learned counsel submitted that refuge area provided at the entrance of the flat are likely to be misused by merging the same and therefore refuge area at the entrance of the flat will be counted in FSI.
It is submitted that area 6355.58 sq. mtrs. will be excluded and the refuge area now available free of FSI will be 16260.06 sq. mtrs.
(g) The DCR 44(7) and DCR 44(5) deal with refuge area, fire escapes and external stair cases. DCR 44(7) does not provide for any outer limit. The refuge area and fire escapes are free of FSI. The concept of refuge area and fire escape is for the benefit and safety of the residents of the building. Such area which provide for protection in case of fire are more relevant in the high rise buildings. In the building such as the present one, conventional fire fighting equipment may not reach from the ground. In such cases modern methods of firefighting have to be deployed and adequate refuge area and fire escape need to be provided .Thus refuge areas in such building will have to modeled and provided for differently than conventional low rise buildings.
(h) However even though there is no maximum cap on refuge and fire escape provided under the DCR, it cannot be an arbitrary exercise and refuge area cannot be provided at an absurd percentages of built up area. A situation where a developer is free to provide any extent of refuge area and claim an excessive exemption, cannot be countenanced.
(i) Though the circular dated 21st September 1993 does not amount to modification of the DCR, it provides some general indication. The circular provides for 4% of total built of area for floors above 24 meters and not more than 50% of total built up area of the floor where it is provided. According to the Petitioners the refuge area and fire escape amount to 72.22% of the total habitable built up area. It is also placed on record by the Petitioners that even if other common area are added to total built up area still it would be the percentage of refuge area around 38.57%.
(j) The reliance placed by the Respondent no. 5 on the decision in the case of Gulmohor Area Societies Welfare Group (supra) to contend that an unlimited refuge area can left and claimed free of FSI, is misconceived. In the said case it was a question of a college with 10 class rooms in each floor where at any given time hundreds of students would gather. It was in the facts of that case, that the Court did not consider the the refuge area amounting to 474 sq.mtrs. as excessive. The Court went on to hold that the DCR do no prohibit a party from providing larger refuge area. This may be so but it does not mean that there is no limit whatsoever. It would depend on facts of each case and that case court found it to be not excessive.
(k) The Corporation itself now has realized that the area sanctioned to respondent no.5 for refuge area is excessive. The Corporation has filed an additional affidavit on 18th September 2012 wherein it is stated that the recommendations for refuge area were excessive. It is stated in the affidavit that the Commissioner has directed an enquiry to be instituted as to how the Chief Fire Officer granted refuge area in excess of fire fighting requirements.
(l) It is thus clear from the stand of the Corporation itself that the refuge area granted is an excess of the norms. To our mind once the planning authority comes to the conclusion that the recommendation of the Chief Fire Officer and the concessions granted by the Commissioner based on such recommendation, are faulty, it is not enough to merely institute an enquiry. If the percentage of refuge area is of such a magnitude i.e. of 70% as alleged by the Petitioners and the general indication as per the Corporation is only 4% then, it is necessary that the Corporation reconsiders the concession granted by the Commissioner as well as the Planning permission granted on this basis. The planning authority cannot, having once come to the conclusion that concessions and permissions grant were excessive, choose to remain silent. Instead of doing the exercise of finding out what will be the appropriate admissible refuge area for the first time in this petition, it will be appropriate if the Commissioner is directed to reconsider the issue regarding the refuge area free from FSI. Though we leave the adjudication to the Commissioner, we cannot help at observing that the refuge area free of FSI as being claimed and granted to the Respondent No. 5, appears to be excessive.
31. Compensation for set back area.
(a) The learned counsel for the Petitioners submitted that Respondent no. 5 has claimed FSI in lieu of set back area of 2042 sq. mtrs. at 2715.86 sq. mtrs and out of the said FSI 705.45 sq. mtrs has been utilized in the residential building. The learned counsel submitted that the compensation for set back area was already been paid. It is also submitted that even if compensation was not paid, the claim of Respondent no. 5 for FSI in lieu of compensation is not permissible.
(b) Learned counsel for the Respondent no. 5 submitted that in fact no monetary compensation or FSI or TDR has been granted for the area of 2042 sq. mtrs. The learned counsel submitted that Section 126 of the MRTP Act is a statutory recognition for grant of FSI in lieu of set back area. The learned counsel submitted that it is not the position of law that after 12 years of handing over set back area, no compensation is payable.
(c) It is submitted on behalf of the Corporation that set back area was handed over in the year 1976 and it appears that no compensation has been paid to the Respondent no.5, however the Corporation will ascertain the position and take appropriate steps.
