Bombay High Court
Prakash V. Patel And Anr vs The State Of Maharashtra And 3 Ors on 5 May, 2017
Author: Manjula Chellur
Bench: Manjula Chellur, G.S. Kulkarni
1 PIL-34-16(J)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
PUBLIC INTEREST LITIGATION NO.34 OF 2016
1 Prakash V. Patel, of Mumbai,
Indian Inhabitant residing at
47, Usha Kiran, 15 Carmichael
Road, Mumbai 400026.
Occupation : Business
2 Dilnar Jehanbux Chichgar
of Mumbai Indian Inhabitant
residing at 12A Mayflower,
Carmichael Road,
Mumbai 400 026.
Occupation : Housewife .. Petitioners
Versus
1 The State of Maharashtra
Urban Development Ministry,
Mantralaya, Mumbai
2 Municipal Corporation of
Greater Mumbai having its
office at Brihanmumai
Mahanagar Palika Bhavan,
Mahapalika Marg, Opp C.S.T,
Mumbai 400001
3 Windsor Residency Pvt.Ltd
Company registered under the
Companies Act, 1956 having its
regd office at Jindal Mansion,
Dr.G.Deshmukh Marg,
Mumbai 400026.
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2 PIL-34-16(J)
4 The Mumbai Heritage
Conservation Committee
having its office at 6th floor, MCGM,
Head Office, Annex Bldg,
Mahapalika Marg,
Mumbai 400001 .. Respondents
...
Mr.Rohan Cama a/w Ms.H.V.Tamanna, Mr.S.V.Doijode, P.A.
Kabadi & R. Daulat i/b Doijode Associates for the petitioners.
Mr.S.U. Kamdar, Sr. Advocate a/w Shobha Ajitkumar for
Corporation.
Mr.A.Y.Sakhare, Sr. Advocate a/w Mr.Joel Carlos for Heritage
Committee.
Dr.Milind Sathe, Sr.Advocate with Ms.G.R. Shastri, Addl.G.P
for the State.
Mr.Rohan Kadam a/w Sanjiv Kadam, Sanjil Kadam and
Deepak Enakphale i/b M/s.Kadam & Co. for respondent no.3.
CORAM: DR. MANJULA CHELLUR, CJ.
& G.S. KULKARNI, J.
RESERVED ON : 16th JANUARY, 2017
PRONOUNCED ON : 5th MAY, 2017
JUDGMENT (Per Dr.MANJULA CHELLUR, CJ):
1 This is the second round of litigation, even could be said a continuation of earlier Public Interest Litigation No.118 of 2014 which came to be disposed of on 28 th January 2015 by the Division Bench.
Tilak ::: Uploaded on - 08/05/2017 ::: Downloaded on - 09/05/2017 00:17:49 ::: 3 PIL-34-16(J) 2 It is not in dispute that with effect from 20 th February 1991, Development Control Regulations (for short referred to as "DCR") of 1991 came into force. By virtue of Government Resolution dated 25th April 1995, Mumbai Heritage Conservation Committee (MHCC) came to be constituted, and it is also not in dispute that the opinion of the Committee is in the nature of only an Advisory or recommendatory whenever its opinion is sought. Mumbai Heritage Conservation Committee (for short referred to as "MHCC") at its 8th Meeting on 9th October 2002 took a decision to request Mumbai Metropolitan Region Heritage Conservation Society (for short referred to as "MMRHCS") - a body constituted under Mumbai Metropolitan Region Development Authority (for short referred to as "MMRDA") to survey and prepare supplementary heritage list of buildings/precincts and gradation etc, in order to review the list of 1995 Heritage buildings and Precincts in Mumbai so as to revise and supplement the said list. Six individuals/ institutions/associations were appointed for the said task who submitted reports to MMRHCS, which in turn submitted in its Tilak ::: Uploaded on - 08/05/2017 ::: Downloaded on - 09/05/2017 00:17:49 ::: 4 PIL-34-16(J) reports the task numbering (i) to (iv) for the perusal of Mumbai Heritage Conservation Committee in the year 2007- 2008 (new/revised/modified list of heritage sites). 3 So far as the building in question is concerned it is known as 'Morena', described as an apartment block of small scale, designed and detailed in art-deco style "MORENA". According to the petitioners, Revised list had to be read along with data cards indicating various individually listed buildings including "Morena". According to them, Mumbai Heritage Conservation Committee (MHCC) approved the list with the Data cards and forwarded the same to Municipal Corporation for Greater Mumbai (for short "MCGM"). Apparently, on 31st July 2012, public notice inviting suggestions/objections from the general public came to be made by MCGM. It is not in dispute that the said notice indicated that details of the structures/sites proposed to be reviewed/listed could be inspected at the office of second respondent.
