Mumbai : In a major setback for Brihanmumbai Municipal Corporation (BMC), the Bombay High Court on Friday said the “open terrace policy” introduced by the civic body needs a close “scrutinisation.” The HC accordingly directed the three-member Judicial Committee to examine if the policy violates the rights of occupants as contemplated under the Real Estate Regulation Act (RERA) and other ownership laws.
A division bench of Justice Ravindra Borde and Justice Rajesh Ketkar also said it is the “institutional” failure of BMC and other authorities as the loss of 14 lives is attributable to the civic body since several of its officials were glove-in-hand with owners of the eateries. This order was passed while hearing a Public Interest Litigation (PIL) seeking an independent probe in the Kamala Mills fire mishap.
In their detailed order, the judges said, “The open terrace policy of the civic body which allows use of open terrace as a service area for serving food in a commercial establishment. We have gone through the policy of the civic body. However, we cannot be unmindful of the shocking incident taking toll of 14 lives and we are of the view that the policy adopted by the BMC needs to be implemented with a lot of circumspection.”
“It shall be appropriate to have a scrutiny of the policy by the independent committee. Certain issues which probably need to be considered appears to have been neglected. The aspect of live load factor from the point of view of structural design and structural stability needs to be taken into account. Before according any permission for conducting any activity on the terrace a structural audit of the building and more particularly the area proposed to be utilised for the commercial activity needs to be secured,” the judges added.
The judges also noted another aspect that it is while raising the construction that the terrace area is not normally designed to bear the live load which is under contemplation while putting the said area for use of commercial purposes.
The judges said, “If at all any commercial activity is to be permitted at the open terrace the access shall have to be as per the parameters or norms prescribed and applicable for access areas. In the instant case, as a result of blockage of access, the unfortunate incident had occurred resulting in loss of 14 lives. Therefore, the policy shall have to be closely scrutinised and only then shall be put to implementation.”
Meanwhile, the judges also pulled up civic chief Ajoy Mehta and his officials for their failure to regulate the eateries. The order states, “The civic chief and other high-ranking officials being heads of the corporation and its departments, having responsibility to regulate and control activities of the subordinates, cannot disown their vicarious liability. The conclusions drawn by the civic chief himself, prompt us to direct and independent probe by a committee unconnected with affairs of the civic body and the government.”