Case Note & Summary
The matter before the Bombay High Court was a Public Interest Litigation filed by four residents of Carmichael Road, Mumbai, including Normandie Cooperative Housing Society Limited, who claimed to be active in preserving the heritage precinct. The petition challenged the actions of the State of Maharashtra, the Municipal Corporation of Greater Mumbai (MCGM), the Municipal Commissioner, various municipal engineers, the Maharashtra Housing and Area Development Authority (MHADA), and R. A. Realty Ventures LLP, the developer. The dispute centered on the redevelopment of 'Villa Nirmala' at M. L. Dahanukar Marg, a Grade-III structure within a heritage precinct. The property was originally owned by Shrimant Kumar Khanderao Shivajirao Gaekwar, who sold it to tenants Nityanand Mangesh Wagle and Taru Jethmal Lalvani via a Conveyance Deed dated 3 May 1975, making them owners. In 2011, a consent decree was passed in a suit for specific performance, and around the same time, the erstwhile tenants assigned their tenancy rights to one Kashimpuria and Bhalgat. Subsequently, respondent no. 9 undertook redevelopment, demolishing the existing structure and obtaining permissions from MCGM and MHADA. The petitioners alleged collusion between the developer and authorities to grant illegal sanctions for a building of 69.95 meters height, in violation of Development Control Regulations (DCR) 67(2)(iii)(b) and 67(7) concerning heritage precincts, DCR 23(1)(a) regarding recreational open space, and DCR 31(1) on building height. They argued that the developer falsely portrayed the property as a cessed building to claim enhanced FSI under DCR 33(7), which applies only to cooperative housing societies of tenants or occupiers of cessed buildings. The petitioners highlighted that there was no evidence of tenancy beyond two rent receipts from 1974-75, that cess was paid for the first time on the date of the consent decree, and that the assignment of tenancy was a premeditated transaction to circumvent regulations. It was also contended that despite an internal report noting the need for guidelines from the Urban Development Department, permissions were granted, and the recreational open space was reduced from 15% to 8%. The petitioners sought declarations that the permissions were illegal, a direction to frame heritage guidelines, and other reliefs. The respondent authorities and developer opposed the petition, though their arguments are not detailed in the available text. The bench of Justices Shantanu Kemkar and Nitin W. Sambre reserved judgment on 2 August 2018 and pronounced it on 19 October 2018, but the operative part and reasoning are not included in the provided excerpt, leaving the court's decision unknown.
Headnote
A) Constitutional Law - Violation of Fundamental Rights - Arbitrary Administrative Actions - Constitution of India, Articles 14 and 21 - The petitioners, residents of Carmichael Road, alleged that illegal permissions granted by respondent authorities for redevelopment in a heritage precinct violated their rights to equality and life by ignoring statutory provisions; the court's decision on this issue is not available in the provided text (Paras 1, 8).
B) Municipal Law - Development Control Regulations - Heritage Precinct Height Restrictions - Development Control Regulations for Greater Mumbai, Regulation 67(2)(iii)(b) and 67(7) - Petitioners contended that the approval of a building height of 69.95 meters exceeded the permissible limit and was granted without mandatory guidelines framed by the Municipal Commissioner in consultation with the Heritage Conservation Committee; the court's decision is not available (Para 6).
C) Municipal Law - Development Control Regulations - Recreational Open Space Requirement - Development Control Regulations for Greater Mumbai, Regulation 23(1)(a) - Petitioners argued that for a plot area of 2228.27 sq. meters, 15% recreational open space was mandated but only 8% was provided due to misapplication of DCR 33(7); the court's determination is not provided (Para 7).
D) Municipal Law - Redevelopment Incentives - Eligibility for Additional FSI Under DCR 33(7) - Development Control Regulations for Greater Mumbai, Regulation 33(7) - Petitioners claimed that respondent no. 9 was not a cooperative housing society and the building was not a cessed building, yet benefits of 3 FSI were obtained by creating a false case of tenancy assignment; the court's finding is not available (Paras 3-5).
Issue of Consideration
Whether the permissions and sanctions granted by the Municipal Corporation of Greater Mumbai and MHADA to respondent no. 9 for redevelopment of the property in heritage precinct are illegal, violative of Development Control Regulations, particularly DCR 67(2)(iii)(b), 67(7), 23(1)(a), 31(1) and 33(7), and consequently infringe Articles 14 and 21 of the Constitution of India.
