# ORS v. KOHINOOR CTNL INFRASTRUCTURE COMPANY PRIVATE LIMITED AND ANOTHER

- **Citation:** [2013] 16 S.C.R. 1119
- **Court:** Supreme Court of India
- **Decided:** 2013-12-17
- **Case number:** Civil Appeal No. 11150 of 2013
- **Bench:** H.L. Gokhale, J. Chelameswar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ors-v-kohinoor-ctnl-infrastructure-company-private-limited-and-another-29002
- **Pages:** 62

## Headnote

Urban Development:
c
Sanction for construction of high-rise building going upto
198. 50 meters - Provision for Public Parking Lot up to 13 floors
- During the construction work, decision of Government to
limit the height of Public Parking Lot to ground plus 4 upper D
floors - Competent authority directing the builder to restrict
the work of Public Parking upto ground plus 4 floors instead
of 13 floors - By further order, the authority allowed Public
Parking to the extent of already executed construction -:-- High
Court quashed the orders passed by the authorities as being
contrary to law - On appeal, settlement arrived at between the
parties -
The Court also noticed certain violations while
granting initial sanction in respect of the building in question
E
- Memorandum of Settlement taken on record and parties
directed to act strictly in accordance thereof - As regards other
violations it held: Minimum recreational space as laid down
F
under Development Control Regulation (OCR) 23, cannot be
reduced on the basis of OCR 38(34) - The second proviso
to OCR 43(1)(A) regarding fire protection requirements, is
discriminating as against occupants of the plots upto the size
of 600 sq. mtrs. and hence violative of Art. 14 of the G
Constitution - The provision is also violative of Article 21 as
it is likely to lead to hazardous situation - Suggestions given
regarding height of buildings vis-a-vis the adjoining roads and
1119
H
1120
SUPREME COURT REPORTS
[2013] 16 S.C.R.
A impact of additional FSI on the traffic situation -
State
Government, Development Plan Drafting Committee, and
appellant-Municipal Corporation directed to consider the
suggestions while framing the Development Plan for Greater ·
Mumbai -
'Technical Committee for High-Rise Buildings'
B reconstituted - Development Control Ri~gulations for Greater
Mumbai, 1991 - Maharashtra Regional and Town Planning
Act, 1966 - Constitution of India, 1950 - Articles 14 and 21.
Words and Phrases:
C
'Open space' and 'Site' - Meaning of, in the context of
urban development.
Respondent No.1 commenced construction work of
'A', 'B' and 'C' wings of a building, after due approval
0 from the competent authorities including the approval for
development of a multi-storied Public Parking Lot (PPL).
The appellant-Corporation issued a Circular on 22.6.2011
prescribing certain conditions un~er Clause 33(24) of
Development Control Regulation (DCR) limiting the
E height of PPL to ground plus 4 upper floors and 2
basements. In view of the circular, the appellantCorporation issued notice dated 29.11.2011 to
respondent No.1 under Maharashtra Regional and Town
Planning Act, 1966. Respondent No.1 in its reply pleaded
that amended clause 33(24) of the DCR could not be
F made applicable to its building, because substantial
construction had already been made. Thereafter stopwork Notice was issued on 22.12.2011 directing
respondent No.1 to restrict the work of PPL to 4 floors
instead of 13 floors. Competent Authority of appellantG Corporation passed ord~r dated 22.4.2012 holding that on
the part of the plot on which there was substantial
construction, PPL on that part shall be allowed to the
extent of already executed construction and in the
remaining portion of the plot, where there was no
H
MUNICIPAL COPRN. OF GREATER MUMBAI v. KOHINOOR CTNL 1121
INFRASTRUCTURE COMPANY PVf. LTD.
substantial construction, PPL shall be limited to ground
A
plus 4 floors.Petitioner No.1 challenged the Stop-work
notice as well as the order dated 27.4.2012. High Court
allowed the petition.
