6. Reduction in width of Prakash Pethe Marg from 200’ to 60’: In Mumbai, there are many precedents of a reduction in the proposed road width in a D.P. when the earlier stipulated width was not considered necessary. The proposed widening of a road is dropped by following the procedure for modification of a D.P. under Section 37 of the Maharashtra Regional and Town Planning Act and the de-reserved areas are diverted to the other required purpose. The Cuffe Parade road, now known as Prakash Pethe Marg was originally proposed to be widened to 200’ if all the eight Blocks in Backbay Reclamation Scheme had been developed. After the dropping of further reclamation of BBR Block, IV, BBR Block VI (part) and BBR Block V (part) of the Backbay Reclamation Scheme in the year 1979, it was not considered necessary to widen the Prakash Pethe Marg to such a large width of 200’. Moreover, the proposed Colaba-Uran Link Bridge, which would have required a wide road for traffic disposal was also not considered feasible. No west to east approach road for such a bridge through the Backbay Reclamation Area appears in the 2000 DP of the MMRDA. Construction of two Ministry of Defence buildings, Gangotri and Bhagirathi in the alignment of this bridge also made the construction of this bridge difficult. The population in Mumbai City district has actually decreased by five percent during the decade 2001-2011 and the MMRDA is finding it difficult to get bidders for filing tenders even for the highly publicised Mumbai Trans-Harbour Link (MTHL), which connects two much northern points of Sewri and Nhava, both of which areas where the population growth is much faster. The decision for reduction of the width of the Prakash Pethe Marg was taken by the state government after following the prescribed procedure. For reducing the width of the Prakash Pethe Marg from 200’ to 60 ‘, the proper procedure of issuing Notice under Section 37 of MRTP Act was followed and there was no illegality in changing the reservation of road to residential. There are many other precedents in Mumbai of reduction of width of road and diversion of land for residential purposes. Three of these are:
(1) reduction in Sudam Kale Ahire Marg, Worli
(2) D. P. Road connecting Pandurang Budhkar Marg and
(3) D. P. Road connecting to Annie Besant Road and N M Joshi Road.
In fact, it is worthwhile to mention that the entire railway line between Churchgate and Colaba was removed during the 1940’s and 1950’s to facilitate the Backbay Reclamation scheme. Such changes in D.P. as per the changing needs are common in all the cities. It was thus nothing illegal in the proposal to reduce the road width of Prakash Pethe Marg from 200’ to 60’. In fact, before the Adarsh Commission, the state government counsel has supported the legality of this reduction of width. The relevant paragraph of the government gazette notification dated 3rd Oct 2001 read as follows: ‘In the said Development Plan (MMRDA D.P of 2000), the width of Captain Prakash Pethe Marg has been shown as 60.97 mt. The question of reducing the width of Prakash Pethe Marg from 60.97 metre to 18.92 mt, for its section between existing Police Station situated in Plot No. 87-A and extreme South-West limit of the said area (hereinafter referred to as the “said section of road”) was under consideration. In this connection, it has been brought to the notice of Government that two trans-harbour links joining Island City of Mumbai and Navi Mumbai, namely, Colaba-Uran and Sewree-Nhava-Sheva were under active consideration of the Government out of which southern Colaba-Uran Link is no longer under consideration and moreover, there exist some high buildings known as Gangotri, Bhagirathi and Chudhari house in the approach road of Colaba-Uran. Considering these facts, in the said Development Plan, the said Authority, while preparing the Deevlopment Plan, has not incorporated a 60.97 mt wide road which ultimately leads to the aforementioned Colaba-Uran Link.’ The width of the Prakash Pethe Marg was accordingly reduced from 60.97 mtr to that of 19.92 mtr.
