Case Note & Summary
The case involved a writ petition by a proprietary real estate developer, Shreeji Realty, challenging a condition imposed by the Brihanmumbai Municipal Corporation (MCGM) in an Intimation of Disapproval (IOD) for redevelopment of a property in the Fort Heritage Precinct, Mumbai. The petitioner sought to redevelop a plot of 323.57 sq mts under Regulation 33(7) of the Development Control and Promotion Regulations for Greater Mumbai 2034 (DCPR 2034) with a proposed building height of 69.90 meters. The MCGM, while approving the plans on 29th December 2021, imposed Condition 38, which required the petitioner to obtain a No Objection Certificate (NOC) from the Mumbai Heritage Conservation Committee (MHCC) before a Commencement Certificate would be issued. The petitioner also challenged the Municipal Commissioner’s order dated 27th December 2022, which reiterated this requirement, stating that the redevelopment had to be of heritage significance. The petitioner argued that the condition was unlawful under DCPR 2034 Regulation 52, which governs heritage conservation, and that it was discriminatory because a similar high-rise building across the same narrow street in the same precinct had been permitted without such a condition. The MCGM and the Commissioner maintained that Regulation 52(9)(b) authorized them to impose such a condition when the building height exceeded 32 meters, as the Commissioner could consider guidelines for listed precincts. The Court examined the regulatory framework, including the earlier Development Control Regulations 1991 and the heritage grading system. It noted the definitions of heritage precincts and the objectives of conservation. The Court observed that the regulation did not explicitly mandate an NOC from MHCC but allowed the Commissioner to take into account guidelines. It highlighted the apparent inconsistency in the application of the norm, pointing to the adjacent building that was allowed to exceed 60 meters without a similar condition. The Court’s analysis suggested a prima facie case of discriminatory treatment. However, the judgment excerpt ends before the final decision, leaving the outcome unresolved. The Court issued rule and made it returnable forthwith, taking up the petition for final disposal after hearing both sides. The specific operative directions are not recorded in the provided text.
Headnote
A) Heritage Conservation - Heritage Precincts - Redevelopment Height Restrictions - DCPR 2034, Reg. 52(9)(b) - The regulation permits reconstruction in heritage precincts up to 32m height; for heights exceeding 32m, special permission from the Commissioner is required, who may consider guidelines for listed precincts - The Court examined whether this provision mandates an NOC from the Mumbai Heritage Conservation Committee before issuing a Commencement Certificate. (Paras 13-14)
B) Heritage Conservation - Requirement of MHCC NOC - Development Permission Conditions - IOD Condition 38, DCPR 2034, Reg. 52(9)(b) - The impugned Condition 38 in the IOD dated 29-12-2021 required the petitioner to obtain an NOC from the MHCC before CC could be issued - The Court considered whether such a condition was justified under the regulations and whether it was consistent with the treatment of other redevelopments in the same precinct, noting that a building opposite the petitioner's property, with similar or greater height, did not have such a condition (Paras 5, 15-16).
C) Constitutional Law - Article 226 - Discriminatory Administrative Action - DCPR 2034, Reg. 52(9)(b), Constitution of India - The petitioner contended that the imposition of the NOC condition was arbitrary and discriminatory, given that the MCGM had granted permission for an adjacent building over 60 meters without such a condition - The Court observed that it was inconceivable that the same condition was required for the neighboring redevelopment, indicating prima facie inconsistency in the administration of the heritage regulations (Paras 15-16).
Issue of Consideration
Whether Condition 38 in the Intimation of Disapproval dated 29 December 2021, requiring a No Objection Certificate from the Mumbai Heritage Conservation Committee for a building exceeding 32 meters in height in a heritage precinct, is valid under Regulation 52 of the Development Control and Promotion Regulations for Greater Mumbai 2034, and whether the refusal to issue a Commencement Certificate without such certificate is discriminatory and arbitrary.
