MUNICIPAL CORPORATION OF GREATER MUMBAI AND ORS. v. KOHINOOR CTNL INFRASTRUCTURE COMPANY PRIVATE LIMITED AND ANOTHER

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INFRASTRUCTURE COMPANY PVT. LTD. [H.L GOKHALE, J]

apparently meant for laudable purpose, are very often resulting A into extreme crowding, and traffic congestion. It is necessary that while granting exemptions from OCR 31 (1 ), there must be a scheme-wise approach, and there ought to be a proper supervision of the construction. These development schemes and the additional FSI thereunder, should be examined locality- B wise. The impact of such high-rise buildings on the adjoining locality as well as on the traffic, is required to be examined before granting such permission.

54Copy pinpoint54. In our view, there is a need to restrict the additional pressure on existing infrastructure so that it does not affect the quality of life. The existing social infrastructure like educational institutions, open spaces, hospitals etc, and physical infrastructure like water supply and drainage is already over- burdened. Therefore, wherever possible, the State-Government, the planning authority, and the committee entrusted with drafting of the new plan should consider contribution by the existing occupants themselves to a good extent towards the construction cost, or the State should contribute through its agencies or from the amount of cess-collected. This will result into curtailing the number of additional entrants and will not add to the density of the population. This approach should particularly be examine<;i where the plots are small or are in congested areaska_nd particularly where the proposal is under OCR 33(7). The new Development Plan is to be prepared shortly, and while preparing the plan these aspects concerning restrictions on blanket exemptions, contribution by the existing occupants to the reconstruction schemes, locality-wise consideration and impact of additional FSI on traffic, ought to be gone into. In areas where the old town planning schemes have prescribed a uniform lay-out, one can accept some buildings going up to a certain extent, if necessary, to accommodate the existing occupants in a reconstruction scheme. However, it should not result into a plethora of steeply rising buildings, to accommodate outsiders to the building, adding to the population and traffic, and disturbing the existing H

1172 SUPREME COURT REF ORTS [2013] 16 S.C.R.

A order of the lay-out completely.

Reconstitution of the 'Technical Committee for High Rise Buildings':-

55Copy pinpoint55. (i) It has been pointed out on behalf of the Municipal B Corporation that subsequent to a·PIL in the Bombay High Court in the case of Tardeo Haji Ali Residents Welfare Association, the State Government has constituted a 'Technical Committee for High-Rise Buildings' (i.e. Buildings exceeding 70 meters in height). As per the note submitted by the learned Senior C Counsel for the Municipal Corporation, the terms of reference of the committee are as follows:-

"(1) The Committee shall be of advisory nature and it will advise the Municipal Commissioner regarding D the feasibility of the development proposals that might be referred to it by the Commissioner.

(2) It will be open for the Commissioner to over-rule the recommendations of the Committee, after giving a proper and reasonable justification in writing. Such E powers will not be delegated to any subordinate officer.

(3) In specific cases, if the Chairman desires, any expert from other fields may be invited for the F meeting of the Committee."

The note points out

(1) The building proposals which are to be referred to the committee G (2) The procedure to be followed by the committee ·

(3) The points to be considered by the committee, viz.,

(a) Architectural Points:- H

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INFRASTRUCTURE COMPANY PVT. LTD. [HL GOKHALE, J.]

(2) Clear width of access available. A

(2) Location, width & No. of staircase.

(3) Natural ventilation to staircase and common lobby.

(4) Whether benefit of D.C. Rule 33 (24) is availed? B

(5) The minimum net plot size for High Rise proposal is prescribed as 1000 Sq.Mt. and 850 Sq.Mts. for proposals under D.C. R. 33 (7).

(6) Depth & Nos. of the basement. c (7) Area & location of the refuge floors.

(8) Open spaces, podiums, etc.

(9) Two·:wheeler & four wheeler parking provisions in D the building.

(10) Width of comm,on lobby & ventilation.

(b) Structural and Geotechnical Points:- E (2) Soil Report indicating soil strata, depth of the hard rock, etc.

(2) Type of foundation i.e. pile foundation or raft foundation or open foundation. F (3) Design Base Report (D.B.R.) for the proposal.

(4) Various type of tests carried on site i.e. wind tunnel test. G (5) Gust factor & deflection.

(6) Details of the rock anchors, if any provided for basement. H

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A (7) Details of the soil retaining methods.

(c) Environmental Points:-

(2) Shadow Analysis.

B (2) Wind Analysis.

(3} Heat Analysis.

(4) Traffic Study & Traffic Management.

C (5) Ecological Study (Tree Plantation, Green area, etc.)

