MIS PRP EXPORTS & ETC.versusTHE CHIEF SECRETARY, GOVERNMENT OF TAMIL

                   [2013] 16 S.C.R. 1107


                MIS PRP EXPORTS & ETC.                             A
                               v.
   THE CHIEF SECRETARY, GOVERNMENT OF TAMIL
                      NADU & ORS.
  (Special Leave Petition (C) Nos.18662-18663 of 2013)
                                                                   B
                   DECEMBER 13, 2013

     [K.S. RADHAKRISHNAN AND A.K. SIKRI, JJ.]

     Mines and Minerals (Development and Regulation) Act,
1957 - ss. 4(1) and 4(1-A) - Tamil Na du Minor Mineral             C
Concession Rules, 1959 - rr. 36(4) and 36(1) - Granite
Conservation and Development Rules, 1999 - s. 19(2) -
Suspension of quarrying operation.--Alleging unauthorized
quarrying - Single. Judge of High Court permitted continuation
of investigation of criminal cases against the petitioner, but     D
permitted him to continue the quarry operations - Thereafter,
suspension orders were passed under 1999 rules and show
cause notices issued to the petitioners - Writ appeal -
Division Bench allowed the appeal taking into consideration
the subsequent suspension order - Held: In view of the fact        E
that several writ petitions are pending for consideration before
High Court on the issue, and that in the present case, High
Court had issued some equitable directions, it would not be
appropriate to pronounce upon merit of the case.

     Practice and Procedure - Subsequent events -                  F
Consideration of - Permissibility - Held: Courts should
examine subsequent events, in a case, where larger public
interest is involved.

     Petitioner-a partnership firm was engaged in the              G
business of granite. 55 granite guarries in the District of
Madurai were leased in its favour. The respondent
officials suspended its quarrying operations in the 55
quarries, sealed the factory of the petitioner and seized
                             1107                                  H
    1108     SUPREME COURT REPORT~            (2013] 16 S.C.R.


A its bank-accounts, on the allegation of illegal and
  unauthorized quarrying.

       The petitioner challenged the order, by filing writ
  petition, and the same was disposed of by Single Judge
  of the· High Court. The Court permitted to continue the
8
  investigation of the criminal cases against the petitioner,
  but directed the authority concerned to let the petitioner
  continue the quarrying operation and run his business.

       The respondent-State filed writ appeal. During
C pendency of the same, suspension orders dated
  14.12.2012 were issued uls. 19(2) of Granite Conservation
  and Development Rules, 1~99 and also show cause
  notices dated nil. 12.12.2012. The Division Bench of High
  Court allowed the writ appeal. However, it also gave
D certain equitable directions. Hence the present special
  Leave Petitions.

        Dismissing the petitions, the Court

      HELD: 1. When a larger public interest is involved,
E the Court can always look into the subsequent events.
  The Division Bench of the High Court was right in
  examining the subsequent events. [Para 7] [1115-C]

        All India Railway Recruitment Board vs. K. Shyam Kumar
F (201 O) 6 sec 614: 201 o (6) SCR 291 - relied on.

       Mohinder Singh Gill vs. Chief Election Commissioner,
    New Delhi and Ors. (1978) 1 SCC 405: 1978 (2) SCR 272 -
    referred to.

G      2.1. The Government and the District Administration
  received lot of complaints with regard to illegal quarrying
  in the Madurai District, which led the State Government
  directing the District Administration to verify the
  complaints. After conducting a comprehensive and
H scientific survey, the Deputy Director and the Assistant
    PRP EXPORTS & ETC. v. CHIEF SECRETARY,             1109
            GOVT. OF TAMIL NADU

  Director of Geology and Mining, submitted an Evaluation A
  Report on 23.11.2012 on 88 granite quarries. The Deputy
  Director and the Assistant Director of Geology and Mining
· in their Evaluation Report dated 23.11.2012 reported that
  the Petitioner firm has not carried out the quarrying
  operations as per their mining plan and encroached upon B
  the adjoining roads, tanks, channels and water bodies
  and illicitly quarried granites in the adjacent non-
  leasehold areas. Further, it was also pointed out that
  there was a vast difference between the quantity
  permitted by the District Mines office and the quantity c
  quarried by the Petitioner firm. Consequently, it was
  pointed out that they had violated Section 4-(1) and 4-(1A)
  of the Mines and Minerals (Development and Regulation)
  Act, 1957 and also violated the Rules 36(4) and 36(1) of
  the Tamil Nadu Minor Mineral Concession Rules, 1959. It
                                                              0
  was also pointed out that the Petitioner had not submitted
  the Scheme of Mining as per Rules 15 and 18 of the
  Granite Conservation and Development ·Rules, 1999 and
   had not stored the over burden and waste materials as
   earmarked. Various other violations were also pointed
   out. [Paras 8 and 9] [1115-F-H; 1116-A-G]                  E

       2.2. In view of the report of the District Collector
 dated 19.5.2012 as well as the report of the Deputy
 Director of Geology and Mining dated 23.11.2012, the
 petitioners cannot be allowed to operate the quarries in       F
 accordance with the licences already granted. In the
 affidavit filed by the third respondent, it was pointed out,
 that the volume of illegal transportation from the
 petitioners' 16 quarries was around 1207863.164 Cubic
 Meters and show cause notices had been issued to the           G
 Petitioner firm under Section 21(5) of the Mines and
 Minerals (Development and Regulation) Act, 1957 for
 recovery of the cost. It was stated that the value of the
 illicit quarry in the 16 quarries alone came around 4124.14
 crores. Further, it was also pointed out that other quarry     H
    1110   SUPREME COURT REPORTS              (2013] 16 S.C.R.


A operators had also indulged in similar illegal quarry
  operations and the total volume of illegal operations was
  estimated around Rs.12390.460 crores. Further, it was
  also pointed out that several criminal cases were also
  pending for carrying on illegal quarrying operations in the
B government land. [Para 12] [1118-A-D]

       2.3. Since several writ petitions were pend•ng
  consideration before the High Court, at this stage, it
  would not be appropriate to pronounce upon the merits
  of the case, especially in the light of the materials leading
C to the issuance of the suspension orders dated
  14.12.2012 and the show cause notices dated Nil.12.2012.
  The Division Bench of ·the High Court has issued some
  equitable directions taking into consideration the interest
  of the workers and also for honouring some statutory
D obligations of the petitioner firm. Therefore, there is no
  reason to interfere with the impugned judgment. [Para 13]
  [1118-D-F]
                     Case Law Reference:
E       2010 (6) SCR 291        relied on            Para 7
        1978 (2) SCR 272        referred to          Para 10

         CIVIL APPELLATE JURISDICTION : Special Leave
    Petition (C) No.18662-18663 of 2013.
F
        From the Judgment and Order dated 15.02.2013 of the
    Madurai Bench of Madras High Court in W.A. (MD) Nos. 906
    and 907 of 2012.

G      Harish Salve, Mukul Rohatgi, C. A. Sundaram, V. Giri, K.
  K. Mani, K. Ramakrishna Reddy, K. Kalapa Reddy, Abhishek
  Krishna, Rohini Musa, R. Rakesh Sharma, Anand Sathyaselan,
  B. Balaji, P. S. Sudheer, M. Purushothaman (for Santosh
  Kumar Tripathi) G. Pugalendhi, GP, Sheelam, Sp.PP. for the
H Appearing Parties.
      PRP EXPORTS & ETC. v. CHIEF SECRETARY,                   1111
              GOVT. OF TAMIL NADU
        The Judgment of the Court was delivered by                      A

/     K.S. RADHAKRISHNAN, J. 1. These Special Leave
 Petitions arise out of a common judgment and order dated
 15.2.2013 passed by the High Court of Judicature at Madras
 in W.A. (MD) Nos.906 and 907 of 2012. The Petitioner is a
                                                                        8
 registered partnership firm, engaged in the manufacture of
·dimensional granite blocks, slabs, tiles, monuments etc. and
 has set up its factory for cutting and polishing of granite in
 Therkkutheru Village, Madurai District. The Petitioner firm, it is
 stated, is 100% export oriented unit, recognized by the Madras         C
 Export Processing Zone. The Petitioner firm is having 55
 granite quarries leased in the Madurai District measuring about
 584.83 acres.

         2. Alleging that the Petitioner firm had indulged in
    unauthorized quarrying, the Respondent officials as well as the     D
    District Collector and Superintendent of Police took steps to
    seal the Petitioners' factory premises, vehicles and instruments
    so as to suspend the quarrying operations in respect of the
    above-mentioned quarries. The Petitioners, therefore,
    approached the Madras High Court by filing W.P. (MD)                E
    Nos.12441 and 12442 of 2012, which were heard by a learned
    Single Judge.

         3. Before the learned Single Judge, the State also took
    up the stand that the order of sealing dated 9.8.2012 was illegal
                                                                        F
    and could not be supported in law. Taking note of the stand
    taken by the State, the learned Single Judge observed as
    follows :-

         "124. It is also admitted case of the respondents, that till
         date, even show cause notice with regard to cancellation       G
         of licences granted in favour of the petitioner has not been
         issued, therefore, there is absolutely no justification with
         the respondents, to stop the mining operation of the
         petitioner over the mines leased out to the petitioner, and
         thereby taking the right of livelihood of thousands of         H
    1112      SUPREME COURT REPORTS                  [2013] 16 S.C.R.


A        employees working in the firm."

         4. After hearing all the parties, the learned Single Judge
    disposed of the writ petitions on 2.11.2012. The operative
    portion of the judgment reads as follows :
B        "130. However, at the same time, the fact cannot be lost
         sight off that there are number of cases registered against
         the partners of the petitioner firm, and there are serious
         allegations of illegal mining worth of crores of rupees.
         Further more, in the writ petitions, the positive stand of the
c        writ petitioner is, that the petitioners are willing to co-
         operate with the investigation of criminal cases in respect
         of furnishing all documents, records, books of accounts
         which are sealed by the authorities in their presence, and
         has further undertaken not to tamper with any records, and
D        will not destroy any evidence whatsoever. The petitioner
         has also undertaken not to threat any witnesses in the
         investigation. Therefore, a blanket order to be passed in
         favour of the petitioner may hamper the investigation, which
         cannot be permissible in law.
E
         131. Therefore, in order to settle equity, these writ petitions
    are disposed of with the following directions:-

         1. The respondents shall permit the petitioner to continue
         the quarry operations over the leased property strictly in
F        terms of the lease, which is admittedly in force. It shall be,
         however, open to the respondents to take appropriate
         action by following due process of law under The Mines &
         Minerals (Development & Regulation) Act, 1957 and the
         Rules framed thereunder, if so advised ;
G
         2. The respondents shall henceforth release the bank
         accounts and to allow the petitioner to carry on his
         business in accordance with law. However, it shall be the
         duty of the petitioners to submit fortnightly Statement of
         Accounts to the Investigating Officer;
H
  PRP EXPORTS & ETC. v. CHIEF SECRETARY,     1113
GOVT. OF TAMIL NADU [K.S. RADHAKRISHNAN, J.]
    3. That the order restraining the export and import by the        A
    Investigating Officer is ordered to be quashed and it is
    directed that the respondents shall not interfere in the
    export and import on valid documents by the petitioner.

    4. That the seal of the administrative building be opened,
                                                                      8
    after the Investigating Officer takes in possession of the
    documents, the computers, hard discs, etc., required for
    investigation. (As agreed between the parties, the
    petitioner is directed to depute two persons along with an
    expert, if so advised to be present at the administrative         C
    building on 07.11.2012 (Wednesday) at 10.00 a.m., for
    handing over the computers, hard discs, documents,
    available in the sealed building, after transferring the datas
    from computers and making copies of the documents,
    which are required for running of business). It is made
                                                                      D
    clear that the petitioner will be entitled to get copies of the
    documents lying within the premises and permit the
    Investigating Officer to take away the Computers, Hard
    discs and other documents, which are required for the
    Investigation. This process shall be completed in three           E
    days and it should be completed on S'r before 09.11.2012
    (Friday).

    5. The Investigating Officer shall permit the petitioner to
    carry on their business.
                                                                      F
    6.     With regard to the vehicles, equipments and other
    accessories seized by the authorities under the Motor
    Vehicles Act, or in criminal cases, it shall be open to the
    petitioner to take appropriate remedy in accordance with
    law for reasons thereof.                                          G

    No costs."

    5. The State, aggrieved by the judgment of the learnecl
Single Judge, preferred Writ Appeal (MD) Nos. 906 and 907 ·
                                                                      H
    1114    SUPREME COURT REPORTS               [2013] 16 S.C.R.


A of 2012 before the Division Bench of the Madras High Court.
  While dealing with various directions given by the learned Single
  Judge, the State represented by the learned Advocate General,
  pointed out that, during the pendency of the writ appeals,
  suspension orders dated 14.12.2012 were issued under
B Section 19(2) of the Granite Conservation and Development
  Rules, 1999 as well as Show Cause Notices dated nil.12.2012
  were issued to the writ petitioners. Further, it was also pointed
  out that the departmental proceedings as well as the criminal
  proceedings initiated against the petitioners could not be
C hampered by granting permission to them to carry on quarrying
  operations in their 56 quarries. The prayer made by the
  Advocate General was opposed by counsel appearing for the
  writ petitioners stating that any action taken by the Government
  subsequent to the passing of the order by the learned Single
D Judge could not be the basis for testing the correctness, or
  otherwise, of the directions given by the learned Single Judge.
  In support of that contention, reliance was placed on the
  judgment of this Court in Mohinder Singh Gill v. Chief Election
  Commissioner, New. Delhi & Ors. [1978) 1 SCC 405].
E       6. The Division Bench of the Madras High Court formulated
    two questions which read as follows :

        "(1) Whether the appellants can place reliance on the
        subsequent events, viz., passing of the suspension orders
        dated 14.12.2012 and the issuance of the show cause
F
        notice dated Nil.12.2012 to the respondents/writ
        petitioners firm? and

        (2) Whether the provisions under the Special Law viz. The
        Mines and Minerals (Development and Regulation) Act,
G       1957 and other Rules, can override the General Law, viz.,
        the penal provisions under the Indian Penal Code and the
        provisions under the Code of Criminal Procedure in
        respect of the initiation of parallel proceedings, viz.,
        departmental proceedings and criminal proceedings?"
H
                               '



   PRP EXPORT$ & ETC. v. CHIEF SECRETARY,     1115
 GOVT. OF TAMIL NADU [K.S. RADHAKRISHNAN, J.]
      7. Shri H.c:irish Salve, learned senior counsel appearing for     A
the !Petitioner, submitted that he is more concerned with the first
question and arguments were advanced by him as well as Shri
C. Sundaram, learned senior counsel appearing for the State,
on that point. In our view, the Division Bench of the High Court
is right in examining_ the subsequent events as well in a case          B
where larger public interest is involved. This Court in'A/J India
Railway Recruitment Board v. K. Sh yam Kumar [(2010) 6
SCC 614] distinguished Mohinder Singh Gill's case (supra),
stating when a larger public interest is involved, the Court can
always look into the subsequent events. Relevant paragraph of           c
the judgment is extracted hereinbelow :-

     "45. We are of the view that the decision-maker can always
     rely upon subsequent materials to support the decision
     already taken when larger public interest is involved. This
     Court in Madhyamic Shiksha Manda/, M.P. v. Abhilash                D
     Shiksha Prasar Samiti found no irregularity in placing
     reliance on a subsequent report to sustain the cancellation
     of the examination conducted where there were serious
     allegations of mass copying. The principle laid ·down in
     Mohinder Singh Gill case is not applicable where larger            E
     public interest is involved and in such situations, additional
     grounds can be looked into to examine the validity of an
     order. The finding recorded by the High Court that the
     report of CBI cannot be looked into to examine the validity
     of the order dated 4-6-2004, cannot be sustained.                  F

     8. The Government and the District Administration
received lot of comr:;ilaints with regard to illegal quarrying in the
Madurai District, which led the State Government directing the
District Administration to verify the complaints. The District          G
Collector inspected various quarries and submitted a
preliminary report dated 19.5.2012. Subsequent to the
preliminary report, the Distri~t Administration decided to
conduct a comprehensive and scientific survey in all the 175
granite quarries functioning in the Madurai District. Considering
                                                                        H
the vast area involved, the District Administration requested the
    1116     SUPREME COURT REPORTS                [2013) 16 S.C.R.


