By Dr. K. Shivaram, Ajay R. Singh, Advocates
New Page 1
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)]