~6) Disaster Management Plan.

(7) Total Water Requirement.

D (8) Total waste water sewage generated & disposal (Design of Sewerage Treatment Plant).

(9) Effect of the constructidn material on environment.

(10) Rain Water Harvesting & Storm Water E Management.

(11) Air environment in construction & operation phase.

( 12) Solid Waste Management. F (13) Energy conservation techniques.

d) The point of view of the C.F.0.:-

(2) Height of first refuge floor from ground floor and also height of subsequent refuge floors. G (2) Location of refuge area.

(3) Whether refuge area is cantilever.

MUNICIPAL COP RN. OF GREATER MUMBAI v. KOHINOOR CTNL 117 5 INFRASTRUCTURE COMPANY PVT. LTD. [H.L. GOKHALE, J:]

(4) Clear open space along with turning radius for A movement of fire tender around the building.

(5) Width & gradient of ramp (one way or two way) leading to podium.

(6) Alternate provision for fighting the fire from ground. B

(7) Driveway for fire tender movement on paved R.G:

(8) Height of underpass in case fire tender moving below building. c (9) Podium line should be flush with building line on refuge facing area.

(10) Number of staircase and width of staircase. D (11) Distance between two staircases, through common lobbies/passages. (12) Natural ventilation through sidewalls of basements.

(13) Compartmentalization of the basements. E (ii) The first committee was appointed by a Resolution of the Urban Development Department dated 28.7.2004. The composition of the Committee has changed from time to time. We are informed that the term of the existing committee, which is the third committee, has expired. The committee consists of six members and is headed by a retired judge of the Bombay High Court, as the Chairman. It has two ex-officio members, namely, the Chief Engineer (Development Plan) of the appellant who is also the member secretary, and the Chief Fire Officer of the appellant. There are three expert members. Following are the present expert members:- "(1) Prof R. S. Jangid, Dept of Civil Engineering, /IT Bombay, as a Structural Engineering Expert. H

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A (2) Prof. Abhay Bambole, Professor and Head of the Structural Engineering Department, VJIT, Matunga, as the Soil and Geotech Expert.

(3) Or. Rakesh Kumar, Director and Gr. Scientist and Head NEER! Regional Centre as the Environmental B Expert."

56Copy pinpoint56. It has been suggested that we appoint a new committee, though the State Government has expressed its willingness to extend the term of the present committee. Mr. C Nariman has, in fact, suggested that the committee should consist of memQers who will play a pro-active role. Mr. Divan submitted that it should be a Development Plan over-sight committee, and it should at-least look into the grievances with respect to the schemes under 33(7), (8),(9), and (10). Mr. D Joaquim Reis, learned senior counsel instructing Dr. Abhishek Singhvi, learned senior counsel appearing for the Property Redevelopers Association, suggested inclusion of an architect in the committee. Considering that the architectural points as mentioned in the municipal note, are also to be gone into by the committee, the suggestion is quite apt. He suggested the inclusion of eminent architect Mr. Charles Correa, who is associated with UDRI (and which is represented by Mr. Divan). · We are, however, not including his name only for the reason that we are informed that he is a very busy architect, though the committee should certainly consult him whenever necessary. In his place, we include Shri Pankaj Joshi, Architect, Urban Researcher, and consultant to the appellant-Municipal Corporation, whose name is suggested by Mr. Divan. Thus, the assistance of an architect will also be available to the committee. H.aving taken the consensus of the counsel appearing in the matter, we are effecting one more change in the committee. We appoint Hon'ble Mr. Justice P.S.. Patankar, former Judge of the Bombay High Court, to be the Chairman of the committee.

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INFRASTRUCTURE COMPANY PVT LTD. [H.L GOKHALE, J.]

The committee will now consist of the following:- A

1) Chairman Mr. Justice P. S Patankar, Former Judge of the High Court of Bombay B 2) Member Secretary Chief Engineer (Development Plan) of Municipal Corporation of Greater Mumbai (MCGM) c 3) Member Prof Department of Civil (Structural Engineering, /IT Engineering Expert) Bombay, Pawai. (presently Professor R. S Jangid or any other D professor, with the required qualifications, nominated by the Director /IT Pawai) E 4) Member Prof and Head of the (Soil, Mech. Structural Engineering Geo Tech. Expert) Department, VJTI, Matunga. (presently Prof Abhay Bambole or F any other professor, with the required qualifications, nominated by the principal VJTI) G 5) Member Director Gr, Scientist (Environmental and Head NEER/ . Expert) regional centre (presently Dr. Rakesh Kumar) . H

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A 6) Ex-officio member Chief Fire Officer of MCGM

