If Relaxation Like Stack Parking Adversely Affects Public Safety, It Cannot Be Permitted: Bombay HC Orders Its Removal From Residential Building
|The Bombay High Court has ordered the removal of stack parking from a residential building saying that, if such a relaxation adversely affects the public safety, the same cannot be permitted.
The Court was dealing with a writ petition filed by a Borivali (West) resident named Rahul Jain challenging such a relaxation.
A Division Bench of Justice G.S. Patel and Justice Kamal Khata said, “Obviously, therefore, if it is demonstrated that the relaxation adversely affects safety, fire safety, and public safety that no such permission can be granted or if granted is liable to be immediately revoked.”
The Bench noted that the stack parking has completely undermined the safety, fire safety, and public safety, not only of members of the Society but children, older people, and perhaps even passers-by.
Advocate Abhinav Chandrachud represented the petitioner while Advocate Racheeta Dhura represented the respondents.
Brief Facts -
The order dated January 24 of the High Court had summarised the issues involved in this case. The same was related to stack parking in the premises of the society and it was a later addition. It was required because the developer submitted amended plans to put up two additional floors. Normal building regulations required that the said floors be provided parking and there was not enough physical space in the society premises for the same. Hence, a proposal for stack parking came.
The High Court in the above context observed, “Taking the second point first, the discretion can be exercised on a clear demonstration of hardships with reasons to be recorded in writing, will take the form of a special permission, and cannot extend to Floor Space Index (“FSI”) unless otherwise permitted. … But this is all subject to the proviso that this relaxation, i.e., the exercise of this discretion “will not affect” the health, safety, fire safety, structural safety, and public safety of the inhabitants of the building and the neighbourhood.”
The Court said that the Chief Fire Officer (CFO) himself admits that no fire tender can go past the stack parking.
“When faced with the question from the Bench what then is to be done if there is a fire in the building, the answer we received was indeed shocking. It was solemnly suggested that since the building is less than 13 floors no fire engine access is necessary”, it added.
Furthermore, the Court said that there are many buildings in Mumbai especially in smaller and more crowded areas that are no more than ground and four floors. It added that there is no principle in statute let alone in equity by those who live in expensive high rises have greater safety priority than those who do not and the sooner the MCGM’s CFO understands it, the better.
“We can hardly countenance a government officer going into a congested area in Girgaum, Dongri, or Gamdevi and saying that no fire engine will ever come to the rescue and still hope to escape from those areas unscathed. … it is impossible to see how the health safety and fire safety of the inhabitants of the Society building are not compromised by this stack parking. It is impossible to see how this relaxation does not adversely affect the neighbourhood”, it also observed.
The Court said that it is open to the occupants/members occupying the additional floors of the building and the Society to make an appropriate application to the MCGM i.e., Municipal Corporation of Greater Mumbai (if necessary, on payment of penalty) to dispense with the condition of providing additional car parking within the Society premises or to propose some other viable alternative within the precincts of the Society property.
“We clarify that we are not ourselves dispensing with the municipal requirement that additional floors must have in-house car parking spaces. There may be various engineering solutions to this, and it is not for us to specify what those solutions should be. We have only held that the proposal granted by the developer for this kind of stack parking is not one that is acceptable even according to the DCRs”, it clarified.
The Court, therefore, directed the MCGM to take up the application for change of permitted user and to dispose it of on merits and in accordance with law at the earliest, within three weeks.
Accordingly, the High Court disposed of the petition.
Cause Title- Rahul Jain v. Municipal Corporation of Greater Mumbai & Ors. (Neutral Citation: 2024:BHC-OS:1524-DB)
Appearance:
Petitioner: Advocates Janay Jain, Diksha Shirodkar, and Sachin Mhatre.
Respondents: Advocate Rupali Adhate