We thus propose to dispose of the two petitions and interim applications therein by giving certain directions which flow from the discussion and the conclusions reached by us hereinabove.{Para 18}
19. It is thus directed that the tentative offers for regularisation in the 128 cases (111 cases where regularisation is proposed and 19 cases where regularisation was effected prior to the grant of interim relief, excluding the 2 cases mentioned in paragraphs 4(e) and 4(d) of this judgment) are not approved and these cases will be re-considered for regularisation/retention by the Municipal Commissioner in accordance with the following directions:
(a) That the power and duty to decide the question of retention/regularisation of any unauthorised development or grant of any modification/relaxation and which is required to be decided by this grant of a special permission will not be delegated by the Municipal Commissioner to any other officer. The Commissioner may take the opinion of the concerned Engineers but the final decision must be his for reasons to be recorded in writing (however the reasons may be brief, but they will be adequate).
(b) That while deciding such a question, the Municipal Commissioner will consider all representations made by affected parties on the questions in issue including any hardship or loss caused to them, which will include the affected residents/proposed buyers, and affected residents at least in the immediate neighbourhood.
(c) That if any unauthorised development is in violation of any dimensions pertaining to F.S.I, (unless where permitted by the Development Control Regulations), as on the date of decision, the same will not be regularised;
(d) If on the date of decision, the unauthorised development is found to be in violation of any rule, regulation or law, which violation cannot be waived/ relaxed, then the said development should not be regularised. T.D.R. will not be permitted to reduce the amenities under the D.C. Regulations without adequately and fully compensating the residents/purchasers of the regular part of the structure for good reasons to be recorded in writing by the Commissioner.
(e) That the final order allowing retention must reflect application of mind as regards the "demonstrable hardship" for which the retention of an unauthorised development has been permitted;
(f) That similarly the final order allowing retention must indicate that the relaxation/concessions granted will not affect the health, safety, fire safety, structural safety and public safety of the inhabitants of the building and the neighbourhood;
(g) Where a question of structural modification involving a further burdening of a structure is involved, the structural safety will be certified by a structural engineer of B.M.C., who will grant such a certificate after inspecting the premises.
(h) If there is any loss of a facility, requirement or amenity suffered by any person/persons having interest in the authorised part of any further unauthorised development of which is sought to be retained/regularised, then such loss should be assessed at the market value of the concession granted and must form an ingredient computing premium. Whenever possible this ingredient may be directed to be distributed to the persons who suffer such a loss. In addition the B.M.C. may also add to the premium any amount which may be reasonably required to be invested by it to put up additional infrastructure, if any, in or around the regularised structure. An amount of fine for violation of law should be the third ingredient of the premium. The overall premium to be levied should be sufficiently deterrent so as to discourage a tendency to violate rules and building regulations. In the future, it will be desirable that the consent of such persons who would suffer any loss of facility, requirement or amenity should be filed along with an application for retention.
20. Before we part we would like to impress upon the Commissioner that reg. 64 contains the discretionary powers and by their very nature these are powers to be sparingly exercised in specific cases where a demonstrable hardship is caused. Thus this provision is to be utilised as an exception and not by way of a rule. In normal cases the D.C. Regulations must be applied as they are. What we find here is an unfortunate phenomenon of a planned subversion of these regulations by persons who are beneficiaries thereof, 128 cases is not a small number and it clearly shows a modus operandi. Besides demonstrable hardship will normally mean a situation arising inspite of attempting to follow the regulations. If a plan of a builder is sanctioned on a certain layout for certain number of floors normally no additional floors can be permitted. This undermines the strength of the building affecting the health and safety. The Commissioner will appreciate that he represents the interests of the citizens and must function as a watchdog. He must appreciate that these departures from rules for the benefit of a few is severally undermining the quality of life in urban areas.
Bombay High Court
Mr. Rajendra Thacker vs Municipal Corporation Of Gr. ... on 5 May, 2004
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