19 June 2025 Civil Writ Petition >> Civil & Consumer Law  

Mumbai, a city synonymous with dense population and limited open spaces, finds itself at the crossroads of urban development and environmental preservation. A significant legal challenge has emerged concerning the contentious Regulation 17(3)(D)(2) of the Development Control and Promotion Regulations, 2034 (DCPR 2034), which permits the use of public open spaces for slum rehabilitation schemes. This regulation, a continuation and amendment of a 1992 Notification, has sparked a debate over its constitutionality and impact on the city's already scarce green areas.

The Petitioner's Stance: Preserving Public Spaces:

The core of the petitioner's argument, represented by a public-spirited organization, revolves around the consistent diversion of public open spaces—designated for parks, gardens, and playgrounds—for slum redevelopment. They contend that Regulation 17(3)(D)(2), which allows up to 65% of such non-buildable areas exceeding 500 square meters to be used for construction while mandating at least 35% be kept vacant, effectively legalizes the dilution of public reservations. This, they argue, directly contradicts the principles of sustainable development and the public trust doctrine, which necessitate the preservation of public assets for collective enjoyment.

The petitioner highlights that the new regulation is more detrimental than its 1992 predecessor. While the earlier policy required at least 25% encroachment on a minimum of 1,000 square meters for redevelopment, the current regulation lowers the minimum land area to 500 square meters and removes the 25% encroachment threshold. This means even un-encroached parks and gardens over 500 square meters can now be used for slum rehabilitation, undermining their original purpose. Concerns were also raised about the expanded definition of 'protected occupier' under the Slum Act, which, through successive amendments extending cut-off dates, has increased the number of eligible beneficiaries for free in-situ rehabilitation, further burdening urban land, including open spaces.

Furthermore, the petitioner emphasized that Mumbai's per capita open space availability is critically low, often less than 1 square meter per person, far below national and international urban planning norms. Diverting these spaces, according to the petitioner, violates the right to a clean and healthy environment under Article 21 of the Constitution and the public trust doctrine.

The Respondents' Defense: Balancing Needs and Realities

The respondents, including the State of Maharashtra and the Slum Rehabilitation Authority (SRA), argued that the challenged regulation is a well-considered measure designed to balance the need for planned urban development with the socio-economic realities of slum dwellers. They asserted that in-situ redevelopment is a primary strategy given that slum dwellers often live close to their workplaces and cannot afford relocation.

The SRA highlighted that DCPR 2034 acknowledges existing ground realities where encroachments have made the implementation of earlier reservations practically impossible. The regulation, they submitted, is a balanced, practical, and lawful approach to urban planning, recognizing both ecological needs and housing requirements. Unlike the 1991 DCR regime, the 2034 Development Plan has already excluded such encroached areas from the city's open space count, computing open space availability by considering only 35% of these lands as actually available. The regulation, they argued, does not apply to all public open spaces indiscriminately but is specifically for those already occupied by long-standing informal slum settlements.

The respondents also emphasized that courts generally do not sit in appeal over public policy decisions and their role is limited to examining legality, reasonableness, and non-arbitrariness, not wisdom or efficacy. They contended that the distinction made between encroached and un-encroached open spaces is intelligible and necessary for practical urban renewal.

Court's Analysis and Directions:

The High Court of Judicature at Bombay, presided over by Mr. Justice Amit Borkar and Mr. Justice Somasekhar Sundaresan, deliberated on various constitutional and legal aspects, including Articles 14 and 21, the public trust doctrine, and principles of sustainable development.

The court acknowledged the significance of both the right to a healthy environment and the right to shelter as fundamental rights under Article 21. It recognized that the State has multiple constitutional duties and must adopt a balanced approach. The court noted that while the public trust doctrine is a safeguard against misuse of public resources, it is not a total prohibition against change, especially when the state is attempting to fulfil dual constitutional goals: protecting and reviving open spaces and providing dignified housing to slum dwellers.

The judgment reinforced that merely because a policy benefits encroachers does not automatically render it arbitrary, as long as the classification is reasonable and serves a legitimate public purpose. The court concluded that Regulation 17(3)(D)(2) is constitutionally valid as it represents an honest attempt to balance competing rights and addresses practical ground realities.

However, the court also issued significant directions to the State, emphasizing that this decision does not grant a "free hand" to reduce open spaces. The responsibility to maintain and increase open spaces remains, especially where per capita open space availability is dangerously low. The State and local planning bodies must take concrete steps, including identifying and purchasing private lands for parks, converting unused NDZ areas into recreation zones, and strictly enforcing open space provisions in all layouts. The judgment mandates the State Government to issue a comprehensive circular incorporating these directions and ensuring compliance. The writ petition is listed for compliance on December 4, 2025.

Conclusion:

The ruling represents a complex but pragmatic approach to urban planning challenges in Mumbai, aiming to strike a balance between preserving crucial green spaces and addressing the pressing need for slum rehabilitation. While upholding the legality of the contested regulation, the High Court has underscored the State's continuing obligation to enhance and protect Mumbai's open spaces, thereby ensuring both environmental sustainability and social equity.