Municipal Corporation of Greater Mumbai and Ors. Vs. Kohinoor CTNL Infrastructure Company Pvt. Ltd. and another

[Civil Appeal No.11150 of 2013 @ out of Special Leave Petition (Civil) No. 33402/2012]

H.L. Gokhale J.

1. Leave granted.

2. This appeal is directed against the order dated 9.7.2012 passedby a Division Bench of the Bombay High Court whereby Writ PetitionNo.143/2012 filed by the respondents was allowed, and which quashed the 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 to four floors the height of Wing 'C' (providing for public parking lot-'PPL' for short) of the buildings being constructed on Plot No.46 of Town Planning Scheme-III, N.C. Kelkar Road, Shivaji Park, Dadar, Mumbai. Dispute between the parties, settlement thereof and Part-I of the order dated 25.7.2013:-

3. This appeal was initially heard by a bench of G.S. Singhvi and H.L. Gokhale, JJ. Mr. Harish Salve and Mr. R.P Bhatt, both learned Senior Counsel appeared for the appellants, and Mr. F.S Nariman, learned Senior Counsel appeared for the respondent. The appellants wanted to restrict the PPL up to four floors only, but before the issuance of the restrictive circular dated 22.6.2011, in this behalf, the respondents had already consumed higher FSI (Floor Space Index) on the basis of the Commencement Certificates issued earlier. In view of the discussion in the Court however, a settlement was arrived at between the appellants and the respondents on the controversy concerning the PPL. Before passing the order on the settlement, the bench noted the backdrop of the facts and circumstances of the case in paragraphs 2 to 5 in Part-I of the order passed on 25.7.2013 (per Singhvi, J. as he then was). These paragraphs read as follows:-

"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 of the Municipal Corporation of Greater Mumbai (for short, 'the corporation') 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 certificated 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 prescribing 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 public parking to ground plus 4 upper floors and 2 basements.

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 public parking to 4 floors instead of 13 floors. After about six months, Additional Municipal 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. In 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 height of a ground floor and four upper floors in deviation of the permission granted earlier is thereafter 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."

4. The above referred memorandum of settlement arrived at between the parties contained clauses 1, 2 (a to e) and an annexure thereto with respect to the modus-operandi in that behalf. Clauses 2 (a) and (b)thereof are relevant for our purpose. They read as follows:- "2. In view of the peculiar facts and circumstances of the present case and without establishing any precedent, it is agreed between the Petitioners herein and the Respondent No. 1(Kohinoor CTNL) as follows:-

a) In public interest, Public Parking Lot (PPL) will no longer be on ground + 13 upper floors as initially approved under amended approval dated 21st September, 2011 in Wing 'C' of the development of composite building on Final Plot No. 46, but on the ground + 4 upper floors in Wing 'C' as well as in three level basement below Wing 'A', 'B' and 'C' i.e. entire basement, and the captive parking shall be on 5th to 13 upper floors in Wing 'C'.

b) It is also agreed that in the present case of F.P. No. 46, the PPL will be managed and operated by the Petitioner No. 1 (MCGM) or its nominee(s) and common ingress and egress through the common entry/exist shall be provided in Wing 'C' for PPL as well as captive parking for Municipal Corporation of Greater Mumbai and Respondent No. 1 (Kohinoor CTNL). The modus-operandi in that behalf is detailed in Annexure hereto."

(emphasis supplied)

5. Since the signed memorandum of settlement was filed in the Court, the Court passed the following operative order in paragraph 9 of Part-I of the said order dated 25.7.2013:-

"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."

(emphasis supplied)

6. The settlement has brought about the change as desired by the appellants, while taking care of interest of the respondents. The complex is going to be on the land which earlier belonged to Kohinoor Textile Millat Dadar, Mumbai. Wing 'A' is to consist of 3 basements + ground to 5Floors, and Wing 'B' is to consist of 3 basements + ground to 48 floors with a total height of 195.90 meters. Wing 'C' was to be in two parts as originally proposed. Ground+14 Floors, thereof, were to be meant for PPL ,and 15 to 30 floors were to be kept for residential purposes. Under the Municipal circular dated 22.6.2011 prescribing conditions under clause (iv)of DCR 33(24), the public parking building was to be confined only toground+4 upper floors. The settlement accepts this position, and now as per the settlement, public parking is going to be provided in the ground + 4upper floors in Wing 'C' and also in the three level basements below Wings A', 'B' and 'C'. The private parking shall be from 5th to 13th floors of Wing 'C'. Part-II of the order dated 25.7.2013 framing four issues:-

7. Although the dispute between the parties, was with respect to the height of the building consisting of the PPL, it was felt that the appellants had not applied their mind to some of the issues which, in fact, did arise in the matter of the grant of permission to this complex on the said plot No.46 in the heart of Mumbai city. It was noticed that as per the approved plan, the recreational space available at the ground level was reduced to only 7.7% of the area of the plot, as against the required minimum of 15% (where the area of the plot was between 1001 sq. mts. to2500 sq. mts. as per the DCR 23). In view of the reduction in the recreational area at the ground level, it was observed in paragraph 13 of the said order as follows:-

"......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......."

(emphasis supplied)

It was, therefore, felt that it was necessary to examine the co-relation between DCR-23, which provides for minimum Recreational/Amenity opens paces, and DCR-38 (34) concerning the Podium.

8. Secondly, it was noted that in the present matter a higher FSI has been given in lieu of making a provision for public parking, leading to a high-rise building. Such high-rise constructions bring along with them more population and more vehicles on the adjoining narrow roads and into an already congested area, and that aspect did not appear to have been examined by the appellant-Municipal Corporation. In the instant case, the approved complex is bounded on four sides by four roads, and these roads are not, at all, wide. The height of the complex is going to be quite disproportionate to the width of these roads, but that has been permitted amongst other reasons in view of making a provision for public parking.

