Bombay High Court
Ngo Alliance For Governance And … vs State Of Maharashtra And Ors on 19 June, 2025
Author: Amit Borkar
Bench: Amit Borkar
2025:BHC-OS:8961-DB
oswp1152-2002-J-Final.doc
AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.1152 OF 2002
1. NGO Alliance for Governance and
Renewal (NAGAR), having it's
registered office at Cecil Court,
3rd Floor, M. Kavi Bhushan Marg,
Colaba, Mumbai 400 001
2. Neera Punj of Mumbai, Indian
Inhabitant, Convenor of CitiSpace
residing at 1, Lotus Court, J. Tata
Road, Churchgate, Mumbai 400 020
ATUL 3. Nayana Kathpalia of Mumbai, Indian
GANESH
KULKARNI Inhabitant, Member of the Steering
Digitally signed by
ATUL GANESH
KULKARNI Committee of CitiSpace having her
Date: 2025.06.19
12:12:17 +0530
address at 132, M. Karve Road,
Churchgate, Mumbai 400 020 ... Petitioners
V/s.
1. State of Maharashtra, through the
Department of Urban Development,
having it's office at Mantralaya,
Mumbai 400 032
2. Slum Rehabilitation Authority, a
statutory authority appointed under
Section 3A of the Maharashtra Slum
Areas (Improvement, Clearance & Re-
development) Act, 1971, through it's
Chief Executive Officer, having his office
at 5th Floor, Grihanirman Bhavan,
Bandra (East), Mumbai 400 051.
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3. Greater Mumbai Municipal Corporation,
a body constituted under the Bombay
Municipal Corporation Act, 1888 having
it's office at Mahapalika Marg, Mumbai
4. Public Concern for Conveyance Trust,
a charitable trust registered under the
Bombay Public Trusts Act, 1950, through
it's Chairman Mr. B.G. Deshmukh,
having its office address at 55, Kavi
Apartments, Dr. R.G. Thadani Marg,
Worli, Mumbai 400 018 ... Respondents
WITH
INTERIM APPLICATION NO.1771 OF 2022
IN
WRIT PETITION NO.1152 OF 2002
Naredco West Foundation ... Applicant
In the matter between
NGO Alliance for Governance and
Renewal (NAGAR) & Ors. ... Petitioners
V/s.
State of Maharashtra, through Urban
Development Department & Ors. ... Respondents
WITH
INTERIM APPLICATION (L) NO.28459 OF 2021
IN
WRIT PETITION NO.1152 OF 2002
Pandurang D. Chalke & Anr. ... Applicants
In the matter between
NGO Alliance for Governance and
Renewal (NAGAR) & Ors. ... Petitioners
V/s.
State of Maharashtra, through Urban
Development Department & Ors. ... Respondents
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WITH
INTERIM APPLICATION (L) NO.30716 OF 2021
IN
WRIT PETITION NO.1152 OF 2002
Slum Redevelopers Association & Ors. ... Applicants
In the matter between
NGO Alliance for Governance and
Renewal (NAGAR) & Ors. ... Petitioners
V/s.
State of Maharashtra, through Urban
Development Department & Ors. ... Respondents
Mr. Shiraz Rustomjee, Senior Advocate with Ms. Gulnar
Mistry, Mr. Akash Rebello, Mr. Prateek Pai, Mr. Peterasp
Sasuri, and Mr. Shabbir Jariwala i/by Jariwala
Associates for the petitioners.
Mr. Anil Y. Sakhare, Senior Advocate (Special Counsel)
with Mr. Abhay Patki, Additional G.P. for the
respondents-State.
Dr. Milind Sathe, Senior Advocate with Mr. Girish
Utangale, Mr. Gaurav Srivastav, Mr. Saurabh Utangale,
Mr. Sarthak Utangale, Mr. Rohan Sawant and Mr.
Vedant Joshi i/by M/s. Utangale & Co. for respondent
No.2-SRA.
Mr. Ram Apte, Senior Advocate (through V.C.) with Ms.
Anuja Tirmali i/by Komal Punjabi for respondent No.3-
MCGM.
Mr. Netaji Gawade i/by M/s. Sanjay Udeshi & Co., for
respondent No.4.
Mr. Mayur Khandeparkar with Mr. Anosh Sequeiria,
and Mr. Joran Dwan i/by Diwan Law Associates for the
applicant in IAL/19651/2022.
Mr. Pravin K. Samdani, Senior Advocate with Mr.
Mayur Khandeparkar, Mr. Vikramjeet Garewal, Mr.
Nitesh Ranawat, Ms. Disha Shetty, Mr. Mustaqueem
Bagasaria, and Ms. Jyothi Tated i/by Wadia Ghandy &
Co., for the applicant in IA/1771/2022.
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Mr. Ashish Kamat, Senior Advocate with Mr. Ranjeev
Carvalho, and Mr. Rishabh Murali i/by M/s. ABA Law
for the intervenor in IA/28459/2021.
Mr. Abhishek Kothari with Mr. Rohaan P. i/by M/s.
Trilegal for the applicant/intervenor in IAL/
30716/2021.
CORAM : AMIT BORKAR &
SOMASEKHAR SUNDARESAN, JJ.
RESERVED ON : MAY 3, 2025
PRONOUNCED ON : JUNE 19, 2025
JUDGMENT:
(Per Amit Borkar J)
Table of contents:
A) Submissions of Petitioners: i) Background ........................................................6 ii) Constitutional and Doctrinal Grounds............................16 iii) Violation of the Principles of Substainable
Development and the Precautionary Principle………………20
iv) No Vested Right to In-Situ Rehabilitation on
Reserved Open Spaces…………………………………………27
v) Regulation 17(3)(D)(2) Does Not Constitute a
New Policy………………………………………………………30
vi) Planning Committee Report…………………………………..33
vii) Challenge to the Applicability of Sections 3X(a), 3X(c) &
37 of the Slum Act in the Context of Reserved Open
Spaces……………………………………………………………37
viii) Judicial Precedents Against In-Situ Rehabilitation on
Reserved Lands…………………………………………………39
ix) Prayer for Reading Down or Striking Down…………………40
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B) Submissions of respondent No.2:
i) Status of Petitioners and compliance with PIL Rules……….41
ii) Nature of Challenge in the Petition and Grounds of
Objection………………………………………………………..43
iii) Grounds in original Petition of 2002…………………………44
iv) Grounds Added after amendment in 2022………………….45
v) Background to Development Control Regulations and Policy
Evolution………………………………………………………..46
vi) Legal and Factual background to Slum rebabilitation Policy
and DCPR 2034………………………………………………..50
C) Submissions on behalf of respondent No.1-State:
i) Submissions …………………………………………………….60
ii) Findings & recommendations of the Afzalpurkar
Committee………………………………………………………65
iii) Contextual Background and justification for impugned
Regulation………………………………………………………68
iv) Legal Framework and Validity of Regulation 17(3)(D)(2)
of DCPR 2034 under the MRTP Act………………………….71
D) Judicial Precedents cited:
i) Delegated Legislation & Limited Scope of Challenge ………74
ii) Policy Justification for Regulation 17(3)(D)(2)…………….74
iii) Presumption of Constitutionality & Burden on the
Petitioner………………………………………………………..76
iv) Right to Shelter & State’s Constitutional Obligation……….77
v) Balancing of Competing Public Interests under
Town Planning Laws…………………………………………..78
E) Submissions on behalf of the Intervener:
i) Slum Dwellers’ Society………………………………………..80
ii) Submissions on behalf of Intervener – NAREDCO West
Foundation……………………………………………………..925
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oswp1152-2002-J-Final.docF) Rejoinder on behalf of Petitioner:
i) Respondents’ misplaced reliance on the Afzulpurkar
Committee Report………………………………………………96
ii) Response to the Contention that there are no grounds
in the Petition regarding Regulation 17(3)(D)(2)…………100
iii) On the Objection to the Locus Standi of the
Petitioners……………………………………………………..102
iv) Without Prejudice – NAGAR’s Entitlement to
Maintain the Petition…………………………………………103
G) Analysis and Findings:
i) Reasoning on preliminary objections……………………….105
ii) Issues for Determination…………………………………….121
iii) Planing History and Rationale (1991-2034)………………123
iv) Validity of Regulation 17(3)(D)(2) of DCPR 2034……….128
v) Ultra Vires (Substantive or Procedural)……………………129
vi) Constitutional Grounds- Article 14 (Arbitrariness)……….132
vii). Article 21(Environment vs. Shelter)………………………..142
viii) Precautionary Principle………………………………………157
ix) Public Trust Doctrine…………………………………………160
x) Interpretation of Sections 3X and 3Z – Rights of
Slum Dwellers and Public Interest Reservations…………..166
xi) Case Law Analysed…………………………………………..170
xii) Final Observations and Directions………………………….183
***************
1. The petitioner, a public-spirited organization committed to
the protection of public spaces, has approached this Court
challenging the consistent use of public open spaces that are
reserved for recreational purposes, for the purposes of6
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oswp1152-2002-J-Final.docimplementing slum rehabilitation schemes. The grievance
primarily revolves around the State’s Notification issued in the
year 1992 by the Urban Development Department (” UDD”), and
also challenges the later Regulation 17(3)(D)(2) of the
Development Control and Promotion Regulations, 2034
(hereinafter referred to as DCPR 2034), which was brought into
effect by an amendment notified in the year 2022.
2. As per the newly inserted Regulation 17(3)(D)(2), it is now
permitted that open spaces (which are otherwise non-buildable
and reserved under the Development Plan for parks, gardens,
playgrounds, etc.) and which exceed 500 square meters in area,
can be used for slum redevelopment schemes, subject to the
condition that at least 35% of the ground area is kept vacant and
continues to serve the designated public reservation. However, the
petitioner submits that the said Regulation, in effect, legalizes the
diversion of up to 65% of the land from its reserved public use for
the purpose of construction, thereby significantly diluting the
purpose of reservation and denuding the city of its much-needed
green and open spaces. This, according to the petitioner, is directly
against the letter and spirit of sustainable development and the
public trust doctrine, which require that public assets such as parks
and open spaces be preserved for collective enjoyment of the
community, and not be sacrificed to accommodate encroachments
or private development, even under the banner of welfare
schemes.
3. The facts stated in the petition and the circumstances which
have come on record during the course of proceedings, including7
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oswp1152-2002-J-Final.docthose placed before this Court by way of written submissions
tendered on behalf of the parties, are set out hereunder for proper
appreciation and adjudication of the issues arising in the present
matter. These facts form the foundational basis upon which the
rival contentions rest and which need to be considered for
determining the legality and propriety of the action impugned in
the writ petition.
4. The petitioner submits that this Regulation of 2022 is not an
isolated or a new provision but is rather in continuation and
expansion of the 1992 Notification, issued by the State
Government under Section 31 of the Maharashtra Regional and
Town Planning Act, 1966 (MRTP Act). This earlier Notification had
laid down a policy for the development of lands reserved in the
Development Plan under the Development Control Regulations for
Greater Bombay, 1991 (DCR 1991) that were already under
encroachment by slum dwellers. Under the 1992 Notification, in
cases where 25% or more of a reserved site (such as land reserved
for recreation) was encroached upon by slums, redevelopment
under Slum Rehabilitation Schemes was permitted. However, this
was permitted only on the condition that not more than 67% of
such reserved open space would be used for slum rehabilitation
construction, and the remaining 33% would be kept vacant and
used for its originally intended purpose. The petitioner contends
that the present Regulation 17(3)(D)(2), though seemingly
aligned with the earlier Notification, has in fact worsened the
situation. While the 1992 policy required a minimum area of 1,000
square meters to be eligible for such rehabilitation schemes and8
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oswp1152-2002-J-Final.docrequired at least 33% open space, the new Regulation lowers the
minimum land area to 500 square meters and permits a reduction
in public reservation to just 35%. This means, in effect, more
smaller open plots can now be used for construction, thereby
further fragmenting and reducing the already scarce open space
available in Mumbai.
5. The DCR 1991, which preceded DCPR 2034, was framed
under the MRTP Act. The 1992 Notification, which was issued
under Section 31 of the MRTP Act, was the beginning of a pattern
whereby the State sought to use its power to modify reserved land
uses in favour of slum rehabilitation.
6. In 1995-96, amendments were made to the Maharashtra
Slum Areas (Improvement, Clearance and Redevelopment) Act,
1971 (hereinafter referred to as the Slum Act). A new Chapter I-A
was inserted to legally enable and regulate Slum Rehabilitation
Schemes. Pursuant to these amendments, the Slum Rehabilitation
Authority (SRA) was constituted by the State Government through
a Notification under the Slum Act and was entrusted with the task
of implementing slum redevelopment projects. Further, in exercise
of powers under Section 37(2) of the MRTP Act, the State issued a
Notification modifying Regulation 33(10) of the DCR 1991 and
inserting Appendix IV, which laid down terms and conditions for
slum rehabilitation. Clause 7.3 of the Appendix notably reduced
the minimum land requirement from 1,000 square meters to 500
square meters, thereby broadening the scope for using reserved
lands for rehabilitation projects.
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7. The petitioner further highlights that the definition of a
‘protected occupier’ under the Slum Act has undergone
considerable change over the years. While the original cut-off date
for determining eligibility of slum dwellers for free rehabilitation
was 1st January 1976, successive amendments have extended this
date to 1st January 1995, 1st January 2000, and now to 1st
January 2011. As a result, a larger pool of persons now fall within
the category of those eligible for free in situ rehabilitation, which
in turn increases the burden on scarce urban land, including
reserved open spaces.
8. The present Public Interest Litigation has been filed by the
petitioner with the primary object of protecting public open spaces
in the city of Mumbai. The petitioner challenges the constitutional
and legal validity of the Government Notification issued in 1992,
as well as certain provisions of the Slum Act, to the extent they
allow slum rehabilitation projects to be implemented on lands
reserved for parks, gardens, playgrounds, roads, pavements, and
other public open spaces (POS). It is the case of the petitioner that
permitting construction and rehabilitation projects on such
reserved open spaces amounts to diverting lands meant for public
recreation and utility towards permanent and irreversible
development activities, which is contrary to the purpose for which
such lands were designated in the Development Plan. The
petitioner submits that such action violates the right to clean and
healthy environment under Article 21 of the Constitution of India
and goes against the public trust doctrine, which mandates that
resources like parks and gardens are to be preserved for the
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collective benefit of the public and not to be converted for other
use, even under the garb of rehabilitation.
9. After taking cognizance of the concerns raised in the Petition,
this Court, by way of an ad-interim order, passed a direction
restraining the State Government and concerned authorities from
sanctioning any new slum rehabilitation schemes on reserved open
spaces, unless permission was specifically granted by this Court.
The operative part of the said order reads as follows:
“Until further orders, no new rehabilitation scheme be
sanctioned without the permission of this Court in respect of
the open spaces which are reserved for gardens, parks,
playgrounds, recreational spaces, maidans, no development
zones, pavements, roads and carriageways.”
10. This ad-interim order was thereafter continued and not
vacated, despite repeated attempts made by various stakeholders.
The order remained in force for almost two decades, that is, until
2022. During this period, several developers and cooperative
housing societies approached this Court seeking modification of
the interim relief to enable them to undertake slum redevelopment
projects. However, this Court, in its wisdom and with due regard to
environmental balance, imposed strict conditions even where
limited relaxation was granted. It is submitted that this Court
ensured that in all such cases, the entire open space that was
originally reserved under the Development Plan was relocated
within the same land parcel and handed over to the Municipal
Corporation of Greater Mumbai (Respondent No.3 – hereinafter
“the MCGM”) without any reduction in area. These conditional
permissions were granted so that the slum rehabilitation project
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could proceed without sacrificing the original purpose of the
reservation.
11. As a result of the consistent monitoring and directions of this
Court, approximately 45 acres of reserved open spaces were saved
and preserved, and yet slum rehabilitation schemes were allowed
to be implemented in a balanced and environmentally conscious
manner. The petitioner submits that this approach of striking a
balance between development and conservation reinforces the
feasibility of rehabilitation schemes being undertaken without
sacrificing public recreational spaces.
12. In one of its significant interim orders in the present Petition,
this Court recorded the statement made by the Secretary of the
UDD, appearing on behalf of the State of Maharashtra. The
Secretary submitted that:
“The State Government would devise schemes or incentives
in order to free up the encroached RG/PG (Recreation
Ground / Playground) open spaces, but that practical
compulsions may make it difficult to completely exclude
some extent of in situ rehabilitation.”
13. Upon taking note of this submission, this Court clarified that
the interim order dated 31st July, 2002 shall not operate as a bar
to the State Government formulating new schemes or evolving
fresh policies to address the issue of slum rehabilitation on
encroached open spaces. However, this Court made it explicitly
clear that any such new scheme or policy shall not be implemented
unless and until a period of four weeks has elapsed from the date
it is placed on record in the present proceedings.
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14. The stay originally granted by this Court in 2002-2003 thus
continued to remain in force, ensuring that any proposal for slum
rehabilitation on reserved open spaces could not be undertaken
arbitrarily or without judicial oversight. The petitioner submits
that this approach of this Court was and continues to be in
consonance with the principles of constitutional governance,
environmental justice, and inter-generational equity.
15. The petitioner submits that the DCPR 2034, and in particular
the impugned Regulation 17(3)(D)(2), came into force and were
placed on record before this Court on 13th December 2018,
through a communication made by the Advocates for the Slum
Rehabilitation Authority (Respondent No. 2). The petitioner
submits that a comparative reading of the impugned Regulation
17(3)(D)(2) and the earlier 1992 Notification clearly shows that
the new Regulation does not introduce any fresh policy. Instead, it
substantially reproduces the same structure and content of the
1992 Notification, with only a nominal reduction of 2% in the
permissible area for construction, from 67% to 65%, on lands
reserved for open spaces in the Development Plan (DP), where
such lands are above 500 square meters. The petitioner points out
that even the basic threshold safeguard present in the 1992
Notification, that the reserved open space must be encroached
upon to the extent of at least 25% to trigger redevelopment, has
been entirely removed in the new Regulation. Thus, even un-
encroached parks, gardens, and playgrounds, if measuring more
than 500 sq. mtrs., can now be opened up for slum rehabilitation
construction, thereby completely defeating the purpose of
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reservation under the Development Plan. It is submitted that the
very open spaces that were sought to be protected under the 1991
Development Plan, and which this Court sought to safeguard by
its interim orders, are now proposed to be developed through
Regulation 17(3)(D)(2) under DCPR 2034.
16. In substance, the present Regulation seeks to revive the same
dispensation which was put in abeyance by judicial intervention in
the past. Although the Regulation is projected by the authorities as
a measure to “free up” and “restore” open spaces, the petitioner
submits that the Regulation in effect makes the situation worse,
and circumvents the ad-interim restraint orders passed by this
Court from 2002 onwards. The Regulation results in substantial
loss of public open spaces at a time when Mumbai’s population
density is far higher than what it was in 1991, and when the need
for accessible green and recreational areas has become even more
critical to public health and urban planning.
17. The petitioner places reliance on official studies, including
the Preparatory Studies conducted by the MCGM for the
formulation of the Development Plan 2014-2034, and the
Inventorisation of Open Spaces and Water Bodies carried out by
the Mumbai Metropolitan Region, Environment Improvement
Society. These studies show that the per capita open space
available to residents of Mumbai is shockingly low, less than 1
square meter per person. In such circumstances, it is submitted
that any policy which dilutes open space reservation cannot be
permitted to override public interest, sustainable development,
and the doctrine of environmental justice.
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18. The petitioner further submits that the present Petition came
to be dismissed for default on 18th July 2019 under peculiar and
unintended circumstances, as the matter was inadvertently listed
before two different benches of this Court on the same date,
leading to confusion in the registry. Thereafter, the petitioner
promptly filed Interim Application (L) No. 4365 of 2020 seeking
restoration of the Petition, which came to be allowed by an order
passed by this Court on 6th April 2021. The Court was pleased to
restore the Petition to its original number and file; reinstate the
earlier ad-interim order restraining redevelopment on reserved
open spaces; and clarify that any actions already taken during the
intervening period between 18th July 2019 and 6th April 2021
shall remain undisturbed.
19. After the order dated 6th April 2021 was passed, all
concerned parties treated the restraint against slum redevelopment
on open spaces as being operative, and proceeded accordingly,
reaffirming the importance and relevance of the interim protection
granted. Subsequently, though the petitioner continued to
maintain that the impugned Regulation is nothing but a replica of
the 1992 Notification, in order to avoid any procedural technicality
or objection regarding the scope of the original Petition, the
petitioner filed Interim Application (L) No. 12380 of 2021 seeking
formal amendment of the Petition to incorporate a specific
challenge to Regulation 17(3)(D)(2).
20. By a speaking order dated 1st March 2022, this Court was
pleased to allow the said application and grant leave to amend the
Petition; clarify that the ad-interim order dated 31st July 2002 had
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ceased to operate as of 12th January 2019, which was four weeks
from the date when DCPR 2034 was placed on record; further
clarify that the order dated 6th April 2021 did not revive or
reinstate the earlier interim relief; but left it open to the petitioner
to apply for fresh reliefs under the amended Petition.
21. In pursuance of the liberty so granted, the petitioner filed
Interim Application No. 3043 of 2022, seeking fresh interim relief
in respect of the implementation of Regulation 17(3)(D)(2), which
is currently pending adjudication before this Court. At the time of
hearing of the said application, this Court was pleased to direct
that the main Petition itself be finally heard and disposed of,
considering the prolonged pendency and the importance of the
issues involved.
ii) Constitutional and Doctrinal Grounds – Violation of Articles
21 and 14 and the Need to Preserve Open Spaces:
22. The petitioner submits that the right to life guaranteed under
Article 21 of the Constitution of India is not limited to mere
existence or animal survival. Over the years, the Supreme Court
has repeatedly held that the right to life includes the right to live
with dignity, in a clean, healthy and sustainable environment. This
includes access to open spaces, greenery, and pollution-free air,
particularly in urban areas which are densely populated and
heavily built-up. It is well settled that the principles of sustainable
development, the precautionary principle, the special burden of
proof on developers, and the public trust doctrine are now firmly
embedded in Indian environmental jurisprudence. These principles
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have been held to be an integral part of Article 21. Hence, any
policy or action which erodes open spaces without justification or
precaution, and thereby harms environmental health and the
quality of urban life, must be held violative of Article 21.
23. The impugned Regulation 17(3)(D)(2) and related executive
actions of the Respondents violate these settled constitutional
mandates. They allow large portions of public open spaces, meant
for recreation, breathing, and community use, to be diverted for
private or semi-private redevelopment purposes without any
environmental safeguard or compensatory provision. Such actions
go against the very essence of sustainable and inclusive urban
planning.
24. The petitioner further submits that the impugned policy also
violates Article 14 of the Constitution, which guarantees equality
and prohibits arbitrariness. The regulation prioritizes private
benefit over public interest, by enabling use of scarce public land
for private construction; has no rational or scientific basis for
deciding how much open space may be diverted, how the affected
population will be compensated, or how environmental loss will be
balanced; fails to assess the impact of the policy on the city’s
ecological balance, urban health conditions, and inter-generational
equity; and does not explain or justify the allocation of valuable
public land, a form of State largesse, for purposes which are not
backed by any public interest test or environmental clearance.
25. The petitioner emphasizes that slum dwellers have no vested
right to in-situ rehabilitation on land reserved for public purposes,
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and several judgments of the Supreme Court have clearly held
that such rights are always subject to planning considerations and
environmental concerns. Therefore, blanket permissions under
Regulation 17(3)(D)(2) without considering local planning
impacts, congestion, and open space scarcity, are manifestly
arbitrary and unsustainable.
26. It is a matter of record, and not in dispute, that the city of
Mumbai suffers from an acute and chronic shortage of open space.
The Mumbai Metropolitan Region – Environment Improvement
Society (MMR-EIS) in its detailed report titled “Inventorisation of
Open Spaces and Water Bodies in Greater Mumbai” has found that
the total developed and accessible open space available to the
public is just 1002.59 hectares, yielding a per capita open space of
only 0.84 sq. mtrs. per person. The same report further reveals
that in many municipal wards, the condition is even worse. For
instance, in Wards B, C, H (East), and M (East), the per capita
open space is less than 0.25 sq. mtrs.. In fact, in 13 out of 24
administrative wards in Mumbai, the per capita open space
remains below 0.84 sq. mtrs., which is far below national and
international urban planning norms. The Preparatory Studies
prepared on behalf of the MCGM for the purpose of preparing
Development Plan 2034 admit that even after including all formal
and informal open spaces, the maximum per capita open space
available is only 1.24 sq. mtrs., which again is far below the
recommended norms. These studies admit that even this figure is
misleading as it includes clubs, gymkhanas and semi-private
facilities which are not freely accessible to the common citizen.
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27. It is submitted that the shortage of open space is not only
severe but also unequally distributed across different parts of the
city. Many areas have no proper access to nearby recreational
spaces, forcing citizens to either use congested roads or travel long
distances. Urban poor and children are the worst affected, as they
cannot afford private recreation or distant travel. The Preparatory
Studies themselves proposed open space norms across
neighbourhood, sector, ward, and city levels, but the Respondents
have failed to implement any such spatial equity in DCR 2034.
Importantly, these data and findings have not been disputed by the
State or the Planning Authorities at any stage during the present
proceedings.
28. The Supreme Court has, on several occasions, recognized
the importance of preserving open spaces in urban areas. In
MCGM & Ors. v. Kohinoor CTNL Infrastructure Co. Pvt. Ltd.,
(2014) 4 SCC 538, the Court took judicial notice of the fact that
Mumbai had less than 0.88 sq. mtrs. of open space per person, and
strongly emphasized the need to augment and not reduce open
spaces in metropolitan cities. In Bangalore Medical Trust v. B.S.
Mudappa, (1991) 4 SCC 54, the Court held that lands reserved for
public parks cannot be diverted for private or commercial use,
even if the alternative use is also socially beneficial (e.g., a
hospital), because public parks serve an irreplaceable function in
urban life and must be treated as part of the public trust held by
the State. In MCGM v. Hiraman Sitaram Deorukhar, (2019) 14 SCC
411, the Supreme Court reiterated that even if land acquisition
lapses, the reservation of land for parks must be respected, and
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that government must take all necessary steps to protect such
reservations in the larger public interest. In Lal Bahadur v. State of
U.P., (2018) 15 SCC 407, the Court held that lands designated as
green belts cannot be reclassified for residential use, and should be
maintained as open spaces in trust for the benefit of future
generations. Similarly, in Virender Gaur v. State of Haryana,
(1995) 2 SCC 577, the Court set aside the government’s action of
leasing out open land meant for public use to a private party,
holding that such land must be preserved for public health,
environmental integrity and urban sustainability.
29. In light of the above decisions and data, the petitioner
submits that the impugned Regulation 17(3)(D)(2) is contrary to
constitutional guarantees and principles of sustainable planning.
The loss of open space in a city like Mumbai is not a mere
technical issue but a direct threat to the right to life, public health,
and urban justice. The policy adopted by the Respondents, instead
of preserving and regenerating open spaces, facilitates their
systematic erosion, and therefore, cannot withstand judicial
scrutiny.
iii) Violation of the Principles of Sustainable Development and
the Precautionary Principle:
30. The petitioner submits that sustainable development and the
precautionary principle are now well-recognised and binding
principles forming part of Indian environmental and constitutional
law. The Supreme Court has repeatedly held that these principles
are essential tools for environmental governance and must be
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strictly followed while framing and implementing policies that
impact the environment, natural resources, or urban planning. The
concept of sustainable development has been defined as
development that meets the needs of the present generation
without compromising the ability of future generations to meet
their own needs. It includes three essential sub-principles: inter-
generational equity, ensuring that environmental resources are
not exhausted or degraded in a way that future generations are
denied their benefits; precautionary principle, taking preventive
action in the face of environmental risk or uncertainty; and,
polluter pays principle, imposing accountability and cost of
environmental harm on the party responsible.
31. Insofar as the precautionary principle is concerned, its
application in the field of municipal and planning law requires the
State and its instrumentalities to anticipate, prevent and address
causes of environmental damage; act even in cases where scientific
certainty is absent, if there exists a threat of serious or irreversible
harm; and place the burden of proof on the party seeking to alter
the environmental status quo, such as a developer or builder, to
show that the proposed change is environmentally safe and
benign. It is submitted that this burden of proof principle is now
deeply rooted in Indian law. In matters involving ecology and
public resources, the benefit of doubt must go to the environment,
and the entity seeking to alter public land or ecological balance
must affirmatively prove the absence of harm.
32. The following decisions of the Supreme Court reinforce these
principles: In Vellore Citizens Welfare Forum v. Union of India,
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(1996) 5 SCC 647, the Court categorically held that the
precautionary principle and the polluter pays principle are part of
the environmental law of India, and are enforceable under Article
21. In A.P. Pollution Control Board v. Prof. M.V. Nayudu, (1999) 2
SCC 718, the Court held that precautionary duties are triggered
not just by confirmed danger, but even by reasonable apprehension
or risk potential. It placed the onus on the party seeking to change
the existing land-use to prove the safety of their actions. In
Karnataka Industrial Areas Development Board v. C. Kenchappa,
(2006) 6 SCC 371, the Court emphasised that sustainable
development is a central tenet in environmental decision-making,
and that developers must assume the possibility of environmental
harm and bear the burden of disproving it.
33. Applying these principles to the present case, the petitioner
submits that the impugned Regulation 17(3)(D)(2) of the DCPR
2034: fails to apply the precautionary principle, no environmental
study or impact assessment has been carried out before allowing
65% of reserved open space to be diverted for construction; places
no burden on the authorities or developers to show that such
construction will not permanently damage the urban ecological
balance; ignores the long-term environmental and public health
consequences of reducing Mumbai’s already scarce open spaces;
does not consider future generations’ rights, thus breaching the
principle of inter-generational equity. Therefore, it is submitted
that the impugned policy is contrary to the settled principles of
sustainable development and precaution, and is liable to be struck
down on this ground alone.
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34. The petitioner further submits that the impugned regulation
offends the doctrine of public trust, which is now recognised as a
binding principle of Indian law. Under this doctrine, the State and
its instrumentalities hold certain resources, including air, water,
forests, beaches, rivers, and public lands, in trust for the benefit of
the public, and especially for future generations. The public trust
doctrine requires the State to act as a trustee and not as an owner
or disposer of such resources. The government cannot transfer or
allocate lands meant for public benefit to private entities, unless
such action is demonstrably in public interest and complies with
constitutional and environmental safeguards. In the context of the
present case, the petitioner submits that: lands reserved in the
Development Plan as parks, gardens, and open spaces are held by
the planning authority not as proprietary assets but as trustees on
behalf of the public; allowing these lands to be used for private
construction under the guise of slum rehabilitation violates the
State’s fiduciary duties; and the impugned regulation essentially
converts valuable public resources into construction zones, without
adequate justification or public consultation.
