Despite Attorney General (AG) G E Vahanvati’s legal opinion to Municipal Commissioner Sitaram Kunte that the Supreme Court judgment dated December 17, 2013, will halt almost all development projects in Mumbai and its suburbs, the Brihanmumbai Municipal Corporation (BMC) is unlikely to file a review petition.
Contending that it is not adversely affected by the order itself, the BMC has placed the onus of seeking a review of the order on the state government and various associations of builders or developers.
Responding to a request for opinion the civic body had sent to the AG on the New Year’s eve, Vahanvati stated in his confidential letter to the civic chief that the SC judgment would make redevelopment in Mumbai virtually impossible, and moreover, it would be difficult to implement. The AG recommended “immediate filing of a review petition in the first instance and thereafter, if necessary, a curative petition”.
The AG said it was “absolutely necessary” that detailed facts were brought on record to show the “huge impact” of this judgment with regards to Development Control Regulations sections 33(7), (8), (9) and (10), which relate to redevelopment of cessed buildings, slum rehabilitation and cluster redevelopment.
However, the BMC has decided to play it safe.”We are following the state’s Urban Development (UD) department’s circular of February 10. Since the state government has directed us, it is up to them to finally take a decision on the review petition. We are not adversely affected by the order in any way. The SC has in fact interpreted the DCR for us. In this case, the aggrieved parties, that is, the associations of builders and developers, can file the review petition if they want,” a senior civic official said.
Civic officials close to the municipal commissioner said a detailed note on affected projects had also not yet been prepared. In fact, distancing itself from Vahanvati’s letter, which went as far as to observe that “town planning and regulations are a matter for experts”, civic officials said the BMC had sought the AG’s legal opinion only to “clearly understand” the court order and its legal implications.
The SC, in its ruling, had categorically stated that the prescribed minimum ground-level open spaces around a building could not be reduced and replicated on an open-to-sky podium (which henceforth would only be considered as additional to ground-level open space). Thus, developers will have to mandatorily set aside at least 15-25 per cent of the plot size at the ground level towards open recreational spaces. The SC further said developers would have to maintain at least six metres of open space on a plot to enable firefighting.
Prior to the judgment, based on which the state urban development (UD) department subsequently issued a direction to the civic body on February 10, many real estate projects were allowed to create recreational spaces at the podium level, instead of providing all of it on the ground level.
For redevelopment under sections 33 (7), (8), (9), and (10) of the DCR, 1991, leeway was even given for mandatory open space for firefighting, and for plots less than 600 sq m, these schemes would allow 1.5 metres of open space.
On February 10, the state UD department had issued a circular keeping in line with the SC ruling. Chief Minister Prithviraj Chavan modified regulations making it mandatory for developers building skyscrapers in Mumbai to set aside 6-m open space on one side of the building to facilitate firefighting. Norms pertaining to recreational space to be provided in construction projects over 1,000 sqm were also being modified.
The Chavan-led UD department, concurring with the verdict, had stated that developers would have to provide recreational space at the ground level. However senior state and civic authorities clarified that the 6-m norm would not be applicable for low-rise (less than 24 m height) projects.
While the state government had earlier planned to file a review petition against the entire order, it has since diluted its stance and now plans to only challenge the verdict that demands the constitution of a new high-rise committee based on new criteria.
Vimal Shah, president of the Mumbai Chamber of Housing Industry, meanwhile, confirmed that the builders’ association has filed a review petition in the SC.