This article is written by Vijaya Laxmi Mallawat.

Introduction

Mumbai, the economic capital city of India, is very expensive in terms of all commodities and services, especially the housing sector. Whether it is the sky touching towers or the pigeon hole sized huts the prices and rents are soaring high due to high demand originating from various reasons ranging from world-class medical and educational facilities to an overall better standard of living. 

The Maharashtra Regional Town Planning Act, 1966 aims at effective implementation of development plans throughout Maharashtra however Mumbai being a city of prime importance is also bestowed with an exclusive legislation named ‘Development Control Regulations for Greater Bombay, 1991’ in furtherance of the objects of the former Act and in exercise of the powers conferred upon the Government of Maharashtra and the Municipal Corporation of Greater Bombay known as Brihanmumbai Mahanagarpalika.  

Jurisdiction: These regulations apply to building activity and development work in areas under the entire Jurisdiction of the municipal Corporation of Greater Bombay. If there is a conflict between the requirements of these Regulations and those of any other rules or by-laws, these regulations shall prevail, however, in the respect of areas included in finally sanctioned Town Planning Scheme, the Scheme regulation shall prevail, if there is a conflict between the requirements for these Regulations and the scheme Regulations.

Commencement: These Regulations shall come into force on 20th February, 1991 as fixed by the State Government of Maharashtra and shall replace the existing Development Control Rules for Greater Mumbai framed under the Maharashtra Regional and Town Planning Act, 1966.

Applicability: These regulations apply to construction and development, part construction, change of occupancy and reconstruction of buildings and excludes lawfully established use or occupancy of an existing building unless, in the opinion of the Commissioner, such a building is unsafe or constitutes a hazard to the safety of adjacent property.

Development permission and Commission certificate

Regulation 4 states that development or redevelopment of any building whether mercantile or office or residential or institutional, etc. needs a separate development permission and a commencement certificate from the Commissioner of Brihanmumbai Mahanagarpalika. 

However authorities as laid down in the Act like Railways, National Highways, National Waterways, Major Ports, Aerodromes and Airports, Posts and Telegraphs, Telephones, Television. Wireless, Broadcasting authorities and the authorities of other similar forms of communication are exempted from this compulsion as long as their construction work is operational in nature.

Examples of operational construction would involve Repairs and renovation of existing installations or buildings used for operational purposes only which do not involve addition to or increase of built-up area.  In the case of the Railways, repairs and renovation of existing railway tracks, including culverts, over-bridges, under-passes or bridges, tunnels and side drains, platforms, goods sheds and offices, parcel offices, sub stations, foot-over bridges. Turntables, lifting towers, gantries, signal and signal boxes or control cabins in hump yards and others as specified. Provided that, for the construction of new railway lines or tracks the approval of the State Government shall be necessary. For construction of new buildings, goods stores, sheds or platforms, parcel offices and workshops or for purposes of major remodelling the approval of the Commissioner shall be necessary. Also operational construction for all the authorities exempted would not include residential buildings, commercial buildings, office buildings and Construction, installation or any extension of any building in the case of any services other than those mentioned in this Regulation.

A development permission issued before the date of commencement of these Regulations, in accordance with which the development had not started within a year from the date of such permission, the said development permission was deemed to have lapsed and thus new permission would be as per these regulations.

If the work had been partially completed then the Commissioner shall not subject the work to these regulations for extending the period of permission which should not be more than what is specified in section 48 of the Maharashtra Regional and Town Planning Act, 1966. However, such exemptions should be recorded in writing with reasons.

Floor space indices and tenement densities

The maximum permissible Floor Space Indices and tenement densities for various occupancies and locations and for various use zones are given in Regulation 32.

Floor Space Indices differ in Residential, Commercial and Industrial Zones as it is based on occupancy and are also different for different areas in each zone as it is also based on location. An extract of which is as follows:

(1)Residential Zone (R-1) which is purely residential and Residential Zone with Shop Line (R-2), for instance, Juhu Tara Road with Vegetable, fruit, flower, frozen fish, frozen meat or frozen food shops, Tailoring, embroidery and button-hole making shops, each employing not more than 9 persons etc.

(A) Island City -Floor Space Indices: 1.33

-Tenement Density per net hectare: Maximum is 600 and Minimum is 267.

(B) Suburbs and Extended Suburbs—

(i) The area earmarked for BARC (Bhabha Atomic Research Center) from ‘M’ Ward and the areas comprised in “N” ward bounded on the west by Eastern Express Highway; on the North by northern boundary of ‘N’ Ward on the East by Thane Creek and on the south by the northern boundary of   N’ Ward.

   -Floor Space Indices: 0.75

   -Tenement Density per net hectare: Maximum is 350 and Minimum is 150

*In the Memorandum of Government Notification regarding ward ‘M’ the FSI is now raised TO 1.00.

(ii) Area of the villages of Akse, Erangal and Marve in the P North Ward and Gorai and Manori in the R Word excepting gaothan property.

   -Floor Space Indices: 0.5

   -Tenement Density per net hectare: Maximum is 226 and Minimum is 100

(iii) The remaining area in Suburbs and Extended Suburbs including gaothans (indigenous villages)

   -Floor Space Indices: 1.0 

   -Tenement Density per net hectare: Maximum is 450 and Minimum is 200.

(2) Local Commercial Zones (C-1) and District Commercial Zones (C-2)

(A) Island City- Floor Space Indices as in the residential zone.

(B) Suburbs and Extended Suburbs- Floor Space Indices as in the residential zone. 

In the ‘M’ Ward if any building in the Local Commercial Zone (C-l) or District Commercial Zone (C-2) is intended for a purely commercial user non-residential in character. Floor Space Indices of 1.00 would be permissible.

(3) Service Industrial Zone (I-1) General Industrial Zone (1-2) Special Industrial Zone (1-3)

(a) For users permissible in the 1.00 zone in the Island City and in Suburbs and Extended Suburbs (b) Textile Mills-Island City and Suburbs and Extended Suburbs Truck Terminal, Wadala-Floor Space Indices: 1.

(b) In the case of reconstruction, modernisation or renovation, where a textile activity is to be continued- The Floor Space Indices shall not exceed 1.33 in the Island City and 1.00 in the Suburbs and Extended Suburbs.

(c) For Storage Building (Warehouses and Godowns) both in Island City and Suburbs and Extended Suburbs -Floor Space Indices 0.5 or volume to plot area ratio of 4 m. whichever is less.

(d) Educational Building, Medical Institutions and Institutional Building and Government and Semi-Government Offices – Floor Space Indices in (a) Island City (b) Suburbs and Extended shall be 1.33 and 1.00 respectively.

Landmark cases                            

Supreme Court of India

• Indian City Properties Ltd. & Anr v. The Municipal Commissioner of Greater Bombay

Facts

The first appellant, the owner of Plot No. 2M/748 situated at M.L. Dhanukar Marg, Mumbai, has let out the bungalow and the outhouse to the appellant No.2 for use as a guest house. On 16th November, 1999 a notice was issued to the appellants under Section 299 of the Mumbai Municipal Corporation Act, 1888, to the effect that the Corporation would take possession of “certain land not within permissible Floor Space Index of the building” and forming part of the premises within the regular line of public street as prescribed by the Commissioner, under Section 299 of the Act.

The proposed acquisition affected the following permanent existing structures in the premises to the extent indicated:

1. Servants Room in two parts a)13′-6″x 9′-6″ 128.25 (Ground Floor structure) b) 12′-6″x20′-6 256.25
2. Security Cabin (Ground Floor Structure) 6′-6×6′-6′ 42.25
3. Pump Room with Compressor 9′-0″x6′-0″ 54.00 (Ground Floor Structure)
4. Underground RCC tank with Cylinder shape precast tank 14′-6″x 11′-6″ 166.75 on Top
5. A.C. Plant 12′-6x 10′-6″ 131.25
6. Part portion of Main Structure in a) 2×13′.6″x10′-0″ 270 two parts viz. Ground and First b) 2×9′-0″x2′-6″ 22.50 Floors, staircase, part bed room.

The notice was challenged by the appellants under Article 226 of the Constitution. However, the decision was unfavourable.

Issue

Is the order of the High Court correct or an error has been made?

Judgement

Floor Space Index (FSI) as defined in regulation 3(42) of Development Control Regulations of Greater Bombay, 1991 merely relates to the permission to build having regard to various features such as height of the building, tenement density, object with which the building is to be erected etc. and not to Open space and Features permitted in open space as laid down in regulation 3(64) and 30 respectively. The appellants’ case pertains to open space and features permitted therein and is also well within FSI computation as per regulation 35, hence the notice specifying possession was declared to not have any legal effect and the Authority was directed not to proceed along its lines.

Bombay High Court

• Nalini Ganpat Malpekar & Others v. Municipal Corporation of Greater Mumbai & Others

Facts

The tenants/occupants of the Parsi Chawl formed a society, being Pavanputra Co-operative Housing Society and submitted their separate proposal for redevelopment. It is located in Dadar, Mumbai. Admittedly, the Corporation is the owner of both the plot of the chawl and the chawl. However, some occupants were against the proposal.

The proposal was accepted and order was passed by the Joint Commissioner on 25.11.2005. This order permitted development of the Parsi Chawl into a society and consequently an order of eviction was passed.

The dissenting occupants challenged the order of eviction wherein the order of Principal Judge, City Civil and Sessions Court, Greater Bombay was unfavourable for them. Hence, this writ petition has been filed.

Issue

Should the order of City Civil and Sessions Court be reversed or not?

Judgement

As per the Administrative Guidelines for the redevelopment of old Municipal properties by Municipal Tenants Co-operative Housing Societies on the land owned by the Corporation under Regulation no.33 (7) Appendix III of the Development Central Regulations for Greater Bombay, 1991, it is necessary that more than 70% of the eligible existing Municipal tenants should give written consent to redevelop the property under the scheme and form an association/co-operative society and initiate proposal of development. There is no dispute that more than 80% tenants/occupants of the Parsi Chawl have formed a society (Pavanputra) and their proposal for redevelopment has been sanctioned by the Improvement Committee of the Corporation on 8.8.2006.

