In a city where inequality is visible in how space and services are distributed, providing formal housing to slum dwellers within the city and not on its outskirts, is a step towards real equality, the Bombay High Court held on Thursday while refusing to strike down Regulation 17(3)(D)(2) of the Development Control and Promotion Regulations, (DCPR) 2034, which provides for rehabilitation of slum dwellers on lands encroached, which are reserved as ‘open spaces’ under the DCPR 2034.
A division bench of Justices Amit Borkar and Somasekhar Sundaresan noted that the regulation in question aims to reduce the gap between the formally housed and the informally settled population.
“In a city where inequality is visible in how space and services are distributed, providing formal housing to slum dwellers—within the city and not on its outskirts—is a step towards real equality. It ensures that rights and services are not limited to the privileged, but also reach those living on the margins. This Regulation aims to reduce the gap between the formally housed and the informally settled population, and therefore promotes inclusive planning. Rather than violating equality, it supports it by correcting urban imbalances,” the judges observed in the order.
The bench noted that the regulation in question basically allows rehabilitation of slum dwellers only on lands reserved under the DCPR 2034. It allows only lands encroached by slum dwellers with a minimum of 500 square meters to be eligible for rehabilitation schemes. As per the rehab scheme, only 65 per cent of such land should be used for rehabilitation while 35 per cent of it must be kept reserved for open spaces like gardens, parks and recreational grounds.
This means, in effect, more smaller open plots can now be used for construction, thereby further fragmenting and reducing the already scarce open space available in Mumbai, the petitioner – NGO Alliance for Governance and Renewal (NAGAR) argued.
The regulation, the judges said, achieve the twin goals of (i) rehabilitating slum dwellers humanely without rendering them shelterless, and (ii) recovering a portion of the public land for its original purpose by ensuring that a part thereof is retained as open space under mandatory prescription.
“Merely because a particular policy appears to give some benefit to persons who have encroached upon land, it does not automatically mean that the policy is arbitrary. What is important is whether the classification made by the policy is reasonable and whether it serves a legitimate public purpose. Especially in matters where constitutional rights like the right to shelter and the right to a clean environment are both involved, a balance must be maintained. The overall scheme of the policy appears to maintain a thoughtful balance between the need to preserve open spaces and the pressing requirement of housing for the urban poor,” the bench observed.
The bench refused to accept the argument of the petitioners that the persons, who have encroached upon public open spaces are being ‘rewarded’ under the regulation in question, whereas those citizens who have followed planning laws are left with reduced access to recreational areas.
“With respect, this argument is based more on a sense of morality than on a proper constitutional foundation. Undoubtedly, it is a matter of public concern that law-abiding citizens should not feel that their compliance with planning norms is meaningless, especially when unlawful conduct appears to be regularised. However, constitutional courts cannot enforce abstract ideas of fairness or moral outrage unless there is a clear violation of constitutional principles or evident arbitrariness. The Regulation in question deals with a complex problem in urban governance, namely, slums constructed on lands that were reserved for public use,” the judges said.
This situation, the judges noted, presents a conflict between two important public interests: on one side is the public’s right to enjoy open spaces, and on the other is the right of slum dwellers to housing and shelter.
“The Regulation seeks to resolve this issue by allowing part of the land to be used for in- situ rehabilitation of the slum dwellers, while mandating that at least 35% of the land must be kept for its original public purpose. This is a policy compromise that can be made within the domain of the subordinate legislation, not one that accepts illegality, but one that attempts to balance rights and ground realities. The reasoning behind the Regulation is neither unclear nor unjustified. It reflects a broader urban development policy that understands that slum removal cannot happen only through eviction. There must be practical and humane alternatives,” the bench emphasised.
The judges said it would be wrong to label this approach as a “reward for encroachment” and rather, it is a ‘controlled policy of regularisation’ framed with public interest safeguards, designed to prevent the total loss of public land.
The judges dismissed the argument that by providing rehabilitation to such slum dwellers under the scheme in question, the State and its authorities have violated the right to equality of the ‘law abiding citizens’ as against the slum dwellers, who breached laws and encroached upon open spaces.
“Both slum dwellers and law-abiding citizens are part of the urban population. However, they stand on different legal and constitutional footing. Slum dwellers are economically weaker and are recognised by the Constitution, especially under Article 39, as a group that the State must protect through affirmative action. Various welfare laws like the Slum Act also reflect this responsibility. Providing housing to slum dwellers is not an act of generosity by the State, it is a part of its duty to ensure social and economic justice. On the other hand, law-abiding citizens benefit from civic amenities under the general responsibility of the State. The difference lies in the nature of the obligation: in one case, it is redistributive and corrective; in the other, it is routine and general,” the judges opined.
We do understand that loss of access to parks or open areas can lead to dissatisfaction among residents. But it must be remembered that the Regulation only applies to lands which were already encroached and not being used by the public in any practical sense. The Regulation in fact tries to recover some portion—35%—of that land for public use while also ensuring housing for the slum dwellers, the judges said.
“So, the public is not losing a facility that was in active use, but rather, getting back part of a space that was already fully encroached. The grievance, therefore, is based on an expectation of use, not on actual withdrawal of an existing amenity. While such disappointment is understandable, it does not amount to a legal wrong under Article 14 unless the State’s action is shown to be arbitrary or discriminatory,” the judges held.
The bench however, clarified that their 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 State and local planning bodies must take concrete steps to improve the per capita open space availability, especially in areas where it is dangerously low. Strictly enforcing open space provisions in all layouts, residential or commercial. Preserving what remains is not enough. The city needs new and better open spaces for its growing population,” the judges made it clear.
Appearance:
Senior Advocate Shiraz Rustomjee along with Advocates Gulnar Mistry, Akash Rebello, Prateek Pai, Peterasp Sasuri, and Shabbir Jariwala instructed by Jariwala Associates appeared for the Petitioners.
Senior Advocate (Special Counsel) Anil Sakhare along with Additional Government Pleader Abhay Patki represented the State.
Senior Advocate Dr Milind Sathe along with Advocates Girish Utangale, Gaurav Srivastav, Saurabh Utangale, Sarthak Utangale, Rohan Sawant and Vedant Joshi instructed by Utangale & Co. represented the SRA.
Senior Advocate Ram Apte along with Advocates Anuja Tirmali and Komal Punjabi represented the MCGM.
Advocate Netaji Gawade instructed by Sanjay Udeshi & Co. represented the Public Concern for Conveyance Trust.
Advocates Mayur Khandeparkar, Anosh Sequeiria and Joran Dwan instructed by Diwan Law Associates appeared for one of the Intervenors.
Senior Advocate Pravin Samdani along with Advocates Mayur Khandeparkar, Vikramjeet Garewal, Nitesh Ranawat, Disha Shetty, Mustaqueem Bagasaria, and Jyothi Tated instructed by Wadia Ghandy & Co. represented Naredco West Foundation
Senior Advocate Ashish Kamat along with Advocates Ranjeev Carvalho and Rishabh Murali instructed by ABA Law represented and Intervenor.
Advocates Abhishek Kothari and Rohaan P instructed by Trilegal represented Slum Redevelopers Association.
Case Title: NGO Alliance for Governance and Renewal (NAGAR) vs State of Maharashtra (Writ Petition 1152 of 2002)
Click Here To Read/Download Judgment