35. The following judgments illustrate the application of the
public trust doctrine in similar circumstances: In M.I. Builders Pvt.
Ltd. v. Radhey Shyam Sahu, (1999) 6 SCC 464 , the Supreme Court
held that permitting construction of an underground shopping
complex on a park violated the public trust doctrine, and directed
the restoration of the park. In Fomento Resorts & Hotels Ltd. v.
Minguel Martine, (2009) 3 SCC 571, the Court reaffirmed that
State authorities must protect public resources and not allow their
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exploitation for private gain. In Abdul Majid Vakil Ahmed
Patwekari v. SRA, 2022 (2) MhLJ 382, this Court held that
granting free housing to encroachers on public lands violated the
public trust doctrine, and that the government’s failure to remove
such encroachments was unconstitutional. In High Court on its
Own Motion v. Bhiwandi Nizampur Municipal Corporation, 2022
SCC OnLine Bom 386, this Court struck down the policy of
regularising encroachers by granting them free accommodation,
holding that it was a misuse of public land held in trust, and
amounted to a reward for encroachment. Therefore, the petitioner
submits that the State and planning authorities, by allowing slum
rehabilitation on lands reserved for open space, have acted in
violation of their fiduciary obligations, and have breached their
duty to safeguard such lands for present and future public use.
36. In conclusion, it is submitted that the impugned Regulation
17(3)(D)(2), and the policy underlying it, are not only unjust and
arbitrary, but also constitutionally impermissible, being in breach
of: Article 21 – right to a healthy environment; Article 14 –
equality and non-arbitrariness; the principles of sustainable
development and precaution; and the public trust doctrine.
37. The petitioner submits that the contention raised by some of
the Respondents, that the case law relied upon by the petitioner is
not applicable because it pertains only to physically existing open
spaces and not to lands merely reserved as open spaces in the
Development Plan, is legally misconceived and factually incorrect.
This argument fails to recognize that the distinction between
physically developed open spaces and lands reserved for open
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spaces under the Development Plan is artificial and unsustainable
in law. It is submitted that the concept of open space reservation
under the Development Plan is not notional, but forms a critical
part of urban environmental planning. Such reservations carry
with them a statutory obligation on the part of the planning
authority to eventually acquire and develop the land for public
purposes, as per the provisions of the MRTP Act.
38. Thus, the respondent authorities cannot escape their
obligations by contending that open spaces which are only
“reserved” and not yet “developed” are outside the purview of
constitutional or environmental protection. Reservations in the
Development Plan are legally enforceable and are made precisely
with a view to safeguarding urban liveability, environmental
balance, and the rights of future generations. The petitioner
therefore submits that the entire scheme of the MRTP Act, read
with the constitutional principles under Articles 14 and 21, and the
binding judgments of the Supreme Court, make it clear that
reservations of land for open space are to be treated as a solemn
urban planning obligation, and not as an empty formality. The
State and its agencies cannot dilute or override such reservations
merely because the land has not yet been physically converted into
a garden or a park.
39. Accordingly, the petitioner prays that this Court may be
pleased to reject the contention of the Respondents as legally
untenable and inconsistent with the object and purpose of urban
planning laws, environmental jurisprudence, and binding
constitutional norms.
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40. The petitioner submits that while it is undoubtedly the
responsibility of the State to ensure that slum dwellers are
provided with dignified housing in a hygienic and safe
environment, there exists no fundamental or vested legal right in
favour of any person, including a slum dweller, to demand or insist
upon in-situ rehabilitation, particularly when the land in question
is reserved for a public purpose under the Development Plan . The
law is well settled that lands and public resources reserved for
common use or public amenities cannot be diverted for private
benefit, howsoever sympathetic the circumstances may be
(considering that even non-slum dwellers get benefits from the
redevelopment schemes under the Slum Act). It is a principle of
law and equity that no private party, including encroachers, can
claim any legal entitlement to continue occupation of lands which
are specifically earmarked for public purposes. Any such use
frustrates the very object of reservation and runs counter to the
larger public interest.
41. This position has been reinforced by a long line of decisions,
which clearly hold that the public interest must prevail over
individual or group demands, particularly when it comes to the use
and preservation of public lands. In this context, the following
judicial pronouncements are relevant: Olga Tellis v. Municipal
Corporation of Greater Bombay, (1985) 3 SCC 545, where the
Supreme Court held that while the right to shelter is part of Article
21, it does not mean that encroachment on public lands is legal,
and that eviction, if done lawfully, does not violate the
Constitution; Abdul Majid Vakil Ahmed Patvekari (supra), wherein
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this Court categorically held that slum dwellers on land required
for public amenities cannot claim rehabilitation at the same site,
and the government has a duty to protect such lands for the
public; Jilani Building(Supra), where this Court observed that
public lands encroached upon must be reclaimed and that policies
rewarding encroachers with free housing violate the public trust
doctrine and principles of equality; Bishop John Rodrigues v. State
of Maharashtra, 2024 SCC OnLine Bom 1632, where this Court
reiterated that public reservations in the Development Plan cannot
be compromised, and the State must clear encroachments in
accordance with law.
iv) No Vested Right to In-Situ Rehabilitation on Reserved Open
Spaces
42. The petitioner further submits that even under the applicable
statutory framework, particularly the Slum Act, there is no
mandate that slum rehabilitation must always be carried out in-
situ. The law clearly contemplates relocation in appropriate cases,
especially when the land is required for a vital public purpose. In
particular, Chapter I-B of the Slum Act, titled “Protected Occupiers,
their Relocation and Rehabilitation”, recognizes the possibility of
eviction and relocation. Section 3Z explicitly empowers the
competent authority to evict even protected occupiers if the
eviction is justified in the larger public interest, and simultaneously
ensures that such persons are rehabilitated elsewhere. This
statutory provision expressly acknowledges that in-situ
rehabilitation is not an absolute entitlement.
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43. Furthermore, even under the earlier planning regime i.e.
DCR 1991, it was clearly contemplated that slum dwellers situated
on lands required for vital or urgent public utility purposes would
not be rehabilitated at the same location but would be shifted to
alternate plots. This is clearly recorded in Appendix IV of DCR
1991. The same approach has been retained in DCR 2034, under
Regulation 33(10)(VI)(1.3). It is also important to note that even
the Respondents have, in several instances, opposed in-situ
rehabilitation on lands required for public purposes, including in
the case of Abdul Majid Vakil Ahmed Patvekari (supra), where they
submitted before this Court that in-situ rehabilitation could not be
allowed as it would compromise vital public use.
44. The petitioner also draws attention to the Afzulpurkar
Committee Report, a document relied upon by the State
Government, which itself recognizes the need to relocate slum
dwellers from lands reserved for public amenities and no-
development zones. A plain reading of Chapters 7 and 30 of the
Report shows that the Committee recommended that such lands
should be cleared and returned to public use, and that slum
rehabilitation in such cases should occur on alternate lands. It is
thus clear that even according to the government’s own expert
committee, in-situ rehabilitation is not recommended on lands that
are earmarked for public amenities, such as recreational grounds
(RG), playgrounds (PG), gardens, etc. These lands fall within the
definition of “amenities” under Section 2(2) of the MRTP Act and
are critical for the livability and ecological balance of the city. In
practical terms, the petitioner submits that relocation of slum
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dwellers is already regularly carried out in cases where
infrastructure projects, such as railways, roads, or metro corridors,
require the land to be cleared. There is no reason why the same
principle should not be applied to public open spaces, which are as
essential to the well-being of citizens as any other infrastructure.
45. The petitioner further submits that the difficulty expressed
by the Respondents in removing encroachments on open spaces is
self-created. The problem has arisen due to the policy of offering
free housing, along with the repeated extension of cut-off dates
under the slum rehabilitation policy. These steps have encouraged
continued encroachments, and the public is now being deprived of
essential urban amenities as a result. In fact, even the 1992
Notification (which forms the basis of the impugned policy)
initially contemplated that open spaces above 1,000 sq. mtrs. in
area should be cleared and restored to their original public
purpose. Instead of following this mandate, the Respondents have
relaxed conditions over time, undermining the very planning goals
the regulation was intended to support. It is submitted that open
spaces deserve to be treated with the same importance as roads,
water supply, and other vital infrastructure. The consistent judicial
and planning consensus has been that recreational and green
spaces must be protected, especially in a congested city like
Mumbai.
46. In light of the above, the petitioner submits that: There exists
no fundamental, statutory, or vested right to claim in-situ
rehabilitation, particularly on lands reserved for public purposes;
The statutory scheme itself contemplates eviction and relocation in
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appropriate cases; The Respondents are under a constitutional and
statutory duty to clear and restore such lands to their reserved
purpose; and Any policy that allows continued occupation of
reserved open spaces violates the public trust, environmental
principles, and the rights of future generations. Therefore, the
impugned policy and Regulation 17(3)(D)(2), to the extent they
permit slum rehabilitation on open spaces reserved in the DP, are
contrary to law, policy, and judicial precedent, and deserve to be
set aside.
v) Regulation 17(3)(D)(2) Does Not Constitute a New Policy –
Contrary to Assurance and Judicial Directions
47. The petitioner submits that Regulation 17(3)(D)(2) of the
DCPR 2034 does not introduce any new policy or scheme, as was
contemplated or permitted by this Court in its earlier orders. On
the contrary, it repackages and perpetuates the same dispensation
that was already in place under the 1992 Notification read with
Appendix IV of DCR 1991, albeit with cosmetic changes that do
not offer any meaningful improvement to the condition of open
spaces in the city. It is relevant to recall that this Court had, by its
order dated 25th July 2014, clarified that the interim orders
restraining sanctioning of slum schemes on reserved open spaces
would not prevent the State Government from evolving a new
policy or scheme, provided such policy was in furtherance of public
interest. This relaxation was based entirely on the statement made
on behalf of the State Government that:
“The Government would devise schemes or incentives to free
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compulsions.”
48. The underlying assurance given to this Court was that the
State would attempt to reclaim and restore open spaces for public
use, and that in-situ rehabilitation, if permitted at all, would be
limited, exceptional, and justified on grounds of necessity. It was
never represented that the Government would dilute the earlier
conditions further or expand the scope of construction on reserved
land. However, a plain reading of Regulation 17(3)(D)(2) reveals
that the State Government has failed to honour its assurance. Far
from introducing a fresh policy aimed at freeing encroached
spaces, the Regulation merely reproduces the older framework
under a new label, and even removes one of the few safeguards
that previously existed.
49. Under the earlier 1992 Notification, read with Appendix IV
of DCR 1991: In cases where the land reserved for open space
exceeded 500 square metres, and at least 25% of such land was
encroached by slums, the authorities were permitted to use up to
67% of the total area for slum redevelopment, subject to the
condition that the remaining 33% would be preserved as open
space. In contrast, under Regulation 17(3)(D)(2) of DCPR 2034:
65% of the land under reservation may be developed for slum
rehabilitation, and the remaining 35% is to be retained as open
space. However, the requirement of at least 25% pre-existing
encroachment has been entirely removed. The petitioner submits
that this change is not an improvement, but a regression. The
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substantial shift in policy or planning philosophy. On the contrary,
by removing the threshold encroachment condition, the Regulation
now permits construction on previously un-encroached reserved
land, which was not permissible earlier. Thus, the impact on
reserved open spaces is far more severe and widespread. The
petitioner reiterates that this so-called “new policy” does not in any
manner further the objective of restoring open spaces, nor does it
implement any incentive-based mechanism to free up
encroachments. Rather, it facilitates permanent diversion of
reserved lands, including those not under encroachment, to slum
redevelopment, without offering any compensatory open space,
relocation alternatives, or public benefit safeguards.
50. In view of the above, the petitioner submits that Regulation
17(3)(D)(2) does not qualify as a “new scheme” or “new policy”
within the scope envisaged by this Court. It does not reflect a shift
in approach, nor does it seek to address the core issue of depletion
of open space in Mumbai. Instead, it further weakens the pre-
existing planning safeguards under the 1991 regime and enables
greater conversion of public space to built-up area.
51. As elaborated earlier, the said Regulation is manifestly
arbitrary, and fails to protect the environment and quality of life of
the city’s residents. It violates the petitioners’ rights under: Article
21 of the Constitution, by allowing destruction of vital
environmental assets and recreational spaces, and thereby
compromising the right to life, health, and well-being; and Article
14, by treating reserved public land as available for private
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housing without a reasonable or just basis, while failing to apply
any rational or consistent planning criteria. Therefore, the
petitioner prays that this Court may be pleased to hold that
Regulation 17(3)(D)(2) of DCPR 2034 is not a new policy, is
contrary to the undertaking made before this Court, and is liable
to be struck down as unconstitutional, irrational, and contrary to
the principles of sustainable and equitable urban development.
vi) Planning Committee Report – Not a Justification for the
Impugned Regulation
52. The petitioner submits that the Respondents’ reliance on the
Planning Committee Report in support of the impugned Regulation
17(3)(D)(2) is misplaced and legally untenable. It is submitted
that the said report does not contain any fresh planning rationale,
scientific basis, or environmental justification to support the claim
that the said regulation represents a “new policy” capable of
overriding the constitutional and statutory objections already
raised before this Court.
53. It is important to recall that this Court, by its interim orders,
permitted the State Government to evolve a new policy only on the
understanding that it would devise schemes or incentives to free
up encroached public open spaces (RGs/PGs), while allowing
limited in-situ rehabilitation only under compelling circumstances.
The State had assured this Court that its new approach would
improve the position concerning open space reservations.
However, a plain reading of the Planning Committee Report
reveals that Regulation 17(3)(D)(2) is not backed by any
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independent evaluation or rethinking. It merely continues the
earlier policy of “accommodation reservation”, whereby a portion
of land reserved for open space is allowed to be used for slum
rehabilitation, and the balance is retained as open space. The only
notable change is a cosmetic adjustment of the ratio from 33:67 to
35:65, which, in practical terms, does not enhance the city’s open
space at all. Paragraph 4.5 of the Planning Committee Report
mentions that 33% of such lands will be maintained as open space
and 67% will be utilised for in-situ rehabilitation, and that this
method will ensure benefit to both the city and slum dwellers.
However: No rationale or environmental justification is provided
for continuing the accommodation reservation policy; The figures
used are borrowed from the 1991 policy, without reflecting the
new formulation in Regulation 17(3)(D)(2) (which uses the 35:65
ratio); and There is no fresh application of mind or demonstration
that this mechanism is either environmentally viable or suited to
present-day needs. Further, while the Committee claims that the
city’s total open space has been calculated based on the 33%
retained figure, no actual computation or detailed breakdown of
this figure has been made available. There is also no explanation
offered as to why 33% or 35% is adequate, nor is there any
justification as to how this correlates to Mumbai’s increasing
population density and critically low per capita open space. In
Paragraph 6.2.1 of the Report, the Respondents have stated that
the total open space in the city would amount to 4,731.82
hectares, which translates into 3.70 sq. metres per person. This
figure includes: 3,400.80 hectares of reserved/designated open
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space (which includes clubs, gymkhanas and swimming pools),
979.51 hectares of private layout recreational grounds (Layout
Rgs), 320.10 hectares in Special Development Zones (SDZ-I and
SDZ-II), 31.41 hectares in SDZ-I areas encroached by slums.
54. The petitioner submits that this compilation is inflated,
misleading, and fails to reflect the real public open space available
to ordinary citizens. Specifically: The 3,400.80 hectares figure
includes private clubs, gymkhanas and swimming pools, which are
not accessible to the general public, and therefore cannot be
counted as public open space; The 979.51 hectares of layout RGs
are largely within private gated societies or layouts, and are also
not freely accessible to all citizens; The 320.10 hectares claimed
under SDZ-II is misleading because: These areas were previously
No Development Zones (NDZs) and were entirely open and
protected from construction; Their conversion into developable
zones under DCR 2034 has actually reduced open land in the city;
and The claimed open space here is notional, contingent on private
developers setting aside land, and not guaranteed or accessible as
public open space. The figure of 31.41 hectares in SDZ-I, which
includes areas encroached by slums, also fails to support the
State‘s case because such lands are already the subject matter of
the present challenge, and are proposed to be developed under
Regulation 17(3)(D)(2) itself. The petitioner submits that these
inclusions in the Planning Committee Report are illusory and
artificially inflate the quantum of open space, while in reality, the
accessible, usable, and developed public open space available to
Mumbai’s residents remains dangerously low. According to the
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MMR-EIS Report (2010), the total developed and accessible open
space in the city was found to be just 1,002.59 hectares, yielding
0.84 sq. metres per person. In several municipal wards, this figure
is even lower, ranging between 0.15 and 0.39 sq. metres per
person. These data points are undisputed and reflect the ground
reality of open space deprivation in the city. Even the Preparatory
Studies for DCPR 2034, which are relied upon by the planning
authorities, acknowledge that the real per capita open space is well
below the desired standard, and confirm the findings of the MMR-
EIS Report.
55. In light of the above, the petitioner submits that: The
Planning Committee Report fails to justify the continuation of the
accommodation reservation policy through Regulation 17(3)(D)
(2); The figures and assumptions in the report are unreliable,
misleading, and based on areas which are either inaccessible,
privately held, or speculative; There has been no scientific,
environmental, or town planning justification provided for why
only 33% or 35% of reserved open space must be retained, and
why the remaining land should be diverted to slum rehabilitation;
The Respondents have not discharged their burden under the
precautionary principle to show that the impugned policy is
environmentally benign or sustainable in the long term. It is
therefore submitted that the impugned Regulation 17(3)(D)(2),
and the attempt to justify it by relying on the Planning Committee
Report, do not satisfy constitutional requirements under Articles
14 and 21, nor do they conform to the principles of sustainable
development, inter-generational equity, or public trust. The
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Planning Committee Report, far from constituting the basis for a
new and improved policy, in fact confirms that the impugned
Regulation is merely a continuation of the old scheme, repackaged
without any meaningful evaluation or recalibration of its impact
on the city’s ecology, public health, or urban equity.
vii) Challenge to the Applicability of Sections 3X(a), 3X(c) and
3Z of the Slum Act in the Context of Reserved Open Spaces:
56. The petitioner submits that in addition to the constitutional
and statutory challenge raised to Regulation 17(3)(D)(2) of DCPR
2034, the present petition also seeks limited reading down or, in
the alternative, striking down of certain provisions of the Slum Act,
specifically Sections 3X(a), 3X(c), and 3Z introduced under
Chapter I-B, insofar as they are sought to be applied to
encroachments on lands reserved for public open spaces (POS) in
the sanctioned Development Plan (DP). The petitioner submits
that the protection offered under Chapter I-B of the Slum Act is
intended to benefit bona fide slum dwellers, but cannot be
construed to extend to persons who have encroached upon lands
that are specifically reserved for open spaces, such as parks,
gardens, recreational grounds and playgrounds, under the
Development Plan of the city. It is submitted that such encroached
lands are not ordinary government lands, but are lands earmarked
for public welfare purposes, and held by the planning authorities
in public trust. Any interpretation of the Slum Act that compels in-
situ rehabilitation on these reserved lands would defeat the very
object of reservation, and would render the public right to clean,
accessible, and usable open spaces illusory and meaningless.
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57. In support of this submission, the petitioner relies upon the
following provisions of the Slum Act and the corresponding town
planning regulations:
(a) Section 3B of the Slum Act contemplates the
preparation of a General Slum Rehabilitation Scheme for the
entire city. The scheme prepared for Mumbai under this
section clearly provides that while in-situ rehabilitation is
preferred, it cannot be insisted upon in cases where the land
is reserved for a public purpose and where the reservation
cannot be altered. In such cases, it is expressly stated that
the slum dwellers shall be rehabilitated elsewhere, based on
land availability.
(b) Section 3B(5)(e) and (f) further reinforce that
rehabilitation may be either in situ or otherwise, depending
on the nature of the land, its reservation, and other public
interest considerations. This again shows that in-situ
rehabilitation is not an absolute or inflexible rule.
(c) Section 3Z of the Slum Act permits the eviction of
protected occupiers when such eviction is necessary in the
larger public interest, and provides for their relocation. The
legislative intent clearly recognizes that protected occupiers
may be lawfully relocated in certain circumstances, including
where the land is required for an overriding public purpose.
(d) Importantly, even under the town planning framework,
both DCR 1991 and DCR 2034 provide that slum dwellers
situated on lands required for vital or urgent public utility
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purposes are not entitled to in-situ rehabilitation, and shall
be shifted to other available lands.
58. Upon a harmonious reading of these statutory provisions, it
becomes evident that the legislative and planning intent is to
ensure that lands reserved for open space in the Development Plan
are preserved for public use, and are not to be used for
rehabilitation or construction, especially where alternate land is
available.
viii) Judicial Precedents Against In-Situ Rehabilitation on
Reserved Lands:
59. The above legal position is supported by authoritative
pronouncements of the Supreme Court and this Court. The
following judgments make it clear that encroachers on public lands
have no vested right to remain in occupation, and cannot claim
rehabilitation as a matter of right, especially when the land is
reserved for a public purpose: (i) Olga Tellis (supra) – Where the
Supreme Court upheld the authority of the State to remove
encroachments on public lands, even while recognizing the right to
shelter under Article 21; (ii) Abdul Majid Vakil Ahmed Patvekari
(Supra) – Where this Court held that encroachment on land
reserved for public purpose does not entitle a person to in-situ
rehabilitation, and the government has a positive obligation to
restore such land to public use; (iii) High Court on its Own Motion
(Jilani Building, Bhiwandi)(Supra)- Where the Court held that
regularizing encroachments on public lands violates the public
trust doctrine, and public land cannot be sacrificed for private
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benefit; and (iv) Bishop John Rodrigues (Supra)- Where the
Court clarified that no person can claim a right to occupy or
remain on lands earmarked for public use under the Development
Plan. These decisions clearly establish that no individual, including
a protected occupier, can claim a vested right to in-situ
rehabilitation on public lands, particularly where such lands are
statutorily designated as open spaces.
ix) Prayer for Reading Down or Striking Down:
60. In light of the above legal position, the petitioner submits
that this Court may be pleased to read down Sections 3X(a),
3X(c), and 3Z of the Slum Act in a manner that excludes from
their protective ambit those persons who have encroached on
lands reserved for public open spaces under the Development Plan.
Such a reading would ensure that: The constitutional principles
under Articles 14 and 21 are upheld; The public trust in open
spaces is preserved; and The relevant provisions of the Slum Act
are saved from unconstitutionality.
61. In the alternative, and without prejudice to the above, if this
Court is of the view that such a reading down is not legally
feasible, then the petitioner submits that the said provisions, to
the extent they protect encroachments on lands reserved for open
space and mandate in-situ rehabilitation, must be held ultra vires
the Constitution, being violative of: Article 14, due to
unreasonable classification and arbitrariness; Article 21, by
permitting degradation of essential environmental and recreational
resources necessary for dignified urban life; The principles of
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sustainable development, inter-generational equity, and the
precautionary principle, which are binding components of Indian
environmental jurisprudence. It is further submitted that these
provisions suffer from the same constitutional infirmities as the
impugned Regulation 17(3)(D)(2) of DCPR 2034, and that all
grounds advanced in support of the challenge to the said
Regulation apply mutatis mutandis to these provisions of the Slum
Act as well.
B) Submissions of Respondent No.2: i) Regarding status of Petitioners and compliance with PIL Rules:
62. It is the submission of Respondent No. 2 that the present
petition, although initially filed in April 2002, was instituted by an
entity which described itself as an “Association of Persons”. This
association was stated to consist of approximately 480 individuals,
whose names were annexed from pages 54 to 114 of the petition.
It was claimed that these persons were engaged in the protection
and proper usage of public open spaces in the city of Mumbai and
had collectively approached this Court in the form of a non-
governmental organization. However, during the pendency of
proceedings, the original Petitioner No. 1 was substituted by
another entity now described as a Public Charitable Trust. The
substituted entity, namely the present Petitioner, claims to be the
legal successor of the original petitioner. Respondent No. 2 submits
that this change lacks proper legal foundation. It is not clarified
how a loosely formed “Association of Persons” consisting of 480
named individuals has, in law or in fact, merged into or authorized
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its representation to be continued by a single Trust. No document,
resolution, authorisation, or judicial order evidencing such
substitution on behalf of all 480 individuals has been placed on
record. In absence of such material, Respondent No. 2 contends
that the legitimacy of the substituted petitioner itself is
questionable.
63. It is next submitted that the DCPR 2034, came into force
upon their sanction by the State Government through Notification
dated 8th May 2018. These Regulations have replaced and
superseded the earlier Development Control Regulations, 1991,
including the 1992 amendment which was originally impugned in
the present writ petition. In view of the supersession of the earlier
regulatory framework, Respondent No. 2 submits that the original
challenge has become infructuous. Nevertheless, an application
seeking amendment of the Petition was moved through I.A. (L) No.
12380 of 2021, which was allowed by this Court by order dated
1st March 2022. Accordingly, Respondent No. 2 submits that the
amended petition–having introduced a new petitioner, substituted
the cause title, and assailed new regulations–has now
transformed in substance and character into an entirely new public
interest litigation filed after 1st March 2022.
64. In light of this transformation, Respondent No. 2 submits
that the Petitioners were duty-bound to ensure compliance with
the Public Interest Litigation (PIL) Rules framed by the this Court.
These rules require, among other things, complete disclosures
regarding locus, credentials of the petitioner, nature of public
interest involved, and absence of oblique motives. It is the specific
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submission of Respondent No. 2 that no such compliance was
ensured either at the time of original filing or at the stage of
amendment. The PIL Rules are not procedural formalities but are
intended to safeguard the sanctity of public interest litigation and
prevent its misuse. Since the amended petition involves a new
petitioner and raises a substantially new challenge, the procedural
requirements applicable to all fresh PILs would squarely apply.
Having failed to satisfy the mandatory requirements under the PIL
Rules, Respondent No. 2 contends that the present petition is not
maintainable and deserves to be dismissed on this ground alone.
ii) Submissions of Respondent No. 2 – Nature of Challenge in
the Petition and Grounds of Objection:
65. Respondent No. 2 submits that the Petitioners, in support of
their challenge, have introduced a concept of ‘Open Space’ entirely
based on their own understanding. According to them, as stated in
Exhibit ‘B’, ‘open space’ or ‘public space’ includes any area or land
that is meant for the general public, irrespective of ownership, and
covers gardens, parks, roads, pavements, playgrounds, maidans,
beaches, promenades, no-development zones and carriageways,
whether existing or proposed, or reserved under any Development
Plan. It is submitted that this description is the Petitioners’ own
creation and not drawn from any statutory definition. In the
absence of legal recognition or statutory basis, such a wide and
subjective definition cannot be accepted for framing reliefs or
adjudicating rights under constitutional or statutory law.
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66. Respondent No. 2 further submits that the original petition,
as filed in the year 2002, sought sweeping reliefs, including a
declaration that no portion of such broadly defined “open space” in
Greater Mumbai should be used for slum rehabilitation. They also
sought directions to remove all encroachers from such spaces and
to declare that such persons were not entitled to any legal
protection under the Maharashtra Slum Areas (Improvement,
Clearance and Redevelopment) Act, 1971. The prayer clause also
included a challenge to the constitutional validity of the 1992
Guidelines dated 3rd June 1992, Regulation 33(10) of the
Development Control Regulations, Appendix IV of the said
Regulations, and the General Slum Rehabilitation Scheme dated
1st April 1998. Subsequently, by way of an amendment allowed
on 1st March 2022, the Petitioners sought to widen their challenge
to include Regulation 17(3)(D)(2) of the DCPR 2034, which was
introduced in May 2018. The amended prayer now alleges that the
said provision, along with the earlier ones, violates Articles 14,
19(1)(d), and 21 of the Constitution of India.
iii) Grounds in Original Petition of 2002:
67. Respondent No. 2 submits that the original challenge was
based on several assumptions and generalised allegations, such as:
That slum rehabilitation schemes on open spaces exceeding 1000
sq.m., where slums occupied more than 25%, are unconstitutional;
That using part of such plots for rehabilitation, even with 67%
construction and 33% reserved use, violates fundamental rights;
That such schemes are contrary to the ratio laid down in Bangalore
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oswp1152-2002-J-Final.doc(2000) 2 SCC 679, even though both these cases dealt with vastly
different factual and legal contexts; That the open space in
Mumbai is alarmingly low and further slum rehabilitation would
reduce it even more; That in-situ rehabilitation discriminates
against the walking population and burdens infrastructure; That
allowing slum rehabilitation on roads or road margins (as
amended in 1997) is unlawful; That earlier orders of this Court in
Writ Petition No. 98 of 1999 had directed removal of
encroachments on plots less than 1000 sq.m., and hence, all
rehabilitation is illegal; That public open spaces are “common
property resources” and cannot be given to any private party,
including slum dwellers.
68. In addition to the above, other grounds raised by the
Petitioners were based on environmental concerns, inter-
generational equity, application of the precautionary principle, and
protection of Article 48A of the Constitution. They have made
sweeping generalisations such as rehabilitation being a “reward to
encroachers,” and have even alleged that existing laws grant rights
to unauthorised persons at the cost of tax-paying citizens, thereby
violating Article 14. Certain prayers even sought to compel the
State to invoke preventive detention legislation such as the
Maharashtra Prevention of Dangerous Activities Act, 1981 against
so-called “encroachers.”
iv) Grounds Added After Amendment in 2022: 69. After the amendment of the Petition permitted on
01.03.2022, two additional grounds were raised, now directed at
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Regulation 17(3)(D)(2) of DCPR 2034. Respondent No. 2 submits
that the above challenges are based on an incorrect appreciation of
the scope and object of DCPR 2034 and the existing legal
framework governing slum rehabilitation in Maharashtra. The
petitioners’ contentions also fail to recognise the balancing role of
the State in addressing the rights of slum dwellers as part of socio-
economic justice, while ensuring rational land use planning.
Moreover, it is submitted that the Petitioners continue to base
their challenge on a self-assumed and legally unsupported
definition of “open space” as per Exhibit ‘B’, and proceed to
challenge the constitutional validity of multiple legislative and
policy provisions without any foundational data or affidavit-based
evidence. It is submitted that such challenges, couched in public
interest, cannot rest merely on idealistic assumptions, emotional
assertions, or academic references to foreign judgments.
