JUDGMENT :

GS Patel, J.

1. Rule. There is an affidavit in reply from page-142 of Respondent Nos. 1 to 4. Hence, Rule is made returnable forthwith and the Petition is taken up for final disposal.

2. The Respondent Nos. 1 to 4 are the Municipal Corporation of Greater Mumbai (“MCGM”) and various authorities or officers. Respondent No. 5, added by a relatively recent amendment is the Mumbai Heritage Conservation Committee (“MHCC”). The Petitioner is a proprietorship of one Bhavesh Nandani. The firm is a real estate developer.

3. The subject of the Petition is the proposed redevelopment by the Petitioner of a property in Mumbai’s Fort area. This stands on CS No. 486, 487, 488, 489, 490 of the Fort Division. Altogether, the plot is 323.57 sq mts. It stands at the junction of the Barbar Lane (Nadirshah Sukhiya Street) and Pitha Street. There are buildings on this property. It is not in dispute that the location of the property falls in Serial No. 633(6) of the list of Heritage Sites and Heritage Precincts as formulated under the applicable Development Control Regulations. This is known as the Fort Heritage Precinct.

4. The prayer in the Petition is first for a certiorari to delete and strike down Condition 38 in the development permission known as the Intimation of Disapproval (“IOD”) dated 29th December 2021 at Exhibit “M” to the Petition granted by the MCGM for the redevelopment of this property. The second prayer is for a mandamus directing the MCGM to issue a complete Commencement Certificate (“CC”) and further permission including an Occupation Certificate (“OC”) for the new building proposed on this property without reference to and without requiring a No Objection Certificate (“NOC”) from the MHCC.

5. The development proposed is under the Regulation No. 33(7) of what is called the Development Control and Promotion Regulations for Greater Mumbai 2034. There is no dispute also that the Petitioner submitted plans for approval for the construction of a new building of 69.90 meters in height or that the MCGM approved this proposal on 29th December 2021 vide Exhibit “M”. However, while doing so it imposed the impugned Condition 38, that the Petitioner would have to submit a NOC of the MHCC. The Petition has been amended and there is also now a prayer to set aside the Municipal Commissioner’s order of 27th December 2022. A copy of that order is at page 136 at Exhibit “R”. That order demands that the Petitioner approach the MHCC. The reasoning is that under Regulation 52 of the DCPR 2034 where the proposed redevelopment exceeds 32 meters in height, a special permission from the Commissioner is to be obtained and, while doing so, the Commissioner may take into consideration any guidelines regarding listed precincts. The letter clearly says that the Municipal Commissioner has granted this permission but made it subject to a MHCC no objection before granting a CC. The letter says that the redevelopment has to be “of heritage significance worthy of recognition and conservation”.

6. To appreciate the background to this, we need to go back to the previous development regime of the Development Control Regulations, 1991. These replaced the previous 1984 development Control Rules. After the DCR 1991 came into force in February 1991, by an amendment of 21st April 1995, DC Regulation 67 came to be added. This was known as the Heritage DCR.

7. Very broadly speaking, the Heritage Regulations had four distinct features. First, it introduced a series of regulations or restrictions on development of what were called heritage buildings and structures. Second, there was a grading of these structures into Grade-I, Grade-II, Grade-III and precincts. Third, it provided for the various development permissible in each Grade. Fourth, there was a long list in a tabular form of buildings across the city. The grading or classification of individual structures is easily understood.

8. This very building, i.e., the High Court building itself, is listed as a Heritage Build