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Supreme Court is heavily down on Developers to maintain open space, passageway of 6 meters, recreational area and podium rules in redevelopment as per various clauses as specified in DCR.

The recent judgment of Supreme Court in the matter of Municipal Corporation of Greater Mumbai and Others as Appellants Versus Kohinoor CTNL Infrastructure Company Private Limited and another as Respondents has ruled to maintain adequate space around buildings at the ground level both as recreational areas and to allow fire engines smooth passage. The ruling has sent most Developers in lurch. The Real Estate Industry in Mumbai, which is already stumbling under recession, has virtually come to a grinding halt.

The Apex Court has whipped the strictures in case of redevelopment projects under consideration that the minimum recreation area under the Development Control Rules (DCR) 23 should not be reduced. The recreation area if any provided on podium as per DCR 38 (34) should be in addition to that provided as per DCR 23.

Rule 23 of the Development Control Regulation of 1991 mandates 15-25% open space at ground level depending on the plot size for every building. By an amendment in January 2012, the Authorities had permitted recreation space on a podium. The Apex Court said that any green space on a podium had to be in addition to the space mandated at ground level. For redevelopment, the minimum open space norm stays at 8% for small plots. Podiums are allowed only in plots covering more than 1,500 sq. meters.   

The decision would apply to all those constructions where plans are not approved or where the Commencement Certificate (CC) has not been issued till date and further directed that the Chief Fire Officer (CFO) must certify the accessibility for each redevelopment proposal.

Developers, architects and even the civic body represented to the Supreme Court the rising demand for parking space in residential towers supposedly creating the lots either in basements or on podiums, which in turn required ramp space, thus reducing area meant for the gardens.

The Apex Court pointed that the Greater Mumbai has just 1.91 sq. meters of open space per person. It falls way short of the 3 sq. meters prescribed by the National Building Code 2005 and the 11 sq. meters recommended by the Union govt.

For redevelopment of plots up to a size of 600 sq. meters, an open space of 6 meters on at least one side of the ground level that is accessible from the road side will have to be maintained for the maneuverability of a fire engine, unless the building abuts two roads of 6 meters or more on two sides or another access of 6 meters to the building is available apart from the road abutting the building.

The Developers are stressed that for the redevelopment projects in city and suburbs mostly having small plots, it would not be feasible unless the 6-metre passageway on one side of a building for fire engines rule is relaxed and that the ruling’s adverse impact will be felt most in the B and C wards where pre-1960 buildings abound in narrow lanes which have lined up with applications for reconstruction. Several other issues, such as Heritage, Doppler, Prisons, Naval Restrictions and Coastal Regulation Zones have already crippled the realty industry.

The result is that in the last three weeks not a single new proposal for construction of buildings has been received by the BMC. In fact, all the plans are now returned by the BMC which were submitted by the Developers before the order of Supreme Court, since they would have to comply with the new rule. The CFO, Fire Brigade and the Building Proposals and Development Plan Departments have been instructed to strictly follow the Apex Court Guidelines so that no contempt of court is committed.

Due to this stricture, the actual size of plots proposed for redevelopment has shrunk and has upset the computation with regard to the viability of a project as also the height of buildings has to be increase to accommodate all the tenants as also the saleable area of Developers in redevelopment projects.

It is feared that if the height of the proposed building goes up more than 70 metres then the High-Rise Committee Rules will be invariably applicable such as to keep two staircases with a width of two metres, refuge floors will have to be provided after each set of eight floors which were earlier free of FSI and now since added to FSI, premium has to be paid for the same.



@ It was noticed that as per the approved plan, the recreational space available at the ground level was reduced to only 7.7% of the area of the plot, as against the required minimum of 15% (where the area of the plot was between 1001 sq. meters to 2500 sq. meters as per the DCR 23).

@ Recreational/Amenity Open Spaces in Residential Layouts: As per DCR 23,in any layout or sub-division of vacant land in a residential and commercial zone, open spaces shall be provided as under:

(i) Area from 1001 sq. meters to 2500 sq. meters: 15 per cent
(ii) Areas from 2501 sq. meters to 10000 sq. meters: 20 per cent
(iii) Area above 10000 sq. meters: 25 per cent

These open spaces shall be exclusive of areas of accesses, internal roads, designations or reservations, development plan roads and areas for road-widening and shall as far as possible be provided in one place. Where, however, the area of the layout or sub-division is more than 5000 sq. meters, open spaces may be provided in more than one place, but at least one such place shall be not less than 1000 sq. meters in size. Such recreational spaces will not be necessary in the case of land used for educational institutions with attached independent playgrounds. Admissibility of FSI shall be as indicated in Regulation 35.

@ The minimum recreational space as laid down under Development Control Regulation (DCR) 23 cannot be reduced on the basis of DCR 38 (34). The recreational space, if any, provided on the podium as per DCR 38(34) (iv), shall be in addition to that provided as per DCR 23.

@ The provisions regarding height of building: Under DCR No.31 (1), the height of the building has to be in proportion to the width of the road which is adjoining a building, but the proviso to that DCR makes another exception to this rule with respect to construction schemes under DCRs Nos.33 (7), (8) and (9). DCR 33 (7) is regarding reconstruction or redevelopment of cessed buildings in the island city, by co-operative housing societies, or of old buildings belonging to the Municipal Corporation or the police department and it grants FSI of 3 plus incentive FSI whichever is more. DCR 33 (8) is regarding construction for housing the dis-housed, by the Municipal Corporation. DCR 33 (9) is regarding reconstruction or redevelopment of cessed buildings or urban renewal schemes on extensive areas where the FSI is 4. These constructions also add to the population and the vehicles in that very area. A question therefore arose as to whether these exemptions are justified, valid and legal?

@ The provisions regarding the podium: The provision regarding the podium is seen in DCR No. 38 (34). DCR 38 lays down the requirements concerning parts of buildings. DCR 38 (34) reads as follows:

(i) A podium may be permitted on plot admeasuring 1500 sq. meters or more.

(ii) The podium provided with ramp may be permitted in one or more level, total height not exceeding 24 meters above ground level. However, podium not provided with ramp but provided with two car lifts may be permitted in one or more level, total height not exceeding 9 meters above ground level.

(iii) The podium shall be used for the parking of vehicles.

(iv) The recreational space prescribed in DCR 23 may be provided either at ground level or on open to sky podium.

(v) Podium shall not be permitted in required front open space.

(vi) Such podium may be extended beyond the building line in consonance with provision of DCR 43 (1) on one side whereas on other side and rear side it shall be not less than 1.5 meters from the plot boundary.

(vii) Ramps may be provided in accordance with DCR 38(18).

(viii) Adequate area for Drivers rest rooms and sanitary block may be permitted on podiums by counting in FSI.

@ The second proviso to DCR 43 (1) (A) concerning fire protection requirements:  We hold that for the reconstruction proposals of plots up to the size of 600 sq. meters under DCR 33(7), open space of the width of 6 meters at least on one side at ground level within the plot, accessible from the road side will have to be maintained for the manoeuvrability of a fire engine, unless the building abuts two roads of 6 meters or more on two sides, or another access of 6 meters to the building is available, apart from the road abutting the building.

@ The decision as contained above, will apply to those constructions where plans are still not approved, or where the Commencement Certificate (CC) has not yet been issued. All authorities concerned are directed to ensure strict compliance accordingly.

@The Government of Maharashtra shall issue the necessary notification within four weeks of this order, re-constituting the ‘Technical Committee for the High-Rise Buildings’.