Tilak ::: Uploaded on - 08/05/2017 ::: Downloaded on - 09/05/2017 00:17:49 ::: 5 PIL-34-16(J) 4 According to the petitioners, third respondent said to be the owner of the building "Morena" appeared before MMRHCS, made a presentation seeking permission for redevelopment. Said permission came to be declined since Morena was proposed as Grade II-B Heritage structure and third respondent agreed to submit a revised proposal note. 5 It is further contended that the residents of Carmichael Road, including the petitioners, noticed certain activities in the compound surrounding "Morena" building, including putting up of lengthy corrugated metal sheets to enclose the building in question, and on inquiry, they were informed that demolition work has commenced for building "Morena". At that point of time, petitioners came up with Public Interest Litigation No.118 of 2014 challenging the permission purported to have been granted by MCGM to third respondent to demolish the building. It is further contended that MMRHCS in its affidavit filed in PIL 118/2014 clearly mentioned as under :
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(i) "Morena" building is a proposed Grade II-B heritage structure."Morena" building is part of the list of proposed heritage building precincts published by MCGM vide its notification dated 31 st July 2012.
(ii) "Morena" building is mentioned in the data cards prepared and forwarded by MMRHCS to fourth respondent, and after consideration and approval thereof, the list and data cards were forwarded by MMRHCS to MCGM, and the data cards is an integral part of the published list. 6 It is also their stand that respondent no.4 filed second affidavit in the earlier PIL wherein they again mentioned as under :-
"Morena" is a proposed Grade II-B heritage structure listed at Serial No.449 of the list of proposed heritage buildings and precincts published by MCGM vide its publication dated 31st July 2012. It is further contended that the data cards which contain inter alia, the details of the heritage precincts containing the buildings which were proposed to be listed individually, and the said data cards were part of the proposal. Since respondent no.2 - MCGM Tilak ::: Uploaded on - 08/05/2017 ::: Downloaded on - 09/05/2017 00:17:49 :::
7 PIL-34-16(J) was of the opinion in the earlier proceedings that the said data cards would also be considered while deciding an application to alter/redevelop proposed heritage structures which were not part of the review list but were included in the data cards cannot now plead that buildings which were listed in data cards, do not form part of the published proposal.
7 When the matter came up for consideration in the earlier proceedings on 28th January 2015, this Court opined that the data cards formed part of 2012 list approved by MMRHCS and MCGM, therefore, prima facie, "Morena" was covered in the 2012 list as it fell within M.L. Dahanukar Marg precincts, and accordingly, directed second respondent to make it clear whether said premises is to be declared as Grade II-B heritage structure attracting Regulation 67(2)(iii)(a), or it is only a part of the heritage precincts or Grade-III heritage structure falling under Regulation 67(2)(iii)(b) of the Development Control Regulations (DCR). The Division Bench also injuncted the party respondent from demolishing or Tilak ::: Uploaded on - 08/05/2017 ::: Downloaded on - 09/05/2017 00:17:49 ::: 8 PIL-34-16(J) effecting any repairs, in any manner, the said premises till respondent no.1 takes a decision.
8 Petitioners contend that subsequent to the said directions of the Court in the earlier PIL, no hearing was given to the petitioners, and they were kept in dark till they secured information under Right to Information Act. On learning about the recommendations of HRC which was forwarded to the State wherein it was decided not to grade the building as "Grade II-B heritage structure", Carmichael Road Citizens Committee (for short "CRCC") approached several authorities. Till middle of February 2016, they did not have an opportunity to see the report of Heritage Review Committee. When demolition work commenced, they approached Municipal Commissioner bringing to his notice the earlier directions of the High Court. After several attempts of representations to Principal Secretary, Urban Development Department and on receiving information under Right to Information Act, Notice of Motion No.200 of 2016 came to filed in the earlier PIL No.118 of 2014 which came to Tilak ::: Uploaded on - 08/05/2017 ::: Downloaded on - 09/05/2017 00:17:49 ::: 9 PIL-34-16(J) be disposed of directing the petitioners to take appropriate recourse by challenging the impugned decision before proper forum, and stayed demolition of the building further. 9 It is contended that petitioners specifically have not challenged notification dated 29th October 2016 since it is nothing but repetition of the impugned letter according to the petitioners. According to the petitioners, the entire material came to be collected under Right to Information Act after disposal of the Notice of Motion and then only the present petition is filed.
10 The first respondent through the Dy. Director of Town Planning on behalf of the Urban Development Authority has placed its affidavit in reply submitting that the Government called for reports from MCGM and based on its opinion, accepting the recommendation of MCGM which is the planning authority has passed the impugned order dated 11th January 2016.
