Prakash V. Patel And Anr vs The State Of Maharashtra And 3 Ors
2017 Latest Caselaw 2354 Bom

                                 1                  PIL-34-16(J)

        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
           ORDINARY ORIGINAL CIVIL JURISDICTION
         PUBLIC INTEREST LITIGATION NO.34 OF 2016


1 Prakash V. Patel, of Mumbai,
Indian Inhabitant residing at
47, Usha Kiran, 15 Carmichael
Road, Mumbai 400026.
Occupation : Business

2 Dilnar Jehanbux Chichgar
of Mumbai Indian Inhabitant
residing at 12A Mayflower,
Carmichael Road,
Mumbai 400 026.
Occupation : Housewife               .. Petitioners

         Versus

1 The State of Maharashtra
Urban Development Ministry,
Mantralaya, Mumbai

2 Municipal Corporation of
Greater Mumbai having its
office at Brihanmumai
Mahanagar Palika Bhavan,
Mahapalika Marg, Opp C.S.T,
Mumbai 400001

3     Windsor Residency Pvt.Ltd
Company registered under the
Companies Act, 1956 having its
regd office at Jindal Mansion,
Dr.G.Deshmukh Marg,
Mumbai 400026.


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                                    2                         PIL-34-16(J)

4    The Mumbai Heritage
Conservation Committee
having its office at 6th floor, MCGM,
Head Office, Annex Bldg,
Mahapalika Marg,
Mumbai 400001                                 .. Respondents

                             ...
Mr.Rohan Cama a/w Ms.H.V.Tamanna, Mr.S.V.Doijode, P.A.
Kabadi & R. Daulat i/b Doijode Associates for the petitioners.

Mr.S.U. Kamdar, Sr. Advocate a/w Shobha Ajitkumar for
Corporation.

Mr.A.Y.Sakhare, Sr. Advocate a/w Mr.Joel Carlos for Heritage
Committee.

Dr.Milind Sathe, Sr.Advocate with Ms.G.R. Shastri, Addl.G.P
for the State.

Mr.Rohan Kadam a/w Sanjiv Kadam, Sanjil Kadam and
Deepak Enakphale i/b M/s.Kadam & Co. for respondent no.3.


                       CORAM: DR. MANJULA CHELLUR, CJ.
                               & G.S. KULKARNI, J.
                 RESERVED ON : 16th JANUARY, 2017
              PRONOUNCED ON : 5th MAY, 2017


JUDGMENT (Per Dr.MANJULA CHELLUR, CJ):

1 This is the second round of litigation, even could

be said a continuation of earlier Public Interest Litigation

No.118 of 2014 which came to be disposed of on 28 th January

2015 by the Division Bench.

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2                 It is not in dispute that with effect from 20 th

February 1991, Development Control Regulations (for short

referred to as "DCR") of 1991 came into force. By virtue of

Government Resolution dated 25th April 1995, Mumbai

Heritage Conservation Committee (MHCC) came to be

constituted, and it is also not in dispute that the opinion of

the Committee is in the nature of only an Advisory or

recommendatory whenever its opinion is sought. Mumbai

Heritage Conservation Committee (for short referred to as

"MHCC") at its 8th Meeting on 9th October 2002 took a

decision to request Mumbai Metropolitan Region Heritage

Conservation Society (for short referred to as "MMRHCS") - a

body constituted under Mumbai Metropolitan Region

Development Authority (for short referred to as "MMRDA") to

survey and prepare supplementary heritage list of

buildings/precincts and gradation etc, in order to review the

list of 1995 Heritage buildings and Precincts in Mumbai so as

to revise and supplement the said list. Six individuals/

institutions/associations were appointed for the said task who

submitted reports to MMRHCS, which in turn submitted in its

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reports the task numbering (i) to (iv) for the perusal of

Mumbai Heritage Conservation Committee in the year 2007-

2008 (new/revised/modified list of heritage sites).

3 So far as the building in question is concerned it

is known as 'Morena', described as an apartment block of

small scale, designed and detailed in art-deco style

"MORENA". According to the petitioners, Revised list had to

be read along with data cards indicating various individually

listed buildings including "Morena". According to them,

Mumbai Heritage Conservation Committee (MHCC) approved

the list with the Data cards and forwarded the same to

Municipal Corporation for Greater Mumbai (for short

"MCGM"). Apparently, on 31st July 2012, public notice

inviting suggestions/objections from the general public came

to be made by MCGM. It is not in dispute that the said notice

indicated that details of the structures/sites proposed to be

reviewed/listed could be inspected at the office of second

respondent.

