Eligible non-cessed structures on a mixed redevelopment plot can attract incentive FSI under Mumbai’s development regulations, the Bombay High Court has held. The Court set aside the State’s contrary clarification and the municipal rejection of Earth Graphics’ proposal, subject to the regulation’s land-area threshold and other applicable conditions.
Mumbai: The Bombay High Court has held that the incentive floor space index (FSI) available under Regulation 33(7) of the Development Control and Promotion Regulations for Greater Mumbai, 2034 extends to eligible non-cessed structures forming part of a composite redevelopment [Earth Graphics and Another v. State of Maharashtra and Others].
A Division Bench of Justices Suman Shyam and Gautam A. Ankhad delivered the judgment on November 5, 2026. Justice Ankhad authored the decision.
The ruling concerns mixed plots with cessed and non-cessed structures existing before September 30, 1969. The Court held that the benefit is available where the land component attributable to the non-cessed structures is below 45% of the total plot area and the other applicable conditions are fulfilled.
A Girgaon redevelopment stalled over eligibility
Earth Graphics owns a 2,882.32-square-metre property at R.K. Wadi, Girgaon, comprising three plots. Two contain only cessed structures; the third contains both categories. The non-cessed component accounts for 15.91% of the plot area. The judgment records that all the structures were built before 1940 and that the property has 115 residential and 46 commercial tenants or occupants.
The developer sought permission for additional floors using incentive FSI. In October 2021, the Mumbai Building Repairs and Reconstruction Board informed the municipal authorities that the non-cessed land component fell within the prescribed threshold and was eligible for the incentive.
Following repeated representations and two court directions to decide the request, the State issued a clarification on August 24, 2026 excluding incentive FSI for the non-cessed component of mixed redevelopment. The municipal corporation relied on that clarification to reject the request on August 31.
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Rehabilitation benefits and incentive FSI must be read together
The petitioners argued that clause (19) expressly brings eligible non-cessed structures within Regulation 33(7). The State maintained that incentive FSI was designed for cessed buildings and that non-cessed structures remained governed by the ordinary development regulations.
The Bench rejected the State’s interpretation. It read clause (19) alongside clause (2), which deals with occupants’ rehabilitation entitlements, and clause (5), which governs computation of incentive FSI.
In paragraphs 11 and 12, the Court explained that clause (19) prevents deduction of the eligible non-cessed area, extends the rehabilitation framework to its occupants and makes the qualifying land component eligible for FSI under Regulation 33(7). The general wording of clause (5) could not defeat that specific extension.
The Court reasoned that granting rehabilitation-area benefits to occupants of old non-cessed structures while withholding the corresponding incentive mechanism would undermine the provision’s purpose. Authorities could not introduce a restriction absent from the regulation’s language.
State clarification and municipal rejection quashed
The Bench also found that the State’s clarification merely stated a conclusion without reasons. The municipal rejection adopted it without independent consideration, despite the earlier court directions.
The 2021 communication from the reconstruction board supported the petitioners’ interpretation, the Court observed, although that communication did not itself create an entitlement.
Allowing the petition, the Court quashed both communications and granted the prayer directing the authorities to process and approve the petitioners’ file and extend the applicable FSI or incentive-FSI benefit under Regulation 33(7)(19) and the July 8, 2021 government notification.
The decision does not give every non-cessed building an independent entitlement to the incentive. It addresses eligible structures within a composite redevelopment, with the prescribed threshold and other conditions continuing to apply. No costs were ordered.
Case: Earth Graphics and Bhupesh Jain v. State of Maharashtra and Others
Number: Writ Petition (L) No. 23230 of 2026
Court: Bombay High Court, Ordinary Original Civil Jurisdiction
Bench: Justices Suman Shyam and Gautam A. Ankhad
Decision: November 5, 2026; reserved November 2, 2026
Citation: 2026:BHC-OS:24151-DB
Outcome: Petition allowed; clarification and rejection quashed; processing and approval with applicable FSI benefits directed.