Tilak ::: Uploaded on - 08/05/2017 ::: Downloaded on - 09/05/2017 00:17:49 ::: 10 PIL-34-16(J) 11 On behalf of the second respondent, Assistant Engineer from Building Proposal Department, one Ratish B. Dichwalkar filed an affidavit wherein it is stated that earlier as per the minutes of meeting in the chambers of Municipal Commissioner dated 16th July 2014, it was opined that the building in question should be Grade-III category and the building is in heritage precincts. Therefore, redevelopment proposal was to be considered in terms of provisions of DCR 67(2)(iii)(b), except in case of Marine Drive precinct. They further contend that those cases which do not fall within the provisions of DCR-67(2)(iii)(b) will be sent to Mumbai Heritage Conservation Committee. Based on the information from various records and orders, they opined that the structures and plot under reference does not fall under Grade I and Grade II structure, but it is falling in M.L. Dahanukar heritage precincts. Since the height of the building proposed was less than 24 meters, no special permission was required. On re-validation of licence, developer submitted a letter informing that they are undertaking demolition of the remaining portion of the building in terms of IOD. Thereafter, Tilak ::: Uploaded on - 08/05/2017 ::: Downloaded on - 09/05/2017 00:17:49 ::: 11 PIL-34-16(J) the present PIL came to be filed. In terms of interim directions dated 15th March 2016 demolition work was stopped.
12 On behalf of Respondent no.4 Senior Architect in Development Planning Department of MCGM has also filed affidavit in pursuance of orders of the Court on 23rd November 2016 wherein they have clearly mentioned how MHCC was originally constituted in the year 1995 and how Government sanctioned Development Control Regulations-67 for Greater Mumbai dealing with the conservation of listed buildings, areas of artefacts, structures and precincts of historical, cultural, architectural and related significance. The present MHCC is appointed by Government of Maharashtra by order dated 17th August 2015 with effect from 19th August 2015 for a period of three years. Heritage Conservation Committee is appointed in terms of regulations in order to advise Municipal Commissioner from time to time. It is further contended that the study carried out by a Society called MMRHCS was affiliated to the MMRDA to review the Tilak ::: Uploaded on - 08/05/2017 ::: Downloaded on - 09/05/2017 00:17:49 ::: 12 PIL-34-16(J) heritage list of 1995 and a document was prepared. In the said document, it was proposed by the consultants appointed by MMRHCS that the building "Morena" to be individually listed as Grade II-B structure in M.L. Dahanukar Marg precincts. In the year 2008, while recommending the draft of revised heritage list, it recommended to include M.L. Dahanukar Marg Precinct as "Precinct with individually listed buildings", whereby three buildings, M.C. Bungalow, North- end and Bungalow No.5 were recommended to be individually listed as Grade III. In the said list forwarded by respondent no.4, no other building was included so far as this precinct. Therefore, it is argued that the building under reference was not included in the said list. 13 The said list from MHCC was considered by Municipal Commissioner/Government and then invited suggestions and objections by publishing the list on 31 st July 2012. According to them, M.L. Dahanukar Marg precinct was at Serial No.449 (part of Task I and II) and the building "Morena" was only part of the precinct but not individually Tilak ::: Uploaded on - 08/05/2017 ::: Downloaded on - 09/05/2017 00:17:49 ::: 13 PIL-34-16(J) included in the said list. They further contend that the data sheet/documentation of the MMRHCS were to be referred only in order to have clarification or understanding of the location and other details of a listed entry, and "Morena" was not an individually listed entry. Even the DP remarks issued for "Morena" did not refer it as Grade II-B structure but it was considered only as a precinct, therefore, the redevelopment was considered by planning authority as per the provisions of Regulation 67(2)(iii)(b).
14 It is their further case that MMRHCS has no legal and statutory enforcement as far as Mumbai Heritage Conservation Committee is concerned. The data sheets prepared by MMRHCS were only considered as an additional source of information. It is nothing but a source of information which has no legal sanctity of any binding nature. On the request of Government of Maharashtra, Municipal Commissioner forwarded remarks of the Corporation after obtaining opinion from the Heritage Review Committee so far as "Morena". Heritage Review Committee Tilak ::: Uploaded on - 08/05/2017 ::: Downloaded on - 09/05/2017 00:17:49 ::: 14 PIL-34-16(J) had submitted its remarks to Municipal Commissioner on 13th August 2015 stating that it is only a precinct building situated in M.L. Dahanukar Marg, and not a Grade II-B structure. Accepting the same, Municipal Commissioner endorsed the view that "Morena" cannot be considered as a Graded structure. Accordingly, on 11th January 2016, the Government accepted the remarks of the Municipal Commissioner that Morena House is situated in a Precinct, and not listed as Grade II-B building. It was further clarified that the said building is situated in a heritage Precinct and provisions of DCR-67(2)(iii)(b) alone are applicable. Accordingly, on 29th October 2016, final heritage list for "D" ward came to be notified putting certain conditions while notifying the heritage list for "D" ward. 15 Third respondent has filed its affidavit-in-reply through the Senior Manager. After referring to the facts and pleadings, they contend that more than 85% of the structure was demolished, therefore, balance structure may collapse any time causing danger to life and property of the persons. Tilak ::: Uploaded on - 08/05/2017 ::: Downloaded on - 09/05/2017 00:17:49 ::: 15 PIL-34-16(J) It is further argued that the authorities had acted in conformity with the law prevailing to comply with the directions of the High Court after careful perusal of entire material. It is the stand of the third respondent based upon the material facts, the State Government is empowered by legislature to consider the aspect of heritage and decide the matter on merits. The 'No Objection Certificate' in respect of the redevelopment of the said building has been issued by MHADA only after following due procedure after due scrutiny of the material.