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                                    5                          PIL-34-16(J)

4                 According to the petitioners, third respondent said

to be the owner of the building "Morena" appeared before

MMRHCS, made a presentation seeking permission for

redevelopment. Said permission came to be declined since

Morena was proposed as Grade II-B Heritage structure and

third respondent agreed to submit a revised proposal note.

5 It is further contended that the residents of

Carmichael Road, including the petitioners, noticed certain

activities in the compound surrounding "Morena" building,

including putting up of lengthy corrugated metal sheets to

enclose the building in question, and on inquiry, they were

informed that demolition work has commenced for building

"Morena". At that point of time, petitioners came up with

Public Interest Litigation No.118 of 2014 challenging the

permission purported to have been granted by MCGM to third

respondent to demolish the building. It is further contended

that MMRHCS in its affidavit filed in PIL 118/2014 clearly

mentioned as under :

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                                         6                             PIL-34-16(J)

                 (i)      "Morena" building is a proposed Grade II-B

heritage structure."Morena" building is part of the list of proposed heritage building precincts published by MCGM vide its notification dated 31 st July 2012.

(ii) "Morena" building is mentioned in the data cards prepared and forwarded by MMRHCS to fourth respondent, and after consideration and approval thereof, the list and data cards were forwarded by MMRHCS to MCGM, and the data cards is an integral part of the published list.

6 It is also their stand that respondent no.4 filed

second affidavit in the earlier PIL wherein they again

mentioned as under :-

"Morena" is a proposed Grade II-B heritage

structure listed at Serial No.449 of the list of proposed

heritage buildings and precincts published by MCGM vide its

publication dated 31st July 2012. It is further contended that

the data cards which contain inter alia, the details of the

heritage precincts containing the buildings which were

proposed to be listed individually, and the said data cards

were part of the proposal. Since respondent no.2 - MCGM

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was of the opinion in the earlier proceedings that the said

data cards would also be considered while deciding an

application to alter/redevelop proposed heritage structures

which were not part of the review list but were included in

the data cards cannot now plead that buildings which were

listed in data cards, do not form part of the published

proposal.

7 When the matter came up for consideration in the

earlier proceedings on 28th January 2015, this Court opined

that the data cards formed part of 2012 list approved by

MMRHCS and MCGM, therefore, prima facie, "Morena" was

covered in the 2012 list as it fell within M.L. Dahanukar Marg

precincts, and accordingly, directed second respondent to

make it clear whether said premises is to be declared as Grade

II-B heritage structure attracting Regulation 67(2)(iii)(a), or

it is only a part of the heritage precincts or Grade-III heritage

structure falling under Regulation 67(2)(iii)(b) of the

Development Control Regulations (DCR). The Division Bench

also injuncted the party respondent from demolishing or

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effecting any repairs, in any manner, the said premises till

respondent no.1 takes a decision.

8 Petitioners contend that subsequent to the said

directions of the Court in the earlier PIL, no hearing was

given to the petitioners, and they were kept in dark till they

secured information under Right to Information Act. On

learning about the recommendations of HRC which was

forwarded to the State wherein it was decided not to grade

the building as "Grade II-B heritage structure", Carmichael

Road Citizens Committee (for short "CRCC") approached

several authorities. Till middle of February 2016, they did

not have an opportunity to see the report of Heritage Review

Committee. When demolition work commenced, they

approached Municipal Commissioner bringing to his notice

the earlier directions of the High Court. After several

attempts of representations to Principal Secretary, Urban

Development Department and on receiving information under

Right to Information Act, Notice of Motion No.200 of 2016

came to filed in the earlier PIL No.118 of 2014 which came to

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be disposed of directing the petitioners to take appropriate

recourse by challenging the impugned decision before proper

forum, and stayed demolition of the building further.

9 It is contended that petitioners specifically have

not challenged notification dated 29th October 2016 since it is

nothing but repetition of the impugned letter according to the

petitioners. According to the petitioners, the entire material

came to be collected under Right to Information Act after

disposal of the Notice of Motion and then only the present

petition is filed.

10 The first respondent through the Dy. Director of

Town Planning on behalf of the Urban Development Authority

has placed its affidavit in reply submitting that the

Government called for reports from MCGM and based on its

opinion, accepting the recommendation of MCGM which is

the planning authority has passed the impugned order dated

11th January 2016.

