Earth Graphics vs State Of Maharashtra Thru Its Urban Development Dept.

CNR No : HCBM020232322026

2026:BHC-OS:24151-DB

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO.23230 of 2026
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…Petitioners
1. EARTH GRAPHICS
A partnership firm registered under the
provisions of the Indian Partnership Act,
1932 and having its registered address at
101, Akruti Aditya, 36, Noshir Bharucha
Marg, Grant Road (West), Mumbai 400
007.
2. BHUPESH JAIN
of Mumbai, an adult Indian Inhabitant,
the Partner of Petitioner No.1 and having
his address at 101, Akruti Aditya, 36,
Noshir Bharucha Marg, Grant Road
(West), Mumbai 400 007.
Versus
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1. THE STATE OF MAHARASHTRA
Through its Urban Development
Department, 4th Floor, Mantralaya,
Madam Cama Road, Mumbai-400 032.
2. THE MUNICIPAL CORPORATION OF
GREATER MUMBAI
A body constituted under the provisions of
the Mumbai Municipal Corporation Act
1888, having its head office at Mahapalika
Bhavan, Mahapalika Marg, Opp. CSMT,
Mumbai 400 001
3. MUNICIPAL COMMISSIONER
Municipal Corporation of Greater
Mumbai, Annex Building, Mahapalika
Marg, Fort, Mumbai - 400 001
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]...Respondents
4. EXECUTIVE ENGINEER
Municipal Corporation of Greater
Mumbai, Municipal Building, Walmiki
Chowk, Vidyalankar Marg, Wadala (East),
Mumbai 400 037.
5. THE DY. CE (BUILDING )PROPOSAL
CITY-III
City New Municipal Building, Bhagwan
Walmiki Chowk, Vidyalankar Marg, Opp.
Hanuman Mandir, Antop Hill, Wadala
(East), Mumbai -400 037.
6. MUMBAI BUILDING REPAIRS AND
RECONSTRUCTION BOARD
A board constituted under the provisions
of the Maharashtra Housing and Area
Development ) Act 1976 having address at
Grihanirman Bhavan, Kala Nagar, Bandra
East, Mumbai 400 051.
7. EXECUTIVE ENGINEER
"D-1" Division, A regional unit of MHADA,
89-95, Rajanai Mahal, Tardeo Road,
Mumbai- 400 034.
Mr. Aspi Chinoy, Senior Counsel with Mr. Ashish Kamat, Senior
Counsel, Mr. Chirag Sarawagi, Ms. Tanya Sheth i/b Mr.
Tushar Goradia, for the Petitioners.
Dr. Milind Sathe, Advocate General with Ms. Jyoti Chavan, Addl.
G.P., Ms. Anupama Pawar, AGP, for Respondent No.1-State.
Mr. Arvind T. Rathod i/b Ms. Komal Punjabi, for Respondent Nos.
2 to 4 -MCGM.
Mr. P.G. Lad, for Respondent Nos. 6 and 7 – MHADA.
CORAM : SUMAN SHYAM &
GAUTAM A. ANKHAD, JJ.
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Reserved on : 2 NOVEMBER, 2026
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Pronounced on : 5 NOVEMBER, 2026
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JUDGMENT: (Per Gautam A. Ankhad, J.)

1. Rule. Rule is made returnable forthwith and the matter is heard
finally with the consent of the parties.
2. This Petition raises a narrow question on the interpretation of
clause (19) of Regulation 33(7) of the Development Control and
Promotion Regulations for Greater Mumbai, 2034 (“DCPR 2034”),
i.e, where a plot being redeveloped under Regulation 33(7) has both
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cessed and non-cessed structures that existed before 30 September
1969, and the land under the non-cessed structures is less than 45%
of the total plot area, would the developer be entitled to incentive FSI
on the area required to rehabilitate the occupants of the non-cessed
structures?