Under DCR No.31 (1), the height of the building has to be in proportion to the width of the road which is adjoining a building, but the proviso to that DCR makes another exception to this rule with respect to construction schemes under DCRs Nos.33(7), (8) and (9). DCR 33(7) is regarding reconstruction or redevelopment of cessed buildings in the island city, by co-operative housing societies, or of old buildings belonging to the Municipal Corporation or the police department, and it grants FSI of 2.5plus incentive FSI as specified in Appendix III, whichever is more. DCR33(8) is regarding construction for housing the dis-housed, by the Municipal Corporation. DCR 33(9) is regarding reconstruction or redevelopment of cessed buildings or urban renewal schemes on extensive areas, where the FSI is 4. These constructions also add to the population and the vehicles in that very area. A question therefore arose as to whether these exemptions are justified, valid and legal?

9. Thirdly, the impact of construction of high-rise buildings in the thickly populated areas on the traffic in the city was also discussed during the consideration of the SLP. The Court noted in paragraph 14 of the order, that although additional space for public parking was being provided, simultaneously higher FSI was also being granted to the developer, on that count. Consequently, such high-rise buildings would add more number of vehicles on the adjoining streets. This required examination of the impact of additional FSI on the traffic situation, particularly in the island city of Greater Mumbai.

10. Lastly, considering that the height of the complex was going up to 198.50 meters, it was decided to look into the issue of hazards due to fire which the occupants of such towers could face. It was noted that there were provisions with respect to the space to be kept around such buildings for the movement of fire engines within the compound of such buildings, but these provisions are not uniform. The fire engines, with their ladders, available with the Municipal Corporation, do not reportedly reach anywhere beyond 14th floor. It was also noted that recently the Secretariat Building of the State of Maharashtra (known as the 'Mantralaya') was engulfed with fire. The building is only six storeys, and yet it took quite a few days to control the fire, and in that exercise a few lives were unfortunately lost. Therefore, the issue of safety of the occupants of such high-rise buildings, that of the residents in the neighbourhood, and the firemen, required urgent consideration.

11. Therefore, in Part-II of its order dated 25.7.2013, the Bench framed four issues for further consideration. These issues read as follows:-

"(1) What should be the correlation between DCR 23 and DCR 38(34) regarding the recreational area? Is it permissible to reduce the minimum recreational area provided under DCR 23 on any ground?

(2) Whether the exemption from DCR 31(1) under DCR Nos. 33(7), (8), and (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 traffic situation? How can it be controlled? (4) Whether the present mechanism for protection against the fire hazards is adequate and is being implemented effectively? If not, what should be the mechanism for enforcement with respect to the provisions concerning the fire safety?

12. For that purpose, affidavits were sought from the following:-

"(A) From the Municipal Corporation:-

(i) The affidavit of the Chief Engineer, Town Planning on issues no. 1 and 2.

(ii) The affidavit of the Chief Engineer, concerning traffic on issued no. 3.

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

(B) From the State of Maharashtra:-

(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.

13. "The excessive construction at the cost of minimum recreational space, as seen in the present case, required an immediate attention to be paid to issue no.

(1).. Similarly, issue no. (4). concerning the fire hazards also required urgent attention, and it was thought that the Court should go into the legality of the relevant provisions in this behalf. As against that, examination of the other two issues was taken up for the reason that the development plan for the city of Mumbai is going to be revised shortly, and certain suggestions in that behalf could be made. Issue no. (2). arising out of exemptions to the high-rise buildings under DCR 33(7),(8), (9) and issue no. (3) concerning the impact on traffic, required a detailed deliberation. At this point, it is relevant to mention that a similar approach has been adopted by this Court in Municipal Corporation of Delhi Vs. Association of victims of Uphaar Tragedy & Ors. reported in AIR 2012 SC 100.

That case concerned the compensation to be paid to the victims of the fire in the 'Upahaar' theatre at Delhi. This Court decided the issue of compensation in paragraph 38 of the judgment. However, the Court could not ignore that the fire had resulted into the death of 59 persons and injury to 103 persons, and therefore, this Court observed in paragraph 39 of the said judgment:-

"39. Normally we would have let the matter rest there. But having regard to the special facts and circumstances of the case we propose to proceed a step further to do complete justice."And then, the Court made a number of suggestions in paragraph 45 of its judgment to the Government for its consideration and implementation. Similarly, although a settlement is arrived at, on the controversy between the parties before the Court, considering the acute problems in the city of Mumbai with respect to shortage of recreational space, the fire hazards and high density of traffic, a further deliberation on the above referred four issues was felt necessary.

14. Thereafter, the matter has been heard by the present Bench. Consequent upon the above order, the necessary affidavits were filed by the officers of the appellant as well as the State of Maharashtra. A number of interveners have also assisted the Court. The interveners include

(i) The Urban Design Research Institute ('UDRI' for short) & Ors.,

(ii) Maharashtra Chamber of Housing Industry,

(iii) Practicing Engineers Architects and Town Planners Association (India) and

(iv) Property Redevelopers Association.