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11              On behalf of the second respondent, Assistant

Engineer from Building Proposal Department, one Ratish B.

Dichwalkar filed an affidavit wherein it is stated that earlier

as per the minutes of meeting in the chambers of Municipal

Commissioner dated 16th July 2014, it was opined that the

building in question should be Grade-III category and the

building is in heritage precincts. Therefore, redevelopment

proposal was to be considered in terms of provisions of DCR

67(2)(iii)(b), except in case of Marine Drive precinct. They

further contend that those cases which do not fall within the

provisions of DCR-67(2)(iii)(b) will be sent to Mumbai

Heritage Conservation Committee. Based on the information

from various records and orders, they opined that the

structures and plot under reference does not fall under Grade

I and Grade II structure, but it is falling in M.L. Dahanukar

heritage precincts. Since the height of the building proposed

was less than 24 meters, no special permission was required.

On re-validation of licence, developer submitted a letter

informing that they are undertaking demolition of the

remaining portion of the building in terms of IOD. Thereafter,

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the present PIL came to be filed. In terms of interim

directions dated 15th March 2016 demolition work was

stopped.

12 On behalf of Respondent no.4 Senior Architect in

Development Planning Department of MCGM has also filed

affidavit in pursuance of orders of the Court on 23rd

November 2016 wherein they have clearly mentioned how

MHCC was originally constituted in the year 1995 and how

Government sanctioned Development Control Regulations-67

for Greater Mumbai dealing with the conservation of listed

buildings, areas of artefacts, structures and precincts of

historical, cultural, architectural and related significance.

The present MHCC is appointed by Government of

Maharashtra by order dated 17th August 2015 with effect

from 19th August 2015 for a period of three years. Heritage

Conservation Committee is appointed in terms of regulations

in order to advise Municipal Commissioner from time to time.

It is further contended that the study carried out by a Society

called MMRHCS was affiliated to the MMRDA to review the

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heritage list of 1995 and a document was prepared. In the

said document, it was proposed by the consultants appointed

by MMRHCS that the building "Morena" to be individually

listed as Grade II-B structure in M.L. Dahanukar Marg

precincts. In the year 2008, while recommending the draft of

revised heritage list, it recommended to include M.L.

Dahanukar Marg Precinct as "Precinct with individually listed

buildings", whereby three buildings, M.C. Bungalow, North-

end and Bungalow No.5 were recommended to be

individually listed as Grade III. In the said list forwarded by

respondent no.4, no other building was included so far as this

precinct. Therefore, it is argued that the building under

reference was not included in the said list.

13 The said list from MHCC was considered by

Municipal Commissioner/Government and then invited

suggestions and objections by publishing the list on 31 st July

2012. According to them, M.L. Dahanukar Marg precinct was

at Serial No.449 (part of Task I and II) and the building

"Morena" was only part of the precinct but not individually

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included in the said list. They further contend that the data

sheet/documentation of the MMRHCS were to be referred

only in order to have clarification or understanding of the

location and other details of a listed entry, and "Morena" was

not an individually listed entry. Even the DP remarks issued

for "Morena" did not refer it as Grade II-B structure but it was

considered only as a precinct, therefore, the redevelopment

was considered by planning authority as per the provisions of

Regulation 67(2)(iii)(b).

14 It is their further case that MMRHCS has no legal

and statutory enforcement as far as Mumbai Heritage

Conservation Committee is concerned. The data sheets

prepared by MMRHCS were only considered as an additional

source of information. It is nothing but a source of

information which has no legal sanctity of any binding

nature. On the request of Government of Maharashtra,

Municipal Commissioner forwarded remarks of the

Corporation after obtaining opinion from the Heritage Review

Committee so far as "Morena". Heritage Review Committee

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had submitted its remarks to Municipal Commissioner on 13th

August 2015 stating that it is only a precinct building situated

in M.L. Dahanukar Marg, and not a Grade II-B structure.

Accepting the same, Municipal Commissioner endorsed the

view that "Morena" cannot be considered as a Graded

structure. Accordingly, on 11th January 2016, the

Government accepted the remarks of the Municipal

Commissioner that Morena House is situated in a Precinct,

and not listed as Grade II-B building. It was further clarified

that the said building is situated in a heritage Precinct and

provisions of DCR-67(2)(iii)(b) alone are applicable.

Accordingly, on 29th October 2016, final heritage list for "D"

ward came to be notified putting certain conditions while

notifying the heritage list for "D" ward.