7. Confusion on whether to apply the DCR of 1967 or DCR of 1991 for building permissions in the CRZ areas: A great deal of confusion was created by the Government of Maharashtra as to whether the Development Control Rules of 1967 or D.C. Rules of 1991 should have been applied for processing the building permissions in the CRZ areas of Mumbai. The CRZ Notification directed that buildings in CRZ-II shall be regulated as per existing FSI/FAR Norms. The word “existing” was further clarified by the Ministry in 1998, that “existing” means “existing as on 19/2/1991”.
Even though, DC Regulation for Mumbai came into force from 25th March, 1991, DRAFT DC rules were published in gazette in the year 1989. Section 46 of MRTP act, gave legal efficacy to the said Draft DCRs. As this draft was sanctioned on 25th March 1991, and MMRDA had to look into the position as on 19/2/1991, while granting the permission, they considered the provisions of 1989 DRAFT DCRs, which were subsequently finalised.
Hence the approval granted by MMRDA, for the project, for 1.33 FSI with staircase and lift area free of FSI, was perfectly in order, as per the policy in force at that time. Rather, FSI in Back Bay area was 3.5, as per DCRs 1967. With prior approval from MMRDA, FSI beyond 1.33 and up to 3.5, was approvable, as per the administrative policy of MMRDA. Even then, MMRDA applied Draft DCR 1989 and granted permissions for 1.33 FSI, since according to MMRDA draft DCR 1989 was more stringent than DCR 1967. Somewhere in the year 2006, the MOEF, wrote to the State Govt. that, in CRZ areas only DCR 1967 as amended till 19/2/1991 will apply and the draft DCR 1989 shall not be made applicable, as they were in draft stage as on 19/2/1991.
In fact, the circular/clarification to apply the norms in CRZ –II areas as they existed on 19.02.91 (i.e. the 1967 DCR only and not 1989 draft DCRs) was issued by MoEF on 18.08.2006. However, the State Government was in Supreme Court in the Suresh Estate case on this issue and this was decided on 14.12.2007. The U.D.D. of the state government sent the circular to strictly apply 1967 DCT to MCGM (Municipal Corporation of Greater Mumbai) only on .18.07.2009. A copy of this circular /clarification was not even marked to other Planning Authorities like MMRDA and SRA. In fact, the MCGM endorsement while scrutinizing proposals clearly states that in CRZ areas, DCR 67 is required to be implemented strictly from 18 July 2009. It is worth mentioning that in case of Adarsh CHS, the Plinth C.C. (Commencement Certificate) was given by MMRDA on 6.09.2005, and IoD (Intimation of Disapproval) was given by the MCGM on 21.09.2005. Both these clearances were given much before the MoEF clarification as to which DCR should apply.
The C.C. for two podium and 27 floors was given on the 2 Jan 2008, i.e. before the U.D.D. circulated the MoEF clarification about using the 1967 DCR to MCGM. It is not only in case of Adarsh CHS that the 1991 DCR was applied but it was applied by the Planning Authorities in Mumbai till 2006 in case of all the buildings in CRZ-II areas. However, the Adarsh CHS has no objection even if 1967 DCR is applied in its case, since the 1967 DCR actually allows the Planning Authority, i.e. MMRDA to allow an FSI up to 3.5 in the Backbay Reclamation areas. The building constructed of Adarsh CHS, if scrutinised in TOTO as per DCRs of 1967 ( By counting area of some areas like staircase/lift etc. in FSI), the FSI consumed will still be much below 3.5 permissible.