16 According to third respondent, the petitioners themselves are staying in high-rise buildings who participated in the redevelopment scheme of the neighbouring plot. They are in the habit of filing Public Interest Litigations with ulterior motives. It is also contended that about 49 similar buildings on the said road were never questioned. It is very much within the knowledge of the petitioners that except three buildings (structures indicated at Sr.No.449 in the heritage list) no other building, including Tilak ::: Uploaded on - 08/05/2017 ::: Downloaded on - 09/05/2017 00:17:49 ::: 16 PIL-34-16(J) "Morena" came to be included in the heritage list. The petitioners have no right or reason to impose their idea or presumption to create impediments in the redevelopment undertaken by the petitioners. In terms of directions of the Court, the State Government issued a notice of hearing on 11th May 2015 calling upon the respondents to remain present before them on 14th May 2015. So far as the petitioners, no such liberty/reservation was sought at the time of hearing of the earlier Public Interest Litigation. There was clear direction only to hear the owner of the property before deciding the issue. The impugned order dated 11 th January 2016 is already acted upon. Respondent no.2 has re- validated the IOC dated 5th September 2014. 17 It is further contended that the building in question falls only in the heritage precincts and attracts DCR- 67(2)(iii)(b). Therefore, there is no embargo for demolition of structures in question in the heritage precinct. They seek dismissal of the Public Interest Litigation with costs. Tilak ::: Uploaded on - 08/05/2017 ::: Downloaded on - 09/05/2017 00:17:49 ::: 17 PIL-34-16(J) 18 In order to appreciate the contentions raised before us, it is relevant to understand Development Control Regulations. It is relevant to reproduce Development Control Regulation 67 which reads as under :
67. -- Conservation of listed buildings, areas, artefacts, structures and precincts of historical and/or aesthetical and/or architectural and/or cultural value (heritage buildings and heritage precincts.
1 Applicability - This regulation will apply to those buildings, artefacts, structures, and/or precincts of historical and/or aesthetical and/or architectural and/or cultural value (hereinafter referred to as Listed Buildings/Heritage Buildings and Listed precincts/Heritage precincts) which will be listed in notification(s) to be issued by the Government.
2 Restrictions on Development/ Redevelopment/ Repairs, etc.
(i) No development or redevelopment or engineering operation or additions, alterations, repairs, renovation including the painting of building, replacement of special features or demolition of the whole or any part thereof or plastering of said listed/heritage buildings or listed/Heritage precincts shall be allowed except with the prior written permission of the Commissioner. The Commissioner shall act on the advice of/in consultation with the Heritage Conservation Committee to be appointed by Government (hereinafter called "the said Heritage Conservation Committee");
Provided that in exceptional cases for reasons to be recorded in writing the Commissioner may overrule the recommendation of the Heritage Conservation Committee.
Provided that the power to overrule the recommendations of the Heritage Conservation Committee shall not be delegated by the Commissioner to any other officer.
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(ii) ....... .................
(iii) (a) Provisions of Regulation 67 would be
applicable only in Grade I and Grade II category of heritage buildings for reconstruction and redevelopment of old buildings undertaken under Regulations 33(6), 33(7), 33(8), 33(9) and 33(10) of these Regulations.
(b) In case of redevelopment under DCR 33(6), 33(7), 33(8), 33(9) and 33(10) of heritage buildings/sites from Grade III and precincts - special permission from the Municipal Commissioner, Municipal Corporation of Gr. Mumbai may be obtained if the height of the building exceeds 24 mtrs. (excluding height of stilt on ground floor) 19 More or less, the submissions of the parties before the Court are based on their pleadings. During the course of submissions, reference is made to several documents and opinions. Therefore, we also secure the records pertaining to PIL No. 118 of 2014 for perusal to understand the stand of the parties before us.
