HC upholds legality of a high-rise building Gamdevi heritage precinct

The PIL, filed by a residents’ association in 2007, alleged that the executive engineer faked hte number of tenants to claim extra FSI

MUMBAI: The Bombay high court on Monday dismissed a plea challenging the construction of a 15-storey building in Gamdevi heritage precinct in Malabar Hill. The court upheld the validity of provisions contained in the Development Control Regulations, 1991, which permitted the redevelopment of cessed buildings falling in the Grade-III category, exceeding 24 meters in height.

Bombay High Court at Fort (HT Archives) (Anshuman Poyrekar/HT PHOTO)

The Gamdevi Residents’ Association filed the public interest litigation in 2007, questioning excessive development activity in Saraswati House, a ground-plus-two-storey cessed building located within the heritage precinct. The Heritage Regulations for Greater Bombay, 1995, notified Gamdevi as architecturally significant. It also includes the landmark Mani Bhavan, where Mahatma Gandhi stayed during his visits to Mumbai between 1917 and 1934.

The case relates to the redevelopment of Saraswati House, for which the Maharashtra Housing and Area Development Authority (MHADA) issued a no-objection certificate (NOC) in 2002 to construct a new 15-storey high-rise in its place. The Saraswati House was demolished and subsequently, the construction of the redeveloped building began. The petitioners noticed the structure, which consisted of a basement, stilts, and 15 upper floors, was taller than the other buildings in the precinct.

The petitioners alleged that the executive engineer doubled the number of families that resided in the building. Even though there were only three families, he certified it as six with ulterior motives to claim excess FSI without mandatory approval from the Heritage Conservation Committee (HCC), according to the petition.

Senior advocate Zubin Behramkamdin, appearing for the petitioners, submitted that the construction permission granted contrasted with the provisions of DCR 1991, which does not permit any redevelopment in a heritage precinct except with the prior approval of the municipal commissioner, who is required to act on the advice of the HCC. Regulation 67(7) mandates that buildings listed in the heritage precincts shall maintain the skylines in the precincts without any high-rise so as not to diminish or destroy their value. Therefore, the advocate said, every building with a height taller than 24 meters requires approval from HCC, and special permission from the municipal commissioner is mandatory.

On the other hand, advocate Oorja Dhond, representing the MCGM, submitted that the Gamdevi Precinct was a Grade-III precinct and therefore, given the amended Regulation 67, development activity can be allowed with special permission from the municipal commissioner if the height of the new building exceeded 24 meters. She stated that the corporation had called for comments from HCC, which remarked that the NOC by them was not necessary. “All permissions have been issued strictly in conformity with the DCR, and that there is no illegality,” she added.

The division bench of chief justice Alok Aradhe and justice Sandeep V Marne dismissed the petition considering the classification brought in by the 1999 amendment to Regulation 67, which provided for a relaxation and empowered the Municipal Commissioner to issue a special permission from heritage point of view for redevelopment of the building, that too, if the height of the building exceeds 24