Bombay HC Allows Incentive FSI For Pre-1969 Non-Cessed Structures In Mixed Redevelopment Where Their Land Component Is Under 45% Of Plot Area

In brief

The question

1. Whether Regulation 33(7)(19) of the DCPR 2034 permits incentive FSI for eligible non-cessed structures forming part of a composite redevelopment with cessed structures, where the non-cessed land component is below 45% of the total plot area

The court held

The Court held that Regulation 33(7)(19), read harmoniously with clauses (2) and (5), permits incentive FSI for eligible non-cessed structures in a composite redevelopment where the land component attributable to them is below the 45% threshold and other applicable conditions are met

It also directed

It quashed the State’s clarification dated 24 August 2026 and the Corporation’s rejection dated 31 August 2026, and directed the respondents to process and approve the petitioners’ proposal and grant the applicable FSI/incentive FSI

01Facts

The petitioners owned a 2,882.32 sq. m. property comprising cessed and non-cessed structures, all constructed before 1940. The land component under the non-cessed structures was 15.91% of the total plot area, and the property was being redeveloped under Regulation 33(7) of the Development Control and Promotion Regulations for Greater Mumbai, 2034 (“DCPR 2034”)

p. 3 · ¶ 3

The Mumbai Building Repairs and Reconstruction Board considered the non-cessed land component eligible for incentive FSI because it was within the 45% limit, but the municipal authorities did not grant permission

p. 4 · ¶ 4

After the State clarified that incentive FSI was unavailable for non-cessed structures in a mixed redevelopment, the Municipal Corporation rejected the petitioners’ request. The petitioners challenged both decisions

p. 5 · ¶ 6

02Issues

i.1. Whether Regulation 33(7)(19) of the DCPR 2034 permits incentive FSI for eligible non-cessed structures forming part of a composite redevelopment with cessed structures, where the non-cessed land component is below 45% of the total plot area

p. 3 · ¶ 2 · pp. 8–9 · ¶ 11–12

ii.2. Whether the State’s clarification and the consequential rejection of the petitioners’ request were legally sustainable

p. 10 · ¶ 14

03Law Applied

Regulation 33(7)(1) provides for FSI in the redevelopment of qualifying cessed buildings; clause (2) sets out rehabilitation entitlements for occupants; and clause (5)(a) prescribes the method for calculating incentive FSI

p. 7 · ¶ 10

Clause (19) extends the clause (2) rehabilitation framework to non-cessed occupants and provides that the qualifying non-cessed land component—within the prescribed 45% limit—is eligible for FSI under Regulation 33(7)

pp. 8–9 · ¶ 11

The provisions must be read harmoniously, giving effect to the specific terms of clause (19); a construction that makes its extension of benefits ineffective or redundant should be avoided

p. 9 · ¶ 12

04Reasoning

The Court read clause (19) with clauses (2) and (5), finding that its express application of clause (2) to non-cessed occupants brought them within Regulation 33(7)’s rehabilitation framework. It considered that denying the corresponding incentive FSI would undermine that extension and would impose a restriction not found in the regulation’s text

pp. 8–9 · ¶ 11–12

The Board’s earlier confirmation that the non-cessed land component met the 45% threshold supported the petitioners’ position, though it did not itself confer a right

p. 10 · ¶ 13

The State’s clarification gave no reasons for excluding non-cessed structures from incentive FSI, and the Corporation’s rejection merely adopted that conclusion without independent consideration

p. 10 · ¶ 14