Law Points
- Public Interest Litigation maintainability
- Development Control Regulations compliance
- heritage precinct development restrictions
- eligibility for FSI under DCR 33(7)
- requirement of cooperative housing society and cessed building status
- recreational open space mandate under DCR 23(1)(a)
- building height regulations under DCR 31(1)
- tenancy creation and assignment validity
- Article 14 and 21 violations in arbitrary administrative actions
Case Details
2018 LawText (BOM) (10) 116
Public Interest Litigation No. 48 of 2016 with Notice of Motion (Writ Petition) No. 473 of 2016 with Chamber Summons No. 181 of 2016
Shantanu Kemkar, Nitin W. Sambre
Janak Dwarkadas, Rohan Cama, Zulfikar Jariwala, Tamanna Tavadia-Naik, Shanay Shah, Natasha Gupta for petitioners; Geeta R. Shastri for respondent no.1; A. Y. Sakhare, Rohan Mirpury, Trupti Puranik for respondent nos.2-8; Rafique Dada, Milind Sathe, Birendra Saraf, Chirag Balsara, Naushad Engineer, Aditya Mehta, Jehaan Mehta, C. Rashmikant, Rohan Dakshini, Shweta Jaydev, Anuja Abhyankar for respondent no.9; P. K. Dhakephalkar, Jaya Bagwe for respondent no.10
Normandie Cooperative Housing Society Limited, Prakash Patel, Dilnar Chicgar, Jyotsna Nevatia
The State of Maharashtra, The Municipal Corporation of Greater Mumbai, The Municipal Commissioner, The Chief Engineer (Development Plan), The Deputy Chief Engineer (B.P.), The Deputy Chief Engineer (B.P.) City-I, The Assistant Engineer (B.P.) City-III, The Sub Engineer (B.P.) City-IV, R. A. Realty Ventures LLP, The Mumbai Housing and Area Development Authority
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Nature of Litigation
Public Interest Litigation challenging the legality of permissions and sanctions granted by municipal authorities and MHADA for redevelopment of a property in a heritage precinct, alleging violations of Development Control Regulations and fundamental rights.
Remedy Sought
Declaration that permissions and sanctions granted to respondent no. 9 are illegal and void; direction to the Municipal Commissioner to frame general guidelines in consultation with the Heritage Conservation Committee; and other ancillary relief.
Filing Reason
Petitioners, as residents of the heritage precinct, alleged that illegal construction permissions were granted in collusion with the developer, violating statutory regulations and affecting the heritage character and their quality of life.
Issues
Whether the permissions granted for redevelopment violate DCR 67(2)(iii)(b) and 67(7) regarding height restrictions in heritage precincts and the requirement of guidelines from the Heritage Conservation Committee.
Whether the benefit of 3 FSI under DCR 33(7) was legally available to respondent no. 9 when it is not a cooperative housing society and the building is not a cessed building.
Whether the reduction of recreational open space to 8% violates DCR 23(1)(a) which mandates 15% for plots of this size.
Whether the building height exceeds the permissible limit under DCR 31(1) in relation to the street width.
Whether the actions of the respondent authorities are arbitrary and violative of Articles 14 and 21 of the Constitution.
Submissions/Arguments
Petitioners argued that there was no valid tenancy of Mr. Wagle and Mr. Lalwani after the 1975 Conveyance Deed, and the assignment of tenancy in 2011 was a sham to claim benefits under DCR 33(7).
Petitioners contended that respondent no. 9 is not a cooperative housing society and the building was not a cessed building, rendering DCR 33(7) inapplicable for the grant of 3 FSI.
Petitioners highlighted that the building height of 69.95 meters was approved without the mandatory guidelines from the Heritage Conservation Committee, contrary to DCR 67(7).
Petitioners pointed out that despite an internal report dated 04/07/2014 noting the need to await UDD guidelines, permissions were granted, showing collusion.
Petitioners submitted that the required 15% recreational open space was illegally reduced to 8% by misapplying DCR 33(7).
Petitioners relied on the judgment in Federation of Churchgae Residents and others vs. Municipal Corporation of Greater Mumbai and others to support contentions on heritage precinct regulations.
Judgment Excerpts
The petitioners ... are deeply affected by the illegal actions on the part of the respondents which includes the State, Municipal Corporation of Greater Bombay, Maharashtra Housing and Area Development.
The property which is the subject matter of the present petition claimed to situated in heritage precinct at M. L. Dahanukar Marg standing on Plot no. C.S. 4/733 of Malbar Hill.
He would urge that the prerequisite for enjoying benefit under DCR 33 (7) can be summarised as : (a) That it should a Cooperative Housing Society. (b) The redevelopment should be in relation to cessed building. (c) Such property should attract the provisions of MHADA Act, 1976.
Not a single rent receipt is produced on record evidencing the creation of tenancy in favour of Mr. Wagle & Mr. Lalwani but for two tenancy receipts for the period prior to 2011 viz 01/12/1974 and 01/04/1975.
Procedural History
The Public Interest Litigation was filed as PIL No. 48 of 2016 along with Notice of Motion (Writ Petition) No. 473 of 2016 and Chamber Summons No. 181 of 2016. The matter was heard by the High Court of Judicature at Bombay, Ordinary Original Civil Jurisdiction. Arguments were concluded and judgment was reserved on 2 August 2018. The judgment was pronounced on 19 October 2018. The available text does not include the court's final decision or reasoning.
Acts & Sections
- Development Control Regulations for Greater Mumbai: Regulation 67(2)(iii)(b), 67(7), 23(1)(a), 31(1), 33(7)
- Constitution of India: Articles 14, 21
- Right to Information Act, 2005:
- Maharashtra Housing and Area Development Act, 1976:
- Limited Liability Partnership Act, 2008:
