The municipal commissioner must take into consideration health and safety concerns of residents of surrounding areas before granting permission for any building to be constructed within close proximity of an existing building, ruled the Bombay high court last week.
The court observed that the municipal commissioner should not brush aside requirements of health and overall safety of the residents of the proposed building and the neighbourhood and must take into account these concerns before granting a relaxation in provision for marginal spaces. Marginal space is the area surrounding a structure, which must be kept open as per legal stipulations.
“The power to grant a relaxation is coupled with a duty that the municipal commissioner must apply his mind to all relevant circumstances,” observed the division bench of justice DY Chandrachud and justice Anoop Mohta. The court was hearing a petition filed by Ikram Suleman Qureshi, a resident of Suleman Tower in Tardeo. Qureshi had challenged the municipal commissioner’s order overlooking a deficiency in marginal spaces for an adjoining building, which was under construction.
Although legally, a developer is required to leave a marginal distance of 6 metres, the civic chief had allowed the developer of the building to construct it at a distance of only 2.10 meters from Suleman Tower.
The municipal commissioner had granted relaxation to the builder after charging a premium, and after taking into consideration that the plot was small in size and had to accommodate 25 rehabilitation tenements.
The judges found that the municipal commissioner had not considered the effects of the relaxation and directed the civic chief to reconsider the order. “The municipal corporation seems to proceed on the basis that the mere charging of premium is sufficient to condone a deficiency of open space,” observed the court. “This is completely contrary to the underlying basis and purpose of regulation 64(b),” it added.
Regulation 64(b) of Development Control Regulations empowers the municipal commissioner to condone deficiency in marginal spaces in cases of demonstrable hardship.
The court has now allowed the developer to submit amended plans, so that he can include mandatory marginal spaces into the project plan.