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October 2008

Buildings in city of Mumbai are entitled to extra Floor Space Index : Development Control Regulation Act, 1991.

By Dr. K. Shivaram, Ajay R. Singh, Advocates
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5. Buildings in city of Mumbai are entitled to extra Floor Space Index : Development Control Regulation Act, 1991.

In an appeal before the Supreme Court, there was challenge to the judgment of the Bombay High Court which, while holding that Regulation 33(7) of the Development Control Regulations, 1991 (in short the ‘Regulations’) for the city of Mumbai as amended in the year 1999 does not suffer from any illegality, further observed that the same applies only to dilapidated buildings of ‘A’ category which satisfy the requirement and those declared prior to the monsoon of 1997 under 3rd proviso are covered under Regulation 33(7) and are entitled to extra ‘Floor Space Index’ (‘FSI’). It also directed that certain side space has also to be provided.

 

The Supreme Court allowing the appeals held :

1. The Scheme under Regulation 33(7) involves landlords with the consent of 70% of the occupiers. There is no acquisition for redevelopment under this Scheme. Therefore to bring in ‘old and dilapidated buildings’, which is a prerequisite for acquisition and reconstruction under the other Scheme, namely, under Chapter VIII of the MHADA Act cannot be included in the provisions of Regulation 33(7) read with Appendix III.

2. The provisions relating to buildings which have been declared unsafe are specifically covered by Regulation 33(6) and reconstruction by MHADA is covered by Regulation 33(9). When the situation has been differently expressed in different Sections, the Legislature must be taken to have intended to express a different intention if this building belongs to ‘A’ category.

3. Hence landlord of buildings of ‘A’ category need not wait for the building to get dilapidated as he is entitled to reconstruct.

4. Under Regulation 33(10) the open space is 5 feet and to insist on 12 feet as per the High Court judgment would make the same unreasonable and prevent even buildings which are on the verge of collapse from being redeveloped.

5. The above being the position, the inevitable conclusion is that the High Court was not justified in reading additional requirements into Regulation 33(7) after holding the same to be valid.

[Jayant Achyut Sathe v. Joseph Bain D’Souza and Ors., Civil Appeal Nos. 2970 to 2979 of 2006 & others, dated 4-9-2008 (unreported)]

 

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