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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CIVIL) NO.33402 OF 2012

Municipal Corporation of Greater Mumbai and others  …Petitioners

versus

Kohinoor CTNL Infrastructure Company Private Limited and another          …Respondents

O R D E R

G. S. Singhvi, J.

Part-I

1. This petition is directed against order dated 9.7.2012 passed by the Division  

Bench of the Bombay High Court whereby Writ Petition No.143/2012 filed by the  

respondents  was  allowed  and  stop  work  notice  dated  22.12.2011  issued  by  

Executive  Engineer  (Building  Proposal)  City-III,  Municipal  Corporation  of  

Greater Mumbai and order dated 27.4.2012 passed by the Additional Municipal  

Commissioner restricting the height of Wing ‘C’ of the buildings being constructed  

on Plot No.46 of Town Planning Scheme – III, N. Kelkar Road, Shivaji Park,  

Mumbai to ground and 4 upper floors were quashed.  

2. The plans submitted by respondent No.1 for construction of Wings - ‘A’,  

‘B’ and ‘C’ of the building were sanctioned by the competent authority  

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of the Municipal Corporation of Greater Mumbai (for short, ‘the Corpora-

tion’) and Intimation of Disapproval was issued on 15.2.2006. After the  

Ministry  of  Environment  and Forests,  Government  of  India  granted  

clearance for the construction of commercial building, the competent  

authority  issued  commencement  certificate  dated  13.9.2006.   The  

Joint Commissioner of Police (Traffic) issued NOC dated 11.12.2009 for  

the development of a multi-storied public parking lot and vide letter  

dated 2.6.2010, the State Government granted in-principle approval  

under Clause 33(24) of the Development Control Regulations (DCR)  

for Greater Mumbai, 1991 for construction of a multi-storied public  

parking lot. Thereafter, the competent authority issued the Letter of Intent dated  

27.7.2010.

3. During the construction of the building, the Urban Development Department  

of the State Government sent letter dated 4.3.2011 to the Municipal Commissioner  

requiring him to submit a proposal for amendment of Clause 33 (24) of the DCR  

for limiting the height of parking towers to 4 floors and also for revocation of all  

sanctioned proposals where the commencement certificates had not been issued.  

In view of that letter, the Corporation issued circular dated 22.6.2011 prescrib-

ing certain conditions under Clause (iv) of DCR 33(24) and clarified  

that all proposals for public parking lots shall be considered subject to  

those conditions. The new conditions sought to limit the height of pub-

lic parking to ground plus 4 upper floors and 2 basements.

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4. As a  sequel  to  the  above changes,  the  Corporation issued  notice  dated  

29.11.2011 to respondent No.1 under Section 51 of the Maharashtra Regional and  

Town Planning Act, 1966 requiring it to show cause as to why the commencement  

certificate may not be revoked.  Respondent No.1 submitted detailed reply dated  

14.12.2011 and pleaded that the amended DCR 33(24) cannot be made applicable  

to its buildings because substantial construction had already been made at a cost of  

Rs.167/- crores. Thereafter, the concerned Executive Engineer issued stop work  

notice dated 22.12.2011 and directed respondent No.1 to restrict the work of pub-

lic parking to 4 floors instead of 13 floors. After about six months, Additional Mu-

nicipal Commissioner passed order dated 27.4.2012, the relevant portion of which  

is extracted below:

“As there is a substantial construction on core part of the  plot, PPL done in this part shall be allowed to the extent of  already  executed  construction  as  per  report  dated  27/12/2011.  I n  the remaining portion  of the plot, where  there is no substantial construction, PPL shall be limited to  G + 4, Developer is  to be asked to  modify his plans in  consonance with modified DCR.”

5. The  respondent  challenged  the  stop  work  notice  and  the  order  of  the  

Additional Municipal  Commissioner in Writ  Petition No.143/2012,  which was  

allowed by the High Court in the following terms:

“In  the  facts  of  this  case,  the  admitted  position  as  accepted  in  the  order  of  the  Additional  Municipal  Commissioner indicates that the work of development had  substantially  progressed  by  the  time  a  notice  to  show  cause was issued under Section 51 of the M.R. & T.P. Act,  1966.  The  impugned  order  passed  by  the  Additional  Municipal  Commissioner  restricting  the  Petitioners  to  a  

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height of a ground floor and four upper floors in deviation  of the permission granted earlier is therefore contrary to  law. Hence, the impugned order would have to be quashed  and set aside and is accordingly set aside. The stop work  notice  which  has  been issued to  the Petitioners  on  the  basis  of  the  notice  to  show cause  dated 29  November  2011 is to that extent quashed and set aside. Rule is made  absolute  in  these terms.  There  shall  be no  order  as  to  costs.”

