[1]The developer, NDZ Infrastructure who had undertaken the redevelopment of the society had proposed the construction of a 16- floor structure so that the existing members could be accommodated and the balance could be sold in open market to make the project feasible.

The original developer was permitted to maintain a 6-6.8 meter wide access for the construction of 16 floors in the proposed new building for re- accommodating all the members of the society. However, as per the revised Development Control and Promotion Regulations 2034 (for short, "DCPR") presently for constructing a 16 floor structure, the developer is required to maintain a 9 mts wide access road and in the absence the developer cannot construct more than 7 floors.

Based on the arguments made by the parties, the Hon'ble Bombay High Court bench comprising of Justice G.S Patel and Justice Kamal Khata has held that the Municipal Corporation of Greater Mumbai (for short, MCGM's) approach is inconsistent by insisting on increasing the width of the road without removing the encroachments as removal or the continuance of encroachments is a matter which falls under the purview of the MCGM and that MCGM cannot insist on a road having width of 9 mts till it adopts necessary measures for removing the existing encroachments.

The Court has also taken note of the fact that in some cases the structures are not encroachments in nature but in fact, are authorized and in such a case the MCGM does not have any substantial ground to demand that the width of the road should remain 9 mts, when the authority itself is refraining from maintaining the said road width.

In this matter, the MCGM agreed to extend the concession of maintaining the road width of 6.8 mtrs while the bench has held that the MCGM will not insist on a road width of 9 mtrs so long as the encroachments are not removed, however the Court has not refuted and abandoned or set aside the requirement of a 9 mtr road but it has just directed that it cannot be cited as an obstruction or a pre-requisite for obtaining further development permissions from the concerned authorities in the prevailing situation between the parties.

The Court has also directed that in situation as encountered above, such an obstruction should not be cited as an impediment or a pre-condition for further development.

End-Notes:

1. Contempt Petition (L) No. 131 of 2019 in Writ Petition No. 1071 of 2014 in Arbitration Petition No. 342 of 2019 - Joginder Singh Salariya & Ors v/s Rajendra Wani & Ors.