Bombay High Court
Shirish B Patel And Another vs State Of Maharashtra And 10 Ohters on 12 January, 2023
Bench: S. G. Chapalgaonkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally
signed by
BASAVRAJ
ORDINARY ORIGINAL CIVIL JURISDICTION
BASAVRAJ GURAPPA
GURAPPA PATIL
PATIL Date:
2023.01.12 PUBLIC INTEREST LITIGATION NO.43 OF 2019
17:56:14
+0530
1. Shirish B. Patel
having office at 3rd Floor, Dabur
House, 41-45, Nagindas Master
Road, Fort, Mumbai-400 023
2. Sulakshana Mahajan,
residing at 8, Sanket Apartments
Uday Nagar, Panchpakhade,
Thane -400 602 ...Petitioners
Versus
1. The State of Maharashtra
through its Secretary, Department
of Housing, Mantralaya, and its
Secretary, Ministry of Urban
Development, Madam Cama Road,
Hutatma Rajguru Square, Nariman
Point, Mumbai -400 032.
2. Maharashtra Housing and Area
Development Authority through its
Regional unit Mumbai Housing
and Area Development Board,
having address at Room
No.318/333, Second floor, Griha
Nirman Bhavan, Kalanagar,
Bandra (E), Mumbai 400 051.
3. SP-NMJ Project Pvt. Ltd.
having its registered office at SP
Centre, 41/44 Minoo Desai Marg,
Colaba, Mumbai-400 005.
4. Shapoorji Pallonji and Company
Pvt. Ltd. having its registered
office at 70, Nagindas Master
1/18
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Road, Fort, Mumbai -400 023.
5. S.D. Corporation Pvt. Ltd.
having its registered office at 70,
Nagindas Master Road, Fort,
Mumbai- 400 023.
6. Larsen and Toubro Limited, 5th
Floor, Landmark A, Chakala,
Andheri (E), Mumbai - 400 093.
7. TCC Construction Private
Limited, a private limited company
formed as consortium between
Respondent Nos.8 to 10 having its
registered office at 605-607, Phase
I, adjacent to R.K. Studios,
Chembur, Mumbai-400 071.
8. Capacit'e Infraprojects Ltd. a
public company registered under
the provisions of Companies Act,
1956 having its registered office at
605-607, Shrikant Chambers, 'A'
Wing, 6th floor, Next to R.K.
Studio, Sion-Trombay Road,
Chembur, Mumbai- 400 071.
9. Tata Projects Limited
a Company registered under the
provisions of Companies Act, 1956
having its registered office at
Mithona Towers-1, 1-7-80 to 87,
Prenderghast Road, Secundrabad-
500 003 and office in Mumbai at
One Boulevard Street, 2nd, 3rd and
4th Floor, Lake Boulevard Roard,
Powai, Mumbai-400 076.
10. Citic Construction Company
Limited, a Company registered
2/18
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under the provisions of Chinese
laws and having its registered
office at 22/F, Tower A, TYC
Centre, C2 Dongasanhuanbeilu
Choayang District, Bejing-100027
China Through Tata Projects Ltd.
Respondent No.8 above named.
11. Municipal Corporation of
Greater Mumbai, Head Quarter,
Mumbai C.S.T., 400 001. ...Respondents
....
Mr. Aspi Chinoy, Senior Advocate with Mr. Sharan Jagtiani, Senior
Advocate, Mr. Priyank Kapadia, Ms Sheetal Shah and Ms Dimple Bitra i/b.
M/s. Mehta and Girdharlal for the Petitioners.
Mr. Abhay L. Patki, Addl. Govt. Pleader for Respondent No.1-State.
Mr. Ashutosh Kumbhakoni, Senior Advocate with Mr. Akshay Shinde for
Respondent No.2-MMRDA.
Dr. Milind Sathe, Senior Advocate with Mr. Bhushan Deshmukh, Ms
Sanidhaa Vedpathak i/b. M/s. Maneksha and Sethna for Respondent
Nos.3, 4 and 5.
Mr. Ziyad Madon with Mr. Sunil Trilokchandani and Ms Nandita Shah i/b.
M/s. Manilal Kher Ambalal and Co. for Respondent No.6.
Mr. Kunal Damle for Respondent Nos.7 to 10.
Ms Rupali Adhate for Respondent No.11-MCGM.
CORAM: S.V. GANGAPURWALA, ACTING CJ &
S.G. CHAPALGAONKAR, J.
RESERVED ON : DECEMBER 19, 2022.