A Commissioner of Geology and Mining to depute officers from
  their department for carrying on the inspection. Consequently,
  the Commissioner of Geology and Mining vide proceedings
  dated 4.8.2012 deputed six Assistant Geologists, two
  Surveyors and two Sub Inspectors of Survey from various other
B Districts to assist the inspection team constituted by the District
  Administration. After conducting a comprehensive and scientific
  survey, the Deputy Director and the Assistant Director of
  Geology and Mining submitted an Evaluation Report on
  23.11.2012 on 88 granite quarries. Among them, 16 quarries
c belonged to the Petitioner. The inspection could not be carried
  out in 22 granite quarries due to water logging and among that
  18 quarries belonged to the Petitioner.

         9. The Deputy Director and the Assistant Director of
    Geology and Mining in their Evaluation Report dated
D   23.11.2012 reported that the Petitioner firm has not carried out
    the quarrying operations as per their mining plan and
    encroached upon the adjoining roads, tanks, channels and
    water bodies and illicitly quarried granites in the adjacent non-
    leasehold areas also. Further, it was also pointed out that there
E   is a vast difference between the quantity permitted by the
    District Mines office and the quantity quarried by the Petitioner
    firm. Consequently, it was.pointed out that they have violated
    Section 4-(1) and 4-(1A) of the Mines and Minerals
    (Development and Regulation) Act, 1957. Further, it was also
F   pointed out that theY have not maintained the boundary stones
                   .
    and the safety distance and thus violated the Rules 36(4) and
    36(1) of the Tamil Nadu Minor Mineral Concession Rules, 1959.
    It was also pointed out that the Petitioner has not submitted the
    Scheme of Mining as per Rules 15 and 18 of the Granite
G   Conservation and Development Rules, 1999 and has not stored
    the over burden and waste materials as earmarked. Various
    other violations have also been pointed out.

        10. The District Administration then forwarded the
    Inspection cum Evaluation Report dated 23.11.2012 to the
H
    PRP EXPORTS & ETC. v. CHIEF SECRETARY, 1117
  GOVT. OF TAMIL NADU [K.S. RADHAKRISHNAN, J.]
 Commissioner of Geology and Mining on 4.12.2012 and                  A
 pointed out that the lessees have not submitted the scheme of
 mining as required under sub-rules (2) and (3) of Rule 18 of
 the Granite Conservation and Development Rules, 1999 and
 that the lessees have carried out large· scale unauthorized
 quarrying in the leasehold area and the adjoining non-leasehold      B
 area. The Commissioner of Geology and Mining vide its letter
 dated 6 .. 12.2012 also recommended for further action.
 Consequently, under Sub-Rule (2) of Rule 19 of the Granite
 Conservation and Development Rules, 1999, the Government
 suspended the mining operations in respect of 78 granite             c
 quarries of Madurai District and, among the same, 20 quarries
 belong to the Petitioner firm were suspended on 14.12.2012
 and the copies of the suspension orders were issued to the
 Petitioner firm.

       11. Shri Harish Salve, learned senior counsel appearing        D
  for the Petitioners submitted that the Petitioner has already
  challenged the suspension orders in the Madras High Court in
  W.P. (MD) No.3829 of 2013 and the connected writ petitions
  and the Court has granted stay of the suspension orders and
  hence the Respondents should have permitted the Petitioners         E
  to operate the granite quarries in the leasehold area. Shri Salve
  also submitted that the show cause notices dated 25.2.2013
  issued to the Petitioners are also under challenge in W.P. (MD)
  No.3012 of 2013 and other connected cases before the
  Madurai. Bench of the Madras High Court and the Court has           F
  issued an interim order directing the District Collector not to
  pass final orders, pursuant to the suspension orders. The Court
  also has reserved its judgment. Learned senior counsel also
  submitted that a series of writ petitions are also pending
· challenging the deemed lapse notices. In such circumstances,        G
  learned senior counsel prayed that the Petitioners may be
  allowed to operate the quarries in accordance with the licences
  already granted.

      12. We find it difficult to accede to that request made by
 the senior counsel, at this stage, especially in the wake of the     H
    1118      SUPREME COURT REPORTS               [2013] 16 S.C.R.

A report of the District Collector dated 19.5.2012 as well as the
  report of the Deputy Director of Geology and Mining dated
  23.11.2012. In the affidavit filed by the third respondent, it is
  pointed out, that the volume of illegal transportation from the
  petitioners' 16 quarries is around 1207863.164 Cubic Meters
B and show cause notices have been issued to the Petitioner firm
  under Section 21 (5) of the Mines and· Minerals (Development
  and Regulation) Act, 1957. for recovery of the cost. It is stated
  that the value of the illicit quarry in the 16 quarries alone comes
  around 4124.14 crores. Further, it was also pointed out that
C other quarry operators have also indulged in similar illegal
  quarry operations and the total volume of illegal operations is
  estimated around Rs.12390.460 crores. Further, it was also
  pointed out that several criminal cases are also pending for
  carrying on illegal quarrying operations in the government land.

D       13. We are of the view that, since several writ petitions are
  p·ending consideration before the High Court, at this stage, it
  would not be appropriate to pronounce upon the various
  contentions raised by learned senior counsel on either side on
  merits of the case, especially in the light of the materials leading
E to the issuance of the suspension orders dated 14. 12.2012 and
  the show cause notices dated Nil.12.2012. We also notice that
  the Division Bench of the High Court has issued some
  equitable directions taking into consideration the interest of the
  workers and also for honouring some statutory obligations of
F the petitioner firm. We, therefore, find no reason to interfere with
  the impugned judgment dated 15.2.2013 and the special leave
  petitions filed against those orders stand dismissed.
    Kalpana K. Tripathy                               SLPs dismissed.
                    [2013] 16 S.C.R. 1119


MUNICIPAL CORPORATION OF GREATER MUMBAI AND                         A
                    ORS.
                               V.
    KOHINOOR CTNL INFRASTRUCTURE COMPANY
          PRIVATE LIMITED AND ANOTHER
           (Civil Appeal No. 11150 of 2013)                         B
                    DECEMBER 17, 2013
     [H.L. GOKHALE AND J. CHELAMESWAR, JJ. ]

     Urban Development:                                             c
      Sanction for construction of high-rise building going upto
198. 50 meters - Provision for Public Parking Lot up to 13 floors
- During the construction work, decision of Government to
limit the height of Public Parking Lot to ground plus 4 upper       D
floors - Competent authority directing the builder to restrict
the work of Public Parking upto ground plus 4 floors instead
of 13 floors - By further order, the authority allowed Public
Parking to the extent of already executed construction -:-- High
Court quashed the orders passed by the authorities as being
                                                                    E
contrary to law - On appeal, settlement arrived at between the
parties - The Court also noticed certain violations while
granting initial sanction in respect of the building in question
- Memorandum of Settlement taken on record and parties
directed to act strictly in accordance thereof - As regards other
violations it held: Minimum recreational space as laid down         F
under Development Control Regulation (OCR) 23, cannot be
reduced on the basis of OCR 38(34) - The second proviso
to OCR 43(1)(A) regarding fire protection requirements, is
discriminating as against occupants of the plots upto the size
of 600 sq. mtrs. and hence violative of Art. 14 of the              G
Constitution - The provision is also violative of Article 21 as
it is likely to lead to hazardous situation - Suggestions given
regarding height of buildings vis-a-vis the adjoining roads and

                              1119                                  H
    1120    SUPREME COURT REPORTS             [2013] 16 S.C.R.


A impact of additional FSI on the traffic situation - State
  Government, Development Plan Drafting Committee, and
  appellant-Municipal Corporation directed to consider the
  suggestions while framing the Development Plan for Greater ·
  Mumbai - 'Technical Committee for High-Rise Buildings'
B reconstituted - Development Control Ri~gulations for Greater
  Mumbai, 1991 - Maharashtra Regional and Town Planning
  Act, 1966 - Constitution of India, 1950 - Articles 14 and 21.

        Words and Phrases:

C       'Open space' and 'Site' - Meaning of, in the context of
    urban development.

         Respondent No.1 commenced construction work of
    'A', 'B' and 'C' wings of a building, after due approval
0   from the competent authorities including the approval for
    development of a multi-storied Public Parking Lot (PPL).
    The appellant-Corporation issued a Circular on 22.6.2011
    prescribing certain conditions un~er Clause 33(24) of
    Development Control Regulation (DCR) limiting the
E   height of PPL to ground plus 4 upper floors and 2
    basements. In view of the circular, the appellant-
    Corporation issued notice dated 29.11.2011 to
    respondent No.1 under Maharashtra Regional and Town
    Planning Act, 1966. Respondent No.1 in its reply pleaded
    that amended clause 33(24) of the DCR could not be
F   made applicable to its building, because substantial
    construction had already been made. Thereafter stop-
    work Notice was issued on 22.12.2011 directing
    respondent No.1 to restrict the work of PPL to 4 floors
    instead of 13 floors. Competent Authority of appellant-
G   Corporation passed ord~r dated 22.4.2012 holding that on
    the part of the plot on which there was substantial
    construction, PPL on that part shall be allowed to the
    extent of already executed construction and in the
    remaining portion of the plot, where there was no
H
 MUNICIPAL COPRN. OF GREATER MUMBAI v. KOHINOOR CTNL 1121
           INFRASTRUCTURE COMPANY PVf. LTD.

substantial construction, PPL shall be limited to ground       A
plus 4 floors.Petitioner No.1 challenged the Stop-work
notice as well as the order dated 27.4.2012. High Court
allowed the petition.

     In appeal to this Court, the parties entered into
                                                               B
settlement, bringing about changes as desired by
appellant-Corporation, while taking care of interest of the
respondent. As per the settlement Public parking was to
be provided in the ground plus 4 upper floors in Wing 'C'
and also in the three level basements below Wings 'A',
'B' and 'C'. From 5th to 13th floors of Wing 'C' there would   C
be private parking.

     This Court in its order dated 25.7.2013 took ton
record, the Memorandum of Settlement dated 18.4.2013
between the parties. This Court by order dated 25.7.2013,. D
apart from taking on record the settlement, also noticed
that the appellant-Corporation had not applied their mind
to some of the issues which, did arise in the matter of ·
grant of permission to the building complex in question,
viz. the recreational space available at the ground level E
was reduced to only 7.7.% of the area of the plot as
against the required minimum of 15%; that a higher FSI
had been given in lieu of making a provision for Public
Parking, leading to a high-rise building; that impact of
Construction of high-rise buildings in the thickly F
populated areas on the traffic in the city was not
considered; and that the issues regarding the firi;i
hazards were not considered.

    Disposing of the appeal, the Court
                                                               G
     HELD: 1. The memorandum of settlement dated
18.4.2013, concerning the Public Parking Lot (PPL) arrived
at between the appellant-Municipal Corporation of Greater
Mumbai and the respondents was taken on record, as
noted in Part-I order dat~ 25.7.2013, in the facts and         H
    1122    SUPREME COURT REPORTS                [2013] 16 S.C.R.


A circumstances of the present case. Both the parties shall
  act strictly in accordance with the same. It is clarified th!'lt
  the Municipal circular dated 22.6.2011 is not in any way
  held to be bad in law. [Para 60] [1179-0-F]

         2.1. OCR 23 (1) (a), speaks of a lay-out or sub-division
8
    of 'vacant land' and open spaces. Under sub-clause (f)
    of OCR 23 there is a requirement of keeping the
    recreational open space permanently open to the sky and
    trees are to be grown in that space as laid down, i.e. five
    trees per hundred square meters of the recreational
C   space within.the plot. These provisions clearly show that
    they are mandatory. OCR 2 (64) defines 'open space' to
    mean an area forming an integral part of a site left open
    to the sky. A 'site' is defined under OCR 2 (83) to mean a
    parcel or piece of land enclosed by definite boundaries.
D   These OCR's when read together, very much make it
    clear that the recreational /amenity space has to be on
    the land i.e. on ground level and it has got to be 15%, 20%
    or 25% of the area depending upon its size. Podium is
    permissible only on plots admeasuring 1500 sq. mts. or
E   more. So this provision is not applicable to plots smaller
    than 1500 sq. mts. The requirement of recreational space
    on the podium under OCR 38 (34) (iv) is discretionary.
    Besides, as clause (iii) lays down, podium shall be
    basically used for parking. Besides Clause (iv) does not
F   contain a non-obstante clause to over-ride the
    requirement under OCR 23 making it mandatory to
    provide recreational space on the ground-floor. That
    being so, the provision under OCR 38 (34) cannot be read
    in derogation of the requirement under OCR 23 or else it
G   will result into serious erosion in the basic requirements
    for a good life affecting the guarantee of righ~ to life, under
    Article 21 of the Constitution of India. Therefore clause
    (iv) of the OCR 38(34) has to be read down as
    inapplicable and not excluding the mandatory provision
H   under OCR 23. [Para 25] [1150-C-H; 1151-A, BJ
  --·
 MUNICIPAL COPRN. OF GREATER MUMBAI v. KOHINOOR CTNL 1123
           INFRASTRUCTURE COMPANY PVT. LTD.

     2.2. The development schemes under OCRs 33(7),          A
33(9) and 33(10) provide for lesser Recreational area I
Amenity spaces. Thus, under OCR 33(7) and 33(10)
reduction in the Amenity open space is permitted to make
the project viable, but still minimum 8 percent of the
project area is required to be maintained as Amenity         B
open space. Similarly, for the schemes under OCR 33(9)
minimum 10 percent of the plot area is required to be
retained as Recreational space. In other properties, where
there are no such constraints to make the development
schemes of rehabilitation or reconstruction of old           c
buildings or slums viable, there is no reason why the
Amenity open space at the ground level should be read
as permissible to be reduced. The only ground being
given is to provide more parking and more
accommodation, meaning thereby more construction,            0
concretization and financial expediency. Such a purpose
cannot be read into the provisions as they presently
exist, nor is it desirable to do so from the point of view
of the requirement of minimum open spaces at the
ground level. [Para 26] [1151-B-E]
                                                             E
     2.3. Besides, the requirement of having trees and
open land around them is necessary from an
environmental point of view, since there is already
excessive concretization, and a very serious reduction in
open spaces at the ground level. The right to a clean and    F
healthy environment is within the ambit of Article 21. The
right to a clean and pollution free environment, is also a
right under co'mmon-law jurisprudence. [Para 27] [1151-
F-G; 1152-B]
                                                             G
     Court on its Own Motion vs. Union of India 2012 (12)
SCALE 307; Ve/lore Citizen's Welfare Forum vs. Union of
India and Ors. (1996) 5 SCC 647: 1996 (5) Suppl. SCR 241
- relied on.