15 Third respondent has filed its affidavit-in-reply

through the Senior Manager. After referring to the facts and

pleadings, they contend that more than 85% of the structure

was demolished, therefore, balance structure may collapse

any time causing danger to life and property of the persons.

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                                        15                              PIL-34-16(J)

It is further argued that the authorities had acted in

conformity with the law prevailing to comply with the

directions of the High Court after careful perusal of entire

material. It is the stand of the third respondent based upon

the material facts, the State Government is empowered by

legislature to consider the aspect of heritage and decide the

matter on merits. The 'No Objection Certificate' in respect of

the redevelopment of the said building has been issued by

MHADA only after following due procedure after due scrutiny

of the material.

16 According to third respondent, the petitioners

themselves are staying in high-rise buildings who

participated in the redevelopment scheme of the

neighbouring plot. They are in the habit of filing Public

Interest Litigations with ulterior motives. It is also contended

that about 49 similar buildings on the said road were never

questioned. It is very much within the knowledge of the

petitioners that except three buildings (structures indicated at

Sr.No.449 in the heritage list) no other building, including

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"Morena" came to be included in the heritage list. The

petitioners have no right or reason to impose their idea or

presumption to create impediments in the redevelopment

undertaken by the petitioners. In terms of directions of the

Court, the State Government issued a notice of hearing on

11th May 2015 calling upon the respondents to remain present

before them on 14th May 2015. So far as the petitioners, no

such liberty/reservation was sought at the time of hearing of

the earlier Public Interest Litigation. There was clear

direction only to hear the owner of the property before

deciding the issue. The impugned order dated 11 th January

2016 is already acted upon. Respondent no.2 has re-

validated the IOC dated 5th September 2014.

17 It is further contended that the building in

question falls only in the heritage precincts and attracts DCR-

67(2)(iii)(b). Therefore, there is no embargo for demolition

of structures in question in the heritage precinct. They seek

dismissal of the Public Interest Litigation with costs.

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                                  17                           PIL-34-16(J)

18              In order to appreciate the contentions raised

before us, it is relevant to understand Development Control

Regulations. It is relevant to reproduce Development Control

Regulation 67 which reads as under :

67. -- Conservation of listed buildings, areas, artefacts, structures and precincts of historical and/or aesthetical and/or architectural and/or cultural value (heritage buildings and heritage precincts.

1 Applicability - This regulation will apply to those buildings, artefacts, structures, and/or precincts of historical and/or aesthetical and/or architectural and/or cultural value (hereinafter referred to as Listed Buildings/Heritage Buildings and Listed precincts/Heritage precincts) which will be listed in notification(s) to be issued by the Government.

2 Restrictions on Development/ Redevelopment/ Repairs, etc.

(i) No development or redevelopment or engineering operation or additions, alterations, repairs, renovation including the painting of building, replacement of special features or demolition of the whole or any part thereof or plastering of said listed/heritage buildings or listed/Heritage precincts shall be allowed except with the prior written permission of the Commissioner. The Commissioner shall act on the advice of/in consultation with the Heritage Conservation Committee to be appointed by Government (hereinafter called "the said Heritage Conservation Committee");

Provided that in exceptional cases for reasons to be recorded in writing the Commissioner may overrule the recommendation of the Heritage Conservation Committee.

Provided that the power to overrule the recommendations of the Heritage Conservation Committee shall not be delegated by the Commissioner to any other officer.

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18 PIL-34-16(J)

(ii) ....... .................

(iii) (a) Provisions of Regulation 67 would be applicable only in Grade I and Grade II category of heritage buildings for reconstruction and redevelopment of old buildings undertaken under Regulations 33(6), 33(7), 33(8), 33(9) and 33(10) of these Regulations.

(b) In case of redevelopment under DCR 33(6), 33(7), 33(8), 33(9) and 33(10) of heritage buildings/sites from Grade III and precincts - special permission from the Municipal Commissioner, Municipal Corporation of Gr. Mumbai may be obtained if the height of the building exceeds 24 mtrs. (excluding height of stilt on ground floor)

19 More or less, the submissions of the parties before

the Court are based on their pleadings. During the course of

submissions, reference is made to several documents and

opinions. Therefore, we also secure the records pertaining to

PIL No. 118 of 2014 for perusal to understand the stand of

the parties before us.