8. Deletion of Reservation of piece of land reserved for BEST: The reservation on the neighbouring government piece of land that was reserved for BEST was deleted by the Government under Section 50 of MRTP Act. BEST Undertaking had given in writing to the state government that they require the plot only for ingress and egress of their buses and that the government may take an appropriate decision in the matter. This piece of land was allotted to Adarsh CHS on the condition that they will allow the right of way for BEST buses for their ingress and egress of buses from the bus depot. This plot is allotted to Adarsh society by the Revenue and Forests Department of the Government of Maharashtra, the owners of the land and not by BEST. Adarsh CHS has paid more than Rs. 6 crores to the government of Maharashtra for this plot and it has not obtained the plot gratis. It has been subsequently argued that proper procedure was not followed by the UDD of the Government of Maharashtra in applying S. 50 of MRTP Act and that instead S. 37 of the MRTP Act should have been used for the modification in the Development Plan. In Nitin Shankar Deshpande vs. Registrar- general High Court of Bombay and others, (PIL No. 12 of 201) famously known as the Judges Society case, the Hon. High Court has held that for the purposes of Section 50, even an opinion given by Appropriate Authority is sufficient for the purposes of S. 50 for deletion of reservation. IN Adarsh CHS case, BEST had given conclusive opinion that land reserved for them is not required for public purpose. In any case, Adarsh CHS had no control over which section should be applied by the government for the deletion of this reservation. However, if the 1967 DCR is applied in case of Adarsh CHS, then it was technically not even necessary to delete this reservation since as per CRZ notification, the plan as on 19-02-1991 is to prevail. As on 19-02-1991 there was no reservation for BEST and as such it was not necessary to de-reserve the plot from the BEST reservation.
9. Alleged violation of FSI (Floor Space Index): It has been alleged that Adarsh CHS was wrongly given concessions such as free FSI for stair-case, lift and lobby since under DCR 1967 these concessions were not admissible in Mumbai city. Adarsh CHS is not the only society in Mumbai city to get these concessions but all the buildings in Mumbai City where the building permissions were granted before 2006 have availed of these concessions since the interpretation of the Government of Maharashtra was that the 1991 DCR (Development Control Rule) was more Stricter and in CRZ II areas also the 1991 DCR was to be applied. Incidentally, these concessions have not been given to Adarsh free of cost but Adarsh CHS has paid an amount of Rs. 10.5 crores to the MMRDA to avail of these concessions. However, if it is held that the 1967 DCR should be made applicable for the building permission then under DCR 1967, MMRDA was competent authority to allow FSI up to 3.5. Even if it is held that lift and lobbies were not permissible to Adarsh CHS under the DCR 1967, the used FSI is only 1.77, which is well within the powers of the MMRDA, the Planning Authority.
10. Alleged violation of CRZ (Coastal Regulation Zone): It is an admitted fact that the plot allotted to Adarsh CHS falls in the CRZ-II category since a BEST office building was constructed in the mid-1970s to its seaward side. The Adarsh CHS was circumspect about the CRZ clearance even before the piece of land was allotted to it. The society comprises mainly of salaries personnel and it could never afford to pay Rs. 10 crores as occupancy price for a plot of land that could be declared unbuildable later. The Society had come to know that in Survey No. 161 of Versova, Andheri, Mumbai, there was a Writ Petition No. 1126/2002 in Bombay High Court about the mangroves on some land which finally led to cancellation of Letters of Intent in case of 35 plots. The Society, therefore, wanted to be sure before the allotment that the land allotted to it has CRZ clearance. This CRZ clearance was granted by the Government of Maharashtra on 15 March 2003. The CRZ regulation stated that on CRZ-II land:
(a) No construction is allowed on the seaward side of existing roads or authorised structures. Any new construction on the landward side of existing roads or authorised structures is subject to existing local town and country planning regulations;
(b) Reconstruction of authorised buildings is subject to existing FSI norms and without any change in use;
Thus, construction of residential buildings like Adarsh CHS is permissible in CRZ-II areas. However, on the basis of some factually incorrect reports given by the Government of Maharashtra officers, the MoEF (Ministry of Environment and Forests) ordered the demolition of the Adarsh building. It has been alleged that the building has been constructed without obtaining the CRZ clearances mandatory under the Environment Protection Act either from the MoEF or from the MCZMA. The facts, however, are quite to the contrary. Till the 22 April 2003, the powers to grant CRZ clearances vested with the state government in Urban Development Department. So there was no question of obtaining CRZ clearance either from MoEF or MCZMA. After the CRZ notification, MCZMA (Maharashtra Coastal Zone Management Authority) was