Subhash Chandra's ivory tower has to wait: SC comes down heavy on Marine Drive construction plans

Oh the heights of it!

The approval for construction was given under Regulation 67(2)(iii)(b) of the Development Control Regulation for Greater Mumbai, 1991 (DCR 1991).

“Under this regulation, the municipal commissioner has powers to allow construction of the buildings with height more than 24 metres. We objected to very regulation, which was overruled by a state government memorandum issued in April 1995, which clearly says that height of the reconstructed building shall not exceed the height of existing building. Which means the new building could not be built up to 58 metres,” Rao said.

Moreover, the approvals obtained from Mumbai Coastal Zone Management Authority (MCZMA) were subject to a NOC from the Mumbai Heritage Conservation Committee (MHCC), Rao added, alleging that it was never obtained.

The division Bench of Bombay High Court comprising of Chief Justice Mohit Shah and Justice MS Sanklecha passed the judgment in March 2014. The Bombay High Court set aside the permissions granted by the Municipal Commissioner. The Bombay HC held that the civic body should have considered granting permission under the memorandum of 1995 instead of the DCR 1991.

However, the Municipal Commissioner was directed to prepare the final guidelines, in consultation with the MHCC on the height of building being more than 24 meters in the heritage prescient of Marine Drive and consider the case of Vasant Sagar afresh under the new guidelines – those which would be prepared after consultation with MHCC.

“Aggrieved by the Bombay HC judgment, Vasant Sagar properties challenged it at the Supreme Court. But, by the time the matter reached Supreme Court, the height of the building had reached 26 metres. The Supreme Court ordered MCGM to carry out an inspection of the building and submit a report. We wanted to be part of the inspection team, but the company opposed it. The civic authorities submitted the report which said the height of the building was in accordance with the approved plan. Since the construction was going on during the pendency of the matter at Bombay HC and the SC, it was clear contempt of court. This was brought to the courts' notice,” Rao said.

Hold in contempt

The Federation of Churchgate Residents in its reply informed the SC that the report submitted by the civic authorities did not mention the actual height of the building and had only mentioned that it was built up to the 10th floor.

The MCGM filed an interim application on 22 June this year and informed the court that the guidelines pertaining to the reconstruction of buildings in Marine Drive area have been formulated. The guidelines were finalised after the recommendations of the MHCC.

“The MHCC had divided the Marine Drive precinct into three parts – Backbay, Gymkhana and Chowpatty. It allowed height up to 24 metres in Gymkhana precinct, 32 metres in Chowpatty precinct. Whereas in the Backbay precinct, the maximum height of buildings in the front row has been capped at 32 metres and those in the second row it is 58 metres. Since the Vasant Sagar falls in the second row, and the new guidelines have been formulated, MCGM requested the court to dispose of the matter,” Rao said.

Responding to the application by MCGM for the disposal, Federation for Churchgate Residents filed a detailed reply and registered strong objections to the guidelines. The Federation claimed that the new guidelines did not confirm to the directions of the Bombay HC. The application also contended the Regulation 31 of the DCR, 1991 which the Bombay HC had ordered.

The Federation had also pointed out the alleged shocking role of MHCC.

“We pointed out that Marine Drive precinct has been nominated as India’s entry for a World Heritage Site and a team from UNESCO would conduct site visit sometime this year or early next year,” Rao said.

After going through the reply filed by the Federation, the SC refused to dispose of the matter and ordered to be listed as per turn.

“This means that the plans of Vasant Sagar and MCGM to get the matter disposed of SC and speed up approval under new guidelines will have to wait for few years,” Rao said.