20 In the earlier round of litigation, Division Bench

observed that Sr.No. 449 of heritage buildings of 1995 list and

2012 list on comparison would reveal that (i) under the

caption 'Proposed Grade' in the 2012 list, it is mentioned

"Heritage Precinct with Individually listed buildings", whereas

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no such words appear in the column "Grade" of 1995 list.

Another revealing and relevant fact noticed was grade of

Municipal Commissioner's bungalow as well as North End and

Bunglow No.5 were listed as Grade-III in the year 1995 list

and whereas in the 2012 list, the Proposal for these structures

was shown as "Grade II-B". Therefore, there is no certainity

with regard to the grade of the structure as per the list which

came to be revised from time to time. It is also the stand of

the respondent nos.1 to 3 in the present case that in 2012 list,

"Morena" was not specifically listed as Grade II-B heritage

structure, and therefore, did not form part of the said list

which required the permission of MHCC before any

redevelopment. However, it is categorical stand of the

petitioners that the recommendations forwarded by MMRHCS

on the basis of report of six persons appointed for the said

purpose, said building was proposed to be listed as Grade II-B

heritage structure. Apparently, individually, the "Morena"

building is not specifically listed either under Sr.No.449 or

any other item of the 2012 list. It was also noticed that the

building in question was not specifically listed in the year

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2012 list since in the column "Proposed grade", it is described

as "Heritage Precinct with Individually listed buildings". It is

also noticed that 2012 list also refers to several items as

"Heritage Precinct with Individually listed buildings" for

example, Sr.No.401 in respect of Opera House structure. No

individually listed buildings were mentioned in the said

precinct though it is described as "Heritage Precinct with

Individually listed buildings". There could be several such

instances if the list of 2012 is scrutinized in detail. Hence, it

is quite possible that list of 2012 may not be crystal clear so

far as description and details of all heritage

buildings/structures as well as precincts. This must be leading

to some confusion in the minds of general public.

21 It is well settled that once the building is graded

as Heritage Grade II-B, then DCR 67(2)(iii)(a) is applicable,

and if the building falls within the heritage precinct or if it

grade III then DCR 67(2)(iii)(b) would apply. It is observed

that it is possible to assign different grade to the very same

building from time to time since 1995 list and 2012 list if

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compared they ascribe different grades for the very same

buildings/structures/precints. This indicate that there is

possibility of changing the grade. There is no clarity on what

basis such changes are recommended.

22 We notice from the material placed on record that

subsequent to the disposal of the earlier Public Interest

Litigation, MCGM constituted Heritage Review Committee

which looked into several facts and issues and made several

suggestions to the authorities concerned. They also

recommended that grading to be simplified for clarity and

understanding based on the nature of the buildings/structures

to be listed as 'a' particular type of heritage grade or precinct.

A note was prepared suggesting clarity in order to distinguish

or differentiate the heritage grade so far as current/prevailing

policy for the development and conservation Regulations for

Greater Mumbai. They have described how a particular

grade should be considered. Since the Heritage Regulations

for Greater Mumbai, 1995 did not include definition for the

terms "Heritage building" and "Heritage precinct", the

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Heritage Review Committee was of the opinion that it is

necessary to provide clarity on these issues.

23 A comparison of the definitions of grading at page

151 of the present PIL papers by the authorities indicate there

should be clarity to remove doubts and confusion. A reference

is made to definitions or meanings of Heritage building/

heritage precinct as found in Maharashtra Regional and Town

Planning Act, 1966. Heritage building is defined at box no.2

as under :

Box-2

(13B) "Heritage building" means a building possessing architectural, aesthetic, historic or cultural values which is declared as heritage building by the Planning Authority in whose jurisdiction such building is situated;

(13C) "Heritage precinct" means an area comprising heritage building or buildings and precincts thereof or related places;

24 According to them, the definition of building in

the development in Development Control Regulations, 1995

which were in existence upto 25th January 2012 means as

under :

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                                      23                          PIL-34-16(J)

          Box 3

(11) "Building" means a structure, constructed with any materials whatsoever for any purpose, whether used for human habitation or not, and includes-

(i) Foundation, plinth, walls, floors, roofs, chimneys, plumbing and building services, fixed platforms;

(ii) Verandahs, balconies, cornices, projections;

(iii) Part of a building or anything affixed thereto;

(iv) any wall enclosing or intended to enclose any land or space, signs and outdoor display structures;

(v) tanks constructed for storage of chemicals or chemicals in liquid form;

(vi) all types of buildings defined in (a) to (p) below, but tents, shamianas and tarpaulin shelters erected for temporary purposes for ceremonial occasions, with the permission of the Commissioner, shall not be considered to be "buildings".