PRONOUNCED ON : JANUARY 12, 2023
ORAL JUDGMENT (Per : S.V. Gangapurwala, Acting CJ):-
1. Present Public Interest Litigation is filed thereby seeking
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directions to quash and set aside the schemes for redevelopment of the
BDD (Bombay Development Directorate) Chawls at N.M. Joshi Marg,
Naigaon and Worli, as evident in the tender documents.
2. Mr. Chinoy, learned Senior Advocate for the Petitioners
submits that the Petitioners are the professionals having expertise in
Town Planning, Civil Engineering and Architecture. The Petitioner No.1
is a Civil Engineer, who has worked extensively in the field of urban
affairs. The Petitioner No.1 was appointed to take charge of Planning and
designing of new city, a position, he resigned five years later. He has held
various positions. The Petitioner No.2 is an Architect and Urban Planner.
The Petitioner No.2 has published four books on urban planning. The
learned Senior Advocate submits that the present public interest litigation
impugns Respondent Nos.1 and 2's plans for the redevelopment of over
15,000 tenements in the old BDD (Bombay Development Directorate)
Chawls situated in the heart of island city - (i) N.M. Joshi Marg, (ii)
Naigaon and (3) Worli. The residents/tenants of BDD Chawls presently
living in 160 sq.ft. tenements (with common toilets) contained in the
buildings of ground plus three upper floors. The existing Chawl buildings
have adequate open space between the buildings and the tenants
/occupants of all tenements get adequate light and air. Under the
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proposed redevelopment, the existing tenants are given 500 sq.ft. 2 BHK
apartments with two attached toilets, free of cost.
3. It is submitted that the residents/occupants of the Chawls are
regular tenants and not slum dwellers and trespassers. The BDD Chawls
comprise 207 Chawl buildings of ground plus three floors containing
16,544/- tenements, situated at four locations i.e. Worli, Naigaon, N.M.
Joshi Marg and Sewri. Worli has 121 buildings containing 9680
tenements, Naigaon has 42 buildings containing 3344 tenements, N.M.
Joshi Marg has 32 buildings containing 2560 tenements and Sewri has 12
buildings containing 960 tenements. The existing buildings are of ground
plus three upper floors and each floor has 10 tenements /rooms each on
either side of a central corridor of approximately 3 meters width. Each
room /tenement is approximately 160 sq.ft. with a Nahani, a kitchen and
a loft. The tenement density per hector was 403 at Worli, 517 at Naigaon
and 464 at N.M. Joshi Marg.
4. On or about December-2016 DCR 33 (9)(B) was introduced
under Section 37(1)(AA). DCR 33(9)(B) provides for reconstruction or
redevelopment of the BDD Chawls at Naigaon, Worli, and N.M. Joshi
Marg under the Urban Renewal Scheme only by the Planning Authority.
The consent of the existing tenants /residents is not required to be sought
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for such redevelopment. No upper ceiling on the FSI is provided and
permits unlimited FSI. The learned Senior Advocate for the Petitioners
contends that exclusion of need of consent of the tenants /occupants can
only be justified on the basis that Respondent No.2, as a public authority,
will act fairly and consistently with Articles 14 and 21 of the Constitution
of India. However, under the proposed redevelopment, the existing
tenants will be rehoused in rehabilitation buildings, which are grouped
closely together with limited access to light and air. Moreover, by
designating most of these rehab buildings as wings, even the mandatory
minimum distance between two buildings is not being maintained. The
substantial portions of the original land will be utilised to build additional
sale buildings, which are much higher and have virtually unrestricted
access to light and air. The redevelopment project has proposed by
Respondent No.2 will enable it to make a huge profit (in excess of Rs.
15,000/- crores) at the cost of life, health and well being of the original
occupants /tenants.
5. On or about 28/12/2016 Respondent No.2 issued a tender
notice inviting bids from the contractors for constructing the
rehabilitation buildings and additional sale buildings in respect of
redevelopment project of BDD Chawls at (i) N.M.Joshi Marg, Lower Parel
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(ii) Naigaon and (iii) Worli.