        2.4. Having 15%, 20% or 25% of the area (depending   H
    1124    SUPREME COURT REPORTS            [2013] 16 S.C.R.

A upon the size of the lay-out) as the recreational/amenity
  area at the ground level is a minimum requirement, and
  it will have to be read as such. Therefore, issue no. 1 is
  answered by holding that it is not permissible to reduce
  the minimum recreational area provided under DCR 23 by
B relying upon DCR 38(34). However, if the developers wish
  to provide recreational area on the podium, over and
  above the minimum area mandated by DCR 23 at the
  ground level, they can certainly provide such additional
  recreational area. [Para 28] [1152-G-H; 1153-A-B]
c      3.1. Whereas the provisions regarding access for the
  fire-engines are somewhat adequate for the mid-rise
  buildings up to 13 floors, those beyond are required to
  be strictly implemented from within as well. The
  provisions for the refuge floor and various requirements
D from within have to be strictly scrutinized and insisted
  upon. [Para 37] [1160-G-H]

       3.2. The second proviso to DCR 43(1 )(A) cannot
  stand scrutiny of minimum safety requirement. If the
E access of 6 meters is required from at least one side
  within the property for the fire engine to enter and move
  inside, in redevelopment proposals under DCR 33(7)
  where the plot size is up to 600 sq. mts., open space of
  1.5 meters, can not be said to be adequate. The buildings
F on such plots can also go up to 20 floors, depending
  upon the number of flats for the occupants to be provided
  for. If that is so, it is necessary to have an open space of
  the width of 6 meters within the property for the fire
  engine to enter the property at least from one side which
G is so provided for every other building. [Para 37] [1160-
  H; 1161-A-C]
      3.3. Not providing a minimum space of 6 meters
  which makes room for the fire-engine to access the
  building amounts to violation of the right to life and
H equality of the residents of these buildings, by not
 MUNICIPAL COPRN. OF GREATER MUMBAI v. KOHINOOR CTNL 1125
           INFRASTRUCTURE COMPANY PVT. LTD.

providing the same standard of safety to them which is           A
available to residents of all other buildings. It is true that
some of these plots under the OCR 33(7) schemes are
small plots and are in congested areas. But if that is so,
nothing prevents the State Government from taking over
such schemes for which it can finance from the overall           B
cess collection. In such cases, it may have to
accommodate only the existing occupants. This can also
be achieved by calling upon such occupants to partly
contribute towards the construction cost. But human life
cannot be made to suffer only on the ground that in the          c
redevelopment scheme sufficient access cannot be
provided for the fire engine to enter within the plot even
from one side. [Para 38] [1161-E-H; 11162-A]

     3.4. Therefore, the second proviso to OCR 43(1 )(A) is
discriminatory as against the occupants of the plots up          D
to the size of 600 sq. mts. and therefore violative of Article
14 of the Constitution of India. The provision is likely to
lead to a hazardous situation, affecting the life of the
occupants, and therefore violative of Article 21 of the
Constitution. Therefore, the provision is bad in law. [Para      E
39] [1162-B-C]

     3.5. Even for redevelopment proposals of plots up to
the size of 600 sq. mts. under OCR 33(7), an open space
of the width of 6 meters within the property which is            F
accessible from the road on one side, will have to be
maintained unless the building abuts roads of 6 meters
or more on two sides, or another appropriate access of
6 meters to the building is available apart from the
abutting road. This will be subject to the decision of the       G
Chief Fire Officer in writing. Besides, it is also necessary
to direct that the fire department must insist from the
developer/society of all the buildings, to certify at least
once in six months that the access to the building, the
internal exits and the internal fire fighting arrangements
                                                                 H
    1126   SUPREME COURT REPORTS            [2013] 16 S.C.R.


A are maintained as per the expectations under the OCR,
  the norms of the fire department, and must check them
  periodically, on its own. [Para 39) [1162-0-G]

       Jayant Achyut Sathe vs. Joseph Bain D'souza & Ors.
B 2008 (13) SCC 547: 2008 (13) SCR 31 - distinguished.

       4. Although, provision under OCR 38 (34) cannot be
  read in derogation to the one under OCR 23 with respect
  to the recreational area, and also that the second proviso
  to OCR 43(1)(A) on fire protection requirements is
C hazardous and discriminatory against the occupants of
  the schemes under OCR 33 (7), any such declaration/
  changes be implemented with prospective effect,
  namely, where the commencement certificate (CC) has
  yet not been granted. [Para 40) [1162-H; 1163-A, BJ
D
       5.1. Issue No.2 regarding height of the buildings vis-
  a-vis the width of the adjoining road, and Issue No.3 on
  the impact of additional FSI on the traffic situation are
  issues requiring wider consideration and consultation
E amongst planners. [Para 41] [1163-0-E)

      5.2. OCR 31(1) lays down that the height of a building
  shall not exceed one and a half times the total of the
  width of the street on which it abuts. In the present case,
  a tower of the height of 195.90 meters is being
F constructed. This tower is bounded by four roads and
  the height of the tower is disproportionately high, as
  against the width of the adjoining roads. The first proviso
  to OCR 31 (1) lays down that this restriction shall not be
  applicable for construction of buildings undertaken
G under OCR section 33(7), 33(8) and 33(9). Though, these
  OCR's are for the housing re-development schemes they
  also add to the population in the particular area as well
  as the vehicles. [Para 42) [1164-A-C]

       5.3. The exemptions from OCR 31 (1) for schemes
H
 MUNICiPAU:OPRN OF-GREATER MUMBAI v. KOHINOOR CTNl 1127
          INFRASTRUCTURE COMPANY PVT. LTD.

under Section 33(7), 33(8) and 33(9), though apparently         A
meant for laudable purpose, are very often resulting into
extreme crowding, and traffic congestion. It is necessary
that while granting exemptions from OCR 31 (1 ), there
must be a scheme-wise approach, and there ought to be
a proper supervision of the construction. These                 B
development schemes and the additional FSI thereunder,
should be examined locality-wise. The impact of such
high-rise buildings on the adjoining locality as well as on
the traffic, is required to be examined before granting
such permission. [Para 53] [1170-H; 1171-A-C]                   c
     5.4. There is a need to restrict the additional pressure
on existing infrastructure so that it does not affect the
quality of life. The existing social infrastructure like
educational institutions, open spaces, hospitals etc, and
physical infrastructure like water supply and drainage is       D
already over-burdened. Therefore, wherever possible,
the State Government, the planning authority, and the
committee entrusted with drafting of the new plan should
consider contribution by the existing occupants
themselves to a good extent towards the construction            E
cost, or the State should contribute through its agencies
or from the amount of cess-collected. This will result into
curtailing the number of additional entrants and will not
add to the density of the population. This approach
should particularly be examined where the plots are             F
small or are in congested areas, and particulatly where
the proposal is under OCR 33(7). [Para 54] [1171-C-F] .

    5.5. While preparing the new Development Plan these
aspects concerning restrictions on blanket exemptions,          G
contributi9n by the existing occupants to the
reconstruction schemes, locality-wise consideration and
impact of additional FSI on traffic, ought to be gone into.
In areas where the old town planning schemes have
prescribed a uniform lay-out, one can accept some
                                                                H
buildings going up to a certain extent, if necessary, to
    1128    SUPREME COURT REPORTS              [2013] 16 S.C.R.


A accommodate the existing occupants in a reconstruction
  scheme. However, it should not result into a plethora of
  steeply rising buildings, to accommodate outsiders to the
  building, adding to the population and traffic, and
  disturbing the existing order of the lay-out completely.
B [Para 54] [1171-F-H; 1172-A]

         5.6. The Technical committee for High Rise Buildings
    consists of six members and is headed by a retired judge
    of the Bombay High Court, as the Chairman. It has two ex-
C   officio members, namely, the Chief Engineer (Development
    Plan) of the appellant who is also the member secretary,
    and the Chief Fire Officer of the appellant. There are three
    expert members, a Structural Engineering Expert; the Soil
    and Geotech Expert and the Environmental Expert." It has
    been suggested that this Court appoint a new committee,
D   though the State Government has expressed its
    willingness to extend the term of the present committee.
    Considering that the architectural points as mentioned in
    the municipal note, are also to be gone into by the
    committee, the name of an Architect, Urban Researcher,
E   and consultant to the appellant-Municipal Corporation is
    included. Thus, the assistance of an architect will also be
    available to the committee. Having taken the consensus
    of the counsel appearing in the matter, one more change
    in the committee is a~fected by appointing. Hon'ble Mr.
F   Justice P.S. Patankar, former Judge of the Bombay High
    Court, to be the Chairman of the committee. [Para 56]
    [1176-C-H]
      5.7. It is desirable that the committee be requested to
G look into two additional aspects i.e. the committee will
  also look into the grievances regarding construction and
  technical requirements of the development schemes
  under OCR 33(7), 33(8), 33(9) and 33(10), whenever
  brought to the notice of the committee by concerned
  persons; and the committee may as well make
H
 MUNICIPAL COPRN. OF GREATER MUMBAI v. KOHINOOR CTNL 1129
           INFRASTRUCTURE COMPANY PVT. LTD.

recommendations to the State Government with respect            A
to the new Development Plan which is under drafting.
[Para 57) [1178-D-F]

    · 5.8. In view of the facts that the committee will have
to spend good time for this work; that the honorarium of
                                                                8
Rs.15000/- paid to the chairman was fixed much earlier;
that the terms of reference are widened, the appellant-
Municipal Corporation is directed to pay an honorarium
of Rs. 50,000/- per month to the Chairman. The other
members will be provided with the conveyance charges            C
and attendance charges to attend the meetings and for
site inspections, as per the municipal rules: The Municipal
Corporation will make available an appropriate room in
its headquarters and secretarial staff for the working of
the committee. The State Government shall issue
necessary notification reconstituting the committee, its        D
terms of reference, and other aspects, such as
honorarium etc. [Para 58] [1178-G-H; 1179-A-B]

    Municipal Corporation of Delhi vs. Association of victims
of Uphaar Tragedy and Ors. AIR 2012 SC 100: 2011 (16)           E
SCR 1 - referred to.

                    Case Law Reference :
    2011 (16) SCR 1             referred to        Para 13
                                                                F
    2012 (12) SCALE 307         relied on        ·Para 27
    1996 (5) Suppl. SCR 241 relied on              Para 27
    2008 (13) SCR 31            distinguished      Para 38
    CIVIL APPELLATE JURISDICTION : Civil Appeal No:             G
11150 of 2013.

    From the Judgment and Qrder dated 09.07.2012 of the
High Court of Judicature at Bombay in Writ Petition No. 143
of 2012.                                                        H
      1130    SUPREME COURT REPORTS               [2013] 16 S.C.R.


A         R. P. Bhatt, R. A. Malandkar, U. H. Deshpande, Jernold
      Xavier, S. Sukumaran, Anand Sukumar, Bhupesh Kumar
      Pathak, Meera Mathur for the Appellants.

      Dr. A. M. Singhvi, Joaquim Reis, Shyam Diwan, Shivaji M.
B Jadhav, Brij Kishor Sah, Chirag M. Shroff, Abhishek Singh,
  Sanjay Kharqe, Shubhangi Tuli (For Asha Gopalan Nair),
  Anand Verma, Kedar Nath Tripathy. Gauhar Mirza, Pragya
  Baghel, Ankur Saigal, Mahesh Agarwal, Rishi Agrawala, E. C.
  Agrawala for the Respondents.

C         The Judgment of the Court was delivered by

          H.L. GOKHALE J. 1. Leave granted.

       2. This appeal is directed against the order dated
  9.7.2012 passed by a Division Bench of the Bombay High
D Court whereby Writ Petition No.143/2012 filed by the
  respondents was allowed, and which quashed the stop work
  notice dated 22.12.2011 issued by Executive Engineer
  (Building Proposal) City-Ill, Municipal Corporation of Greater
  Mumbai, and order dated 27.4.2012 passed by the Additional
E Municipal Commissioner restricting to four floors the height of
  Wing 'C' (providing for public parking lot- 'PPL' for short) of the
  buildings being constructed on Plot No.46 of Town Planning
  Scheme-Ill, N.C.Kelkar Road, Shivaji Park, Dadar, Mumbai.

F         Dispute between the parties, settlement thereof and
          Part-I of the order dated 25.7.2013:-

      3. This appeal was initially heard by a bench of G.S.
  Singhvi and H.L. Gokhale, JJ. Mr. Harish Salve and Mr. R.P
  Bhatt, both learned Senior Counsel appeared for the
G appellants, and Mr. F.S Nariman, learned Senior Counsel
  appeared for the respondent. The appellants wanted to restrict
  the PPL up to four floors only, but before the issuance of the
  restrictive circular dated 22.6.2011, in this behalf, the
  respondents had already consumed higher FSI (Floor Space
.-'
 MUNICIPAL COPRN. OF GREATER MUMBAI v. KOHINOOR CTNL 1131
  INFRASTRUCTURE COMPANY PVT LTD. [HL GOKHALE, J.]

Index) on the basis of the Commencement Certificates issued A
earlier. In view of the discussion in the Court however, a
settlement was arrived at between the appellants and the
respondents on the controversy concerning the PPL. Before
passing the order on the settlement, the bench noted the
backdrop of the facts and circumstances of the case in . B
paragraphs 2 to 5 in Part-I of the order passed on 25.7.2013
(per Singhvi, J. as he then was). These paragraphs read as
follows:-

    "2. The plans submitted by respondent No. 1 for C
    construction of Wings-'A', 'B' and 'C' of the building were
    sanctioned by the competent authority of the Municipal
    Corporation of Greater Mumbai (for short, 'the
    corporation? and Intimation of Disapproval was issued on
    15. 2. 2006. After the Ministry of Environment and Forests,
    Government of India granted clearance for the D
    construction of commercial building, the competent
    authority issued commencement certificated dated
    13.9.2006. The Joint Commissioner of Police (Traffic)
    issued NOC dated 11. 12. 2009 for the development of a
    multi-storied public parking lot and vide letter dated E
    2.6.2010, the State government granted in-principle
    approval under Clause 33(24) of the Development
    Control Regulations (OCR) for Greater Mumbai, 1991 for
    construction of a mu/ti-storied public parking lot.
    Thereafter, the competent authority issued the Letter of F
    Intent dated 27. 7.2010.

    3. During the construction of the building, the Urban
    Development Department of the State Government sent
    letter dated 4. 3. 2011 to the Municipal Commissioner           G
    requiring him to submit a proposal for amendment of
    Clause 33 (24) of the OCR for limiting the height of
    parking towers to 4 floors and also for revocation of all
    sanctioned proposals where the commencement
    certificates had not been issued. In view of that letter, the   H
    1132   SUPREME COURT REPORTS                 [2013) 16 S.C.R.

A      Corporation issued circular dated 22.6.2011 prescribing
       certain conditions under Clause (iv) of OCR 33(24) and
       clarified that all proposals for public parking lots shall be
       considered subject to those conditions. The new
       conditions sought to limit the height of public parking to
B      ground plus 4 upper floors and 2 basements.

       4. As a sequel to the above changes, the Corporation
       issued notice dated 29. 11. 2011 to respondent No. 1
       under Section 51 of the Maharasntra Regional and Town
       Planning Act, 1966 requiring it to show cause as to why
c      the commencement certificate may not be revoked.
       Respondent No. 1 submitted detailed reply dated
       14.12.2011 and pleaded that the amended OCR 33(24)
       cannot be made applicable to its buildings because
       substantial construction had already been made at a cost
D      of Rs. 1671- crores. Thereafter, the concerned Executive
       Engineer issued stop work notice dated 22. 12. 2011 and
       directed respondent No. 1 to restrict the work of public
       parking to 4 floors instead of 13 floors. After about six
       months, Additional Municipal Commissioner passed
E      order dated 27.4.2012, the relevant portion of which is
       extracted below:-

       "As there is a substantial construction on core part of the
       plot, PPL done in this part shall be allowed to the extent
F      of already executed construction as per report dated
       27.12.2011. In the remaining portion of the plot, where
       there is no substantial construction, PPL shall be limited
       to G + 4, Developer is to be asked to modify his plans in
       consonance with modified OCR."
G      5. The respondent challenged the stop work notice and
       the order of the Additional Municipal Commissioner in
       Writ Petition No. 14312012, which was allowed by the
       High Court in the following terms:-

H      "In the facts of this case, the admitted position as
 MUNICIPAL COPRN OF GREATER MUMBAI v. KOHINOOR CTNL 1133 ·
  INFRASTRUCTURE COMPANY PVT. LTD. [HL GOKHALE, J.]

    accepted in the order of the Additional Municipal              A
    Commissioner indicates that the work of development
    had substantially progressed by the time a notice to show
    cause was issued under Section 51 of the MR. & T.P.
    Act, 1966. The impugned order passed by the Additional
    Municipal Commissioner restricting the Petitioners to a        B
    height of a ground floor and four upper floors in deviation
    of the permission granted earlier is thereafter contrary to
    law. Hence, the impugned order would have to be
    quashed and set aside and is accordingly set aside . .The
    stop work notice which has been issued to the Petitioners      c
    on the basis of the notice to show cause dated 29
    November 2011 is to that extent quashed and set aside.
    Rule is made absolute in these terms. There shall be no
    order as to costs. "

    4. The above referred memorandum of settlement arrived         D
at between the parties contained clauses 1, 2 (a to e) and an
annexure thereto with respect to the modus-operandi in that
behalf. Clauses 2 (a) and (b) thereof are relevant for our
purpose. They read as follows:-
                                                                   E
    "2. In view of the peculiar facts and circumstances of the
    present case and without establishing any precedent, it
    is agreed between the Petitioners herein and the
    Respondent No. 1(Kohinoor CTNL) as follows:-

     (a) In public interest, Public Parking Lot (PPL) will no      F
longer be on ground + 13 upper floors as initially approved
under amended approval dated 21st September, 2011 in
Wing 'C' of the development of composite building on Final
Plot No. 46, but on the ground + 4 upper floors in Wing 'C' as
well as in three level basement below Wing 'A', 'B' and 'C' i.e.   G
entire basement, and the captive pF.irking shall be on 5th to
13 upper floors in Wing 'C'.