In appeal to this Court, the parties entered into
settlement, bringing about changes as desired by
appellant-Corporation, while taking care of interest of the
respondent. As per the settlement Public parking was to
B
be provided in the ground plus 4 upper floors in Wing 'C'
and also in the three level basements below Wings 'A',
'B' and 'C'. From 5th to 13th floors of Wing 'C' there would
C
be private parking.
This Court in its order dated 25.7.20

## Text

_Characters 0–39,968 of 115,381. This is a partial read: ask again with offset=39968 for what follows._

[2013] 16 S.C.R. 1119
MUNICIPAL CORPORATION OF GREATER MUMBAI AND
A
ORS.
V.
KOHINOOR CTNL INFRASTRUCTURE COMPANY
PRIVATE LIMITED AND ANOTHER
(Civil Appeal No. 11150 of 2013)
B
DECEMBER 17, 2013
[H.L. GOKHALE AND J. CHELAMESWAR, JJ. ]
Urban Development:
c
Sanction for construction of high-rise building going upto
198. 50 meters - Provision for Public Parking Lot up to 13 floors
- During the construction work, decision of Government to
limit the height of Public Parking Lot to ground plus 4 upper D
floors - Competent authority directing the builder to restrict
the work of Public Parking upto ground plus 4 floors instead
of 13 floors - By further order, the authority allowed Public
Parking to the extent of already executed construction -:-- High
Court quashed the orders passed by the authorities as being
contrary to law - On appeal, settlement arrived at between the
parties -
The Court also noticed certain violations while
granting initial sanction in respect of the building in question
E
- Memorandum of Settlement taken on record and parties
directed to act strictly in accordance thereof - As regards other
violations it held: Minimum recreational space as laid down
F
under Development Control Regulation (OCR) 23, cannot be
reduced on the basis of OCR 38(34) - The second proviso
to OCR 43(1)(A) regarding fire protection requirements, is
discriminating as against occupants of the plots upto the size
of 600 sq. mtrs. and hence violative of Art. 14 of the G
Constitution - The provision is also violative of Article 21 as
it is likely to lead to hazardous situation - Suggestions given
regarding height of buildings vis-a-vis the adjoining roads and
1119
H
1120
SUPREME COURT REPORTS
[2013] 16 S.C.R.
A impact of additional FSI on the traffic situation -
State
Government, Development Plan Drafting Committee, and
appellant-Municipal Corporation directed to consider the
suggestions while framing the Development Plan for Greater ·
Mumbai -
'Technical Committee for High-Rise Buildings'
B reconstituted - Development Control Ri~gulations for Greater
Mumbai, 1991 - Maharashtra Regional and Town Planning
Act, 1966 - Constitution of India, 1950 - Articles 14 and 21.
Words and Phrases:
C
'Open space' and 'Site' - Meaning of, in the context of
urban development.
Respondent No.1 commenced construction work of
'A', 'B' and 'C' wings of a building, after due approval
0 from the competent authorities including the approval for
development of a multi-storied Public Parking Lot (PPL).
The appellant-Corporation issued a Circular on 22.6.2011
prescribing certain conditions un~er Clause 33(24) of
Development Control Regulation (DCR) limiting the
E height of PPL to ground plus 4 upper floors and 2
basements. In view of the circular, the appellantCorporation issued notice dated 29.11.2011 to
respondent No.1 under Maharashtra Regional and Town
Planning Act, 1966. Respondent No.1 in its reply pleaded
that amended clause 33(24) of the DCR could not be
F made applicable to its building, because substantial
construction had already been made. Thereafter stopwork Notice was issued on 22.12.2011 directing
respondent No.1 to restrict the work of PPL to 4 floors
instead of 13 floors. Competent Authority of appellantG Corporation passed ord~r dated 22.4.2012 holding that on
the part of the plot on which there was substantial
construction, PPL on that part shall be allowed to the
extent of already executed construction and in the
remaining portion of the plot, where there was no
H
MUNICIPAL COPRN. OF GREATER MUMBAI v. KOHINOOR CTNL 1121
INFRASTRUCTURE COMPANY PVf. LTD.
substantial construction, PPL shall be limited to ground
A
plus 4 floors.Petitioner No.1 challenged the Stop-work
notice as well as the order dated 27.4.2012. High Court
allowed the petition.
