X : @vivekbhavsar
Mumbai : In the ongoing series titled “The Controversial Tenure of Civic Chief Iqbal Singh Chahal : A review of accusations and their consequences,” I explore the debated actions and decisions taken by Mr Iqbal Singh Chahal while serving as the Municipal Commissioner of the BrihanMumbai Municipal Corporation (BMC).
This series aims to uncover instances of Misuse of Power and dereliction of duty, by this senior IAS officer, who is accused of exceeding his authority by granting approvals beyond his powers and the scope of the DCPR 2034, allegedly to favor specific developers.
In this article, I concentrate on the third question I addressed to Mr Iqbal Singh Chahal, analysing his response and evaluating its relevance and suitability. Here is the third question, his answer, and my analysis alongside the facts.
My question to Mr Iqbal Singh Chahal:
3. Unauthorised constructions were regularised under the provisions of the circular dated 12 May 2021. Which specific provision of the DCPR 2034 was utilised to grant additional Floor Space Index (FSI)?
Reply received from Mr Iqbal Singh Chahal to my above question:
3) The decision in the circular was not regularising blanket illegal and unauthorised development, but to consider extent of penalty to regularise elevation features which were approved but the same were merged in habitable areas. The same were to be regularised by counting them in FSI, as per the provisions of DP/DCP Regulations in force.
My Analysis with the Facts:
In the response, it was noted that Mr Iqbal Singh Chahal approved the regularisation of elevation features and the free of FSI which were already been merged into habitable areas. In many instances, these violations were not only flagged by the concerned officials of the BMC but also seemed to have prompted the Hon’ble Courts to issue orders for restoring buildings according to the Occupancy Certificate plan.
In an effort to regularise these buildings, Mr Iqbal Singh Chahal reportedly shifted the Road Line (RL) of a dead-end road, enabling the regularisation by granting the additional FSI based on road width. He took significant measures to legalise the unlawful merging of free of FSI areas into habitable spaces, which was deemed impossible under the DCPR 2034. It seems that some buildings were regularised by Mr Chahal not only by granting illegal approvals but also by overstepping his authority to help certain developers, who might be close acquaintances of Mr Iqbal Singh Chahal.
Regarding the Fire Protection and Fire Safety Requirements outlined in the Model Building-Bye-Laws by the Ministry of Housing and Urban Affairs of the Government of India, the following are the regulations for Fire Escape :
Fire Escapes or External Stairs:
a) Fire escape shall not be taken into account while calculating the number of staircases for a building.
b) All fire escapes shall be directly connected to the ground.
c) Entrance to the fire escape shall be separate and remote from internal staircase.
d) The route to fire escape shall be free of obstructions at all times except the doorway leading to the fire escape which shall have the required fire resistance.
e) Fire escape shall be constructed of non-combustible materials.
f) Fire escape stairs shall have straight flight not less than 125 cm wide with 25 cm treads and risers not more than 19 cm.
g) Handrails shall be at a height not less than 100 cm.
h) Fire escape staircase in the mercantile, business, assembly, hotel buildings above 24 m. height shall be a fire tower and in such a case width of the same shall not be less than the width of the main staircase. No combustible material shall be allowed in the fire tower.
In light of the facts mentioned, Mr Iqbal Singh Chahal allowed the merging of the Fire Escape Passage into a Habitable Area. This raises the question of whether the Municipal Commissioner has the authority to override the provisions outlined in Part IV (Fire & Life Safety) of the National Building Code 2016, the Fire Protection and Fire Safety Requirements of the Model Building Bye-Laws, and the provisions of the Maharashtra Fire Prevention and Life Safety Measures Act, 2006.
Previously, according to the approved plan, parking was permitted on all floors of certain buildings, and the number of parking spaces was approved accordingly. It was later discovered that the developer and/or the owner and/or the user had merged all areas, including parking spaces that were free of FSI, into habitable areas. Mr Iqbal Singh Chahal approved the regularisation of merging of the free of FSI including merging of the parking areas in to Habitable areas by citing the provisions of the circular dated 12 May 2021. This act raises the question:
If the parking area has been converted into habitable areas, how is the deficiency in parking spaces addressed by the user?
It seems that the developer or user applied for a concession for the parking deficiency. If this is the case, another question arises: why did Mr Iqbal Singh Chahal shift the Road Line (RL) of the dead-end road?
If the concession for parking deficiency was approved by Mr Iqbal Singh Chahal, it suggests that traffic on the road is not heavy. If this is true, then why was the proposal for shifting of RL was approved by Mr Iqbal Singh Chahal?
This prompts another question regarding the actions of the officials from the Building Proposal Department (BP). Under which regulation did the BP officials accept and submit an unlawful proposal to secure unauthorised approvals to regularise the merging of free gf FSI into habitable areas of the respective building, even though additional FSI was legally unavailable?