They have all assisted in the examination of these four issues. We will deal with their submissions in the context of the Maharashtra Regional and Town Planning Act, 1966 (the 'MRTP' Act for short), and the Development Control Regulations for Greater Mumbai, 1991, framed there under which govern these issues. Issue no.1 concerning the reduction in the minimum recreational space from the one as required under DCR 23:-

15. The Development Control Regulations are referable to Section22(m) of the MRTP Act. Section 21 of the said Act requires the planning authority, i.e. the local authority (appellant no. 1 in the instant case)to prepare a development plan for the local area within its jurisdiction. Section 22 of the Act lays down what should be the contents of a development plan, and in that behalf it provides under sub-section (m) that it shall contain amongst others:- "(m) provision for permission to be granted for controlling and regulating the use and development of land within the jurisdiction of a local authority......"The present DCR's for Greater Mumbai, 1991 were sanctioned by the State of Maharashtra on 20.2.1991 and are enforced from 25.3.1991. The new DCR's are shortly to be formulated for the next twenty years. The DCR 23 on recreational / amenity open spaces:-

16. The DCR 23 with which we are concerned in the first issue reads as follows:- "23. Recreational/Amenity Open Spaces:-

(1) Open spaces in residential and commercial layouts-

(a) Extent:-In any layout or sub-division of vacant land in a residential and commercial zone, open spaces shall be provided as under:

(i) Area from 1001 sq.m. to 2500 sq.m. 15 per cent

(ii) Areas from 2501 sq.m. to 10000 sq.m. 20 per cent

(iii) Area above 10000 sq.m. 25 per cent.

These open spaces shall be exclusive of areas of accesses/internal roads/designations or reservations, development plan roads and areas for road-widening and shall as far as possible be provided in one place. Where, however, the area of the layout or sub-division is more than 5000 sq.m., open spaces may be provided in more than one place, but at least one such places shall be not less than 1000 sq.m. in size. Such recreational spaces will not be necessary in the case of land used for educational institutions with attached independent playgrounds. Admissibility of FSI shall be as indicated in Regulation 35.

(b) Minimum area:-No such recreational space shall measure less than 125 sq.m.

(c) Minimum dimensions:-The minimum dimension of such recreational space shall not be less than 7.5 m., and if the average width of such recreational space is less than 16.6 m., the length thereof shall not exceed 2'/2 times the average width.

(d) Access:-Every plot meant for a recreational open space shall have an independent means of access, unless it is approachable directly from every building in the layout.

(e) Ownership:-The ownership of such recreational space shall vest, by provision in a deed of conveyance, in all the property owners on account of whose holdings the recreational space is assigned.

(f) Tree growth:-

Excepting for the area covered by the structures permissible under

(g) below, the recreational space shall be kept permanently open to the sky and accessible to all owners and occupants as a garden or a playground etc. and trees shall be grown as under :-

(a) at the rate of 5 trees per 100 sq.m. or part thereof of the said recreational space to be grown within the entire plot.

(b) at the rate of I tree per 80 sq.m. or part thereof to be grown in a plot for which a sub-division or layout is not necessary.

(g) Structures/uses permitted in recreational open spaces:-

(i) In a recreational open space exceeding 400 sq.m. in area ( in one piece), elevated/underground water reservoirs, electric substations, pump houses may be built and shall not utilise more than 10 per cent of the open space in which they are located.

(ii) In a recreational open space or playground of 1000 sq.m. or more in area (in one piece and in one place), structures for pavilions, gymnasia, club houses and other structures for the purpose of sports and recreation activities may be permitted with built-up area not exceeding 15 per cent of the total recreational open spaces in one place. The area of the plinth of such a structure shall be restricted to 10 per cent of the areas of the total recreational open space. The height of any such structure which may be single storey shall not exceed 8 m.

A swimming pool may also be permitted in such a recreational open space and shall be free of FSI. Structures for such sports and recreation activities shall conform to the following requirements:-

(a) The ownership of such structures and other appurtenant users shall vest, by provision in a deed of conveyance, in all the owners on account of whose cumulative holdings the recreational open space is required to be kept as recreational open space or ground, viz. 'R.G.' in the layout or sub-division of the land.

(b) The proposal for construction of such structure should come as a proposal from the owner/owners/society/societies or federation of societies without any profit motive and shall be meant for the beneficial use of the owner/owners/members of such society / societies / federation of societies.

(c) Such structures shall not be used for any other purpose, except for recreational activities, for which a security deposit as decided by the Commissioner will have to be paid to the Corporation.

(d) The remaining area of the recreational open space or playground shall be kept open to sky and properly accessible to all members as a place of recreation, garden or a playground.

(e) The owner/owners/or society/or societies or federation of societies shall submit to the Commissioner a registered undertaking agreeing to the conditions in (a) to (d) above.

(2) Open spaces in industrial plots/layouts of industrial plots:-

(a) In any industrial plot admeasuring 10,000 sq.m. or more in area, 10 per cent of the total area shall be provided as an amenity open space subject to a maximum of 2500 sq.m., and

(i) such open space shall have proper means of access and shall be so located that it can be conveniently utilised by the person working in the industry;

(ii) the parking and loading and unloading spaces as required under these Regulations shall be clearly shown on the plans;

(iii) such open spaces shall be kept permanently open to sky and accessible to all the owners and occupants and trees shall be grown therein at the rate of 5 trees for every 100 sq.m. of the said open space to be grown within the entire plot or at the rate of 1 tree for every 80 sq.m. to be grown in a plot for which a sub-division or layout is not necessary.

(b) In case of sub-division of land admeasuring 8000 sq.m. or more in area in an industrial zone, 5 per cent of the total area in addition to 10 per cent in (a) above shall be reserved as amenity open space, which shall also serve as general parking space.

When the additional amenity open space exceeds 1500 sq.m. the excess area may be used for construction of buildings for banks, canteens, welfare centers, offices, crÃ¨ches and other common purposes considered necessary for industrial users as approved by the Commissioner."The provision regarding the podium:-

17. As has been noted in paragraph 13 of the order dated 25.7.2013,the appellants did not look into the issue of reduction in recreational area at the ground level very seriously, probably because the rule permits recreational space on the podium. Some of the interveners very seriously canvassed that in view of the provision concerning recreational space on the podium, the recreational / amenity open space at the ground level could legitimately be reduced. The provision regarding the podium is seen in DCR No. 38 (34). DCR 38 lays down the requirements concerning parts of buildings. DCR 38 (34) reads as follows:-

"(34) Podium.