In appeal to this Court, the parties entered into
settlement, bringing about changes as desired by
appellant-Corporation, while taking care of interest of the
respondent. As per the settlement Public parking was to
B
be provided in the ground plus 4 upper floors in Wing 'C'
and also in the three level basements below Wings 'A',
'B' and 'C'. From 5th to 13th floors of Wing 'C' there would
C
be private parking.
This Court in its order dated 25.7.2013 took ton
record, the Memorandum of Settlement dated 18.4.2013
between the parties. This Court by order dated 25.7.2013,. D
apart from taking on record the settlement, also noticed
that the appellant-Corporation had not applied their mind
to some of the issues which, did arise in the matter of ·
grant of permission to the building complex in question,
viz. the recreational space available at the ground level
E
was reduced to only 7.7.% of the area of the plot as
against the required minimum of 15%; that a higher FSI
had been given in lieu of making a provision for Public
Parking, leading to a high-rise building; that impact of
Construction of high-rise buildings in the thickly
F
populated areas on the traffic in the city was not
considered; and that the issues regarding the firi;i
hazards were not considered.
Disposing of the appeal, the Court
HELD: 1. The memorandum of settlement dated
18.4.2013, concerning the Public Parking Lot (PPL) arrived
at between the appellant-Municipal Corporation of Greater
Mumbai and the respondents was taken on record, as
noted in Part-I order dat~ 25.7.2013, in the facts and
G
H
1122
SUPREME COURT REPORTS
[2013] 16 S.C.R.
A circumstances of the present case. Both the parties shall
act strictly in accordance with the same. It is clarified th!'lt
the Municipal circular dated 22.6.2011 is not in any way
held to be bad in law. [Para 60] [1179-0-F]
8
2.1. OCR 23 (1) (a), speaks of a lay-out or sub-division
of 'vacant land' and open spaces. Under sub-clause (f)
of OCR 23 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
C space within.the plot. These provisions clearly show that
they are mandatory. OCR 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 OCR 2 (83) to mean a
parcel or piece of land enclosed by definite boundaries.
D These OCR'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. Podium is
permissible only on plots admeasuring 1500 sq. mts. or
E more. So this provision is not applicable to plots smaller
than 1500 sq. mts. The requirement of recreational space
on the podium under OCR 38 (34) (iv) is discretionary.
Besides, as clause (iii) lays down, podium shall be
basically used for parking. Besides Clause (iv) does not
F contain a non-obstante clause to over-ride the
requirement under OCR 23 making it mandatory to
provide recreational space on the ground-floor. That
being so, the provision under OCR 38 (34) cannot be read
in derogation of the requirement under OCR 23 or else it
G will result into serious erosion in the basic requirements
for a good life affecting the guarantee of righ~ to life, under
Article 21 of the Constitution of India. Therefore clause
(iv) of the OCR 38(34) has to be read down as
inapplicable and not excluding the mandatory provision
H under OCR 23. [Para 25] [1150-C-H; 1151-A, BJ
--·
MUNICIPAL COPRN. OF GREATER MUMBAI v. KOHINOOR CTNL 1123
INFRASTRUCTURE COMPANY PVT. LTD.
2.2. The development schemes under OCRs 33(7),
A
33(9) and 33(10) provide for lesser Recreational area I
Amenity spaces. Thus, under OCR 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
B
open space. Similarly, for the schemes under OCR 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 c
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,
0
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. [Para 26] [1151-B-E]
E
2.3. Besides, 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. The right to a clean and
F
healthy environment is within the ambit of Article 21. The
right to a clean and pollution free environment, is also a
right under co'mmon-law jurisprudence. [Para 27] [1151F-G; 1152-B]
Court on its Own Motion vs. Union of India 2012 (12)
SCALE 307; Ve/lore Citizen's Welfare Forum vs. Union of
India and Ors. (1996) 5 SCC 647: 1996 (5) Suppl. SCR 241
- relied on.