20 In the earlier round of litigation, Division Bench observed that Sr.No. 449 of heritage buildings of 1995 list and 2012 list on comparison would reveal that (i) under the caption 'Proposed Grade' in the 2012 list, it is mentioned "Heritage Precinct with Individually listed buildings", whereas Tilak ::: Uploaded on - 08/05/2017 ::: Downloaded on - 09/05/2017 00:17:49 ::: 19 PIL-34-16(J) no such words appear in the column "Grade" of 1995 list. Another revealing and relevant fact noticed was grade of Municipal Commissioner's bungalow as well as North End and Bunglow No.5 were listed as Grade-III in the year 1995 list and whereas in the 2012 list, the Proposal for these structures was shown as "Grade II-B". Therefore, there is no certainity with regard to the grade of the structure as per the list which came to be revised from time to time. It is also the stand of the respondent nos.1 to 3 in the present case that in 2012 list, "Morena" was not specifically listed as Grade II-B heritage structure, and therefore, did not form part of the said list which required the permission of MHCC before any redevelopment. However, it is categorical stand of the petitioners that the recommendations forwarded by MMRHCS on the basis of report of six persons appointed for the said purpose, said building was proposed to be listed as Grade II-B heritage structure. Apparently, individually, the "Morena" building is not specifically listed either under Sr.No.449 or any other item of the 2012 list. It was also noticed that the building in question was not specifically listed in the year Tilak ::: Uploaded on - 08/05/2017 ::: Downloaded on - 09/05/2017 00:17:49 ::: 20 PIL-34-16(J) 2012 list since in the column "Proposed grade", it is described as "Heritage Precinct with Individually listed buildings". It is also noticed that 2012 list also refers to several items as "Heritage Precinct with Individually listed buildings" for example, Sr.No.401 in respect of Opera House structure. No individually listed buildings were mentioned in the said precinct though it is described as "Heritage Precinct with Individually listed buildings". There could be several such instances if the list of 2012 is scrutinized in detail. Hence, it is quite possible that list of 2012 may not be crystal clear so far as description and details of all heritage buildings/structures as well as precincts. This must be leading to some confusion in the minds of general public. 21 It is well settled that once the building is graded as Heritage Grade II-B, then DCR 67(2)(iii)(a) is applicable, and if the building falls within the heritage precinct or if it grade III then DCR 67(2)(iii)(b) would apply. It is observed that it is possible to assign different grade to the very same building from time to time since 1995 list and 2012 list if Tilak ::: Uploaded on - 08/05/2017 ::: Downloaded on - 09/05/2017 00:17:49 ::: 21 PIL-34-16(J) compared they ascribe different grades for the very same buildings/structures/precints. This indicate that there is possibility of changing the grade. There is no clarity on what basis such changes are recommended.
22 We notice from the material placed on record that subsequent to the disposal of the earlier Public Interest Litigation, MCGM constituted Heritage Review Committee which looked into several facts and issues and made several suggestions to the authorities concerned. They also recommended that grading to be simplified for clarity and understanding based on the nature of the buildings/structures to be listed as 'a' particular type of heritage grade or precinct. A note was prepared suggesting clarity in order to distinguish or differentiate the heritage grade so far as current/prevailing policy for the development and conservation Regulations for Greater Mumbai. They have described how a particular grade should be considered. Since the Heritage Regulations for Greater Mumbai, 1995 did not include definition for the terms "Heritage building" and "Heritage precinct", the Tilak ::: Uploaded on - 08/05/2017 ::: Downloaded on - 09/05/2017 00:17:49 ::: 22 PIL-34-16(J) Heritage Review Committee was of the opinion that it is necessary to provide clarity on these issues. 23 A comparison of the definitions of grading at page 151 of the present PIL papers by the authorities indicate there should be clarity to remove doubts and confusion. A reference is made to definitions or meanings of Heritage building/ heritage precinct as found in Maharashtra Regional and Town Planning Act, 1966. Heritage building is defined at box no.2 as under :
Box-2 (13B) "Heritage building" means a building possessing architectural, aesthetic, historic or cultural values which is declared as heritage building by the Planning Authority in whose jurisdiction such building is situated;
(13C) "Heritage precinct" means an area comprising heritage building or buildings and precincts thereof or related places;
24 According to them, the definition of building in the development in Development Control Regulations, 1995 which were in existence upto 25th January 2012 means as under :
Tilak ::: Uploaded on - 08/05/2017 ::: Downloaded on - 09/05/2017 00:17:49 ::: 23 PIL-34-16(J) Box 3 (11) "Building" means a structure, constructed with any materials whatsoever for any purpose, whether used for human habitation or not, and includes-
(i) Foundation, plinth, walls, floors, roofs, chimneys, plumbing and building services, fixed platforms;
(ii) Verandahs, balconies, cornices, projections;
(iii) Part of a building or anything affixed thereto;
(iv) any wall enclosing or intended to enclose any land or space, signs and outdoor display structures;
(v) tanks constructed for storage of chemicals or chemicals in liquid form;
(vi) all types of buildings defined in (a) to (p) below, but tents, shamianas and tarpaulin shelters erected for temporary purposes for ceremonial occasions, with the permission of the Commissioner, shall not be considered to be "buildings".