(i) A podium may be permitted on plot admeasuring 1500 sq.mt. or more.

(ii) The podium provided with ramp may be permitted in one or more level, total height not exceeding 24 m. above ground level. However, podium not provided with ramp but provided with two car lifts may be permitted in one or more level, total height not exceeding 9 mt. above ground level.

(iii) The podium shall be used for the parking of vehicles.

(iv) The recreational space prescribed in D.C. Regulation 23 may be provided either at ground level or on open to sky podium.

(v) Podium shall not be permitted in required front open space.

(vi) Such podium may be extended beyond the building line in consonance with provision of D.C. Regulation 43(1) on one side whereas on other side and rear side it shall be not less that 1.5m. from the plot boundary.

(vii) Ramps may be provided in accordance with D.C. Regulation 38(18).

(viii) Adequate area for Drivers rest rooms and sanitary block may be permitted on podiums by counting in FSI."

18. As far as the issue no. 1 is concerned, this Court had sought the affidavit from the Chief Engineer, Town Planning of the appellant-Municipal Corporation, and from the Secretary, Urban Development Department of the State of Maharashtra. Shri Manu Kumar Srivastava, Principal Secretary to the Government of Maharashtra in the Urban Development Department has filed an affidavit affirmed on 6.9.2013. In para 4.4 he has stated as follows:-

"4.4) I submit that in quite a few cases, the requirements of captive parking for the building can be met only by providing the same in basement or on upper parking floors or podium, which in turn requires provision of access / ramps etc., which often makes it difficult to provide the required Recreational / Amenity open spaces on the ground......."Thereafter, he has stated that it is to overcome this difficulty that the DCRs have been amended with effect from 6.1.2012 to allow recreational spaces on podium in plots admeasuring 1500 sq. mts. or more. In his affidavit he has pointed out that in the redevelopment projects under DCR33(7) for reconstruction of cessed buildings, and for the urban renewal schemes under DCR 33(9), and for the slum rehabilitation projects under DCR33(10), it is permissible to reduce the Recreational / Amenity open spaces to the limit prescribed in the respective regulations. He has stated that this has been done consciously to facilitate these schemes.

19. On behalf of the appellant-Municipal Corporation Shri Rajeev Kuknur, Chief Engineer (Development Plan) has affirmed his reply on6.9.2013. In paragraph 6, thereof, he has also stated that the provision for parking on podium has been made to facilitate the requirement of parking. He has, however, added "in such situation it may not be possible for the planner to provide the entire Recreational/Amenity space on the ground". Later in paragraph 7, he has pointed out that in certain other situations the amenity open spaces are permitted to be reduced.

Thus, under DCR 33(1) read with Clause 6.20 of Appendix IV which applies to the redevelopment schemes for slums, the amenity space can be reduced, but still a minimum of 8% of the amenity space shall be maintained. Clause 8 of Appendix III applies the same provision to the reconstruction /redevelopment of cessed buildings under DCR 33(7). As regards the development under DCR 33 (9), clause 12.14 of Appendix IIIA concerning DCR33(9), states that, "Even if the recreational open space is reduced to make the project viable, a minimum of at least 10 percent of plot area shall be provided as recreational open space. In addition to this, 10 percent of plot area shall be earmarked for amenity space which can be adjusted against the DP reservation, if any".

20. It was canvassed on behalf of Maharashtra Chamber of Housing Industry by Mr. S. Ganesh, learned Senior Counsel that DCR 38 (34) clearly provides under clause (iv) thereof, that the recreational space prescribed in DCR 23 may be provided at the ground level or on open to sky podium. In his view, this will enable the developers to provide more parking spaces within the plots concerned since now-a- days, there is a demand for even two parking spaces per flat. He submitted that, in fact, this will give a large continuous open space on the podium and in view thereof the Recreational / Amenity space need not be at the ground level. He submitted that even trees would be planted on the podium, and movements on the podium will be safer for elderly people as well as for the children. The areas for parking and recreation on the podium can be separately ear-marked for that purpose. A few photographs of such arrangements were also brought to our notice. He submitted that in view of the necessity of having more accommodation and more parking spaces that this provision has been made, and it should be interpreted accordingly.

21. It is very relevant to note that although Mr. F.S. Nariman, learned senior counsel appeared for the respondents-Kohinoor, he stated that after the order was passed by this Court on 25.7.2013, he was appearing to assist the Court on the four issues framed in Part-II of that order as amicus-curie. He pointed out that sub-clause (iv) of DCR 38(34)lays down that the recreational space 'may be provided' either at the ground level or on open to sky podium. As against that the Recreational /Amenity open space contemplated under DCR 23 was mandatory. Sub-clause(1) (a) of DCR 23 speaks of 'vacant land' and the open spaces as far as possible 'shall be provided' at one place. He, therefore, submitted that whereas the provision under DCR 23 is mandatory, the one under DCR 38(34)is discretionary, and it cannot prevail over DCR 23.