G
2.4. Having 15%, 20% or 25% of the area (depending
H
1124
SUPREME COURT REPORTS
[2013] 16 S.C.R.
A 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. Therefore, issue no. 1 is
answered by holding that it is not permissible to reduce
the minimum recreational area provided under DCR 23 by
B 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. [Para 28] [1152-G-H; 1153-A-B]
c
3.1. Whereas the provisions regarding access for the
fire-engines are somewhat adequate for the mid-rise
buildings up to 13 floors, those beyond are required to
be strictly implemented from within as well. The
provisions for the refuge floor and various requirements
D from within have to be strictly scrutinized and insisted
upon. [Para 37] [1160-G-H]
3.2. The second proviso to DCR 43(1 )(A) cannot
stand scrutiny of minimum safety requirement. If the
E access of 6 meters is required from at least one side
within the property for the fire engine to enter and move
inside, in redevelopment proposals under DCR 33(7)
where the plot size is up to 600 sq. mts., open space of
1.5 meters, can not be said to be adequate. The buildings
F 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
G is so provided for every other building. [Para 37] [1160H; 1161-A-C]
3.3. 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
H equality of the residents of these buildings, by not
MUNICIPAL COPRN. OF GREATER MUMBAI v. KOHINOOR CTNL 1125
INFRASTRUCTURE COMPANY PVT. LTD.
providing the same standard of safety to them which is
A
available to residents of all other buildings. It is true that
some of these plots under the OCR 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
B
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 c
redevelopment scheme sufficient access cannot be
provided for the fire engine to enter within the plot even
from one side. [Para 38] [1161-E-H; 11162-A]
3.4. Therefore, the second proviso to OCR 43(1 )(A) is
discriminatory as against the occupants of the plots up
D
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. Therefore, the provision is bad in law. [Para
E
39] [1162-B-C]
3.5. Even for redevelopment proposals of plots up to
the size of 600 sq. mts. under OCR 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
F
6 meters to the building is available apart from the
abutting road. This will be subject to the decision of the
G
Chief Fire Officer in writing. Besides, it is also 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
H
1126
SUPREME COURT REPORTS
[2013] 16 S.C.R.
A are maintained as per the expectations under the OCR,
the norms of the fire department, and must check them
periodically, on its own. [Para 39) [1162-0-G]
Jayant Achyut Sathe vs. Joseph Bain D'souza & Ors.
B 2008 (13) SCC 547: 2008 (13) SCR 31 - distinguished.
4. Although, provision under OCR 38 (34) cannot be
read in derogation to the one under OCR 23 with respect
to the recreational area, and also that the second proviso
to OCR 43(1)(A) on fire protection requirements is
C hazardous and discriminatory against the occupants of
the schemes under OCR 33 (7), any such declaration/
changes be implemented with prospective effect,
namely, where the commencement certificate (CC) has
yet not been granted. [Para 40) [1162-H; 1163-A, BJ
D
5.1. Issue No.2 regarding height of the buildings visa-vis the width of the adjoining road, and Issue No.3 on
the impact of additional FSI on the traffic situation are
issues requiring wider consideration and consultation
E amongst planners. [Para 41] [1163-0-E)
5.2. OCR 31(1) lays down that the height of a building
shall not exceed one and a half times the total of the
width of the street on which it abuts. In the present case,
a tower of the height of 195.90 meters is being
F constructed. This tower is bounded by four roads and
the height of the tower is disproportionately high, as
against the width of the adjoining roads. The first proviso
to OCR 31 (1) lays down that this restriction shall not be
applicable for construction of buildings undertaken
G under OCR section 33(7), 33(8) and 33(9). Though, these
OCR's are for the housing re-development schemes they
also add to the population in the particular area as well
as the vehicles. [Para 42) [1164-A-C]
H
5.3. The exemptions from OCR 31 (1) for schemes
MUNICiPAU:OPRN OF-GREATER MUMBAI v. KOHINOOR CTNl 1127
INFRASTRUCTURE COMPANY PVT. LTD.
