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Tall Claims

A recent case of the Bombay High Court refusing to allow relaxation of height norms for a building near Mumbai’s airports is another example of rules being recklessly flouted by builders 

By Vikram Kilpady

All property development in India since the 1970s has gone skyward. This is worrisome in urban villages that dot Delhi and Mumbai, and is a threat when haphazard construction crops up near sensitive areas like airports.

Recently, the Bombay High Court refused to make concessions on the plea of a builder of a high-rise apartment complex in Mumbai’s Chembur village to relax norms on building height. The reason was that the height and altitude of the location together exceeded the permissible height by 11 metres. The Airports Authority of India (AAI) has set rules for construction in Chembur village, which is ostensibly on the flight path of aircraft landing and taking off from Chhatrapati Shivaji International Airport and the Mumbai domestic airport.

The bench of Justice Gautam Patel and Justice Kamal Khata said that aviation safety and standards cannot be compromised under any circumstances. The petitioner, a member of the housing society who had been allotted a flat on the 10th floor, had moved the Court when the Brihanmumbai Municipal Corporation (BMC) held up releasing the occupancy certificate over violations in aviation height restrictions. The petitioner had to withdraw the plea when the BMC said it had okayed a part-occupancy certificate up to the 11th floor.

As per AAI rules, buildings in Chembur village are not allowed to exceed 56.27m above sea level. This means that the height of the building would include the height of the site location. The developer, Shubham Construction, had been permitted by the BMC to construct a building of 56.05m in height, but the structure delivered ended up with a height of 60.60m. Added to the building site’s 6.73m elevation, the building’s proposed final height was over 11m in excess of the permitted 56.27m.

The High Court then ordered the developer and the housing society to take steps necessary to bring the entire structure within the permitted regulatory limits within six months. It also directed the BMC not to grant a final occupation certificate unless the building complied with the required height rules.

Now the task is on the developer and the society to accommodate all the flats sold till the 11th floor within the 56.27m height. People who had paid premiums for their penthouses would now have to be slotted within the height by reimagining the common area of the property. Some may not even get the prized 2BHK flats, urban India’s most sought-after flat-dimension, or may need to be accommodated in other properties of the builder.

The situation is not that hunky dory in Delhi either. Social media is replete with images of the green area surrounding the Indira Gandhi International Airport and the urban sprawl of Palam right next to it. Most domestic flights from Delhi take off and turn over the concrete sprawl which has the best and most haphazardly allocated bungalows. So the sore sight is far from being a state secret. A similar sprawl is also visible abutting the green of the Dhaula Kuan Cantonment on sides that are not arterial roads and shrub land.

The concern is not for air safety alone. Courts have not shied away from protecting environmental norms or coastal regulatory zone (CRZ) regulations either. Four years ago in the second week of January, four illegal plush waterfront apartments in Kochi were reduced to dust in controlled implosions after they were found to be violating CRZ norms.

The flats in Kochi’s Maradu municipality were within 200m of the high tide line and along the Vembanad Lake which surrounds the city. The four apartments—Golden Kayaloram, Alfa Serene, Jain Coral Cove and H20 Holy Faith—were demolished in 2020 on the Supreme Court’s orders. The media was flooded with pictures of the demolition, turning the verdant green of the Kochi backwaters into a resemblance of the NCR’s hazy, post-Diwali skyline for a few days.

Some 300 families were evacuated, and those who had documents in order were granted a compensation of Rs 25 lakh by the Kerala government as per the apex court order. The builders were made to repay the amount to the state government and ordered to cough up still more compensation.

In another case, the Supreme Court ordered the controlled demolition of Supertech Twin Towers in Noida in August 2022. This followed when residents of a neighbouring property, Emerald Court, approached the Court when Supertech tinkered with the project’s approved plans to accommodate two 40-storey towers in the green area meant for Emerald Court. Both the Allahabad High Court and the Supreme Court ordered the demolition after the Noida Authority chose not to act on the residents’ complaint. The Supreme Court noted that the builder and the Noida Authority had engaged in nefarious complicity. The apex court directed that the towers be demolished at the builder’s expense. One man’s tower home was another man’s green-area encroachment.

The entire focus of one’s growing up, getting married and raising a family is to have a house of one’s own. With this in mind, a vast majority of salaried middle-class householders across India succumb to the noose of Equated Monthly Installments (EMIs) in the pursuit of becoming home owners. This need is foisted upon people because rent control legislations have collapsed by the wayside as all space becomes prime real estate. In some cities, where such laws are still in effect, the huge security deposit, almost a year’s rent in effect, pushes people to buy property in a new suburb that is yet to gain connectivity instead of living on rent and the pressure of annual moves. Not to mention the kutcha path that leads to it.

This is how development works in India. Roads and the rest come later, again delayed by a slew of new projects. Property developers have, meanwhile, fled the scene after handing over possession and declared themselves insolvent. Those who obtain flat possession are lucky and few; a vast majority don’t get their flats at all and have to spend years and years in courts for a refund or for project completion.

Simultaneously, in the cities’ older sections, the craze for new property has razed former 100 or 200 square yard properties to make way for builder flats constructed like beehives. Green areas, which escape the forest definition by a whisker, are premium locations for builders to swoop on. The best part for developers and builders is that there is no dearth of buyers in the premium segments and no shortage of those looking for discounts, aka the budget crowd.

Of late, even industrialist groups such as the Tatas and Godrej have turned to the real estate golden goose. After all, the margins are much, much higher there.

The blind dash to buy flats fearing the often-advertised imminent price hike leads many a buyer to overlook sketchy deals. The flat owners of the Chembur village property may have thought they were getting the deal of a lifetime, what with the vistas its balconies may have commanded. 

With a six-month deadline looming for the builder and the housing society to make the adjustments, some Mumbai flat owners, like the flat buyers in Maradu, are now ruing their lack of due diligence before their property purchase. 

Post-facto, the law can help, but until then, it can only say, buyer beware.

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