22. Similarly, though learned Senior Counsel Mr. Harish N Salve, appeared for the Municipal Corporation, until the passing of the order dated 25.7.2013, as far as the issue of recreational spaces on podium is concerned, he submitted a separate note to assist the Court. He pointed out that as clause (iii) of the DCR 38(34) states, the podium shall be used for parking of vehicles. Clause (iv) gives a further option to provide recreational space on the podium, but it links this recreational space on the podium to the recreational space prescribed in DCR 23, by stating that the recreational space under DCR 23, may be provided at the ground level, or on the open-to-sky podium. In his submission, if read as an alternative to the minimum recreational space on the ground floor, this provision will lead to the serious erosion of recreational space at the ground level, affecting the minimum necessities of life, and will therefore lead to violation of the right to life, and will have to be held as bad in law, as against the guarantee provided under Article 21 of the Constitution of India. As against that in his submission clause (iv) can survive only if this clause is read down as inapplicable and not excluding the recreational space provided under DCR

23. In other words, it makes an additional provision for recreational space, over and above the one at the ground level, and does not in any way reduce the same. This is because the podium is basically meant to provide parking, as stated in clause (iii). Any recreational space provided on the podium is entirely discretionary, and that being so it cannot be read to lead to a reduction in the mandatory provision under Clause (iii).23. The UDRI was represented by learned Senior Counsel Mr. Shyam Divan. He pointed out that DCR 23 providing for recreational space at the ground level existed since the inception of DCR in 1991, and even prior thereto since 1967. It was always contemplated that the recreational space will be at the ground level, and not at an elevated level within buildings.

This is clear from the provision with respect to the trees and playgrounds contained in DCR 23. Besides, he pointed out that clause (iii) of DCR38(34) clearly provides that 'podium shall be used for the parking of vehicles', meaning thereby that it is essentially to be used for parking purposes. That apart, he submitted that there is clearly a risk involved in providing both parking as well as recreational space on the podium. DCR38 (34) (iv) has been introduced by way of an amendment only from 6.1.2012,and it does not contain a non-obstante clause that the provision is notwithstanding the mandatory requirement under DCR 23. It cannot, therefore, be read in derogation of the main provision under DCR 23.

24. Mr. Divan then brought to our notice the harsh reality of the open spaces becoming smaller and smaller in the city of Mumbai. He placed the following hard statistics for our consideration. Greater Mumbai has just 1.91 sq. mts. of open space per person. Of this, less than 0.88 sq.mts. per person is accessible for recreational purpose. This is woefully inadequate as compared to the norms of 3 sq. mts. per capita as prescribed by the National Building Code of India 2005 and of 11 sq. mts. per capita recommended by the Urban Development Plans Formulation and Implementation Guidelines (1996) of the Ministry of Urban Affairs, Government of India.

He pointed out that pouring of too much of cement and concrete is not conducive to good human living, and will ultimately affect meaningful 'life' within the meaning of Article 21 of the Constitution. Recreational spaces are intended to ensure that there are green "breathing spaces" between buildings and properties in the built-up environment. . Trees and the land around them at the ground level are necessary for controlling the air pollution from the point of view of health of human beings as well. The shifting of recreational space from the ground to podiums will result in higher level of concretization, diminishing green cover, and buildings being too close to each other, leading to increased city temperature

25. Having noted these submissions, it is seen that podium is permissible only on plots admeasuring 1500 sq. mts. or more. So this provision is not applicable to plots smaller than 1500 sq. mts. As can be seen from DCR 23 (1) (a), it speaks of a lay-out or sub-division of 'vacant land' and open spaces. The open spaces 'shall as far as possible' be provided in one place. If a lay-out or sub-division is more than 5000 sq.mts., open space can be provided in more than one place, but at least one such place 'shall be of not less than 1000 sq. mts.'.

These provisions clearly show that they are mandatory. Besides under sub-clause (f) of DCR23 there is a requirement of keeping the recreational open space permanently open to the sky and trees are to be grown in that space as laid down, i.e. five trees per hundred square meters of the recreational space within the plot. DCR 2 (64) defines 'open space' to mean an area forming an integral part of a site left open to the sky. A 'site' is defined under DCR 2 (83) to mean a parcel or piece of land enclosed by definite boundaries. These DCR's when read together, very much make it clear that the recreational /amenity space has to be on the land i.e. on ground level and it has got to be 15%, 20% or 25% of the area depending upon its size. As rightly pointed out by learned senior counsel Mr. Nariman and Mr. Salve, the requirement of recreational space on the podium under DCR 38(34) (iv) is discretionary. Besides, as the above referred clause (iii)lays down, podium shall be basically used for parking. Besides Clause (iv)does not contain a non-obstante clause to over-ride the requirement under DCR 23 making it mandatory to provide recreational space on the ground-floor. That being so, the provision under DCR 38 (34) cannot be read in derogation of the requirement under DCR 23 or else it will result into serious erosion in the basic requirements for a good life affecting the guarantee of right to life, under Article 21 of the Constitution of India. We have therefore to read down clause (iv) of the DCR 38(34) as inapplicable and not excluding the mandatory provision under DCR 23.

26. It is also relevant to note that the development schemes under DCRs 33(7), 33(9) and 33(10) provide for lesser Recreational area / Amenity spaces. Thus, under DCR 33(7) and 33(10) reduction in the Amenity open space is permitted to make the project viable, but still minimum 8 percent of the project area is required to be maintained as Amenity open space. Similarly, for the schemes under DCR 33(9) minimum 10 percent of the plot area is required to be retained as Recreational space. In other properties, where there are no such constraints to make the development schemes of rehabilitation or reconstruction of old buildings or slums viable, there is no reason why the Amenity open space at the ground level should be read as permissible, to be reduced. The only ground being given is to provide more parking and more accommodation, meaning thereby more construction, concretization and financial expediency. Such a purpose cannot be read into the provisions as they presently exist, nor is it desirable to do so from the point of view of the requirement of minimum open spaces at the ground level.

27. Besides, as pointed out by Mr. Divan, the requirement of having trees and open land around them is necessary from an environmental point of view, since there is already excessive concretization, and a very serious reduction in open spaces at the ground level. It must be noted that the right to a clean and healthy environment is within the ambit of Article21, as has been noted in Court on its Own Motion v. Union of India reported in 2012 (12) SCALE 307 in the following words:-

"The scheme under the Indian Constitution unambiguously enshrines in itself the right of a citizen to life under Article 21 of the Constitution. The right to life is a right to live with dignity, safety and in a clean environment."The right to a clean and pollution free environment, is also a right under our common-law jurisprudence, as has been held by this Court in Vellore Citizen's Welfare Forum v. Union of India and Ors reported in (1996)5SCC647where this Court held:- "The Constitutional and statutory provisions protect a persons right to fresh air, clean water and pollution free environment, but the source of the right is the inalienable common law right of a clean environment.

