Matter Overview - The High Court of Bombay delivered a significant judgment on the challenge to Regulation 17(3)(D)(2) under the DEVELOPMENT CONTROL AND PROMOTION REGULATIONS, 2034 (“DCPR 2034”) raised by NGO Alliance for Governance and Renewal (NAGAR) (i.e. an organization dedicated to the protection of open public spaces).
Regulation 17(3)(D)(2) of the DCPR, 2034 (“said Regulation”) 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.
Significance of the matter - This ruling is highly significant as it is an insight into the urban need for slum redevelopment on reserved lands and importance of providing shelter and improving living conditions for the urban poor, these clauses introduce robust safeguards to prevent the erosion of public open spaces. They establish a governance architecture that emphasizes accountability, transparency, environmental sustainability, and public participation—ensuring that redevelopment does not come at the expense of the city’s ecological and social fabric.
NGO Alliance challenged the said Regulation on the basis that this reservation significantly reduces the purpose of reservation and denies the city of its much-needed green and open spaces and therefore is violative of Article 14 and Article 21 of the Constitution. NGO further contested that this provision is against the letter and spirit of sustainable development and that green and open spaces must be saved for the enjoyment of the people of the city and not be sacrificed for encroachers.
The High Court tested the said Regulation on its constitutional validity and whether the regulation adequately balances reasonableness and public interest under the statutory framework and found no reason to interfere and strike down the Regulation. The Court found that the said Regulation sought for a practical compromise by ensuring housing for slum dwellers and create open spaces that were previously inaccessible. The Court further dwelled into the validity of delegated legislation and held that unless gross violation of fundamental rights and manifest arbitrariness is found in the delegated legislation, the Courts must respect the wisdom the executive and legislature in matters of town planning or civic policy.
The Court examined the said Regulation against Article 14 and Article 21 of the Constitution and found that the said Regulation is well considered and a constitutionally acceptable compromise. It in no manner takes away the right to a healthy environment but attempts to adjust it to protect the slum dwellers right to adequate housing and therefore cannot be considered as violative of Article 14 and 21 of the Constitution.
The Court ultimately upholds the said Regulation but though its powers under Article 226 of the Constitution issues directions to further ensure protection of open spaces in the city of Mumbai such as directing the State Government to carry out at a policy review of the said Regulation and directing the Slum Rehabilitation Association and the Municipal Corporation of Greater Mumbai to carry out quarterly inspections of fresh encroachments and carry out a geo-tagging of all plots designated as open space in the sanctioned Development Plan.
Impact And Obligations Cast On Developers: The Court has granted strict compliances and conditions on Developers to ensure when executing a redevelopment scheme under the said Regulation i.e.:
(i) 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 DC PR 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.
(ii) The Court has directed that 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 shown in Development Plan, (ii) handed over to MCGM for public use and maintenance, (iii) not enclosed or made 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.
(iii) In the event of development of a scheme under the said Regulation, the Court has directed Developers to formally handed the entire open space 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 must (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.