6. On 27/03/2017 LOA for construction at N.M. Joshi Marg was
awarded to Respondent Nos.3 to 5. The rehabilitation component
involves construction of 2 buildings each having 7 wings of 22 floors and
height of 70 meters, which are to contain 2,536 tenements and 43 shops,
having an aggregate built up area of 2,67,770 sq. meters. These
rehabilitation buildings are closely grouped together and have severely
limited access to light and air. In most cases wings nearly touch each
other. In the guise of wings, even the mandatory minimum distance
between two buildings is not being maintained. Such a close grouping
will result in many rehabilitation units, particularly those at lower floors,
being deprived of light and air. This would directly affect health and well
being of occupants resulting in increased incidences of TB. The additional
construction /sale component involves construction of residential flat in
two HIG buildings of 47 floors comprising 540 flats and having a height of
178 meters and two MIG buildings of 47 floors comprising of 728 flats
and a commercial building of 8 floors. All having a total area of 2,42,999
sq. meters with salable area of 1,61,999 sq.meters. The sale buildings
have virtual unrestricted access to light and air.
7. The learned Senior Advocate for the Petitioners, relied upon
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the pictorial depiction of the proposed development to substantiate his
contention of the rehabilitation buildings being constructed in a manner
that it would not have access to light and air. It is submitted that as a
consequence of additional construction, the tenement density increases
from 464 to 696.
8. On 27/03/2017 LOA for construction of 6,68,202 sq.meters at
Naigaon was awarded to Respondent No.6. The rehabilitation component
involves construction of two buildings, each having 20 wings of 19-23
floors, having 3,289 tenements, 55 shops and 93 stalls, total area of
3,55,406 sq.meters. These rehab buildings are closely grouped together
and has severely limited access to light and air in the similar manner as
N.M. Joshi Marg rehabilitation buildings.
9. Similarly, for redevelopment at Worli, LOA for the construction
was issued on 21/06/2018 and was awarded to Respondent Nos.7 to 10.
The rehabilitation component involves construction of total 87 buildings/
wings -4 buildings each having 14 wings, 1 building of 10 wings, two
buildings of 8 wings each -all of 22 floors having 9394 tenements and 639
shops on the ground floor having total area of 10,96,374 sq. meters.
These rehabilitation buildings are also closely grouped with limited access
to light and air as rehabilitation buildings at N.M. Joshi Marg and
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Naigaon. The sale component involves construction of 10 residential
buildings of 66 floors having 3224 MIG and 1772 HIG flats i.e. a total of
4996 flats and a commercial building of 29 floors all with a total built up
area of 12,70,610 sq. meters and salable area of 8,47,073 sq. meters. The
sale buildings are of 66 floors height and have a virtually unrestricted
access to light and air.
10. According to the learned Senior Advocate for the Petitioners,
the profit in respect of saleable area of these three buildings is in multiple
of thousand crores. The tenement density will increase from existing 415
to 642 per hector. The FSI increases from existing 0.73 to 7.38.
11. Mr. Chinoy, learned Senior Advocate relies upon the report
published of "Doctors For You" on the correlation between the incidence
of TB and restricted access to light and air in redevelopment projects.
Relying upon the said report, it is submitted that the occurrence of TB in
Natwar Parekh and Lallubhai Compounds is strongly associated with the
built environment of the houses and the layout of buildings in both the
colonies. In contrast, occurrence of TB is least in PMG Colony, which is
associated with better built environment and the lay out characteristics.
The efficient provision of day light and natural ventilation strategy within
a particular space, may act as a factor in improving human health
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condition, whereas poor sunlight access and natural ventilation may be
major risk factors for the deadly TB disease. Relying upon the report, the
learned Senior Advocate further submits that in literature, sky view factor
less than 0.6 has been associated with TB. PMG Colony has the highest
SVF among these colonies though all three colonies show SVF from 0-0.4
indicating that Lallubhai and Natwar Parekh Colonies are acting like
culture medium/breeding ground for the TB bacteria. Low daylight
autonomy and ventilation may be because of poor design of houses and
compact stacking of buildings next to each other. Learned Senior
Advocate relies upon a detailed report recording that SVF (Sky View
Factor) for the existing BDD Chawls at N.M. Joshi Marg was 20.7% and
for the proposed rehabilitation buildings at that location would reduce to
4%. This is significant as a comparable sky view factors for Lallubhai
Compound is 4.6%, for Natwar Parekh Compound is 5.7% and for PMG
Colony is 12%.
12. Learned Senior Advocate for the Petitioners submits that the
persons residing in the Chawls are tenants and not trespassers or slum
dwellers. They are required to be housed in a proper atmospheric and
hygienic conditions. Depriving them of the adequate light and air would
be violative of Article 21 of the Constitution of India. The enormous
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profit cannot be at the cost of human health and life.
