Ikram Suleman Qureshi vs Board & Ors on 23 February, 2011

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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             O. O. C. J.




                                                                                         
                        WRIT PETITION NO.792 OF 2010




                                                                 
    Ikram Suleman Qureshi.                                        ...Petitioner.
                            Vs.
    Mumbai Building Repairs & Reconstruction




                                                                
    Board & Ors.                                                  ...Respondents.
                                    ....
    Mr.Ramesh Dube-Patil and Mr.Ashish Giri i/b. Ajay Misar & Co.  for 
    the Petitioner.




                                                   
    Mr.V.M.Parashurami for Respondent No.1.
    Mr.Kevit Setelwad i/b. Mulla & Mulla for Respondent Nos.7 and 8.
                                   
    Mr.D.A.Nalawade, GP for the State.
                                    .....
                                    CORAM : DR.D.Y.CHANDRACHUD AND 
                                  
                                                   ANOOP V. MOHTA,  JJ.

February 23, 2011.

ORAL JUDGMENT (PER DR.D.Y.CHANDRACHUD, J.) :

Rule; by consent returnable forthwith. With the

consent of Counsel and at their request the Petition is taken up for

hearing and final disposal.

2. The challenge in these proceedings is to a No Objection

Certificate dated 13 June 2009 issued by the Mumbai Building

Repairs and Reconstruction Board and to an IOD dated 28 January

2010 issued by the Municipal Corporation. The authorities whose

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action is challenged are impleaded as the First and Second

Respondents. The subject matter of the petition is a proposed

redevelopment to be carried out by the Seventh and Eights

Respondents in respect of land and immovable property situated at

Survey No.200 of Tardeo Division. The redevelopment is proposed

under DCR 33(7) of the Development Control Regulations for

Greater Mumbai.

3. The Petitioner is an occupant of a residential flat in an

adjoining building, which is known as Suleman Tower. The

building where the Petitioner resides was also redeveloped under

DCR 33(7) and the construction is complete. At the time when the

building belonging to the Petitioner was redeveloped, the structure

situated on C.S.200 comprised of a ground floor and first floor.

The building in which a flat is in the occupation of the Petitioner

consists of 19 storeys. Under DCR 29, it has been provided that the

open space for separation between any building and a single

storeyed accessory building need not exceed 1.5 meters. The

developer of Suleman Tower sought a condonation of the

deficiency in the open space under DCR 64(b) which was granted

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by the Municipal Commissioner. The Petitioner now seeks to

challenge the condonation in the deficiency of open space in

relation to the redevelopment which is taking place on the

adjoining plot, C.S.200. The deficiency has been condoned by the

Municipal Commissioner on 12 January 2010.

4. Under a notification issued by the Urban Development

Department on 15 October 2003, the marginal open space required

for a building having a height of more than 24 meters, is six

meters. A proposal was put up by the Architect of the Seventh and

Eighth Respondents for condoning the deficiency in the open space.

It is common ground between Counsel appearing on behalf of the

Petitioner and the Seventh and Eighth Respondents that the

building in which the Petitioner resides (Suleman Tower) is on the

eastern side of the plot in which a redevelopment under DCR 33(7)

is to be carried out by the Seventh and Eighth Respondents. The

Assistant Engineer (Building Proposals), City-III submitted a report

in which he noted that the proposal for redevelopment of the

Seventh and Eighth Respondents envisaged condoning a deficiency

in open space ranging between 6.67% to 100%. The relevant

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observation of the report is as follows :

“Thus, it can be seen that Architect is unable to provide
required open space. The open space deficiency is

ranging from 6.67% to 100%.

The Architect contended that open space
required cannot be proposed due to planning constraints

and the F.S.I. permissible is 3.810. In order to consume
such F.S.I. open space deficiency is inevitable.”

The report also notes that in view of the fact that another proposal

under DCR 33(7) was allowed by his office (that proposal is the

one which pertains to Suleman Tower), the open space between

the two buildings will be 2.10 meters, including 1.5 meters open

space in respect of the development on the East side.

5. The Municipal Commissioner allowed the proposal and

condoned the deficiency in open space on the ground that out of

285.12 sq.mtrs. being the area of the plot, the setback is 135.79

sq.mtrs. and 25 rehabilitation tenements were required to be

provided.