[Where (a) to (p) are from "Assembly buildings" to "Wholesale establishments".] 25 They further opined that in order to have a clarity and also make the general public aware what exactly a particular word would mean have recommended modifications so far as meanings of grading. Grade II (A & B) according to them, is as follows :-
Grade: II (A & B) Definition: Heritage Grade-II (A&B) comprises buildings of regional or local importance, possessing special architectural or aesthetical merit or cultural or historical value, though of a lower order that that of Grade-I. They are local landmarks contributing to the image and identity Tilak ::: Uploaded on - 08/05/2017 ::: Downloaded on - 09/05/2017 00:17:49 ::: 24 PIL-34-16(J) of the City. They may be the work of master craftsmen or may be models of proportion and ornamentation, or designed to suit particular climate.
26 Grade-III means Definition: Heritage Grade-III comprises of buildings of importance for townscape; they evoke architectural, aesthetic or sociological interest though not as much as in Heritage Grade-II (A & B). These contribute to determine the character of the locality, and can be representative of lifestyle of a particular community or region and, may also be distinguished by setting on a street line, special character of the facade and uniformity of height, width and scale.
Application: Heritage Grade - III sites shall comply with the criteria set for the purpose of heritage conservation.
27 Grade : P (Precinct) means Definition: Heritage Grade - P comprises of Conservation Areas of importance for townscape value; they evoke architectural, aesthetic or sociological interest in group setting. These contribute to determine the character of the locality, and can be representative of lifestyle of a particular community or region and, may also be distinguished by setting on a street line, special character of the facade and uniformity of height, width and scale in a setting.
Application: Heritage Grade - P sites shall comply with the Guidelines and Management Plan set for the purpose of heritage conservation. Each Heritage Grade - P site shall be demarcated with a plan drawing indicating the extents of the Conservation Area. This shall Tilak ::: Uploaded on - 08/05/2017 ::: Downloaded on - 09/05/2017 00:17:49 ::: 25 PIL-34-16(J) also show the individually listed heritage sites / components therein. The drawings shall be supported with a set of Urban Design Guidelines and Architectural Controls that enhance the value of the Conservation Area with sensitive infill. Accordingly, all properties situated within these extents of the Heritage Grade - P Conservation Area, listed or unlisted will have to obtain sanction from heritage point of view for any proposed intervention or development.
28 Exhibit-I dated 11th January 2016 is the impugned order of the State Government which reads as under :
"The said "Morena House" Bungalow is not included in the 'D' ward heritage list, published by the Municipal Corporation on the date 31.7.2012, the "Morena House" Bungalow falls within the precinct of M.L.Dahanukar Marg and said Bungalow does not fall under grade - II b, thus is the clear opinion of the Municipal Corporation.
Considering the aforesaid opinion, I am hereby directed to inform you in the matter noted in the above subject, as under:-
The opinion of Brihanmumbai Municipal Corporation that "Morena House" bungalow is included within the precinct and it does not fall under grade - II b, is being approved. As the said building is included within the precinct, the provisions of regulation 67(2)(iii)(b) of the said Development Control Rules for Brihanmumbai shall became applicable for the redevelopment of said building.
Tilak ::: Uploaded on - 08/05/2017 ::: Downloaded on - 09/05/2017 00:17:49 ::: 26 PIL-34-16(J) Yours Sd/- (illegible) Kishor D. Girola Under Secretary,Govt.of Maharashtra Copy for information to :
1) M/s.Windsor Residency Pvt.Ltd, Jindal Mansion, 5-A, Dr.G. Deshmukh Marg, Mumbai 400026.
2) The Chief Engineer, (Development Planning), Brihanmumbai Municipal Corporation.
3) The Dy.Director, Town Planning, Brihanmumbai.
.......xx........
Office of the Chief Translator & ) M-918 A True Translation Interpreter, High Court,Bombay ) Fs.03 RDS/- 2016 ) For Chief Translator 29 According to the petitioners, Exhibit-I letter addressed to the Commissioner - MCGM is without application of mind as there is no reference to the discussion made by HRC and also it lacks basis why the Commissioner of MCGM or for what reasons he was recommending to consider the building in question as a building within the precinct of M.L. Dahanukar Marg.
30 In order to understand the contention raised by the petitioners, one must see the entire exercise undertaken right from the beginning. Apparently, in the year 1995, MHCC came to be constituted for re-visiting the list of Tilak ::: Uploaded on - 08/05/2017 ::: Downloaded on - 09/05/2017 00:17:49 ::: 27 PIL-34-16(J) heritage buildings/structures/precincts of 1995 list. MMRHCS came to be constituted to survey and prepare supplementary heritage list of buildings and precincts, including their gradation. Six individuals/institutions/ associations took up the task to submit report to MMRHCS, which in turn had to report the same to MHCC. Thereafter, MCGM had to proceed with the Development Control Regulations.