Under the guidelines, no choice is given to the tenants/occupants, who are in minority, i.e. 30% or less, to take different stand/decision, though it may be possible for such tenant/occupant or a group of tenants/occupants to give up their right and quit from the scheme. However, once 70% or more tenants/occupants give written consent to redevelop the property under the scheme and form an association/co-operative society and initiate proposal of redevelopment and if the scheme/proposal is approved by the Corporation, it is binding on all the tenants of the chawl/building whether they like it or not. If tenants in minority or non-co-operative tenants are given a choice to become members of any other society, as of right, perhaps that will create chaos and no redevelopment would ever progress smoothly.

Thus the order of eviction was held to be completely valid.

Bombay High Court

• Prochy Numazar Mehta v. The Municipal Corporation of Greater Bombay

Facts

On 16th April, 2002, a petition under Article 226 of the Constitution of India was filed in this Court in the public interest seeking, inter alia, the issuance of appropriate writs, orders or directions to the Municipal Corporation of Greater Mumbai for the purpose of securing the removal of hoardings on Heritage structures which continued to be erected and displayed unlawfully in Mumbai.

The grievance of the Petitioner, a medical professional, was that there was a complete failure on the part of the law enforcing agencies, statutorily vested with regulatory powers to discharge their duties in accordance with law.

This, it was contended, was in violation of regulations 48(3) and 67 of the Development Control Regulations for Greater Bombay, 1991. This Court noted that almost all permission had been granted prior to the enforcement of the Development Control Regulation 67 (Heritage Regulations for Greater Mumbai, 1995) and no review of the old permission granted in violation of the Regulations had been undertaken by the Municipal Corporation.

Issue 

Can the old permission granted by the Municipal Corporation be valid in perpetuity or needs to be revised as per 1995 Regulation?

Judgement

Regulation 67 was introduced by way of an amendment on 21st April, 1995. Prior thereto, the Development Control Regulations for Greater Bombay were brought into force on 20th February, 1991.

The Heritage Committee has been constituted under the provisions of Regulation 67 as an expert body. The Committee is in fact styled in sub-Regulation (2) of Regulation 67 as the Heritage Conservation Committee with an aim to mainly advise the Municipal Commissioner in the operation of Regulation 48 to regulate or to frame special Regulations for heritage precincts and to advise the Municipal Commissioner regarding the same.

Clause (3) of Regulation 48 provided for a prohibition on advertising signs and outdoor display structures on buildings of architectural, aesthetical, historical or heritage importance as may be decided by the Commissioner however these buildings have been specifically listed out after the notification of the Heritage Regulations in 1995.

In view of the provisions of law which have been averted to in the earlier part of the present judgment, the Court rejected the submissions of there being any accrued or vested right in perpetuity to exhibit those advertisements, hoardings and/or sky-signs which were constructed prior to the Heritage Regulations of 1995.

Therefore, in the final operative order which we pass, we have left it to the Heritage Conservation Committee to consider individual cases of hoardings, advertisements and sky-signs on heritage structures and precincts and to submit a report to the Court. This will ensure that the principles of fairness are complied with and obviate any grievance of a breach of natural justice. The advertisers and hoarding owners will be allowed to submit their representations, if any, to the Heritage Conservation Committee.

The Municipal Corporation shall take steps forthwith for removing the offending hoardings immediately upon and in the light of the decision of the Municipal Commissioner.

Recommendations and suggestions

The Development Control Regulations of Greater Bombay, 1991 is a legislation which contains detailed provisions for development purpose imposing checks at every level to ensure that no illegal or unauthorized development takes place. The following provisions vouch for this statement:

• The notice of intention shall be accompanied by the key plan (location plan), a site plan, subdivision/ lay-out plan, building plan, specifications and certificate of supervision, ownership, title among other necessary documents
• The owner through his licensed surveyor, engineer, structural engineer or supervisor or his architect shall give notice to the Commissioner on completion of work up to plinth level which enables the Commissioner to 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
• If during the construction of a building, any departure of a substantial nature from the sanctioned plans is intended by way of internal or external additions, sanction of the Commissioner shall be necessary otherwise it shall be deemed as unauthorised. 

However, claims have been made to develop Mumbai on the lines of Shanghai which seems to be a far-fetched dream with Brihanmumbai Mahanagarpalika (BMC) being the Planning Authority. Its employees have a practice of sub-letting their work and all they are interested in is monetary returns. Thus, a special Authority should be established and delegated with the work of BMC to ensure quality work in a systematic way. 

Conclusion

The Regulations provide for deemed permission which further paves way for delay of work as, if the Commissioner within 60 days fails to grant or refuse permission as per   Regulation 5(5)(i), the notice of intention with its plans and statements shall be considered to have been sanctioned. To top it up, the 5 Day week for government staff rule by present Chief Minister, Uddhav Thackeray which will lead to impediment in the overall development of the city.

Plans for all multi-storeyed, high rise and special buildings are subject to the scrutiny of the Chief Fire Officer, and development permission is given by the Commissioner only after the clearance by the Chief Fire Officer. Such a compulsion should be extended to all buildings which are subject to these Regulations.

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