3. The basic facts are not in dispute. Petitioner No. 1 owns the
land admeasuring 2882.32 sq. m. bearing C.S. Nos. 683, 684 and
685, Girgaon Division, at R.K. Wadi, V.P. Road, Mumbai – 400 004
(“the property”). C.S. Nos. 684 and 685 contain only cessed
structures. C.S. No. 683 has mixed structures i.e. cessed and non-
cessed structures. The land component under the non-cessed
structures is 15.91% of the plot area. The three plots now form a
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single property, which is being redeveloped under Regulation 33(7).
4. All the structures were constructed before 1940. There are 115
residential and 46 commercial tenants/occupants on the property.
The Petitioners began development and proposed to construct
additional floors using the incentive FSI under Regulation 33(7)(19)
and applied to the Respondent Nos. 2 and 3 for sanction of plans. On
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13 October 2021, the Respondent No.6-Mumbai Building Repairs
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and Reconstruction Board by its letter dated 13 October 2021, had
confirmed to the Respondent No.4 that since the land component
under the non-cessed structures was within 45% of the plot area, it
was eligible for incentive FSI under Regulation 33(7)(19). However,
despite the same no permission was granted by the Respondent No.2.
As such, in between 2022-2025 several letters have been addressed
by the Petitioners to various authorities but to no avail.
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5. On 8 July 2025, the Respondent Nos.2 and 3 by the letter to
the Respondent No. 1 sought concurrence of the State Government
on whether the Petitioners were entitled to incentive FSI in respect of
the non-cessed structures. As no decision was forthcoming, the
Petitioners filed Writ Petition No. 1079 of 2026 before this Court. By
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an order dated 16 February 2026, this Court had directed the
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Respondent No.3-Commissioner to decide the Petitioners’
representation within 30 days in the light of Regulation 33(7)(19).
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Instead, on 22 April 2026, the Respondent No.3 sought a
clarification from the Respondent No. 1.
6. The Petitioners then filed the present Petition in July 2026. On
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4 August 2026, this Court had again directed the Respondent No.3
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to take a decision. On 24 August 2026, the Respondent No. 1 issued
a clarification that incentive FSI is not permissible on the area of non-
cessed structures in a redevelopment proposal comprising both
cessed and non-cessed structures. Relying on this clarification, the
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Respondent No. 2, by its letter dated 31 August 2026, rejected the
Petitioners’ request on the ground that incentive FSI for mixed
structures is not permissible on the area of non-cessed structures
under Regulation 33(7)(19). By way of subsequent amendment, the
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aforesaid letters dated 24 August 2026 and 31 August 2026 have
also been impugned in the present petition.
Submissions
7. Mr. Chinoy, learned Senior Counsel for the Petitioners, submits
that the impugned clarification issued by the Respondent No.1
proceeds on an erroneous interpretation of Regulation 33(7)(19).
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The said provision specifically contemplates a composite property
comprising of cessed and non-cessed structures and extends the
benefit of Regulation 33(7) to non-cessed structures as well, subject
to the land component of non-cessed structures being below the
prescribed 45% threshold limit. Mr. Chinoy submits that clause 19 of
Regulation 33(7) cannot be read in isolation from other clauses of the
said Regulation or in a manner that renders the extension of benefits
granted to non-cessed structures as meaningless. Further the
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clarification dated 24 August 2026 merely records a conclusion
without any reasons and that the Respondent No. 2 has mechanically
rejected the Petitioners’ proposal on the basis of such erroneous
clarification. The impugned decisions, according to Mr. Chinoy, are
contrary to the express language and object of Regulation 33(7)(19)
and ought to be set aside.
8. Opposing the petition, Dr. Sathe, learned Advocate General for
the Respondent No. 1, submits that incentive FSI under Regulation
33(7) is meant only for the cessed structures. Cess was levied by the
State authorities to maintain buildings that were existed before 1969.
