Computation of FSI on gross plot area is permissible under Regulation 33(7) of DCPR 2034, and MCGM's policy of allowing FSI under Regulation 33(7) on gross plot area and incentive FSI under other schemes on net plot area is consistent with the DCPR.

JUDGMENT

Sandeep V. Marne, J. - A. THE CHALLENGE

1. Petitioner, claiming to be a public spirited person, has instituted the present Public Interest Litigation challenging decision of Municipal Commissioner dated November 12, 2020 approving proposal for grant of FSI 3.00 under Regulation 33(7) on gross plot area and FSI 1.00 under Regulation 33(18) on net plot area, as well as all subsequent approvals including approval dated August 8, 2021, in respect of redevelopment of the property 'Pila House-Platinum' CS No. 990, Patthe Bapurao Marg, Girgaum Division, Mumbai 400 007 ('Project'). He further seeks directions to the Municipal Corporation of Greater Mumbai ('MCGM') to demolish part of the structure which is in excess of cap/limit on the maximum permissible FSI @ 4 on net plot area as per Regulation 33(18)(III) & (IV) read with Regulation 30A(12) of Development Control and Promotion Regulations for Greater Mumbai, 2034 ('DCPR 2034'). He further seeks direction to MHADA to acquire and possess the surplus built-up area of 664.31 sq.mtrs and fungible FSI thereon for appropriation thereof to the dis-housed occupants of cessed buildings. He further seeks action against respondent nos. 5 to 9 (Municipal Commissioner, Chief Engineer & other officials) under the provisions of the Indian Penal Code 1860 and the Prevention of Corruption Act 1988 and initiation of disciplinary proceedings for allotting FSI in excess of cap/limit on maximum permissible FSI @ 4.00 on net plot area.

B. FACTS

A brief narration of facts, as a prologue to our judgment, would be necessary. For better understanding of facts, it would also be necessary to briefly explain some of the concepts by making reference to few provisions of DCPR, which we have done.

B.1 BACKGROUND FOR FILING PIL

2. Petitioner carries on business of selling sweets as a partner in the shop 'Suleman Usman Mithaiwala' and stays in the vicinity of the project and is a regular passer-by of the area for his business. He noticed an old building popularly known as 'Pila House' being demolished in the year 2013-14 for redevelopment. As redevelopment was taking several years, he made enquiries with MCGM when he came across the fact of several occupants not being certified as eligible for rehabilitation and not being paid transit rent- compensation for a long period. He therefore sought recourse under the Right to Information Act, 2005 and procured various records relating to the project from offices of MCGM in August 2021. Some of the documents were also available from the website of MCGM. He then consulted an architect, who on promise of anonymity, provided information to about the relevant laws, sanctions, approvals and concessions sought and/or granted in respect of the project.

B.2 CESSED BUILDINGS

3. The building 'Pila House' was a cessed building. Category A cessed buildings are those which are constructed prior to 1940 and have outlived their life. Chapter VIII of Maharashtra Housing and Area Development Act, 1976 ('Act of 1976'), provides for repairs, reconstruction, etc of cessed buildings through Mumbai Repairs & Reconstruction Board (MBRRB). Under the Act of 1976, certain area in a reconstructed building is required to be provided to MBRRB for housing of occupiers of cessed buildings which cannot be reconstructed. In the present case, MBRRB has issued No Objection Certificate (NOC) dated April 23, 2010 to the project inter alia stating that the exact surplus area shall be determined after receipt of plans approved by MCGM. The NOC was revised by MBRRB on September 24, 2012 directing that surplus area of 664.31 Sq. mtrs shall have to be surrendered to MHADA, after ascertainment from approved plans.

B.3 RELEVANT PROVISIONS OF DEVELOPMENT CONTROL REGULATIONS

 4. Regulation 32 of the Development Control Regulations of the Greater Mumbai, 1991 (DCR 1991) permitted zonal FSI of 1.33 for Island City of Mumbai. Regulation 33 (7) provided for redevelopment of cessed buildings and permitted higher FSI for reh