13. Mr. Sathe, learned Senior Advocate, Mr. Kumbhakoni, learned
Senior Advocate and learned Advocates for the Respondents submit that
present public interest litigation is not maintainable. None of the persons,
who are to be benefited because of the redevelopment have complained
about the project. The sample flat is ready and thousands of persons have
visited the sample flat and none has raised a grievance till date.
14. It is submitted that the scheme of redevelopment of BDD
Chawls is based on the provisions of the DCR for Greater Bombay, 1991
i.e. 33(9) (B) r/w appendix iii (B). The validity of DCR 33(9) (B) is not
challenged. The existing scheme of redevelopment is strictly in
accordance with DCR of 1991. No legal grounds are raised in the PIL.
The opinion of the Petitioners are not based on any study or expert
analysis of urban planning. The Draft Development Plan while getting
final sanction from the State Government undergoes various levels of
scrutiny by the Director of Town Planning, who is the expert officer of the
State Government. Same now cannot be the subject matter of scrutiny of
this Court. It is submitted by the learned Senior Advocates for the
Respondents that the Petitioners themselves were the part of the report
submitted by Mumbai Transformation Support Unit (MTSU), which
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recommended development of the BDD Chawls way back in August 2009.
In August, 2016 Notification under Section 37(1)(AA)(a) of the MRTP Act
was issued inviting objections and suggestions for amending DCR and
introducing new DCR 33(9) (B) and Appendix -III B. The Petitioners had
not objected at that time. The present petition filed in June 2019. Same
deserves to be dismissed on the ground of delay. Before initiation of the
project, wide publicity was given to enable wide participation. The
Petitioners, for the reasons best known to them, remained silent. On
05/01/2016 a joint meeting was convened of the Hon'ble Member of
Parliament Mr. Arvind Sawant, Hon'ble Member of Assembly Mr. Kalidas
Kolambkar, Mr. Sunil Shinde and Mr. Ajay Choudhari along with
residents of BDD Chawls in Worli to understand demands and views of
the residents of BDD Chawls. Thereafter on 20/01/2016 one more
meeting was convened with Hon'ble Member of Parliament Mr. Rahul
Shewale along with residents of BDD Chawls by VP and CEO, MHADA
and his team of officers at Naigaon. It is only thereafter the proposal for
redevelopment was submitted to the State Government taking into
consideration the various suggestions. The tenants were made aware of
the details of the project by the distribution of the project booklet and
display of hoardings.
15. It is submitted that the redevelopment project of the BDD
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Chawls located at 1 to 3 sites are designed by planning about 64% of the
total land area for rehabilitation cluster and 36% of the total area for sale
cluster. Thus, giving the maximum benefit to rehabilitation of tenants.
Also 24% open space of the total land area is planned in the project
including mandatory open space on the ground and reserved recreation
ground. In addition to this, open space is also planned on the podium.
Amenities and commercial areas have been planned taking care of all
social needs of the occupants as per the planning standards. All the three
redevelopment projects have been planned and designed as per the
Development Control Regulation and Environment norms. The existing
tenants will get rehabilitation tenement admeasuring carpet area of 500
sq.ft in lieu of their existing residential tenement admeasuring 160 sq.ft.
free of cost. It is false to say that Respondent No.2 is going to make profit
to the tune of Rs.15,000/- crores. The light and ventilation of the
rehabilitation building is as per the DCPR 2034. The plans are sanctioned
as per the same. The EIA report and GRIHA (Green Rating for Integrated
Habitat Assessment) report show that light and ventilation within the
rehabilitation buildings is satisfactory and complying the norms. As far as
the tenements density is concerned, the decision is taken by statutory
experts in the field of Urban and Town Planning. A similar challenge qua
the tenement density of rehabilitation component of Slum Rehabilitation
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Scheme is dismissed by this Court in PIL No.24 of 2015 in case of Manish
Ramniklal Savla v.State of Maharashtra and Ors.The tenements density
are in conformity with DCPR 2034. The alternative plans suggested by
the Petitioners for N.M. Joshi Marg and Naigaon are not practical and are
vague. The suggested plans by the Petitioners do not consider the road
networks, existing reservations under DCPR and designations, amenities,
etc. There are various community spaces and amenities planned, the
environmental clearance for the same was obtained by the Respondents
from the state level environment impact assessment authority for
redevelopment project of N.M. Joshi Marg and Naigaon. The EIA
(Environment Impact Assessment) has been undertaken and the same was
submitted to SEIAA Committee. Said EIA also included the chapters such
as-Traffic Study Report, shadow analysis report, external daylight analysis
report, wind analysis report, neighbourhood impacts and city level
impacts, etc. It is submitted that the Chawls of BDD were constructed in
the year 1920-25. The Chawls have outlived their structural life and are
in most dilapidated conditions. Many accidental collapses are occurring,
injuring people residing there. It is further submitted that the no
objection certificates have been received from various authorities. A
sample flat at Naigaon is completed on 10/02/2018 and was subsequently
opened to the public. The sample flat at Naigaon was visited by more
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than 10,000 people, most of whom are beneficiaries. The said sample
flat is widely appreciated by the people. It is further submitted that the
work order is issued on 21/04/2017 in favour of Respondent Nos.3 to 5
for the Redevelopment Scheme at N.M. Joshi Marg. Several steps have
been taken by these Respondents pursuant to letter of acceptance. All the
standards required for light, air, open space are being maintained. The
same is as per the DCPR -2034.
