'Invidious Discrimination Impermissible': High Court Paves Way For High Rise In Mumbai’s Fort Heritage Precinct, Strikes Off BMC Condition

A division bench of Justice GS Patel and Justice Kamal Khata observed that no such condition was imposed by the BMC while granting permission for construction of a 60-meter-tall building opposite the concerned property.

“There is a precinct. It has a narrow street. On one side stands the Petitioner’s structure which Dr Chandrachud describes in the most unflattering terms. Directly opposite is a new development soaring to well over 60 meters. There is no evidence of Heritage Committee permission for that new development. Yet, under the same set up heritage control regulations, the Petitioner is being told that he cannot develop as his neighbour opposite did, without permission from the Heritage Committee. This, we are asked to believe is not arbitrary, not discriminatory but is a fair application of a law to all equally placed. The facts indicate entirely otherwise”, the court stated.

The court allowed a writ petition filed by developer Shreeji Realty challenging “Condition 38” imposed by the BMC regarding the redevelopment of a property situated in Mumbai's Fort area, which falls under the Fort Heritage Precinct.

The case revolved around the proposed redevelopment of a 323.57 sq. meters property situated at the junction of the Barbar Lane (Nadirshah Sukhiya Street) and Pitha Street in Fort. The property is in the list of Heritage Sites and Heritage Precincts as defined by the Development Control Regulations.

The development proposed by the petitioner was governed by Regulation No. 33(7) of the Development Control and Promotion Regulations for Greater Mumbai 2034 (DCPR-2034). The BMC had approved the redevelopment with the condition that the petitioner must obtain an NOC from the MHCC.

The Municipal Commissioner's Intimation of Disapproval (IOD) cited Regulation 52 of the DCPR 2034. As per the regulation, if the proposed redevelopment exceeds 32 meters in height, a special permission from the Commissioner is required and, while doing so, the Commissioner may consider any guidelines regarding listed precincts. The Commissioner specifically mentioned that the redevelopment should have "heritage significance worthy of recognition and conservation."

The petitioner challenged this condition before the High Court and sought direction to the BMC to issue a complete Commencement Certificate (CC) and other necessary permissions, including an Occupation Certificate (OC), for the proposed new building without requiring an NOC from MHCC.

The petitioner contended that its building and the one opposite were situated in the same Fort Heritage Precinct. However, while the neighbouring development was allowed without MHCC NOC, the petitioner faced this requirement. The petitioner further contended that the structures on property had no aesthetic, architectural, historical, or any other importance at all.

The Heritage Regulations, under Development Control Regulations 1991, introduced various restrictions on the development of heritage buildings and precincts in Mumbai. These regulations classified heritage structures into Grade-I (buildings of national or historical importance), Grade-II (local importance with special architectural/cultural/historical value), Grade-III (unique features and attributes), and precincts, each with its specific restrictions. As per a court order date February 3, 2014, reference of development proposals to the MHCC was necessary only if a building was Grade-I or of Grade-II.

The court said that this was a case under Article 14 of the Constitution, which mandates equality before the law and equal protection of laws. The court opined that Condition 38 in the IOD is contrary to Clause 9(D)(b) of the Regulation 52 of DCPR 2034 because that clause does not provide that MHCC NOC is mandatory. It only requires that guidelines may be taken into consideration, giving discretion to the Municipal Commissioner, the court noted.

BMC’s affidavit asserted that it is standard practice to require MHCC NOC for all heritage buildings irrespective of classification. However, the affidavit did not explain how the neighbor had been permitted without an MHCC NOC, the court said. The court also noted that BMC has not challenged the legality of the opposite building or required any action against it for development without MHCC NOC. Therefore, requiring MHCC NOC from the petitioner is arbitrary, the court held.

Thus, the court quashed the Municipal Commissioner's order and directed BMC to issue a full CC and other necessary permissions for the petitioner's proposed new building without insisting on an MHCC NOC.

Case no. – Writ Petition No. 95 of 2023

Case Title – Shreeji Realty v. Brihanmumbai Municipal Corporation and Ors.