Bombay High Court Paves Way For Redevelopment Of Iconic Chandan Cinema After Adherence To Height Restriction

A division bench of Justice Sunil B Shukre and Justice Firdosh P Pooniwalla paved way for redevelopment of Mumbai’s Chandan Cinema situated near the Signal Transmitting Station which was held up due to denial of no objection certificate (NOC) by the military authorities.

“if there is a permanent construction already completed at the commencement of the said Notification, then redevelopment of the said permanent construction is not barred by the said Notification. However, we are of the view that, keeping in mind the purpose of the said Notification, the said redeveloped structure will have to be of the permissible height of 15.24 metres or less and will have to be of the same dimensions as the already existing permanent construction”, the court held.

The petitioner, Sameer Baijanath Joshi, owns land in Juhu, Mumbai, where Chandan Cinema was constructed in 1973 with a height of 16.913 meters. In 2017, the BMC issued a notice to the petitioner, citing the dilapidated condition of the structure and demanding its repair or demolition within 30 days.

The petitioner sought permission to redevelop the structure, proposing a new building of basement, ground plus 11 upper floors, with a height of 50.70 meters above ground level. His application was forwarded to the Administrative Commandant for Station Commander, Headquarters Maharashtra Gujarat and Goa Area for an NOC, as a Signal Transmitting Station is located in the vicinity of the property.

The NOC was refused by the concerned authorities, citing the restrictions imposed by a Notification dated June 19, 1976 under the WoD Act. This notification prohibits construction within 457.20 meters from the crest of the outer parapet of the Signal Transmitting Station.

The petitioner revised his proposal and sought approval for a building of 15 meters height. However, NOC was not issued to him. Thus, he filed the present petition pointing out that the NOC was granted several projects near the said Signal Transmitting Station which were taller and closer to the Station than his land.

Senior Advocate Milind Sathe for the Petitioner argued that the said Notification did not apply to structures of 15.24 meters or less in height, while the proposed structure is only 15 meters in height. Further, according to the first proviso to the notification, the restrictions are not applicable to permanent structures beyond 15.24 meters in height which were constructed before the issuance of the Notification. Thus, the petitioner’s structure, which existed before the notification, is exempt from the restrictions, he argued.

Additional Solicitor General Dewang Vyas submitted that the exemption from restrictions applied only to the permanent construction and not the land. Thus, redevelopment or construction of a new structure is not exempted from the restrictions, he argued.

The first proviso to the Notification reads – “Provided that the said restrictions shall not apply to such permanent constructions beyond, the permissible height of 15.24 mtrs which have already been completed at the commencement of this notification.”

The court rejected Sathe’s argument that the restrictions did not apply for structures less than 15.24 meters in height. The court cited the judgment in Provincial Housings & Property Ltd in which a coordinate bench held that the proviso only exempted the existing structures less than 15.24 meters but did not exempt new structures.

The court said that the Central Government has exercised its discretion by including the first proviso, exempting permanent constructions which have already been completed at the commencement of the said Notification. The question before the court was whether such a permanent construction can be redeveloped.

The court noted that phrase “the said restrictions” in the proviso refers to restrictions specified in Section 7(c) of the WoD Act upon the use and enjoyment of the land. The court held that the first proviso in the notification provides an exception to the restrictions on the use and enjoyment of land as well and does not apply only to permanent constructions.

The court emphasized that the purpose of the notification was to protect existing permanent constructions, and hence, redevelopment of such structures should not be barred.

“In our view, any other interpretation would be contrary to the objective and purpose of the said Notification of protecting already existing permanent constructions. The same would prevent the owners of such an already existing permanent construction from redeveloping it, and relegate such an owner to claim compensation, which is not the objective of the said Notification”, the court observed.

The court concluded that the Notification did not prohibit the petitioner from redeveloping the existing structure, subject to a height limit of 15 meters and maintaining the same dimensions as the original structure. The court clarified that its ruling was confined to the issue of the Notification's applicability and did not extend to the broader legalities concerning the proposed redevelopment.

Senior Advocate Dr. Milind Sathe with Advocates Saket Mone, Bhushan Deshmukh, Jasmine Kachalia, Tejasvi Sarvaiya, Viren Mandhle & Sahil Singh i/b M/s. Wadia Ghandy & co. represented the Petitioner.

Additional Solicitor General Devang Vyas along with advocates Anusha P Amin, Nirnajan Shimpi, and Vaibhavi Choudhary represented the Union of India.

Advocate Sagar Patil represented the BMC.

Case Title – Sameer Baijanath Joshi v. Union of India and Ors.