[Narayan Rane Residence] "Whether 300% Additional Construction Is An Irregularity Or Unauthorised Construction, You Have To Decide": Bombay HC To BMC

Justice Dhanuka leading the bench referred to the earlier round of litigation wherein Rane failed after strong objection from the BMC, and said:

"The defects pointed out by you (BMC) and accepted by the court, can it be cured? One of the reasons was that there is 3 fold unauthorised construction. Whether 300% additional construction would be an irregularity or an unauthorised construction, you have to decide."

The court asked for BMC's written response after the civic body showed its willingness to consider a second application for regularisation under the new Development Control and Promotion Rules 2034 which were enacted in 2018 despite the building receiving an occupation certificate (OC) in 2013 in accordance with the earlier DCR 1991.

A division bench was hearing a petition filed by Kaalkaa Real Estates Pvt Ltd, a closely held family concern of Rane. Kaalkaa owns the plush Juhu residence where Rane resides.

While under the earlier DCR there is no likelihood of regularisation, under the new DCPR more FSI can be claimed.

"Any development permission, even in an existing building will fall under (be considered) under the DCPR 2034," Senior Advocate Anil Sakhare said for the BMC.

He explained that under the new DCPR 2034 providing residence to Project Affected Persons would make a builder entitled to additional FSI. Rane's company is seeking additional FSI under this provision.

During the hearing, Advocate Shardul Singh along with Advocate Prerna Gandhi for Kaalkaa said that the fresh proposal for regularisation was maintainable in two scenarios; if there is a change in the law or material change in circumstances.

In the present case there was a change in circumstance as the fresh calculation for FSI took the High Court's earlier order into consideration. Moreover, concepts of "res judicata" and "estoppel" wouldn't apply in Rane's case.

However, the court wondered if the regularisation process can be considered as an administrative process despite the provision for appeal.

When Singh tried to submit that the regularisation was being sought on a private land, the court said,

"Unauthorised construction is unauthorised construction. It can't be allowed merely because its on private land. The law is also applicable to private land."

Singh said he may be subject to whatever conditions to the court's satisfaction but the BMC may be allowed to consider his application.

The court has sought BMC's written response on three aspects by August 23, 2022.

1. Maintainability - Would the BMC be willing to consider the fresh application under section 44 of the Maharashtra Region and Town Planning Act despite rejection of the first application on various grounds including that there was 300% unauthorised construction.

2. Can the application for regularisation and additional FSI be considered without the consent of two other societies on the same plot.

3. Can Rane's application be considered under DCPR 2034, enacted only a couple of years ago, despite the building getting an OC in 2013 under the earlier DCR.

In March 2022 the Brihanmumbai Municipal Corporation (BMC) had issued orders against Aadish Bungalow in Juhu asking the owners/occupiers to demolish illegal extensions to the bungalow on their own; in case the owners/occupiers fail to do so, the BMC would go ahead and carry out the said demolition and recover the cost from the owners/occupiers.
In March, the Bombay High Court restrained Mumbai's civic body from taking action against the bungalow in which Union Minister Narayan Rane lives with his family till an application to regularise the alterations is decided and for three weeks thereafter.

The company made an application for regularisation of portions of the premises alleged to be in contravention by making a payment, while contending that there were no contraventions.
The BMC rejected the application on June 3. And Kaalkaa Real Estates Pvt Ltd approached the court against the order.