ORDER :

Arijit Pasayat, J.

Leave granted.

2. Challenge in these appeals is to the judgment of the Bombay High Court which while holding that Regulation 33 (7) of the Development Control Regulations, 1991 (in short the 'Regulations') for the city of Mumbai as amended in the year 1999 does not suffer from any illegality, further observed that the same applies only to dilapidated buildings of 'A' category which satisfy the requirement and those declared prior to the monsoon of 1997 under 3rd proviso are covered under Regulation 33(7) and are entitled to extra "Floor Space Index" (in short 'FSI'). It also directed that certain site space has also to be provided.

3. The conclusions essentially are as follows:

"For the reasons stated above, we hold that the petition is very much maintainable and we read the provisions of the first part of D.C. Regulation 33 (7) to cover only the privately owned dilapidated buildings which require reconstruction and where the cost of structural repairs exceeds the monetary requirement specified under Section 88(3) of the MHAD Act (vis. Rs. 1200/- per sq. meter as of now).

In the circumstances, prayer (b) of the petition deserves to be accepted though not prayer (a) and D.C. Regulation 33(7) will have to be read to mean that only the dilapidated buildings of "A" category which satisfy this requirement (and those declared unsafe prior to the monsoon of 1997 under 3rd proviso thereof) are covered under D.C. Regulation 33(7) and entitled to extra FSI provided therein.

As far as the challenge to the side spaces being reduced to half as against what is otherwise provided, it was submitted that the provision is totally unreasonable. The side spaces will now hardly be about 1.5 metres (about 5 feet) and for a building up to 24 metres, no separate fire fighting arrangement will be insisted. This will almost mean a building of ground plus 7 floors. The fire engines will not be able to go inside. In our view, independently on the merits of this submission, it. is required to be accepted. It was submitted by the respondents that in the erstwhile buildings there was hardly any space between two such buildings and if one goes for a tower, i.e. above 24 metres, obviously the side space will increase and the fire fighting facilities will have to be provided. In our view, this is no answer to the safety of the occupants with height of less than 24 metres. We may not interfere into the reduction of the recreational space or not providing the parking facilities though that will also create difficulties for the residents of such buildings. Considering that there is so much of space crunch, we may not interfere into the decision of the rule makers in that behalf. However, having the side space of only 5 feet for buildings of the height less than 24 metres (of ground plus 7 floors) is on the face of it something difficult to substantiate. That provision of the D.C. Regulations will have to be held as arbitrary, unreasonable and violative of Article 14 of the Constitution. We have no option, but to accept prayer (f) to this extent. The requirement of reducing side spaces for the buildings to be reconstructed is bad in law and they will have to be provided with the minimum side spaces as required in the buildings on small plots, vis. 3.6 metres.

The Apex Court has observed in its order of 21st April, 2006 that no third party rights will be created and it further observed that it will be for the High Court to deal with that aspect. This being the position, we direct, with a view not to cause prejudice to the investors, that those projects of reconstruction, which have already been approved, will proceed as it is. However, the buildings not having the certificate of the cost of structural repairs exceeding Rs. 1200/- per sq. m. under section 88 (3) of the MHAD Act will not be permitted reconstruction henceforth. For future, the certificate under section 88 (3) of the MHAD Act, viz. that the structural repairs cannot be carried out wi