Building block
After court says Mumbai structures must leave a minimum space open on ground, projects stuck, builders say it’s too huge an ask
Feb 11, 2014
Source : The Indian Express


MUMBAI: Over the last two months, Mumbai’s municipal commissioner Sitaram Kunte has sent back file after file because the buildings they propose do not meet a specification for open spaces ruled mandatory by a recent Supreme Court order.

The court on December 17 ruled that developers must set aside a minimum 15 to 25 per cent of the plot size at ground level towards open recreational spaces. So far, many developers had been creating such spaces at the podium level and adding that to the open space at the ground level so that the total came to 15-25 per cent. With the Supreme Court insisting on the minimum at the ground level, real estate experts estimate that it will halt over 60 per cent of projects in the city.

“We have been sending back files that are not as per the order of the Supreme Court. These developers are being asked to modify their building plans as per new rules for submission to the BMC (Brihanmumbai Municipal Corporation),” Kunte said.

Builders say it is a challenge to provide recreational facilities at ground level while keeping the project commercially viable.  “We cannot provide all the recreational space at ground level as there is an increasing need for parking space in the city. This, coupled with stringent norms for fire passages, will make it extremely difficult for developers to take up projects, especially redevelopment, cluster and slum rehabilitation schemes,” said Vimal Shah, president of Maharashtra Chamber of Housing and Industry and managing director of Hubtown (Ackruti City).

Rule 23 of the Development Control Regulation of 1991 did mandate 15-25 per cent open space at ground level but the BMC, by an amendment in January 2012, permitted that space on a podium. Now the Supreme Court has ruled that any green space on a podium would have to be in addition to the mandatory space at the ground level.

The Trigger

The order came on a case arising, ironically, out of a demolition notice served by the BMC itself.

The notice was on a commercial tower at the 4.8-acre Kohinoor Mills No.3, bought in 2005 at Rs 421 crore by Kohinoor Group and Matoshree Realty, firms owned respectively by former Lok Sabha speaker Manohar Joshi’s son Unmesh Joshi and MNS chief Raj Thackeray. The tower is being built by Kohinoor CTNL Infrastructure Company, with the group holding the majority share and the rest owned by financial services firm IL&FS.

The 52-storey tower, Kohinoor Square, is planned to be among the tallest in Mumbai and envisages a luxury hotel on its topmost floors apart from retail space, a food court, sky gardens and multi-level parking zones. Next to it are two residential towers of 48 and 32 storeys.

The project was among 11 that had been granted extra building rights as an incentive. The developers would build public parking space as high as 10 to 20 storeys and hand it over to the BMC, which in return would allow an additional FSI, or floor space index, a measure of how high a building can be against a given floor area.

Amid criticism, however, Chief minister Prithviraj Chavan scrapped the policy and the  BMC in 2011 asked the builders to demolish the parking tower planned till the 13th floor. Citing a new policy, it issued a notice to cancel the commencement certificate (it had been granted) above the fourth floor. The developers, having already constructed lots until the seventh floor, went to the high court, which quashed the stop-work and demolition notice, leading to a BMC appeal in the Supreme Court.
Subsequently, the two sides settled out of court that the public parking lot would not be on ground plus 13 but on ground plus four, with captive parking for residents on floors 5 to 13.

But by then, the Supreme Court had noted that there arose several other issues concerning such highrises.

The Order

A bench of justices Hemant Gokhale, a Mumbaikar himself, and J Chelameswar referred to “serious questions of reduction of compulsory green space and fire safety hazards”. A rule permitting a 1.5m passage on small plots under redevelopment, it held, is a fire hazard and thus invalid. A minimum 6m is necessary on plots up to 600 sq m unless the plot abuts a road, the court said, and directed the chief fire officer to certify the accessibility for each proposal.

The bench held there is “excessive concretisation, and a very serious reduction in open spaces,” and that the “right to a healthy environment is within the ambit of the right to life”. At Kohinoor Square, the recreational space at the ground level was 7.7 per cent of the plot area rather than 15 to 25.

The court cited the “harsh realities of open spaces becoming smaller and smaller in Mumbai”; the city has just 1.91 sq m open space per person while the National Building Code prescribes 3 sq m.

The order comes as a boost to environment activists but the BMC stresses it will hinder redevelopment. In the court, it had declared in an affidavit, “Some buildings in the city are very old and dilapidated. To (prevent) loss of property and life, those need to be redeveloped in addition to providing accommodation to existing tenants. If side open spaces are increased, it will result in increase in floor area resulting in increase in height of the building… Some small narrow plots cannot be developed.”

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