Special permissions for redevelopment of Grade-III heritage buildings do not require Heritage Conservation Committee approval if the height exceeds 24 meters, reaffirmed by the court's interpretation of Development Control Regulations.

JUDGMENT :

Sandeep V. Marne, J.

1. Petitioners have filed the present petition in public interest challenging the construction permissions granted for re-developement of old structure forming part of Gamdevi Heritage Precinct. Petitioners are aggrieved by construction of 15 storey building in Gamdevi Heritage Precinct on the ground that construction of such a tall building would mar the grandeur of Gamdevi Precincts. Petitioners have also challenged the order dated 14 August 2006 of Municipal Commissioner granting Heritage NOC for the impugned construction. Since the Municipal Commissioner has granted special permission for construction of the building from heritage point of view under sub- clause (iii) of DEVELOPMENT CONTROL REGULATION 67(2), the same is also challenged by the Petitioners.

2. Briefs facts leading to filing of the present petition, as pleaded, are as under:

Petitioners-Gamdevi Residents’ Association is an Association of Persons who reside in the buildings forming part of Gamdevi Heritage Precinct, Mumbai. Petitioner No.1 claims to have been engaged in preserving and protecting the urban environment in and around the Gamdevi Heritage Precinct. It is claimed that Gamdevi Heritage Precinct is threatened by illegal excessive development activity that far exceeds the carrying capacity of the locality.

3. By Indenture of Lease dated 15 February 1918, the trustees for Improvement of City for Bombay leased Plot No.71 of Gamdevi Estate with building thereon to one Dattaram Vinayak Mulgaonkar for a period of 999 years. From 1 October 1933, the properties of the trustees including Plot No.71 came to be vested in the Municipal Corporation for Greater Mumbai (MGCM). The said Plot No.71 is a leasehold land admeasuring 599 sq. mtrs. and a building thereon named ‘Saraswati House’ was constructed comprising of ground plus two upper floors with a garage. The leasehold interest in the said plot was inherited by the lessee’s widow Savitribai Dattaram Mulgaonkar and upon her death on 8 October 1972, to one Dr. Achyut Vishwanath Kerkar. It appears that Dr. Achyut Vishwanath Kerkar died intestate on 22 February 2001 leaving behind his wife Mrs. Chitra Achyut Kerkar as sole legal heir. On 1 March 2001, the Deed of Assignment was executed between Mrs. Chitra Achyut Kerkar and Shri. Sumermal Hajarimalji Shah and Shri. Kishorimal Hajarimalji Shah by which leasehold rights in the plot were assigned. According to the Petitioners, the building Saraswati House was occupied by only three families, the ground floor being in occupation of Zaveri family, the first floor and the two rooms on the second floor were occupied by Kerkar Family and the balance portion of the second floor was occupied by Sanghavi Family. The Developer sought No Objection Certificate from MHADA for redevelopment of the subject plot in accordance with modified D.C. Regulation No.33(7). The Executive Engineer certified the total number of occupiers in Saraswati House as six. The Chief Officer of Mumbai Building Repairs and Reconstruction Board issued NOC for redevelopment of the subject plot on 8 March 2002. The Architect of the developers submitted plans to the Municipal Corporation for construction of building on the plot. According to the Petitioners, bogus tenancie