constituted in Maharashtra. The Authority was clearing major decisions of coastal management. However, there was no independent staff conversant with the different DCRs applicable to the Planning Authorities with the MCZMA. The Member-Secretary of the Maharashtra Pollution Control Board was acting as the Member-Secretary of the MCZMA. It was decided in Maharashtra that development proposals with cost up to Rs. 5 crores will be decided by the Planning Authority and the development proposals with cost of more than Rs. 5 crores will be cleared by the Urban Development Department of the Government of Maharashtra. Letter no. TPB/1201/CR165/UD-11 dt. 12.11.1997 from the PS, UDD to the Municipal Commissioner, Mumbai reads, ‘In this respect, I am directed to inform you that the total development permission cannot be stopped in CRZ area. You are requested to scrutinize the proposals as per MoEF notification dated 19 Februray 1991 and subsequesnt letters dated 27 September 1997 and Notification dated 9 July 1997. The development proposals within a CRZ area in which investment exceeds Rupees Five crores should only be referred to State government for clearance and other proposals should be cleared by the Corporation as per the approval of the Government of India, MoEF Notification and letter.’ The development proposal of Adarsh CHS was referred by the Urban Development Department of the Government of Maharashtra to the MoEF and it was only after the clearance of the MoEF about there being no objection to the proposal that the Planning Authority i.e. the MMRDA processed the development proposal of Adarsh CHS. It is pertinent to note that Urban Development Department in the Government of Maharashtra was authorised by the Government of Maharashtra to approve the CRZ clearances till 22.04.2003. It was only after this date that the requirement to send the projects to MoEF was prescribed by the Government of India. MoEF said that there is no objection to Adarsh development vide their FF No. J-17011/46/2002/1A III dated 11th March 2003, more than a month before the requirement to submit proposals to MoEF came into force. This was subsequently forwarded by the Urban Development Department to the MCGM and to the Chairman, Adarsh CHS vide UD letter No. TPB2099/1095/CR-154/99/UD-12 dated the 15th March 2003. As per the directives contained in this letter, the Planning Authority has granted all the building permissions to Adarsh CHS. In fact, during this period, UDD has given CRZ clearances to several development proposals such as redevelopment of Ghelabhai Mansion in Girgaon Division on K.M. Munshi Marg and another proposal in Colaba Division, Block II of Backbay Reclamation scheme which were costing more than Rs. 5 crores. It can be seen from the minutes of the MCZMA during 2002-03 that not a single CRZ clearance was given by the MCZMA to an individual building proposal during this time. Thus, Adarsh CHS could not have approached the MCZMA for clearance even if they wanted to. This was because UD was competent to issue CRZ clearance at that time. In any case, as per the notification of MoEF, MCZMA was only a recommendatory authority and not the sanctioning authority. In the case of National Sports Club of India, Worli, the High Court of Judicature of Bomaby has held that such clearances given by UD are legal and binding. UDD granted such a CRZ clearance and the Planning Authority, MMRDA sanctioned the building plans of Adarsh CHS based on this CRZ clearance. In his affidavit before the Adarsh Commission, Shri Manu Kumar Shrivastava, Principal Secretary, Urban Development Department (UDD) has confirmed that UDD has given many CRZ clearances around that time, without referring the matters to MCZMA. It has been further argued that Adarsh CHS could not have obtained the CRZ clearance before the land was allotted to it. CRZ clearance is land-specific and not owner-specific. Just like a land converted to NA use can be sold by an earlier owner after conversion to NA use, a piece of land with CRZ clearance can also be sold along with the CRZ clearance. There was nothing debarring an earlier owner to obtain a CRZ clearance and to sell the land thereupon. The construction of the building, in any case, was subject to local Town and Country Planning Regulations. It is only the CRZ notification of 2011 that has now prescribed that the owner will submit a project report for the CRZ clearance. Regulations of 2011 obviously cannot be applied to events in 2003. The officers of the Government of Maharashtra, namely Shri T.C. Benjamin, the then Principal Secretary, UDD, Smt. Valsa Nair the then Secretary, Environment and Shri Sitaram Kunte, the then acting Secretary (Revenue) misled the MoEF into believing that the Adarsh CHS did not have permission from MoEF while actually the learned counsel for the MoEF later vouched before the Adarsh Commission that the MoEF was not the competent authority to grant CRZ clearances during that period and that the competent authority was the state government. Chairman MCZMA, Smt. Valsa Nair, falsely told the MoEF that no permission was obtained from the ‘competent authority’ and that the structure utilized higher FSI when she ought to have known as UDD and not MCZMA was granting all CRZ permissions before 22 April 2003 and that FSI admissible under DCR 1967 was 3.5.