Constitutional invalidity must be clearly demonstrated by showing
violation of constitutional provisions in their plain and enforceable
text, which is absent here.
v) Submissions of Respondent No. 2 – Background to
Development Control Regulations and Policy Evolution:
70. Respondent No. 2 submits that the statutory framework for
regulating land use and planning in Mumbai originates under the
MRTP Act. Under this Act, Development Control Regulations
(DCR) were first introduced in 1967, based on a Development Plan
prepared and sanctioned under Section 31 of the Act. This
Development Plan, as per Section 22 of the MRTP Act, was
required to earmark land for various public purposes, including46
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benefit. In the year 1991, the earlier 1967 Regulations were
replaced and superseded by the DCR 1991, which were sanctioned
by the State Government through a Notification dated 20th
February 1991 under Section 31 of the MRTP Act. Respondent No.
2 submits that the DCRs are delegated legislation framed under
Section 22(m) and Section 158 of the MRTP Act. The Supreme
Court has recognised this legal position in the case of Pune
Municipal Corporation v. Promoters and Builders Association,
(2004) 10 SCC 796 .
71. These Development Control Regulations form an integral
part of the Development Plan and are made after following the full
procedure prescribed in Chapter III (Sections 21 to 42) of the
MRTP Act, including surveys, publication of draft plans, inviting
objections and suggestions, consideration thereof, and ultimately
sanction by the State Government. It is submitted that the
Development Plan for Greater Mumbai was sanctioned in stages
between 1991 and 1994. This sanctioned plan identified and
reserved several parcels of land as open spaces such as gardens
and playgrounds, including non-buildable reservations. However,
at the ground level, many such reserved lands were already
physically encroached upon and occupied by slum dwellers.
Despite such encroachments, these reservations were shown in the
Plan, with the intention of eventually clearing such plots. However,
in practice, evicting the slum dwellers from these lands became
difficult due to the prevailing State policy, which, as a welfare
measure, extended protection to slum dwellers who had settled
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prior to a particular “cut-off date” and assured them of alternative
accommodation. In this background, the Government realised that
many such reservations could not be practically implemented.
Therefore, in 1992, a policy decision was taken to allow in-situ
rehabilitation of slum dwellers on 67% of such plots, subject to the
condition that the remaining 33% would be cleared and restored
as open space.
72. Accordingly, on 3rd June 1992, the State Government issued
a Notification titled “Policy Guidelines for the Development Plan of
Greater Mumbai for Implementation of Lands Allocated to Various
Users Designated/Reserved Sites Occupied by Slums.” Though
titled as guidelines, this Notification was, in substance and effect,
an amendment to the Development Plan and DCRs at the
Government level under Sections 30 and 31 of the MRTP Act.
Under Category II of these Guidelines, provisions were made for
redevelopment of lands reserved for non-buildable uses like
recreation grounds, gardens, parks, etc., if such lands were already
encroached upon by existing slums covering more than 25% of the
area. The Guidelines clearly stipulated that where slum occupation
was below 25%, the land should be cleared and retained for the
designated amenity. In cases where the plot area was above 1000
sq.m., redevelopment was permitted under DCR 33(10) and
Appendix IV, with a cap that only 67% of the land could be used
for rehabilitation, and the remaining 33% must be left as open
space.
73. Respondent No. 2 submits that the DCR 1991 regime has
now been replaced by the DCPR 2034, which have been made
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after following a detailed process involving public consultations,
expert committee reports, and formal sanction. DCPR 2034
introduces a revised planning vision and, inter alia, includes a
provision that permits rehabilitation of slums on lands reserved for
open spaces, but only to a limited extent, capping usage at 65%,
and ensuring that at least 35% of such land is retained as open
space. This is a marked improvement over the earlier policy. It is
submitted that in light of DCPR 2034 now being the applicable
planning regulation, any challenge to the 1992 Guidelines is
academic and does not survive. Once a new Development Plan is
sanctioned under Section 31, it completely replaces the earlier
Plan and any amendments thereto. This settled position has been
affirmed by the Supreme Court in MIG Cricket Club v. Abhinav
Sahakar Education Society, (2011) 9 SCC 97 .
74. The newly sanctioned Development Plan under DCPR 2034
has taken into account the actual position on ground, and re-
evaluated certain reservations where encroachments had made
implementation of earlier reservations practically impossible.
Accordingly, the reservation for open space on such plots is now
treated as available to the extent of 35%, with the balance allowed
to be used for rehabilitation of existing slum dwellers. This
represents a balanced, practical, and lawful approach to urban
planning, recognising the needs of both ecology and housing.
75. In view of the above, Respondent No. 2 submits that the
present petition, in so far as it challenges the 1992 Guidelines or
the earlier Development Plan, does not survive. The only surviving
challenge is to Regulation 17(3)(D) of DCPR 2034, which was
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introduced in 2018 and assailed only in 2022 after the amendment
of the petition. However, even this challenge is misconceived and
misplaced. The Petitioners have failed to appreciate the underlying
planning rationale and the larger public interest considered by the
authorities while framing Regulation 17(3)(D), and other similar
provisions. Their contentions are based on idealistic and
impractical assumptions, rather than grounded planning
considerations.
vi) Submissions of Respondent No. 2 – Legal and Factual
Background to Slum Rehabilitation Policy and DCPR 2034:
76. Respondent No. 2 submits that the MRTP Act was enacted by
the State Legislature with the object of ensuring orderly and
planned development of urban and rural areas in the State.
Following the enactment of the MRTP Act, a comprehensive
Development Plan and Development Control Rules were framed in
the year 1967, commonly known as the Development Control
Rules, 1967. It is submitted that these Rules, as originally framed,
did not contain any provision concerning slum rehabilitation or
redevelopment.
77. Mumbai, being the economic capital of the country,
experienced unprecedented migration from rural and other parts
of India due to employment opportunities and better livelihood
prospects. This led to a massive proliferation of slums across the
city. It is a matter of record that more than 55% of the city’s
population came to reside in slum settlements, often under
unhygienic and unsafe conditions. Past efforts of the Government
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to remove such settlements through demolition did not yield any
practical solution and, in fact, were met with widespread criticism
on humanitarian grounds.
78. Recognising that the issue of slums could not be solved
merely by demolitions, and keeping in view the socio-economic
realities, the State Government adopted a humane and inclusive
approach. It was realised that the urban poor did not choose to live
in slums voluntarily but were compelled due to lack of affordable
housing. Accordingly, the Slum Act was enacted. This legislation
was intended to improve living conditions of slum dwellers either
by upgradation of civic infrastructure or by relocating them to
better living environments.
79. The first enumeration of slums was conducted by the State in
1976. A cut-off date of 1st January 1976 was fixed to determine
eligibility for slum dwellers to receive rehabilitation. Identity cards
(popularly known as photo passes) were issued to eligible slum
dwellers. As the schemes evolved and implementation faced
practical hurdles, the cut-off date was extended from time to time
to accommodate ground realities. During the intervening period,
various slum improvement programmes were undertaken with the
assistance of agencies such as the World Bank. These included soft
loan-based schemes for upgrading slum units. However, as
encroachments continued and the problem persisted, it became
necessary to incorporate formal provisions for slum redevelopment
into the city’s statutory planning framework.
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80. In this background, the MCGM resolved to revise its
Development Plan under the MRTP Act. Pursuant to this, the Final
DP & DCR 1991 were sanctioned on 20th February 1991. One of
the significant features of DCR 1991 was Regulation 33(10), which
for the first time provided a legal framework for slum
redevelopment by permitting increased Floor Space Index (FSI) for
such schemes, subject to guidelines in Appendix IV. It is submitted
that the constitutional validity of DCR 1991, including Regulation
33(10), was upheld by this Court in Writ Petition No. 963 of 1991.
The Court observed that the legislative process under the MRTP
Act had been duly followed and that policy choices, even if open to
debate, could not be interfered with by the Court in exercise of its
judicial review.
81. In furtherance of the above framework, the Government
issued a Notification under Section 31(1) of the MRTP Act
prescribing detailed guidelines for development of slum lands even
when such lands were reserved for public purposes such as
recreation grounds, parks, etc., in the sanctioned Development
Plan. These lands, if encroached upon by slums, could be
considered for redevelopment under the amended DCR 33(10),
balancing the public interest in amenities and the right to shelter.
82. The Government constituted a high-level Expert Committee
chaired by Shri D.K. Afzalpurkar, IAS, which included senior
bureaucrats, urban planners, legal advisors, NGOs and developers.
The Committee examined 28 specific issues, including
development of slum-occupied lands reserved for amenities. The
Committee’s final report emphasized that in-situ redevelopment
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should be the principal strategy, and relocation should be resorted
to only where the slums are situated on amenity corridors like
high-tension lines, sewerage lines, or in no-development zones. It
was noted that relocating slum dwellers to distant locations
disrupts their livelihood and leads to socio-economic hardship.
Thus, in-situ redevelopment was considered more humane and
effective.
83. Based on the Afzalpurkar Committee’s recommendations, the
State Government amended the Slum Act by introducing Chapter
IA through Maharashtra Act No. 4 of 1996. Section 3A empowered
the State to constitute the Slum Rehabilitation Authority (SRA).
Simultaneously, the MRTP Act was amended by Maharashtra Act
No. 5 of 1996. By these amendments: The SRA was conferred with
the status of a Planning Authority under Section 2(19) of the
MRTP Act; SRA was empowered to initiate modifications in the
Development Plan under Section 37(1B); Delegated powers of
planning permission and enforcement were conferred upon the
SRA under Section 152 of the MRTP Act.
84. The SRA thereafter framed a General Slum Rehabilitation
Scheme for Greater Mumbai under Section 3B of the Slum Act,
following due procedure of public consultation and publication.
The final Scheme was published in the Official Gazette on 9th
April 1998. Maharashtra Act No. 10 of 2002 introduced Chapter
IB into the Slum Act. This conferred the status of “protected
occupiers” on slum dwellers holding photo passes. This
amendment too was based on the recommendations of the
Afzalpurkar Committee. Between 1998 and 2002, the SRA
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sanctioned numerous redevelopment schemes, including in respect
of plots having reservations for non-buildable uses.
85. This led to certain public interest challenges, including the
present writ petition which was initially filed by Cityspace as Writ
Petition No. 1152 of 2002. In this Writ Petition, this Court initially
passed an interim order on 31st July 2002 restraining sanction of
new slum schemes on reserved open spaces. However, by order
dated 25th July 2014, the interim order was clarified to permit the
State to frame new schemes or policies and to place them before
this Court before implementation. It is submitted that this Court
in Janhit Manch v. State of Maharashtra, (2007) 1 Bom CR 329
upheld the validity of the amendment to DCR 33(10) and
Appendix IV, permitting TDR/FSI benefits in slum redevelopment.
This decision was subsequently affirmed by the Supreme Court in
Janhit Manch v. State of Maharashtra, (2019) 2 SCC 505.
86. The DCPR 2034, were thereafter framed by following the
due statutory process under the MRTP Act, including: Public notice
under Section 26; Consideration of objections and suggestions
under Section 28; Preparation and finalization of the revised
Development Plan by MCGM; Sanction by the State Government
under Section 31 of the MRTP Act.The DCPR 2034, along with the
revised Development Plan, came into force on 8th May 2018, after
publication in the Official Gazette.
87. Respondent No. 2 submits that the present petition remained
dormant for several years and was dismissed for non-prosecution
on 6th April 2021. It was restored only in June 2021. No challenge
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was raised to DCPR 2034 until June 2022, when an amendment
was allowed to challenge Regulation 17(3)(D)(2). Regulation
17(3)(D)(2) of DCPR 2034, unlike the earlier framework, restricts
in-situ rehabilitation on open space plots to a maximum of 65% of
the area, while mandating that a minimum of 35% be preserved as
open space. This policy is a result of extensive deliberation,
consultation, and expert advice, and seeks to balance housing
needs with environmental concerns. In view of the above,
Respondent No. 2 submits that the present challenge to DCPR
2034 is delayed, misconceived, and proceeds on incorrect
assumptions. The impugned Regulation is the outcome of a lawful
and democratic process, and strikes a pragmatic balance between
the competing demands of urban housing and public open space.
88. Respondent No. 2 submits that the challenge to Clause 17(3)
(D)(2) of the Development Control and Promotion Regulations,
2034 (DCPR 2034), as made in the present petition, is misplaced
and untenable in law. The impugned Regulation is part of the
Development Plan as envisaged under Section 22(m) of the
Maharashtra Regional and Town Planning Act, 1966 (MRTP Act),
and has been brought into force after following the full statutory
procedure prescribed under the Act.
89. The DCPR 2034 is a form of delegated legislation framed
under Sections 22(m) and 158 of the MRTP Act. The legal status of
such regulations has been recognised by the Supreme Court in
Pune Municipal Corporation (Supra) , wherein the Court held that
Development Control Regulations made under the MRTP Act
become part of the statutory framework.
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90. It is well-settled in law that delegated legislation can be
challenged only on limited grounds. In Indian Express Newspapers
(Bombay) Pvt. Ltd. v. Union of India , (1985) 1 SCC 641, the
Supreme Court has held that unless the delegated legislation is
shown to be ultra vires the parent Act, made by an incompetent
authority, or violative of constitutional rights, the Courts ordinarily
do not interfere. In the present case: (i) No challenge has been
made that the DCPR 2034 is ultra vires the MRTP Act; (ii) The
authority framing the Regulation is duly empowered under the
law; (iii) The challenge is only made under Articles 14 and 21 of
the Constitution, which is, with respect, based on a misapplication
of both legal and factual aspects.
91. Petitioners have argued that DCPR 2034 fails to provide
adequate open space per capita as per international standards.
However, Respondent No. 2 submits that the question of how
much open space is sufficient for a city, and in what manner land
must be reserved, are policy matters within the exclusive domain
of planning authorities and urban development experts. These are
not matters for judicial determination.
92. The allegation that an existing open space is being taken
away is factually incorrect. The petitioners rely upon judicial
precedents concerning destruction or degradation of actual,
existing environmental resources like lakes, rivers, and parks.
However, in the present case, the lands in question were never
available as open spaces in fact, they are occupied by longstanding
slum settlements. Hence, the application of principles like public
trust doctrine, precautionary principle, or sustainable development
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is misplaced.
93. It is submitted that in the absence of any legally sustainable
ground, the challenge to Clause 17(3)(D)(2) of DCPR 2034 must
fail. The impugned Regulation is part of a considered and expert-
driven policy framework intended to address urban housing while
preserving a portion of open space.
94. Delegated legislation such as the DCPR may be tested on
limited grounds: (i) Want of authority or lack of competence; (ii)
Violation of fundamental rights; (iii) Breach of any constitutional
provision; (iv) Acting beyond the scope of the parent Act; (v)
Inconsistency with other laws; and (vi) Manifest arbitrariness or
unreasonableness.
95. In the present case, none of these grounds have been
established. On the contrary, the DCPR was framed through a
statutory process similar to the making of a Development Plan. As
part of this process, authorities considered existing land uses,
surveyed designated amenities, and planned for the city’s future
needs. Open space requirements were duly considered and
integrated into the land use calculations.
96. The contention that slum-occupied plots designated for open
spaces must remain entirely undeveloped ignores the ground
realities and policy framework under the MRTP Act. The
Development Control Regulations are part of the Development
Plan, and cannot be read in isolation from the land use
designations.
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97. This Court in Nariman Point Association v. State of
Maharashtra, (2003) 5 Bom CR 273, has recognised the integrated
reading of the Development Plan and Regulations. The current
plan under DCPR 2034 reflects this integrated approach by
reserving 35% of encroached land for public amenities and
allowing in-situ rehabilitation on the remaining 65%.
98. The preparation of DCPR 2034 included consultations with
the Planning Authority, Planning Committee, and experts. This
participative process led to a policy that balances slum
rehabilitation with reservation of open spaces, consistent with
realities on ground.
99. Regulation 17(3)(D)(2) is not an isolated provision. Similar
mechanisms are incorporated in: Regulation 17(3)(B):
redevelopment of cessed buildings; Regulation 17(3)(C)(I): cluster
redevelopment schemes; Regulation 17(3)(C)(II): redevelopment
of BDD chawls; Regulation 34(2)(3.4): development of Special
Development Zones (SDZs). All of these provisions follow a
common policy thread–clear a portion of encroached non-
buildable land for amenities and allow development on the
remainder with safeguards.
100. The town planning exercise under DCPR 2034 carefully
analysed the fact that several lands shown as “open spaces” in the
Development Plan of 1991 were never physically available. Many
of these plots were completely encroached upon. Hence, reserving
35% of such land as open space in DCPR 2034 is a policy
compromise to reclaim what is possible in practice.
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101. Respondent No. 2 submits that the impugned Regulation
strikes a constitutionally permissible balance between competing
rights under Article 21, namely, the right to housing of slum
dwellers and the public’s right to a clean environment. The
Supreme Court in Asha Ranjan v. State of Bihar, (2017) 4 SCC
397, has recognised that when two sets of fundamental rights are
in conflict, the right which furthers public interest and collective
welfare must prevail.
102. The petitioners’ argument amounts to a demand for a writ of
mandamus to the Legislature or Executive to make specific
planning policies according to their views. Such relief is
impermissible in law. [State of Himachal Pradesh v. Satpal Saini,
(2017) 11 SCC 42]
103. The suggestion to “read down” provisions of the Slum Act
(Sections 3X, 3Y, 3Z) is legally untenable. These sections are part
of a statutory scheme enacted after detailed study and reports like
the Afzalpurkar Committee Report. They aim to regularise and
rehabilitate slum dwellers while simultaneously safeguarding
societal interest.
104. The planning decisions made under DCPR 2034 were based
on the following realistic considerations: (i) Most encroached
lands cannot be vacated without significant social unrest; (ii)
Eviction without rehabilitation is neither feasible nor legal; (iii)
Acquisition and development of new lands for open spaces faces
practical constraints; (iv) Allowing in-situ rehabilitation while
recovering 35% land for open space is a fair and pragmatic policy.
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105. The impugned Regulation, therefore, reflects a conscious,
balanced and constitutionally valid decision. It improves upon
earlier schemes like the 1992 Guidelines and DCR 1991, by
securing more defined benefits, namely, actual recovery of open
space from currently unusable lands.
106. As observed by the Supreme Court in MIG Cricket Club v.
Abhinav Sahakar Education Society, (2011) 9 SCC 97, town
planning is a technical and evolving subject. Courts must defer to
the wisdom of expert authorities unless there is clear and
demonstrable illegality, which is not the case here.
107. Similar challenges to Development Control Regulations have
been rejected by constitutional courts in: Bombay Dyeing & Mfg.
Co. Ltd. v. Bombay Environmental Action Group, (2006) 3 SCC
434; Jayant Sathe v. Joseph D’souza, (2008) 13 SCC 547; Nivara
Hakk Suraksha Samiti v. State of Maharashtra , WP No. 963/1991
(Bombay HC). For all the aforesaid reasons, Respondent No. 2
submits that the challenge to Clause 17(3)(D)(2) of DCPR 2034 is
legally and factually unsustainable, and the present writ petition is
liable to be dismissed.
C) (i) Submissions on behalf of Respondent No.1 State of
Maharashtra:
108. Upon considering the submissions advanced on behalf of
Respondent No. 1, it is noticed that the some of the objections
taken by Respondent No. 1 substantially mirror those already
raised by Respondent No. 2, both in form and in content. The
thrust of the arguments rests on three premliminary grounds: first,
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that Petitioner No. 1 lacks locus standi to pursue the present
petition post-substitution; second, that the petition suffers from
procedural infirmities due to non-compliance with the Public
Interest Litigation (PIL) Rules of this Court; and third, that the
challenge to Regulation 17(3)(D)(2) of the DCPR 2034, is
misplaced, speculative, and lacking in foundational data or
constitutional justification.
109. According to Respondent No. 1, the chronological
development of the town planning framework in the city of
Mumbai is as under:
(i) Pre-MRTP Framework: The process began under the
Bombay Town Planning Act of 1954, under which the initial
steps were taken to prepare a comprehensive Development
Plan for the city.
(ii) Enactment of the MRTP Act (1966): On 20th December
1966, the Maharashtra Regional and Town Planning Act,
1966 came into force, repealing the 1954 Act and providing
a comprehensive statutory scheme for preparation of
Development Plans and Development Control Regulations.
(iii) First Development Plan and DCR 1967: Based on the
MRTP Act, the first Development Plan and Development
Control Rules, 1967 (commonly known as DCR 1967) were
framed and implemented from the year 1967.
(iv) Slum Act Enacted (1971): The Maharashtra Slum
Areas (Improvement, Clearance and Redevelopment) Act
was enacted on 3rd September 1971 to deal with the61
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(v) Cut-Off Date for Eligibility (1976): On 4th February
1976, the State Government passed a resolution to conduct a
citywide survey of slum dwellers, and the cut-off date of 1st
January 1966 was fixed to determine eligibility for
rehabilitation benefits. Pursuant to the survey, photo passes
were issued to eligible slum dwellers on 13th January 1977.
(vi) Revision of Development Plan (1991): On 31st March
1991, the Municipal Corporation of Greater Mumbai
(MCGM), being the Planning Authority for the city, declared
its intention under Section 26 of the MRTP Act to revise the
Development Plan for the city.
(vii) Sanction of DCR 1991: On 16th April 1991, the State
Government granted approval under Section 31 of the MRTP
Act to the Development Control Regulations, 1991, thereby
bringing them into force.
(viii) Judicial Endorsement of DCR 1991: In Writ Petition
No. 963 of 1991, the constitutional validity of Regulation
33(10) of DCR 1991, read with Appendix IV, was upheld by
this Court. The said order was passed on 16th April 1991,
and the challenge was expressly rejected.
(ix) Notification Dated 27th April 1995: The State
Government issued a guideline notification under Section
31(1) of the MRTP Act, permitting the development of lands
reserved for public purposes in the Development Plan, such
as recreation grounds, play grounds and other open spaces,62
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oswp1152-2002-J-Final.docfor slum rehabilitation, subject to specific conditions. This
marked the beginning of allowing non-buildable reservations
to be developed under specific schemes.
(x) Afzalpurkar Committee (1995): On 23rd November
1995, a committee headed by Mr. Afzalpurkar, a senior IAS
officer, was constituted by the Government along with 16
other experts to study the implementation of slum
rehabilitation in Mumbai and recommend necessary
planning and legal measures.
(xii) Amendment to MRTP Act (1995): Based on the
Committee’s recommendations, the MRTP Act was amended
to introduce Sections 2(19), 37(1)(b) and 152, giving the
Slum Rehabilitation Authority (SRA) the status of a Planning
Authority for the purpose of implementing slum
rehabilitation schemes. The Government was also
empowered to delegate its powers under Sections 44 to 46
and 54 to 56 of the MRTP Act to the SRA.
(xiii) Constitution of SRA under Slum Act: The Slum
Rehabilitation Authority was formally constituted under
Section 3A of the Slum Act. The SRA was thereafter directed
by the Government to initiate Development Plan (DP)
modifications wherever necessary for effective
implementation of slum schemes.
(xiv) Regulation 33(10) Amended: Based on the Afzalpurkar
Committee report, the Government amended Regulation
33(10) of DCR 1991, which became the basis for the General63
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oswp1152-2002-J-Final.docSlum Rehabilitation Scheme for Mumbai, published on 1st
April 1998.
(xv) Judicial Endorsement of DCR 33(10) (2007 and 2019):
In two successive rounds of litigation, this Court and the
Supreme Court upheld the constitutional validity of
Regulation 33(10), including in Janhit Manch v. State of
Maharashtra, reported in (2007) 1 Bom CR 329 and (2019)
2 SCC 505.
(xvi) Clarification of Interim Order in the Present Petition:
This Court, in the present matter itself, clarified that the
interim order dated 31st July 2002 would not act as a
restraint on the State from framing a new scheme or
evolving a new policy. Accordingly, the interim order was
modified on 31st July 2022.
(xvii) Revised Draft Development Plan and DCPR 2034: On
2nd August 2017, the MCGM declared its intention to
prepare a draft revised Development Plan under Section
26(1) of the MRTP Act. On 9th November 2017, pursuant to
Government directives, the earlier draft was scrapped and a
fresh plan was republished. On 7th February 2017, the BMC
approved the revised draft Development Plan and DCPR.
Suggestions and objections were invited from the public
under Section 26(1), and the Planning Committee submitted
its detailed report regarding land use, open spaces,
reservations and slum rehabilitation on 21st February 2018.
Thereafter, the State Government sanctioned the
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Development Plan in stages under Section 31(1). The final
sanction to the balance portion of the DP and DCPR 2034
was granted, and the same came into force with effect from
the date of notification.
110. Petitioners’ Amendment to Challenge Regulation 17(3)(D)
(2): After the DCPR 2034 was brought into force, the Petitioners
amended the Writ Petition to challenge Regulation 17(3)(D)(2),
which permits partial use of large non-buildable open space
reservations (over 500 sq.m.) for slum redevelopment, subject to
the condition that 35% of the land is left open and only 65% may
be used for redevelopment.
ii) Further Submissions of Respondent No. 1: Findings and
Recommendations of the Afzalpurkar Committee:
111. Respondent No.1 submits that the policy reflected in
Regulation 17(3)(D)(2) of the DCPR 2034 is neither arbitrary nor
unconstitutional, but is in fact the result of extensive expert
consideration, including the recommendations of the Afzalpurkar
Committee, which was specifically constituted to examine the
challenges of slum redevelopment in Mumbai and to make
practical recommendations. The Afzalpurkar Committee,
comprising senior administrative and technical experts, submitted
a detailed report addressing key aspects of slum rehabilitation. The
findings and recommendations of the Committee were guided by
the principle of balancing the need for planned urban development
with the socio-economic realities of slum dwellers. Relevant
portions of the report are summarized below.
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112. In-Situ Redevelopment as the Principal Strategy: The
Committee noted that a significant portion, around 65%, of the
income of slum households is spent merely on food, leaving only
about 35% of their income for essential needs like housing,
education, and healthcare. Due to this limited income, slum
dwellers tend to live in areas close to their place of work to reduce
transport costs and to retain access to employment. Thus, any
policy that proposes large-scale shifting or relocation away from
such locations is likely to face strong resistance and may fail in
implementation. The Committee emphasized that in-situ
redevelopment, i.e. rehabilitation of slum dwellers at the same
location or in close proximity, should be the core guiding principle
of slum policy. However, it was also acknowledged that in certain
cases, such as when slums are situated on lands reserved for public
utilities (e.g., water pipelines, sewerage, high-tension power lines)
or in No Development Zones, relocation may be unavoidable in the
interest of public safety, hygiene, and urban infrastructure.
Accordingly, the Committee held that: Relocation should only be
done when slums exist on lands with location-specific public
amenities, which cannot be shifted. Even in such cases, the
proportion of slum dwellers requiring relocation would be a small
percentage of the total affected population. For such limited cases,
relocation was considered a just and defensible policy measure in
the larger interest of the city and its infrastructure.
113. Distance of Relocation Sites: The Committee further
highlighted that, in practice, it has been very difficult to find
alternate sites near existing slums for relocation. Based on past
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experience, none of the approximately 25,000 huts that had been
relocated in the last two decades could be shifted within a distance
of 15 kilometers from their original location. Given the scarcity
and high demand for urban land in Mumbai, finding nearby sites is
extremely difficult. Moreover, land has to be reserved for transit
accommodation during the redevelopment period. Therefore, the
Committee concluded that: No rigid restriction should be imposed
on the distance at which relocation sites may be identified. Efforts
must, however, be made to ensure that the relocation site does not
disrupt the social and economic structure of the community.
Considering the fully subsidised nature of the rehabilitation
housing and the phasing out of taxes and charges, relocation of a
limited number of families to slightly distant locations was
considered reasonable.
114. Based on the above, the Committee made the following key
recommendations: In-situ redevelopment should be the main
approach in slum rehabilitation schemes. Relocation should be
permitted only where slums exist on public amenity lands that
cannot be used for residential purposes.
115. Other Key Issues Considered by the Committee : Respondent
No. 1 further submits that the Committee took a comprehensive
view and considered several other critical issues, including: The
implementation challenges in existing schemes and the need for
policy reform. Whether any amendments were needed in the legal
framework, including the Slum Act and related provisions. The
necessity to create financial models to support civic infrastructure
in slum projects. Measures to prevent sale of allotted tenements
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and re-encroachment by slum dwellers after rehabilitation. How to
involve the private sector in funding and implementation without
burdening the Government. Steps to be taken against non-
cooperating slum dwellers who delay or obstruct redevelopment.
The type of institutional machinery needed–whether
governmental or autonomous–for better execution. The nature of
incentives required to encourage large slum colonies to come
forward voluntarily. Broad measures to promote and execute slum
redevelopment on a citywide scale.
116. Based on these issues, the Committee gave its considered
recommendations to the State Government, including the proposal
to fix 1st January 1995 as the cut-off date for eligibility under the
slum rehabilitation scheme. Respondent No. 1 relies upon the said
Committee Report to demonstrate that the present policy–
particularly the regulatory framework allowing partial use of large
reserved open spaces for slum redevelopment–is a well-
considered measure, emerging from urban realities, expert
recommendations, and judicially endorsed planning strategies.
iii) Submissions of Respondent No. 1: Contextual Background
and Justification for Impugned Regulation:
117. Respondent No. 1 submits that the present Regulation under
challenge, namely, Regulation 17(3)(D)(2) of the DCPR 2034, is a
result of years of policy evolution in response to the unique urban
challenges faced by the city of Mumbai. Mumbai, geographically
situated along the western coast of India, has developed from a
cluster of seven islands, namely Bombay, Colaba, Mazgaon, Old
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Woman’s Island, Parel, Worli, and Salsette. The eastern side of the
city is marked by rows of mangroves, while the western side is
largely rocky and sandy. Owing to its coastal formation, the city
has a narrow land stretch running along a north-south axis, which
inherently limits available land for habitation and development.
These geographical constraints, combined with Mumbai’s status as
a major economic and financial hub, have resulted in a severe land
crunch. People from various parts of Maharashtra and across the
country have continued to migrate to the city in search of
employment and livelihood opportunities. As a result, a significant
portion of Mumbai’s population, nearly 55%, reside in
approximately 2,500 slum settlements, which are largely
unplanned, unsafe, and devoid of basic amenities.
118. Due to shortage of land and lack of affordable housing
options, many residents are compelled to live in informal
settlements. Initially, till around 1971, slums were treated as illegal
encroachments, and demolition was the standard administrative
response. However, it became evident over time that mere
demolition could not address the issue. The problem was not of
law and order, but one of socio-economic distress. Most slum
dwellers did not voluntarily choose to occupy such lands; rather,
they were driven by poverty, lack of resources, and compulsion.