"In the same judgment the Court emphasized the importance of Sustainable Development, and the need for a balance between development and ecological considerations, in the following words:- "The traditional concept that development and ecology are opposed to each other, is no longer acceptable..... 'Sustainable Development' is the answer....Sustainable Development as defined by the Brundt land Report means "development that meets the needs of the present without compromising the ability of the future generations to meet their own needs". We have no hesitation in holding that "Sustainable Development' as a balancing concept between ecology and development has been accepted as a part of the Customary International Law though its salient features have yet to be finalised by the International Law jurists."

28. Therefore, after reflecting upon the legal position, we are clearly of the opinion that having 15%, 20% or 25% of the area (depending upon the size of the lay-out) as the recreational/amenity area at the ground level is a minimum requirement, and it will have to be read as such. We therefore, answer the issue no. 1 by holding that it is not permissible to reduce the minimum recreational area provided under DCR 23 by relying upon DCR 38(34). However, if the developers wish to provide recreational area on the podium, over and above the minimum area mandated by DCR 23 at the ground level, they can certainly provide such additional recreational area. Issue No.4 with respect to the protection against the fire hazards:-

29. As stated earlier, this issue was decided to be gone into considering that the main building in the present complex is going to be of48 storeys. This issue was decided to be gone into also in the backdrop of the recent fire that engulfed the six storey Secretariat building of Maharashtra, in Mumbai. It took a few days to extinguish the fire which resulted into a loss of lives. This Court sought the affidavit of the Chief Fire Officer of the appellant-Municipal Corporation on this issue. Shri Suhas Vishnu Joshi, Chief Fire Officer, Mumbai Fire Brigade, has affirmed his reply on 15.9.2013. In paragraph 3 of his affidavit, he has stated that the Fire Brigade of the appellant-Municipal Corporation has got special appliances such as Aerial Ladder Platform which can reach up to the height of 70 meters, and the department is in the process of procuring special appliances which can reach up to the height of 90 meters.

In paragraph 4, he has accepted that in high-rise buildings above 90 meters, the fire-fighting operations cannot be carried out from outside the building alone. They are also to be fought from inside the building with the help of fire safety and protection measures / installations provided in the high-rise buildings as per the building by-laws. He has pointed out the passive safety measures as well as active fire safety measures necessary for the high-rise buildings in his affidavit. Amongst the fire safety measures, he has pointed out that the width of the access road and the open space for maneuverability of fire appliances has to be adequate.

30. It is also pointed out in this affidavit that there is a State Act known as Maharashtra Fire Prevention and Life Safety Measures Act, 2006under which the developers / society in-charge of the building have to maintain the fire prevention and life safety measures in good repair and efficient condition at all times. In paragraph 7 of his affidavit he has stated that for any high-rise and special type building, No Objection Certificate from the Chief Fire Officer is required at two stages viz. prior to the construction of the building and after the compliance of the requirement. Besides, for buildings having a height above 70 meters, there is a High Rise Technical Committee under the Chairmanship of a retired Hon'ble High Court Judge with other experts and the proposal for high rise buildings has to be cleared by this committee.

31. As far as the maneuverability of the fire appliances is concerned, fire protection requirements under DCR 43 become relevant. This DCR 43 is split in two parts (1) General and (2) Exits for every building. It reads as follows:-

"43. Fire Protection Requirements:-

(1) General:-The planning design and construction of any building shall be such as to ensure safety from fire. For thi s purpose, unless otherwise specified in these Regulations, the provisions of Part-IV; Fire Protection Chapter. National Building Code shall apply. For multi-storeyed, high rise and special buildings, additional provisions relating to fire protection contained in Appendix VIII shall also apply-

(A) For proposal under regulations 33(7) and 33(10), in case of rehabilitation/composite buildings on plots exceeding 600 sq. mts. and having height more than 24 m. at least, one side other than road side shall have clear open space of 6 m. at ground level, accessible from road side.

Provided, if the building abuts another road of 6 m. or more this condition shall not be insisted. Provided further that in case of redevelopment proposals under DCR 33(7), for plot size upto 600 sq. mt., 1.5 mts open space will be deemed to be adequate.

(B) For the proposals other than (A) above (a) Building having height more than 24 m. upto 70 m. at least one side, accessible from road side, shall have clear open space of 9 m. at ground level. Provided however, if podium is proposed it shall not extend 3 m. beyond building so as to have clear open space of 6m. beyond podium. Provided further, where podium is accessible, to fire appliances by a ramp, then above restriction shall not apply.

(b) Buildings having height more than 70 m. at least two sides accessible from road side, shall have clear open space of 9m. at ground level. Provided however ramps if podium is proposed it shall not extend 3m. beyond building line so as to have clear open space 6m. beyond podium. No ramps for the podium shall be provided in these side open spaces. Provided further, where podium is accessible to fire appliances by a ramp then above restriction shall not apply.

(d) These open spaces shall be free from any obstruction and shall be motor able.

(2) Exits:-Every building meant for human occupancy shall be provided with exits sufficient to permit safe escape of its occupants in case of fire or other emergency for which the exits shall conform to the followings :-

(i) Types:-Exits should be horizontal or vertical. A horizontal exit may be a door-way, a corridor, a passage-way to an internal or external stairway or to an adjoining building, a ramp, a verandah, or a terrace which has access to the street or to the roof of a building. A vertical exit may be a staircase or a ramp, but not a lift.