7) Member Mr. Pankaj Joshi (Architect and Urban (Architect, Urban Researcher) Researcher, and B Consultant to the MCG'MJ

The additional terms of reference for the Committee:·

c 57. (i) As of now, all new building proposals where the height of the building exceeds 70 meters is referred to the committee. A scrutiny fee for Rs 50,000 per proposal is collected at the time of submission of the proposal. We have already referred to the existing terms of reference. In view of 0 the discussion in this matter, in our view, it is desirable that the committee be requested to look into two additional aspects which are as follows:-

(ii) The committee will also look into the grievances regarding construction and technical requirements of the development schemes under OCR 33(7), 33(8), 33(9) and 33(10), whenever brought to the notice of the committee by concerned persons.

(iii) The committee may as well make recommendations to the State Government with respect to the new Development Plan which is under drafting.

58Copy pinpoint58. (i) The committee will have to spend good time for this work. The honorarium paid to the chairman is presently fixed at Rs. 15000 per month, and it was fixed much earlier. Now G we are widening the terms of reference. Therefore, we direct that the appellant-Municipal Corporation will pay an honorarium of Rs. 50,000/- per month to the Chairman. The other members will be provided with the conveyance charges and attendance charges to attend the meetings and for site inspections. as per H the municipal rules. The Municipal Corporation will make

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INFRASTRUCTURE COMPANY PVT. LTD. [HL GOKHALE, J]

available an appropriate room in its headquarters and secretarial staff for the working of the committee.

(ii) The State Government shall issue necessary notification reconstituting the committee, its terms of reference, and other aspects, such as honorarium etc, within four weeks hereafter.

59Copy pinpoint59. Before we conclude, we record our appreciation for all the learned counsel who have assisted us in deciding the issues, and particularly Senior Counsel Mr. Nariman and Mr. Salve, who appeared for the respondents and appellants c respectively, at the stage of the earlier order which was passed on 25. 7 .2013, but assisted the Court in deciding the four issues.

In the circumstances we pass the following order:- D

60Copy pinpoint60. (1) The memorandum of settlement dated 18.4.2013, concerning the Public Parking Lot (PPL) arrived at between the appellant-Municipal Corporation of Greater Mumbai and the respondents was taken on record, as noted in Part-I order dated 25.7.2013, in the facts and circumstances of the present E case. Both the parties shall act strictly in accordance with the same. It is clarified that as held in the said order, the Municipal circular dated 22.6.2011 is not in any way held to be bad in law. F (2) The four additional issues framed in Part-II of the above order are decided as follows:-

Issue No. (i) - The minimum recreational space as laid down under Development Control Regulation (OCR) 23, cannot be reduced on the basis of OCR 38(34). The recreational G space, if any, provided on the podium as per OCR 38(34)(iv}, shall be in addition to that provided as per OCR 23.

Issue Nos. (ii) & (iii) - The Government of Maharashtra, the Development Plan Drafting Committee, and the appellant- H

1180 SUPREME COURT REPORTS [2013] 1q S.C.R.

A Municipal Corporation shall consider the suggestions as contained in paragraph Nos.53 and 54 above, while framing the Development Plan for Greater Mumbai.

Issue No. (iv) - The second proviso to OCR 43(1) (A), concerning fire protection requirements, is held to be bad in 8 law. We hold that even for the reconstruction proposals of plots upto the size of 600 sq. mts. under OCR 33(7), open space of 4 the width of 6 meters at least on one side a1 ground level within the plot, accessible from the road side will have to be maintained for the maneuverability of a fire engine, unless the C building abuts two roads of 6 meters or more on two sides, or another access of 6 meters to the building is available, apart from the road abutting the building.

(3) The decision as contained in Clauses 2(i) and 2(iv) D above, will apply to those constructions where plans are still not approved, or where the Commencement Certificate (CC) has not yet been issued. All authorities concerned are directed to ensure strict compliance accordingly.

E (4) The Government of Maharashtra shall issue the necessary notification within four weeks of this order, re- constituting the 'Technical Committee for the High-Rise Buildings', as directed in paragraph 56, including the additional terms of reference, as mentioned in paragraph 57 above. The appellant is directed to render assistance and provide the required honorarium, as mentioned in paragraph 58 above.

(5) In view of the settlement arrived at between the parties, as well as Part-I order dated 25.7.2013 mentioned in paragraph (1 ), and the determination on the four additional issues as in paragraph (2) above, no further order is required on this appeal, and the appeal stands disposed off accordingly.

(6) The parties will bear their own costs.

Kalpana K. Tripathy Appeal disposed of H