Recognizing this, the Slum Act was enacted to improve and
rehabilitate people residing in such settlements. In the year 1995,
the State Government constituted the Afzalpurkar Committee,
comprising experts and senior officials, to examine the issue in
detail. The Committee’s report revealed that, on an average, 65%
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of a hutment-dweller’s income is spent solely on food, and only the
remaining 35% is available for health, education, housing, and
other necessities. This economic limitation makes it extremely
difficult for slum dwellers to secure formal housing . The State and
its agencies are bound by constitutional and statutory obligations
to ensure shelter and dignity to all its citizens, especially the
weaker sections. The Right to Shelter has been consistently
recognized by the Supreme Court as an essential part of the Right
to Life under Article 21 of the Constitution of India. The consistent
emphasis of expert bodies and policy makers has been on in-situ
rehabilitation as a just and effective solution. The impugned
Regulation reflects a conscious policy choice to balance two
competing but equally important objectives (i) the right of the
general public to access open spaces, and (ii) the need to provide
secure housing to long-standing slum dwellers. In order to give
statutory effect to the slum rehabilitation policy under the Slum
Act, it was also felt necessary to incorporate specific provisions in
the Development Control Regulations. Accordingly, Regulation
33(10) was introduced into the DCR 1991, to facilitate and
regularize slum rehabilitation schemes within the overall
development framework .
119. It is also submitted that many slums are located on lands
that are shown as reserved for gardens, playgrounds, or
recreational spaces in the Development Plan or the Town Planning
Scheme. However, once such lands are encroached by slum
settlements, their theoretical status as open spaces does not
translate into actual availability for public use. In practice, these
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lands cannot be used by the public for their intended purposes.
The current State policy, including Regulation 17(3)(D)(2), offers
a pragmatic solution by allowing partial redevelopment of such
lands, permitting up to 65% to be used for rehabilitation of slum
dwellers and reserving at least 35% for public use, thereby
restoring some portion of the original reservation without any
burden on the public exchequer .
120. Therefore, the intent and effect of the impugned Regulation
is neither arbitrary nor detrimental to public interest. Rather, it
ensures that open spaces which are currently unavailable due to
occupation by slums can be at least partially reclaimed while
simultaneously achieving the goal of rehabilitating urban poor. In
light of the above factual background, and particularly considering
the limited land availability, the existing policy represents a
balanced approach. It ensures upliftment of slum dwellers, while
also restoring part of the encroached land for the intended public
purpose. This policy framework has been laid out in DCPR 2034
and is fully in line with the objectives of the MRTP Act, especially
the provisions concerning planning, reservations, and permissible
development on non-buildable / open space lands .
iv) Submissions on behalf of Respondent No. 1: Legal
Framework and Validity of Regulation 17(3)(D)(2) of DCPR 2034
under the MRTP Act:
121. Respondent No. 1 submits that the impugned Regulation
17(3)(D)(2) of the Development Control and Promotion
Regulations, 2034 (DCPR 2034), is a part of the larger statutory
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framework under the MRTP Act. The MRTP Act is a comprehensive
code that governs the preparation, approval, and implementation
of Development Plans (DP) and Development Control Regulations
(DCR) in the State of Maharashtra. The said Regulation has been
framed strictly in accordance with the statutory scheme under the
Act and cannot be said to be arbitrary or ultra vires.
122. A. Statutory Scheme under the MRTP Act : Section 2(3)
defines “appropriate authority” to mean the authority for whom
land is designated in a Development Plan for public purpose.
Section 2(9) defines “Development Plan” as a plan for the
development or redevelopment of areas within the jurisdiction of
the Planning Authority. Section 2(15) defines “local authority”,
which in the context of Mumbai, includes the Municipal
Corporation of Greater Mumbai. Section 2(19) defines “Planning
Authority”, which includes the Municipal Corporation and also
extends to Special Planning Authorities constituted under Section
40. Importantly, in the context of slum areas, it also includes the
Slum Rehabilitation Authority (SRA) appointed under Section 3A
of the Slum Act.
123. Chapter III of the MRTP Act contains provisions related to
Development Plans and includes procedural safeguards and
participatory mechanisms such as surveys, draft publication,
invitation of objections and suggestions, consideration by Planning
Committees, and final sanction by the State Government. Section
21 casts a duty on the Planning Authority to: Conduct land
surveys; Prepare an existing land use map; Prepare a Draft
Development Plan (DDP); Submit progress reports to the State
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Government periodically.
124. Section 22 enumerates the essential contents of a
Development Plan, which include: Land use zoning (residential,
commercial, recreational, etc.); Reservation of land for public
purposes; Provisions for infrastructure, transportation, flood
control, sanitation, open spaces, and heritage preservation;
Regulation of development through imposition of restrictions such
as FSI, building height, and population density. Section 22(m) is
particularly relevant, as it empowers the State Government or the
Planning Authority to regulate land development and land use by
framing Development Control Regulations, which are treated as
part of the Development Plan.
125. Section 23 to Section 31 provide for: Declaration of intention
to prepare the DP (Section 23); Preparation of base maps and
surveys (Section 25); Publication of Draft DP (Section 26); Public
participation through objections and suggestions (Section 28);
Submission of Draft DP to State Government (Section 30); Final
sanction by the Government (Section 31), after consultation with
the Director of Town Planning. Once sanctioned, the Development
Plan and DCR come into force and acquire statutory force. Section
37 allows modification of a final Development Plan, following
similar procedural safeguards. Section 40 enables the creation of
Special Planning Authorities, which includes the SRA, for focused
areas like slum rehabilitation.
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D) Judicial Precedents Cited: (i) Delegated Legislation and
Limited Scope of Challenge:
126. The Supreme Court in Pune Municipal Corporation (Supra)
, held that Development Control Regulations framed under Section
22(m) read with Section 158 of the MRTP Act are delegated
legislation, and thus form an integral part of the statutory scheme.
The validity of delegated legislation can be challenged only on
limited grounds such as: It is ultra vires the parent statute; It
suffers from lack of competence; It violates fundamental rights; It
is manifestly arbitrary, unreasonable, or fails to conform with the
objects of the Act. In the present case, it is submitted that the
Petitioners have not demonstrated how Regulation 17(3)(D)(2)
violates any of the above principles. The Regulation is traceable to
valid statutory authority under the MRTP Act, has been framed
following due process, and does not violate Article 14 or Article 21
of the Constitution.
ii) Policy Justification for Regulation 17(3)(D)(2):
127. Respondent No. 1 submits that Regulation 17(3)(D)(2) was
introduced after considering: The existing encroachments on open
lands in the city; The shortage of affordable housing; The need to
provide shelter to long-standing slum dwellers; And the
impossibility of fully restoring open spaces already encroached
upon. The Regulation strikes a practical balance by mandating that
at least 35% of the reserved open space shall be left open for the
intended reservation purpose, while allowing the remaining 65%
to be used for in-situ slum rehabilitation. This enables: Partial74
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oswp1152-2002-J-Final.docreclamation of open spaces; Regularisation of existing slum
dwellings; Reduction in litigation and evictions; And fulfilment of
constitutional obligations relating to shelter and dignity. The
development plan and the DCPR 2034 have been prepared
simultaneously by the concerned statutory authorities, with due
regard to existing land use, open spaces, and future needs of the
city. Experts from urban planning, environment, and housing
sectors were consulted at each stage. The impugned Regulation
reflects a reasoned and informed policy decision.
128. It may further be noted that in order to support the Slum
Rehabilitation Policy under the Slum Act, it was necessary to
introduce matching provisions in the Development Control
Regulations. Accordingly: Regulation 33(10) was introduced in
DCR 1991 to permit slum rehabilitation on reserved lands subject
to specific conditions. Draft Slum Guidelines were published on
26th December 1991, and after public consultation, finalized by
Notification dated 3rd June 1992 under Section 31(1) of the MRTP
Act. These Guidelines form an integral part of the Development
Plan and allow slum rehabilitation on reserved plots, provided
certain public purposes are still achieved. The objective of
Regulation 17(3)(D)(2) is aligned with this long-standing policy,
and aims to reconcile the community’s need for open space with
the statutory duty to rehabilitate eligible slum dwellers.
129. The Regulation, thus, reflects a balanced policy choice that
accommodates both: The public interest in restoring open spaces,
and the social welfare mandate to protect the rights of slum
residents, as recognised under Article 21 of the Constitution and75
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oswp1152-2002-J-Final.docreaffirmed by various judicial pronouncements.
130. Respondent No. 1 submits that the challenge raised by the
Petitioners to the constitutional validity of Clause 17(3)(D)(2) of
the DCPR 2034 is unsustainable both on facts and in law. The said
provision has been framed as part of a statutory Development
Plan, after following due process under the MRTP Act, and is
consistent with established legal principles laid down by the
Supreme Court and this Court.
iii) Presumption of Constitutionality and Burden on Petitioner:
131. It is a settled principle of constitutional law that every
statute or delegated legislation is presumed to be valid unless
proved otherwise. The burden lies heavily on the party challenging
the provision to demonstrate beyond doubt that it is violative of
constitutional provisions.
132. State of Bihar v. Bihar Distillery [(1997) 2 SCC 453]- The
Supreme Court has clearly held that the courts must begin with a
presumption in favour of constitutionality of legislation. A law
cannot be struck down merely by alleging that it is arbitrary. The
challenge must show clear transgression of constitutional limits.
133. B.R. Enterprises v. State of U.P. [(1999) 9 SCC 700]- The
Court emphasized that it must be assumed the legislature
understands the needs of its people, and judicial scrutiny must
lean in favour of upholding validity wherever possible.
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134. Mohd. Hanif Quareshi v. State of Bihar [AIR 1958 SC 731]-
The Court is permitted to take into account historical context,
common knowledge, and prevailing social realities while
sustaining a law. The burden of proving unconstitutionality lies
with the challenger.
135. Sushil Kumar Sharma v. Union of India [(2005) 6 SCC 281]-
A mere possibility of misuse of a provision does not render it
unconstitutional. The law must be presumed to be applied fairly
and reasonably.
136. Govt. of A.P. v. P. Laxmi Devi [(2008) 4 SCC 720]- The
Supreme Court has observed that invalidating a statutory provision
is a serious and exceptional step, to be taken only in the rarest of
cases.
137. Chiranjit Lal Chowdhury v. Union of India [AIR 1951 SC 41]-
The presumption of validity must be accorded to the statute, and it
is for the party challenging it to establish a clear breach of
constitutional guarantees.
138. Mahant Dhas v. State of Bihar [AIR 1959 SC 942]- The
Court reiterated that presumption in favour of constitutionality is a
fundamental principle and the legislature must be assumed to be
aware of public needs.
iv) Right to Shelter and State’s Constitutional Obligation:
139. Respondent No. 1 further submits that the right to shelter is
recognized as part of the right to life under Article 21, and the
State has an affirmative duty to take positive steps for housing the
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poor and rehabilitating slum dwellers.
140. Chameli Singh v. State of U.P. [(1996) 2 SCC 549]- The right
to life includes right to shelter, food, water, and a clean
environment. It is the duty of the State to ensure access to basic
human needs.
141. Ahmedabad Municipal Corporation v. Nawab Khan Gulab
Khan [(1997) 11 SCC 121] – The Court held that the State must
provide shelter to the urban poor and that such an obligation
arises from Articles 38, 39, and 46 of the Constitution. Right to
residence is part of the minimum core of human dignity.
142. P.G. Gupta v. State of Gujarat [1995 Supp (2) SCC 182]- The
Supreme Court held that affordable permanent housing is part of
socio-economic justice. The State is obligated to create viable
housing schemes within the means of the poor.
v) Balancing of Competing Public Interests under Town
Planning Laws:
143. Respondent No. 1 submits that the impugned Regulation
strikes a balance between competing public interests, namely,
rehabilitation of long-term slum dwellers and preservation of open
spaces in a heavily congested city like Mumbai.
144. Relying on Bombay Dyeing (Supra) it is submitted that the
Supreme Court held that in planning and zoning matters, the
Court must adopt a balanced and harmonious approach, giving
due regard to all public interests involved. The Court also clarified
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that: Ecological considerations are important but must be read in
light of the purpose and object of the planning statute. There may
be multiple public interests, and it is for the policymaker to decide
which to prioritize. Courts must defer to legislative wisdom unless
the action is manifestly arbitrary. The same principle applies here.
Regulation 17(3)(D)(2) achieves a middle path–it allows 65% of
slum-occupied reserved land to be used for in-situ rehabilitation,
while restoring 35% for public use.
145. Respondent No. 1 submits that the judgments cited by the
Petitioners do not support the present challenge and are factually
or contextually distinguishable: Hiraman (Supra) – This case
relates to lapsing of reservation under Section 127 of the MRTP
Act and does not deal with delegated legislation or slum
rehabilitation. Lal Bahadur (Supra) – This was a case of conversion
of green belt into residential zone allegedly under external
influence. The facts involved allegations of abuse of power, which
are not relevant here. Virendra Gaur (Supra) – In this case, open
land was allotted to a private party for construction. There was no
issue of in-situ slum rehabilitation or regulation under the MRTP
Act. Vellore Citizens’ Welfare Forum (Supra) – This judgment deals
with pollution control and sustainable development. However,
DCPR 2034 already incorporates sustainability principles. A.P.
Pollution Control Board (Supra) – Discusses precautionary
principles of environmental law. It does not involve urban planning
regulations under MRTP Act. Karnataka Industrial Area
Development Board (Supra) – Pertains to ecological preservation,
but is not relevant to rehabilitation policy or town planning
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regulations. M.C. Mehta (Supra) – Concerns construction near
riverbed in a hotel project and diversion of river flow, unrelated to
slum redevelopment or DCPR provisions. M.I. Builders (Supra) –
A public park was handed over to a private builder, a case entirely
distinguishable on facts and legal context. Kohinoor (Supra) – This
judgment affirms the need to provide recreational open spaces at
ground level, which is consistent with Regulation 17(3)(D)(2).
Janhit Manch (Supra) – This Court issued guidelines on slum
rehabilitation. Regulation 17(3)(D)(2) is a direct response to these
directions and strikes a balance by restoring 35% open space. M.C.
Mehta (2002) 4 SCC 356(Supra) – This case pertains to pollution
and environmental control, not statutory urban regulations.
146. In view of the above settled legal position, Respondent No. 1
submits that no case of constitutional infirmity is made out in
respect of Clause 17(3)(D)(2) of DCPR 2034. The Regulation is a
product of delegated legislative power duly exercised under the
MRTP Act, guided by principles of public interest, equity, and
urban planning discipline. The challenge raised by the Petitioners
does not satisfy the threshold required for invalidating a piece of
delegated legislation. Respondent No. 1 prays for dismissal of the
Writ Petition.
E) Submissions on behalf of the Intervener - i) Slum Dwellers' Society:
147. It is submitted that the present writ petition, insofar as it
seeks to challenge the legality and validity of Regulation 17(3)(D)
of the DCPR 2034, is liable to be dismissed on the ground of gross
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delay and laches. The record would reveal that the draft of the
DCPR 2034, along with the revised Development Plan, was placed
before this Court as far back as on 13th December 2018. The
Petitioners were fully aware of this development. In fact, the four-
week period granted by the Court expired on 12th January 2019,
by which time no objection was raised by the Petitioners.
Thereafter, for more than two years, the Petitioners chose not to
challenge the Regulation. Only on 14th June 2021 did the
Petitioners seek to amend the writ petition and include a challenge
to the provisions of DCPR 2034. Even the Interim Application
seeking a stay on Regulation 17(3)(D) was moved only in June
2022–more than three years after the Regulation came into force.
No explanation has been offered for this unexplained and
avoidable delay.
148. The Petitioners’ silence becomes even more glaring when
considered in the background of the statutory procedure followed
prior to the finalization of the Development Plan and the DCPR
2034. In accordance with the provisions of the MRTP Act, the
MCGM had published notices and invited objections and
suggestions from the public at two different stages. It is therefore
submitted that the challenge mounted to Regulation 17(3)(D) of
DCPR 2034 is barred by delay and laches, suffers from a lack of
bona fides, and is liable to be rejected at the threshold. The
Petitioners’ conduct, when weighed against the rights of thousands
of slum dwellers who stand to benefit from planned
redevelopment, tilts the balance of equity against interference. In
view of the above, the Intervener Slum Dwellers’ Society humbly
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submited that the present challenge by the Petitioners suffers from
gross delay and laches. The Petitioners remained silent through all
stages of the planning process, did not raise any timely objection,
and have now chosen to challenge the Regulations years after their
implementation. This belated challenge deserves to be dismissed
on this ground alone.
149. The procedural trajectory culminating in the formulation and
final notification of the DCPR 2034 has already been duly taken
note of while setting forth the submissions advanced on behalf of
Respondent Nos. 1 and 2. This Court has recorded in sufficient
detail the steps undertaken by the Planning Authority, including
the process of publication of the draft regulations, invitation of
objections and suggestions, conduct of hearings, and the eventual
issuance of the final notification in accordance with the scheme
envisaged under the Maharashtra Regional and Town Planning
Act, 1966. In view thereof, and in order to obviate repetition, this
Court considers it neither necessary nor appropriate to once again
recapitulate the said procedural history as narrated in the written
submissions of the Intervener Slum Dwellers’ Society.
150. Based on the authoritative pronouncements in the case of
Janhit Manch v. State of Maharashtra, 2006 SCC OnLine Bom
1145 , Janhit Manch v. State of Maharashtra, (2019) 2 SCC 505,
Hinsa Virodhak Sangh v. Mirzapur Moti Kuresh Jamat , (2008) 5
SCC 33, State of Tamil Nadu v. P. Krishnamurthy, (2006) 4 SCC
517 the Intervener submits the following legal position: (i) That
the DP 2034 and DCPR 2034 are delegated legislation, framed
under the MRTP Act, and therefore enjoy a presumption of
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validity. (ii) That the sufficiency or adequacy of material before
the authorities at the time of drafting the plan or regulations
cannot be re-examined in judicial review. (iii) That such
delegated legislation can only be challenged on three narrow
grounds, namely: a) That the provision is beyond the scope of the
parent Act; b) That the provision is manifestly arbitrary on its face,
requiring no factual evidence to demonstrate its unreasonableness;
c) That the provision suffers from procedural ultra vires, i.e., it was
notified contrary to the mandatory procedure laid down under the
MRTP Act.
151. A plain reading of the amended Writ Petition and the
accompanying Interim Application for Stay clearly reveals that
none of the above well-established grounds have been invoked by
the Petitioners. There is no plea that Regulation 17(3)(D) of the
DCPR 2034 is ultra vires the MRTP Act. There is no material
placed on record to show that the provision is facially arbitrary or
that the prescribed procedure was not followed. The challenge is
based on generalised objections, unsupported by the legal tests
laid down by the Supreme Court and this Court. For all the
aforesaid reasons, the Intervener submits that the Petitioners have
failed to make out even a prima facie case for grant of any relief.
The challenge to Regulation 17(3)(D) is not only grossly delayed
but is also legally unsustainable. The Interim Application for Stay,
as well as the Writ Petition, deserves to be dismissed in limine. The
Intervener submits that the process of town planning is not static,
but a continuous and evolving one. Town planning and
development are dynamic in nature, and they respond to the
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changing needs of society, population growth, urbanisation, and
infrastructural demands. It is for this very reason that the
legislature has empowered the State Government to modify or
amend the Development Plans and Development Control
Regulations (DCR) from time to time, following the prescribed
legal procedure.
152. Based on the case of Her Highness Maharani Shantadevi P.
Gaikwad v. Savjibhai Haribhai Patel, (2001) 5 SCC 101, Hotel
Sahara Star v. State of Maharashtra, 2008 SCC OnLine Bom 666,
Rajeev Suri v. Delhi Development Authority , (2022) 11 SCC 1, the
legal position that emerges from these decisions is clear and
consistent. The power of the State to amend or modify
Development Plans and Regulations: (i) Is recognised as a quasi-
legislative function; (ii) Is necessary to meet emerging urban
needs, technological advancements, and demographic shifts; (iii)
Is subject only to the procedure laid down in the parent statute,
and not open to interference unless the modification is shown to
be ultra vires the statute or manifestly arbitrary.
153. In this backdrop, it is submitted that the inclusion of
Regulation 17(3)(D) in DCPR 2034, which permits limited use of
reserved open spaces for the purpose of slum rehabilitation (while
preserving a minimum of 35% for recreational use), is a policy
decision made in furtherance of constitutional goals of housing,
human dignity, and inclusive development. It reflects a balancing
of competing public interests–namely, the protection of open
spaces and the urgent need to rehabilitate slum dwellers residing
in precarious conditions.
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154. The power to frame and modify regulations like Regulation
17(3)(D) flows directly from the statutory scheme of the MRTP
Act, and the same has been exercised through a transparent
process involving public notice, objections, and expert review. The
Petitioners have not shown that the said Regulation is either
beyond the scope of the parent statute or manifestly arbitrary so as
to warrant judicial interference. Planning instruments such as the
DCPR must be interpreted in a manner that furthers the goals of
urban equity and sustainable development. In the present case, the
challenged Regulation facilitates structured rehabilitation of slum
dwellers, and ensures that public open spaces are not misused for
private benefit but are used, in part, to address pressing public
housing needs. The Courts have repeatedly held that unless there
is a violation of constitutional or statutory mandate, Courts should
not interfere in matters of urban policy and planning. It is
submitted that the Petitioners have not laid any legal basis to
challenge the modification or validity of Regulation 17(3)(D). The
planning process is ongoing, lawful, and intended to serve
evolving public interest. Therefore, the challenge raised by the
Petitioners is wholly without merit and deserves to be rejected.
155. It is further submitted that the existing position of status quo
is deeply unsatisfactory. For nearly twenty years, the lands which
are reserved for recreational open spaces have not been developed
as such. Simultaneously, lakhs of slum-dwellers have continued to
live in unsafe and unregulated informal settlements on these lands
without any rehabilitation or access to basic civic amenities. This
stagnation affects over 15 lakh square metres of land and more
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than 3 lakh slum dwellers in the city.
156. In this context, the Intervener submits that the balance
struck under Regulation 17(3)(D) is not only rational and
proportionate but serves the larger constitutional objectives of
inclusive urban development, dignity in housing, and sustainable
use of public land. Therefore, the Petitioners’ plea for striking
down this regulation on the basis of an alternative policy
preference is untenable.
157. It is now well settled that courts do not sit in appeal over
public policy. The judiciary does not examine whether a policy is
wise, optimal, or ideal, it examines whether the policy is legal,
reasonable, and non-arbitrary. If a regulation is within the
legislative competence, follows due process, and seeks to achieve a
legitimate public interest goal, it must be respected.
158. This principle has been reaffirmed in numerous decisions of
the Supreme Court, including: In Small Scale Industrial
Manufacturers Association v. Union of India, 2021 SCC OnLine SC
246, the Court clearly held that judicial review of policy is limited
to testing legality, and not wisdom or efficacy. The Court held that
matters involving economic or social planning require “play in the
joints” and that the courts must avoid interfering unless the policy
is palpably arbitrary, discriminatory, or mala fide. In R.K. Garg v.
Union of India,(1981) 4 SCC 675 the Court emphasised that laws
relating to economic and social welfare must be granted greater
latitude because they deal with complex, evolving problems not
amenable to doctrinaire solutions. In Balco Employees’ Union v.
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Union of India, (2002) 2 SCC 333 and Peerless General Finance v.
RBI, (1992) 2 SCC 343 it has been categorically held that courts
are not expert bodies on fiscal, developmental or town-planning
issues and should refrain from evaluating competing policy choices
unless there is a clear breach of statutory or constitutional limits.
159. Likewise, in Satya Dev Baghur v. State of Rajasthan , (2022)
5 SCC 314, the Supreme Court held that Courts must be slow to
interfere with policy decisions, unless such policy is shown to be
palpably arbitrary and devoid of any rational basis. It was
reiterated that intelligible differentia and a legitimate objective
would be sufficient to uphold a policy under Article 14. In Bombay
Dyeing (Supra) , the Court laid down a crucial test, that multiple
public interests must be weighed and harmonised in any judicial
consideration. The Court recognised that while ecology is
important, so too are the interests of housing, employment, revival
of urban areas, and rehabilitation of displaced populations. In such
matters, a composite view of public interest must prevail over
narrow claims of any one stakeholder. Similarly, this Court in
Janhit Manch v. State of Maharashtra , PIL Writ Petition No. 660 of
2014 (decided on 23.09.2009), upheld a Government Notification
de-reserving 50% of a plot earlier marked for a botanical garden,
to facilitate housing rehabilitation for workers under DCR 1991.
The Court accepted that such reallocation of land use, when done
within the framework of the law and in larger public interest, is
permissible and not open to judicial second-guessing.
160. In view of the settled legal position, the Intervener submits
that Regulation 17(3)(D)(2) does not suffer from any legal
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infirmity. It is a well-considered policy decision aimed at balancing
two competing public goods, environmental preservation and
housing for the urban poor. It is neither arbitrary nor
discriminatory. It is framed in public interest, pursuant to statutory
power, and is the result of a democratic planning process. The
Petitioners have failed to show that the Regulation is beyond the
scope of the MRTP Act, or that it is manifestly arbitrary, or that it
was notified in violation of procedural requirements. In the
absence of any such established ground, judicial interference is
neither warranted nor permissible.
161. The Intervener submits that rehabilitation of slum dwellers is
a legitimate and urgent public policy objective. It cannot be
ignored or sidelined, as it directly affects the fundamental right to
life under Article 21 of the Constitution of India. Millions of
citizens across urban India, including the residents of Mumbai, live
in unplanned settlements with poor sanitation, unsafe housing,
and without basic dignity. The issue before this Court is not
merely about land use, but about the lives of lakhs of individuals.
The approach suggested by the Petitioners would, in effect, require
the State to demolish all slum structures situated on lands reserved
for open spaces, and yet not permit their rehabilitation on the
same lands. If this position is accepted, it would result in rendering
lakhs of people homeless, thereby infringing their basic right to
shelter and dignified life.
162. The present intervention is on behalf of slum societies whose
members have continued to live in inhuman and unsafe conditions
for years. The following facts illustrate the hardship faced by them:
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(i) In many societies, there are only 10 to 15 toilets shared among
hundreds of people. In effect, there is one toilet for every 50
residents. (ii) There is no assured supply of clean water. The
limited water made available is often contaminated, but due to
scarcity, residents are forced to consume it. (iii) Open defecation
and open drainage systems are prevalent, affecting the health and
dignity of women, children, and the elderly. (iv) The homes are
kutcha structures, vulnerable to collapse and flooding, especially
during monsoons, leading to loss of life and property. (v) Every
monsoon, waterlogging and disease outbreaks are routine. These
conditions were made worse during the COVID-19 pandemic.
163. It is submitted that for more than two decades, no slum
rehabilitation scheme under the SRA has been feasible on these
lands due to the pending litigation and the interim restraint that
continues to operate. As a result, neither have the residents been
rehabilitated, nor has even a single square meter of land been
converted into open space. Thus, neither policy objective–
rehabilitation or green space creation–has been met.
164. It is settled law that the right to shelter is part of the right to
life under Article 21. In Ahmedabad Municipal Corporation v.
Nawab Khan Gulab Khan, (1997) 11 SCC 121, the Supreme Court
held that the State is under a constitutional duty to ensure housing
for the poor and weaker sections. Similarly, in Yash Developers v.
Harihar Krupa Co-op. Hsg. Soc. Ltd., (2024) 9 SCC 606, the Court
recognised that slum redevelopment serves a public purpose, as it
is intrinsically connected to the right to dignity and life.
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165. The Petitioners cannot compel the State to give priority to
only one aspect of development. The State has attempted to
balance two legitimate and competing goals–the need for public
open spaces and the duty to rehabilitate the urban poor.
Regulation 17(3)(D)(2) is a reflection of this balanced approach. If
permitted to operate, it will result in opening up 35% of slum-
encroached land for public use as green or recreational space,
while enabling structured, in-situ rehabilitation for the slum
dwellers.
166. The Petitioners’ main contention is that Regulation 17(3)(D)
(2) is identical to the 1992 Policy, and that both ought to be
treated alike. This submission is factually incorrect and legally
unsustainable. It ignores the substantive shift in planning
philosophy and the methodology adopted in the preparation of the
DCPR 2034. Under the earlier 1991 DCR regime, there was no
express provision to deal with lands reserved as open spaces but
encroached by slums. As a result, even if such land was practically
unusable due to encroachments, it continued to be counted as
open space in the city’s planning data. The 1992 Policy proposed to
permit slum rehabilitation on such lands but lacked the refined
framework of land balancing seen in the DCPR 2034.
167. In contrast, under the 2034 Development Plan, such
encroached areas have already been excluded from the city’s count
of available open space. Thus, when the new plan computes open
space availability, it considers only 35% of such lands as actually
available. Therefore, implementing Regulation 17(3)(D)(2) will
not reduce the net open space available to the public. Instead, it
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will actually realise the planned target of green space availability
in the city.
168. The Planning Committee’s Report on the Draft Development
Plan 2034 specifically notes that, after deliberations on suggestions
and objections, including from slum dwellers, a development
control mechanism was evolved to allocate 33% of such
encroached land as open space, while permitting the remaining
67% for in-situ slum rehabilitation. The Report emphasises that
such a mechanism was adopted to serve both planning and
humanitarian needs, enabling green space development while
protecting the housing rights of vulnerable populations. The
realistic calculation of open space availability in the 2034 Plan is
already based on this 33% accommodation model. As such,
implementation of Regulation 17(3)(D)(2) will help the city move
closer to its target of 6.13 sq. metres of open space per person, as
provided in the DCPR 2034.
169. Regulation 17(3)(D)(2) was not a post-facto adjustment but
an integral component of the city’s planning vision under DCPR
2034. The town planners have, from the outset, calculated and
planned for only 35% of slum-occupied lands to be treated as open
space. The remaining land is earmarked for in-situ rehabilitation,
reflecting an equitable balance between environmental and social
justice. In view of the facts and circumstances stated above, the
Intervening Slum Societies most submit that the challenge to
Regulation 17(3)(D)(2) is misconceived and misplaced, and that
no reliefs ought to be granted to the Petitioners in respect of its
implementation. The regulation advances the cause of planned
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development, inclusiveness, and fulfilment of constitutional
obligations–and hence, deserves to be upheld.
ii) Submissions on behalf of Intervener – NAREDCO West
Foundation:
170. The Intervener, NAREDCO West Foundation, while broadly
supporting the submissions advanced on behalf of Respondent
No.1 – the State of Maharashtra, and Respondent No.2 – the
Planning Authority, has independently pressed for the rejection of
the present challenge to Regulation 17(3)(D)(2) of the
Development Control and Promotion Regulations, 2034. In
particular, the Intervener has adopted the preliminary objections
raised by the said respondents, and has also drawn the attention of
this Court to the absence of any detailed empirical study, field-
specific data, or policy-oriented impact assessment in the pleadings
filed by the petitioners. It has been specifically urged that a judicial
review of a piece of delegated legislation such as the impugned
Regulation cannot be premised on vague apprehensions or
generalized assertions, particularly when such regulation forms
part of a broader legislative framework framed under statutory
mandate.