(ii) General requirements.-Exits from all the parts of the building, except those not accessible for general public use, shall-

(a) provide continuous egress to the exterior of the building or to an exterior open space leading to the street;

(b) be so arranged that, except in a residential building, they can be reached without having to cross another occupied unit;

(d) be adequately illuminated;

(e) be clearly visible, with the routes reaching them clearly marked and signs posted to guide any person to the floor concerned;

(f) be fitted, if necessary, with fire fighting equipment suitably located but not as to obstruct the passage, clearly marked and with its location clearly indicated on both sides of the exit way;

(g) be fitted with a fire alarm device, if it is either a multi-storeyed, high-use or a special building so as to ensure its prompt evacuation;

(h) remain unaffected by any alteration of any part of the building so far as their number, width, capacity and protection thereof is concerned;

(i) be so located that the travel distance on the floor does not exceed the following limits :-

(i) Residential, educational, institutional and hazardous occupancies: 22.5 m.

(ii) Assembly, business, mercantile, industrial and storage buildings: 30 m.

Note:-The travel distance to an exit from the dead end of a corridor shall not exceed half the distance specified above. When more than one exit is required on a floor, the exits shall be as remote from each other as possible: Provided that subject to the provision under D.C. Regulation 44(5) (a) for all multi-storeyed high rise and special buildings, a minimum of two enclosed type staircases shall be provided, at least one of them opening directly to the exterior to an interior, open space or to any open place of safety.

(iii) Number and width of Exits:-The width of an exit, stairway/corridor and exit door to be provided at each floor in occupancies of various types shall be as shown in columns 3 and 5 of Table 21 hereunder. Their number shall be calculated by applying to every 100 sq.m. of the plinth or covered area of the occupancy, the relevant multiplier in columns 4 and 6 of the said Table, fractions being rounded off upward to the nearest whole number."

32. Now, what is seen here is that under Clause 1 (B) of DCR 43,for buildings having heights of more than 24 meters up to 70 meters, at least one side accessible from road side shall have clear open space of 9meters at ground level. For buildings which have a height of more 70meters, at least two sides accessible from road sides, shall have a clear open space of 9 meters at ground level. In both these cases where podium is proposed, it shall not extend 3 meters beyond the building line so as to leave clear open space of 6 meters beyond podium. Similarly Clause 1 (A)lays down that in case of the proposals under DCR 33(7) (which are for the cessed building) and those under 33(10) (which are for the slum rehabilitation), if the plot of the building exceeds 600 sq. mts. and the building is having height of more than 24 meters, at least one side other than the road side shall have a clear open space of 6 meters at ground level accessible from the road side.

The first proviso to Clause 1 (A)makes an exception if the building abuts another road of 6 meters or more. In that case this condition is not insisted. Thus, as can be seen, a minimum access of 6 meters to every building from two sides is insisted, i.e. from a road side and from one side within the property, or from two road sides so that the fire engine can approach the building at least from two sides. The second proviso under Clause 1 (A) however states that if the redevelopment proposal is under DCR 33(7) i.e. for reconstruction or redevelopment of cessed buildings on plots of size upto 600 sq. mts., only1.5 meters side open space will be deemed to be adequate. This will mean a space of just about 5 feet or so, through which a fire engine can certainly not enter.

33. We asked Mr. R.P. Bhatt, learned Senior Counsel appearing for the Municipal Corporation as to what would be the height of these buildings on plots upto 600 sq. mts., and his answer was that it will depend on the number of flats for the families to be accommodated in such buildings, and it may as well go up to 20 floors. Mr. Ganesh, learned Senior Counsel appearing for the Maharashtra Chamber of Housing Industry defended the existing provision on the ground of economic viability of such projects, and submitted that for such projects under DCR 33(7), the side space inside the property will have to be reduced on that count. He submitted that some of these plots are very small and are in congested areas, and that these redevelopment schemes are carried out by private developers. Additional construction is required to be carried out to provide minimum accommodation to the existing occupants as well as for the newly entering occupants who pay higher amounts to buy the additional flats. He referred to and relied upon a judgment of a bench of two judges of this Court in Jayant Achyut Sathe Vs. Joseph Bain D'souza & Ors. reported in 2008 (13) SCC 547 where in the challenge to the 1.5 m. open space (i.e. about 5 feet) in the schemes under DCR 33 (7) came to be rejected.

34. (i) On the other hand, Mr. Nariman pointed out that although the ladders / snorkels which the fire department are supposed to go up to the height of 70 meters, the maximum reach of the snorkel depends on various factors such as wind velocity, availability of space, and tilt and angle of the approach. Thus, the reach is always less than the theoretical maximum height. Besides, there are 33 Fire Brigade Stations in Greater Mumbai, 15in the city, 12 in Western Suburbs and 6 in Eastern Suburbs. None of these stations have sufficient equipments (snorkels) in their stations since they are in limited numbers.

(ii) It was also pointed out by Mr. Nariman that as far as the internal arrangement in the multi-storey buildings is concerned, a refuge floor is required to be provided above every 7 floors for buildings crossing the height of 24 meters. However, these refuge floors are very often not properly maintained, are not kept vacant, and are used for other purposes. The consequence is that the effectiveness of the fire protection from within the building remains in peril. He further pointed out that the Fire Brigade is supposed to check installations such as sprinklers and other fire-fighting equipments as provided under Appendix VIII inside the buildings periodically, but the department is understandably over-worked, and therefore not in a position to effectively cover all the buildings in the city.

35. Mr. Shyam Divan, learned Senior Counsel appearing for the UDRI pointed out that the present fire protection requirements contained in DCR43(1) if strictly complied with, could be considered as adequate for mid-rise buildings and structures up to 13 storeys. However, when it comes to the high-rise buildings, the fire safety requirements are primarily compromised by relaxation in the access under DCR 17 and the side open /setback spaces between the buildings under DCR 28. He submitted that the provision contained in the second proviso of DCR 43(1)(A) could not bejustified.

