Bombay High Court stays guidelines providing nod for redevelopment projects with height up to 58 metres on Marine Drive

The Marine Drive Precinct Heritage Guidelines were formulated on the advice of the Mumbai Heritage Precinct Heritage Committee for future development of Marine Drive precinct.

Issuing the letter to the BMC Commissioner on September 4, 2023, the state government had promulgated the impugned guidelines.

A division bench of Chief Justice Devendra Kumar Upadhyaya and Justice Amit Borkar passed an order in PIL by Federation of Churchgate Residents, which claimed that the guidelines were framed without following previous court orders as well as other norms under the Development Control Regulations (DCR) of 1991.

The petitioners claimed that the guidelines were ex-facie illegal as the heritage area was required to be preserved.

The court issued notices to respondents and asked them to reply to the plea through affidavits to be filed before the next date of hearing. “We are staying implementation of the impugned guidelines until then,” the court said.

“Imagine what will happen if the seaside skyline of Marine Drive is changed? What are you doing? How can you make such a decision?” CJ Upadhyaya orally remarked.

Besides the promenade across Arabian sea, the Marine drive precinct area also includes Girgaon Chowpatty, on one end and NCPA on the other end and areas towards Churchgate railway station and Mantralaya.

The petitioner referred to the March, 2014 judgement of HC which had observed that the line of vision test applied for the second row of buildings behind the first row behinds was in contravention of prohibition in DCR, 1991. The said judgement was challenged before the Supreme Court by an individual realtor called Vasant Sagar Properties Pvt Ltd and the same is pending before SC.

Senior advocate Aspi Chinoy for petitioners submitted that earlier two attempts made by state government and BMC to promulgate guidelines for increasing height could not fructify due to intervention of HC in earlier PILs filed by the petitioners.

He added that by issuing impugned guidelines mentioned in the state’s letter of September 4, this year, the government has attempted a third time to promulgate the same guidelines.

After perusing past HC and SC orders, facts and submissions, the bench noted, “We, prima facie, find is that during the pendency of Civil Appeal (in SC) , guidelines similar to the guidelines promulgated earlier, could not have been issued by the State/Municipal Corporation,” the bench noted.

“We, thus, provide that the guidelines appended to the letter dated 4th September 2023 of the State Government addressed to the Commissioner of the Corporation shall not be acted upon with an exception in the case of Vasant Sagar Properties Pvt. Ltd,” it clarified.

It clarified that the application seeking permission for Vasant Sagar building shall be dealt with by the BMC in accordance with law.