NGO Alliance for Governance and Renewal (NAGAR) vs State of Maharashtra, through the Department of Urban Development

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2025 Supreme(Bom) 1315

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
AMIT BORKAR, SOMASEKHAR SUNDARESAN, JJ.

NGO Alliance for Governance and Renewal (NAGAR) and Ors. – Petitioners
Versus
State of Maharashtra, through the Department of Urban Development and ors. – Respondents
Writ Petition No.1152 of 2002 With Interim Application No.1771 of 2022 With Interim Application (L) No.28459 of 2021 With Interim Application (L) No.30716 of 2021
Decided On : 19-06-2025

Advocates Appeared:
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, Mr. Anil Y. Sakhare, Senior Advocate (Special Counsel) with Mr. Abhay Patki, Additional G.P., 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., Mr. Ram Apte, Senior Advocate with Ms. Anuja Tirmali i/by Komal Punjabi, Mr. Netaji Gawade i/by M/s. Sanjay Udeshi & Co., Mr. Mayur Khandeparkar with Mr. Anosh Sequeiria, and Mr. Joran Dwan i/by Diwan Law Associates, 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., Mr. Ashish Kamat, Senior Advocate with Mr. Ranjeev Carvalho, and Mr. Rishabh Murali i/by M/s. ABA Law, Mr. Abhishek Kothari with Mr. Rohaan P. i/by M/s. Trilegal.

JUDGMENT :

Amit Borkar J.

Table of contents:
A) Submissions of Petitioners :
i)	Background
ii)	Constitutional and Doctrinal Grounds
iii)	Violation of the Principles of Substainable Development and the Precautionary Principle
iv)	No Vested Right to In-Situ Rehabilitation on Reserved Open Spaces
v)	Regulation 17(3)(D)(2) Does Not Constitute a New Policy
vi)	Planning Committee Report
vii)	Challenge to the Applicability of Sections 3X(a), 3X(c) & 37 of the Slum Act in the Context of Reserved Open-Spaces
viii)	Judicial Precedents Against In-Situ Rehabilitation on Reserved Lands
ix)	Prayer for Reading Down or Striking Down
B) Submissions of respondent No.2:
i)	Status of Petitioners and compliance with PIL Rules
ii)	Nature of Challenge in the Petition and Grounds of Objection
iii)	Grounds in original Petition of 2002
iv)	Grounds Added after amendment in 2022
v)	Background to Development Control Regulations and Policy Evolution
vi)	Legal and Factual background to Slum rebabilitation Policy and DCPR 2034
C) Submissions on behalf of respondent No.1-State:
i)	Submissions
ii)	Findings & recommendations of the Afzalpurkar Committee
iii)	Contextual Background and justification for impugned Regulation
iv)	Legal Framework and Validity of Regulation 17(3)(D)(2) of DCPR 2034 under the MRTP Act
D) Judicial Precedents cited :
i)	Delegated Legislation & Limited Scope of Challenge
ii)	Policy Justification for Regulation 17(3)(D)(2)
iii)	Presumption of Constitutionality & Burden on the Petitioner
iv)	Right to Shelter & State’s Constitutional Obligation
v)	Balancing of Competing Public Interests under Town Planning Laws
E) Submissions on behalf of the Intervener:
i)	Slum Dwellers’ Society
ii)	Submissions on behalf of Intervener – NAREDCO West Foundation
F) Rejoinder on behalf of Petitioner :
i)	Respondents’ misplaced reliance on the Afzulpurkar Committee Report
ii)	Response to the Contention that there are no grounds in the Petition regarding Regulation 17(3)(D)(2)
iii)	On the Objection to the Locus Standi of the Petitioners
iv)	Without Prejudice – NAGAR’s Entitlement to Maintain the Petition
G) Analysis and Findings :
i)	Reasoning on preliminary objections
ii)	Issues for Determination
iii)	Planing History and Rationale (1991-2034)
iv)	Validity of Regulation 17(3)(D)(2) of DCPR 2034
v)	Ultra Vires (Substantive or Procedural)
vi)	Constitutional Grounds- Article 14 (Arbitrariness)
vii).	Article 21(Environment vs. Shelter)
viii)	Precautionary Principle
ix)	Public Trust Doctrine
x)	Interpretation of Sections 3X and 3Z – Rights of Slum Dwellers and Public Interest Reservations
xi)	Case Law Analysed
xii)	Final Observations and Directions

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 of implementing 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 di