16. We have considered the submissions advanced by the learned
Senior Advocates for the parties.
17. The present PIL certainly cannot be considered as an
adversarial litigation. We may appreciate the concern of the Petitioners in
filing the present PIL for the benefit of the beneficiaries of rehabilitation
buildings. The persons residing in the Chawls, who are beneficiaries of
the rehabilitation buildings are tenants/occupants and certainly not the
trespassers/slum dwellers.
18. In fact, it appears that the Chawls where these tenants are
residing were constructed in the year 1920-25 and have outlived their life.
As per Respondent No.2 they are in a dilapidated conditions.
19. The amendment appears to have been carried out in the form
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of DCR 33(9) (B) r/w Appendix III B. The said amendment is not the
subject matter of challenge.
20. This Court is not expert on planning and designing of the
houses. The said job is of the experts. This Court can only consider as to
whether the constructions, to be carried out, are in consonance with the
Development Control Regulations and Rules. If it is pointed out that
construction is not in consonance with the rules and regulations, then
only this Court would step in.
21. In the present case, it has not been demonstrated by the
Petitioners as to how the redevelopment project of the rehabilitation
buildings is not in tune with the provisions of the DCR provisions.
22. The Respondents have placed on record the Environmental
Impact Assessment report for the redevelopment of Bombay Development
Directorate (BDD) Chawls at N.M. Joshi Marg, Lower Parel, Mumbai,
Maharashtra. In the report the socio economic test was also conducted.
It is observed that MHADA would provide self contained 2 BHK home
with separate bathroom with carpet area of 500 sq.ft.in lieu of tenement
of 160 sq.ft area in old dilapidated building with common toilet. Homes
have been designed to maximize natural light and ventilation. The
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shadow and wind analysis have also been carried out. It also appears that
sample flat was constructed. Nobody has raised objection to the sample
flat. The Petitioners were also part of the MTSU report. Their stand
appears to have not been accepted by the Respondents. The EIA and
GRIHA reports referred by the Respondents demonstrate that light and
ventilation within the rehabilitation buildings was satisfactory and
complying the norms. The reports are prepared by the experts. The
Petitioners may be knowledgeable in that field however,it would be a case
of word against word. This Court would not substitute its view for the
view of expert, more particularly, there is nothing on record to even
remotely suggest that the plans sanctioned and the redevelopment being
carried out is against the provisions of DCPR 2034 or against the
provisions contained in Regulations of DCR 33 (9) (B) r/w Appendix III B.
The Respondents have carried out a socio-economic environmental study.
It also provides that during construction and operation phase ambient air
control, exhaust from DG set, noise level, water analysis and sewage
analysis shall be regularly done at the locations. The environmental
clearance given by the Competent Authorities, does not demonstrate that
the construction activity is against the provisions of any rules and
regulations in force. The contention of the Petitioners cannot be accepted.
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23. The Respondents certainly are required to carry out the
construction strictly in accordance with the provisions of DCPR 2034 and
the rules and regulations operating and holding the field.
24. The reliance upon the reports about the occurrence of TB in
respect of absence of light, air and density, may be in case of locality
wherein the survey is carried out, however on the basis of the same it
would not be possible to conclude that in the present case the
construction activity undertaken is flawed. In the present case, as the said
constructions, not been demonstrated to be against the permissions or
environmental clearances, at this stage no interference is called for.
25. The Public Interest Litigation as such is disposed of. No cost.
(S.G. CHAPALGAONKAR, J.) (ACTING CHIEF JUSTICE)