6. The grievance of the Petitioner is that as a result of the

order which has been passed by the Municipal Commissioner, the

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deficiency in the open space, which is extremely drastic, would be

condoned and there would be virtually no distance at all between

the two sets of buildings. Learned Counsel submitted that the

Commissioner has not applied his mind to the requirements of

Regulation 64(b)under which a deficiency can be condoned only

provided that the relaxation will not affect health, safety, fire

safety, structural safety and public safety of the inhabitants of the

building and the neighbourhood. On the other hand, it has been

urged on behalf of the Seventh and Eighth Respondents that when

the building of the Petitioner was constructed, the deficiency in the

open space came to be condoned under Regulation 64(b). Hence,

it is urged that the Petitioner cannot be heard to argue against the

condonation which has been granted in respect of the adjoining

plot. Moreover, it was submitted that the deficiency has been

occasioned by the fact that an area of 135.79 sq.mtrs. out of the

total area of plot of 285.12 sq.mtrs. has to be surrendered as

setback to the Municipal Corporation.

7. Regulation 64(b) contemplates that the Municipal

Commissioner in specific cases of demonstrable hardship may

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permit the dimensions prescribed by the Regulations (except those

relating to FSI) to be relaxed. However, the power can be

exercised only when the relaxation does not affect the health,

safety, fire safety, structural safety and public safety of the

inhabitants of the building and the neighbourhood. DCR 64(b)

provides as follows :

“In specific cases where a clearly demonstrable hardship
is caused, the Commissioner may for reason to be

recorded in writing, by special permission permit any of
the dimension prescribed by these regulations to be
modified, except those relating to floor space indies

unless otherwise permitted under these regulation,
provided that the relaxation will not affect the health,
safety, fire safety, structural safety, and public safety of
the inhabitant of the building and the neighbourhood.”

In the present case, it is evident from the proposal of the Architect

which is noted in the report of the Assistant Engineer that on the

eastern side, as opposed to the required open space of six meters,

the average open space is 0.61 meters; 0.32 meters, 0.81 meters

and 0.65 meters at points B-C, D-E, F-G and H-I. The Municipal

Commissioner has condoned the deficiency only on the ground

that: (i) There is a setback of 135.79 sq.mtrs. out of the total plot

area of 285.12 sq.mtrs.; and (ii) That there are 25 rehabilitation

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tenements. Ex-facie, the Municipal Commissioner has not applied

his mind to the requirements of Regulation 64(b). The report of

the Assistant Engineer did advert to issues pertaining to hardship,

health, safety, fire safety, structural safety and the neighbourhood.

The Municipal Commissioner must, however, independently apply

his mind to all the facets required under Regulation 64(b). The

power to grant a relaxation under Regulation 64(b) is coupled with

a duty that the Municipal Commissioner must apply his mind to all

the circumstances which are considered to be relevant and

germane by the subordinate legislation. Evidently, the Municipal

Commissioner has not done so. The requirements of health,

safety, fire safety, structural safety and public safety of the

inhabitants of a building and the neighbourhood cannot be lightly

brushed aside and must be taken into account by the Municipal

Commissioner before he grants a relaxation. In the affidavit filed

by the Municipal Corporation, the only attempt at justification is in

the following terms:

“I say that the proposal under reference has been
submitted under modified D.C. Rule 33(7) and as per
notification from U.D. Department, margin open space
required for building having height more than 24 mtr.

                are   6.00   or   as   prescribed   by   C.F.O.     However,   the 




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architect has provided open space with deficiency
ranging from 6.67% to 100%. The open space deficiency

is mainly created due to smaller plot area and 135.79
sq.mtrs. area in set back to be handed over to MCGM for

road widening out of the plot area to 285.12 sq.mtrs. I
say that the Hon’ble Municipal Commissioner by his
approval dated 7.1.2010 accorded specific sanction in
accordance with law under C.D.R. 64(b) to condone the

open space deficiency by charging premium mentioning
that “since out of 285.12 sq.mtrs. plot area, set back is
135.79 mtrs. and 25 rehab tenements the proposal is
appoved.”

It is surprising as to how the Corporation considered that the

Architect has provided open space with a deficiency ranging from

6.67% to 100%. The Municipal Corporation seems to proceed on

the basis that the mere charging of premium is sufficient to

condone a deficiency of open space. This is completely contrary to

the underlying basis and purpose of Regulation 64(b).

8. In these circumstances, we are of the view that the order

passed by the Municipal Commissioner is unsustainable and

should be quashed and a direction should be issued to the

Municipal Commissioner to apply his mind afresh to the proposal

submitted by the Seventh and Eighth Respondents. It would be

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open to the Seventh and Eighth Respondents to submit a modified

proposal for the approval of the Municipal Corporation, in the

event that they are advised to do so. In order to facilitate a fresh

determination, we quash the impugned order of the Municipal

Commissioner dated 12 January 2010. The Municipal

Commissioner shall pass a fresh order preferably within a period

of six weeks. Rule is made absolute in these terms. There shall be

no order as to costs.

( Dr.D.Y.Chandrachud, J.)

( Anoop V. Mohta, J.)

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