     (b) It is also agreed that in the present case of F.P. No.
46, the PPL will be managed and operated by the Petitioner         H
    1134    SUPREME COURT REPORTS              [2013] 16 S.C.R.


A No. 1 (MCGM) or its nominee(s) and common ingress and
  egress through the common entry/exist shall be provided in
  Wing 'C' for PPL as well as captive parking for Municipal
  Corporation of Greater Mumbai and Respondent No. 1
  (Kohinoor CTNL). The modus-operandi in that behalf is
B detailed in Annexure hereto."

                                            (emphasis supplied)

       5. Since the signed memorandum of settlement was filed
  in the Court, the Court passed the following operative order in
C paragraph 9 of Part-I of the said order dated 25. 7.2013:-

        "9. Accordingly, the Memorandum of Settlement signed
        by the representatives of the parties and their advocates
        on 18.4.2013 together with the annexure are taken on
D       record. We note that this settlement is arrived at on the
        backdrop of the facts and circumstances of this case. We
        clarify that we have not in anyway held the Municipal
        Circular dated 22.6.2011 to be bad in law. We direct
        that the parties shall strictly abide by the terms of
        settlement."
E
                                            (emphasis supplied)

       6. The settlement has brought about the change as
  desired by the appellants, while taking care of interest of the
F respondents. The complex is going to be on the land which
  earlier belonged to Kohinoor Textile Mill at Dadar, Mumbai.
  Wing 'A' is to consist of 3 basements + ground to 5 Floors,
  and Wing 'B' is to consist of 3 basements +ground to 48 floors
  with a total height of 195.90 meters. Wing 'C' was to be in two
G parts as originally proposed. Ground+14 Floors, thereof, were
  to be meant for PPL, and 15 to 30 floors were to be kept for
  residential purposes. Under the Municipal circular dated
  22.6.2011 prescribing conditions under clause (iv) of OCR
  33(24), the public parking building was to be confined only to
H ground+4 upper floors. The settlement accepts this position,
 MUNICIPAL COPRN. OF GREATER MUMBAI v. KOHINOOR CTNL 1135
  INFRASTRUCTURE COMPANY PVT. LTD. [H.L. GOKHALE, J.]

and now as per the settlement, public parking is going to be         A
provided in the ground + 4 upper floors in Wing 'C' and also in
the three level basements below Wings A', 'B' and 'C'. The
private parking shall be from 5th to 13th floors of Wing 'C'.

     ~art-IIof the order dated 25.7.2013 framing four                8
     issues:-

     7. Although the dispute between the parties, was with
respect to the height of the building consisting of tt)e PPL, it
was felt that the appellants had not applied their mind to some
of the issues which, in fact, did arise in the matter of the grant   C
of permission to this. complex on the said plot No.46 in the heart
of Mumbai city. It was noticed that as per the approved plan,
the recreational space available at the ground level was
reduced to only 7.7% of the area of the plot, as against the
required minimum of 15% (where the area of the plot was              D
between 1001 sq. mts. to 2500 sq. mts. as per the OCR 23).
In view of the reduction in the recreational area at the ground
level, it was observed in paragraph 13 of the said order as
follows:-
                                                                     E
     " ..... We may add that since the petitioners and
     respondents have arrived at a settlement, we do not
    ,propose to go into this issue with respect to the
     construction of the respondent. We are, however,
     surprised that the Municipal Corporation did not look into      F
     the reduction in the recreational area at the ground level
     very seriously, probably because the rule permits
     recreational space on the podium. If this is treated as a
     correct interpretation, then it is quite possible that the
     recreational area left at the ground level could simply be
     zero. It may leave no space on the ground floor for the         G
     residents/occupants of the apartments constructed in the
     particular building, and that will have serious adverse
     impact on the right to life not only of the residents/
     occupants of the apartments but also of the people in the
     adjoining areas because aft of them will have to onlv fall      H
    1136     SUPREME COURT REPORTS                 [2013] 16 S.C.R.


A        back on the public parks or play grounds and gardens
         for their minimum recreational requirements ...... "

                                               (emphasis supplied)

       It was, therefore, felt that it was necessary to examine the
B co-relation between OCR-23, which provides for minimum
  Recreational/Amenity open spaces, and OCR-38· (34)
  concerning the Podium.

         8. Secondly, it was noted that in the present matter a
c   higher FSI has been given in lieu of making a provision for
    public parking, leading to a high-rise building. Such high-rise
    constructions bring along with them more population and more
    vehicles on the adjoining narrow roads and into an already
    congested area, and that aspect did not appear to have been
0   examined by the appellant-Municipal Corporation. In the instant
    case, the approved complex is bounded on four sides by four
    roads, and these roads are not, at all, wide. The height of the
    complex is going to be quite disproportionate to the width of
    these roads, but that has been permitted amongst other
E   reasons in view of making a provision for public parking. Under
    OCR No.31 (1 ), the height of the building has to be in proportion
    to the width of the road which is adjoining a building, but the
    proviso to that OCR makes another exception to this rule with
    respect to construction schemes under OCRs Nos.33(7), (8)
    and (9). OCR 33(7) is regarding reconstruction or
F   redevelopment of cessed buildings in the island city, by co-
    operative housing societies, or of old buildings belonging to the
    Municipal Corporation or the police department, and it grants
    FSI of 2.5 plus incentive FSI as specified in Appendix 111,
    whichever is more. OCR 33(8) is regarding construction for
G   housing the dis-housed, by the Municipal Corporation. OCR
    33(9) is regarding reconstruction or redevelopment of cessed
    buildings or urban renewal schemes on extensive areas, where
    the FSI is 4. These constructions also add to the population and
    the vehicles in that very area. A question therefore arose as to
H   whether these exemptions are justified, valid and legal?
 MUNICIPAL COPRN. OF GREATER MUMBAI v. KOHINOOR CTNL 113 7
  INFRASTRUCTURE COMPANY PVT. LTD. [H.L. GOKHALE, J]

     9. Thirdly, the impact of constructipn of high-rise buildings       A
in the thickly populated areas on the traffic in the city was also.
discussed during the consideration of the SLP. The Court noted
in paragraph 14 of the order, that although additional space for
public parking was being provided, simultaneously higher FSI
was also being granted to the developer, on that count.                  B
Consequently, such high-rise buildings would add more number
of vehicles on the adjoining streets. This required examination
of the impact of additional FSI on the traffic situation, particularly
in the island city of Greater Mumbai.

      10. Lastly, considering that the height of the complex was         C
going up to 198.50 meters, it was decided to look into the issue
of hazards due to fire which the occupants of such towers could
face. It was noted that there were provisions with respect to the
space to be kept around such buildings for the movement of
fire engines within the compound of such buildings, but these            D
provisions are not uniform. The fire engines, with their ladders,
available with the Municipal Corporation, do not reportedly reach
anywhere beyond 14th floor. It was also noted that recently the
Secretariat Building of the State of Maharashtra (known as the
'Mantralaya') was engulfed with fire. The building is only six           E
storeys, and yet it took quite a few days to control the fire, and
in that exercise a few lives were unfortunately lost. Therefore,
the issue of safety of the occupants of such high-rise buildings,
that of the residents in the neighbourhood, and the firemen,
required urgent consideration.                                           F

     11. Therefore, in Part-II of its order dated 25.7.2013, the
Bench framed four issues for further consideration. These
issues read as follows:-

     "(1) What should be the correlation between OCR 23 and              G
     OCR 38(34) regarding the recreational area? Is it
     permissible to reduce the minimum recreational area
     provided under OCR 23 on any ground?

     (2) Whether the exemption from OCR 31(1) under OCR                  H
    1138    SUPREME COURT REPCRTS                 [2013] 16 S.C.R.

A       Nos. 33(7), (8), and (9) is justified, valid and legal
        particularly in the island city of Greater Mumbai. If so, to
        what extent and in which context?

        (3) What is the impact of the addition of FSI in the island
        city on the traffic situation? How can it be controlled?
B
        (4) Whether the present mechanism for protection against
        the fire hazards is adequate and is being implemented
        effectively? If not, what should be the mechanism for
        enforcement with respect to the provisions concerning the
c       fire safety?

         12. For that purpose, affidavits were sought from the
    following:-

        "(A) From the Municipal Corporation:-
D
        (i) The affidavit of the Chief Engineer, Town Planning on
        issues no. 1 and 2.

        (ii) The affidavit of the Chief Engineer, concerning traffic
        on issued no. 3.
E
        (iii) The affidavit of the Chief Fire Officer on issue no 4.

        (8) From the State of Maharashtra:-

        (i) By the Secretary, Urban Development Department on
F
        issue nos. 1, 2 and 3 above.

        (ii) By the Commissioner of Police (Traffic) on issue no.
        3 above."

G      13. The excessive construction at the cost of minimum
  recreational space, as seen in the present case, required an
  immediate attention to be paid to issue no. (1) .. Similarly, issue
  no. (4). concerning the fire hazards also required urgent
  attention, and it was thought that the Court should go into the
H legality of the relevant provisions in this behalf. As against that,
 MUNICIPAL COPRN. OF GREATER MUMBAI v. KOHINOOR CTNL 1139
  INFRASTRUCTURE COMPANY PVT LTD. [H.L GOKHALE, J]

examination of the other two issues was taken up for the reason      A
that the development plan for the city of Mumbai is going to be
revised shortly, and certain suggestions in that behalf could be
made. Issue no. (2). arising out of exemptions to the high-rise
buildings under DCR 33(7),(8), (9) and issue no. (3) concerning
the impact on traffic, required a detailed deliberation. At this     B
point, it is relevant to mention that a similar approach has been
adopted by this Court in Municipal Corporation of Delhi Vs.
Association of victims of Uphaar Tragedy & Ors. reported in
AIR 2012 SC 100. That case concerned the compensation to
be paid to the victims of the fire in the 'Upahaar' theatre at       c
Delhi. This Court decided the issue of compensation in
paragraph 38 of tha judgment. However, the Court could not
ignore that the fire had resulted into the death of 59 persons
and injury to 103 persons, and therefore, this Court observed
in paragraph 39 of the said judgment:-
                                                                     0
     "39. Normally we would have let the matter rest there. But
     having regard to the special facts and circumstances of
     the case we propose to proceed a step further to do
     complete justice."
                                                                     E
     And then, the Court made a number of suggestions in-
paragraph 45 of its judgment to the Government for its
consideration and implementation. Similarly, although a
settlement is arrived at, on the controversy between the parties
before the Court, considering the acute problems in the city of      F
Mumbai with respect to shortage of recreational space, the fire
hazards and high density of traffic, a further deliberation on the
above referred four issues was felt necessary.

     14. Thereafter, the matter has been heard by the present
Bench. Consequent upon the above order, the necessary                G
affidavits were filed by the officers o~ the appellant as well as
the State of Maharashtra. A number of interveners have also
assisted the Court. The interveners include (i) The Urban
Design Research Institute ('UDRI' for short) & Ors., (ii)
 Maharashtra Chamber of Housing Industry, (iii) Practicing           H
    1140     SUPREME COURT REPCJRTS                [2013] 16 S.C.R.


A Engineers Architects and Town Planners Association (India)
  and (iv) Property Redevelopers Association. They have all
  assisted in the examination of these four issues. We will deal
  with their submissions in the context of the Maharashtra
  Regional and Town Planning Act, 1966 (the 'MRTP' Act for
B short), and the Development Control Regulations for Greater
  Mumbai, 1991, framed thereunder which govern these issues.

        Issue no.1 concerning the reduction in the minimum
        recreational space from the one as required under
        OCR 23:-
c
       15. The Development Control Regulations are referable to
  Section 22(m) of the MRTP Act. Section 21 of the said Act
  requires the planning authority, i.e. the local authority (appellant
  no. 1 in the instant case) to prepare a development plan for the
D local area within its jurisdiction. Section 22 of the Act lays down
  what should be the contents of a development plan, and in that
  behalf it prov.ides under sub-section (m) that it shall contain
  amongst others:-

        "(m) provision for permission to be granted for controlling
E
        and regulating the use and development of land within
        'he jurisdiction of a local authority ..... "

      The present DCR's for Greater Mumbai, 1991 were
  sanctioned by the State of Maharashtra on 20.2.1991 and are
F enforced from 25.3.1991. The new DCR's are shortly to be
  formulated for the next twenty years.

        The OCR 23 on recreational I amenity open spaces:-

       16. The OCR 23 with which we are concerned in the first
G issue reads as follows:-

         "23. Recreational/Amenity Open Spaces:-

         (1) Open spaces in residential and commercial layouts-
H
MUNICIPAL COPRN. OF GREATER MUMBAI v. KOHINOOR CTNL 1141
 INFRASTRUCTURE COMPANY PVT. LTD. [H.L. GOKHALE, J.]

   (a) Extent:-ln any layout or sub-division of vacant land     A
   in a residential and commercial zone, open spaces shall
   be provided as under:

   (i) Area from 1001 sq.m. to 2500 sq.m. 15 per cent

   (ii) Areas from 2501 sq.m. to 10000 sq.m. 20 per cent        B

   (iii) Area above 10000 sq.m. 25 per cent.

   These open spaces shall be exclusive of areas of
   accesses/internal roads/designations or reservations,        c
   development plan roads and areas for road-widening and
   shall as far as possible be provided in one place. Where,
   however, the area of the layout or sub-division is more
   than 5000 sq.m., open spaces may be provided in more
   than one place, but at least one such places shall be not
   less than 1000 sq.m. in size. Such recreational spaces       D
   will not be necessary in the case of land used for
   educational institutions with attached independent
   playgrounds. Admissibility of FSI shall be as indicated
   in Regulation 35.                              ·
                                                                E
   (b) Minimum area:-No such recreational space shall
   measure less than 125 sq.m.

   (c) Minimum dimensions:-The minimum dimension of
  ·such recreational space shall not be less than 7.5 m., and
                                                                F
   if the average width of such recreational space is less
   than 16.6 m., the length thereof shall not exceed 2'12
   times the average width.

   (d) Access:-Every plot meant for a recreational open
   space shall have an independent means of access,             G
   unless it is approachable directly from every building in
   the layout. .

   (e) Ownership:-The ownership of such recreational
   space shall vest, by provision in a deed of conveyance,      H
    1142   SUPREME COURT REPORTS                [2013] 16 S.C.R.

A      in all the property owners on account, of whose holdings
       the recreational space is assigned.

       (f) Tree growth:-Excepting for the area covered by the
       structures permissible under (g) below, the recreational
       space shall be kept permanently open to the sky and
B
       accessible to all owners and occupants as a garden or a
       playground etc. and trees shall be grown as under:-

       (a) at the rate of 5 trees per 100 sq.m. or part thereof of
       the said recreational space to be grown within the entire
c      plot.

       (b} at the rate of I tree per 80 sq.m. or part thereof to be
       grown in a plot for which a sub-division or layout is not
       necessary.
D      (g) Structures/uses permitted in recreational open
       spaces:-

       (i) In a recreational open space exceeding 400 sq.m. in
       area ( in one piece), elevated/underground water
E      reservoirs, electric substations, pump houses may be
       built and shall not utilise more than 10 per cent of the
       open space in which they are located.

       (ii) In a recreational open space or playground of 1000
       sq.m. or more in area (in one piece and in one place},
F
       structures for pavilions, gymnasia, club houses and other
       structures for the purpose of sports and recreation
       activities may be permitted with built-up area not
       exceeding 15 per cent of the total recreational open
       spaces in one place. The area of the plinth of such a
G      structure shall be restricted to 10 per cent of the areas of
       the total recreational open space. The height of any such
       structure which may be single storey shall not exceed 8
       m. A swimming pool may also be permitted in such a
       recreational open space and shall be free of FSI.
H
MUNICIPAL COPRN. OF GREATER MUMBAI v. KOHINOOR CTNL 1143
 INFRASTRUCTURE COMPANY PVT LTD. [HL GOKHALE, J.]

   Structures for such sports and recreation activities shall   A
   conform to the following requirements:-

   ( a) The ownership of such structures and other
   appurtenant users shall vest, by provision in a deed of
   conveyance, in all the owners on account of whose            B
   cumulative holdings the recreational open space is
   required to be kept as recreational open space or ground,
   viz. 'R. G.' in the layout or sub-division of the land.