171. The Intervener submits that the present challenge to the
DCPR 2034 is not legally sustainable. The said Regulations form
part of delegated legislation made under the Maharashtra Regional
and Town Planning Act, 1966 (MRTP Act). As per well-settled
principles, a delegated legislation like the DCPR 2034 can only be
challenged on limited grounds, namely: (i) That it is ultra vires
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the parent statute, i.e., the MRTP Act; (ii) That there has been
procedural irregularity in its formulation; or (iii) That it is
arbitrary or discriminatory and hence violative of Article 14 of the
Constitution of India.
172. The Intervener submits that none of these grounds have been
made out in the present Petition.
(i) Ultra Vires the Parent Statute (MRTP Act): The Petition
does not plead any specific ground or averment that the
DCPR 2034 is beyond the scope of the MRTP Act. There is
also no case made out that the State Legislature lacked
competence to frame the Regulation. In fact, the Regulation
is made strictly under the authority and framework provided
by the MRTP Act. Therefore, the plea of ultra vires the parent
Act is not available to the Petitioners.
(ii) Procedural Ultra Vires: The process of finalizing DCPR
2034 has strictly followed the procedure laid down under the
MRTP Act, starting from Section 24 onwards. The stages
include the preparation and publication of the draft
Development Plan, calling for suggestions and objections
from the public, conducting hearings, consideration of all
suggestions, and then preparation of the final draft.
Thereafter, a comprehensive report was submitted to the
State Government, which, after due application of mind,
sanctioned the Development Plan with necessary
modifications. The final DCPR 2034 was then notified in
accordance with law. Thus, there has been full compliance
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with the statutory procedure, and the allegation of
procedural ultra vires is wholly baseless.
(iii) Allegation of Arbitrariness and Violation of Article 14:
The Intervener submits that the Petition contains only a bare
allegation that DCPR 2034 is arbitrary and violative of
Article 14 of the Constitution. However, there is no specific
pleading, reasoning, or material to support how the
Regulation offends the equality clause under Article 14. In
the absence of any factual foundation, the charge of
arbitrariness cannot be sustained. On the contrary, DCPR
2034 brings about a rational and pragmatic solution to an
issue that has remained unresolved for decades. From 1991
to 2018, hardly any progress was made in clearing open
spaces occupied by slums. The present Regulation ensures
that at least 35% of such reserved open land would now be
available and developed for its intended purpose. In this
context, the Regulation reflects a realistic approach to a
complex urban problem, balancing the need for shelter and
the requirement for open spaces. The Intervener submits
that the new mechanism introduced by DCPR 2034 provides
a genuine possibility of reclaiming some open space, which
was otherwise completely lost to encroachments. Hence, the
Petitioners’ assertion that the Regulation is regressive is
wholly unfounded.
(iv) Planning is a Technical Exercise Best Left to Experts: It
is submitted that preparation of a Development Plan is a
complex and technical exercise, generally undertaken every94
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oswp1152-2002-J-Final.doc20 years. In the present case, the new Development Plan has
been prepared after a gap of nearly 28 years. During this
long interval, Mumbai has undergone rapid urbanization,
population growth, and increased demand for housing and
civic amenities. The planning authority, being an expert body
constituted under statute, is best equipped to assess the
adequacy of reservations, feasibility of implementation, and
constraints in execution. The Court may not lightly
substitute its own opinion in such matters, as held in
multiple precedents including Union of India v. Shah
Goverdhan L. Kabra Teachers’ College (2002) 8 SCC 228 and
Small Scale Industrial Manufacturers Assn. v. Union of India
(2021) 8 SCC 511. It is further submitted that under the
earlier 1991 Regulations, land reserved for recreation
grounds (RG) and playgrounds (PG) were not developable
by the private owner or even by the Corporation, unless
acquired. However, under DCPR 2034, a progressive
provision has been introduced–wherein 70% of the land is
handed over to the planning authority, and 30% is permitted
for development, even in cases where the land is vacant.
The benefit is that the Corporation now gets possession of
land without incurring the cost of acquisition. There is no
challenge raised in the Petition to this provision.
(v) Constraints in Execution of Open Space Reservations:
In many cases, lands reserved for open spaces are fully
encroached by protected slum dwellers. In such cases, it is
impossible to clear the land unless proper rehabilitation is95
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oswp1152-2002-J-Final.docfirst provided. This reality applies even where the land is
owned by government bodies. The State is also facing an
acute shortage of Project Affected Persons (PAP) tenements,
further limiting its ability to undertake slum clearance. As for
private landowners whose lands are similarly encroached,
they too are unable to clear or utilize their land without a
mechanism that enables development. The government lacks
sufficient financial resources to acquire such lands. Even if
acquired, rehabilitation of slum dwellers will still have to be
carried out, which imposes an additional burden on the
exchequer.
173. In view of the above, the Intervener submits that DCPR 2034
presents a balanced and practical model–ensuring that reserved
open spaces are not entirely lost and that slum dwellers are not
rendered homeless, while also easing the financial and
administrative burden on the State. The Petitioners have not
shown any valid ground to interfere with the policy laid down in
DCPR 2034, which reflects considered judgment of experts in the
field of urban planning. It is therefore submitted that Petition
lacks merits and deserves to be dismissed.
F) Rejoinder on behalf of Petitioner: i) Respondents' misplaced reliance on the Afzulpurkar Committee Report:
174. The petitioner in rejoinder submits that the Respondents’
reliance on the Afzulpurkar Committee Report to justify the
impugned Regulation 17(3)(D)(2) and the broader policy of
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permitting slum rehabilitation on reserved open spaces is
misplaced and selective. While the Respondents emphasize that
the Report supports in-situ rehabilitation, they have completely
overlooked the fact that the Committee made very specific
recommendations against permitting slum rehabilitation on lands
reserved for public amenities. This omission on part of the
Respondents renders their reliance one-sided and legally
unsustainable.
175. A plain reading of the Afzulpurkar Committee Report makes
it evident that the intention of the Committee was to ensure that
civil amenities were not compromised, and that the environmental
integrity of the city was protected. The Committee acknowledged
the urgent need to strike a balance between rehabilitation and
public planning, and accordingly, it suggested clear safeguards and
limitations, many of which have not been implemented or have
been diluted by the planning authorities over time.
176. The following key recommendations of the Committee,
which are directly relevant to the present issue, have been either
ignored or departed from by the Respondents:
(a) The Report clearly recommended that slums located on
lands reserved for public amenities must be removed. These
lands were estimated to constitute approximately 20% of the
total slum area. The Report contemplated that the
reservation percentages in each planning unit should remain
intact, thereby ensuring that public purpose lands were not
reduced due to encroachment or rehabilitation activity.
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(b) A cut-off date of 1st January 1995 was fixed for
identifying eligible slum dwellers. The Committee was clear
that further encroachments were to be strictly prevented,
and that the cut-off date should not be extended under any
circumstances. This recommendation was intended to deter
fresh encroachments and prevent regularisation of illegal
occupations post the fixed date.
(c) The Report emphasized that No Development Zones
(NDZs) were to be treated as non-negotiable environmental
buffers and all slums located in NDZs were to be removed,
with no rehabilitation permitted in such areas. The sanctity
of NDZs was to be preserved in the larger ecological interest
of the city.
(d) The Committee had recommended that Floor Space
Index (FSI) be capped at 2.5, and that the excess FSI be
granted in the form of Transferable Development Rights
(TDR). The objective behind this recommendation was to
avoid excessive density at any single location, and ensure
that slum redevelopment did not lead to overburdening of
urban infrastructure. The Committee also suggested that
TDR should not be permitted in the island city or in NDZs, so
as to preserve low-density areas and safeguard heritage
precincts.
(e) Importantly, the Report called for the Development
Plan (DP) to be reviewed every 2 to 3 years, to ensure that
policy measures remained dynamic and responsive to urban
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needs. However, despite this recommendation, the DP review
process has been delayed, and significant changes have been
introduced without periodic evaluation.
177. The petitioner submits that the Respondents, while relying
on a single aspect of the Afzulpurkar Report relating to in-situ
rehabilitation, have failed to implement or even acknowledge
these critical recommendations, especially those relating to
preservation of open spaces and public amenities. In effect, the
authorities have used the Report to justify expansion of
development rights, while disregarding the very planning controls
and environmental safeguards which were central to the Report’s
framework. It is further submitted that the intent of the
Afzulpurkar Committee was never to treat open spaces and
reserved public lands as merely available for rehabilitation by
default. On the contrary, the Report placed great emphasis on
retaining reservations, preserving public land for community
benefit, and preventing the regularisation of unauthorised
encroachments. Therefore, the petitioner submits that: The
Afzulpurkar Report, when read in its entirety, does not support the
impugned regulation or policy permitting rehabilitation on
reserved open spaces; The Report actually reinforces the
petitioner’s case that open spaces must be preserved and that slum
dwellers located on such lands must be rehabilitated elsewhere;
The selective reliance on the Report by the Respondents
undermines its true intent, and does not satisfy the constitutional
or statutory standards for town planning and environmental
protection.
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178. In these circumstances, the petitioner submits that the
Afzulpurkar Committee Report cannot be relied upon as a valid
basis to justify the deletion or dilution of public open space
reservations, and that any policy or regulation framed contrary to
its core recommendations deserves to be reviewed judicially and
struck down, if necessary.
ii) Response to the Contention that There Are No Grounds in
the Petition Regarding Regulation 17(3)(D)(2):
179. The petitioner submits that the contention raised by the
Respondents–that the present petition does not contain specific or
sufficient grounds challenging Regulation 17(3)(D)(2) of DCPR
2034–is factually incorrect and legally misconceived. It is a
matter of record that the present petition has been duly amended
to incorporate a specific challenge to the impugned Regulation
17(3)(D)(2). By way of amendment, the petition now expressly
includes Grounds O-1 and O-2, which deal directly with the legal
and constitutional infirmities in the said Regulation. Additionally,
prayer clause (b)(i) has been amended and expanded to seek
reliefs specifically with reference to this Regulation. It is submitted
that the substance of the petitioner’s grievance has remained
consistent throughout the proceedings. The basis of challenge has
always been the unauthorised and unsustainable use of lands
reserved for public open spaces for the purposes of slum
rehabilitation. Although the impugned Regulation now bears the
formal title of Regulation 17(3)(D)(2) under DCPR 2034, the
underlying policy remains materially the same as the one
previously notified through the 1992 Notification read with DCR
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1991.
180. The petitioner has, therefore, clearly pleaded in the amended
petition that Regulation 17(3)(D)(2) suffers from the same legal
infirmities, constitutional violations, and planning defects as those
that afflicted the earlier regime. The petition specifically states that
all the grounds urged in support of the challenge to the 1992
Notification and the corresponding provisions of DCR 1991 also
apply mutatis mutandis to the present Regulation.
181. Moreover, the petitioner has produced and placed on record
updated facts, reports, and data which support the continued
relevance of the challenge and demonstrate the adverse
environmental and planning consequences that would result from
the implementation of the impugned Regulation. The issues raised
have been substantiated with reference to authoritative sources
such as the MMR-EIS Report, the Preparatory Studies for DCPR
2034, the Planning Committee Report, and several binding
judgments of the Supreme Court and this Court.
182. It is also important to note that the grievance of the
petitioners has remained unchanged only because the policy itself
has remained unchanged in essence. The minor modification in the
ratio of 33:67 under the 1992 Notification to 35:65 under
Regulation 17(3)(D)(2) does not reflect any substantial shift in
policy or intent, and the continued dilution of open space
reservations has worsened rather than improved the
environmental condition of the city.
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183. Therefore, the petitioner submits that the challenge to
Regulation 17(3)(D)(2) is clearly and sufficiently pleaded in the
petition as amended, and is supported by detailed grounds,
prayers, factual material, and legal submissions. The said
contention of the Respondents deserves to be rejected as contrary
to the record and not sustainable in law.
iii) On the Objection to the Locus Standi of the Petitioners:
184. The petitioner submits that the objection raised by the
Respondents regarding the locus of Petitioner No. 1–Alliance for
Governance and Renewal (NAGAR)–is not only belated but also
wholly untenable, both on facts and in law. The Respondents, for
the first time during final arguments, have questioned the standing
of NAGAR to maintain this Public Interest Litigation. However, it is
important to note that at no point prior to this stage was the locus
of NAGAR questioned. Specifically: (a) The substitution of NAGAR
in place of the original Petitioner No. 1, CitiSpace, was allowed by
this Court by its order dated 1st March 2022, which granted leave
to amend the petition. This amendment was carried out through
due process and in full view of the Respondents. (b) The
Respondents did not oppose this substitution either in their
affidavits in reply to the amendment application or during oral
arguments at the time when the application for amendment was
heard. (c) Even after the amendment, the Respondents filed replies
to the amended petition, but did not raise any objection to
NAGAR’s locus in those replies.
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185. In light of the above, the petitioner submits that it is not
open to the Respondents at this belated stage to raise objections to
the locus of NAGAR. The objection is not only an afterthought but
is also contrary to established procedural fairness. It is therefore
submitted that the objection deserves to be rejected in limine.
iv) Without Prejudice – NAGAR’s Entitlement to Maintain the
Petition:
186. Without prejudice to the above, and assuming for argument’s
sake that this Court were inclined to examine the issue of locus
standi, the petitioner submits that NAGAR satisfies all legal
requirements to maintain this public interest petition.
187. NAGAR is a registered society and a public charitable trust.
One of its core objects is the protection and conservation of public
spaces, including gardens, parks, playgrounds, and other open
spaces. Its work is focused on safeguarding the urban environment
and promoting good governance in matters of urban planning.
Historically, NAGAR operated through constituent organisations
such as CitiSpace, CLEAN-Air and CLEAN-Sweep. The activities
carried out under the name of CitiSpace were in fact administered
from NAGAR’s office, and all official communication by statutory
authorities like the Slum Rehabilitation Authority (SRA) and the
Municipal Corporation of Greater Mumbai (MCGM) was addressed
to CitiSpace at NAGAR’s registered office address. In December
2013, the Trustees of NAGAR formally decided to consolidate all
activities under the single name of NAGAR. This decision was
taken in a meeting of the Trust held on 6th December 2013, and
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all constituent members were informed accordingly. No objections
were raised by any member. Since then, CitiSpace’s activities have
been continued under the banner of NAGAR. The same has been
reflected on NAGAR’s official website, and has also been published
in the article titled “The Story of NAGAR” in the journal Mumbai
Reader 22/23 published by the Urban Design Research Institute, a
reputed urban research body. In fact, NAGAR has continued to
participate in the planning process in relation to DCPR 2034 in its
own name: On 21st June 2018, NAGAR filed formal objections to
the impugned Regulation 17(3)(D)(2). The SRA itself has
acknowledged in its records that NAGAR had submitted objections.
NAGAR appeared before the Planning Committee and put forth its
objections. The Planning Committee Report expressly records
NAGAR’s participation, indicating its recognised status in the
process.
188. NAGAR’s Track Record and Public Standing: The petitioner
further submits that NAGAR has consistently worked in the field of
urban environmental protection and has a credible and
demonstrated track record. NAGAR is the petitioner in PIL No. 79
of 2015, challenging the erection of telecommunication towers on
lands reserved for recreational and garden use. Rule has been
issued and interim relief has been granted in that matter. NAGAR
has intervened in Suo Motu Writ Petition No. 1 of 2024 pending
before this Court, concerning the audit of the implementation of
the Slum Act, 1971. NAGAR is a member of the Town Vending
Committee (Zone 1) constituted by the MCGM under the Street
Vendors Act, where it represents civil society on urban vending
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issues. The trustees of NAGAR include eminent personalities such
as Mr. D.M. Sukthankar, former Chief Secretary to the Government
of Maharashtra, Additional Municipal Commissioner, and
Chairman of the Mumbai Heritage Committee, who has an
unmatched record of public service and city administration. In
light of the above facts, it is submitted that NAGAR possesses both
the legal status and the moral authority to espouse the cause of
public open spaces and sustainable urban development. Its locus
standi in filing the present petition is well established, and its
credentials as a public-spirited body with domain expertise are
beyond doubt.
G) Analysis and Findings: i) Reasoning on preliminary objections.
189. At the threshold, Respondent No. 2 along with other
respondents has raised several preliminary objections to the
maintainability of this Public Interest Litigation (“PIL”) as
amended. These objections pertain to: (i) the alleged insufficiency
or obscurity of grounds in the amended petition; (ii) the locus
standi of the substituted Petitioner No. 1, Alliance for Governance
and Renewal (NAGAR), to continue the PIL; (iii) non-compliance
with the Bombay High Court Public Interest Litigation Rules in
prosecuting the petition; (iv) the permissibility of pursuing the
petition after substantial amendments in 2022 introducing a
challenge to Development Control & Promotion Regulation 2034;
and (v) a supposed lack of clarity in the use of the term “open
space” by the petitioner.
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190. We consider each objection in turn, in light of the
submissions of the petitioner and Respondent No. 2, relevant
constitutional provisions, and binding precedents.
191. Upon careful consideration of the rival submissions, it
becomes necessary to test the preliminary objection raised by
Respondent No. 2 on the ground that the amended petition lacks a
proper legal foundation and does not clearly spell out the grounds
of challenge to Regulation 17(3)(D)(2) of the DCPR 2034 .
Respondent No. 2 has contended that the amended petition merely
reiterates broad assertions and fails to set out any specific
constitutional or statutory infirmity in the impugned Regulation.
According to the Respondent, the Petitioners have only raised a
general opposition to the idea of in-situ rehabilitation of slum
dwellers on reserved recreational grounds, without substantiating
how such rehabilitation violates the Constitution or the parent
statute – the MRTP Act. On the other hand, the Petitioner has
drawn the attention of this Court to the fact that the present
petition was amended with the leave of this Court and now
specifically challenges Regulation 17(3)(D)(2), both in the prayer
clause and through Grounds O-1 and O-2. It has been argued that
the substance of the challenge is not new, and that the present
Regulation is only a rebranded continuation of the earlier policy
under the 1992 Notification and DCR 1991, albeit with a marginal
alteration of the ratio from 67:33 to 65:35. The learned Senior
Counsel appearing for the Petitioners has submitted that the
amendment only introduces a formal challenge to the updated
Regulation which, in essence, retains the same policy of permitting
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slum rehabilitation on open lands reserved for recreation. The
Petitioner maintains that the core grievance – namely, the
consistent erosion of reserved public spaces in the city for the
purpose of regularising encroachments – remains untouched in
spirit, and that the amended Regulation continues the same
scheme under a different title.
192. It is further submitted that the amended petition clearly
identifies the legal infirmities of the Regulation. These include the
alleged arbitrariness of permitting 65% construction on lands
reserved for open spaces; the reduction of amenities envisaged in
the Development Plan; the undermining of citizens’ right to a
healthy environment under Article 21 of the Constitution; and the
unfair advantage granted to encroachers over law-abiding citizens,
thereby offending Article 14. It is also pointed out that the
impugned Regulation permits what earlier court orders and
planning norms discouraged, and hence constitutes a regressive
policy action.
193. We find that the objection of Respondent No. 2 cannot be
sustained. A Public Interest Litigation, unlike an adversarial civil
suit, is governed by a liberal construction of pleadings. In PIL
matters the Court must focus more on the substance of the
grievance and the broader public interest rather than the form or
precision of pleadings.
194. Moreover, it is now well settled that delegated legislation,
including Development Control Regulations framed under the
MRTP Act, is subject to judicial review. Such a Regulation may be
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struck down if it is found to be: Ultra vires the parent statute, or
Violative of fundamental rights, or Arbitrary, unreasonable or
lacking in intelligible basis. (See Indian Express Newspapers v.
Union of India, (1985) 1 SCC 641; Cellular Operators Association
of India v. TRAI, (2016) 7 SCC 703.)
195. Tested on the above touchstone, the present petition, as
amended, does raise a bona fide and justiciable challenge. It
alleges that the impugned Regulation dilutes the integrity of the
Development Plan – which, under Section 22 of the MRTP Act, is
required to provide for adequate public amenities, including
gardens, parks and playgrounds. The grievance is that instead of
protecting these spaces, the Regulation permits construction over
65% of them, contrary to the scheme of the parent Act. Further,
the Regulation is alleged to transgress the right to environment – a
right which is an integral part of Article 21 as held by the Supreme
Court in Subhash Kumar v. State of Bihar, (1991) 1 SCC 598 and
Virender Gaur (Supra) . It is also alleged to violate Article 14 by
according preferential treatment to those who have encroached
upon public lands over citizens who comply with zoning laws.
Whether or not the impugned Regulation ultimately passes the test
of constitutionality is a matter for final adjudication. However, the
contention that the petition does not disclose any legal grounds is
untenable. The petition articulates a serious public grievance,
based on a discernible legal premise, that permitting construction
on reserved open spaces adversely affects environmental and civic
rights, and may amount to a misuse of planning power. It may also
be noted that a reading of the amended Grounds O-1 and O-2, in
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conjunction with the facts and legal material annexed to the
petition, shows that the Petitioners have taken due care to
establish the foundation of their challenge. The issues raised relate
to environmental justice, good governance, and the rule of law in
urban planning. They cannot be characterised as vague or abstract.
196. In conclusion, this Court is of the view that the amended
petition does not suffer from any foundational defect as alleged.
The challenge to Regulation 17(3)(D)(2) has been specifically
pleaded, supported by relevant facts, data, and judgments. The
plea that there is “no cause of action” or that the challenge is
inadequately framed is therefore rejected. The petition raises vital
questions touching upon constitutional rights and the duties of the
State under the MRTP Act, and must proceed to be considered on
its merits.
197. The next preliminary objection raised by Respondent No. 2
pertains to the standing, or locus standi, of Petitioner No. 1,
Alliance for Governance and Renewal (NAGAR), to pursue the
present public interest litigation. It is argued that NAGAR, not
being the original petitioner in the PIL filed in 2002, could not
have simply stepped into the shoes of CitiSpace (the original
petitioner), and ought to have instituted a fresh writ petition if it
wished to challenge Regulation 17(3)(D)(2) of DCPR 2034. It is
further submitted that the substitution of NAGAR amounts to an
impermissible change in the character of the petition and that the
merger of CitiSpace into NAGAR is not adequately supported by
legal documentation.
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198. We have carefully considered the aforesaid objections. In our
view, they do not merit acceptance for several reasons, both factual
and legal. Firstly, it must be noted that this Court, by its order
dated 1st March 2022, permitted the amendment of the petition
whereby NAGAR was substituted in place of CitiSpace. This
substitution was not challenged by the Respondents in the
Supreme Court. Secondly, and more importantly, it is well
established in Indian constitutional law that in public interest
litigation concerning issues of environmental protection, urban
governance, and preservation of public resources, the conventional
and technical rules of locus standi do not apply with full rigour.
The Supreme Court in S.P. Gupta v. Union of India, AIR 1982 SC
149, laid down that any person acting bona fide and having
sufficient interest may approach the court for redressal of public
injury, especially where the affected parties may not have the
means or opportunity to do so. This principle has been consistently
reiterated in several subsequent decisions, including Municipal
Council, Ratlam v. Vardhichand, (1980) 4 SCC 162; M.C. Mehta v.
Union of India, (1987) 1 SCC 395 . In each of these cases, public-
spirited individuals or groups were permitted to invoke the
jurisdiction of constitutional courts, provided they demonstrated a
genuine concern for the public good and not any oblique personal
interest.
199. In the present case, NAGAR is a registered public charitable
trust engaged in urban civic issues, including the protection and
conservation of public open spaces and there is no allegation that
this transition was improper or untrue. It is further established
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from documents placed on record that NAGAR has actively
participated in the planning process concerning DCPR 2034,
including submitting formal objections to Regulation 17(3)(D)(2),
appearing before the Planning Committee.
200. The settled law is that in PILs relating to collective
environmental and civic rights, the identity of the petitioner is less
material than the nature of the grievance and the public interest
involved. It is the bona fides of the petitioner and the seriousness
of the public injury that guide the Court’s threshold scrutiny, not
the legal formalities of succession or organizational history.
201. It bears repetition that the present litigation was never
rooted in private rights of CitiSpace, but was always a
representative petition filed to protect public open spaces from
being lost to ad hoc or policy-led slum rehabilitation schemes. This
objective has remained unchanged even after the substitution of
NAGAR. Indeed, the very order allowing NAGAR’s substitution
expressly records that “the challenge to the relevant DCR 2034
regulation would not change the nature of the original petition”.
This acknowledgment by the Court implies that the underlying
cause–preservation of reserved open spaces–is the unifying
thread of the PIL, and NAGAR’s continued prosecution of the
petition is in aid of that cause.
202. Lastly, there is nothing in the PIL Rules or in the general
principles of public law that precludes a successor organization
from pursuing a PIL that has remained pending for years. Judicial
precedents are replete with examples where public-spirited
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organisations have carried the mantle of public interest litigation
without facing objections on formalistic grounds of title or
succession. In the Bombay Dyeing mill land litigation, BEAG was
permitted to continue representing civic interests; similarly,
Bangalore Medical Trust was pursued by a local residents’ group;
and in the Delhi Ridge cases, public associations were found to
have adequate standing to raise environmental concerns. We may
also note that NAGAR’s track record is not in doubt.
203. In view of the above, the objection to the locus standi of
Petitioner No. 1, NAGAR, is found to be misconceived and without
legal merit. The substitution of NAGAR was lawfully permitted by
this Court, and the organization continues to represent a genuine
public interest, arising from a cause already entertained and
pending before this Court. We therefore reject the objection as to
maintainability on this ground.
204. Another preliminary objection raised by Respondent No. 2
pertains to alleged non-compliance with certain procedural
requirements under the Public Interest Litigation Rules framed by
this Court. It is contended, albeit without particularizing any
specific breach, that the petitioner, upon seeking amendment of
the petition and substituting the cause title, failed to comply fully
with the mandatory procedural steps required under the PIL Rules.
It is suggested that the petitioner may not have furnished detailed
affidavits, omitted to file requisite declarations, or failed to give
prior notice of the new challenge to the concerned authorities.
205. Upon careful consideration, we find this objection to be
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largely technical and devoid of substantive merit. We say so for the
following reasons:
a) First, the petitioner’s application for amendment was duly
filed, served upon all respondents, and granted by a
reasoned and speaking order dated 1st March 2022
passed by this Court. The said order permitted the
substitution of Petitioner No. 1 and also allowed the
incorporation of a specific challenge to Regulation 17(3)
(D)(2) of the Development Control and Promotion
Regulations, 2034 (DCPR 2034). At the time of allowing
the amendment, the Court was fully cognizant of the
nature and scope of the changes sought. No objection was
then raised by Respondent No. 2 regarding non-
compliance with the PIL Rules. The amendment having
been judicially approved after notice and hearing, any
technical or formal deficiencies, such as lack of
verification, absence of annexures, or failure to issue
advance notice, must be deemed either cured or waived at
that stage.
b) Third, it must be recalled that the present public interest
litigation was originally instituted in 2002 and has since
proceeded through various judicial stages–interim
orders, policy framing directions, compliance hearings,
and ultimately the present amended challenge. The
matter has been in seisin of the Court for over two
decades. The issues raised have attracted the attention of
the State and planning authorities, who have responded
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by way of affidavits, statements, and participation in
hearings. In such a backdrop, it would be both unrealistic
and contrary to the spirit of Article 226 to insist that the
petition be tested afresh for compliance with every
procedural step laid down for newly filed PILs. The test in
such cases is one of substantial and meaningful
compliance and absence of prejudice, not rigid adherence
to form at the cost of substance.
c) Finally, it is worth reiterating that the very maintainability
of a PIL, particularly in environmental or town-planning
matters, is to be assessed not merely on the basis of who
the petitioner is or how the petition is titled, but whether
the grievance raised discloses a public injury and presents
a justiciable issue of law. In the present case, the petition
squarely raises concerns regarding the use of reserved
public open spaces for in-situ slum rehabilitation, the
impact of Regulation 17(3)(D)(2) on the Development
Plan, and the broader constitutional implications of
environmental and spatial equity. These are clearly
matters within the legitimate domain of PIL adjudication.
206. In view of the foregoing, we are of the considered view that
the alleged non-compliance with the PIL Rules, assuming without
holding that there was any, has no bearing on the maintainability
of the present petition. Whatever minor deviations may have
occurred stand either cured by subsequent steps or rendered
inconsequential by the Court’s own orders allowing amendment
and continuation of the proceedings. This objection is accordingly
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overruled.
207. Yet another objection raised by Intervener (Slum Dwellers
Societies) pertains to what is described as a delay on the part of
the petitioner in challenging the validity of Regulation 17(3)(D)(2)
of the DCPR 2034. It is urged that since the said Regulation was
brought into force in the year 2018 and the amended challenge
came only after the restoration of the petition in 2021, the
petitioners have approached this Court belatedly. It is argued that
the delay is both unexplained and significant, and that the
petitioners have lost their right to assail the Regulation by their
own inaction. This argument is presented under the legal doctrine
of laches.
208. We have considered this submission carefully. In our
considered view, the objection does not merit acceptance for
multiple reasons.
a) First, the facts on record indicate that the timeline of events
offers a reasonable and satisfactory explanation for the
petitioner’s conduct. It is not disputed that in the year 2014,
this Court, by a reasoned order, had permitted the State
Government to frame a fresh policy for dealing with slum
rehabilitation on lands reserved for public open spaces. In
doing so, the Court granted liberty to the petitioners to
challenge such a policy as and when notified. What followed
was the issuance of an interim policy by the State
Government in 2014, which, as noted by both parties,
proposed that 100% of the land area of such reserved plots
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would eventually be restored for recreational use. It appears
that the petitioner was satisfied with this interim policy to
some extent, and reasonably believed that the matter had
been addressed in public interest. It was only subsequently,
upon the notification of the Development Control and
Promotion Regulations, 2034, wherein Regulation 17(3)(D)
(2) made a departure from the interim policy by allowing
65% of such lands to be used for in-situ rehabilitation, that
the petitioner’s concerns were reactivated. However, by then,
the petition had already stood dismissed for want of
prosecution in the year 2019. After the dismissal, the
petitioner moved an application for restoration, and upon
revival of the petition in 2021, the challenge to the newly
notified Regulation was promptly incorporated by way of
amendment. In such circumstances, it cannot be said that the
petitioner’s conduct was willfully negligent or lacking in
bona fides. The delay, if any, stands explained by the
intervening policy developments and the procedural status of
the pending litigation.
b) Second, and more fundamentally, it is a well-established
principle of constitutional jurisprudence in India that in
matters involving environmental protection, public
amenities, and communal natural resources, delay does not
operate as an absolute bar. This principle was affirmed by
the Supreme Court in Bombay Dyeing & Manufacturing Co.