6. The  special  leave  petition  filed  by  the  petitioners  was  taken  up  for  

admission  hearing  on  23.11.2012,  on  which  date  S/Shri  F.S.  Nariman,  K.K.  

Venugopal, Dr. A.M. Singhvi, Shyam Divan and other learned counsel appeared  

on  behalf  of  the  respondents.  During  the  course  of  arguments,  Shri  Harish  

N.Salve,  learned  senior  counsel  appearing  for  the  petitioners  made  some  

suggestions. Thereupon, Shri F.S. Nariman, learned senior counsel appearing for  

respondent No.1 gave out that his assisting counsel will seek instructions. The  

case was then adjourned to 10.12.2012 with liberty to the parties to file additional  

affidavits incorporating their respective suggestions and also produce copies of the  

sanctioned plans.

7. On  the  next  date  of  hearing,  i.e.,  10.12.2012,  this  Court  passed  the  

following order:

“We have heard learned counsel for the parties.

The engineers  of the Corporation and the respondents  may  hold a joint meeting, examine the plans prepared by the Corporation  which have been filed before this Court and submit a report on the  feasibility  of  providing  ramp  at  the  point  suggested  by  the  Corporation.

List the case on 11.01.2013.”

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8. Further  arguments  were  heard  on  22.1.2013,  30.1.2013,  19.2.2013,  

28.2.2013 and 11.4.2013.  On 18.4.2013, learned senior counsel for the parties  

gave  out  that  their  clients  have  amicably settled  the  matter.  Their  instructing  

counsel  also  filed a  Memorandum of Settlement along with an annexure duly  

signed by the representatives of the parties and their advocates.

9. Accordingly, the Memorandum of Settlement signed by the representatives  

of the parties and their advocates on 18.4.2013 together with the annexure are  

taken on record.   We note that this settlement is arrived at on the backdrop of the  

facts and circumstances of this case.  We clarify that we have not in anyway held  

the Municipal Circular dated 22.6.2011 to be bad in law. We direct that the parties  

shall strictly abide by the terms of settlement.

Part-II

(A) The problem concerning reduction in the recreational area at the  ground level:-

10. Having dealt with the actual controversy between the parties which led to  

this SLP, we deem it proper to take cognizance of a few important issues, which  

arose in the course of this proceeding concerning the impact of excessive con-

struction and higher FSI on the urban environment.  The concept of Floor Space  

Index (FSI) implies the buildable potential of a plot of land. The FSI to be allowed  

must take into consideration the availability of civic infrastructure including open  

spaces, transport facilities, requirements for protection against fire, and water sup-

ply and sewerage as well as electricity. An increase in FSI is likely to result into  

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an increase in the density of population. FSI has an important bearing on the qual-

ity of urban life. A relaxation of FSI norms or, as the case may be, an enhancement  

of FSI by urban planners cannot be removed from the issue of adequacy, or as the  

case may be, inadequacy of civic services.

11.  The requirement of keeping open spaces at the ground level should be read  

in this context. The recreational areas and greens in the multi-storied buildings  

have to be scrupulously safeguarded. The problem with the existing Municipal and  

Town Planning statutes is that they factor only two out of the three compelling  

needs. The first need is that of increasing housing stock – which is undeniable.  

The second need is that  of keeping recreational areas  for residents.  The third  

entirely different and equally, if not more compelling, is the need to assess the  

sustainable capacity of the city and to balance the development with this capacity.  

The principle of sustainable development which has been construed by this Court  

as an integral part of Article 21 of the Constitution deserves to be applied to town  

and urban planning throughout the country. This requires a thorough assessment of  

the environmentally sustainable capacity of every city/urban area.  The preparation  

of Master Plan/Town Planning Schemes has to be made keeping in view the issue  

of sustainable capacity of the particular city/urban area.