   (b) The proposal for construction of such structure should
 · come as a proposal from the owner/owners/society!            C
   societies or federation of societies without any profit
   motive and shall be meant for the beneficial use of the
   owner/owners/members of such society I societies I
   federation of societies.
                                                                D
   (c) Such structures shall not be used for any other
   purpose, except for recreational activities, for which a
   security deposit as decided by the Commissioner will
   have to be paid to the Corporation.

   (d) The remaining area of the recreational open space        E
   or piayground sha-11 be kept open to sky and properly
   accessible to all members as a place of recreation,
   garden or a playground.

   (e) The owner/owners/or society/or societies or federation   F
   of societies shall submit to the Commissioner a
   registered undertaking agreeing to the conditions in (a)
   to (d) above.

   (2) Open spaces in industrial plots/layouts of industrial    G
   plots:-

   (a) In any industrial plot admeasuring 10,000 sq.m. or
   more in area, 10 per cent of the total area shall be
   provided as an amenity open space subject to a
   maximum of 2500 sq.m., and                                   H
    1144    SUPREME COURT REPORTS                [2013] 16 S.C.R.


A       (i) such open space shall have proper means of access
        and shall be so located that it can be conveniently utilised
        by the person working in the industry;

        (ii) the parking and loading and unloading spaces as
        required under these Regulations shall be clearly shown
B
        on the plans;

        (iii) such open spaces shall be kept permanently open
        to sky and accessible to all the owners and occupants
        and trees shall be grown therein at the rate of 5 trees for
c       every 100 sq.m. of the said open space to be grown within
        the entire plot or at the rate of 1 tree for every 80 sq.m.
        to be grown in a plot for which a sub-division or layout is
        not necessary.

0       (b) In case of sub-division of land admeasuring 8000
        sq.m. or more in area in an industrial zone, 5 per cent of
        the total area in addition to 10 per cent in (a) above shall
        be reserved as amenity open space, which shall also
        serve as general parking space When the additional
        amenity open space exceeds 1500 sq.m. the excess
E
        area may be used for construction of buildings for banks,
        canteens, welfare centers, offices, creches and other
        common purposes considered neces$ary for industrial
        users as approved by the Commissioner."

F       The provision regarding the podium:-

        17. As has been noted in paragraph 13 of the order dated
  25.7.2013, the appellants did not look into the issue of reduction
  in recreational area at the ground level very seriously, probably
G because the rule permits recreational space on the podium.
  Some of the interveners very seriously canvassed that in view
  of the provision concerning recreational space on the podium,
  the recreational I amenity open space at the ground level could
  legitimately be reduced. The provision regarding the podium
H is seen in OCR No. 38 (34). OCR 38 lays down the
 MUNICIPAL COPRN. OF GREATER MUMBAI v. KOHINOOR CTNL 1145
  INFRASTRUCTURE COMPANY PVT. LTD. [HL GOKHALE, J.]

requirements concerning parts of buildings. OCR 38 (34) reads     A
as follows:-

    "(34) Podium.

    (i) A podium may be permitted on plot admeasuring
    1500 sq.mt. or more.                                          B

    (ii) The podium provided with ramp may be permitted in
    one or more level, total height not exceeding 24 m. above
    ground level.

    However, podium not provided with ramp but provided with
                                                                  c
    two car lifts may be permitted in one or more level, total
    height not exceeding 9 mt. above ground level.

    (iii) The podium shall be used for the parking of vehicles.
                                                                  D
    (iv) The recreational space prescribed in D. C. Regulation
    23 may be provided either at ground level or on open to
    sky podium.

    (v) Podium shall not be permitted in required front open
                                                                  E
    space.

    (vi) Such podium may be extended beyond the building
    line in consonance with provision of D. C. Regulation
    43(1) on one side whereas on other side and rear side it
    shall be not less that 1.5m. from the plot boundary.          F

    (vii) Ramps may be provided in accordance with D. C.
    Regulation 38(18).

    (viii) Adequate area for Drivers rest rooms and sanitary
    block may be permitted on podiums by counting in FSI."        G

    18. As far as the issue no. 1 is concerned, this Court had
sought the affidavit from the Chief Engineer, Town Planning of
the appellant-Municipal Corporation, and from the Secretary,
Urban Development Department of the State of Maharashtra.         H
    1146    SUPREME COURT REPORTS                  [2013] 16 S.C.R.


A   Shri Manu Kumar Srivastava, Principal Secretary to the
    Government of Maharashtra in the Urban Development
    Department has filed an affidavit affirmed on 6.9.2013. In para
    4.4 he has stated as follows:-

        "4.4) I submit that in quite a few cases, the requirements
B
        of captive parking for the building can be met only by
        providing the same in basement or on upper parking
        floors or podium, which in turn requires provision of
        access I ramps etc., which often makes it difficult to
        provide· the required Recreational I Amenity open spaces
c       on the ground ...... "

       Thereafter, he has stated that it is to overcome this difficulty
  that the DCRs have been amended with effect from 6.1.2012
  to allow recreational spaces on podium in plots admeasuring
D 1500 sq. mts. or more. In his affidavit he has pointed out that
  in the redevelopment projects under OCR 33(7) for
  reconstruction of cessed buildings, and for the urban renewal
  schemes under OCR 33(9), and for the slum rehabilitation
  projects under OCR 33(10), it is permissible to reduce the
E Recreational I Amenity o·pen spaces to the limit prescribed in
  the respective regulations. He has stated that this has been
  done consciously to facilitate these schemes.

        19. On behalf of the appellant-Municipal Corporation Shri
  Rajeev Kuknur, Chief Engineer (Development Plan) has
F affirmed his reply on 6.9.2013. In paragraph 6, thereof, he has
  also stated that the provision for parking on podium has been
  made to facilitate the requirement of parking. He has, however,
  added "in such situation it may not be possible for the planner
  to provide the entire Recreational/Amenity space on the
G ground". Later in paragraph 7, he has pointed out that in certain
  other situations the amenity open spaces are permitted to be
  reduced. Thus, under OCR 33(1) read with Clause 6.20 of
  Appendix IV which applies to the redevelopment schemes for
  slums, the amenity space can be reduced, but still a minimum
H
 MUNICIPAL COPRN. OF GREATER MUMBAI v. KOHINOOR CTNL 114 7
  INFRASTRUCTURE COMPANY PVT. LTD. [H.L GOKHALE, J.]

of 8% of the amenity space shall be maintained. Clause 8 of            A
Appendix Ill applies the same provision to the reconstruction I
redevelopment of cessed buildings under OCR 33(7). As
regards the development under DCR 33 (9), clause 12.14 of
Appendix lllA concerning OCR 33(9), states that, "Even iUhe
recreational open space is reduced to make the project viable,         B
a minimum of at least 10 percent of plot area shall be provided
as recreational open space. In addition to this, 10 percent of
plot area shall be earmarked for amenity space which can be
adjus~ed against the DP reservation, if any".

      20. It was canvassed on behalf of Maharashtra Chamber            C
of Housing Industry by Mr. S. Ganesh, learned Senior Counsel
that OCR 38 (34) clearly provides under clause (iv) thereof, that
the recreational space prescribed in DCR 23 may be provided
at the ground level or on open to sky podium. In his view, this
will enable the developers to provide more parking spaces              D
within the plots concerned since now-a- days, there is a
demand for even two parking spaces per flat. He submitted
that, in fact, this will give a large continuous open space on the
podium and in view thereof the Recreational I Amenity space
need not be at the ground level. He submitted that even trees          E
would be planted on the podium, and movements on the podium
will be safer for elderly people as well as for the children. The
areas for parking and recreation on the podium can be
separately ear-marked for that purpose. A few photographs of
such arrangements were also brought to our notice. He                  F
submitted fhat in view of the necessity of having more
accommodation and more parking spaces that this provision
has been made, and it should be interpreted accordingly.

     21. It is very relevant to note that although Mr. F.S. Nariman,   G
learned senior counsel appeared for the respondents-
Kohinoor,, he stated that after the order was passed by this
Court on 25.7.2013, he was appearing to assist the Court on
the four issues framed in Part-II of that order as amicus-curie.
He pointed out that sub-clause (iv) of OCR 38(34) lays down
                                                                       H
    1148     SUPREME COURT REPORTS                 [2013] 16 S.C.R.


A that the recreational space 'may be provided' either at ttie
  ground level or on open to sky podium. As against that the
  Recreational I Amenity open space contemplated under OCR
  23 was mandatory. Sub-clause (1) (a) of OCR 23 speaks of
  'vacant land' and the open spaces as far as possible 'shall be
s provided' at one place. He, therefore, submitted that whereas
  the provision under OCR 23 is mandatory, the one under OCR
  38(34) is discretionary, and it cannot prevail over OCR 23.

        22. Similarly, though learned Senior Counsel Mr. Harish
C N Salve, appeared for the Municipal Corporation, until the
  passing of the order dated 25.7.2013, as far as the issue of
  recreational spaces on podium is concerned, he submitted a
  separate note to assist the Court. He pointed out that as clause
  (iii) of the OCR 38(34) states, the podium shall be used for
  parking of vehicles. Clause (iv) gives a further option to provide
0 recreational space on the podium, but it links this recreational
  space on the podium to the recreational space prescribed in
  OCR 23, by stating that the recreational space under OCR 23,
  may be provided at the ground level, or on the open-to-sky
  podium. In his submission, if read as an alt~rnative to the
E minimum recreational space on the ground floor, this provision
  will lead to the serious erosion of recreational space at the
  ground level, affecting the minimum necessities of life, and will
  therefore lead to violation of the right to life, and will have to be
  held as bad in law, as against the guarantee provided under
F Article 21 of the Constitution of India. As against that in his
  submission clause (iv) can survive only if this clause is read
  down as inapplicable and not excluding the recreational space
  provided under OCR 23. In other words, it makes an additional
  provision for recreational space, over and above the one at the
G ground level, and does not in any way reduce the same. This
  is because the podium is basically meant to provide parking,
  as stated in clause (iii). Any recreational space provided on the
  podium is entirely discretionary, and that being so it cannot be
  read to lead to a reduction in the mandatory provision under
H Clause (iii).
 MUNICIPAL COPRN. OF GREATER MUMBAI v. KOHINOOR CTNL 1149
  INFRASTRUCTURE COMPANY PVT LTD. [H.L. GOKHALE, J.]

     23. The UDRI was represented by learned Senior Counsel           A
Mr. Shyam Divan. He pointed out that OCR 23 providing for
recreational space at the ground level existed since the
inception of OCR in 1991, and even prior thereto since 1967.
It was always contemplated that the recreational space will be
at the ground level, and not at an elevated level within buildings.   B
This is clear from the provision with respect to the trees and
playgrounds contained in OCR 23. Besides, he pointed out that
clause (iii) of OCR 38(34) clearly provides that 'podium shall
be used for the parking of vehicles', meaning thereby that it is
essentially to be used for parking purposes. That apart, he           c
submitted that there is clearly a risk involved in providing both
parking as well as recreational space on the podium. OCR 38
(34) (iv) has been introduced by way of an amendment only
from 6.1.2012, and it does not contain a non-obstante clause
that the provision is notwithstanding the mandatory requirement
                                                                      0
under OCR 23. It cannot, therefore, be read in derogation of
the main provision under OCR 23.

     24. Mr. Divan then brought to our notice the harsh reality
of the open spaces becoming smaller and smaller in the city
of Mumbai.. He placed the following hard statistics for our·          E
consideration. Greater Mumbai has just 1.91 sq. mts. of open
space per person. Of this, less than 0.88 sq. mts. per person
is accessible for recreational purpose. This is woefully
inadequate as compared to the norms of 3 sq. mts. per capita
as prescribed by the National Building Code of India 2005 and         F
of 11 sq. mts. per capita recommended by the Urban
Development Plans Formulation and Implementation Guidelines
(1996) of the Ministry of Urban Affairs, Government of India. He
pointed out that pouring of too much of cement and concrete
is not conducive to good human living, and will ultimately affect     G
meaningful 'life' within the meaning of Article·21 of the
Constitution. Recreational spaces are intended to ensure that
there are green "breathing spaces" between buildings and
 properties in the built-up environment. . Trees and the land
 around them at the ground level are necessary for controlling        H
    1150    SUPREME COURT REPORTS                (2013] 16 S.O.R.

A the air pollution from the point of view of health of human beings
  as well. The shifting of recreational space from the ground to
  podiums will result in higher level of concretization, diminishing
  green cover, and buildings being too close to each other,
  leading to increased city temperature
B
        25. Having noted these submissions, it is seen that podium
  is permissible only on plots admeasuring 1500 sq. mts. or
  more. So this provision is not applicable to plots smaller than
  1500 sq. mts. As can be seen from OCR 23 (1) (a), it speaks
  of a lay-out or sub-division of 'vacant land' and open spaces.
C The open spaces 'shall as far as possible' be provided in one
  place. If a lay-out or sub-division is more than 5000 sq. mts.,
  open space can be provided in more than one place, but at
  least one such place 'shall be of not less than 1000 sq. mts.'.
  These provisions clearly show that they are mandatory. Besides
D under sub-clause (f) of DC~ 23 there is a requirement of
  keeping the recreational open space permanently open to the
  sky and trees are to be grown in that space as laid down, i.e.
  five trees per hundred square meters of the recreational space
  within the plot. OCR 2 (64) defines 'open space' to mean an
E area forming an integral part of a site left open to the sky. A
  'site' is defined under OCR 2 (83) to mean a parcel or piece
  of land enclosed by definite boundaries. These DCR's when
  read together, very much mak'e it clear that the recreational I
  amenity space has to be on the land i.e. on ground level and it
F has got to be 15%, 20% or 25% of the area depending upon
  its size. As ~ightly pointed out by learned senior counsel Mr.
  Nariman and Mr. Salve, the requirement of recreational space
  on the podium under OCR 38 (34) (iv) is discretionary. Besides,
  as the above referred clause (iii) lays down, podium shall be
G basically used for parking. Besides Clause (iv) does not
  contain a non-obstante clause to over-ride the requirement
  under OCR 23 making it mandatory to provide recreational
  space on the ground.:floor. That being so, the provision under
  OCR 38 (34) cannot be read in derogation of the requirement
H under OCR 23 or else it will .result into serious erosion in the
  MUNICIPAL COPRN. OF GREATER MUMBAI v. KOHINOORCTNL 11 51
   INFRASTRUCTURE COMPANY PVT. LTD. [H.L. GOKHALE, J.]

basic requirements for a good life affecting the guarantee of . A
right to life, under Article 21 of the Constitution of India. We have
therefore to read down clause (iv) of the OCR 38(34) as
inapplicable and not excluding the mandatory provision under
OCR 23.
                                                                       B
       26. It is also relevant to note that the development schemes
  under DC Rs 33(7), 33(9) and 33(10) provide for lesser
  Recreational area I Amenity spaces. Thus, under OCR 33(7)
  and 33(10) reduction in the Amenity open space is permitted
  to make the project viable, but still minimum 8 percent of the
  project area is required to be maintained as Amenity open            c
  space. Similarly, for the schemes under OCR 33(9) minimum
  10 percent of the plot area is required to be retained as
  Recreational space. In other properties, where there are no
  such constraints to make the development schemes of
· rehabilitation or reconstruction of old buildings or slums viable,   D
  there is no reason why the Amenity open space at the ground
  level should be read as permissible, to be reduced. The only
  ground being given is to provide more parking and more
  accommodation, meaning thereby more construction,
  concretization and financial expediency. Such a purpose cannot       E
  be read into the provisions as they presently exist, nor is it
  desirable to do so from the point of view of the requirement of
  minimum open spaces at the ground level.

      27. Besides, as pointed out by Mr. Divan, the reQuirement        F
 of having trees and open land around them is necessary from
·an environmental point of. view, since there is already excessive
 concretization, and a very serious reduction in open spaces at
 the ground level. It must be noted that the right to a clean and
 healthy environment is within the ambit of Article 21, as has         G
 been noted in Court on its Own Motion v. Union of India
 reported in 2012 (12) SCALE 307 in the following words:-

      "The scheme under- the Indian Constitution
      unambiguously enshrines in itself the right of a citizen to
      life under Article 21 of the Constitution. The right to life     H
    1152     SUPREME COURT REPORTS                [2013] 16 S.C.R.


A       is a right to live with dignity, safety and in a clean
        environment."