In fact on 3 Nov 2009, Dr. B.N. Patil, Member-Secretary, MCZMA served a notice to the Society under Section 5 of the Environment Protection Act, 1986 calling for necessary documents of permission/ clearances obtained from different statutory authorities.
The Society under their letter dated 17 Dec 2009 replied and submitted all the requisite clearances. The construction was at its 20th floor at that stage. The MCZMA never responded back to the Society neither stopped construction nor asked for further clarification. Now raising the issues after occupation is irrelevant. In spite of these facts, Shri T.C. Benjamin, the then PS, UDD informed the NCZMA that no clearance has been obtained by the society from the MCZMA. Had he checked his old records, he would have realised that his department i.e. UD was giving all CRZ permissions in 2003 and there was no reference made to the MCZMA at that time. He even described the additional plot allotted to Adarsh as ‘plot belonging to BEST’, when the plot was owned by the Government of Maharashtra and was merely reserved for BEST. Even this reservation did not exist in the development plan if the 1967 DCR and the D.P. as it existed on 19.02.91 is to be applied to Adarsh society. Benjamin did not inform the MoEF that in Maharashtra all the building permissions were processed as per 1991 DCR till the year 2006 and that Adarsh was no exception. Shri Benjamin also did not tell the MoEF that even if 1967 DCR is to be used, the MMRDA was competent to give FSI up to 3.5 in these areas. Shri Sitaram Kunte also led the MoEF into believing that MCZMA permission was not obtained and that FSI exceeded the permissible FSI. As Revenue Secretary, he ought to have limited to violations if any of revenue laws; but in his anxiety to discredit the society he reiterated the alleged violations of the environmental and urban laws which were already cited by his colleagues. This mischievous evidence furnished by these three officers led to the MoEF order for demolition of Adarsh CHS.
11. Merger of two plots: In his anxiety to discredit the society, Shri Benjamin has also falsely deposed before the Judicial Commission that there is a requirement of amalgamation of two plots to utilize the combined FSI. There is no such condition. In fact, the Secretariat building of the Government of Maharashtra, Mantralaya has been constructed on ten plots without merger of these City Survey plots. So if Adarsh structure is to be demolished on this ground, a similar action would have to be initiated against the Mantralaya building. Even in the CRZ areas, MCZMA, presided over by Valsa Nair with Benjamin as a member has cleared four development proposals without merger of plots.
These are as follows:
The third case listed above is in Mumbai City district where the TDR cannot be loaded. This is because when the plots are adjacent, the rules of TDR are not relevant. It is only in Adarsh case that the officers of the government of Maharashtra made a discovery that in CRZ areas, FSI of a neighbouring plot cannot be used without merger of two plots. There is no such provision even in the CRZ notification. In fact, the CRZ notification states that the plot boundaries as on 19.02.1991 should be taken into account. As on 19.02.1991, there was no reservation for the BEST and the entire plot was one. The above analysis should show that jealous Generals and mediocre officers of the Government of Maharashtra falsely misrepresented the Adarsh case to please the media and their superiors. Till date, members of Adarsh are not aware what mistake they have committed for which their water and power connection has been cut off. We now leave it to the readers to draw their conclusions about the Adarsh episode.