The skyscraper debacle: ruling on Palais Royale

By Vivek Vashi and Prakritee Yonzon, Bharucha & Partners
0
669

Palais Royale at Worli, which is planned to be Mumbai’s tallest building, has attracted a lot of attention not only in Mumbai but all over India. The 320-metre, 56-storey skyscraper, showcasing more than 100 apartments, defines Mumbai’s skyline and has achieved a first for India in Leadership in Energy and Environmental Design certification.

Vivek Vashi
Vivek Vashi

However, the legality of Palais Royale and its adjacent public parking lot (PPL) has been challenged in a public interest litigation (PIL) filed by a non-governmental organization by the name of Janhit Manch. The PIL has brought into the limelight the complex legal and factual matrix that is involved in the construction of high-rise buildings.

Facts of the case

In the case of Janhit Manch and another v State of Maharashtra and others, the petitioners sought to challenge the approvals and commencement certificates in respect of the building and PPL and also sought a writ of mandamus for the demolition of additional floors of the residential building. The petitioners also raised various issues regarding the refuge area and the resulting additional floor space index (FSI), the set-back areas, passages, structural columns, amenity floors and servants’ toilets.

The petitioners’ case was that: (a) the PPL was illegal as it had been constructed without a commencement certificate; (b) the FSI was manifestly illegal as the refuge area was 72.2% of the total habitable built-up area, whereas the Development Control Regulations (DCR) allow a maximum of 4%; (c) with respect to the other structures, incentive FSI had been misused and the structures had been constructed contrary to the DCR and the relevant notifications in the regulations.

Court’s findings

The court rejected the respondent’s preliminary objection that there was no public interest involved, holding that such legal issues concern several cases of multi-storey buildings in Mumbai. The case was accordingly examined on merits.

In an astounding judgment, the court held that the PPL was not illegal by upholding the principle of equity recognized in section 51 of the Maharashtra Town and Regional Planning Act, 1966. Under this section, the Municipal Corporation of Greater Mumbai ought not to invoke its power once the work has “substantially progressed”, even though the builders, Shree Ram Urban Infrastructure, sought to continue on the basis of deemed permission.

The court further held that the 900 parking spaces of the PPL had been constructed in accordance with the sanctioned plans, despite the absence of a commencement certificate, and that the PPL was to be handed over to the corporation free of cost and for the use of general public. The respondent was entitled to use incentive FSI.

With respect to the main residential building, the court did not think it necessary to intervene and issue a drastic order of demolition, on the ground that the construction beyond the 46th floor exceeded the commencement certificate that had been issued, as the building plans had been sanctioned up to the 56th floor.

Prakritee Yonzon
Prakritee Yonzon

The court also observed that the refuge area, and the additional FSI that can be gained from it, was excessive and directed the municipal commissioner to carry out the necessary calculation. The commissioner was directed to determine the factual position in relation to the set-back areas, passages, structural columns, amenity floors, servants’ toilets, and the need to obtain a no objection certificate from the high-rise committee, in six weeks from the date of the judgement, in order to resolve the issues brought to light in the case. The builder was given the right to be heard before the commissioner decided the matter.

Analysis and impact

To appreciate the judgment, it is important to note and differentiate the multiple facets involved. While the court graciously accepted the petitioner’s locus to file the PIL, it also narrowed the ambit of the PIL by delegating the onerous issues to the commissioner. While this may be seen as a reasonably smart move in light of the technicalities and intricacies involved in the calculation of incentive FSI, permitted height of structural columns, set-back areas, etc., the court’s hesitance to intervene and rule that the builder had not obtained the required permissions or approvals reflects not only the complicated factual and legal matters involved in the case, but also the intertwining of the judicial and executive powers in cases of construction of high-rise buildings.

Although the court may have tried to avoid overstepping the executive in exercising its functions, this should not be seen as a green signal by builders, to proceed with construction without the required approvals or sanctions until their actions are brought to the attention of the authorities concerned. With the pace at which the Mumbai skyline is rising, obtaining permissions is a small price to pay in contrast to the potential overlapping of the functions of authorities.

Vivek Vashi is the mainstay of the litigation team at Bharucha & Partners, where Prakritee Yonzon is an associate.

Bharucha_&_Partners_logo

Bharucha & Partners Advocates & Solicitors

Cecil Court, 4th Floor, MK Bhushan Road

Mumbai-400 039

India

Tel: +91-22 2289 9300

Fax: +91-22 2282 3900

E-mail:[email protected]