       The right to a clean and pollution free environment, is also
  a right under our common-law jurisprudence, as has been held
  by this Court in Ve/lore Citizen's Welfare Forum v. Union of
8
  India and Ors reported in (1996)5SCC647 where this Court
  held:-

        "The Constitutional and statutory provisions protect a
        per$ons right to fresh qir, clean water and pollution free
C       environment, but the source of the right is the inalienable
        common law right. of a clean environment."

       In the same judgment the Court emphasized the
  importance of Sustainable Development, and the rieed for a
0 balance between development and ecological considerations,
  in the following words:-

        "The traditional concept that. development and ecology
        are opposed to each other, is no longer acceptable ....

E       'Sustainable Development' is the answer... Sustainable
        Development as defined by the Brundtland Report
        means "development that meets the needs of the present
        without compromising the ability of the future generations
        to meet their own needs". We have no hesitation in
F       holding that "Sustainable Development' as a balancing
        concept between ecology and development has been
        accepted as a part of the Customary International Law
        though its salient features have yet to be finalised by the
        International Law jurists."
G        28. Therefore, after reflecting upon the legal position, we
    are clearly of the opinion that having 15%, 20% or 25% of the
    area (depending upon the size of the lay-out) as the
    recreational/amenity area at the ground level is a minimum
    requirement, and it will have to be read as such. We therefore,
H
 MUNICIPALCOPRN. OF GREATER MUMBAI v. KOHINOOR CTNL 1153
  INFRASTRUCTURE COMPANY PVT. LTD. [HL GOKHALE, J.] .

answer the issue no. 1 by holding that it is not permissible to    A
reduce the minimum recreational area provided under OCR 23
by relying upon OCR 38(34). However, if the developers wish
to provide recreaijonal area on the podium, over and above the
minimum area m~ndated by OCR 23 at the ground level, they
can certainly provi'de such additional recreational area.          B
    Issue No.4 with respect to the protection against the
    fire hazards:-

     29. As stated earlier, this issue was decided to be gone
into considering that the main building in the present complex C
is going to be of 48 storeys. This issue was decided to be gone
into also in the backdrop of the recent fire that er:igulfed the six
storey Secretariat building of Maharashtra, in Mumbai. It took
a few days to extinguish the fire which resulted into a loss of
lives. This Court sought the affidavit of the Chief Fire Officer of· o
the appellant-Municipal Corporation on this issue. Shri Suhas
Vishnu Joshi, Chief Fire Officer, Mumbai Fire Brigade, has
affirmed his reply on 15.9.2013. In paragraph 3 of his affidavit,
he has stated that the Fire Brigade of the appellant-Municipal
Corporation has got special appliances such as Aerial Ladder E
Platform which can reach up to the height of 70 meters, and
the department is in the process of procuring special
appliances which can reach up to the height of 90 meters. In
paragraph 4, he has accepted that in high-rise buildings above
90 meters, the fire-fighting operations cannot be carried out
                                                                     F
from outside the building alone. They are also to be fought from
inside the building with the help of fire safety and protection
measures I installations provided in the high-rise buildings as
per the building by-laws. He has pointed out the passive safety
measures as well as active fire safety measures necessary for
the high-rise buildings in his affidavit. Amongst the fire safety G
 measures, he has pointed out that the width of the access road
 and the open space for maneuverability of fire appliances has
 to be adequate.

                                                                    H
    1154     SUPREME COURT REPORTS                    [2013] 16 S.C.R.


A       30. It is also pointed out in this affidavit that there is a State
  Act known as Maharashtra Fire Prevention and Life Safety
  Measures Act, 2006 under which the developers I society in-
  charge of the building have to maintain the fire prevention and
  life safety measures in good repair and efficient condition at
8 all times. In paragraph 7 of his affidavit he has stated that for
  any high-rise and special type building, No Objection Certificate
  from the Chief Fire Officer is required at two stages viz. prior
  to the construction of the building and after the compliance of
  the requirement. Besides, for buildings having a height above
C 70 meters, there is a High Rise Technical Committee under the
  Chairmanship of a retired Hon'ble High Court Judge with other
  experts and the proposal for high rise buildings has to be
  cleared by this committee.

       31. As far as the maneuverability of the fire appliances is
0 concerned, fire protection requirements under OCR 43 become
  relevant. This OCR 43 is split in two parts (1) General and (2)
  Exits for every building. It reads as follows:-

         "43. Fire Protection Requirements:-
E        (1) General:-Th.e planning design and construction of
         any building shall be such as to ensure safety from fire.
         For thi s purpose, unless otherwise specified in these
         Regulations, the provisions of Part-IV; Fire Protection
         Chapter. National Building Code shall apply. For multi-
F        storeyed, high rise and special buildings, additional
         provisions relating to fire protection contained in
         Appendix VIII shall also apply-

         (A) For proposal under regulations 33(7) and 33(10), in
G        case of rehabilitation/composite buildings on plots
         exceeding 600 sq. mts. and having height more than 24
         m. at least, one side other than road side shall have
         clear open space of 6 m. at ground level, accessible from
         road side.
H
MUNICIPAL COPRN. OF GREATER MUMBAI v. KOHINOOR CTNL 1155
 INFRASTRUCTURE COMPANY PVT. LTD. [H.L. GOKHALE, J.]

  Provided, if the building abuts another road of 6 m. or    A
  more this condition shall not be insisted.

  Provided further that in case of redevelopment proposals
  under OCR 33(7), for plot size upto 600 sq. mt., 1.5 mts
  open space will be deemed to be adequate.                  B
  (B) For the proposals other than (A) above

  (a) Building having height more than 24 m. upto 70 m.
  at least one side, accessible from road side, shall have
  clear open space of 9 m. at ground level.                  c
  Provided however, if podium is proposed it shall not
  extend 3 m. beyond building so as to have clear open
  space of 6m. beyond podium.

  Provided further, where podium is accessible, to fire      D
  appliances by a ramp, then above restriction shall not
  apply.

  (b) Buildings having height more than 70 m. at least two
  sides accessible from road side, shall have clear open     E
  space of 9m. at ground level.

  Provided however ramps if podium is proposed it shall
  not-extend 3m. beyond building line so as tp have clear
  open space 6m. beyond podium. No ramps for the
  podium shall be provided in these side open spaces.        F

  Provided further, where podium is accessible to fire
  appliances by a ramp then above restriction shall not
  applx,.
                                                             G
  (c) Courtyard/ramp podium accessible to fire appliances
  shall be capable of taking the load upto 48' tonnes.

  (d) These open spaces shall be free from any obstruction
  and shall be motorable.
                                                             H
    1156   SUPREME COURT REPORTS                   [2013] 16 S.C.R.


A      (2) Exi(s:-Every building meant for human occupancy
       shall be provided with exits sufficient to permit safe
       escape of its occupants in case of fire or other emergency
       for which the exits shall conform to the followings :-

       (i) Types:-Exits should be horizontal or vertical. A
B
       horizontal exit may be a door-way, a corridor, a passage-
       way to an internal or external stairway or to an adjoining
       building, a ramp, a verandah, or a terrace which has
       access to the street or to the roof of a building. A vertical
       exit may be a staircase or a ramp, but not a lift.
c
       (ii) General requirements.-Exits from all ,the parfs of the
       building, except those not accessible for general public
       use, shall-

D      (a) provide continuous egress to the exterior of the
       building or to an exterior open space leading to the street:

       (b) be so arranged that, except in a residential building,
       they can be reached without having to cross another
       occupied unit; .
E
       (c) be free of obstruction;

       {d) be adequately illuminated;

       (e) be clearly visible, with the routes reaching them clearly
F      marked and signs posted to guide any person to the floor
       concerned;

       (f) be fitted, if necessary, with fire fighting equipment
       suitably located but not as to obstruct the passage,
G      clearly marked and with its location clearly indicated on
       both sfdes of the exit way;

       (g) be fitted with a fire alarm device, if it is either a multi-
       storeyed, high-use or a special building so as to ensure
       its prompt evacuation;
H
MUNICIPAL COPRN. OF GREATER MUMBAI v. KOHINOOR CTNL 1157
 INFRASTRUCTURE COMPANY PVT. LTD. [H.L. GOKHALE, J.]

    (h) remain unaffected by any alteration of any part of the     A
    building so far as their number, width, capacity and
    protection thereof is concerned;

    (i) be so located that the travel distance on the floor does
    not exceed the following limits :-
                                                                   B
    (i) Residential, educational, institutional and hazardous
    occupancies: 22.5 m

    (ii) Assembly, business, mercantile, industrial and
    storage buildings: 30 m.                                       c
    Note:- The travel distance to an exit from the dead end
    of a corridor shall not exceed half the distance specified
    above. When more than one exit is required on a floor,
    the exits shall be as remote from each other as possible:
                                                                   D
    Provided that subject to the provision under D. C. ·
    Regulation 44(5) (a) for all multi-storeyed high rise and
    special buildings, a minimum of two enclosed ty1'e
    staircases shall be provided, at least one of them
    opening directly to the exterior to an interior, open space E
    or to any open place of safety.

    (iii) Number ang width of Exits:-The width of an exit,
    stairway/corridor and exit door to be provided at each
    floor in occupancies of various types shall be as shown
    in columns 3 and 5 of Table 21 hereunder. Their number         F
    shall be calculated by applying to every 100 sq.m. of the
    plinth or covered area of the occupancy, the relevant
    multiplier in columns 4 and 6 of the said Table, fractions
    being rounded off upward to the nearest whole number."
                                                                   G
     32. Now, what is seen here is that under Clause 1 (8) of
OCR 43, for buildings having heights of more than 24 meters
up to 70 meters, at least one side accessible from road side
shall have clear open space of 9 meters at ground level. For
buildinQs which have a height of more 70 meters, at least two      H
    1158    SUPREME COURT REPORTS               [2013] 16 S.C.R.

A sides accessible from road sides, shall have a clear open
  space of 9 meters at ground level. In both these cases where
  podium is proposed, it shall not extend 3 meters beyond the
  building line so as to leave clear open space of 6 meters
  beyond podium. Similarly Clause 1 (A) lays down that in case
B of the proposals under OCR 33(7) (which are for the cessed
  building) and those under 33(10) (which are for the slum
  rehabilitation), if the plot of the building exceeds 600 sq: mts.
  and the building is having height of more than 24 meters, at
  least one side other than the road side shall have a clear open
C space of 6 meters at ground level accessible from the road
  side. The first proviso to Clause 1 (A) makes an exception if
  the building abuts another road of 6 meters or more. In that case
  this condition is not insisted. Thus, as can be seen, a minimum
  access of 6 meters to every building from two sides is insisted,
  i.e. from a road side and from one side within the property, or
O from two road sides so that the fire eng.ine can approach the
  building at least from two sides. The second proviso under
                                         •
  Clause 1 (A) however states that if the redevelopment proposal
  is under OCR 33(7) i.e. for reconstruction or redevelopment of
  cessed buildings on plots of size upto 600 sq. mts., only 1.5
E meters side open space will be deemed to be adequate. This
  will mean a space of just about 5 feet or so, through which a
  fire engine can certainly not enter.

       33. We asked Mr. R.P. Bhatt, learned Senior Counsel
F appearing for the Municipal Corporation as to what would be
  the height of these buildings on plots upto 600 sq. mts., and
  his answer was that it will depend on the number of flats for the
  families to be accommodated in such buildings, and it may as
  well go up to 20 floors. Mr. Ganesh, learned Senior Counsel
G appearing for the Maharashtra Chamber of Housing Industry
  defended the existing provision on the ground of economic
  viability of such projects, and submitted that for such projects
  under OCR 33(7), the side space inside the property will have
  to be reduced on that count. He submitted that some of these
H plots are very small and are in congested areas, and that these
     MUNICIPAL COPRN. OF GREATER MUMBAI v. KOHINOOR CTNL 1159
      INFRASTRUCTURE COMPANY PVT. LTD. [H.L. GOKHALE, J.]

    redevelopment schemes are carried out by privafe developers.           A
    Additional construction is required to be carried out to provide
    minimum accommodation to the existing occupants as well as
    for the newly entering occupants who pay higher amounts to buy
    the additional flats. He referred to and relied upon a judgment
    of a bench of two judges of this Court in Jayant Achyut Sathe          B
    Vs. Joseph Bain D'souza & Ors. reported in 2008 (13) SCC
    547 wherein the challenge to the 1.5 m. open space (i.e. about
    5 feet) in the schemes under DCR 33 (7) came to be rejected.

         34. (i) On the other hand, Mr. Nariman pointed out that
    although the ladders I snorkels which the fire department are          C
    supposed to go up to the height of 70. meters, the maximum
    reach of the snorkel depends on various-factors such as wind
    velocity, availability of spa~e. and tilt and angle of the approach.
    Thus, the reach is always less than the theoretical maximum
    height. Besides, there are 33 Fire Brigade Stations in GrE3ater        D
    Mumbai, 15 in the city, 12 in Western Suburbs and 6 in Eastern
    Suburbs. None of these stations have sufficient equipments
    (snorkels) in their stations since they are in limited numbers.

          (ii) It was also pointed out by Mr. Nariman that as far as       E
    the internal arrangement in the multi-storey buildings is
    concerned, a refuge floor is required to be provided above
    every 7 floors for buildings crossing the height of 24 meters.
    However, these refuge floors are very often not properly
    maintained, are not kept vacant, and are used for other                F
'   purposes. The' consequence is that the effectiveness of'the fire
    protection from within the building remains in peril. He further
    pointed out that the Fire Brigade is supposed to check
    installations such as sprinklers and other fire-fighting
    equipments as provided under Appendix VIII inside the                  G
    buildings periodically, but the department is understandably
    over-worked, and therefore not in a position to effectively cover
    all the buildings in the city.

         35. Mr. Shyam Divan, learned Senior Counsel appearing
                                                                           H
    1160     SUPREME COURT REPORTS                 [2013] 16 S.C.R.


A   for the UDRI pointed out that the present fire protection
    requirements contained in OCR 43(1) if strictly complied with,
    could be considered as adequate for mid-rise buildings and
    structures up to 13 storeys. However, when it comes to the high-
    rise buildings, the fire safety requirements are primarily
B   compromised by relaxation in the access under OCR 17 and
    the side open I setback spaces between the buildings under
    OCR 28. He submitted that the provision contained in the
    second proviso of OCR 43(1 )(A) could not be justified.

C         36. As far as the schemes under OCR 33(7) are
    concerned, Mr. Shyam, Divan, learned Senior Counsel
    appearing for the UDRI htis  I
                                   pointed out that there is already a
    criticism with respect to these schemes viz. that they are
    working more for the developers and for the private new
    entrants who buy the flats at higher costs, than for providing the
0
    accommodation to the existing occupants. The State
    Government is also raising its hands on the ground of financial
    difficulties to take up such schemes. Consequently, the inability
    of fire engines to go into such plots, and thereby permanently
    denying the occupants adequate fire protection is not the
E   concern of either of them. Protection of the environment and
    human life are constitutional mandates, and even if the
    developers and the public authorities choose to ignore these
    essentials, this Court cannot.

F       Adequate access for the fire-engines as an essential
        requirement:-

        37. Having noted the submissions of all the counsel in this
  behalf, what we find is that whereas the provisions for the mid-
G rise buildings up to 13 floors are somewhat adequate, those
  beyond are required to be strictly implemented from within as
  well. The provisions for the refuge floor and various
  requirements from within have to be strictly scrutinized and
  insisted upon. That apart the second proviso to OCR 43(1)(A)
  cannot stand scrutiny of minimum safety requirement. If the
H access of 6 meters is required from at least one side within
  MUNICIPAL COPRN. OF GREATER MUMBAI v. KOHINOOR CTNL        1161
   INFRASTRUCTURE COMPANY PVT. LTD. [H.L. GOKHALE, J.]

the property for the fire engine to enter and move inside, we         A
faiL'to see as to how in redevelopment proposals under DCR
33(7) where the plot size is up to 600 sq. mts., open space of
1.5 meters, can be said to be adequate. As fairly pointed out
by Mr. Bhatt, the buildings on such plots can also go up to 20
floors, depending upon the number of flats for the occupants          B
to be provided for. If that is so, it is necessary to have an open
space of the width of 6 meters within the property for the fire
engine to enter the property at least from one side which is so
provided for every other building.