[Where (a) to (p) are from "Assembly buildings" to "Wholesale establishments".]

25 They further opined that in order to have a clarity

and also make the general public aware what exactly a

particular word would mean have recommended

modifications so far as meanings of grading. Grade II (A & B)

according to them, is as follows :-

Grade: II (A & B) Definition: Heritage Grade-II (A&B) comprises buildings of regional or local importance, possessing special architectural or aesthetical merit or cultural or historical value, though of a lower order that that of Grade-I. They are local landmarks contributing to the image and identity

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of the City. They may be the work of master craftsmen or may be models of proportion and ornamentation, or designed to suit particular climate.

26 Grade-III means Definition: Heritage Grade-III comprises of buildings of importance for townscape; they evoke architectural, aesthetic or sociological interest though not as much as in Heritage Grade-II (A & B). These contribute to determine the character of the locality, and can be representative of lifestyle of a particular community or region and, may also be distinguished by setting on a street line, special character of the facade and uniformity of height, width and scale.

Application: Heritage Grade - III sites shall comply with the criteria set for the purpose of heritage conservation.

27 Grade : P (Precinct) means

Definition: Heritage Grade - P comprises of Conservation Areas of importance for townscape value; they evoke architectural, aesthetic or sociological interest in group setting. These contribute to determine the character of the locality, and can be representative of lifestyle of a particular community or region and, may also be distinguished by setting on a street line, special character of the facade and uniformity of height, width and scale in a setting.

Application: Heritage Grade - P sites shall comply with the Guidelines and Management Plan set for the purpose of heritage conservation. Each Heritage Grade - P site shall be demarcated with a plan drawing indicating the extents of the Conservation Area. This shall

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also show the individually listed heritage sites / components therein. The drawings shall be supported with a set of Urban Design Guidelines and Architectural Controls that enhance the value of the Conservation Area with sensitive infill. Accordingly, all properties situated within these extents of the Heritage Grade - P Conservation Area, listed or unlisted will have to obtain sanction from heritage point of view for any proposed intervention or development.

28 Exhibit-I dated 11th January 2016 is the impugned order of the State Government which reads as under :

"The said "Morena House" Bungalow is not included in the 'D' ward heritage list, published by the Municipal Corporation on the date 31.7.2012, the "Morena House" Bungalow falls within the precinct of M.L.Dahanukar Marg and said Bungalow does not fall under grade - II b, thus is the clear opinion of the Municipal Corporation.

Considering the aforesaid opinion, I am hereby directed to inform you in the matter noted in the above subject, as under:-

The opinion of Brihanmumbai Municipal Corporation that "Morena House" bungalow is included within the precinct and it does not fall under grade - II b, is being approved. As the said building is included within the precinct, the provisions of regulation 67(2)(iii)(b) of the said Development Control Rules for Brihanmumbai shall became applicable for the redevelopment of said building.

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Yours Sd/- (illegible) Kishor D. Girola Under Secretary,Govt.of Maharashtra

Copy for information to :

1) M/s.Windsor Residency Pvt.Ltd, Jindal Mansion, 5-A, Dr.G. Deshmukh Marg, Mumbai 400026.

2) The Chief Engineer, (Development Planning), Brihanmumbai Municipal Corporation.

3) The Dy.Director, Town Planning, Brihanmumbai.

.......xx........

Office of the Chief Translator & ) M-918 A True Translation Interpreter, High Court,Bombay ) Fs.03 RDS/- 2016 ) For Chief Translator

29 According to the petitioners, Exhibit-I letter

addressed to the Commissioner - MCGM is without

application of mind as there is no reference to the discussion

made by HRC and also it lacks basis why the Commissioner of

MCGM or for what reasons he was recommending to consider

the building in question as a building within the precinct of

M.L. Dahanukar Marg.

30 In order to understand the contention raised by

the petitioners, one must see the entire exercise undertaken

right from the beginning. Apparently, in the year 1995,

MHCC came to be constituted for re-visiting the list of

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heritage buildings/structures/precincts of 1995 list.

MMRHCS came to be constituted to survey and prepare

supplementary heritage list of buildings and precincts,

including their gradation. Six individuals/institutions/

associations took up the task to submit report to MMRHCS,

which in turn had to report the same to MHCC. Thereafter,

MCGM had to proceed with the Development Control

Regulations.