Ltd. (Supra), wherein the Court held that issues of urban
ecology, public health, and sustainable development must be
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approached with a broad constitutional lens and not merely
through technical filters of limitation or laches.
c) Third, petitions raising issues of environmental degradation
and loss of open spaces under the public trust doctrine
cannot be dismissed solely on the ground of delay. Public
interest must not be sacrificed at the altar of procedural
rigidity, especially when the subject matter involves Article
21 of the Constitution and the right to a clean, healthy and
wholesome environment. The present petition raises core
constitutional questions, including the implementation of
Article 48A of the Constitution, which casts a duty on the
State to protect and improve the environment, and the
corresponding fundamental right of citizens under Article 21
to access public open spaces as part of the right to life and
well-being. These are not private grievances, nor are they
commercial rights that lapse with time. They are continuing
concerns of public interest that remain alive so long as the
policies in question continue to operate and impact the
urban environment and collective welfare.
d) Fourth, significantly, there is no material placed before us to
demonstrate that, during the interregnum when the petition
stood dismissed, any irreversible third-party rights have
crystallised in reliance upon the Regulation. No specific
development permission, construction activity, or project
approval has been pointed out that would render the
challenge inequitable or disruptive. In the absence of such
prejudice, the mere lapse of time between the issuance of the
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Regulation and its formal challenge cannot extinguish the
public cause being pursued.
209. Public interest litigation, by its very nature, allows for
greater flexibility in the application of procedural rules. When the
subject matter is one of such public impornstitutional relevance, as
in the present case, involving the preservation of open spaces in a
highly congested metropolitan city, the Court must adopt a
substantive and purposive approach, balancing administrative
efficiency with constitutional accountability.
210. For all these reasons, we find no substance in the plea that
the petition should be dismissed on the ground of delay or laches.
The cause of action is a continuing one; the environmental and
civic concerns raised by the petitioner remain active and
unresolved. Dismissing the petition on such a ground would cause
greater harm to public interest than any inconvenience claimed by
the respondents. The rule of law must not be sacrificed for
procedural exactitude in matters of collective concern. Accordingly,
we overrule the objection raised by Respondent No. 2 based on
laches. The amended petition, though brought after a time gap, is
maintainable, and is entitled to be heard and decided on its merits.
211. We now consider the final preliminary objection raised by
Respondent No. 2, which relates to the terminology employed by
the petitioner while framing the prayer and articulating the
grievance. It is contended that the petition suffers from an
inherent vagueness inasmuch as the expression “open space” has
been used by the petitioner without drawing any distinction
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between different categories of land, thereby creating ambiguity as
to the exact scope of the relief sought. In particular, it is argued
that the petition as originally filed included a wide array of lands
such as parks, gardens, maidans, roads, no-development zones,
and even road margins, without clarifying whether all such lands
fall within the same planning classification. It is further submitted
that the expression “open space” has a specific meaning under the
Development Control Regulations and the MRTP Act, and may
refer to various distinct concepts, such as mandatory open spaces
around buildings, amenity open spaces within layouts, and public
open spaces reserved in the Development Plan. The respondent
contends that by failing to specify which of these is being
challenged, the petition fails to raise a justiciable issue.
212. We do not find this objection to be well-founded. When the
petition is read as a whole, there is no real doubt about the nature
of the grievance or the category of lands in question. The
petitioner has consistently challenged the policy of permitting
construction and in-situ slum rehabilitation on lands that are
reserved for public open spaces in the Development Plan,
specifically playgrounds, recreation grounds, parks, and gardens.
The reference to “open space” is clearly intended to mean these
public amenity spaces reserved under the Development Plan, not
incidental open margins, setbacks around buildings, or internal
layout spaces within private properties. In fact, the impugned
Regulation 17(3)(D)(2) itself limits its scope to plots reserved as a
recreation ground or playground exceeding 500 square metres.
The very language of the Regulation makes it clear that it applies
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to lands earmarked in the statutory Development Plan for public
use, not general open-to-sky areas. The petition merely adopts the
same terminology and, for ease of reference, describes these as
“open spaces.” Therefore, when viewed in the context of the
pleadings, the prayer clause, and the statutory framework, there is
no confusion as to what the petitioner seeks to protect.
213. The MRTP Act itself recognises the expression in a similarly
inclusive sense. Section 22(c) of the Act authorises the planning
authority to reserve lands for “open spaces, playgrounds, parks,
gardens, etc.” This provision confirms that “open space” in
statutory planning discourse encompasses such public recreational
and environmental amenities. Our courts have, time and again,
treated these spaces as crucial for public health, community well-
being, and ecological balance. The Supreme Court in B.S.
Muddappa (Supra), recognised the sanctity of such reservations
and struck down a scheme that sought to convert a public park
into a private hospital. The Court held that lands reserved for
parks serve the welfare of the people and cannot be diverted for
private or alternative public use contrary to the planning object.
Similarly, in Bombay Dyeing & Mfg. Co. Ltd. (Supra) , the Court
underscored the need to balance developmental needs with
environmental protection and held that public open spaces are an
essential facet of Article 21. This Court, too, has reiterated the
special status of open spaces in urban planning. In Janhit Manch
(Supra), the Division Bench of this court warned against gradual
depletion of open space in Mumbai and stressed that such
reservations must be honoured to uphold the right to a wholesome
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environment.
214. The present petition falls squarely within this body of
jurisprudence. It seeks to preserve public lands reserved for parks,
playgrounds and recreation grounds in the Development Plan of
Mumbai from being partially built over under the guise of
rehabilitation. The right being asserted is the community’s right to
accessible green areas for recreation, health and ecological
balance, a right rooted in Article 21 and enforceable through
judicial review. Therefore, we find no vagueness in the use of the
term “open space” as employed by the petitioner. It is employed in
a legally cognizable sense, consistent with statutory and judicial
usage. The objection that the terminology is overbroad or
undefined is misplaced and does not raise any bar to the
maintainability of the petition.
215. Having addressed all the preliminary objections raised by
Respondent No. 2 in respect of the maintainability of the petition,
we are of the considered view that the amended petition is
maintainable in law.
ii) Issues for Determination:
216. The principal issue is whether Regulation 17(3)(D)(2) of
DCPR 2034 is constitutionally valid. This entails examining (i)
whether the Regulation violates Article 14 of the Constitution by
being arbitrary or discriminatory, and/or Article 21 by infringing
the right to a healthy environment and public spaces; (ii) whether
the Regulation is consistent with environmental law principles
such as the precautionary principle, sustainable development, and
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the public trust doctrine; and (iii) whether the policy rationale
underlying the Regulation, of balancing slum rehabilitation needs
with preservation of recreational open spaces, satisfies the
requirements of reasonableness and public interest under our
constitutional and statutory framework. We will also assess the
legal competence of the delegated legislation and consider relevant
precedents, before arriving at a conclusion and operative
directions.
We have carefully considered the detailed arguments made
by both sides. The issue before us lies at the juncture of two
important public concerns, on one hand, the need to protect
the environment by preserving public open spaces like parks
and gardens, and on the other hand, the need to ensure
justice and dignity for slum dwellers by providing them
proper housing. Both these concerns are supported by
fundamental rights under our Constitution. The protection of
open green spaces is connected to the right to life under
Article 21 for all citizens, and the right of slum residents to
proper shelter and dignified living also flows from Article 21,
along with the right to equality under Article 14, which
requires the State to treat the poor with fairness and care.
The real question before us is whether Regulation 17(3)(D)
(2) creates a fair and constitutionally valid balance between
these two interests, or whether it crosses the limits set by the
Constitution or the law.
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iii) Planning History and Rationale (1991-2034):
217. To properly examine the impugned regulation, it is necessary
to first understand how the city’s approach towards planning has
evolved, from the Development Plan of 1991 (sanctioned in 1993)
to the present Development Plan 2034. The material placed on
record, including portions of the Planning Committee Report,
along with affidavits filed by planning officials, show that there
has been a major shift in how slum settlements situated on
reserved lands are being dealt with.
218. In the earlier planning regime, when the Development Plan
was being prepared, the presence of slums on reserved lands was,
for the most part, overlooked. The plan would merely label a
particular land as reserved for a public purpose (such as a garden
or playground), without articulating that a slum already existed on
that site. It appeared to have been assumed that, at some stage in
future, those slums would be removed and the reservation would
be implemented. During the 1990s and 2000s, slum
redevelopment was mainly carried out under Development Control
Regulation 33(10), which allowed free housing for slum dwellers
with additional construction benefits (incentive FSI) to private
developers. But importantly, this mechanism could not be used on
lands that were reserved for non-residential purposes like parks,
unless such reservations were first changed through formal
procedures under the MRTP Act.
219. Although the Municipal Corporation had a dedicated
department for encroachment removal and certain policies to deal
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with unauthorised slums, in actual practice, due to political, social
and humanitarian considerations, many such slums were allowed
to continue. The Corporation also had the power to acquire such
lands under the MRTP Act and then use them for the intended
reservation, but this required financial resources and also
relocation of existing slum dwellers. The record shows that very
few such reserved plots, particularly those affected by slums, were
ever acquired or developed for the reserved purpose. By the time
the 2034 Plan was under preparation, a large number of reserved
lands were still occupied by slum colonies, with no definite
timeline for developing them as parks or open spaces.
220. Faced with this long-standing problem, the planners of DP
2034 appear to have taken a different and practical approach.
They acknowledged that removing all the slums in one go would
mean evicting thousands of families, many of whom had lived
there for decades. This would not only be logistically difficult but
would also lead to social and humanitarian complications.
Therefore, a new strategy was proposed, one that would use slum
redevelopment itself as a tool to implement the reservation. The
result was Regulation 17(3)(D), which now forms the subject of
challenge.
221. The Planning Committee Report, as highlighted in the
affidavit, appear to justify the 35% figure fixed for retaining open
space. The record shows that planners considered actual site-level
examples, such as a 10,000 square metre plot fully occupied by
slums, which previously gave the public no access at all. Under the
new policy, at least 3,500 square metres would be carved out and
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developed as a formal garden, while the remaining 6,500 square
metres would be used to construct high-rise buildings for slum
dwellers. In this manner, both the objectives, rehabilitating slum
dwellers and creating a usable open space, could be partly
achieved. The Planning Committee, it appears, considered this
approach to be better than continuing with a policy that, although
ideal in theory, had failed in practice.
222. It must also be noted that the Development Plan 2034
includes other provisions aimed at increasing the city’s green cover,
such as using salt pan lands and other sites for creating new open
spaces. Hence, the trade-off on encroached lands was part of a
broader and balanced strategy.
223. At the same time, the Petitioner has rightly pointed out that
past failures by the State to clear slums cannot be used as a
permanent justification to abandon the reservations. Merely
because the authorities did not succeed in removing such
encroachments earlier cannot mean that the reserved use must
now be diluted permanently. However, the response from the State
and planning authorities is that previous failures will not be
resolved by simply sticking to old rules and ignoring ground
realities. Doing nothing would continue to serve neither purpose,
neither redevelopment nor open space creation.
224. Therefore, the planning history is not to be seen as an
excuse, but as a context in which the policy was evolved. The
record does not show that the State chose to “give away” public
open spaces casually or arbitrarily. On the contrary, the revised
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approach came after multiple prior efforts had stalled and after
genuine consultations were held.
225. From this historical and factual background, the Court draws
certain useful lessons that help in testing the necessity and fairness
of the impugned policy:
(i) The shift in DP 2034 from an “all-or-nothing” model, of
either enforcing the entire land as open space or foregoing
the encroached land as slum, to a “mixed” model allowing
partial development was a conscious policy decision. It
aimed to break the impasse and reflects the State’s attempt
to respond to practical challenges on the ground. This cannot
be faulted in principle, though it involves difficult trade-offs.
(ii) The 35% figure for retaining public open space may
not be based on any precise scientific calculation, but it
clearly represents a genuine effort to preserve a significant
portion of the land for the original public purpose. In many
existing slum rehabilitation layouts, providing even 15% to
20% of the area as recreational space is considered difficult.
Therefore, 35% is, comparatively, a higher requirement. This
indicates that the State did not intend to wholly abandon the
reservation; rather, it tried to salvage the space to an extent
considered practical.
(iii) The planning record suggests that authorities have,
wherever possible, aimed to retain even more than 35%
open space, especially in areas where the need for public
amenities is greater or where the slum footprint is less dense.
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While we have not been shown any particular empirical
evidence of this, we are prepared to trust that in
implementing the policy, the authorities will exercise such
discretion responsibly. For instance, if a reserved garden is in
a locality where there is no other open space nearby, and if a
part of the slum can be shifted, the Corporation may well
retain more than 35%. There is nothing in the regulation
that prevents this. The 35% is the minimum threshold, not
the ceiling.
(iv) Experience over the years from 1991 to 2018 shows
that a rigid insistence on 100% reservation has mostly led to
“paper parks”, that is, areas shown as gardens or
playgrounds on paper, in the Development Plan but never
developed on the ground. The policy in DP 2034, by
contrast, at least ensures that some actual open space is
created. In this way, it promotes the real enjoyment of
constitutional values. A plan which only exists on paper and
is never implemented cannot fulfil the right to a clean and
healthy environment under Article 21. On the other hand,
even a smaller park that is actually built and accessible to the
public is a real gain.
(v) Therefore, the policy under Regulation 17(3)(D)(2),
while not perfect, is a practical compromise. It seeks to give
slum dwellers proper housing and at the same time, create
open spaces that were previously inaccessible. It may not
satisfy the original objective of the reservation entirely, but it
ensures that at least part of the benefit reaches the public,
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instead of waiting endlessly for an ideal solution.
226. In light of the above, this Court is of the view that it should
not act as an idealistic body that overlooks practical
considerations. Our constitutional duty is to ensure that law is
followed, and that people’s rights are protected to the fullest
extent possible within the boundaries of reality, also adjusting for
competing entitlements to constitutional rights. The planning
approach adopted in DP 2034 appears to be guided by a sincere
desire to improve the existing situation, and not by any mala fide
or arbitrary intent.
227. The Petitioner is right in saying that the policy does dilute
the full purpose of reservation. But we must also recognise that the
reserved purpose had already become difficult to realise due to
long-standing encroachments. In that context, the new approach
attempts to recover part of what was lost. That cannot be termed
manifestly arbitrary, illegal or irrational, warranting interference in
the writ jurisdiction.
iv) Validity of Regulation 17(3)(D)(2) of DCPR 2034:
228. At the outset, it is important to understand the legal nature
and authority of the Regulation that is challenged in this petition.
Regulation 17(3)(D)(2) is a part of the DCPR 2034, which have
been made under the MRTP Act. In law, it is well settled that when
a delegated or subordinate legislation like this Regulation is made
properly under a law passed by the legislature, and the correct
procedure is followed, it has the same legal force as any other law.
Therefore, such a Regulation cannot be set aside lightly by a High
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Court under its writ powers under Article 226 of the Constitution.
The law allows courts to interfere only in certain specific
situations.
229. It is now well established that delegated legislation can be
challenged on the following grounds: (i) lack of legislative
competence to make delegated legislation; (ii) violation of
fundamental rights guaranteed under the Constitution; ( iii)
violation of any provision of the Constitution; (iv) failure to
conform to the statute under which it is made or exceeding the
limits of authority conferred by the enabling Act; ( v) repugnance
to any other enactment; and ( vi) manifest arbitrariness. Unless at
least one of these grounds is clearly made out, courts must act
with caution and respect the wisdom of the executive and
legislature, especially in matters involving town planning or civic
policy. [See: Indian Express Newspapers (Bombay) (P) Ltd. v.
Union of India, (1985) 1 SCC 641; State of T.N. v. P.
Krishnamurthy, (2006) 4 SCC 517].
v) Ultra Vires (Substantive or Procedural):
230. Upon considering the submissions of the petitioner, it is seen
that the petitioner has not pointed out any specific provision of the
MRTP Act that has been directly violated by the impugned
Regulation. No clause or sub-section of the Act has been
demonstrated to have been breached by the Planning Authority
while framing the said Regulation. On the contrary, when one
reads Section 22 of the MRTP Act, it becomes clear that the
Planning Authority has been entrusted with wide-ranging powers
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for preparing a Development Plan for the area under its
jurisdiction. This Section expressly allows the Authority to make
proposals not only for reservation of lands for public amenities like
parks, playgrounds, and open spaces, but also for slum
improvement, redevelopment schemes, and provision of housing.
231. In fact, Clause (g) of Section 22 specifically authorises the
Planning Authority to include proposals for the improvement and
clearance of slum areas. Similarly, Clause (m) permits the framing
of Development Control Regulations as a part of the Development
Plan. Thus, when a Regulation is made with the objective of
rehabilitating slum dwellers, especially those who are residing on
lands which may have been earlier reserved for recreation or other
public purposes, it cannot be said that the Regulation is beyond the
powers given under the MRTP Act. The language of Section 22 is
broad and inclusive. It supports the view that slum rehabilitation
and public interest planning can co-exist, so long as the
Development Plan continues to reflect a balance between various
civic and environmental needs.
232. Urban planning, as envisaged under the MRTP Act, is not
rigid or uni-dimensional. It is a dynamic process which aims to
address ground realities of population growth, housing shortages,
and urban inequality. Therefore, a Regulation which enables the
regularisation or rehabilitation of existing informal settlements on
reserved lands, while still retaining a portion of such land for
public use, can be seen as a lawful exercise of planning powers
under the Act. In this light, we are unable to accept the argument
that the Regulation falls outside the legal authority granted under
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the MRTP Act. Rather, it appears to be a step taken within the
framework of the law, keeping in mind both the constitutional
objective of providing housing to the poor and the statutory
mandate of planned development.
233. We also find that the procedure for framing DCPR 2034 was
indeed properly followed. As required under the MRTP Act, the
authorities issued a public notice under Section 26, considered
objections and suggestions under Section 28, finalised the
Development Plan, and the same was sanctioned by the State
Government under Section 31. No specific fault has been shown to
us in this process. From the record, it appears that the Regulation
was framed after proper consultation, discussions, and application
of mind. Therefore, we do not find any substance in the argument
that the Regulation suffers from any procedural illegality.
234. From the pleadings and submissions before us, it is clear that
the petitioner’s real grievance is not about how the Regulation was
made, but about what it allows. The substantive grievance of the
petitioners appears to be with the wisdom or the alleged lack of it,
in the Regulation. In other words, the complaint is not about
irregularities in the procedure, but about whether the policy
reflected in the Regulation is fair and constitutional. The real
question is whether the Regulation is so arbitrary or unreasonable
that it violates the fundamental rights guaranteed under Part III of
the Constitution.
235. This brings the case within the scope of what is called
“substantive judicial review.” In such matters, the Court must strike
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a careful balance between ensuring that policies respect
constitutional rights and not interfering with decisions that lie in
the realm of government policy. The Court is not here to say
whether a wiser or more ideal policy could have been made. Its
role is limited to checking whether the existing policy, as stated in
the Regulation, goes against the letter or spirit of the Constitution.
236. As held by the Supreme Court in Indian Express Newspapers
(Supra), and in many decisions thereafter, the Courts do not act as
appellate bodies over policy matters. Courts will step in only if the
policy is clearly arbitrary, discriminatory, or violates some legal or
constitutional standard.
237. We shall therefore now examine the content of Regulation
17(3)(D)(2) from this perspective. The burden is on the petitioner
to show that the Regulation is not just a matter of disagreement or
preference, but that it is unconstitutional at its core. Under law,
any legislation, whether primary or delegated, is presumed to be
constitutional. That presumption can only be displaced by clear,
convincing arguments that are backed by the Constitution, legal
principles, and judicial precedents.
vi) Constitutional Grounds – Article 14 (Arbitrariness):
238. We now turn to the petitioner’s argument based on Article 14
of the Constitution, which guarantees equality before the law and
equal protection of the laws. The main point made by the
petitioner is that Regulation 17(3)(D)(2) unfairly benefits persons
who have encroached upon public lands reserved for recreation, by
allowing them to be rehabilitated on the same land, while giving
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no similar benefit to law-abiding citizens who have followed the
rules. According to the petitioner, this sends a wrong message,
encourages illegal occupation, and undermines civic responsibility.
239. At the very outset, we must observe that the equality clause
under Article 14 is not offended by every unequal outcome. The
jurisprudence that has evolved under Article 14, ever since the
decision in State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC
75, through E.P. Royappa v. State of Tamil Nadu , (1974) 4 SCC 3,
and culminating in Shayara Bano v. Union of India , (2017) 9 SCC
1, has emphasized that the true test under Article 14 is not mere
inequality in treatment, but whether the classification created by
law is arbitrary, unreasonable, or not founded on an intelligible
differentia having a rational nexus to the object sought to be
achieved.
240. In the present case, the impugned Regulation makes a
distinction between two classes of open spaces: (i) lands reserved
for recreational use under the Development Plan which are
presently encroached by slum settlements, and (ii) lands reserved
for similar purposes which remain un-encroached. The question is
whether this classification is irrational or perverse, and whether it
offends the equality clause of the Constitution.
241. We are of the considered view that the distinction drawn is
not only intelligible, but also necessary for the practical
implementation of any urban renewal policy in a metropolitan city
like Mumbai. It cannot be gainsaid that a public park or
recreational ground which is significantly encumbered by long-
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standing slum dwellings ceases, in effect, to serve the purpose for
which it was reserved. The designation, though present on the
Development Plan map, becomes a notional reservation solely on
paper, incapable of being utilized as a public space in its current
state. On the contrary, an open space which is free from
encroachment is capable of being enjoyed by the public and retains
its intended utility.
242. The Legislature and the executive are entitled to recognize
this real-world difference and frame policies that cater to the
ground realities. It would be unrealistic and administratively
unworkable to treat both classes of land identically. The
classification is therefore not only intelligible, but also founded on
a rational nexus to the object sought to be achieved, namely, the
twin goals of (i) rehabilitating slum dwellers humanely without
rendering them shelterless, and (ii) recovering a portion of the
public land for its original purpose by ensuring that a part thereof
is retained as open space under mandatory prescription.
243. The petitioner has based his argument mainly on ethical
grounds, urging that persons who obey the law and follow civic
responsibilities should be treated favourably. While this Court fully
acknowledges the importance of such lawful conduct, it must be
noted that in constitutional matters, decisions have to be taken
based on legal principles and objective reasoning. Merely because
a particular policy appears to give some benefit to persons who
have encroached upon land, it does not automatically mean that
the policy is arbitrary. What is important is whether the
classification made by the policy is reasonable and whether it
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serves a legitimate public purpose. Especially in matters where
constitutional rights like the right to shelter and the right to a
clean environment are both involved, a balance must be
maintained.
244. Further, the Regulation which is under challenge does not
grant benefits without any restrictions or guidelines. It applies only
when certain conditions are fulfilled, such as, the reserved land in
question must be more than 1000 square metres in size, and out of
this, not more than 65% can be used for slum rehabilitation, while
at least 35% must be mandatorily kept for public recreational use.
These conditions are part of policy decisions made by planning
authorities, taking into account administrative needs. It is a well-
settled principle of law that such classifications or threshold
criteria, like area of land or number of people, can be fixed by the
authorities, as long as they are not absurd, unreasonable, or
discriminatory.
245. In our constitutional system, arbitrariness goes against the
basic principle of the rule of law. However, it cannot be assumed
that a policy is arbitrary simply because it involves making a choice
or balancing conflicting interests. As long as the policy is made
after considering relevant facts, is in line with the object of the law,
and is applied equally to all eligible cases, it cannot be struck
down under Article 14. In the present case, the petitioner has not
shown how the 1000 square metre condition or the 35% retention
clause are illogical or unrelated to the objectives of the Regulation.
On the contrary, the overall scheme of the policy appears to
maintain a thoughtful balance between the need to preserve open
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spaces and the pressing requirement of housing for the urban poor.
246. Therefore, the challenge on the ground of arbitrariness
cannot be accepted. The Regulation clearly discloses a guiding
principle, is applied equally in all cases, and there is nothing to
show that it is motivated by bad faith or any form of unfair
discrimination. The law does not insist that every policy must be
perfect, but it does require that the policy must be reasonable,
proportionate, and serve a lawful purpose. Regulation 17(3)(D)(2)
satisfies all these requirements.
247. The petitioner has argued that persons who have encroached
upon public open spaces are being “rewarded” under the
impugned Regulation, whereas those citizens who have followed
planning laws are left with reduced access to recreational areas.
With respect, this argument is based more on a sense of morality
than on a proper constitutional foundation. Undoubtedly, it is a
matter of public concern that law-abiding citizens should not feel
that their compliance with planning norms is meaningless,
especially when unlawful conduct appears to be regularised.
However, constitutional courts cannot enforce abstract ideas of
fairness or moral outrage unless there is a clear violation of
constitutional principles or evident arbitrariness.
248. Under Article 14 of the Constitution, the test is not whether
benefits are distributed equally, but whether the classification or
benefit is based on irrational or unreasonable grounds. The law
declared by the Supreme Court in E.P. Royappa (Supra) and
further clarified in Maneka Gandhi v. Union of India, (1978) 1 SCC
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248, has established that even if a government policy looks fair on
the surface, it must still be free from arbitrariness or irrelevant
considerations. The doctrine of arbitrariness is a powerful
safeguard, but it cannot be applied to challenge policies just
because they may appear lenient or debatable. What must be
shown is that the policy has no clear basis, is unreasonable, or has
no connection to its intended purpose.
249. In the present matter, the Regulation in question deals with a
complex problem in urban governance, namely, slums constructed
on lands that were reserved for public use. This situation presents
a conflict between two important public interests: on one side is
the public’s right to enjoy open spaces, and on the other is the
right of slum dwellers to housing and shelter. The Regulation seeks
to resolve this issue by allowing part of the land to be used for in-
situ rehabilitation of the slum dwellers, while mandating that at
least 35% of the land must be kept for its original public purpose.
This is a policy compromise that can be made within the domain of
the subordinate legislation, not one that accepts illegality, but one
that attempts to balance rights and ground realities.
250. The reasoning behind the Regulation is neither unclear nor
unjustified. It reflects a broader urban development policy that
understands that slum removal cannot happen only through
eviction. There must be practical and humane alternatives. By
allowing rehabilitation on a portion of the land, the Regulation
achieves two things: (i) it gives permanent homes to those living in
poor conditions without any legal status, and (ii) it restores part of
the encroached land back to the public for recreational use, which
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was otherwise completely blocked.
251. It would be wrong to label this approach as a “reward for
encroachment.” Rather, it is a controlled policy of regularisation,
framed with public interest safeguards, designed to prevent the
total loss of public land. The idea of “manifest arbitrariness,” as
explained by Courts, does not prevent such policies balancing
competing realities. Instead, the law expects that such measures
must follow clear reasoning, aim at lawful purposes, and apply
equally to all similar cases. In this context, the goal of removing
slums and ensuring decent housing is not only constitutionally
valid but also recognised under international human rights
commitments. The method adopted, rehabilitation on-site with a
compulsory condition to retain open space, clearly relates to that
goal.
252. The petitioner’s concern, in truth, is not that the policy is
unstructured or illogical, but that it is too lenient towards a
particular section of society. However, the role of Courts is not to
examine whether a policy is strict enough or generous. Courts are
not meant to interfere unless a policy clearly violates constitutional
rights or principles. The wisdom and soundness of policy is not for
courts to adjudge. Judicial review must not cross into the territory
of policy-making.
253. Accordingly, we do not find merit in the argument that the
impugned Regulation is arbitrary in the constitutional sense. The
Regulation does involve a compromise–but it is a thoughtful,
structured, and purpose-driven compromise. It reflects an attempt
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to balance environmental, social, and planning considerations, and
cannot be declared invalid merely because a stricter or more
idealistic approach could have been imagined.
254. We are also not convinced by the petitioner’s argument that
the impugned Regulation causes unfair discrimination which
violates Article 14 of the Constitution. Article 14 does not prohibit
every kind of distinction or classification. It only forbids those
classifications which are arbitrary, unreasonable, or not connected
to a valid objective. As held in Budhan Choudhry v. State of Bihar
(AIR 1955 SC 191), and followed in later decisions such as E.P.
Royappa, and Maneka Gandhi, a valid classification must meet two
tests: first, there must be an intelligible differentia which
distinguishes persons or things that are grouped together from
those that are left out of the group; second, that differentia must
have a rational relation to the object sought to be achieved by the
statute or policy.
255. Applying this test to the present Regulation, we find no
violation of the equality clause. The Regulation treats all slum
dwellers on reserved lands equally, provided certain conditions like
minimum plot size and retention of 35% land as open space are
met. There is nothing on record to show that this policy is applied
unfairly or that some similarly placed encroachers are being
treated differently. On the contrary, the policy appears to be
applied uniformly on the basis of fixed and objective standards.
256. The petitioner tries to compare slum dwellers who are given
the benefit of in-situ rehabilitation with law-abiding citizens who
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have not encroached upon public land but are now unable to
access parks. This comparison is not valid for the purposes of
Article 14. Equality under Article 14 means similar treatment of
persons who are similarly situated. The two categories being
compared must be legally and factually equal. But here, they are
not.
257. Both slum dwellers and law-abiding citizens are part of the
urban population. However, they stand on different legal and
constitutional footing. Slum dwellers are economically weaker and
are recognised by the Constitution, especially under Article 39, as
a group that the State must protect through affirmative action.
Various welfare laws like the Slum Act also reflect this
responsibility. Providing housing to slum dwellers is not an act of
generosity by the State, it is a part of its duty to ensure social and
economic justice. On the other hand, law-abiding citizens benefit
from civic amenities under the general responsibility of the State.
The difference lies in the nature of the obligation: in one case, it is
redistributive and corrective; in the other, it is routine and general.
258. We do understand that loss of access to parks or open areas
can lead to dissatisfaction among residents. But it must be
remembered that the Regulation only applies to lands which were
already encroached and not being used by the public in any
practical sense. The Regulation in fact tries to recover some
portion–35%–of that land for public use while also ensuring
housing for the slum dwellers. So, the public is not losing a facility
that was in active use, but rather, getting back part of a space that
was already fully encroached. The grievance, therefore, is based on
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an expectation of use, not on actual withdrawal of an existing
amenity. While such disappointment is understandable, it does not
amount to a legal wrong under Article 14 unless the State’s action
is shown to be arbitrary or discriminatory.