under Section 33(7), 33(8) and 33(9), though apparently
A
meant for laudable purpose, are very often resulting into
extreme crowding, and traffic congestion. It is necessary
that while granting exemptions from OCR 31 (1 ), there
must be a scheme-wise approach, and there ought to be
a proper supervision of the construction. These
B
development schemes and the additional FSI thereunder,
should be examined locality-wise. The impact of such
high-rise buildings on the adjoining locality as well as on
the traffic, is required to be examined before granting
such permission. [Para 53] [1170-H; 1171-A-C]
c
5.4. There is a need to restrict the additional pressure
on existing infrastructure so that it does not affect the
quality of life. The existing social infrastructure like
educational institutions, open spaces, hospitals etc, and
physical infrastructure like water supply and drainage is
already over-burdened. Therefore, wherever possible,
the State Government, the planning authority, and the
committee entrusted with drafting of the new plan should
consider contribution by the existing occupants
themselves to a good extent towards the construction
cost, or the State should contribute through its agencies
or from the amount of cess-collected. This will result into
curtailing the number of additional entrants and will not
add to the density of the population. This approach
should particularly be examined where the plots are
small or are in congested areas, and particulatly where
the proposal is under OCR 33(7). [Para 54] [1171-C-F] .
D
E
F
5.5. While preparing the new Development Plan these
aspects concerning restrictions on blanket exemptions,
G
contributi9n by the existing occupants to the
reconstruction schemes, locality-wise consideration and
impact of additional FSI on traffic, ought to be gone into.
In areas where the old town planning schemes have
prescribed a uniform lay-out, one can accept some
buildings going up to a certain extent, if necessary, to
H
1128
SUPREME COURT REPORTS
[2013] 16 S.C.R.
A accommodate the existing occupants in a reconstruction
scheme. However, it should not result into a plethora of
steeply rising buildings, to accommodate outsiders to the
building, adding to the population and traffic, and
disturbing the existing order of the lay-out completely.
B [Para 54] [1171-F-H; 1172-A]
5.6. The Technical committee for High Rise Buildings
consists of six members and is headed by a retired judge
of the Bombay High Court, as the Chairman. It has two exC officio members, namely, the Chief Engineer (Development
Plan) of the appellant who is also the member secretary,
and the Chief Fire Officer of the appellant. There are three
expert members, a Structural Engineering Expert; the Soil
and Geotech Expert and the Environmental Expert." It has
been suggested that this Court appoint a new committee,
D though the State Government has expressed its
willingness to extend the term of the present committee.
Considering that the architectural points as mentioned in
the municipal note, are also to be gone into by the
committee, the name of an Architect, Urban Researcher,
E and consultant to the appellant-Municipal Corporation is
included. Thus, the assistance of an architect will also be
available to the committee. Having taken the consensus
of the counsel appearing in the matter, one more change
in the committee is a~fected by appointing. Hon'ble Mr.
F Justice P.S. Patankar, former Judge of the Bombay High
Court, to be the Chairman of the committee. [Para 56]
[1176-C-H]
5.7. It is desirable that the committee be requested to
G look into two additional aspects i.e. the committee will
also look into the grievances regarding construction and
technical requirements of the development schemes
under OCR 33(7), 33(8), 33(9) and 33(10), whenever
brought to the notice of the committee by concerned
persons; and the committee may as well make
H
MUNICIPAL COPRN. OF GREATER MUMBAI v. KOHINOOR CTNL 1129
INFRASTRUCTURE COMPANY PVT. LTD.
recommendations to the State Government with respect
A
to the new Development Plan which is under drafting.
