IMPORTANT POINT
Policies formulated and the legislations made cannot be interfered with unless they fall foul of the Constitution of India.

JUDGMENT :

Sanjay Kishan Kaul, J.

1. The expanding population of rural and urban areas has created its own problems, insofar as civic amenities are concerned. The problem is aggravated in metropolitan cities, where there is movement of population with the prospect of better livelihood. Lack of opportunities for employment has compelled people to leave their home and hearth. We are concerned in the present matter with the consequences of such mobility of population.

2. Mumbai is perceived to be a city that fulfills the dreams of many. The movement of population has thus been manifold, putting a strain on civil services and open areas, including to play grounds and streets. There has been vast encroachment on public lands by people who have migrated, or otherwise, and who could not find reasonable accommodation for their residence. There has been growth of slum areas, thereby blocking access to public land. The density of construction was therefore required to be upscaled to meet the pressing needs of the population. One methodology to address the issue, devised by the State, was that of awarding development rights, as defined in Section 2(9A) of the Maharashtra Regional and Town Planning Act, 1966 (hereinafter referred to as the said Act), which provides as follows:

“(9A) "development right" means right to carry out development or to develop the land or building or both and shall include the transferable development right in the form of right to utilise the Floor Space Index of land utilisable either on the remainder of the land partially reserved for a public purpose or elsewhere, as the final Development Control Regulations in this behalf provide”

A Transferable Development Right (hereinafter referred to as ‘TDR’) is therefore a voluntary, incentive-based programme allowing land owners to sell development rights from their land to a developer, or to other interested parties, who can then use these rights to increase the density of development at another designated location.

3. In order to understand this concept, we would like to further elucidate that the object is to give compensation in a different way, to private landowners who have transferred a portion of their land to the Government as and when the Government has required such private land to build or expand public utilities like grounds, gardens, bus stands, roads, etc. The alternate mode of compensation, instead of payment of money is TDR, which is nothing but a development potential, in terms of increased Floor Space Index (hereinafter referred to as ‘FSI’) awarded in lieu of the area of land given, conferred in the form of a Development Rights Certificate (hereinafter referred to as ‘DRC’), by the Government. Such TDR or DRC is negotiable and can be transferred for consideration, leaving it open for the owner of the acquired land to either use the TDR for himself or to sell it in the open market.

4. The other concept which would have to be dealt with in the context of the present dispute is that of Floor Area Ratio (hereinafter referred to as ‘FAR’), which is the ratio of a building’s total floor area (gross floor area) to the total area of the plot. The concept of FAR can be utilized in the zoning process, to limit urban density. It may be noted that often FAR and FSI are used as interchangeable terminologies and what is taken into account is the carrying capacity/infrastructure and amenities of an area, which would, in turn, have a direct impact on public health, safety and the right to life of the occupants of the area. Illustratively, if a plot of land measures 1000 sq. mts and the permissible FSI is 1, then about 1000 sq. mts. is permissible to be built on that plot of land.

5. Now, turning to the problem referred to aforesaid, of the expanding slums; the Government of Maharashtra has launched a comprehensive slum rehabilitation scheme by introducing an innovative concept of using land as a resource and allowing FSI as an incentive, in the form of tenements for sale i