HC upholds in-situ rehab of slum dwellers on 65% of encroached open spaces
MUMBAI: The Bombay high court on Thursday upheld the validity of a clause in Mumbai's development plan that permits 65% of encroached land reserved for public open spaces to be utilised for in-situ rehabilitation of slum dwellers occupying the land.
A bench of justices Amit Borkar and Somasekhar Sundaresan also directed the Brihanmumbai Municipal Corporation (BMC) and the Slum Rehabilitation Authority (SRA) to strictly ensure that the remaining 35% of the reserved land remains available as public open space.
The bench was ruling on a petition filed in 2002 by NAGAR, a Mumbai-based nonprofit that had challenged Regulation 17(3)(D)(2) of the Development Control and Promotion Regulations (DCPR) 2034. The regulation allowed the use of 65% of encroached public open spaces that are not otherwise buildable and measure over 500 square metres in area for the in-situ rehabilitation of the encroachers via a slum rehabilitation scheme. The remaining 35% area is to be retained as public open space, according to the regulation.
Refusing to interfere with the regulation, the bench said, 'It is a balanced policy that aims to recover a part of the land while also ensuring humane rehabilitation. This approach is neither unreasonable nor unconstitutional.'
The bench added that the regulation reflects a practical solution to a difficult and long-standing issue between encroachments and the need for preserving public open spaces to protect the fundamental right of citizens to a healthy environment.
Although the regulation reduces the reserved open space existing on paper, it ensures that at least 35% of the encroached land is freed and developed as a public amenity, the judges said. At the same time, it provides better housing and infrastructure to slum dwellers, they added.
'This approach does not destroy environmental values. It tries to recover some environmental benefit from already encroached lands, while also recognising the housing rights of the urban poor,' the bench said.
What petitioners said
NAGAR's petition, filed through its trustees Neera Punj and Nayana Kathpalia, challenged a notification issued by the state urban development department in 1992 and Regulation 17(3)(D)(2) of DCPR 2034. The petitioners contended that the notification and the regulation, in effect, legalised the diversion of 65% of the land for construction. This significantly diluted the purpose of the land's reservation and stripped the city of its much-needed green and open spaces, they said.
According to the petitioners, the regulation went directly against the principles of sustainable development and the public trust doctrine, which asserts that public assets such as parks and open spaces should be preserved for collective enjoyment of the community and should not be sacrificed to accommodate encroachments or private development, even under the banner of welfare schemes.
The petitioners also highlighted that the definition of a 'protected occupier' under the Slum Act has undergone considerable changes over the years. A larger pool of slum dwellers on encroached land can now get in-situ rehabilitation, they said, as the original cut-off date for determining eligibility has been extended from January 1, 1976, to January 1, 2011. This has, in turn, increased the burden on scarce urban land, including reserved open spaces, the petitioners argued.
The petition further pointed out that even the basic safeguard in the 1992 notification—that at least 25% of the reserved open space must be encroached upon to trigger a slum rehabilitation scheme on it—was entirely removed in the new regulation. This opened up even slightly encroached parks, gardens, and playgrounds for slum rehabilitation, thereby completely defeating the purpose of reservation under the development plan, it said.
The petition argued that open spaces are critical for the livability and ecological balance of the city. It added that there is no reason why the relocation policy adopted for infrastructure projects such as railways, roads, or metro corridors, which require the land to be cleared, should not be applied to slum dwellers on public open spaces, which are as essential for the well-being of citizens.
What court ruled
The high court found no 'clear legal or constitutional defect' in the policy and 'no procedural irregularity or legal flaw' in the procedure. However, it added that a proper balance between the two facets of the right to life—right to healthy environment and right to shelter and a dignified life—would be achieved only if the remaining 35% of these lands are strictly maintained as public open spaces.
To achieve this balance, the court directed that the remaining 35% open space must be clearly demarcated in the final approved layout plan of the slum scheme. The plan should also reflect the precise location and dimensions of the open space, which cannot be subsequently modified or shifted, it said. The bench restrained the SRA from granting approval to any slum rehabilitation proposal unless this requirement is 'visibly and verifiably' complied with.
The court added that slum rehabilitation schemes on public open spaces should be approved only if the encroachment existed prior to the date of reservation, and the collector issues a certificate that alternate land to rehabilitate the slum dwellers is not available.
The BMC was directed to prepare a ward-wise action plan listing all reserved open spaces, complete GIS-based mapping and geo-tagging of all these plots in four months, and upload the data on its website, along with the plots' current usage status.
The court also directed the state government to review the policy to evaluate whether the 35:65 ratio serves the goals of sustainable development and come up with a new policy framework, if necessary.
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