31 According to the petitioners, certain data cards

were prepared while conducting the survey by the above said

Society, therefore, buildings in the list have to be read along

with the information in the data cards describing various

details like characteristics, special features of the buildings,

including the building in question. According to them, MHCC

has forwarded the approved list along with the data cards to

the MCGM.

32 It is also not in dispute that when redevelopment

plan for the building "Morena" was submitted, the application

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was not taken to its logical end since it was withdrawn for

resubmission. In the year 2014, the earlier PIL came to be

filed. MMRHCS seems to have filed an affidavit in the said

PIL wherein they said to have mentioned that "Morena"

building is proposed as Grade II-B heritage structure, and the

same is mentioned in the data cards. According to the first

respondent, they have formed the opinion now impugned,

accepting the recommendation of MCGM. Second respondent

from the Proposal Department of MCGM says that after

discussion as per the minutes of the meeting held on 16th July

2014 in the chamber of Municipal Commissioner in respect of

redevelopment of heritage buildings of Grade-III category and

buildings in heritage precincts, it was opined that in view of

the various orders of the Bombay High Court, Municipal

Corporation had to consider redevelopment proposal as per

the provisions of D.C. Regulations, except in the case of

Marine Drive precinct. If any case is not attracted to the

provisions of DCR 67(2)(iii)(b), then they will be sent to

MHCC. They categorically contend that the building falls

within the M.L.Dahanukar Marg precinct, and therefore,

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29 PIL-34-16(J)

permission of Municipal Commissioner was required since the

height of the proposed building was in excess of 24 meters.

Apparently, the present MHCC is for a period of three years

with effect from 19th August 2015 who advises Municipal

Commissioner from time to time on these issues. In the draft

of heritage list in the year 2008, it was recommended to

include M.L. Dahanukar precinct as "Precinct with

individually listed buildings", and three buildings as stated

above were recommended to be individually listed having

Grade-III. However, no other building was included in the list

forwarded. After considering the list forwarded by MHCC, list

was published on 31st July 2012. They categorically say that

"Morena" building was part of the precinct, but not

individually listed building in the said list. They further

categorically contend that the data sheet or documentation of

MMRHCS were to be referred only in order to have

clarification or understanding of the location or other details

of the listed entry. Therefore, no such clarification was

sought since "Morena" building was not an individually listed

building. Even the Department of Planning remarks issued

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30 PIL-34-16(J)

for "Morena" did not refer to it as Grade II-B structure and it

was considered only as a precinct building. They also

contend that MMRHCS has no legal and statutory

enforcement so far as MHCC is concerned. Since Government

of Maharashtra had requested Municipal Commissioner to

forward remarks of the Commissioner, Corporation after

obtaining remarks from the Heritage Review Committee with

regard to the gradation of the building in question, the entire

procedure was undertaken in terms of directions of Division

Bench in the earlier PIL as well as in terms of request made by

the Government.

33 From page 76 onwards, we find Heritage Review

Committee report addressed to Mr.Ajoy Mehta, Municipal

Commissioner, Mumbai dated 13th August 2015 from Heritage

Review Committee along with the suggestions/discussion on

various aspects, plans, modifications, extended boundaries,

revised plan, recommendation for additional listing of area

around certain roads, etc. So far as the discussion at page 96

with reference to "Morena" building, it says as under :

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                                       31                          PIL-34-16(J)

           Morena House (M.L. Dahanukar Marg

Precinct) The published list of 2012 has entries of certain Precincts mentioning in the Grading column as 'Precinct with individually listed buildings'. However, in many cases the list/names of 'Individually listed buildings' has not been appended.

'Morena' is one such case in which this building, falling within the boundaries of 'M.L.Dahanukar Marg Precinct', appears in the data sheets of MMRHCS as a proposed Grade II-B building. However, this has not been reflected in the MHCC report while forwarding the same to Govt. Hence it does not appear as a listed structure in the list published on 31/07/2012. The HRC has, therefore, taken a view that since the published list of 2012 is the basis of its enquiry and as the interested party did not get the opportunity of presenting his say, HRC is not in a position to consider it as a Graded structure otherwise it will be unfair to the persons interested. The Committee feels that this building's status as a Graded building be reviewed after documentation and following the laid down procedure.

The revised boundary of the 'M.L.Dahanukar Marg Precinct' as recommended by the HRC is shown in the annexed plan.

