A legal battle which began in 2012 is now likely to be prolonged further. On August 8, the Supreme Court granted leave in an appeal filed by Vasant Sagar Properties Limited challenging a judgment of the Bombay High Court, which had set aside the clearance given by Municipal Corporation of Greater Mumbai (MCGM) for the construction of a 58-meter tall building on the Marine Drive stretch.
According to Mumbai Mirror, the building itself is being constructed as a private villa for Essel Group Chairman and Rajya Sabha member Subhash Chandra.
But first, some background.
Facts
A Public Interest Litigation was filed in the Bombay High Court by the Federation of Churchgate Residents, who challenged the permission granted by the MCGM to Vasant Sagar Properties to re-construct a building on a property situated in ‘A’ ward of Fort division at ‘A’ Road, Off Marine drive, Mumbai. The existing building on the property was constructed in 1940. The property and the building was purchased by Vasant Sagar, which is a part of the Zee Group, in 1987.
In 2009, Vasant Sagar sought permission from the Executive Engineer of the Corporation to re-construct the building standing on the said property. This was on account of the fact that the existing building was in a dilapidated condition.
The building was to have a height of 58 meters. In 2012, sanction was granted to Vasant Sagar in terms of Regulation 67(2)(iii)(b) of the Development Control Regulation for Greater Mumbai, 1991 (DCR, 1991), which allows reconstruction of a building with a height in excess of 24 meters with a special permission from the Commissioner.
It was the petitioner’s contention that no permission can be granted under Regulation 67(2)(iii)(b) contrary to a Memorandum issued in April 1995 by the state government, which lays down that the height of building in A Ward after reconstruction shall be limited to the existing height of the buildings.
Further, the permission obtained from Mumbai Coastal Zone Management Authority to construct the building was subject to an NOC from Mumbai Heritage Conservation Committee (MHCC), and the same was not obtained in this case, the petitioners had argued.
Bombay High Court judgment
A Bench of then Chief Justice Mohit Shah and and Justice MS Sanklecha of the Bombay High Court, in a judgment rendered in March 2014, set aside the permission given by Municipal Commissioner. It held that while granting permission under Regulation 67(2)(iii)(b) of DCR 1991, for reconstruction of property, the memorandum of 1995 should have been considered.
However, the Court directed the Commissioner to prepare final general guidelines in consultation with MHCC for height of reconstructed buildings in excess of 24 meters in the precincts of Marine Drive. It also directed the Commissioner to consider the case of Vasant Sagar afresh under the guidelines so prepared.
Appeal to the Supreme Court
This decision was challenged by Vasant Sagar in Supreme Court. The petitioner association also filed a cross appeal challenging that part of the judgment whereby the Court asked the Commissioner to prepare fresh guidelines.
The Supreme Court issued notice in the appeal on April 21, 2014 but ordered that status quo be maintained with regard to the height of the construction of the building made by Vasant Sagar.
On September 19, 2014, the Supreme Court ordered the MCGM to inspect the construction site and file a report as to the height of the building from ground level and the number of floors constructed up to 28 meters height.
Pursuant to that order, a report was placed before the Court by MCGM on October 8, 2014. In the report, the MCGM concluded that the height of the building was in accordance with the approved plan.
In their reply to this report, Federation of Churchgate Residents stated that the report did not give the entire height of the building but only gave the height till the 10th floor. The reply further stated that the act of the petitioner in carrying out construction work beyond 28 meters/5 floors was contemptuous as it was against the status quo ordered by the Court on April 21, 2014.
Finalising the guidelines
On June 22, 2017, the MCGM filed an interim application stating that it had formulated guidelines relating to re-construction of buildings in the Marine Drive area. As per the application, the guidelines were drafted by the Municipal Commissioner and then forwarded to the Mumbai Heritage Conservation Committee (MHCC) for its suggestions/recommendations.
As per the interim application, the MHCC initially refused to give its recommendations on the draft guidelines on the ground that the earlier Heritage Committee had already prepared and forwarded draft guidelines for development in the Marine Drive precinct which was under the state government’s consideration.
The Urban Development Department then wrote a letter to the MHCC, directing them to give their recommendations. Based on the remarks of MHCC, the Municipal Commissioner finalised the guidelines.
The Controversy
It is these guidelines that are likely to be a subject of major controversy when the case comes up for hearing.
As per these guidelines, the Marine Drive precinct has been divided into three sub-precincts – Backbay, Gymkhana and Chowpatty. It is the height restrictions in these sub-precincts that have raised eyebrows. In Gymkhana precinct, the maximum height allowed is 24 meters. In Chowpatty precinct, it is 32 meters.
However, when it comes to Backbay precinct, the front row has been allowed a maximum height of 32 meters while the rest of the buildings have been granted permission to construct upto 58 meters. Vasant Sagar falls within this 58-meter area. What is most interesting is the area covered by these three precincts. A map below shows the three sub-precincts and the maximum permissible height for the buildings in the area.
In their application, the MCGM has prayed that since it has finalised the guidelines as per the directions of the Bombay High Court judgment of March 2014, the matter should be disposed of.
Residents’ response to the guidelines
The Federation of Churchgate Residents has filed a detailed response to the said application by MCGM. It has assailed the guidelines on various grounds.
It is their contention that the guidelines do not confirm to the direction contained in the Bombay High Court judgment.
“..instead of preparing final general guidelines for height of reconstructed buildings, the Municipal Commissioner has prepared Guidelines for ‘Special Permission to redevelopment projects in Marine drive precinct’”.
The Federation has also contended that the guidelines have not considered Regulation 31 of the DCR, 1991 which was mandated by the Bombay High Court in its judgment.
Importantly, the reply also cites the alleged “shocking role” of MHCC in the matter. It states,
“At this juncture, I would also like to point out the shocking role of MHCC which has the divine duty of preserving the heritage culture of Mumbai city. The MHCC in its meeting held on 6/10/2015 did not consider the said guidelines of Municipal Commissioner as proper for Marine Drive precinct…
…however, the MHCC has taken a complete u-turn in its meeting held on 5/7/2016 whereby it has decided to endorse the Municipal Commissioner’s guidelines 100% even though there has been no change of facts, circumstances or law between 6/10/2015 and 5/7/2016….there is a gross breach of consistency by MHCC”.
Interestingly, Federation has also cited that the Marine Drive precinct has been nominated as India’s entry for a World Heritage Site. A team from UNESCO is expected to conduct a site visit this year or in 2018.
Current status of the case
The matter came up for hearing on August 8, when a Bench of Chief Justice JS Khehar and Justice AK Goel and DY Chandrachud granted leave in the matter and ordered that it be listed as per turn.
The matter is, therefore, likely to take a few years to come up for hearing.
Read the Bombay High Court judgment and the Supreme Court orders of April 2014 and August 2017 below.
Image taken from here.
Bombay High Court judgment:
Supreme Court order issuing notice:
Supreme Court order granting leave: