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Hindustan Times
6 hours ago
- General
- Hindustan Times
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.
Time of India
10 hours ago
- Politics
- Time of India
HC oks slum rehab on up to 65% encroached open space
Mumbai: Bombay high court on Thursday upheld the validity of a development regulation that permits two-thirds of public open spaces reserved for parks, gardens, playgrounds, etc and which exceed 500 sq m in area to be used for slum redevelopment schemes subject to a condition to keep at least the remaining one-third area vacant. Referring to Development Control and Promotion Regulations (DCPR), 2034, Justices Amit Borkar and Somasekhar Sundaresan said, "The regulation reflects a practical approach to a difficult and long-standing issue, namely that removing all slums may not be possible, and losing all open spaces is not acceptable. It is a balanced policy which aims to recover part of the land while also ensuring humane rehabilitation. This approach is neither unreasonable or unconstitutional." The verdict came on a 2022 PIL by NGO Alliance for Governance and Renewal (NAGAR) and Neera Punj and Nayana Kathpalia of CitiSpace which challenged the 1992 notification of the Urban Development Department on allowing encroached reserved open public spaces for in-situ rehab of slum dwellers and the regulation 17 (3) (D) (2) of DCPR which was brought into effect in 2022. The petition said the regulation significantly dilutes the purpose of reservation, denuding the city of much-needed green and open spaces. This is directly against the principles of sustainable development and public trust doctrine which require that public assets such as parks and open spaces be preserved for collective enjoyment of the community, and not be sacrificed to accommodate encroachments or private development, even under the banner of welfare schemes. The judges found no procedural irregularity or legal flaw in the rule. They said it was not arbitrary or discriminatory and does not violate Article (14) (Right to Equality). The policy is applied uniformly, guided by measurable conditions, and attempts to balance two important public concerns, they said. They explained that the distinction made between encroached open lands and non-encroached ones, and between plots above and below a certain size, is based on clear and logical criteria "to provide in-situ rehabilitation to slum dwellers and, at the same time, preserve open spaces where feasible. " The judges did not find the regulation going against environmental principles. They said although it does reduce the open space originally reserved on paper, it ensures that at least 35% of the land is kept open, developed as a public amenity, and preserved. At the same time, it provides better housing and infrastructure to slum residents. "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," they added. The judges directed that in every slum redevelopment scheme, BMC and Slum Rehabilitation Authority must ensure at least 35% of total plot area "is clearly marked, preserved, and developed" as open space, to be "used for parks, gardens or playgrounds'' and should be in one "continuous stretch and not scattered into unusable fragments." It must also be accessible to the general public. Any violation of the rule must be corrected and disciplinary action considered. The judges clarified that if future developments, such as ground-level data, environmental reports, or public grievances, show that the 35% open space is not enough, the State will be bound to revisit the policy.
Indian Express
13 hours ago
- Politics
- Indian Express
In slum rehabilitation schemes HC upholds decision for open spaces, says 35% be strictly reserved for public park
The Bombay High Court on Thursday upheld the state government's 2022 regulation permitting non-buildable open spaces exceeding 500 square metres in the city to be used for slum rehabilitation (SR) schemes. However, it has directed that at least 35% of the vacant space on such lands used for SR Schemes must be treated as a public amenity, such as a functional and usable public park, and not as a private area for residents only. The HC was hearing the plea, challenging the consistent use of public open spaces (POS) that are reserved for recreational purposes to implement SR schemes. Such public open spaces used for SR schemes are those which are otherwise non-buildable and reserved under the Development Plan for parks, gardens, playgrounds, etc. The HC also directed the BMC to complete the GIS-based mapping and geo-tagging of all plots designated as open space in the sanctioned development plan and the same be published on its website within four months. The bench said that once the SR project is completed, 35 % of its open space must be handed over to civic bodies for management within 90 days of obtaining occupation certificate for the project, unless the corporation permits joint maintenance with housing a society and such space shall not be enclosed or restrict entry of local public. 'No portion of the open space shall be reserved exclusively for any private group, resident association, or developer,' it noted. The HC directed the state government and Slum Rehabilitation Authority (SRA) to form a dedicated committee or appoint a senior officer to oversee implementation of regulation on the ground and quarterly reports be submitted to the SRA and Urban Development Department (UDD), which shall be uploaded on their websites. A division bench of Justices Amit Borkar and Somasekhar Sundaresan passed a verdict on a plea by NGO Alliance for Governance and Renewal (NAGAR) and others, argued through senior advocate Shiraz Rustomjee. The petitioners had challenged the Regulation 17 (3)(D)(2) of the Development Control and Promotion Regulations (DCPR), 2034 under Maharashtra Regional Town Planning (MRTP) Act inserted in the year 2022. The impugned decision allowed that non-buildable open spaces of over 500 square metres can be used for SR schemes, provided 35 % of the ground area is kept vacant and continued to serve the designated public reservation. However, the petitioners argued that the said regulation in effect legalised the diversion of up to 65 % of land from the reserved public use and permitted its use for construction. Therefore, the said regulation diluted the purpose of reservation and was robbing Mumbai of its much-needed green and open spaces,' they added. Rustomjee argued that public parks and open spaces 'should not be sacrificed to accommodate encroachments or private development, even under the banner of welfare schemes.' The petitioners further argued that the 2022 decision was an extension of the 1992 notification, They added that that while the 1992 notification sought minimum plot size of 1000 square metres, the 2022 regulation reduced it to 500 square metres, which will lead to more smaller open plots available for construction and further reducing already scarce open space in the city. In a 191-page judgement, Justice Borkar for the bench observed that the impugned decision 'tries to achieve the balance' that the government has to strike between its duties to protect, improve urban environment and to ensure shelter and safety for weaker sections of the society. Upholding the validity of the regulation in question, the HC also said disciplinary action be taken in case of any violations and projects retaining more than 35 % vacant space should be encouraged. It also directed the BMC to give ward wise action plans listing all reserved open spaces to UDD and conduct quarterly inspections to identify encroachments. Among a slew of directions, the court also asked the state government to undertake a comprehensive policy review of the impugned regulation within two years. It said that HC verdict should not be 'read as giving a free hand to the State to reduce open spaces in the city.'
Time of India
11-06-2025
- Politics
- Time of India
Bombay HC ruled deputy registrar cannot disqualify managing committee for non mandatory procedural lapses in housing society redevelopment projects
MUMBAI: The Bombay high court on June 9 ruled that the deputy registrar has no power to disqualify the entire managing committee based on alleged procedural lapses by the committee of a govt resolution of 2019, which was not mandatory in nature. The GR prescribed procedural safeguards to be observed by cooperative housing societies while undertaking redevelopment projects. Justice Amit Borkar, pronouncing the judgment on the first day of the court resuming after the summer vacation, also directed the State Principal Secretary (Co-operation), to appoint an officer "of appropriate rank and integrity to conduct a comprehensive and impartial inquiry into the role and conduct" of the deputy registrar, within eight weeks and to submit a compliance report before it. The inquiry is for the officer having ignored binding precedents and passing orders without hearing members, the HC ruled. The Judge said, 'There is a grave risk that arbitrary actions of this nature may encourage undesirable practices, including possible nexus between vested private interests and certain regulatory officers. This may result in manipulation of redevelopment projects or society affairs for personal or commercial gain, in disregard of the welfare of the society members. ' The HC set aside the disqualification of the managing committee members and the appointment of an administrator for a Bandra society. The HC held that the Registrar, despite definitive binding rulings of the court in the past which held the GR to be recommendatory, not mandatory in nature, attempted to justify the disqualification by terming the facts distinguishable. ' 'The officer disqualified the members without adhering to minimum procedural fairness,' Justice Borkar held. 