[Para 57) [1178-D-F]
· 5.8. In view of the facts that the committee will have
to spend good time for this work; that the honorarium of
8
Rs.15000/- paid to the chairman was fixed much earlier;
that the terms of reference are widened, the appellantMunicipal Corporation is directed to pay an honorarium
of Rs. 50,000/- per month to the Chairman. The other
members will be provided with the conveyance charges
C
and attendance charges to attend the meetings and for
site inspections, as per the municipal rules: The Municipal
Corporation will make available an appropriate room in
its headquarters and secretarial staff for the working of
the committee. The State Government shall issue
necessary notification reconstituting the committee, its
D
terms of reference, and other aspects, such as
honorarium etc. [Para 58] [1178-G-H; 1179-A-B]
Municipal Corporation of Delhi vs. Association of victims
of Uphaar Tragedy and Ors. AIR 2012 SC 100: 2011 (16)
E
SCR 1 - referred to.
Case Law Reference :
2011 (16) SCR 1
referred to
Para 13
2012 (12) SCALE 307
relied on
·Para 27
F
1996 (5) Suppl. SCR 241 relied on
Para 27
2008 (13) SCR 31
distinguished
Para 38
CIVIL APPELLATE JURISDICTION : Civil Appeal No:
G
11150 of 2013.
From the Judgment and Qrder dated 09.07.2012 of the
High Court of Judicature at Bombay in Writ Petition No. 143
of 2012.
H
1130
SUPREME COURT REPORTS
[2013] 16 S.C.R.
A
R. P. Bhatt, R. A. Malandkar, U. H. Deshpande, Jernold
Xavier, S. Sukumaran, Anand Sukumar, Bhupesh Kumar
Pathak, Meera Mathur for the Appellants.
Dr. A. M. Singhvi, Joaquim Reis, Shyam Diwan, Shivaji M.
B Jadhav, Brij Kishor Sah, Chirag M. Shroff, Abhishek Singh,
Sanjay Kharqe, Shubhangi Tuli (For Asha Gopalan Nair),
Anand Verma, Kedar Nath Tripathy. Gauhar Mirza, Pragya
Baghel, Ankur Saigal, Mahesh Agarwal, Rishi Agrawala, E. C.
Agrawala for the Respondents.
C
The Judgment of the Court was delivered by
H.L. GOKHALE J. 1. Leave granted.
2. This appeal is directed against the order dated
9.7.2012 passed by a Division Bench of the Bombay High
D Court whereby Writ Petition No.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-Ill, Municipal Corporation of Greater
Mumbai, and order dated 27.4.2012 passed by the Additional
E 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-Ill, N.C.Kelkar Road, Shivaji Park, Dadar, Mumbai.
F
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
G 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
.
-'
MUNICIPAL COPRN. OF GREATER MUMBAI v. KOHINOOR CTNL 1131
INFRASTRUCTURE COMPANY PVT LTD. [HL GOKHALE, J.]
Index) on the basis of the Commencement Certificates issued
A
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 . B
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 C
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
D
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
E
2.6.2010, the State government granted in-principle
approval under Clause 33(24) of the Development
Control Regulations (OCR) for Greater Mumbai, 1991 for
construction of a mu/ti-storied public parking lot.
Thereafter, the competent authority issued the Letter of F
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 G
requiring him to submit a proposal for amendment of
Clause 33 (24) of the OCR 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
H
A
B
c
D
E
F
G
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[2013) 16 S.C.R.
Corporation issued circular dated 22.6.2011 prescribing
certain conditions under Clause (iv) of OCR 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 Maharasntra 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 OCR 33(24)
cannot be made applicable to its buildings because
substantial construction had already been made at a cost
of Rs. 1671- 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 OCR."
