Hear out flat buyers before razing lily ponds, says HC

Mumbai: The HC on Wednesday said municipal commissioner 

Subodh Kumar should have given a hearing to flat purchasers of a Juhu building before directing the demolition of lily ponds and deck areas in the tower. A division bench asked the civic chief to decide the case afresh. 
    Justice P B Majmudar and Justice Mridula Bhatkar gave their vedict on a petition filed by Shravan Developers and its managing director Praful Satra, challenging the BMC commissioner's July 30, 2011 order directing demolition of lilyponds and certain deck areas or in lieu to have equal upper floors demolished by working out the Floor Space Index (FSI). The 11th floor can be constructed within permissible FSI by paying a penalty. In their judgment, the judges said no fault can be found in Kumar's order as taking a fresh decision regarding the construction should be considered. But he was required to hear concerned parties."In our view the Commissioner was conscious of the fact that the agreements to purchase were executed by some of the flat owners. In our view, at least their say was required to be taken into consideration, especially when it is argued by them that even if the FSI is to be adjusted it should be adjusted from the area which is meant for the eleventh floor,'' dictated Justice Bhatkar for the bench. 
    The judges said whether the lily ponds can be said to be an amenity or architectural feature or not is to be decided by the Commissioner since the court is not an expert on these aspects. They directed the commissioner to take a fresh decision to find out whether lily ponds are an amenity and as per the Development Control Rules (DCR) and in accordance with law. 
    The judges said parking decks have to be in conformity with rules and it should not violate DCR. It was contended that the car parking and manoeuvring areas in the high-rise is more than flat area. The judges ruled BMC's stand that the area will be misused in future "is not sustainable as speculation cannot be a ground for penalty.'' They directed the petitioner and flat-buyers to represent their case before the commissioner on January 5 and directed the commissioner to take a decision within four months.