36. As far as the schemes under DCR 33(7) are concerned, Mr. Shyam Divan, learned Senior Counsel appearing for the UDRI has pointed out that there is already a criticism with respect to these schemes viz. that the yare working more for the developers and for the private new entrants who buy the flats at higher costs, than for providing the accommodation to the existing occupants. The State Government is also raising its hands on the ground of financial difficulties to take up such schemes. Consequently, the inability of fire engines to go into such plots, and thereby permanently denying the occupants adequate fire protection is not the concern of either of them. Protection of the environment and human life are constitutional mandates, and even if the developers and the public authorities choose to ignore these essentials, this Court cannot. Adequate access for the fire-engines as an essential requirement:-

37. Having noted the submissions of all the counsel in this behalf, what we find is that whereas the provisions for the mid-rise buildings upto 13 floors are somewhat adequate, those beyond are required to be strictly implemented from within as well. The provisions for the refuge floor and various requirements from within have to be strictly scrutinized and insisted upon. That apart the second proviso to DCR 43(1)(A) cannot stand scrutiny of minimum safety requirement.

If the access of 6 meters is required from at least one side within the property for the fire engine to enter and move inside, we fail to see as to how in redevelopment proposals under DCR 33(7) where the plot size is up to 600 sq. mts., open space of1.5 meters, can be said to be adequate. As fairly pointed out by Mr. Bhatt, the buildings on such plots can also go up to 20 floors, depending upon the number of flats for the occupants to be provided for. If that is so, it is necessary to have an open space of the width of 6 meters within the property for the fire engine to enter the property at least from one side which is so provided for every other building.

38. It is true that in Jayant Achyut Sathe (supra) the challenge to the five feet open space in the schemes under DCR 33(7), came to be rejected. However, as can be seen from paragraph 49 of the judgment, it was principally rejected on the ground that the challenge was hopelessly delayed since this provision restricting the open spaces in these schemes had been in existence since 1984. The question of fire engines not being able to go inside such plots, was raised in the Bombay High Court, but this Court has not gone into that aspect in the said judgment. We are looking into the issue of the side space on the backdrop of the failure of the fire brigade to quickly extinguish the fire even in the six storeyed Secretariate building in Mumbai, which has sufficient side spaces on all sides.

Not providing a minimum space of 6 meters which makes room for the fire-engine to access the building amounts to violation of the right to life and equality of the residents of these buildings, by not providing the same standard of safety to them which is available to residents of all other buildings. It is true that some of these plots under the DCR 33(7)schemes are small plots and are in congested areas. But if that is so, nothing prevents the State Government from taking over such schemes for which it can finance from the overall cess collection. In such cases, it may have to accommodate only the existing occupants. This can also be achieved by calling upon such occupants to partly contribute towards the construction cost. But human life cannot be made to suffer only on the ground that in the redevelopment scheme sufficient access cannot be provided for the fire engine to enter within the plot even from one side.

39. We are, therefore, of the view that the second proviso to DCR43(1)(A) is discriminatory as against the occupants of the plots up to the size of 600 sq. mts. and therefore violative of Article 14 of the Constitution of India. The provision is likely to lead to a hazardous situation, affecting the life of the occupants, and therefore violative of Article 21 of the Constitution. We, therefore, hold the provision to be bad in law. If the fire is to be extinguished at the earliest the fire-engine must be able to reach the spot of fire, without any delay. Maneuverability of the fire engine is, therefore, of utmost importance. As such, most of the city roads are very narrow. On top of that if there is no adequate space for the fire engine to enter the property, the situation will become worse.

We are clearly of the view that even for redevelopment proposals of plots up to the size of 600 sq. mts. under DCR 33(7), an open space of the width of 6 meters within the property which is accessible from the road on one side, will have to be maintained unless the building abuts roads of 6 meters or more on two sides, or another appropriate access of 6meters to the building is available apart from the abutting road. This will be subject to the decision of the Chief Fire Officer in writing. Besides, we also feel that it is necessary to direct that the fire department must insist from the developer/society of all the buildings, to certify at least once in six months that the access to the building, the internal exits and the internal fire fighting arrangements are maintained as per the expectations under the DCR, the norms of the fire department, and must check them periodically, on its own. The decision on Issues no. 1 and 4 to apply prospectively:-

40. Although, for the reasons stated above, we are of the view that the provision under DCR 38 (34) cannot be read in derogation to the one under DCR 23 with respect to the recreational area, and also that the second proviso to DCR 43 (1) (A) on fire protection requirements is hazardous and discriminatory against the occupants of the schemes under DCR33 (7), we do note the submission by the intervening Practicing Engineers, Architects, and Town Planners Association that any such declaration/changes be implemented with prospective effect, namely, where the commencement certificate (CC) has yet not been granted. Issue No.2 regarding height of the buildings vis-Ã -vis the width of the adjoining road, and Issue No.3 on the impact of additional FSI on the traffic situation:-

41. As far as the issues no.2 and 3 are concerned, though they are, in a way, independent issues, they are inter-related also, and therefore, we will deal with them together. These are issues requiring wider consideration and consultation amongst planners, and as far as these issues are concerned, this Court will confine itself to making certain recommendations for consideration of the planners. This is because this Court is conscious of the fact that the new development plan for the city of Mumbai is in the process of being drafted. It is for the planners to examine these issues. However, since these issues have arisen in the context of the present matter, this Court has invited the response from the appellant-Municipal Corporation as well as the State Government. The concerned interveners have also made their submissions. We shall look into the submissions in this behalf and make certain suggestions for consideration in the light thereof. Issue No. 2-Height of buil