(d) The Corporation has placed on record that there is a letter dated 14th September 2004 of Additional Collector which records that the compensation was paid. The second affidavit filed by the Corporation dated 23rd July 2005 states that the compensation is not paid for 705.45 sq. mtrs. The learned counsel on behalf of the Corporation submitted that the exact position will be ascertained from Urban Development Department and appropriate decision will be taken. Considering that we have already directed the Corporation to reconsider the aspect of FSI of the refuge area/fire escape, and that factual position needs further clarification, the Corporation will ascertain the exact position as regards the FSI in lieu of set back area and take appropriate decision and consequential action.
32. Height of habitable floors.
(a) The learned counsel for the Petitioners submitted that height of habitable floors is governed by table 19(1) of DCR 38. The learned counsel submitted that the Respondent no. 5 in the main building has constructed living room with a increased height of 6.50 meters with an excess of 4.2 meters. It is submitted that any habitable room in excess of what is provided under the requisite DCR would be treated to have consumed an additional FSI. The learned counsel submitted that the Concessional Report of the Commissioner has granted the said increased height of habitable floors without there being any need for the same. It was submitted that only reason advanced for granting such concession is that it is being designed as per the international architectural trend. The learned counsel submitted the discretionary powers under DCR 64 are only in the cases of clearly demonstrable hardship. The learned counsel for the Respondent no. 5 on the other hand submitted that height in excess of 4.2 meters are only in floors of manor level and duplex flats and it is only at the entrance and not for the entire apartments. The learned counsel submitted that such height at 4.2 meters is expressly permitted in table 19(1) (d) r/w DCR 38. The learned counsel submitted that the contention of the Petitioners that 15600 sq ft required to be added to FSI is incorrect and the Commissioner has charged premium for grant of 4.2 meters for entrance of the hall which is permissible in law. The learned counsel for the Corporation submitted that height of 4.2 meters is permitted in FSI and premium for FSI of 0.5 is charged.
(b) The factual assertion made by the Respondent no. 5 that the height in excess of 4.2 meters is only in floors of manor level and duplex flats that too only at the entrance and not for the entire apartment has gone uncontroverted. The Commissioner while granting the concessional report has charged premium for an FSI above the permissible height of 4.2 meters. As per section 22 of the MRTP Act, as amended, it is open to the Commissioner to grant special permission under discretionary powers on imposition of premium. If there is a statutory power with the Commissioner for grant of additional height of floors upon charging premium and if such premium is in fact charged, then in a public interest litigation we do not find that the decision of the Commissioner in this regard needs to be disturbed. A permission has been granted as per statutory provision upon charging requisite premium and we are not entertaining an appeal from the decision of the Commissioner who is the planning authority. However, since we have directed the Corporation to reconsider the question of FSI of the refuge area the calculation of FSI in this regard may get reworked after the decision is taken by the Corporation again as directed when total FSI will be calculated.
33. Passages at manor level and entrances, Swimming Pool, area over deck, refuge area at the entrance level.
(a) As far as these aspects of the matter are concerned, the Corporation has filed a reply on 18th September 2012, wherein, the Corporation has stated that refuge area at the entrance of the flat is accessible and mergeable in the flat and therefore is likely to be misused and will be counted in FSI. It is averred by the Corporation that the swimming pools which are allowed in duplex flats free of FSI will be now counted in FSI as it has height less than 9 meters. For that purpose, reliance is placed on a circular dated 27th February 2007. It is also stated by the Corporation that as far as the passages near the flat are concerned, the same being in exclusive passages for the purpose of flats it will be counted in FSI. The Corporation has further contended that the manor level passages will also be computed in FSI. In the said affidavit, the Corporation has also placed on record that the covered area over deck will be computed in FSI. Thus, the Corporation has accepted the position that the FSI which is granted to the Respondent no. 5 under the various heads above was erroneously granted and the said aspect will be reconsidered.
(b) Once the planning authority has placed on record that certain aspects of the matters will be reconsidered, it is not necessary for us to adjudicate the issue any further in this public interest litigation. The Corporation, before taking final decision in the matter, will obviously give hearing to the Respondent no. 5 and then issue appropriate directions. As we have already directed the Corporation to reconsider the FSI in respect of refuge area, the entire calculation regarding available FSI will have to be reworked. It will be open to the Respondent no. 5 to urge before the Corporation that as per the provisions of law the Respondent no. 5 is entitled for exclusion of the above mentioned categories from FSI and corporation to decide the same as per law.
33. Height of Service Floor
a) The next head of challenge by the Petitioners is regarding the height of service floors. It is submitted by the learned counsel for the Petitioners that the service floor has height of 8.40 meters and height above 4.5 met