HC strikes down BMC condition, allows high-rise in Fort heritage precinct
The Bombay High Court has allowed the construction of a 69.90-meter-high building in the Fort heritage precinct without the mandatory no-objection certificate from the Mumbai Heritage Conservation Committee. The court ruled in favor of the developer, stating that the civic body did not impose the same condition on a neighboring high-rise project. The court directed the BMC to issue all necessary permissions to the developer without the NOC requirement.
The Bombay high court has allowed construction of a 69.90-metre-high building in Fort heritage precinct without the mandatory no-objection certificate (NOC) from Mumbai Heritage Conservation Committee (MHCC), as is required by the Brihanmumbai Municipal Corporation (BMC).
A division bench of justice Gautam Patel and justice Kamal Khata last week passed an order in favour of Shreeji Realty on grounds that the civic body had imposed no such condition while allowing a high-rise just a few metres from the spot where the developer was executing its project.
The petitioner said while granting permission for redeveloping three structures spread over 323 square metres at the junction of Nadirshah Sukhiya Street and Pitha Street, the BMC had on December 29, 2021, asked the developer to obtain an NOC from MHCC for constructing a building with a height of 69.90 metres as the site fell in Fort heritage precinct.
The municipal commissioner had reiterated the condition in December 2022 while granting special permission – required under regulation 52 of Development Control Promotion Regulations (DCPR) 2034 - for construction beyond 32 meters in height in notified heritage precincts, the plea said.
Counsel for the developer pointed out that though the property was in Fort heritage precinct, the three old structures constructed on it had absolutely no redeeming value whatsoever. It had no aesthetic, architectural, historical or any other importance at all, and as held by the high court earlier, MHCC permission was required only if the building being redeveloped was notified as a grade-I or grade-II structure.
Besides, the lawyer said the civic body had allowed a new building – over 60 metres in height – just across the street and permission could have been given to Shreeji Realty as well.
The bench said the premise that the condition was entirely without the authority of law and contrary to clause 9(D)(b) of regulation 52 of DCPR 2034 appeared to be correct because that clause did not say that MHCC’s NOC was mandatory, and it only required that guidelines for preservation of heritage precincts may be taken into consideration.
“There is no evidence of MHCC permission for that new development (across the street),” the bench said. “Yet, under the same heritage control regulations, the petitioner (Shreeji Realty) is being told that he cannot develop as his neighbour across the street did, without permission from the heritage committee. This, we are asked to believe is not arbitrary, not discriminatory but is a fair application of a law to all equally placed.”
The court said since BMC failed to show that MHCC permission was granted to the building across the street, it was difficult to see how such a condition could be accepted for the petitioner’s property. “If that permission was indeed granted and such a tall building has been allowed to be put up, it means there is no restriction of the kind that is now sought to be imposed on the petitioner.”
The court directed BMC to issue all necessary permissions – fresh development permission, full commencement certificate, occupancy certificate etc. to the petitioner without insisting on an NOC from MHCC.