      38. 1It is true that in Jayant Achyut Sathe (supra) the         C
challenge to the five feet open space in the schemes under
OCR 33(7), came to be rejected. However, as can be seen from
paragraph 49 of the judgment, it was principally rejected on the          \
ground that the challenge was hopelessly delayed since this
provision restricting the open spaces in these schemes had            0
been in existence since 1984. The question of fire engines not
being able to go inside such plots, was raised in the Bombay
High Court, but this Court has not gone into that aspect in the
said judgment. We are looking into the issue of the side space
on the backdrop of the failure of the fire brigade to quickly         E
extinguish the fire even in the six storeyed Secretariate building
in Mumbai, which has sufficient side spaces on all sides. Not
providing a minimum space of 6 meters which makes room for
the fire-engine to access the building amounts to violation of
the right to life and equality of the residents of these buildings,   F
by not providing the same standard of safety to them which is
available to residents of all other buildings. It is true that some
of these plots under the OCR 33(7) schemes are small plots
and are in congested areas. But if that is so, nothing prevents
the State Government from taking over such schemes for which          G
it can finance from the overall cess ~ollection. In such cases, it
may have to accommodate only the existing occupants. This
can also be achieved by calling upon such occupants to partly
contribute towards the construction cost. But human life cannot
be made to suffer only on the ground that in the redevelopment        H
    1162     SUPREME COURT REPORTS                 [2013] 16 S.C.R.


A   scheme sufficient access cannot be provided for the fire engine
    to enter within the plot even from one side.

          39. We are, therefore, of the view that the second proviso
    to OCR 43(1 )(A) is discrimirf'atory as against the occupants of
    the plots up to the size of 600 sq. mts. and therefore violative
8
    of Article 14 of the Constitution of India. The provision is likely
    to lead to a hazardous situation, affecting the life of the
  · occupants, and therefore violative of Article 21 of the
    Constitution. We, therefore, hold the provision to be bad in law.
    If the fire is to be extinguished at the earliest the fire-engine
C must be able to reach the spot of fire, without any delay.
    Maneuverability of the fire engine is, therefore, of utmost
    importance. As such, most of the city roads are very narrow.
    On top of that if there is no adequate space for the fire engine
    to enter the property, the situation will become worse. We are
0 clearly of the view that even for redevelopment proposals of
     plots up to the size of 600 sq. mts. under OCR 33(7), an open
     space of the width of 6 meters within the property which is
     accessible from the road on one side, will have to be
     maintained unless the building abuts roads of 6 meters or more
E on two sides, or another appropriate access of 6 meters to the
     building is available apart from the abutting road. This will 'be
     subject to the decision of the Chief Fire Officer in writing.
     Besides, we also feel that it is necessary to direct that the fire
     department must insist from the developer/society of all the
F buildings, to certify at least once in six months that the access
     to the building, the internal exits and the internal fire fighting
     arrangements are maintained as per the expectations under
     the OCR, the norms of the fire department, and must check
     them periodically, on its own.
G
           The decision on Issues no. 1 and 4 to apply
           prospectively:-

        40. Although, for the reasons stated above, we are of the
    view that the provision under OCR 38 (34) cannot be read in
H
 MUNICIPAL COPRN. OF GREATER MUMBAI v. KOHINOOR CTNL 1163
  INFRASTRUCTURE COMPANY PVf. LTD. [H.L. GOKHALE, J.]

derogation to the one under OCR 23 with respect to the              A
recreational area, and also that the second proviso to OCR 43
(1) {A) on fire protection requirements is hazardous a.nd
discriminatory against the occupants of the schemes under
OCR 33 (7), we do note the submission by the intervening
Practicing Engineers, Architects, and Town Planners                 B
Association that any such declaration/ changes be implemented
with prospective effect, namely, where the commencement
certificate (CC) has yet not been granted.

    Issue No.2 regarding height of the buildings vis-a-vis          C
    the width of the adjoining road, and Issue No.3 on
    the impact of additional FSI on the traffic situation:-

     41. As.far as the issues no.2 and 3 are concerned, though
they are, in a way, independent issues, they are inter-related
also, and therefore, we will deal with them together. These are     0
issues requiring wider consideration and consultation amongst
planners, and as far as these issues are concerned, this Court
will confine itself to making certain recommendations for
consideration of the planners. This is because this Court is
conscious of the fact that the new development plan for the city    E
of Mumbai is in the process of being.drafted. It is for the
planners to examine these issues. However, since these issues
have arisen in the context of the present matter, this Court has
invited the response from the appellant-Municipal Corporation
as well as the State Government. The concerned interveners          F
have also made their submissions. We shall look into the
submissions in this behalf and make certain suggestions for
consideration in the light thereof.

    Issue No. 2-Height of buildings, vis-a-vis width_of the         G
    roads:-
     42. OCR 31 (1) lays down that the height of a building shall
not exceed one and a half times the total of the width of the
street on which it abuts. Issue No. 2 is framed in the backdrop
of the fact that in the present case, a tower of the height of      H
    1164     SUPREME COURT REPORTS                 [2013] 16 S.C.R.


A 195.90 meters is being constructed. This tower is bounded by
  four roads and the height of the tower is disproportionately high,
  as against the width of the adjoining roads. The first proviso to
  OCR 31 (1) lays down that this restriction shall not be applicable
  for construction of buildings undertaken under OCR section
B 33(7), 33(8) and 33(9). Though, these OCR's are for the
  housing re-development schemes they also add to the
  population in the particular area as well as the vehicles. It is
  from this point of view that the question has been framed as to
  whether these exemptions are justified, valid or legal? OCR
c 31 (1) reads as follows:-
        "31. Height of Buildings

        (1) Height vis-a-vis the road width,.- The height of a
        building shall not exceed one and a half times the road
0       of the width of the street on which it abuts and the required
        front open space. The restrictions of height of the
        building spelt out in Regulation No. 31(1) shall however,
        cease to apply in case where the plot front on road having
        with more than 18. 00 mtrs. And where front marginal
E       open space of 12 mtrs. Minimum is observed, provided
        that open spaces on other sides are made available as
        required from the fire safety point of view. For this purpose,
        the width of the street may be the prescribed width of the
        street, provided the height of the building does not
F       exceed twice the sum of the width of the existing street
        and the width of the prescribed and required open space
        between the existing street and the building. The latter
        width shall be calculated by dividing the area of land
        between the street and the building by the length of the
        front face of the building.
G
         Explanations-

        (i)"Prescribed width" here means the width prescribed in
        the development plan or the width resulting from the
H       prescription of a regular line of the street under the
  MUNICIPAL COPRN. OF GREATER MUMBAI v. KOHINOOR CTNL 1165
   INFRASTRUCTURE COMPANY PVT. LTD. [H.L. GOKHALE, J.]

     Bombay Municipal Corporation Act, 1888, whichever is            A
     larger.

     (ii) If a building abuts two or more streets of different
     widths, it shall be deemed for that purpose of this
     Regulation to abut the wider street; the height of the          B
     building shall be regulated by the width of that street and
     may be continued to this height to a depth of 24m. along
     the narrower street, subject to conformity with Regulation
     28:

      [Provided however, that restrictions on height spelt out iro C
      this regulation shall not be applicable for reconstruction
      and redevelopment of old buildings undertaken under
      Regulation 33(7), 33(8) and 33(9) of these Regulations,
      which are not affected by Coastal Regulation Zone
      Notification dated 19th February, 1991, issued by the D
      Ministry of Environment and Forests, Government of
      India, and orders issued from time to time.

      [Provided however that restrictions on height spelt out in
      this Regulation shall not be applicable for construction       E
      of buildings undertaken under regulation 33(10) and
      33(14) of these regulations for implementation of Slum
      Rehabilitation Scheme.}"

        43. As far as this issue is concerned, response was sought
  from the Secretary, Urban Development Department, of State         F
  of Maharashtra, and the Chief Engineer Town Planning of the
  appellant. Shri Manu Kumar Srivastava, Principal Secretary,
  Urban Development Department, Government of Maharashtra
  has explained these exemptions in his affidavit. He has pointed
. out that these schemes under OCR 33(7), 33(8) and 33(9) seek       G
  to achieve free of cost in-situ-rehabilitation of the occupants
  living in old and dilapidated buildings. Therefore, to make the
  scheme viable, incentive FSI is granted, which the developer
  uses to construct what is called as a 'sale component' that is
  sold in the open market to recover the cost incurred by him for    H
    1166     SUPREME COURT REPORTS               [2013] 16 S.C.R.


A   constructing the tenements for rehabilitation of the existing
    tenants. Therefore, the restriction on the height of these
    buildings vis-a-vis the width of the road, is required to be
    relaxed.

B        44. Shri Rajiv Kuknur, Chief Engineer, Development
    (Development Plan) in his affidavit on this issue on behalf of
    the appellants, reiterated that the exemptions under these
    DCRs are for accommodating existing tenants which is done
    with the participation of private developers. Mr. Ganesh,
c   appearing for the Maharashtra Chamber of Housing Industry,
    has similarly justified granting higher FSI and construction of
    the high-rise buildings on that footing.

       45. The State Government was represented by learned
  Senior Counsel, Mr. Shekhar Naphade. He pointed that the city
D was suffering from some basic constraints viz. on the one hand,
  the population was increasing, particularly in the suburbs, and
  on the other hand, the land resources were very limited. There
  was also the floating population moving from the northern
  suburbs to the city everyday and returning back by the evening.
E He submitted that one has to take into consideration the
  practical realities. At the time when the development plan was
  prepared in 1991, the appellant-Municipal Corporation found
  that it could not acquire land for various public projects such
  as gardens and playgrounds and therefore, the concept of
F Transferred Development Rights (TOR) was introduced,
  whereunder the land owner surrenders the land required for
  gardens or playgrounds and gets the TOR in lieu thereof. He
  pointed out that the population density in Mumbai was very high.
  It was 270 persons per hectare as against 106 of New York,
G 83 of Singapore and 64 of Hongkong. The Corporation had to
  adjust the competing interests and therefore, at appropriate
  places the high-rise buildings had to be permitted.

        46. Mr. Shyam Divan, on the other hand, submitted that
    these tall structures have affected access to natural light and
H
 MUNICIPAL COPRN. OF GREATER MUMBAI v. KOHINOOR CTNL 1167
  INFRASTRUCTURE COMPANY PVT LTD. [H.L GOKHALE, J.]

ventilation and has created number of health problems. In his        A
submission, there should not be a blanket exemption for
projects involving additional FSI from the height restrictions
under OCR 31. There should be accountability on the part of
the authority and the project developer to whom relaxation is
granted. He submitted that some of these buildings which were        B
reconstructed with high FSI unde·r OCR 33(7), (8) and (9), had
been reduced to vertical slums. The developers do not bother
to look into the maintenance of these schemes, the construction
is poor and a large number of the occupants for whom these
houses are constructed, sell them and the purpose of having          c
the scheme, gets defeated.

    Issue No.3 concerning impact of FSI on the traffic
    situation:-

     47. As far as issue No. 3 viz. impact of FSI on the traffic     D
situation is concerned, Shri Manu Kumar Srivastava, has
pointed that as per the census of 2011, 30.82 lakhs people
were staying in the island city. Due to the accelerated economic
growth, there is a spurt in the vehicles of the occupants, as well
as, those entering the island city In para 6.3, he has placed        E
on record the steps taken by the State Government in this
behalf. This paragraph 6.3 reads as follows:-

     "6.3 ....

     (i) Revising the captive parking requirements upwards for       F
     various categories of buildings.

    (ii) Introducing instruments like Regl!lation 33(24) for
    creating public parking lots.
                                                                     G
     (iii) Taking up construction of mass rapid transit systems
     like Metro Rail, Mono Rail etc. so as to wean people
     away from the use of personalized means of transport."

    In para 6.4 he has referred to the suggestions made by a
High- Powered Committee regarding traffic management and             H
    1168     SUPREME COURT REPORTS                [2013] 16 S.C.R.


A   that steps were being taken according to those·
    recommendations. In para 7 of his affidavit, he has stated that
    the draft development plan for the period 2014-2034 is under
    preparation, wherein many of these difficulties will be taken
    care of.
B
       48. Shri R.C. Dixit, Chief Engineer, Roads and Traffic of
  the appellant-Municipal Corporation has filed his affidavit on
  issue No. 3. He has pointed out that the number of vehicles in
  Greater Mumbai has increased from 3.08. lakhs from 1981 to
C 19.38 lakhs in 2011, and the population has increased during
  this period from 82.43 lakhs to 124.78 lakhs. Out of this
  population, that of the island city is 31.06 lakhs. He has pointed
  out in paragraph 16 of his affidavit that tH'e State Government
  has constituted a High Powered Committee on 6.6.2012 to
  suggest corrective and remedial measures. It has also to
D prepare an action plan for recommendations up to 2016-2017.
  In paragraph 18, he has refer~ed to various recommendations
  made by the High Powered Committee and that the same are
  being followed.

E      49. Shri Vivek Phansalkar, Commissioner of Police,
  Traffic, Mumbai, has stated in paragraph 9 of his reply that as
  per information of the State Transport Department, on an
  average 450 new vehicles were being added to the road
  network every day. The vehicular population by January 2013
F was nearly 21 lakhs. He has stated that Mumbai continues to
  have a high usage of public transport, yet there is a relatively
  sharp increase in use of cars in the last decade which has
  pushed Mumbai into a situation of a grid lock. Increasing
  vehicles on the roads have led to bottlenecks for traffic
G movement. In paragraph 13 he has stated that no definite
  findings can be arrived at without a comprehensive study of the
  impact of additional FSI in the island city of Mumbai on traffic
  density. He has however, accepted that periodical increase in
  FSI would result in more construction which, in turn, could lead
H to the higher tenement density, indicating an increase in traffic.
 MUNICIPAL COPRN. OF GREATER MUMBAI v. KOHINOOR CTNL 1169
  INFRASTRUCTURE COMPANY PVT. LTD. [HL GOKHALE, J.]

In paragraph 14, he has suggested various measures to control       A
the traffic congestion.

      50. The UDRI has made various suggestions. Its trustees
include Mr. Charles Correa, an eminent architect and town
planner, Shri Dipak Parekh an eminent economist, Shri D.M.
                                                                    8
Sukhtankar, retired Municipal Commissioner· and former
Secretary to Government of Maharashtra and others. This
institute has made a detailed study of the problems of the city.
With respect to issue No. 2, this institute has submitted as
noted above, that there should not be a blanket relaxation for
the high rise buildings, and it should be examined locality-wise.   C
Absence of any check in this behalf, has resulted into very tall
buildings with no open spaces on extremely narrow streets. It
is often seen that whereas the ordinary FSI is 1.33, the minimum
FSI available to the schemes under OCR 33(7), 33(8) and 33(9)
is 2.5, and there is no upper limit. No assessment is made of       D
the sustainable carrying capacity of the areas in which these
projects are implemented. There is no transport impact
assessment on the neighbourhood in such projects. A locality-
wise approach is therefore required.
                                                                    E
     51. In its submissions on the issues at hand, UDRI pointed
out that whereas the total open space in Mumbai is 3.8%, if
we compare it with another crowded area viz. Manhci.ttan in US,
there the public open space for recreation is 13.1 %. The
National Building Code (of India) requires 3 sq. mts. per capita    F
by way of open space. However, Greater Mumbai hc1s just 1.91
sq. mts. of open space per person, and of this less than a.es
sq. mts. per person is accessible for recreation. Each
Manhattan resident occupies 11 times as much floor space as
a Mumbai resident. Doubling or trebling Mumbai's FSI will only      G
make it two or three times denser than Manhattan in regard to
the number of people on the ground. Consequently, the open
space available per person will become even less.

     52. Since the project of respondent-Kohinoor is going to
                                                                    H
    1170     SUPREME COURT REPORTS               [2013] 16 S.C.R.


A be at a busy road junction near Shivaji Park in the Dadar area
  of Mumbai, it is pointed out by UDRI that Dadar, Mahim, and
  Matunga areas, are essentially residential areas. Various
  housing colonies were laid out, as per the town planning
  scheme, such as Dadar Parsi Colony ~md Hindu Colony etc.
B In fact, Mr. Divan pointed out that the entire area around Shivaji
  Park was laid out systematically as per the norms, for a
  specified population, and it is like a heritage area. Requisite
  provisions for gardens, schools, roads, foot-paths and play-
  grounds etc., have been made for a certain density of
C population. Now with the reconstruction schemes being
  proposed, suddenly tall buildings are coming up even near the
  school buildings, and adding further to the density and pressure
  on the existing infrastructure. The roads having been laid out
  much earlier, and being in proper proportion to the height of
D the adjoining buildings, these new tall buildings coming up in
  the very area are causing congestion and greater traffic. This
  is affecting the life of the people around and even the school
  going children, with increased traffic and parking on the roads.
  The roads which were adequate at one point of time, are now
E being found to be narrow. Plot No.46, with which we are,,
  concerned, in the present matter, had a textile mill earlier, and
  now a huge commercial complex has been approved on it. But
  for this construction, there were no such large commercial
  complexes in this entire area. Earlier only those commercial
F activities were permitted which were necessary for the use of
  the residents. This huge commercial complex is going to add
  tremendous pressure on the traffic in the area and at an already
  busy junction.