12. Clause 23 of DCR for Greater Mumbai lays down the minimum requirement  

for  providing the  recreational  ground.  The area  to  be  retained as  recreational  

ground varies depending upon the size of the plot. The present position under the  

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DCR is as follows:-

(i) Area from 1001 SQ.M. to 2500 SQ.M. 15 per cent (ii) Area from 2501 SQ.M. to 10,000 SQ.M. 20 per cent (iii) Area above 10,000 SQ.M. 25 per cent

13. In the present case, we find that as per the approved plan, the recreational  

space  available  at  the ground level  is  only 7.7% of the  area  of  the  plot  and  

respondent  No.1  has  accordingly  raised  construction.  The  respondents’  plea,  

which appears  to  have been accepted  by the Corporation,  is  that  under DCR  

38(34) the recreational area can be provided on the podium.  We may add that  

since the petitioners  and respondents  have arrived at  a  settlement,  we do not  

propose to go into this issue with respect to the construction of the respondent.  

We are, however, surprised that the Municipal Corporation did not look into the  

reduction in the recreational area  at  the ground level very seriously,  probably  

because the rule permits recreational space on the podium.   If this is treated as a  

correct interpretation, then it is quite possible that the recreational area left at the  

ground level could simply be zero. It may leave no space on the ground floor for  

the residents/occupants of the apartments constructed in the particular building,  

and that  will have serious adverse  impact  on the right to  life not  only of the  

residents / occupants of the apartments but also of the people in the adjoining  

areas because all of them will have to only fall back on the public parks or play  

grounds and gardens for their minimum recreational requirements. When the cities  

are overcrowded, the roads are narrow and the traffic is increasing, the situation  

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will be extremely hazardous for the children and senior citizens. There will be no  

greens in the buildings and the people will always crave for fresh and pure air. The  

buildings  without  greens  will  add  to  the  ever  increasing  temperature  of  the  

overcrowded cities and urban areas. To put it differently, all constructions without  

adequate green and recreational areas will have serious impact on the environment  

and human life. If the recreational area is on 20th or 40th floor, the residents of the  

apartments may be able to access the same only through an elevator and that could  

never be a substitute for any such activity at the ground level.

(B) The problem of impact on traffic:-

14. The  next  issue  which came up  during the  discussion of  this  SLP was  

concerning  the  impact  of  the  construction  of  high  rise  buildings  in  thickly  

populated areas on the traffic in the city. In the present case parking is proposed to  

be provided in the basements of the three buildings and in the ground floor plus 13  

floors of  building /  tower  C,  wherein now as  per  the settlement between the  

parties, basement and ground plus 4 floors are to be reserved for public parking  

and the upper floors from 5th to 13th are reserved for the parking of the residents /  

occupants of the building concerned (called as captive parking).  It is alright to say  

that  parking is being provided for public purpose  as  well,  but  on that  ground  

higher FSI is granted to the developer.   The object  of the arrangement is not  

merely to provide space for public parking but also for the parking of vehicles by  

the residents of the high rise buildings, and then to get further FSI.  Consequently,  

such high rise buildings bring along with them more number of vehicles of the  

occupants.   Under  DCR  No.31  (1),  the  height  of  the  building has  to  be  in  

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proportion to width of the road which is adjoining the building.  Proviso to DCR  

31 (1) lays down that construction schemes under certain DCRs bearing Nos.33  

(7),  33  (8)  and  33  (9)  which relate  to  reconstruction /  redevelopment of  old  

buildings are exempted from application of DCR 31(1).  The consequence is that  

the schemes of reconstruction bring along with them more population and more  

vehicles into an already congested area.  The question is whether such exemption  

is justified, valid and legal?

15. The  Municipal  Corporation  has  prepared  a  document  called  "City  

Development Plan under Jawaharlal Nehru Urban Renewal Mission (JNNURM).  

The document sets out that for a population of 12 million, in an area of 437 Sq.  