259. It is well-settled that Article 14 does not mean equal
treatment in all situations. Different situations can be treated
differently if the differentiation in the classification is based on
valid reasons. The concept of equality is broad and evolving, it
cannot be restricted to narrow and rigid definitions. When the
State frames welfare policies, it is allowed to make distinctions
based on levels of need and vulnerability. Denying housing to slum
dwellers just to stick to a land reservation that has not been
practically available for years would go against the spirit of social
justice.
260. We must also consider the wider impact of the Regulation on
urban fairness. In a city where inequality is visible in how space
and services are distributed, providing formal housing to slum
dwellers–within the city and not on its outskirts–is a step
towards real equality. It ensures that rights and services are not
limited to the privileged, but also reach those living on the
margins. This Regulation aims to reduce the gap between the
formally housed and the informally settled population, and
therefore promotes inclusive planning. Rather than violating
equality, it supports it by correcting urban imbalances.
261. In conclusion, we are of the considered view that the
impugned Regulation does not create an unjust or unconstitutional
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distinction. It does not result in hostile discrimination between
similarly situated persons, nor does it confer benefits in a manner
that is arbitrary or selective. It adheres to the permissible limits of
reasonable classification under Article 14 and is consistent with the
constitutional vision of a just and inclusive society.
vii) Article 21 (Environment vs Shelter):
262. We now consider the arguments raised by the petitioner
under Article 21 of the Constitution, which guarantees every
citizen the fundamental right to life and personal liberty. It is now
a well-settled position in law, as repeatedly declared by the
Supreme Court, that the word “life” in Article 21 does not mean
mere physical survival or animal existence. It includes within it the
right to live with dignity, in an environment that supports both
physical health and mental well-being. A polluted environment,
loss of greenery, and vanishing public spaces affect not just
ecological balance, but the very conditions needed for dignified
and civilised living.
263. Basic elements such as clean air, safe water, and accessible
green open areas like parks, maidans, and recreational grounds,
can no longer be viewed as mere conveniences. They are essential
parts of urban life. The Supreme Court in Subhash Kumar (Supra)
, M.C. Mehta (Supra) , and Virender Gaur (Supra) , has made it
clear that the right to a clean and healthy environment is a part of
the right to life under Article 21. Therefore, this Court has a
constitutional duty to ensure that such public spaces, often the
only open and free spaces available to ordinary citizens in crowded
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urban areas, are not lost due to neglect, mismanagement, or
unnecessary diversion.
264. We are deeply aware of the serious shortage of open spaces
in the city of Mumbai. The data presented sourced from official
surveys and civic reports clearly shows this. The per capita open
space available in Mumbai is much lower than international and
even national planning standards. This shortage is made worse by
increasing population, unplanned urban growth, and competing
demands for land. In several city wards, the open space available
per person is so low that it is measured in square feet, not square
metres. The effects of this shortage are not just theoretical–they
are visible in daily life through rising stress levels, poor air quality,
lack of play areas for children and recreational space for the
elderly, and a general decline in the overall quality of life.
265. In such a situation, any action by the government or
legislature that leads to further reduction of existing open space
must be carefully scrutinised. While the State has the power to
make planning and land use policies, such policies cannot override
constitutional protections under Article 21. The role of the Court is
not to interfere in planning or governance, but to ensure that the
minimum standard of environmental dignity, as guaranteed by the
Constitution, is not violated.
266. We must also remember that environmental rights belong
not only to the present generation but also to future generations.
The principle of inter-generational equity, which is firmly part of
Indian environmental law, reminds us that we are mere caretakers
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of natural and public resources, not their absolute owners. This
principle puts a limit on decisions taken only for short-term
benefits or popular appeal, especially when such decisions may
harm long-term ecological balance. In T.N. Godavarman
Thirumulpad v. Union of India (2002) 10 SCC 606 and Lafarge
Umiam Mining v. Union of India (2011) 7 SCC 338, the Supreme
Court has stated that sustainable development is not just a good
idea, it is a constitutional obligation.
267. Therefore, any urban development policy or regulation that
allows conversion of reserved open spaces into built-up areas must
be tested carefully. It must not only be checked against the text of
the law, but also its impact on the environment and public health
of the city. Regulation 17(3)(D)(2) must be examined with this
approach in mind.
268. At the same time, we must also recognise that the
Constitution does not require environmental protection in an
absolute or one-sided manner. It expects a balance or what may be
called a constitutional equilibrium between the duty to protect the
environment and the duty to provide housing and livelihood to
weaker sections of society. Article 21 also includes within it the
right to shelter, which is part of the right to live with dignity. The
rights of slum dwellers to get proper housing cannot be ignored in
the name of environmental protection, especially when the
environmental impact is not total, and the Regulation ensures that
a fixed portion of land (35%) remains reserved for public use.
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269. Thus, the main issue is not whether urban open spaces must
be preserved, they certainly must. The real question is whether this
Regulation, which reduces the open space on some already
encroached lands to 35%, while at the same time ensuring
rehabilitation for slum dwellers and returning part of the land for
public access, meets the constitutional test of reasonableness,
proportionality, and environmental sustainability.
270. We shall now examine this issue in detail, based on the
material on record, the principles of environmental law, and the
constitutional standards that apply under Article 21.
271. In this background, it becomes important to examine
carefully and with constitutional awareness what exactly the
impugned Regulation is trying to achieve when we look at the
ground reality. Law must always be understood in the context of
real facts; it does not function in isolation. It is the duty of the
Court to assess a policy not just in theory or abstract terms, but by
examining its actual effect, its real-world implementation, and the
impact it creates. The Constitution may uphold ideals, but it must
also respond to practical situations.
272. The Regulation that has been challenged does not apply to
all public open spaces blindly. It does not allow construction on
parks that are free from encroachment. Nor does it dilute the
general objective of preserving green zones. This Regulation is
specifically meant for a narrow category of land that is, those open
spaces which, in fact and due to long-standing circumstances, are
already occupied by informal slum settlements. These are not
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open, unused, or untouched plots waiting for development.
Instead, they are places where slum dwellers have been staying for
many years, sometimes decades, often due to administrative
inaction and socio-economic needs. Legally, the land may still be
marked as “reserved for recreation,” but the physical condition
tells a different story.
273. On the ground, such lands are no longer available to the
public for any recreational use. The local people have already lost
access to these spaces. The area is densely built up with kutcha or
semi-pucca houses and lacks even basic civic services like drainage,
sanitation, and proper ventilation. So, although the land is shown
as a reserved open space on the development plan, that status is
only on paper, it does not reflect the actual situation.
274. It is in this context that the Regulation steps in with a lawful,
structured, and regulated plan. The aim is not to convert a
functioning park into a residential colony, but to deal with a
situation where the land is already encroached and unusable. The
Regulation seeks to partly reclaim the land for public use and
partly regularise the settlement to protect the rights of existing
slum dwellers. According to the Regulation, 65% of the land can
be used for slum rehabilitation, while the remaining 35% must be
reserved and developed as public open space, with proper
landscaping and guaranteed public access. This arrangement if
described as a trade-off is one that is practical and proportionate.
Earlier, the entire land was lost to encroachment. Now, under this
Regulation, a significant portion is being recovered and brought
under formal civic control and public use. The final result is that
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open space, which was earlier completely unavailable, now
becomes available to the extent of 35%, and that too, in a planned,
legally protected and accessible manner.
275. Any criticism of this Regulation must therefore be seen in the
correct light. It is not a case where a fully functioning park is being
taken away. Rather, the potential to create a functional park as
reserved in the plan, had already ceased to exist in reality. The
Regulation is an attempt to recover a part of what was lost through
lawful planning and fair rehabilitation. To call this environmental
harm would be to ignore the existing condition and the limited
options available to the authorities.
276. When seen in this light, the Regulation does not add to the
environmental loss; rather, it reduces the damage that has already
occurred. It tries to recover and protect a portion of the urban
commons, to the extent possible. Where restoring 100% of the
land is not practical, and continuing with the existing loss of 100%
is not acceptable, this Regulation offers a middle path–recovering
what is still possible, and doing so in a way that does not cause
hardship to the people already residing there.
277. The law especially constitutional law must sometimes accept
what is feasible and practical. While perfection is always desirable
in policy, what the Constitution demands is reasonableness. If the
Regulation had permitted construction on unoccupied public
parks, or had allowed major land use changes without any
safeguards, this Court’s approach would have been entirely
different. But here, the policy tries to strike a balance between
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environmental recovery and rehabilitation of slum dwellers. In
such a situation, the Court must decide the matter not on emotion,
but on constitutional principles and practical reasoning.
278. Both environmental protection and social justice are duties
under the Constitution. The Regulation in question does not ignore
one for the other. It tries to bring them together through
thoughtful implementation. In our considered view, this Regulation
is not a backward step but a constructive solution. It does not
promote encroachment; instead, it tries to recover public land with
fairness, dignity, and order.
279. The main argument made by the petitioner is that the only
constitutionally valid option available to the State was to remove
all encroachments from public open spaces completely, and to
restore the land fully for recreational use. There is, we must admit,
a certain idealistic strength in this view, it reflects a strict
interpretation of environmental law, where reservations marked on
a development plan are treated as sacred, and any occupation by
slum dwellers is seen as a violation of the public trust doctrine.
Surely, in a perfect world, free from population pressure, economic
inequality, and urban poverty, this approach may well have strong
constitutional support.
280. But this Court cannot ignore the realities of urban life in
Mumbai. The Constitution is not just a theoretical document; it is a
living framework, and the rights it guarantees, especially under
Article 21, must be understood in light of real, everyday
circumstances. It is true that the right to a clean environment is
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part of the right to life. But it is also equally true, and clearly laid
down by the Supreme Court that the right to shelter and adequate
housing is also a part of human dignity and personal security,
protected under Article 21.
281. In Chameli Singh v. State of U.P. (1996) 2 SCC 549, the
Supreme Court has clearly stated:
“The right to shelter is a fundamental right that comes from
the right to residence under Article 19(1)(e) and the right to
life under Article 21. The right to shelter includes proper
living space, safe and decent housing, clean surroundings,
fresh air and water, electricity, sanitation, and other basic
civil facilities.”
282. People who live in slums or informal settlements are not
outside the protection of the Constitution. They may not have legal
ownership of land, but they have an equal right to live with
dignity, safety, and basic standards of living. When they occupy
land not out of choice, but due to urgent need and helplessness,
their act, though not lawful, is not to be condemned but must be
seen with compassion. The Constitution, through its Fundamental
Rights and Directive Principles, recognises that poverty and
inequality are structural problems, and asks the State to take
positive steps to reduce them.
283. To treat environmental rights and housing rights as opposing
each other would be a mistake. Both are part of Article 21, and
both protect the right to live a life of dignity. Just as polluted air
and water harm human health, so too do unsafe, overcrowded,
and unhygienic living conditions. It would be wrong in law and
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unfair in principle to protect green spaces in such a way that
thousands of families are made homeless, without proper legal
process or alternatives. Such an action, rather than protecting
Article 21, may violate it.
284. The current condition of slums cannot be justified as
acceptable. Most such settlements are marked by poor sanitation,
no ventilation, lack of clean water, and absence of healthcare or
solid infrastructure. They are prone to dangers such as fires,
floods, disease, and pose risks not just to residents but also to
neighbouring communities. Leaving them as they are is not
environmental conservation. But evicting them without offering
any other option is also not social justice. The real environmental
issue is not the existence of slums, but that they are unregulated
and unplanned. The answer lies in redevelopment–transforming
these areas into formal, safe housing, while restoring open spaces
wherever possible.
285. So, the constitutional duty of the State is two-fold: (i) to
protect and improve the urban environment, and (ii) to ensure
shelter and safety for the weaker sections of society. Both these
responsibilities come from Article 21, and they are not against
each other. They must be balanced, in a manner that is fair,
reasonable, and in line with constitutional principles.
286. In our view, the impugned Regulation tries to achieve that
balance. It does not prevent environmental recovery; instead, it
requires that a part of the land be kept as open space. At the same
time, it also does not ignore the poor; it allows for their safe,
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regulated housing on the same land. This is a middle path, one
that does not ignore green space, but also does not ignore human
suffering.
287. The role of the Court is not to demand a perfect or
impractical solution, especially when the government is working
with difficult ground realities. The Court must ensure that
constitutional values are followed, but it cannot impose its own
view of what the ideal urban plan should be. When a policy clearly
shows an honest attempt to balance two competing rights under
Article 21, both of which are recognised by the Constitution and
the Supreme Court, then the Court must respect that effort, unless
the policy is clearly unreasonable or unjust.
288. To sum up, the vision put forward by the petitioner, while
well-intentioned and environmentally conscious, is constitutionally
incomplete. The right to environment and the right to shelter are
both fundamental. The Constitution expects us to find a balance,
not choose one over the other.
289. The constitutional duty of this Court is not to enforce one
right by ignoring the other. Our task is to ensure that both the
rights under Article 21 that is, the right to a clean environment
and the right to shelter are protected together in a way that
maintains constitutional balance. In Asha Ranjan (Supra), the
Supreme Court, though in a different context, laid down a useful
guiding principle: when two fundamental rights appear to be in
conflict, the Court should not give such overwhelming importance
to one that the other is completely lost. The correct approach is to
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find a fair balance, so that both rights are respected, and the
actions of the State are tested on the touchstone of proportionality.
290. This concept of balancing rights is firmly recognised in our
constitutional law. Article 21, which has been expanded through
judicial interpretation, includes not just the right to life, but also
the right to live with dignity. This includes both the right to a clean
and healthy environment and the right to proper housing. These
two rights are not in conflict in fact, they complement each other.
A house without basic living conditions is not truly a shelter, and a
clean city that excludes the poor from access to it cannot be called
fair or just.
291. The Regulation in question, Regulation 17(3)(D)(2), must be
examined in this context. It does not offer a perfect or one-sided
solution. It does not say that all open lands will be cleared of slums
and fully restored for public use. Nor does it claim that every slum
dweller has an unconditional right to remain on any land,
regardless of its public importance. Instead, it takes a measured
approach: it requires that at least 35% of the land must be restored
and developed as public open space, and the remaining land may
be used to construct proper housing for the existing slum dwellers,
replacing unsafe, unregulated structures with legal and secure
homes.
292. If implemented properly, this approach can convert a difficult
and deadlocked situation into a mutually beneficial outcome. The
local community gains back part of the land for parks or
recreation, and the slum residents get legal, permanent and
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dignified housing. This is not just a tool for administrative
convenience, it reflects the constitutional goal of inclusive
development, where the rule of law is maintained and both public
and private rights are respected.
293. Therefore, the real question before the Court is not whether
this Regulation fully restores the reservation on paper, but whether
it sacrifices environmental protection in such an unreasonable way
that it violates constitutional guarantees. The Court must assess
whether the compromise made by the State is so excessive or
arbitrary that it deprives citizens of their right to clean air, public
spaces, and a healthy urban life.
294. After examining all the material on record, we find no such
violation. The Regulation clearly restricts its application to plots
above 1000 square metres, thereby ensuring that smaller open
spaces are not affected. It also mandates that at least 35% of the
land must be reserved for open space development such as parks
or gardens, and that this area must be formally handed over to the
local authority for public use. This is not a loophole, it is a
structured and lawful method to reclaim some part of public land
that was earlier lost to unplanned encroachment.
295. The trade-off here appears to be both reasonable and
proportionate. When 100% of the land is already encroached and
inaccessible to the public, recovering 35% of it, with legal
guarantees and civic maintenance, is an actual gain for the
environment, not a loss. The other 65% is not given to builders or
commercial developers, it is used only to house the people already
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living there. This approach also prevents further spread of informal
slums and allows for planned housing, with better facilities like
drainage, sanitation, and safety.
296. Seen from this perspective, we do not accept the petitioner’s
claim that this Regulation undermines environmental protection.
On the contrary, it shows a sincere attempt to balance two
competing rights, exactly as the Constitution requires. It supports a
vision of environmental well-being that also respects human
dignity, and promotes a model of urban growth that includes the
poor, rather than pushing them to the city’s margins.
297. After giving our careful thought to the matter and keeping in
mind the constitutional values that lie at the heart of this issue, we
are of the clear view that the impugned Regulation does not
violate the right to a clean and healthy environment under Article
21 in such a manner that would require the Court to strike it
down. A Court can strike down a delegated legislation, especially
one that is made under statutory authority and after public
consultation, only in cases of clear and serious constitutional
violations. That standard, in our opinion, is not met in the present
case. There are several strong and inter-connected reasons why we
say so:
a) First, the Regulation requires that 35% of the total land area
must be kept as open space. This may not be the full original
reservation, but it cannot be called symbolic or meaningless.
On larger plots, such as those measuring 2,000, 5,000 or
10,000 square metres, this 35% amounts to a significant area
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that can be used for gardens, jogging tracks, play areas, or
other community spaces. What matters for the environment
is not just what is marked on a map, but whether there is
real, accessible, green space on the ground. If this Regulation
is implemented in good faith by the authorities, this 35%
area may become the first developed public open space on
those plots in many years.
b) Second, it is important to understand the difference between
a notional reservation and actual public benefit. Earlier, the
entire land may have been reserved for recreation in the
Development Plan. But in reality, due to encroachments and
lack of action, the public got no benefit from such
reservation. A mere label on paper, without public access,
basic facilities, or upkeep, cannot be said to fulfil the promise
of Article 21. Under the new Regulation, however, the 35%
area is not only to be retained but also formally developed,
transferred to the local authority, and kept as public space
permanently. What was previously reserved in theory but
unavailable in practice is now being legally protected and
practically revived.
c) Third, this Regulation is not an isolated policy. It is part of a
larger city-wide planning effort under the Development Plan
2034, which aims at balanced land use, better urban design,
and green space improvement. From the material placed
before us, it appears that the Planning Authority has added
several new open space reservations across the city, including
in No Development Zones, salt pan lands, and vacant
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government lands, which are now being designated for
parks, green corridors, and recreational use.
d) Fourth, although exact figures were not submitted with
mathematical precision, the broad indication from official
sources is that the overall open space in the city has
increased, even though a few already-encroached plots have
been partially regularised. Therefore, the decision to allow
partial rehabilitation on certain plots is not an isolated
concession, but part of a planned trade-off where small
adjustments in some areas are compensated by fresh green
zones elsewhere.
e) This is in line with the principle of proportionality, which has
been recognised as a constitutional standard by the
Supreme Court in Modern Dental College v. State of Madhya
Pradesh (2016) 7 SCC 353 and Anuradha Bhasin v. Union of
India (2020) 3 SCC 637. According to this principle, when a
policy affects a fundamental right, it must (i) pursue a
legitimate aim, (ii) adopt suitable and necessary means, and
(iii) maintain a fair balance between different rights. We find
that this Regulation satisfies all these tests. It serves the goals
of slum rehabilitation and environmental restoration, applies
a clear and controlled mechanism, and attempts to balance
the rights of the general public with those of the urban poor.
f) That said, it must be emphasised that the real success of this
policy will depend not just on the Regulation itself, but on
how it is implemented. The requirement of keeping 35%
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land as open space should not remain just a clause in a
document. The Planning Authority and Municipal
Corporation must ensure that these spaces are actually
developed, fenced, greened, and made accessible to all,
including the poor. The responsibility now shifts to the
executive to give real effect to the Regulation and to fulfil
both constitutional obligations–environmental protection
and inclusive urban development.
g) In conclusion, when seen in its proper context, the impugned
Regulation appears to be a well-considered and
constitutionally acceptable compromise. It does not take
away the right to a healthy environment but tries to adjust it
reasonably to also protect the right to housing. It does not
ignore planning norms but seeks to realign them within a
broader city strategy. It is not a dilution of rights, but an
effort to reconcile rights, and therefore cannot be considered
regressive or unconstitutional.
viii) Precautionary Principle:
298. The petitioner has relied on the precautionary principle, and
submitted that whenever there is a risk of environmental harm, the
constitutional approach must be cautious. According to the
petitioner, any reduction in open space should be presumed to be
unconstitutional unless the State can clearly prove that such action
will not cause environmental damage. In other words, the burden
is on the State to demonstrate beyond doubt that its action is
environmentally safe or neutral.
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299. We respectfully agree that the precautionary principle is an
important part of constitutional environmental law. In Vellore
Citizens’ Welfare Forum (Supra) , the Supreme Court recognised
this principle as a core part of Indian environmental jurisprudence.
The Court clearly held that when there is a threat of serious
environmental damage, the lack of full scientific certainty should
not be used as an excuse to delay necessary and cost-effective
measures to prevent environmental harm. The Court also
explained that in such cases, the burden of proof shifts to the
person or authority proposing the activity, who must show that it
will not harm the environment.
300. At the same time, it is important to understand when this
principle should be applied. The precautionary principle is usually
used in situations where the scientific risk is unclear or not fully
understood, for example, in cases involving genetically modified
crops, hazardous chemicals, industrial pollution, mining in
sensitive areas, or new technologies where environmental impacts
cannot be predicted in advance. In such cases, where the damage
could be permanent or irreversible, the State must wait until
proper clarity is available.
301. However, the present case is not about scientific uncertainty.
The environmental impact of changing a part of an already
encroached open space into a rehabilitation area is well
understood and predictable. The consequence of reducing reserved
open space from 100% to 35% is not an unknown risk. It is a
deliberate and informed policy decision. The environmental effect,
if any, is already measured and limited. This is not a situation
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involving future unknown dangers.
302. Therefore, what we are dealing with is not a case for
applying the precautionary principle in its strict sense. It is a
situation where the Court is required to weigh two known values:
the need to protect open spaces, and the need to provide housing
to the urban poor. This is essentially a matter of public policy, and
the role of the Court in such matters is limited. The Court cannot
interfere with policy decisions unless they violate fundamental
rights, are based on irrelevant factors, or have no reasonable basis.
303. If the Court were to hold that no reserved open space can
ever be reduced, even when such land is already substantially
encroached and unusable, it would mean applying the
precautionary principle beyond its proper limits. It would turn a
doctrine of caution into a tool that blocks all reasonable and
balanced resolutions, even when long-standing problems are
sought to be solved. The Constitution does not ask us to protect
the environment by ignoring other rights, but to protect the
environment alongside those rights, in a way that respects both
nature and human dignity.
304. The Court’s duty in such cases is to ensure that the policy
does not cause permanent and irreversible environmental damage,
or completely disregard environmental values, which form a part
of the right to life. In this case, the Regulation does not eliminate
open space entirely. It ensures that 35% of the land is kept open,
and that this area is legally protected, developed, and made
accessible to the public. Earlier, the land was completely
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encroached and not usable by anyone. If the Regulation is
implemented as intended, it will actually restore some
environmental benefit to the area.
305. Therefore, we cannot say that this Regulation causes
irreversible harm to the environment. On the contrary, it attempts
to improve the existing situation, where the land was totally lost to
civic use. This is not a case where the precautionary principle
requires the Court to strike down the Regulation. Instead, it is a
case where careful implementation, public oversight, and
administrative responsibility must ensure that the intended
benefits, for both the environment and the slum residents–are
achieved.
306. In summary, the precautionary principle in this case does not
demand invalidation, but rather calls for vigilance and responsible
execution. The Court’s role is to protect fundamental rights–not
to directly manage urban planning. When the State adopts a policy
that balances competing constitutional duties and does so in a
transparent and reasoned manner, the Court must respect that
choice–as long as environmental protections are not ignored, but
are respected in action and implementation.
ix) Public Trust Doctrine:
307. The petitioner has rightly relied on the public trust doctrine,
which is a well-recognised and essential principle in our
constitutional law. As explained by the Supreme Court in M.C.
Mehta (Supra) and Fomento Resorts (Supra) , this doctrine means
that the State is not the owner of natural or public resources such
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as parks, forests, rivers, lakes, and open spaces. Instead, the State
holds these resources in trust for the benefit of the public and
future generations. This doctrine allows the Court to intervene
when such public resources are misused, diverted, or handed over
for private benefit or non-public purposes.
308. At the outset, we make it clear that this Court fully endorses
the importance of the public trust doctrine. Had it been shown that
a functional public park was being handed over to a private
builder for commercial gain, we would have had no hesitation in
striking down such action. That was, in fact, the conclusion
reached by the Supreme Court in B.S. Muddappa, (Supra) and
M.I. Builders (Supra) , where the Court held that converting green
public areas into commercial use violated the State’s duty as
trustee.
309. However, the facts of the present case are clearly different,
both in purpose and in effect. In this case, the beneficiaries of the
Regulation are not private developers or commercial entities, but
slum dwellers, who belong to the most economically and socially
vulnerable groups in society. They too are part of the public for
whom the State holds the land in trust. The Regulation is not
aimed at private profit, but at providing proper housing to the
shelterless, while also ensuring that a portion of the land is
restored as open space for public use.
310. It must be remembered that the public trust doctrine, while
strict, is not absolute. It does not prohibit all changes in land use.
The State may restructure or reallocate the use of trust land if such
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action serves the public interest, so long as the essential purpose of
the trust is respected and the change aligns with constitutional
values. In this case, at least 35% of the land is required to be kept
as open space, developed as a park or recreational ground, and
formally handed over to the local authority. The remaining land is
used to fulfil another constitutional obligation, namely, providing
housing to the poor.
311. We must recognise that the State has multiple constitutional
duties, and often these duties overlap. The land held in trust is not
only meant for environmental conservation, but also for promoting
social equity, housing, and inclusion. The Constitution does not ask
the State to fulfil one responsibility by neglecting another. It calls
for a balanced approach, where both objectives are addressed in a
fair and just manner.
312. In our view, the State, through this Regulation, is not
violating the public trust. Rather, it is trying to fulfil two
constitutional goals: (i) to protect and revive open spaces for
public use; and (ii) to provide dignified and secure housing to
slum dwellers, thereby upholding the ideal of social justice. Both
these objectives are part of Article 21 of the Constitution, and are
also supported by the Directive Principles of State Policy.
313. It is correct that a developer may get some additional Floor
Space Index (FSI) or be allowed to construct some units for sale.
But this element of profit is not an end in itself. It is incidental to
and a part of a reasonable cross-subsidy model–a mechanism
where the cost of building free housing for the poor is met through
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the sale of other units. Such financial models are often used in
urban policy, especially when government funds are limited. The
mere involvement of a private actor does not make the Regulation
unconstitutional, as long as the main benefit goes to the public and
the process remains fair and transparent.
314. Therefore, we are of the considered view that the application
of the public trust doctrine in this case does not lead to the
invalidation of the Regulation. This doctrine is meant to prevent
misuse of public land, not to block every policy change. The
Regulation is not arbitrary, not hidden, and not a gift to private
parties. Instead, it is an effort to recover part of the land for public
use and to use the remaining part to meet another constitutional
need.
315. This distinction is crucial. The public trust doctrine is not a
total prohibition against change. It is a safeguard against misuse.
In the present case, the Regulation has been carefully structured to
protect both aspects of the trust, the environment and the right to
shelter. It does not violate the public trust; it reshapes it, in a way
that serves the broader goals of the Constitution.
316. That being said, our conclusion that Regulation 17(3)(D)(2)
is constitutionally valid does not mean that it can be implemented
in an unrestricted or casual manner. The public trust doctrine,
though not found to be violated in this case, continues to remain
an important constitutional safeguard. Whenever the State decides
to change the original purpose of land reserved for public use,
such a step must be carefully reviewed, especially when the land
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forms part of the common natural resources held by the State in
trust for the public.
317. Even if such a change is for another public purpose of equal
importance, such as providing housing to slum dwellers, the State’s
duty as trustee does not come to an end. The Court has a
responsibility to make sure that the original purpose of the
reservation, such as for a park, garden or playground, does not
become just a formality or symbolic token, but is genuinely
preserved and protected.
318. It must be clearly understood that even a partial change in
the land use of areas reserved for public open spaces is not a minor
or routine decision. These open spaces are not just for leisure, they
are vital for social inclusion, public interaction, and maintaining a
shared civic life, especially in cities where citizens live with
unequal access to public amenities. Therefore, any reduction in
such areas should be allowed only in exceptional situations, and
only when the remaining open space is properly planned, well-
designed, and ensures better public use and access.
319. This Court is of the firm view that although the 65:35
division permitted under the Regulation is legally acceptable in
principle, its actual implementation must be carried out with
seriousness, transparency, and full care. Merely showing 35% as
open space on paper is not sufficient. This portion must not
become a leftover patch of land, oddly shaped, poorly located, or
unusable due to bad design or neglect.
320. In order to uphold the public trust in open spaces, and to
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protect the right to a clean and inclusive urban environment under
Article 21 of the Constitution, we hold that the 35% open space
retained under the Regulation must satisfy the following
mandatory conditions:
(i) It must be clearly shown in the approved layout plan,
so that its location, size, and shape cannot be later changed,
shifted, or reduced arbitrarily;
(ii) It must be properly developed with standard features
expected of a public park, such as green landscaping,
walking or jogging tracks, lighting, benches, play equipment
for children, and, wherever suitable, areas for public fitness
or social interaction;
(iii) It must be kept free from any further encroachment or
construction, except for basic utilities necessary for public
use of the open space;
(iv) It must be handed over to the municipal authority
within a reasonable and specified time frame, along with a
budget or allocated funds to ensure its regular upkeep and
long-term maintenance;
(v) It must remain open and accessible to the general
public, including citizens living nearby, and must not be
fenced off or restricted only to the residents of the
rehabilitation project.
321. The constitutional right to housing for the slum dwellers
cannot be protected by compromising the right of other citizens to
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live in a healthy, inclusive and environmentally balanced urban
area. Both these rights are part of Article 21, and both must
coexist. This balance must be achieved not through vague
assurances, but through clear, concrete, and enforceable duties
placed upon the authorities. Accordingly, we propose to issue
certain directions and clarifications to ensure that the
implementation of Regulation 17(3)(D)(2) in future is carried out
in a manner that genuinely respects the public nature of open
spaces, helps to reclaim and conserve them, and protects the
environmental and civic rights of all citizens. These directions are
not meant to obstruct the Government’s policy, but to strengthen
it, so that its twin objectives (i) to provide dignified housing to
slum dwellers, and (ii) to recover and preserve part of the land as
open space, are both truly fulfilled, not merely in theory, but in
real and visible effect.
x) Interpretation of Sections 3X and 3Z – Rights of Slum
Dwellers and Public Interest Reservations:
322. The provisions of the Slum Act, particularly Sections 3X and
3Z, act as a protective mechanism for eligible slum dwellers. These
provisions define who is a “protected occupier” and ensure that
such occupiers are not evicted without proper rehabilitation. The
Petitioners before us have urged this Court to restrict the
application of these provisions when it comes to lands reserved for
public purposes in the Development Plan. Section 3Z, as amended
in 2014, clearly provides that no protected occupier shall be
evicted from their dwelling structure, unless permitted under
specific circumstances. Sub-section (2) provides the exception,
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namely, that eviction may occur if it is necessary in the “larger
public interest,” and that too with suitable relocation.