In January 2012, the Government of Maharashtra announced amendments to the Development Control Rules of 1991 for Mumbai, primarily aimed at enhancing transparency and reducing arbitrary and discretionary decision-making at various levels. The new rules meant pricing based on the maximum available FSI, which eliminated the ambiguity that had largely been prevalent with respect to disproportionate saleable areas.
Previously, developers built about 30 to 40 percent more as ‘Free-of-FSI’ space, popularly known as ‘super built-up’ or ‘saleable’ area. In both cases, developers charged buyers for every inch of this external space at the same rate as that of the flat.
For instance, one developer built 40 percent additional space over and above a flat size of, say, 800 sq ft carpet area, i.e., 320 sq ft, aggregating to 1120 sq ft identified as the built-up area. If the rate was Rs 20,000 per sq ft, he would earn on the entire built-up area, an additional Rs 64 lakhs, whereas in reality, the buyer received only 800 sq ft as habitable carpet area. One could easily calculate the profits the developer stood to make from every other flat.
Under the new DCR, areas for balconies, flower-beds, terraces, voids, and niches were to be counted in the FSI. These had not been previously considered in FSI calculations. To compensate for this loss in FSI, the Government allowed Compensatory Fungible FSI of up to 35% for Residential Developments and 20% for Industrial and Commercial Developments. This could be used either for a bigger habitable area or for balconies, flower-beds, terraces, voids, niches, etc.
Fungible FSI was available at 60%, 80%, and 100% of the Ready Reckoner (RR) Rates for Residential, Industrial, and Commercial Developments, respectively. Under the new norms, developers had the option of 25% more parking over the DCR limit without a premium and without being counted in FSI, which brought much-needed relief to developers and end-users alike.
After the introduction of the Fungible Area in January 2012, areas like balconies, flower beds, and niches were counted in the building’s FSI; the ratio determined how much could be built on a plot. In return, builders received compensatory FSI of 35% for residential buildings, for which they were charged a hefty premium based on Ready-Reckoner Rates.
After January 2012, the government introduced a Premium-based Fungible FSI, which eliminated the concept of “free of FSI” areas. This change meant that any plans submitted by architects or developers that included free of FSI were rejected. As a result, integrating free FSI areas into habitable spaces was no longer possible for buildings approved after January 2012, since free of FSI was completely abolished. Therefore, incorporating elevation features and free FSI into habitable areas was only feasible for buildings with plans approved before January 2012, provided they were constructed as per those plans.
The free of FSI was approved according to the existing policy and the Development Control Regulations (DCR) 1991 before January 2012. This means that the buildings regularised by citing the circular dated 12 May 2021, were constructed before January 2012 (i.e. prior to the introduction of Fungible FSI). These had already been granted Occupation Certificates (CC) by the Building Proposal Department well before the elevation features and free FSI areas were unlawfully merged into habitable areas and subsequently regularised by Mr Iqbal Singh Chahal, citing the COVID-19 pandemic as justification.
On 04 November 2018, Hon’ble Justice Abhay Oka, in his decision to strike down Section 52(A) of the MRTP Act 1966, stated that structures could be regularised by modifying or altering them to comply with the Development Control Regulations (DCR). However, if the Floor Space Index (FSI) used exceeds what is permissible under the MRTP Act and DCR, such structures cannot be regularised.
Despite these above facts, Mr Iqbal Singh Chahal did not seek approval from the Urban Development Department (UDD) of Maharashtra State, nor did he obtain an opinion from the Law & Judiciary Department of Maharashtra State or the Chief Law Officer of the BMC.
Possible reasons for not obtaining these approvals could include:
Anticipation of Rejection : Mr Chahal might have been concerned that the UDD would not grant approval for regularising FSI that exceeds the permissible limits.
Legal Opinion : Mr Chahal may have feared that the legal opinions from the Law & Judiciary Department or the Chief Law Officer of the BMC would advise against regularising the additional FSI, as it contradicts the existing regulations.
Upon reviewing the documents, it seems that Mr Iqbal Singh Chahal, during his tenure as the Commissioner of the BMC, deliberately and knowingly exceeded his authority. He allegedly granted approvals outside his jurisdiction and issued illegal approvals that violated the provisions of the DCPR 2034. This misuse of power, under the pretext of addressing hardship, reportedly benefited private individuals and/or companies, resulting in a significant financial loss of hundreds of crores to the government treasury.
I believe Mr Iqbal Singh Chahal, in his capacity as a senior IAS officer, should provide justification for the decisions he made while serving as the Municipal Commissioner of the BMC. In the forthcoming Part V, I will delve into the Fourth question posted to Mr Iqbal Singh Chahal, detailing his response and offering my analysis alongside the facts.
……Stay tuned for more…