5. The respondent challenged the stop work notice and
the order of the Additional Municipal Commissioner in
Writ Petition No. 14312012, which was allowed by the
High Court in the following terms:-
" In the facts of this case, the admitted position as
MUNICIPAL COPRN OF GREATER MUMBAI v. KOHINOOR CTNL 1133 ·
INFRASTRUCTURE COMPANY PVT. LTD. [HL GOKHALE, J.]
accepted in the order of the Additional Municipal A
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 MR. & T.P.
Act, 1966. The impugned order passed by the Additional
Municipal Commissioner restricting the Petitioners to a
B
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 c
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
D
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:-
E
F
(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.
G
entire basement, and the captive pF.irking 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
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SUPREME COURT REPORTS
[2013] 16 S.C.R.
A 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
B 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
C paragraph 9 of Part-I of the said order dated 25. 7.2013:-
D
E
"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
F respondents. The complex is going to be on the land which
earlier belonged to Kohinoor Textile Mill at Dadar, Mumbai.
Wing 'A' is to consist of 3 basements + ground to 5 Floors,
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
G 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 OCR
33(24), the public parking building was to be confined only to
H ground+4 upper floors. The settlement accepts this position,
MUNICIPAL COPRN. OF GREATER MUMBAI v. KOHINOOR CTNL 1135
INFRASTRUCTURE COMPANY PVT. LTD. [H.L. GOKHALE, J.]
and now as per the settlement, public parking is going to be
A
provided in the ground + 4 upper 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'.
~art-II of the order dated 25.7.2013 framing four
8
issues:-
7. Although the dispute between the parties, was with
respect to the height of the building consisting of tt)e 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
C
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
D
between 1001 sq. mts. to 2500 sq. mts. as per the OCR 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:-
E
" ..... 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
F
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
G
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 aft of them will have to onlv fall
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SUPREME COURT REPORTS
[2013] 16 S.C.R.
A
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
B co-relation between OCR-23, which provides for minimum
Recreational/Amenity open spaces, and OCR-38· (34)
concerning the Podium.
8. Secondly, it was noted that in the present matter a
c 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
0 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
E reasons in view of making a provision for public parking. Under
OCR 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 OCR makes another exception to this rule with
respect to construction schemes under OCRs Nos.33(7), (8)
and (9). OCR 33(7) is regarding reconstruction or
F redevelopment of cessed buildings in the island city, by cooperative housing societies, or of old buildings belonging to the
Municipal Corporation or the police department, and it grants
FSI of 2.5 plus incentive FSI as specified in Appendix 111,
whichever is more. OCR 33(8) is regarding construction for
G housing the dis-housed, by the Municipal Corporation. OCR
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
H whether these exemptions are justified, valid and legal?
MUNICIPAL COPRN. OF GREATER MUMBAI v. KOHINOOR CTNL 113 7
INFRASTRUCTURE COMPANY PVT. LTD. [H.L. GOKHALE, J]
9. Thirdly, the impact of constructipn of high-rise buildings
A
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.
B
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
C
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
D
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
E
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.
F
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 OCR 23 and G
OCR 38(34) regarding the recreational area? Is it
permissible to reduce the minimum recreational area
provided under OCR 23 on any ground?
(2) Whether the exemption from OCR 31(1) under OCR
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B
c
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E
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SUPREME COURT REPCRTS
[2013] 16 S.C.R.
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.
(8) 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."
G
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
H legality of the relevant provisions in this behalf. As against that,
MUNICIPAL COPRN. OF GREATER MUMBAI v. KOHINOOR CTNL 1139
INFRASTRUCTURE COMPANY PVT LTD. [H.L GOKHALE, J]
examination of the other two issues was taken up for the reason
A
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
B
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 c
Delhi. This Court decided the issue of compensation in
paragraph 38 of tha 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:-
0
"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."
E
And then, the Court made a number of suggestions inparagraph 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
F
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
G
affidavits were filed by the officers o~ 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
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SUPREME COURT REPCJRTS
[2013] 16 S.C.R.
A Engineers Architects and Town Planners Association (India)
and (iv) Property Redevelopers Association. They have all
assisted in the examination of these four issues.