Bombay HC quashes BMC’s belated refusal for higher floors of south Mumbai building due to ‘narrow’ road

The court noted that the width of the road at the time of granting approvals for redevelopment for the last several years was the same as it is at present. Noting that it was not suggesting that the BMC must disregard entirely the road widths, the permission cannot be refused at a later stage, after the owner or developer has spent money and acted on initial approvals.

The HC added that if the road was insufficiently wide to give permission, no approval had to be granted to begin with.

It held BMC’s action to be  “completely oblivious to every aspect of law”.

A bench of Justices Gautam S Patel and Justice Kamal R Khata on February 23 passed their verdict in plea by Gufran Suleman Qureshi, calling him “unfortunate” owner of the cessed property on Bapty Road having 110 tenants. The copy of the judgement was made available on Tuesday.

Qureshi, through advocate Naushad Engineer, had challenged the January 10, 2024 communication of the Assistant Engineer-D ward of the BMC which noted that since Bapty Road does not meet the required minimum width of 9 metres, further permissions cannot be granted.

The petitioner argued the construction upto seventh floor was insufficient to accommodate all tenants and original proposal was also for more built up space .

The Maharashtra Housing and Development Authority (MHADA) had given its NOCs to present structure in 2017 and 2021 and BMC issued a commencement certificate (CC) to the plinth level in March, 2022 and even further CC to the seventh floor was issued in June, 2023.

“This petition reflects the kind of bureaucratic morass that might well have been an inspiration for Franz Kafka,” the bench remarked and added,  “It is only now that some functionary in the Ward Office awakens to the road width. He refuses permission to build higher. He says, astonishingly, that the road ‘is too narrow’. But the road is what it always was.”

The HC cited BMC affidavit saying that currently there is “no proposal” to widen the road.

“Therefore, it seems to be suggested nothing can be done. The tenants may suffer. That, it seems, is not the BMC’s concern….. The primary focus is and will forever be the concern of residents and citizens, and those alone. Not of profit-making enterprises… The object of town planning is not to enrich planning authorities.”

The HC directed the BMC to allow the petitioner’s application for further CC up to 33rd floor for the redevelopment.