Bombay High Court: Whilst March Of Development Can’t Be Halted In Mumbai, It Can’t Run Roughshod Over Concerns Of Preserving Heritage Buildings

The Bombay High Court remarked that, whilst the march of development cannot be halted in Mumbai, the same cannot be permitted to run roughshod over the concerns of preserving heritage buildings.

The Court remarked thus in a Writ Petition preferred by the Trustees of the Jamsetjee Nesserwanjee Petit Institute, a public charitable trust registered under the provisions of the Maharashtra Public Trust Act, 1950 and a society registered under the Societies Registration Act, 1860.

A Division Bench of Justice M.S. Sonak and Justice Jitendra Jain observed, “Fortunately, with the resources the Petitioners could gather, the petitioners' building was restored in 2014-15 to its former glory. UNESCO awarded this restoration as a fine example of cultural heritage conservation. Therefore, there can be no doubt that the protection and preservation of the Petitioners’ building is a must. Whilst the march of development and infrastructural projects cannot be halted in a city like Mumbai, such a march cannot be permitted to run roughshod over the concerns of preserving and maintaining heritage buildings for posterity.”

Advocate Ferzana Behramkamdin represented the Petitioners while AGP Manisha Gawde, Advocates Kavita N. Solunke, and Mayur Khandeparkar represented the Respondents.

Facts of the Case

The Petition concerned the building known as the “J. N. Petit Institute,” along with an arcade constructed on a land of Fort Division, in the Neo-Gothic Revival style, dated 1898. This structure features various ornamental, decorative, and distinctive elements, including a circular staircase tower, bouquets, finials, and tower turrets that shape its silhouette. The Petitioners stated that this building has an extremely shallow foundation, only around three metres deep, and extends beyond the superstructure of the building. This building is a Grade II A Heritage Structure and is regarded as one of the landmark properties along D.N. Road, Fort, Mumbai. The Petitioners pleaded that the said building was renovated in 2014-15 and was conferred the UNESCO Award of Distinction for Cultural Heritage Conservation in 2015.

They further pleaded that the building has always been and is still used as a Reading Room and library, housing 1,00,000 books, including 2,400 rare books and 12 manuscripts, some of which date back to the 17th Century. Metro Line III was proposed to be aligned along the D. N. Road, Fort. Several objections were raised from various quarters to this alignment, mainly because it would seriously affect the structures or stability of the several heritage structures on either side of this road. Even the Mumbai Heritage Conservation Committee (MHCC) objected to this alignment and withheld its No Objection Certificate (NOC) for some time. The MHCC, later, upon being assured that only the tunnelling method would be adopted and that no station, namely the Hutatma Chowk Station, would be constructed at D.N. Road, or that such a station would be built using the cut and cover method, reluctantly agreed to the Metro Line III alignment along D.N. Road.

Before the construction work could commence, the contractors engaged by the Mumbai Metro Rail Corporation Ltd. (MMRCL) sought the Petitioners’ NOC to allow them to enter the Petitioners’ property to carry out a pre-construction survey, to install building monitoring instruments and allow their representatives to read such monitoring instruments. The Petitioners were also requested to furnish structural/as-built drawings of the said building. Despite assurances from MMRCL and its contractor L&T, vibrations from drilling activities near the building allegedly led to damage. In 2017, a limestone finial fell off the structure. Resultantly, the Petition was filed before the High Court.

Court’s Observations

The High Court in the above regard, said, “At this point, it is not for us to either accept or reject the above statements. However, we do not believe it is appropriate to address the Petitioners’ concerns about damage to their building once the Metro Line III becomes operational or functional, based on the assertions in the present Petition or the accompanying materials. The claims in the MMRCL affidavit, if accurate, would, to some extent, alleviate the concerns currently raised by the Petitioners.”

The Court was of the view that it would not be appropriate to entertain, much less deal with Petitioners’ apprehensions of the likelihood of damage to their building once the Metro Line III project becomes operational or functional.

“At least at this stage, that would be too speculative. However, suppose the Petitioners have any concerns in this regard once the Metro Line III project becomes operational. In that case, they can always initiate the filing of appropriate proceedings and seek the necessary relief. Such liberty can always be granted and is always available to the Petitioners”, it further clarified.

Directions

The Court, therefore, issued the following directions –

A) The MMRCL, consistent with the statement made on its behalf, shall reconstruct/restore/ replicate the limestone finial previously forming a part of the Petitioners’ building at its own costs and expenses, subject to the following conditions:

(i) The Petitioners providing MMRCL with all drawings, photographs, plans, etc. and extending full co-operation for such reconstruction/ restoration/ replication works qua the fallen limestone finial.

(ii) The Petitioners obtaining all prior requisite permissions, sanctions, approvals, NOCs, etc. from the concerned authorities, including the heritage authorities for reconstruction/restoration/ replication of the fallen limestone finial.

B) The above works of reconstruction, restoration, and replication of the fallen limestone finial must be completed by the MMRCL within eight months from the date the Petitioners obtain the last of the requisite permissions, sanctions, approvals, or NOCs from the competent authorities.

C) Suppose the Petitioners have any grievances regarding the damage to their building caused by the construction, drilling, and tunnelling activities on the Metro Line III project. In that case, they are free to initiate appropriate proceedings before the suitable forum seeking relevant reliefs. All contentions of all parties concerning this matter are explicitly kept open.

D) If the Petitioners have any concerns regarding the safety and preservation of their building once the Metro Line III project becomes operational or functional, they are at liberty to file appropriate proceedings. All contentions of all parties in this regard are expressly kept open.

E) The observations, if any, in this judgment and order regarding the apprehensions expressed by the Petitioners or the claims of damages caused to the Petitioners’ building due to the construction works on the Metro Line III project are only prima facie and based on the limited material put on record by the parties. Therefore, such observations are not intended to prejudice the Petitioners or the Respondents if they initiate or defend any proceedings under the liberties now granted. All contentions of all parties in this regard remain explicitly open.

Accordingly, the High Court disposed of the Petition.

Cause Title- D.V.M. Patel & Anr. v. State of Maharashtra & Ors. (Neutral Citation: 2025:BHC-OS:10503-DB)

Appearance:

Petitioners: Advocates Ferzana Behramkamdin and Kalyani Deshmukh.

Respondents: AGP Manisha Gawde, Advocates Kavita N. Solunke, Mayur Khandeparkar, and Heenal Wadhava.

Click here to read/download the Judgment