Kms. there are only 753 parks with an area of 4.4 Sq.Kms.  There is a vehicle  

population of 1.2 million with annual increase of 4 to 5%.  9.9 million people  

commute daily.  The transportation system is plagued by inadequate capacity of  

the existing arterial roads, overriding surface of the roads, traffic bottle-necks and  

over burdened suburban rail system. The traffic density at peak hours is 6 to 8  

kms. per hour.  All these aspects will have to be kept in mind while examining the  

issues concerning recreational areas and traffic problems.

(C) The hazards arising out of non-compliance of fire safety standards:-

16. The third question which came up during deliberations was with respect to  

the hazards due to fire in such towers. There are provisions with respect to the  

space to be kept around such buildings for the movement of the fire-engines within  

the  compound and within such building [DCR No.43  (1)  2].   There  are  also  

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provisions with respect to sprinklers and other provisions in Appendix-VIII.  The  

fire  engines  with  their  ladders  available  with  the  Municipal  Corporation  are  

reportedly not reaching anywhere beyond 14th floor.  Even the fire which very  

recently engulfed the Secretariat Building of the State of Maharashtra (known as  

Mantralaya) took a few days to be controlled when the building has a height of 6  

floors, and in which exercise a few persons unfortunately died.  The issue of safety  

of the occupants of the high rise buildings, the residents in the neighbourhood and  

the firemen is equally important.   

17. We  are,  therefore,  of  the  view  that  following  four  issues  require  a  

consideration:-

(1) What should be the correlation between DCR 23 and DCR 38 (34)  

regarding the recreational area?  Is it permissible to reduce the mini-

mum recreational area provided under DCR 23 on any ground?

(2) Whether the exemption from DCR 31 (1) under DCR Nos. 33 (7), 33  

(8) and 33 (9) is justified, valid and legal particularly in the island  

city of Greater Mumbai?  If so, to what extent and in which context?

(3) What is the impact of the addition of FSI in the island city on the traf-

fic situation?  How can it be controlled?

(4) Whether the present mechanism for protection against the fire haz-

ards is adequate and is being implemented effectively? If not, what  

should be the mechanism for enforcement with respect to the provi-

sions concerning the fire safety?

18. We propose to examine these questions in the light of the statistics of the  

population in the island city of Mumbai, the availability of the roads therein, and  

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the incidents of fire which have taken place in the island city.  We will require the  

assistance  of  Municipal  Corporation  of  Greater  Mumbai  and  the  State  of  

Maharashtra for this purpose.  These issues have become urgent particularly for  

the residents of island city which is not disputed by Mr. Harish Salve, learned  

senior counsel for the petitioners as well as Mr. Nariman, learned senior counsel  

appearing for the respondents.   It  is,  therefore,  that we feel that although the  

petitioners and respondents may be permitted to proceed with the settlement that  

they have arrived at, this SLP be kept alive so that Mr. Salve and Mr. Nariman  

can assist us on these issues in public interest.

19. We will also have to hear the State of Maharashtra.  We would like to look  

into the aforesaid issues in the light of Constitutional provisions under Articles  

14, 19, 21 and 48A.  We would like the counsel for both these parties and the  

learned counsel appearing for the State of Maharashtra to help us arrive at early  

decision since the problem has become urgent and acute.   They may as well  

suggest appropriate protective measures including prohibitory/guiding orders with  

respect to on going constructions.

20. A notice will be issued to the State  of Maharashtra to file its  response  

within 4 weeks hereafter.  The Municipal Corporation and the respondents who  

are the builders are already before this Court.  They are also directed to file their  

response within 4 weeks on the above referred four issues.  

(A).  We direct  the Municipal Corporation to file following affidavits on the  

above four issues:-

(i) The affidavit of the Chief Engineer, Town Planning on issues no.1  

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and 2.

(ii) The  affidavit  of  the  Chief  Engineer,  concerning traffic  on  issue   

no.3.

(iii) The affidavit of the Chief Fire Officer on issue no.4.

 (B).  We direct the State of Maharashtra to cause affidavits to be filed on the  

above four issues.   

(i) By the Secretary, Urban Development Department on issue nos. 1, 2  

and 3 above.

(ii) By the Commissioner of Police (Traffic) on issue no. 3 above.

21. The SLP be notified for further hearing after 4 weeks.   

        ..….………………….…J.          [G.S. SINGHVI]

        ..….………………….…J.          [H.L. GOKHALE]

New Delhi, July 25, 2013.

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