BMC tweaked FSI rules to benefit builders, change terminology, says PIL

Published on Jul 27, 2022 01:01 AM IST

The court seeks responses from the state government and the BMC, said the stream cannot rise above its source

Image for representation Paroma Mukherjee/HT Photo
Image for representation Paroma Mukherjee/HT Photo
ByK A Y Dodhiya, Mumbai

The Bombay High Court on Tuesday directed the Brihanmumbai Municipal Corporation (BMC) to explain how it was allowing excess Floor Space Index (FSI) to be utilised under the Development Control and Promotion Regulation (DCPR)-2034. The stream after all, the court observed, cannot rise above its source. The court’s allusion was to the fact that the tweaked definition of the term “FSI” in the DCPR-2034 was contrary to what was provided under the parent legislation, the Maharashtra Regional and Town Planning Act, 1966, and the Building Code of India.

A Public Interest Litigation has been filed in the Bombay High Court challenging this very fact, and seeks scrapping of the definition of the term FSI in the DCPR-2034. The litigants’ plea is that excess FSI will further congest the city and increase pressure on infrastructure.

The division bench of chief justice Dipankar Datta and justice Makarand Karnik while hearing the PIL filed by advocates Isha Singh and Abha Singh was informed by advocate Aditya Pratap that as per FSI norms laid down in the DCPR-2034, 30-storey buildings were being constructed in place of ground-plus-two storey old buildings.

The lawyer submitted that while the smaller buildings adhered to the relief area around the structure stipulations in accordance with the previous development plans, the taller buildings were not only violating the relief area norms but were also not leaving sufficient space for fire tenders to enter their premise.

The advocate pointed out that this was being permitted under the DCPR-2034 by tweaking the definition of FSI, which he claimed was in contrast to the established and accepted definitions provided under the MRTP Act and National Building Code of India.

“While the Act defines FSI based on aggregate Built-up Area (BUA) without any qualification, the Administrative Regulations have added words to the statute by exempting huge BUA from FSI computations. In this way, a mammoth quantum of construction has got added by tweaking the law,” Aditya Pratap submitted.

The petition further stated that the parent enactment, the MRTP Act, defines FSI as Total Area on all floors including the built-up area divided by area of the plot. However, the DCPR- 2034 prepared under the 1966 Act defines FSI differently, whereby the Built-up Areas are exempted from FSI and “fungible FSI” a term not mentioned in the parent Act have been included, thus allowing skyscrapers to come up on smaller plots.

“Subordinate officers cannot change a legal definition of FSI as has been mandated in the Act enacted by the State Legislature. It is because of such a change in definition of the FSI, that in Mumbai, massive buildings are being constructed on small plots. It is for this reason that where there were two-floor buildings, they are being demolished and redeveloped into buildings of the height of about 30 floors,” the petition stated.

The advocate for the litigants submitted that the definition of FSI tweaked by the BMC which is a planning authority under the MRTP Act for DCPR-2034 should be declared null and void.

Additional government pleader Milind More representing the state government, however, pointed out that as BMC was the planning authority for the DCPR-2034 it should also be made a party to the PIL, which the court accepted and directed the petitioners to do the needful.

The court then directed the state and the BMC to file affidavits in response to the PIL by August 11, and asked the petitioners to file rejoinder to the same, if any, by August 17.

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