As the funds were inadequate to maintain such buildings, the State
took a policy decision to grant incentive FSI for the redevelopment of
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cessed buildings under Regulation 33(7). Clause (5) of Regulation
33(7) permits incentive FSI only in the case of cessed buildings. Dr.
Sathe submits that non-cessed structures are governed by the
ordinary development regulations, including Regulation 30 of DCPR
2034 and the Petitioner cannot claim the special incentive available
under Regulation 33(7). The mere fact that non-cessed structures are
situated on the same property along with the cessed structures would
not entitle their occupants or the developer to claim incentive FSI in
respect of such non-cessed structures. Therefore, according to Dr.
Sathe, the impugned clarification correctly interprets Regulation
33(7)(19) and the Petition deserves to be dismissed.
Reasons and conclusion
9. For appreciating the legal controversy, it would be necessary to
examine the relevant provisions of Regulation 33(7), particularly
clauses (1), (2), (5) and (19).
10. Regulation 33(7) deals with reconstruction or redevelopment
of cessed buildings in the Island City. Clause (1), inter alia , provides
that where development is undertaken by societies or landlords or
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occupants of cessed building, existing prior to 30 September 1969, it
shall be entitled to FSI of 3.00 on the gross plot area or the FSI
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required for rehabilitation of existing tenants plus incentive FSI, as
specified in clause (5)(a), whichever is more, subject to the
conditions stipulated therein. Clause (2) provides for the
rehabilitation entitlements of existing occupants, including the carpet
area to be provided to residential and non-residential occupants.
Clause (5)(a) then provides for the computation of such incentive
FSI, which is determined on the basis of the ratio between the Land
Rate (LR) and the Rate of Construction (RC), as applicable under the
Annual Statement of Rates, and is calculated as a percentage of the
admissible rehabilitation area in accordance with the prescribed
table. It is in this statutory framework that clause (19) of Regulation
33(7) has to be considered.
11. In our view, a plain reading of clause (19) of Regulation 33(7)
makes it clear that the said provision expressly extends the benefit of
the redevelopment framework under Regulation 33(7) to non-cessed
structures, which but for clause (19), would not have qualified under
the incetive scheme applicable to cessed buildings. The heading of
Regulation 33(7)(19) clearly states “ Non-Deduction of non-cessed
Structure area ”. This indicates that the area of the non-cessed
structures is not to be deducted and the FSI is to be considered on the
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total plot area. Further clause (19) expressly states that “ Provision of
clause no 2 above shall be made applicable to non-cessed occupier” ,
thereby confirming that the occupier of a non-cessed structure is
entitled to the same rehabilitation benefits as an occupier of a cessed
structure. The express extension of clause (2) to non-cessed
occupants demonstrates that the State had intended to bring such
occupants within the rehabilitation framework of Regulation 33(7),
notwithstanding the fact that their structures are non-cessed
structures. Lastly, the proviso to clause (19) declares that the non-
cessed land component within the 45% limit “will be eligible for FSI
as per Regulation 33(7) only ”. As such, all non-cessed structures
within the 45% limit will be treated like the cessed component for all
purposes of FSI under Regulation 33(7) and the FSI shall be
considered on the total plot area.
12. In light of the specific language of clause (19), we cannot
accept the arguments advanced by the learned Advocate General,
which proceeds on the premise that since clause (5)(a) refers to
redevelopment of cessed buildings, the benefit of incentive FSI must
remain confined to the occupants of cessed structures alone. It is
undoubtedly true that the historical objective of Regulation 33(7)
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was primarily to facilitate the redevelopment of cessed buildings.