        Suggestions on issue Nos. 3 and 4 for consideration
G       when the new Development Plan is drafted:-

        53. We have noted the submissions on both these issues,
    and what we find is that the exemptions from OCR 31 (1) for
    schemes under Section 33(7), 33(8) and 33(9), though
H
  MUNICIPAL COP RN. OF GREATER MUMBAI v. KOHINOOR CTNL 1171
   INFRASTRUCTURE COMPANY PVT. LTD. [H.L GOKHALE, J]

apparently meant for laudable purpose, are very often resulting        A
into extreme crowding, and traffic congestion. It is necessary
that while granting exemptions from OCR 31 (1 ), there must be
a scheme-wise approach, and there ought to be a proper
supervision of the construction. These development schemes
and the additional FSI thereunder, should be examined locality-        B
wise. The impact of such high-rise buildings on the adjoining
locality as well as on the traffic, is required to be examined
before granting such permission.

      54. In our view, there is a need to restrict the additional
pressure on existing infrastructure so that it does not affect the     C
quality of life. The existing social infrastructure like educational
institutions, open spaces, hospitals etc, and physical
infrastructure like water supply and drainage is already over-
burdened. Therefore, wherever possible, the State-Government,
the planning authority, and the committee entrusted with drafting      D
of the new plan should consider contribution by the existing
occupants themselves to a good extent towards the
construction cost, or the State should contribute through its
agencies or from the amount of cess-collected. This will result
into curtailing the number of additional entrants and will not add     E
to the density of the population. This approach should
particularly be examine<;i where the plots are small or are in
congested areaska_nd particularly where the proposal is under
OCR 33(7). The new Development Plan is to be prepared
shortly, and while preparing the plan these aspects concerning         F
restrictions on blanket exemptions, contribution by the existing
occupants to the reconstruction schemes, locality-wise
consideration and impact of additional FSI on traffic, ought to
be gone into. In areas where the old town planning schemes
have prescribed a uniform lay-out, one can accept some                 G
buildings going up to a certain extent, if necessary, to
accommodate the existing occupants in a reconstruction
scheme. However, it should not result into a plethora of steeply
 rising buildings, to accommodate outsiders to the building,
 adding to the population and traffic, and disturbing the existing     H
    1172         SUPREME COURT REF ORTS             [2013] 16 S.C.R.


A   order of the lay-out completely.

        Reconstitution of the 'Technical Committee for High
        Rise Buildings':-

        55. (i) It has been pointed out on behalf of the Municipal
B Corporation that subsequent to a·PIL in the Bombay High Court
  in the case of Tardeo Haji Ali Residents Welfare Association,
  the State Government has constituted a 'Technical Committee
  for High-Rise Buildings' (i.e. Buildings exceeding 70 meters in
  height). As per the note submitted by the learned Senior
C Counsel for the Municipal Corporation, the terms of reference
  of the committee are as follows:-

           "(1)   The Committee shall be of advisory nature and it
                  will advise the Municipal Commissioner regarding
D                 the feasibility of the development proposals that
                  might be referred to it by the Commissioner.

           (2)    It will be open for the Commissioner to over-rule the
                  recommendations of the Committee, after giving a
                  proper and reasonable justification in writing. Such
E                 powers will not be delegated to any subordinate
                  officer.

           (3)    In specific cases, if the Chairman desires, any
                  expert from other fields may be invited for the
F                 meeting of the Committee."

         The note points out

           (1)    The building proposals which are to be referred to
                  the committee
G
           (2)    The procedure to be followed by the committee ·

           (3)    The points to be considered by the committee, viz.,

           (a)    Architectural Points:-
H
MUNICIPAL COPRN. OF GREATER MUMBAI v. KOHINOOR CTNL 1173
 INFRASTRUCTURE COMPANY PVT. LTD. [HL GOKHALE, J.]

   (2)    Clear width of access available.                         A

   (2)    Location, width & No. of staircase.

   (3)    Natural ventilation to staircase and common lobby.

   (4)    Whether benefit of D.C. Rule 33 (24) is availed?         B

   (5)    The minimum net plot size for High Rise proposal
          is prescribed as 1000 Sq.Mt. and 850 Sq.Mts. for
          proposals under D.C. R. 33 (7).

   (6)    Depth & Nos. of the basement.                            c
   (7)    Area & location of the refuge floors.

   (8)    Open spaces, podiums, etc.

   (9)    Two·:wheeler & four wheeler parking provisions in        D
          the building.

    (10) Width of comm,on lobby & ventilation.

    (b)   Structural and Geotechnical Points:-
                                                                   E
    (2)   Soil Report indicating soil strata, depth of the hard
          rock, etc.

    (2)   Type of foundation i.e. pile foundation or raft
          foundation or open foundation.                           F
    (3)   Design Base Report (D.B.R.) for the proposal.

    (4)   Various type of tests carried on site i.e. wind tunnel
          test.
                                                                   G
    (5)   Gust factor & deflection.

    (6)   Details of the rock anchors, if any provided for
          basement.
                                                                   H
    1174         SUPREME COURT REPORTS                  [2013] 16 S.C.R.


A          (7)     Details of the soil retaining methods.

           (c)     Environmental Points:-

           (2)    Shadow Analysis.

B          (2)    Wind Analysis.

           (3}     Heat Analysis.

           (4)    Traffic Study & Traffic Management.

C          (5)     Ecological Study (Tree Plantation, Green area, etc.)

           ~6)     Disaster Management Plan.

           (7)    Total Water Requirement.

D          (8)    Total waste water sewage generated & disposal
                  (Design of Sewerage Treatment Plant).

           (9)     Effect of the constructidn material on environment.

           (10) Rain Water          Harvesting      &    Storm    Water
E               Management.

           (11) Air environment in construction & operation phase.

           ( 12) Solid Waste Management.
F          (13) Energy conservation techniques.

           d)      The point of view of the C.F.0.:-

           (2)     Height of first refuge floor from ground floor and also
                   height of subsequent refuge floors.
G
           (2)     Location of refuge area.

           (3)    Whether refuge area is cantilever.

H
 MUNICIPAL COP RN. OF GREATER MUMBAI v. KOHINOOR CTNL 117 5
  INFRASTRUCTURE COMPANY PVT. LTD. [H.L. GOKHALE, J:]

     (4)   Clear open space along with turning radius for           A
           movement of fire tender around the building.

     (5)   Width & gradient of ramp (one way or two way)
           leading to podium.

     (6)   Alternate provision for fighting the fire from ground.   B

     (7)   Driveway for fire tender movement on paved R.G:

     (8)   Height of underpass in case fire tender moving
           below building.
                                                                    c
     (9)   Podium line should be flush with building line on
           refuge facing area.

     (10) Number of staircase and width of staircase.
                                                                    D
     (11) Distance between two staircases, through common
           lobbies/passages.
     (12) Natural ventilation through sidewalls of basements.

     (13) Compartmentalization of the basements.                    E
     (ii) The first committee was appointed by a Resolution of
the Urban Development Department dated 28.7.2004. The
composition of the Committee has changed from time to time.
We are informed that the term of the existing committee, which
is the third committee, has expired. The committee consists of      F
six members and is headed by a retired judge of the Bombay
High Court, as the Chairman. It has two ex-officio members,
namely, the Chief Engineer (Development Plan) of the appellant
who is also the member secretary, and the Chief Fire Officer
of the appellant. There are three expert members. Following are     G
the present expert members:-
    "(1) Prof R. S. Jangid, Dept of Civil Engineering, /IT
    Bombay, as a Structural Engineering Expert.
                                                                    H
    1176     SUPREME COURT REPORTS              (2013] 16 S.C.R.


A       (2) Prof. Abhay Bambole, Professor and Head of the
        Structural Engineering Department, VJIT, Matunga, as
        the Soil and Geotech Expert.

        (3) Or. Rakesh Kumar, Director and Gr. Scientist and
        Head NEER! Regional Centre as the Environmental
B
        Expert."

          56. It has been suggested that we appoint a new
    committee, though the State Government has expressed its
    willingness to extend the term of the present committee. Mr.
C   Nariman has, in fact, suggested that the committee should
    consist of memQers who will play a pro-active role. Mr. Divan
    submitted that it should be a Development Plan over-sight
    committee, and it should at-least look into the grievances with
    respect to the schemes under 33(7), (8),(9), and (10). Mr.
D   Joaquim Reis, learned senior counsel instructing Dr. Abhishek
    Singhvi, learned senior counsel appearing for the Property
    Redevelopers Association, suggested inclusion of an architect
    in the committee. Considering that the architectural points as
    mentioned in the municipal note, are also to be gone into by
E   the committee, the suggestion is quite apt. He suggested the
    inclusion of eminent architect Mr. Charles Correa, who is
    associated with UDRI (and which is represented by Mr. Divan). ·
    We are, however, not including his name only for the reason
    that we are informed that he is a very busy architect, though
F   the committee should certainly consult him whenever necessary.
    In his place, we include Shri Pankaj Joshi, Architect, Urban
    Researcher, and consultant to the appellant-Municipal
    Corporation, whose name is suggested by Mr. Divan. Thus, the
    assistance of an architect will also be available to the
    committee. H.aving taken the consensus of the counsel
G   appearing in the matter, we are effecting one more change in
    the committee. We appoint Hon'ble Mr. Justice P.S.. Patankar,
    former Judge of the Bombay High Court, to be the Chairman
    of the committee.

H
MUNICIPAL COPRN. OF GREATER MUMBAI v. KOHINOOR CTNL 1177
 INFRASTRUCTURE COMPANY PVT LTD. [H.L GOKHALE, J.]

     The committee will now consist of the following:-        A

1)        Chairman                Mr. Justice P. S
                                  Patankar, Former Judge
                                  of the High Court of
                                  Bombay
                                                              B
2)        Member Secretary        Chief Engineer
                                  (Development Plan) of
                                  Municipal Corporation of
                                  Greater Mumbai
                                  (MCGM)                      c
3)        Member                  Prof Department of Civil
          (Structural             Engineering, /IT
          Engineering Expert)     Bombay, Pawai.
                                  (presently Professor R. S
                                  Jangid or any other         D
                                  professor, with the
                                  required qualifications,
                                  nominated by the
                                  Director /IT Pawai)
                                                              E
4)        Member                  Prof and Head of the
          (Soil, Mech.            Structural Engineering
          Geo Tech. Expert)       Department, VJTI,
                                  Matunga. (presently
                                  Prof Abhay Bambole or
                                                              F
                                  any other professor, with
                                  the required
                                  qualifications,
                                  nominated by the
                                  principal VJTI)
                                                              G
5)        Member                  Director Gr, Scientist
          (Environmental          and Head NEER/
      .
          Expert)                 regional centre
                                  (presently Dr. Rakesh
                                  Kumar)           .
                                                              H
    1178     SUPREME COURT REPORTS                  [2013] 16 S.C.R.


A      6)    Ex-officio member              Chief Fire Officer of
                                            MCGM

       7)    Member                         Mr. Pankaj Joshi
             (Architect and Urban           (Architect, Urban
             Researcher)                    Researcher, and
B
                                            Consultant to the
                                            MCG'MJ

         The additional terms of reference for the Committee:·

c        57. (i) As of now, all new building proposals where the
    height of the building exceeds 70 meters is referred to the
    committee. A scrutiny fee for Rs 50,000 per proposal is
    collected at the time of submission of the proposal. We have
    already referred to the existing terms of reference. In view of
0   the discussion in this matter, in our view, it is desirable that the
    committee be requested to look into two additional aspects
    which are as follows:-

      (ii) The committee will also look into the grievances
  regarding construction and technical requirements of the
E development schemes under OCR 33(7), 33(8), 33(9) and
  33(10), whenever brought to the notice of the committee by
  concerned persons.

       (iii) The committee may as well make recommendations
F to the State Government with respect to the new Development
  Plan which is under drafting.

        58. (i) The committee will have to spend good time for this
  work. The honorarium paid to the chairman is presently fixed
  at Rs. 15000 per month, and it was fixed much earlier. Now
G we are widening the terms of reference. Therefore, we direct
  that the appellant-Municipal Corporation will pay an honorarium
  of Rs. 50,000/- per month to the Chairman. The other members
  will be provided with the conveyance charges and attendance
  charges to attend the meetings and for site inspections. as per
H the municipal rules. The Municipal Corporation will make
  MUNICIPAL COPRN. OF GREATER MUMBAI v. KOHINOOR CTNL 1179
   INFRASTRUCTURE COMPANY PVT. LTD. [HL GOKHALE, J]

available an appropriate room in its headquarters and                 A
secretarial staff for the working of the committee.

      (ii) The State Government shall issue necessary
notification reconstituting the committee, its terms of reference,
and other aspects, such as honorarium etc, within four weeks
                                                                      B
hereafter.

      59. Before we conclude, we record our appreciation for
all the learned counsel who have assisted us in deciding the
issues, and particularly Senior Counsel Mr. Nariman and Mr.
Salve, who appeared for the respondents and appellants                c
respectively, at the stage of the earlier order which was passed
on 25. 7 .2013, but assisted the Court in deciding the four
issues.

     In the circumstances we pass the following order:-
                                                                      D
     60. (1) The memorandum of settlement dated 18.4.2013,
concerning the Public Parking Lot (PPL) arrived at between the
appellant-Municipal Corporation of Greater Mumbai and the
respondents was taken on record, as noted in Part-I order
dated 25.7.2013, in the facts and circumstances of the present        E
case. Both the parties shall act strictly in accordance with the
same. It is clarified that as held in the said order, the Municipal
circular dated 22.6.2011 is not in any way held to be bad in
law.
                                                                      F
    (2) The four additional issues framed in Part-II of the above
order are decided as follows:-

     Issue No. (i) - The minimum recreational space as laid
down under Development Control Regulation (OCR) 23, cannot
be reduced on the basis of OCR 38(34). The recreational               G
space, if any, provided on the podium as per OCR 38(34)(iv},
shall be in addition to that provided as per OCR 23.

    Issue Nos. (ii) & (iii) - The Government of Maharashtra,
the Development Plan Drafting Committee, and the appellant-           H
    1180      SUPREME COURT REPORTS               [2013] 1q S.C.R.


A Municipal Corporation shall consider the suggestions as
  contained in paragraph Nos.53 and 54 above, while framing
  the Development Plan for Greater Mumbai.

       Issue No. (iv) - The second proviso to OCR 43(1) (A),
  concerning fire protection requirements, is held to be bad in
8
  law. We hold that even for the reconstruction proposals of plots
  upto the size of 600 sq. mts. under OCR 33(7), open space of
                                      4
  the width of 6 meters at least on one side a1 ground level within
  the plot, accessible from the road side will have to be
  maintained for the maneuverability of a fire engine, unless the
C building abuts two roads of 6 meters or more on two sides, or
  another access of 6 meters to the building is available, apart
  from the road abutting the building.

       (3) The decision as contained in Clauses 2(i) and 2(iv)
D above, will apply to those constructions where plans are still not
  approved, or where the Commencement Certificate (CC) has
  not yet been issued. All authorities concerned are directed to
  ensure strict compliance accordingly.

E      (4) The Government of Maharashtra shall issue the
  necessary notification within four weeks of this order, re-
  constituting the 'Technical Committee for the High-Rise
  Buildings', as directed in paragraph 56, including the additional
  terms of reference, as mentioned in paragraph 57 above. The
  appellant is directed to render assistance and provide the
F required honorarium, as mentioned in paragraph 58 above.

       (5) In view of the settlement arrived at between the parties,
  as well as Part-I order dated 25.7.2013 mentioned in
  paragraph (1 ), and the determination on the four additional
G issues as in paragraph (2) above, no further order is required
  on this appeal, and the appeal stands disposed off accordingly.

         (6) The parties will bear their own costs.

    Kalpana K. Tripathy                               Appeal disposed of
H