31 According to the petitioners, certain data cards were prepared while conducting the survey by the above said Society, therefore, buildings in the list have to be read along with the information in the data cards describing various details like characteristics, special features of the buildings, including the building in question. According to them, MHCC has forwarded the approved list along with the data cards to the MCGM.
32 It is also not in dispute that when redevelopment plan for the building "Morena" was submitted, the application Tilak ::: Uploaded on - 08/05/2017 ::: Downloaded on - 09/05/2017 00:17:49 ::: 28 PIL-34-16(J) was not taken to its logical end since it was withdrawn for resubmission. In the year 2014, the earlier PIL came to be filed. MMRHCS seems to have filed an affidavit in the said PIL wherein they said to have mentioned that "Morena" building is proposed as Grade II-B heritage structure, and the same is mentioned in the data cards. According to the first respondent, they have formed the opinion now impugned, accepting the recommendation of MCGM. Second respondent from the Proposal Department of MCGM says that after discussion as per the minutes of the meeting held on 16th July 2014 in the chamber of Municipal Commissioner in respect of redevelopment of heritage buildings of Grade-III category and buildings in heritage precincts, it was opined that in view of the various orders of the Bombay High Court, Municipal Corporation had to consider redevelopment proposal as per the provisions of D.C. Regulations, except in the case of Marine Drive precinct. If any case is not attracted to the provisions of DCR 67(2)(iii)(b), then they will be sent to MHCC. They categorically contend that the building falls within the M.L.Dahanukar Marg precinct, and therefore, Tilak ::: Uploaded on - 08/05/2017 ::: Downloaded on - 09/05/2017 00:17:49 ::: 29 PIL-34-16(J) permission of Municipal Commissioner was required since the height of the proposed building was in excess of 24 meters. Apparently, the present MHCC is for a period of three years with effect from 19th August 2015 who advises Municipal Commissioner from time to time on these issues. In the draft of heritage list in the year 2008, it was recommended to include M.L. Dahanukar precinct as "Precinct with individually listed buildings", and three buildings as stated above were recommended to be individually listed having Grade-III. However, no other building was included in the list forwarded. After considering the list forwarded by MHCC, list was published on 31st July 2012. They categorically say that "Morena" building was part of the precinct, but not individually listed building in the said list. They further categorically contend that the data sheet or documentation of MMRHCS were to be referred only in order to have clarification or understanding of the location or other details of the listed entry. Therefore, no such clarification was sought since "Morena" building was not an individually listed building. Even the Department of Planning remarks issued Tilak ::: Uploaded on - 08/05/2017 ::: Downloaded on - 09/05/2017 00:17:49 ::: 30 PIL-34-16(J) for "Morena" did not refer to it as Grade II-B structure and it was considered only as a precinct building. They also contend that MMRHCS has no legal and statutory enforcement so far as MHCC is concerned. Since Government of Maharashtra had requested Municipal Commissioner to forward remarks of the Commissioner, Corporation after obtaining remarks from the Heritage Review Committee with regard to the gradation of the building in question, the entire procedure was undertaken in terms of directions of Division Bench in the earlier PIL as well as in terms of request made by the Government.
33 From page 76 onwards, we find Heritage Review Committee report addressed to Mr.Ajoy Mehta, Municipal Commissioner, Mumbai dated 13th August 2015 from Heritage Review Committee along with the suggestions/discussion on various aspects, plans, modifications, extended boundaries, revised plan, recommendation for additional listing of area around certain roads, etc. So far as the discussion at page 96 with reference to "Morena" building, it says as under :
Tilak ::: Uploaded on - 08/05/2017 ::: Downloaded on - 09/05/2017 00:17:49 ::: 31 PIL-34-16(J) Morena House (M.L. Dahanukar Marg Precinct) The published list of 2012 has entries of certain Precincts mentioning in the Grading column as 'Precinct with individually listed buildings'. However, in many cases the list/names of 'Individually listed buildings' has not been appended.
'Morena' is one such case in which this building, falling within the boundaries of 'M.L.Dahanukar Marg Precinct', appears in the data sheets of MMRHCS as a proposed Grade II-B building. However, this has not been reflected in the MHCC report while forwarding the same to Govt. Hence it does not appear as a listed structure in the list published on 31/07/2012. The HRC has, therefore, taken a view that since the published list of 2012 is the basis of its enquiry and as the interested party did not get the opportunity of presenting his say, HRC is not in a position to consider it as a Graded structure otherwise it will be unfair to the persons interested. The Committee feels that this building's status as a Graded building be reviewed after documentation and following the laid down procedure.
The revised boundary of the 'M.L.Dahanukar Marg Precinct' as recommended by the HRC is shown in the annexed plan.