323. This legal framework recognises slum dwellers right to live
with dignity and some form of tenure security. The idea is to
ensure that during redevelopment, the State accommodates these
persons, usually by providing temporary and then permanent
housing. Only when the State establishes that relocation is
essential for a larger public need can eviction be justified.
324. One of the important issues raised in this petition is whether
the mere fact that a plot is reserved as a garden or other public
open space automatically qualifies the situation as being in the
“larger public interest” under Section 3Z(2). The Petitioners argue
that any such reservation is by default in public interest and should
therefore mandate eviction. The State, however, argues that it
must be assessed whether eviction is actually necessary or if the
public interest can be met through other methods, such as partial
retention of the park and partial in-situ rehabilitation.
325. The phrase “necessary in the larger public interest” signifies
that a higher level of public need is required. It is not meant to be
triggered by routine planning objectives. Undoubtedly,
infrastructure projects such as roads and railways satisfy this
threshold. Gardens and parks may qualify in cities where such
amenities are critically lacking. Therefore, a general rule that all
reserved lands must lead to eviction of slum dwellers cannot be
accepted.
326. Instead, each case must be judged on its own facts. If the
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reserved open space lies in a locality severely deficient in
recreational facilities, the need to develop it may override in-situ
rehabilitation. On the other hand, if sufficient alternatives exist or
if the settlement is old and established, it may be more appropriate
to rehabilitate slum dwellers on-site.
327. DP 2034 represents the State’s policy decision, where a
portion of such reserved lands, typically 35%, is kept for public
purpose while the rest is allowed for rehabilitation. The Petitioners
want this Court to declare that such a policy violates the law. We
are not inclined to interfere in this domain of executive discretion.
However, it must be clarified that Section 3Z(2) remains
applicable, and the State may exercise that power if it deems
eviction and full reservation implementation to be necessary.
328. Coming to Sections 3X(a) and 3X(c), these define “dwelling
structure” and “protected occupier” respectively. The Petitioners are
concerned that these definitions are too wide, as they may even
include non-residential structures like godowns or sheds. While
that concern is understandable, these broad definitions are meant
to reflect the actual nature of slum settlements, where usage is
often mixed.
329. Changing these definitions may lead to unpredictability in
implementation. Importantly, Section 3Z already contains a built-in
safeguard by requiring that eviction can occur only for larger
public interest. Thus, rather than narrowing the definitions in
Section 3X, the appropriate approach is to rely on the exception
carved out in Section 3Z(2).
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330. The legislative intent is clear: all protected occupiers are
secure by default, but may be relocated if compelling public need
arises. There is no express exception for slums on reserved lands,
but if the objective of the reservation is important enough, then
the State is empowered to act under Section 3Z(2). Therefore,
there is no need to strike down or read down Sections 3X or 3Z.
They provide a constitutional balance. However, to ensure this
balance is maintained, we interpret “larger public interest” to
include the realisation of major public reservations in the
Development Plan, such as creation of public parks, gardens, or
playgrounds, if the surrounding circumstances justify such a step.
331. The Government is fully authorised to relocate protected
occupiers from reserved lands in such cases. Nothing in the Act
prevents such action. It is a matter of policy choice, not legal
incapacity. The judgment of this Court in Abdul Majid has clarified
that rehabilitation is a welfare benefit and not compensation for
encroachment. A slum dweller cannot insist on being
accommodated on the same land if the State chooses otherwise. In
the present case, there is no objection from slum dwellers; it is the
State’s conscious choice to implement in-situ rehabilitation.
332. In summary, we hold that: Sections 3X(a), 3X(c), and 3Z
serve important social functions and are not unconstitutional.
Section 3Z(2) is the operative balancing tool. “Larger public
interest” under Section 3Z(2) includes the implementation of
Development Plan reservations, subject to the facts of each case.
In-situ rehabilitation is a policy guideline and not an absolute rule.
The statutory scheme of the Slum Act and the MRTP Act can be
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harmoniously construed to serve both social welfare and planned
urban development.
xi) Case Law Analysed:
333. We now turn to the important judgments relied upon by the
petitioner. Each of these decisions deserves independent attention.
Although they were delivered in different factual contexts, they lay
down strong constitutional principles regarding the protection of
public spaces and the application of the public trust doctrine.
These decisions show that whenever the State deals with land or
resources meant for the public, especially natural or common
spaces, it must justify its actions with a high level of care and
responsibility.
334. The petitioner has primarily relied upon the decision in B.S.
Muddappa, (Supra), where the Supreme Court held that a public
park cannot be converted into a hospital, even though the new
purpose was also for public welfare. The Court clarified that land
meant for parks is not surplus or extra land that can be diverted
for administrative convenience. It also held that the denial of
access to open spaces due to arbitrary executive action amounts to
a violation of the right to a wholesome environment under Article
21. We fully agree with this legal principle, which continues to
hold the field. However, the facts in the present case are very
different from the Muddappa case. In that case, the park was
functional and being used by the public, and the decision to
convert it was taken without due process or transparency. It was a
clear case where one public purpose was wrongly substituted by
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another without sufficient planning or justification.
335. In contrast, in the present matter, the lands in question have
been under total encroachment for years and are not in use as
parks or recreational areas. The reservation exists only on paper,
and in reality, the public has had no benefit or access to these
lands for a long time. Moreover, the process of bringing in
Regulation 17(3)(D)(2) was not done secretly or abruptly. It
followed the procedure laid down under the MRTP Act, starting
with draft notifications, inviting public objections and suggestions,
and culminating in final approval by the State Government. The
entire process took place over several years and involved
participation of the public and concerned departments. Whether or
not one agrees with the outcome, it cannot be said that the
Regulation was brought in without transparency or in violation of
the planning law, unlike the situation in Muddappa.
336. Olga Tellis (Supra) is a landmark judgment that has a two-
fold significance. On one hand, the Supreme Court recognised that
the right to livelihood of pavement dwellers is an integral part of
the fundamental right to life under Article 21 of the Constitution.
Hence, if the State proposes to remove such persons, it must act
with fairness and compassion, by providing them with alternative
accommodation, or facilitating their relocation in a dignified
manner. On the other hand, the Court clearly held that no
individual can claim a legal right to encroach upon public spaces
such as roads, footpaths, gardens, or playgrounds. Such
encroachments, however old, do not create a legal entitlement to
remain. Reading both aspects together, the law as laid down in
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Olga Tellis is that while encroachers have no legal right to stay on
public lands, the State is expected to treat them with dignity if it
chooses to remove them. Applying that principle to the present
case, it becomes clear that the slum dwellers who have settled on a
plot reserved for a public garden cannot legally insist on
continuing to occupy that land. The State, therefore, would be
within its rights to evict them, provided it does so in accordance
with law, and gives them proper rehabilitation.
337. In the present matter, however, the State has chosen not to
remove the slum dwellers, but instead to redevelop the same plot
by rehabilitating them in-situ while retaining a part of the land as
open space. This course of action is not contrary to Olga Tellis,
because that judgment did not require compulsory eviction in
every case. It only stated that eviction, if carried out with due
process and rehabilitation, would not violate the right to life.
Therefore, Olga Tellis supports the Petitioner’s argument that
public open spaces ought to be safeguarded from encroachments.
At the same time, it does not impose a mandatory and absolute
obligation on the State to remove protected slum dwellers. The
judgment leaves it to the State to decide, in each case, how best to
deal with such situations, including the option of evicting with
alternative resettlement.
338. Abdul Majid Vakil Ahmad Patvekari (Supra) , decided by this
Court, reinforces the settled legal position that rehabilitation of
slum dwellers is a benefit conferred by government policy, but it is
not an unconditional right to remain on the same land. In that
case, the Court held that if the State offers a reasonable alternative
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for rehabilitation, slum dwellers cannot insist that they must be
resettled at the very same spot or within the same vicinity. This
judgment directly supports the stand of the Respondents in the
present case, as it makes it clear that the slum dwellers could
lawfully have been relocated elsewhere. Therefore, they had no
absolute right to remain on the reserved open space. However, this
decision also strengthens the Petitioner’s submission in another
way, it clarifies that slum dwellers do not have the power to
prevent the State from clearing a particular land parcel, even if
they have been living there for long. In Abdul Majid, the Court
went further to say that if a slum dweller refuses reasonable
alternative accommodation offered by the authorities, the State is
entitled to conclude that such a person has forfeited his right to
rehabilitation, and proceed with eviction. Thus, the judgment
makes it abundantly clear that there is no legal compulsion on the
State to carry out in-situ rehabilitation on every encroached land.
The decision to rehabilitate slum dwellers on the same land or to
relocate them elsewhere is a matter of policy. In the present case,
the State has opted for in-situ rehabilitation on part of the reserved
land, not because the law compelled it to do so, but because it
considered that course preferable in the larger public interest. This
policy decision, however, remains open to judicial scrutiny to
examine whether it strikes a reasonable and lawful balance
between competing interests.
339. Bishop John Rodrigues (Supra), another decision of this
Court, though dealing with a case of acquisition of private land for
slum rehabilitation, lays down important principles relevant to the
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present matter. In that case, the Slum Rehabilitation Authority had
sought to compulsorily acquire land belonging to a church
institution, even though the landowner was willing to redevelop
the property along with the slum occupants. The Court struck
down the acquisition, holding it to be arbitrary and beyond the
true scope of the Slum Act. The Division Bench observed that if the
Act were to be interpreted in a manner that allowed slum dwellers
to force the State to acquire any land they occupy, merely because
they wish to be rehabilitated there, it would make the Act
oppressive and beyond what the legislature ever intended.
Applying the same reasoning by analogy, if we were to interpret
the Slum Act to mean that wherever a slum exists, even on a plot
reserved for a public playground, it must be rehabilitated in-situ,
and the public must lose that reserved amenity forever, such an
interpretation would also render the statute excessive and
unreasonable. Fortunately, such an interpretation is not warranted
by the text or object of the Slum Act. The judgment in Bishop John
serves as a reminder that while the objective of slum rehabilitation
is socially important, it cannot override other legitimate public
interests, such as the right of communities to enjoy parks,
playgrounds, and gardens as reserved in the Development Plan.
The Slum Act must be implemented in a manner that respects the
rights of all stakeholders and ensures fairness, balance, and
proportionality.
340. In the present case, unlike in Bishop John where the
competing interest was that of a private landowner, the competing
right is that of the general public to retain access to open spaces.
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Although the facts are different, the larger principle of equitable
balancing of interests applies equally. The Court, therefore, must
carefully examine whether the policy of in-situ rehabilitation on
reserved lands is proportionate and consistent with the purpose of
the Development Plan and other public rights.
341. The petitioner has also relied upon M.I. Builders Pvt. Ltd.
(Supra), where the Supreme Court struck down a municipal
resolution that permitted the construction of an underground
shopping complex in place of a public garden. In that case, public
interest was sacrificed for private profit, and a heritage garden was
lost. The Court rightly held that such conduct violated the
constitutional duty of the State as a trustee of public property. But
the present case is on a different footing. Here, the State is not
handing over land to private developers for commercial gain.
Instead, it is trying to balance two constitutional objectives: (i)
preserving public open spaces, and (ii) rehabilitating slum dwellers
who have lived on that land for decades. The Regulation ensures
that 35% of the land is retained for public use, while 65% is used
for in-situ rehabilitation. While this may not fully restore the park
as originally planned, it avoids complete loss of the open space and
also addresses the urgent housing need.
342. The petitioner also cited Intellectual Forum (Supra), where
the Supreme Court restrained the filling of water bodies for
constructing a housing colony. That case involved lakes and water
bodies, which are vital for groundwater recharge, flood control,
and ecological balance. The Court held that such natural features
cannot be treated as empty plots available for development,
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because their loss leads to irreversible damage. We fully agree with
the caution expressed in that case regarding the protection of
ecologically sensitive resources. However, it is also important to
recognise that not all urban lands have the same environmental
value. A piece of land that has been fully encroached and used for
informal housing, although shown as reserved for a park, does not
hold the same ecological importance as a lake, forest, or wetland.
In this case, while there is a civic and planning concern, the
environmental loss is not of an irreversible nature, as would be
with diversion of a wetland or a forest.
343. In light of the above discussion, we are of the view that
although the judgments cited by the petitioner lay down important
constitutional safeguards, their application must necessarily be
considered in light of the facts of this case. This is not a case where
land is being handed over for private benefit or where there is
abuse of power. Rather, it is a case where the State, following due
legal process, has framed a policy which tries to serve both
environmental and social goals. The judgments cited serve as
important warnings, they remind us that public resources must not
be lost by stealth, abuse, or manipulation. But these precedents do
not impose a blanket prohibition on all changes in land use. They
do not prevent balanced, lawful, and transparent decisions,
particularly where public participation and planning mechanisms
have been followed. Accordingly, we hold that while the
precedents cited by the petitioner are of high constitutional value,
the facts of the present case are distinguishable, and the impugned
Regulation does not suffer from the legal defects that led to
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invalidation in those earlier cases.
344. The respondents, in their defence, have relied on several
important judgments which underline the principle that Courts
must exercise restraint while reviewing planning policies,
particularly when such policies are made by the legislature or
under delegated legislative powers. Among these, the rulings of
the Supreme Court in Bombay Dyeing & Manufacturing Co. Ltd.
(Supra), is especially relevant. This case dealt with changes made
to the Development Control Regulations (DCR) related to
Mumbai’s old mill lands. In this case, public interest litigants
raised objections to modifications that allowed reduction of land
earlier reserved for open spaces, low-cost housing, and public
facilities, and alleged that the changes benefitted private parties.
The core argument raised was similar to the present petition, that
land meant for public use was being diverted, thereby diluting its
original purpose. While recognising the seriousness of these
concerns, the Supreme Court clearly explained that in matters
involving urban planning and land use, the scope of judicial review
is limited, since such matters involve complex administrative and
policy decisions. The Supreme Court held that when a
development plan or delegated legislation is modified, the role of
the Court is not to decide whether the change is the best or wisest
possible choice. The Court can interfere only if: The modification
violates the parent statute; It violates any provision of the
Constitution; or it is clearly arbitrary, unreasonable, or against
public interest. Unless one or more of these conditions are met,
Courts should not interfere with planning decisions made by the
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authorities. Questions about how urban land is to be used lie
within the powers of planning authorities, provided their decisions
do not suffer from legal or constitutional flaws.
345. This principle was further confirmed in Janhit Manch
(Supra), where a Division Bench of this Court considered a scheme
that granted incentive Floor Space Index (FSI) to developers in
exchange for providing public parking facilities. That scheme was
also challenged on the ground that it favoured builders
excessively. However, this Court held that although the scheme
may not be perfect, it was still a legitimate planning tool to
address problems such as parking shortage and traffic congestion.
This Court ruled that as long as the scheme was implemented
within the legal framework and aimed at solving genuine civic
issues, judicial interference was not warranted simply because
some trade-offs were involved. The Supreme Court, in appeal, did
not interfere with this Court’s judgment and stressed that judicial
review in matters of planning policy must be applied carefully and
cautiously, especially when the policy seeks to balance multiple
urban needs, including environmental, spatial, economic, and
social considerations.
346. This Court is also conscious that in a city like Mumbai, urban
policy-making involves many competing priorities, such as the
need for housing, protection of environment, improvement of
infrastructure, and equitable distribution of amenities. These
matters do not have clear-cut answers and require a careful
balancing of public interests. Such decisions are best taken by
planning bodies, municipal corporations, and elected
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representatives, not by Courts. This does not mean that Courts
have no role. As constitutional protectors, Courts must step in
where a policy violates the law, infringes fundamental rights, or is
arbitrary and unfair. But even while doing so, the Court must
remain within the boundaries of judicial review and avoid
functioning as a policy-making authority, particularly when the
Government has followed due process and attempted to balance
competing interests in an open and fair manner.
347. As already noted, the impugned Regulation 17(3)(D)(2) was
not introduced by a mere executive decision. It was brought in
after following the full statutory procedure under the MRTP Act.
The process started with a public notice under Section 26, was
followed by consideration of objections and suggestions under
Section 28, and concluded with final sanction under Section 31.
The policy went through review by expert committees, involved
public participation, and received inputs from concerned
departments. It reflects a deliberate policy decision aimed at
tackling two pressing urban issues: encroachment on reserved
public land and the need for in-situ rehabilitation of slum dwellers.
348. Some may argue that a better alternative could have been
adopted or that the policy is not ideal. However, in the absence of
a clear legal or constitutional defect, such arguments do not justify
judicial interference. Courts should not convert themselves into a
forum for debating planning policy. The Courts should neither act
as a “super-town planner”, nor substitute its own purported
wisdom in place of a democratically formulated policy, unless there
is a clear violation of constitutional or statutory principles.
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349. In this background, we find no reason to depart from the
settled standard of judicial deference. The impugned Regulation is
not an arbitrary executive action. It is the result of a legally
structured policy process, guided by constitutional values,
involving public consultation, and aiming, though not without
limitations, to balance different public needs. Therefore, no
ground has been made out for striking it down through judicial
review.
350. After carefully considering the legal, constitutional, and
factual aspects of the issues brought before us, we now proceed to
set out our conclusions on the points framed for determination.
Our analysis has taken into account constitutional principles,
interpretation of statutory provisions, environmental law, the logic
behind planning regulations, and past judgments. These
conclusions are drawn by striking a careful balance among these
considerations. While doing so, this Court has kept in mind that
lawfully framed State policies should not be easily interfered with,
but at the same time, constitutional protections must not be
weakened due to unchecked administrative discretion or
carelessness.
351. Consequently:
(i) We hold that Regulation 17(3)(D)(2) of the
Development Control and Promotion Regulations, 2034 is
well within the powers delegated to the State Government
under the Maharashtra Regional and Town Planning Act,
1966. The Regulation was brought into effect after following
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the required statutory process, starting with publication of a
draft, inviting public objections and suggestions, scrutiny by
the Planning Committee, and final approval under Section
31 of the MRTP Act. We find no procedural irregularity or
legal flaw in the way the Regulation was enacted. Hence, it is
valid in law.
(ii) We are of the view that the distinction made in the
Regulation, between encroached open lands and non-
encroached ones, and between plots above and below a
certain size, is based on clear and logical criteria. This
classification has a direct and reasonable connection with the
aim of the Regulation, which is to provide in-situ
rehabilitation to slum dwellers and, at the same time,
preserve open spaces where feasible. The policy is applied
uniformly, is guided by measurable conditions, and attempts
to balance two important public concerns. It is not arbitrary
or discriminatory and does not violate Article 14.
(iii) We agree that the right to a clean and healthy
environment is a part of the right to life under Article 21,
just as the right to shelter and a dignified life is also
protected by the same Article. The Regulation, if
implemented as it is intended and along with the safeguards
we propose, does not amount to a denial of the right to
environment. Although it does reduce the open space
originally reserved on paper, it ensures that at least 35% of
the land is kept open, developed as a public amenity, and
preserved. At the same time, it provides better housing and
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infrastructure to slum residents. This approach does not
destroy environmental values, it tries to recover some
environmental benefit from already encroached lands while
also recognising the housing rights of the urban poor.
(iv) We are satisfied that the Regulation is not based on
arbitrary administrative decision-making. It is supported by
facts, expert input, and urban planning reports, including the
Afzalpurkar Committee Report. The Regulation reflects a
practical approach to a difficult and long-standing issue,
namely, that removing all slums may not be possible, and
losing all open space is not acceptable. It is a balanced policy
that aims to recover a part of the land while also ensuring
humane rehabilitation. This approach is neither
unreasonable nor unconstitutional.
(v) We have considered the key environmental principles
cited, precautionary principle, sustainable development, and
the public trust doctrine. These are indeed important
constitutional doctrines and must guide all decisions of the
State involving public land, environment, and welfare.
However, in this case, we do not find that the Regulation
goes against those principles. On the contrary, it retains a
defined portion of land as public open space, requires proper
development of that space, and mandates that it be handed
over to the local authority for public use. These steps reflect
an attempt to respect environmental obligations, even while
addressing the ground-level challenges of slum housing. The
precautionary principle, as explained earlier, is best applied
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in cases where the environmental harm is unknown or
irreversible. Here, the impact is known and limited, and the
Regulation represents a planned and controlled response, not
a blind risk. However, the public trust doctrine serves as a
reminder that even partial changes in the use of public lands
must be watched closely. Any reduction in civic open spaces,
even for a public purpose, requires proper justification and
must not result in abuse or neglect. The 35% land promised
for open use must be genuinely made available, and not be
reduced to a formality. Poor planning, inaccessibility, or lack
of maintenance would defeat the purpose. To ensure this, we
will issue clear directions to guide how the Regulation
should be carried out. These directions will help make sure
that the open spaces reclaimed under the scheme are real,
usable, and beneficial to the public, and that the public trust
in such lands is not lost, even as the State takes steps to fulfil
other duties under Article 21.
xii) Final Observations and Directions:
352. Based on the detailed discussion above and after examining
the constitutional validity of Regulation 17(3)(D)(2) of the DCPR
2034 through the lens of Articles 14 and 21 of the Constitution, we
are not inclined to strike down the Regulation in its entirety.
Although the concerns raised by the petitioners about protecting
public open spaces and maintaining environmental balance are
genuine and rooted in public interest, we do not find that the
Regulation breaches the limits of delegated legislation or violates
fundamental rights in a manner that would justify judicial
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invalidation.
353. At the same time, we are deeply conscious of the
constitutional values that lie at the heart of this matter. The right
to a healthy environment, the public trust doctrine, and the
importance of equitable urban planning remain of utmost
relevance. While the Court shows deference to lawfully framed
executive action, it is also empowered under Article 226 of the
Constitution to mould effective relief to ensure that such action
aligns with the public interest and is not carried out arbitrarily.
354. Accordingly, while upholding the validity of Regulation 17(3)
(D)(2), in exercise of our jurisdiction under Article 226 of the
Constitution of India, and in furtherance of the duties cast upon
the State under Article 48A of the Constitution and the mandate of
Sections 22, 31 and 158 of the MRTP Act, this Court issues the
following directions to ensure preservation and protection of lands
reserved as open spaces in the sanctioned Development Plan (DP)
of Mumbai:
(i) In every slum redevelopment project approved under
Regulation 17(3)(D)(2), the Municipal Corporation of
Greater Mumbai and the Slum Rehabilitation Authority shall
ensure that at least 35% of the total plot area is clearly
marked, preserved, and developed as an open space. This
portion shall be used for parks, gardens, or playgrounds, in
accordance with Development Plan. The open space should
be in one continuous stretch and not scattered into unusable
fragments.
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(ii) The 35% open space shall be treated as a public
amenity and not a private area for use only by the residents
of the rehab buildings. It must remain open and accessible to
the general public, including other residents in the
surrounding area. Once the project is completed, the open
space must be handed over to the Municipal Corporation or
any other appropriate public body for maintenance and
management, unless the Corporation specifically permits
joint maintenance with the housing society under prescribed
conditions. Under no circumstances shall this space be
enclosed or restricted in a way that prevents entry of the
local public. No portion of the open space shall be reserved
exclusively for any private group, resident association, or
developer.
(iii) The State Government and the SRA shall form a
dedicated monitoring committee or senior officer, who will
oversee the implementation of the Regulation on the ground.
Field officers shall submit quarterly reports to the SRA and
the UDD stating: Whether the 35% open space has been
properly marked; Whether development like landscaping and
park creation has started and completed; Whether the land
has been officially handed over to the civic body; Whether
public access is being maintained. Public access and scrutiny
of such quarterly reports of the Special Monitoring Cell shall
be ensured by uploading them on the websites of SRA and
UDD within two weeks of the end of each quarter.
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(iv) Any violation, such as building beyond the allowed
65% area or not providing the promised open space, must be
corrected immediately, and disciplinary action shall be
considered if necessary. The Court makes it clear that the
35% open space is a minimum requirement, not an average
or flexible figure. In fact, if any project manages to retain
more than 35% through better planning, it should be
appreciated and encouraged.
(v) It is directed that in every slum rehabilitation scheme
undertaken on lands reserved for public open spaces (POS)
under the Development Plan, the minimum 35% open space
required to be retained under Regulation 17(3)(D)(2) of the
DCPR 2034: (a) Shall be clearly demarcated in the final
approved layout plan at the time of issuance of Letter of
Intent (LoI) or Commencement Certificate (CC), as the case
may be. (b) The layout shall reflect the precise location,
dimensions, shape, and orientation of the open space so that
it cannot be subsequently modified or shifted under the guise
of layout readjustments or design exigencies. (c) No
approval shall be granted to any proposal unless this
requirement is visibly and verifiably complied with.
(vi) The retained 35% open space must be developed as a
functional and usable public park, which includes: (a) Green
landscaping with appropriate vegetation and shaded areas;
(b) Walking/jogging tracks with proper surfacing and
illumination; (c) Installation of seating areas (benches),
children’s play equipment, and fitness zones wherever
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feasible; (d) Lighting, drainage, and safety features ensuring
usability during all hours of public operation; (e) Signage
indicating that the space is public in nature and maintained
under the authority of the local body.
(vii) The entire open space shall be formally handed over to
the Municipal Corporation or the local planning authority (as
the case may be) within 90 days of the date of obtaining the
Occupation Certificate for the rehabilitation component. At
the time of handover, the developer or scheme proponent
shall: (a) Provide a basic capital grant or maintenance
corpus, as may be determined by the Planning Authority or
Municipal Corporation, to ensure upkeep; (b) Furnish an
undertaking to indemnify the authority in case of
deficiencies in development or maintenance obligations for a
period of three years.
(viii) The State Government, through the MCGM and the
SRA, shall ensure that no new encroachment is permitted or
allowed to occur after the reservation of land as open space
in the sanctioned Development Plan. In particular, lands
reserved for Recreation Grounds (RGs), Playgrounds (PGs),
Gardens, Parks, and similar civic amenities shall be treated
as non-buildable zones, except as permitted under judicially
sanctioned frameworks and statutory exceptions.
(ix) The MCGM shall, within 90 days of the upload of this
judgement on the website of this Court, prepare a ward-wise
action plan listing all reserved open spaces and submit the
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same to the UDD. The SRA and MCGM shall jointly
constitute a Special Monitoring Cell headed by a Deputy
Municipal Commissioner not below the rank of Class I
officer, along with a representative of the Planning
Department, to carry out quarterly inspections and submit
reports identifying any fresh encroachments.
(x) The MCGM shall, with the assistance of MahaIT and
the State Remote Sensing Application Centre, complete a
GIS-based mapping and geo-tagging of all plots designated
as open space in the sanctioned Development Plan, including
their current usage status, within a period of 4 months from
the date of this judgment. The mapping database shall be
published on the MCGM website and kept updated bi-
annually, so as to ensure transparency and public access.
(xi) No slum rehabilitation scheme under Regulation 17(3)
(D)(2) of DCPR 2034 shall be sanctioned or implemented on
a reserved open space unless the following mandatory
conditions are fulfilled: (a) The encroachment must have
existed prior to the date of reservation under the sanctioned
Development Plan; (b) A certificate of unavailability of
alternative land must be issued by the Collector and
endorsed by the UDD; (c) The scheme must retain at least
35% of the total plot area as open space in one contiguous,
accessible, and functional parcel, and such area shall be: (i)
developed as a recreation ground or park or used as as
shown in Development Plan, (ii) handed over to MCGM for
public use and maintenance, (iii) not enclosed or made
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exclusive to residents; (d) The scheme must be reviewed and
approved by a Special Urban Planning Review Committee to
be constituted by the State within 60 days.
(xii) The UDD, MCGM, and SRA shall file biannual
compliance affidavits before the Registry of this Court for a
period of three years, detailing: Status of geo-tagging and
mapping, List of reserved open plots with existing
encroachments, Action taken to prevent or remove
encroachments, Details of slum rehabilitation schemes
approved under Regulation 17(3)(D)(2), Development and
handover status of the 35% open space under each project.
The affidavits shall be placed before appropriate bench of
this court for monitorial review.
(xiii) Simultaneously, the quarterly reports of the Special
Monitoring Cell shall be uploaded on the websites of MCGM
and UDD for public scrutiny.
(xiv) The State Government shall undertake a
comprehensive policy review of Regulation 17(3)(D)(2) of
DCPR 2034 within a period of 24 months, including: A field-
wise environmental and urban health impact assessment,
Stakeholder consultations including residents’ associations
and urban planners, Evaluation of whether the 35:65 ratio
serves the goals of sustainable development. If necessary, the
State shall frame revised regulations ensuring a higher
retention of open space, enhanced civic safeguards, and
exclusion of fresh encroachments from rehabilitation
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benefits.
(xv) The State Government shall issue a comprehensive
circular/resolution within four weeks from the date of this
order, incorporating these directions and requiring
compliance in all schemes under Regulation 17(3)(D)(2).
(xvi) Our decision should not be read as giving a free hand
to the State to reduce open spaces in the city. The
responsibility to maintain and increase open spaces
continues. The State and local planning bodies must take
concrete steps to improve the per capita open space
availability, especially in areas where it is dangerously low.
These steps must include: Identifying and purchasing private
lands that can be converted into gardens or parks; Turning
unused NDZ areas or buffer lands into recreation zones
where environmentally suitable; Strictly enforcing open
space provisions in all layouts, residential or commercial.
Preserving what remains is not enough. The city needs new
and better open spaces for its growing population.
(xvii) We make it clear that our decision is based on the
present structure and implementation of the Regulation. If
future developments, such as ground-level data,
environmental reports, or public grievances, show that the
35% open space is not enough, the State will be bound to
revisit the policy. The State may then consider: Increasing
the minimum open space, or Introducing stricter controls on
the size and number of houses or floors allowed under such
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projects. Our approval of the Regulation is based on the
balance currently offered between public space and housing
needs. That balance must remain flexible and sensitive to
future challenges. It cannot be static. The welfare of the
people must always be the guiding principle.
355. We, therefore, decline to strike down Regulation 17(3)(D)
(2). The writ petition, to that extent, stands dismissed. However,
keeping in mind the important constitutional values involved, such
as the need to protect the environment, the public trust doctrine,
the rights of slum dwellers, and the goal of sustainable
development, we have exercised our powers under Article 226 of
the Constitution and issued specific directions (i) to (xvii) earlier
in this judgment.
356. In the result, and subject to the above directions, the Rule
stands discharged. There shall be no order as to costs.
357. Let a copy of this judgment be forwarded to the Chief
Secretary, Government of Maharashtra, for appropriate action and
circulation to all departments and authorities concerned with the
subject.
358. List the writ petition for compliance on 4th December 2025.
359. Interim Application No.1771 of 2022, and Interim
Application (L) Nos.28459 of 2021 and 30716 of 2021 stand
disposed of in terms of this order.
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