Final Decision
Decision not clearly stated
Law Points
- Legal points not extracted
- Heritage conservation
- DCPR 2034
- Regulation 52
- height restriction
- special permission from Commissioner
- MHCC NOC
- discrimination
- arbitrariness
- writ jurisdiction
- certiorari
- mandamus
Case Details
2023 LawText (BOM) (08) 123
WRIT PETITION NO. 95 OF 2023
Dr Abhinav Chandrachud, Sanjay Kadam, Sanjeel Kadam, Soham Salvi i/b Kadam & Co for petitioner; Mr Joel Carlos, Pooja Yadav i/b Sunil Sonawane for respondents
Shreeji Realty, sole proprietary concern of Bhavesh Nandani
1. Brihanmumbai Municipal Corporation, 2. The Municipal Commissioner, Brihanmumbai Municipal Corporation, 3. The Chief Engineer Development Planning, Brihanmumbai Municipal Corporation, 4. The Chief Engineer Development Planning, Brihanmumbai Municipal Corporation, 5. Mumbai Heritage Conservation Committee
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Nature of Litigation
Writ petition under Article 226 of the Constitution of India challenging the legality of a condition imposed in a development permission and seeking directions for issuance of further permissions without reference to the heritage committee.
Remedy Sought
Petitioner sought a writ of certiorari to delete and strike down Condition 38 in the IOD dated 29th December 2021, and a writ of mandamus directing the MCGM to issue a Commencement Certificate and Occupation Certificate without requiring an NOC from the MHCC.
Filing Reason
The MCGM imposed Condition 38 requiring an NOC from the MHCC despite granting approval for the proposed building height of 69.90 meters under Regulation 33(7) of the DCPR 2034, and the Municipal Commissioner's order dated 27th December 2022 reiterated the requirement to approach the MHCC.
Previous Decisions
The MCGM issued the IOD on 29th December 2021 with Condition 38. The Municipal Commissioner, by order dated 27th December 2022, directed the petitioner to obtain MHCC NOC under Regulation 52. The petitioner amended the petition to challenge this order. Rule was issued and the petition was taken up for final disposal.
Issues
Whether Condition 38 imposing a requirement of NOC from MHCC for redevelopment exceeding 32m height in a heritage precinct is valid under DCPR 2034 Regulation 52
Whether the requirement is discriminatory and arbitrary given that similar redevelopment in the same precinct was permitted without such condition
Submissions/Arguments
Petitioner contended that Condition 38 was an unreasonable restriction not contemplated by DCPR 2034 Regulation 52 and was selectively applied; the MCGM had granted similar permissions without such condition.
Respondents contended that under Regulation 52(9)(b), the Commissioner could require MHCC clearance for buildings exceeding 32m height in heritage precincts.
Ratio Decidendi
Ratio not explicitly mentioned
Judgment Excerpts
Rule. There is an affidavit in reply from page-142 of Respondent Nos. 1 to 4. Hence, Rule is made returnable forthwith and the Petition is taken up for final disposal.
The prayer in the Petition is first for a certiorari to delete and strike down Condition 38 in the development permission known as the Intimation of Disapproval (“IOD”) dated 29th December 2021 at Exhibit “M” to the Petition granted by the MCGM for the redevelopment of this property. The second prayer is for a mandamus directing the MCGM to issue a complete Commencement Certificate (“CC”) and further permission including an Occupation Certificate (“OC”) for the new building proposed on this property without reference to and without requiring a No Objection Certificate (“NOC”) from the MHCC.
(b) In case of reconstruction or redevelopment of buildings in heritage Precincts, height up to 32 m. shall be permitted by Commissioner. If the height of the building to be reconstructed/redeveloped exceeds 32 m., special permission from the Commissioner may be obtained, who may take into consideration guidelines if any in respect of listed Precincts.
The letter clearly says that the Municipal Commissioner has granted this permission but made it subject to a MHCC no objection before granting a CC. The letter says that the redevelopment has to be “of heritage significance worthy of recognition and conservation”.
It is inconceivable that the same condition of prior MHCC permission or NOC was required for this redevelopment.
Procedural History
The petitioner filed Writ Petition No. 95 of 2023 challenging Condition 38 in the IOD and seeking mandamus. The respondents filed an affidavit-in-reply. The Court issued rule and made it returnable forthwith, taking up the petition for final disposal. An amendment was allowed to add a challenge to the Municipal Commissioner’s order dated 27 December 2022, which directed the petitioner to approach the MHCC.
Acts & Sections
- Development Control and Promotion Regulations for Greater Mumbai 2034 (DCPR 2034): Regulation 33(7), Regulation 52(9)(b), Regulation 52(9)(c)
- Mumbai Municipal Corporation Act, 1888:
- Development Control Regulations for Greater Mumbai, 1991: Regulation 67