34 After addressing this to Municipal Commissioner on 13th August 2015 along with the report, recommendations of Heritage Review Committee on the heritage listing of buildings/precincts/sites from "D" ward, the same was verified and sent to concerned departments of the Tilak ::: Uploaded on - 08/05/2017 ::: Downloaded on - 09/05/2017 00:17:49 ::: 32 PIL-34-16(J) Government by the Municipal Commissioner on 18th September 2015. So far as the building in question, the discussion starts at page 70 after noting the Heritage Review Committee remarks, as under :
Remarks : The 'Morena has been included in the revised boundary of the 'M.L.Dahanukar Marg Precinct' as recommended by the HRC. However, it has been aptly opined by the HRC that it cannot be considered as a Graded structure (individually). The view is accepted and the 'Morena' can only be considered as a precinct building situated in the 'M.L.Dahanukar Marg' Precinct and not as a Grade-II b structure.
35 It is not in dispute that State Government is the ultimate authority to finally decide/opine whether a particular grading has to be given to a particular building/ structure or as a precinct as recommended by the concerned authority. The final authority is the State Government to accept the recommendation or not. Before this exercise is undertaken by the authorities in the Urban Development Department, they have to apply their mind not only to the recommendations made by various authorities, suggestions like MMRHCS, MHCC prior to the earlier litigation, but also must consider the matter with reference to the remarks Tilak ::: Uploaded on - 08/05/2017 ::: Downloaded on - 09/05/2017 00:17:49 :::
33 PIL-34-16(J) made by Heritage Review Committee so also the objections raised if any. It is also pertinent to mention that recommendations and suggestions of Heritage Review Committee are not binding on the Corporation since Heritage Review Committee is required only to advise Municipal Commissioner from time to time, and are only in the nature of advise/recommendation. It is needless to say that before deciding finally the nature/category or grading of a structure, site building etc, one has to see what exactly heritage building would mean, and what a Precinct would mean. We have already referred to these in the earlier paragraphs. The Heritage Review Committee has recommended definitions/ meanings of various grades of buildings including grade III and Precinct for the purpose of clarity and also for creating awareness in the general public.
36 During the course of arguments on behalf of the respondents, it was brought to our notice that there are other 49 buildings of similar nature where the grading has been modified and however, no challenge is raised so far as those Tilak ::: Uploaded on - 08/05/2017 ::: Downloaded on - 09/05/2017 00:17:49 ::: 34 PIL-34-16(J) buildings for the reasons best known to the petitioners. It is also brought to our notice that several buildings were demolished and multi-storeyed buildings were constructed inspite of M.L. Dahanukar Marg being declared as heritage precinct. If the said statement was to be correct, we wonder why no challenge is made by the petitioners in questioning other structures on the said road. However, what is required to be seen in the present case is whether the State Government has expressed opinion in terms of directions in the earlier Public Interest Litigation dated 28 th January 2015. According to us, there is no such independent opinion based on the material.
37 In the light of above material, it is for the State Government, which is the ultimate authority, to take a final call after considering the material placed and opine whether the building in question "Morena" falls within the category of Grade II-A and B, or Grade III, or whether it is a building falling within heritage precinct. In order to consider a building as Grade (II-A & B), it is clear as per Tilak ::: Uploaded on - 08/05/2017 ::: Downloaded on - 09/05/2017 00:17:49 ::: 35 PIL-34-16(J) recommendations that the said structure must relate to special architectural or aesthetical merit or cultural or historical value, though it is lower than Grade I structure. Grade III comprises of buildings of importance for townscape with reference to architectural, aesthetic or sociological interest though not as much as in Heritage Grade-II (A & B). The building has to determine the character of the locality and be a representative of life style of a particular community or region. In the light of the above material, perusal of the order which is impugned before us, we do not find such exercise being undertaken independent from the opinion of the Corporation or Heritage Review Committee. Of course, they have to consider the recommendations and suggestions and then take a final call with the material placed with reference to the nature of building/structure and then opine whether the building "Morena" falls under a particular category or grade depending upon its special characteristics, nature, not only of the building but also the precincts. In the light of above observations and reasoning, we hereby quash Annexure-I remanding back the matter to the State Tilak ::: Uploaded on - 08/05/2017 ::: Downloaded on - 09/05/2017 00:17:49 ::: 36 PIL-34-16(J) Government to consider the entire matter afresh in the light of observations made by us.
38 Accordingly, Petition is disposed of directing the respondent State to decide the matter afresh. The State Government must make it clear by a detailed order with reference to the material available and the procedure whether building "Morena" is to be declared as Grade II-B heritage structure or otherwise falling under DCR 67(2)(iii)(a) or whether it is only part of heritage precinct or Grade III heritage structure attracting DCR 67(2)(iii)(b). Said exercise must be undertaken within a period of eight weeks from today.
(G.S.KULKARNI, J) (CHIEF JUSTICE)
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