Regularizing illegal structure by buying FSI not possible: Mumbai HC
The Bombay High Court has given a ruling that buying extra Floor Space Index (FSI) or paying a penalty cannot be a way to regularize unauthorized construction. The Mumbai High Court judge refused to rule in favor of Shubh Apartments and few other buildings such as Esha Ekta Apartments, Midtown, Shubh Apartments, Patel Apartments, Orchid and B Y Apartments in the Campa Cola compound in Worli.
The buildings had got permission to construct only up to five floors. However, the builders flouted the norms and went on to construct 35 illegal floors. The Supreme Court had ordered the demolition of these illegal floors and later granted an interim stay for five months in 2012. After the SC order, the BMC moved the court for vacating the stay order. The Mumbai High court upheld the ruling of vacating the stay on demolition of the apartment’s illegal floors.
The judge also said that all construction in a layout must conform to the total FSI of the plot in that layout just as all constructions must conform within the extent of the FSI for its regularization on an individual plot. If that was exceeded, the construction would be in violation of the Municipal Act. It would also be a wholly unauthorized construction which cannot be protected.
The builders had earlier appealed that the BMC had rules allowing payment of penalty for regularization. The judge however rejected the plea saying that the work may be regularized by penalty only if it is within the permissible FSI and consequently approvable.
The court said that the Shubh apartments and few other buildings in the Campa Cola compound layout had exceeded the total FSI of the plot and had built unauthorized buildings in the layout. He said that the Brihanmumbai Municipal Corporation (BMC) could not and has not regularized the unauthorized construction of floors which are in excess of the sanctioned plans. He said that any additional unauthorized construction of buildings cannot be authorized in violation of sanctioned plans.
Floor Space Index (FSI) indicates the maximum allowed area to be built up on a plot in a particular area i.e., if the FSI is one and the plot size is 1,200 sq ft, the maximum built up area allowed on that plot is 1,200 sq ft. The FSI is decided by the state and local development body. Any construction exceeding the FSI is considered an illegal construction and can be subjected to legal action. Regularization of an illegal construction is subject to laws of a particular state development authority. It may include buying additional FSI or paying a compounding fee.
Builders resort to unauthorized constructions many times by exceeding FSI in an attempt to maximize their profits in a limited available space. Ministers either ignore this or lobby for their regularization for bribes from the builders.
