Bombay High Court Upholds Slum Rehab on Reserved Open Spaces, Mandates Strict Safeguards for Public Use

Mumbai, Maharashtra – The High Court of Bombay, in a significant judgment pronounced on June 19, 2025, upheld the constitutional validity of Regulation 17(3)(D)(2) of the Development Control and Promotion Regulations, 2034 (DCPR 2034). This regulation permits slum rehabilitation schemes on public open spaces reserved for recreational purposes, allowing construction on up to 65% of such land, provided at least 35% is kept vacant and developed for the designated public use.

The division bench, comprising Hon'ble Shri Justice Amit Borkar and Hon'ble Shri Justice Somasekhar Sundaresan , while dismissing the challenge to the regulation, issued a comprehensive set of directions to ensure the protection and proper utilization of the retained public open spaces.

Case Background

The writ petition, originally filed in 2002 by CitiSpace and later pursued by NGO Alliance for Governance and Renewal (NAGAR), challenged the policy of allowing slum rehabilitation on lands earmarked for parks, gardens, and playgrounds in Mumbai. The initial challenge was against a 1992 State Notification and provisions of the Development Control Regulations (DCR) 1991. An ad-interim order in 2002 had restrained new slum schemes on such reserved open spaces for nearly two decades.

With the advent of DCPR 2034, which included the impugned Regulation 17(3)(D)(2), the petition was amended to specifically target this new provision. The regulation lowered the minimum land area for such schemes to 500 square meters (from 1000 sqm) and removed the earlier prerequisite of 25% encroachment, potentially opening up more, even un-encroached, smaller open plots for construction.

Petitioners' Arguments

The petitioners, led by Senior Advocate Mr. Shiraz Rustomjee, contended that Regulation 17(3)(D)(2): * Violated Article 21 of the Constitution (right to a healthy environment and access to open spaces), particularly in a city like Mumbai facing an acute shortage of per capita open space. * Was arbitrary and discriminatory under Article 14 , prioritizing private benefit over public interest and effectively "rewarding encroachers." * Contravened principles of sustainable development, the precautionary principle, and the public trust doctrine , by allowing diversion of essential public assets. * Was merely a continuation, and in some ways a worsening, of the earlier criticized policy, and not a "new policy" aimed at genuinely freeing up open spaces. * Argued that slum dwellers have no vested right to in-situ rehabilitation on reserved public lands. * Sought a reading down or striking down of certain provisions of the Maharashtra Slum Areas Act, 1971 (Slum Act) if they mandated such in-situ rehabilitation on reserved open spaces.

Respondents' and Interveners' Defence

The State of Maharashtra, Slum Rehabilitation Authority (SRA), and Municipal Corporation of Greater Mumbai (MCGM), represented by senior advocates including Mr. Anil Sakhare , Dr. Milind Sathe, and Mr. Ram Apte , defended the regulation. Their key arguments included:

* Delegated Legislation : DCPR 2034 is delegated legislation, challengeable only on limited grounds, which the petitioners failed to establish.

* Balanced Policy : The regulation is a pragmatic and balanced policy, evolving from expert recommendations (like the Afzalpurkar Committee Report), addressing the constitutional right to shelter for slum dwellers (Article 21) while partially reclaiming open spaces.

* Ground Reality : The lands in question were already heavily encroached and practically unavailable for public use. The regulation ensures that at least 35% is recovered and developed as open space, which is a net gain.

* Due Process : The regulation was framed after following the due statutory process under the Maharashtra Regional and Town Planning Act, 1966 (MRTP Act), including public consultations.

Interveners, including the Slum Dwellers’ Society and NAREDCO West Foundation, supported the respondents, highlighting the dire living conditions of slum dwellers, the long delay in rehabilitation, and the technical nature of urban planning best left to experts.

High Court's Rationale and Findings

The High Court meticulously analyzed the complex interplay of constitutional rights, statutory provisions, and urban planning realities.

On Preliminary Objections

The Court overruled preliminary objections regarding the petitioners' locus standi, alleged non-compliance with PIL rules, and delay, emphasizing that in PILs concerning environmental and civic rights, a substantive approach is preferred.

Constitutional Validity of Regulation 17(3)(D)(2)

Not Ultra Vires : The Court found the regulation to be within the powers delegated under the MRTP Act, with Section 22 empowering authorities to make proposals for slum improvement and frame DCRs. The statutory procedure for enactment was duly followed.

Article 14 (Arbitrariness & Discrimination) : The Court held that the classification between encroached and un-encroached open spaces, and the conditions laid down (plot size, 35% retention), were intelligible and had a rational nexus to the twin objectives of rehabilitation and partial recovery of open spaces. It was not deemed a "reward for encroachment" but a "controlled policy of regularisation." The comparison between slum dwellers and other citizens was found invalid for Article 14 purposes, as they are not similarly situated, and the State has a distinct obligation towards weaker sections.

Article 21 (Right to Environment vs. Right to Shelter) : The Court acknowledged both as integral to Article 21. It reasoned that the regulation applies to lands already encroached and unusable by the public. "The Regulation is an attempt to recover a part of what was lost through lawful planning and fair rehabilitation." The 35% recovery was seen as an actual environmental gain. The Court emphasized a balanced approach, stating, "The Constitution expects us to find a balance, not choose one over the other."

Precautionary Principle : The Court found this principle not strictly applicable as the environmental impact of the policy was known and a deliberate choice, rather than an unknown scientific risk. The regulation, it noted, "attempts to improve the existing situation."

Public Trust Doctrine : The Court held this doctrine was not violated as the beneficiaries were slum dwellers (part of the public) and not private developers for purely commercial gain. The incidental profit for developers through cross-subsidy is a recognized mechanism. The regulation aims to fulfill two constitutional goals: preserving open spaces and providing housing.

The Court observed: "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."

Interpretation of Slum Act Provisions

The Court found no need to strike down or read down Sections 3X and 3Z of the Slum Act, stating they serve important social functions. It clarified that "larger public interest" under Section 3Z(2) (for eviction and relocation) could include the implementation of Development Plan reservations, subject to the facts of each case.

The Verdict and Key Directions

The High Court declined to strike down Regulation 17(3)(D)(2) of DCPR 2034. However, exercising its powers under Article 226, it issued extensive directions to ensure the policy's objectives are met and public trust is maintained. Key directions include:

1. Clear Demarcation : The 35% open space must be clearly demarcated in layout plans, be contiguous, and not fragmented.
2. Public Amenity & Access : This space must be developed as a functional public park/garden, accessible to the general public, and not restricted to rehab residents. It must be handed over to the MCGM for maintenance.
3. Monitoring Committee : A dedicated committee/officer to oversee implementation, with quarterly reports on SRA/UDD websites.
4. Minimum Requirement : The 35% is a minimum; more retention is encouraged.
5. GIS Mapping : Geo-tagging of all reserved open spaces within 4 months.
6. Conditions for Sanction : Schemes on reserved open spaces only if encroachment pre-dates reservation, alternative land is certified unavailable, and the 35% open space norm is strictly met, with approval from a Special Urban Planning Review Committee.
7. Policy Review : State Government to undertake a comprehensive policy review of Regulation 17(3)(D)(2) within 24 months, including impact assessment and stakeholder consultations.
8. Compliance Affidavits : Biannual compliance affidavits to be filed in Court for three years.

The Court emphasized: "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 writ petition was dismissed to the extent of challenging the regulation's validity but disposed of in terms of the directions. The matter is listed for compliance on December 4, 2025.