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

A media honcho-turned-politician dreamt of owning one of the tallest homes on Marine Drive in Mumbai. But thanks to the Apex Court, it is not to be. Not at least for a while.

The building in question is the one owned by the Essel Group and was being constructed to become the private villa for its chairman and Rajya Sabha MP Subhash Chandra. The construction, allegedly in violation of several rules, began in 2010 and was challenged in the court of law in 2012. With the Supreme Court coming down heavy on them, the private villa will have to wait – for several years at least.

Ashok Rao, Director of the Federation of Churchgate Residents, the group that filed a Public Interest Litigation (PIL) against the construction in 2012 said –

“The construction was being done on the land of Vasant Sagar Properties. It is situated on ‘A’ Road of ‘A’ Ward of Fort division of Municipal Corporation of Greater Mumbai (MCGM). The location is off Marine Drive and was constructed way back in 1940.”

The old building and other property was purchased by Vasant Sagar, a Zee Group Company in 1987. It was in 2009 that Vasant Sagar sought permission for a re-construction of the building claiming that it was dilapidated.

The permission was sought to construct a 58-metre tall building. Civic authorities granted permission for reconstruction, up to 58 metres, in 2012.

“The matter came to light when the road in front of the construction site caved in due to the excavation done for a basement. Since it posed a grave danger to adjoining buildings and to the lives of people living there, we decided to move court against the construction, and the PIL was filed in March 2012,” Rao said.

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.