However, the non-cessed structures on a mixed plot that existed
before 1969 are equally old. It would defy logic to extend the
rehabilitation area benefits under clause (2) to non-cessed occupants,
but exclude the corresponding incentive FSI mechanism merely on
the ground that their structures are non-cessed. It is a settled
principle of interpretation of statute that a statutory provision must
be construed in a manner that advances its object and does not
render the provision redundant or nugatory. In our view, the general
words of clause (5)(a) cannot be read in a manner so as to defeat the
specific provision contained in clause (19). Both the clauses i.e.
clause 5(a) and (19) of Regulation 33(7) must be read together so as
to cull out the object of such provision. In our view, the Respondents
cannot seek to introduce a restriction which is not borne out by the
language of the Regulation itself.
13. We may note that the authorities concerned had themselves
understood clause (19) in the manner projected by this Court. The
Respondent No.6, which is the certifying authority under Regulation
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33(7)(3), in its communication dated 13 October 2021 issued to the
Respondent No.3, had accepted that the land component attributable
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to the non-cessed structures was within the prescribed limit of 45%
of the total plot area and therefore, incentive FSI would be available
to the Petitioners’ redevelopment. Though the said communication
would not, by itself, confer any right upon the Petitioners, yet, it is a
relevant circumstance which lends support to the Petitioners' case.
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14. We also find that the impugned clarification dated 24 August
2026 does not disclose any reasons or independently provide an
interpretation to clause (19) for holding that the non-cessed
structures forming part of an otherwise eligible composite
redevelopment would be altogether disentitled to incentive FSI. In
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our view, the impugned clarification dated 24 August 2026 simply
records a conclusion without giving any reasons. The consequential
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rejection dated 31 August 2026 by the Respondent No.2 merely
adopts that clarification, without independent consideration, even
though this Court had twice directed the Respondent No.3-
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Commissioner, on 16 February 2026 and 4 August 2026, to decide
the Petitioners’ request in the light of Regulation 33(7)(19). We find
that both the clarification and the rejection are contrary to the plain
language of Regulation 33(7)(19). The same are unsustainable and
set aside.
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15. For all the above reasons, we hold that clause (19), when read
harmoniously with clauses (2) and (5) of Regulation 33(7), permits
the grant of incentive FSI in respect of eligible non-cessed structures
forming part of a composite redevelopment, provided the land
component attributable to such non-cessed structures is below the
prescribed threshold of 45% of the total plot area and the other
applicable conditions are fulfilled.
16. Accordingly, the Petition is allowed in terms of prayer clauses
(a-1) and (b), which read as under:
“(a-1) This Hon'ble Court be pleased to issue a Writ of
Certiorari or a Writ in the nature of Certiorari or any other
appropriate Writ, Order or directions under Article 226 of
the Constitution of India, calling for the records, papers and
proceedings on the basis of which the Impugned
Order/communication dated 31 August 2026 (alongwith the
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clarification dated 24 August 2026) has been passed/issued
by Respondent No.2 (Exhibit "CC" hereto), and after
examining the legality and validity thereof, this Hon'ble
Court be pleased to quash and set aside the Impugned
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Order/communication dated 31 August 2026 (alongwith
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the clarification dated 24 August 2026);
b. This Hon'ble Court be pleased to issue a Writ of
Mandamus or Writ in the nature of Mandamus or any other
appropriate Writ, Order or direction directing the
Respondents to forthwith process and approve File
No.CHE/CTY/0656/D/337 of the Petitioners and grant
benefit of FSI/incentive FSI to the Petitioners for the area of
the land component under the non-cessed structure of the
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property bearing C.S. Nos. 683, 684 and 685 of Girgaon
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Division, situate at R.K. Wadi, 1 Parsiwada Lane, V.P. Road,
Mumbai-400 004 as per the provisions of Regulation 33(7)
(19) of DCPR 2034 and as per Government Notification
dated 8th July 2021.”
17. Rule is made absolute in the above terms. There shall be no
order as to costs.
(GAUTAM A. ANKHAD, J.) (SUMAN SHYAM J.)
BHARAT
DASHARATH
PANDIT
Digitally signed by
BHARAT
DASHARATH PANDIT
Date: 2026.11.05
18:45:55 +0530
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