Clearing the way for redevelopment of the iconic Chandan Cinema in the Juhu area, the Bombay High Court Wednesday held that a notification issued in June 1976 under the Works of Defence Act, 1903, does not prohibit the owner from construction up to 15 metres, provided the other dimensions of the redeveloped building would be the same as the old structure.
The 1976 notification had imposed restrictions on construction work in the vicinity of a military installation at Juhu. Additional Solicitor General Devang Vyas for the Centre sought stay on the effect of the judgement. However, the petitioner Sameer Baijnath Joshi, owner of the land, submitted that the stay would not be necessary as he would be required to submit a fresh plan for redevelopment of the property, and its sanction would take some time.
A division bench of Justice Sunil B Shukre and Justice Firdosh P Pooniwalla refused to stay its verdict and said the same would not cause any prejudice to the Centre.
The theatre, built in 1973 on a 3,627-square-metre land in Juhu, ceased its operation in March 2017 after the Brihanmumbai Municipal Corporation (BMC) had issued a notice under section 354 of the Mumbai Municipal Corporation Act, 1988, for its demolition, citing its dilapidated condition.
The original structure had a built-up area of 18,982.06 square metre with a height of 16.913 metres that was asked to be pulled down within 30 days from the date of notice.
Initially, Joshi devised a plan to redevelop the structure with a basement and ground plus 11-storey building with a height of 50.70 metres above ground level and had planned to consume floor space index (FSI) of 12,722 square metres.
While Joshi availed a no-objection certificate (NOC) from the Airports Authority of India (AAI) in May 2018, he was advised to obtain an NOC from the station commander, headquarters Maharashtra Gujarat and Goa Area, as the property was located in the vicinity of a Signal Transmitting Station (STS), a defence installation.
As per impugned June 1976, construction is allowed up to the height of 15.24 metres within 500 yards (457.20 metres) from the boundary wall of the said defence installation.
The BMC considered Joshi’s plea in July 2019 and wrote a letter to the station commander to consider the redevelopment proposal, which he rejected the next month, on the ground that the same violated provisions of the impugned notification.
Subsequently, in November 2019, Joshi applied to the BMC with a revised plan for construction with a total height of 15 metres, which was well within the height permissible under the 1976 notification. The BMC again wrote to the station commander to consider Joshi’s revised plan, which availed no response, prompting Joshi to file the plea in the high court.
The bench noted, “We hold that if there is a permanent construction already completed at the commencement of the said notification, then redevelopment of the said permanent construction is not barred by the said notification. However, we are of the view that, keeping in mind the purpose of the said notification, the said redeveloped structure will have to be of the permissible height of 15.24 metres or less and will have to be of the same dimensions as the already existing permanent construction.”