34 After addressing this to Municipal Commissioner

on 13th August 2015 along with the report, recommendations

of Heritage Review Committee on the heritage listing of

buildings/precincts/sites from "D" ward, the same was

verified and sent to concerned departments of the

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32 PIL-34-16(J)

Government by the Municipal Commissioner on 18th

September 2015. So far as the building in question, the

discussion starts at page 70 after noting the Heritage Review

Committee remarks, as under :

Remarks : The 'Morena has been included in the revised boundary of the 'M.L.Dahanukar Marg Precinct' as recommended by the HRC. However, it has been aptly opined by the HRC that it cannot be considered as a Graded structure (individually). The view is accepted and the 'Morena' can only be considered as a precinct building situated in the 'M.L.Dahanukar Marg' Precinct and not as a Grade-II b structure.

35 It is not in dispute that State Government is

the ultimate authority to finally decide/opine whether a

particular grading has to be given to a particular building/

structure or as a precinct as recommended by the concerned

authority. The final authority is the State Government to

accept the recommendation or not. Before this exercise is

undertaken by the authorities in the Urban Development

Department, they have to apply their mind not only to the

recommendations made by various authorities, suggestions

like MMRHCS, MHCC prior to the earlier litigation, but

also must consider the matter with reference to the remarks

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made by Heritage Review Committee so also the objections

raised if any. It is also pertinent to mention that

recommendations and suggestions of Heritage Review

Committee are not binding on the Corporation since Heritage

Review Committee is required only to advise Municipal

Commissioner from time to time, and are only in the nature

of advise/recommendation. It is needless to say that before

deciding finally the nature/category or grading of a structure,

site building etc, one has to see what exactly heritage building

would mean, and what a Precinct would mean. We have

already referred to these in the earlier paragraphs. The

Heritage Review Committee has recommended definitions/

meanings of various grades of buildings including grade III

and Precinct for the purpose of clarity and also for creating

awareness in the general public.

36 During the course of arguments on behalf of the

respondents, it was brought to our notice that there are other

49 buildings of similar nature where the grading has been

modified and however, no challenge is raised so far as those

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buildings for the reasons best known to the petitioners. It is

also brought to our notice that several buildings were

demolished and multi-storeyed buildings were constructed

inspite of M.L. Dahanukar Marg being declared as heritage

precinct. If the said statement was to be correct, we wonder

why no challenge is made by the petitioners in questioning

other structures on the said road. However, what is required

to be seen in the present case is whether the State

Government has expressed opinion in terms of directions in

the earlier Public Interest Litigation dated 28 th January 2015.

According to us, there is no such independent opinion based

on the material.

37 In the light of above material, it is for the State

Government, which is the ultimate authority, to take a final

call after considering the material placed and opine whether

the building in question "Morena" falls within the category of

Grade II-A and B, or Grade III, or whether it is a building

falling within heritage precinct. In order to consider a

building as Grade (II-A & B), it is clear as per

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recommendations that the said structure must relate to

special architectural or aesthetical merit or cultural or

historical value, though it is lower than Grade I structure.

Grade III comprises of buildings of importance for townscape

with reference to architectural, aesthetic or sociological

interest though not as much as in Heritage Grade-II (A & B).

The building has to determine the character of the locality

and be a representative of life style of a particular community

or region. In the light of the above material, perusal of the

order which is impugned before us, we do not find such

exercise being undertaken independent from the opinion of

the Corporation or Heritage Review Committee. Of course,

they have to consider the recommendations and suggestions

and then take a final call with the material placed with

reference to the nature of building/structure and then opine

whether the building "Morena" falls under a particular

category or grade depending upon its special characteristics,

nature, not only of the building but also the precincts. In the

light of above observations and reasoning, we hereby quash

Annexure-I remanding back the matter to the State

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36 PIL-34-16(J)

Government to consider the entire matter afresh in the light

of observations made by us.

38 Accordingly, Petition is disposed of directing the

respondent State to decide the matter afresh. The State

Government must make it clear by a detailed order with

reference to the material available and the procedure whether

building "Morena" is to be declared as Grade II-B heritage

structure or otherwise falling under DCR 67(2)(iii)(a) or

whether it is only part of heritage precinct or Grade III

heritage structure attracting DCR 67(2)(iii)(b). Said exercise

must be undertaken within a period of eight weeks from

today.

     (G.S.KULKARNI, J)                    (CHIEF JUSTICE)




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