'Such actions, if permitted to continue without proper judicial scrutiny, may cause serious harm to the purposes of the cooperative movement,' the HC held, adding, 'When statutory authorities interfere with the functioning of duly elected managing committees without following due process or without sufficient legal basis, it not only weakens the democratic foundation of cooperative societies but also creates an atmosphere of fear and uncertainty among office bearers and members. ' The very object and scheme of the MCS Act, which is to promote transparency, accountability, and self-governance among cooperative societies, stands defeated if statutory powers are exercised to undermine duly elected bodies rather than to support and guide them. The HC underscored how the 'very spirit of cooperative governance lies in the principle of democratic decision-making and collective management by members. If elected committees can be removed or destabilised on vague or insubstantial grounds, it would amount to indirect interference in the choice of the members who have exercised their statutory right to elect their representatives. Such interference cannot be allowed unless it is clearly supported by law and necessary to prevent actual and proven mismanagement or misconduct. ' 'Once this Court has authoritatively held that the directions in the form of GR of 2019 under Section 79A (of the Maharashtra Cooperative Societies Act) are directory, failure to follow directory provisions does not attract penal consequences,' Justice Borkar held, offering relief to the managing committee members who petitioned the HC against the Deputy Registrar of Cooperative Societies, 'H-West' Ward, Mumbai, and nine others, including the Bandra cooperative housing society. The HC agreed with arguments of Mayur Khandeparkar counsel for the members that the disqualification flouted basic principles of natural justice, as they were issued no notice and given no chance to be heard. Besides, he contended there was sufficient compliance of the GR and argued that the deputy registrar demonstrated bias in favour of the complainants by invoking Section 79H(3) of the MCS Act, which stood repealed and had no applicability. '' Girish Godbole, senior counsel for the complainants, said the disqualification was justified and, in any case, they had already challenged the deputy registrar's order under the Act before the higher authority, and the HC ought not to intervene at this stage. Godbole argued that while a Registrar has no power to annul resolutions of the general body, he retains the jurisdiction under Section 79A(3) to disqualify members of the managing committee for breach of certain directives. The HC, found that the members made out a 'strong prima facie case' of violation of natural justice as they had 'no fair opportunity to be heard before such serious consequences were imposed.' The issue raised 'goes to the root of natural justice, jurisdiction, and legal propriety,' said Justice Borkar, and noted that when viewed in its entirety, the matter 'reveals a troubling pattern.' The six managing committee members assailed the legality of three separate but interrelated orders of the dy registrar passed in February 2025 under the provisions of Maharashtra Cooperative Societies Act, 1960, disqualifying them for six years. They also challenged a Feb 20 appointment of an officer for the society's affairs. The building's former managing committee had initiated steps for redevelopment of the society property and tenders were invited. But allegations of mismanagement surfaced and in Nov 2023 an administrator was appointed for the society. In august 2024 elections were held and a new managing committee was voted in. The new committee continued the redevelopment plans. In November 2024 the deputy registrar received two complaints from society members objecting to the redevelopment process by the new committee, alleging that shortlisting voting process held last October flouted directives in the 2019 GR. The HC directed that on conclusion of the inquiry, a detailed compliance report setting out the findings and action taken, if any, shall be filed before it by August 25. The HC rejected a request made by the State to stay its order.
Hindustan Times
10-05-2025
- Business
- Hindustan Times
Deemed conveyance can't be denied due to delay on part of the builder: HC
MUMBAI: In a significant ruling strengthening the rights of homebuyers, the Bombay high court (HC) on Friday held that a developer's failure to complete a housing project within the stipulated time cannot be used as a reason to deny flat owners their right to deemed conveyance under the Maharashtra Ownership Flats Act (MOFA), 1963. Deemed conveyance refers to the legal transfer of land and building title from the builder to the housing society, even without the builder's cooperation, once the society is formed and other legal conditions are met. Justice Amit Borkar, presiding over a single-judge bench, passed the order while allowing a petition filed by an association of three cooperative housing societies. The group had challenged a decision by the competent authority rejecting their application for deemed conveyance. The dispute dates back to 1995, when Abhinav Real Estate Pvt Ltd (now Neelkanth Realtors Pvt Ltd) undertook the development of 52,609 sq m of land in Majiwada, Thane. This development plan was reaffirmed in 2002. Eventually, eight residential buildings housing 740 flats and 29 commercial units were constructed and sold to individual buyers. Housing societies — Rameshwar CHS (2004), Mansarovar CHS (2005), and Girija CHS (2011) — were formed under MOFA. In 2024, frustrated by the builder's prolonged failure to execute conveyance deeds, the three societies joined forces and formed an association to seek deemed conveyance from the competent authority under MOFA. However, the builder opposed the move, arguing that the association was formed improperly and that it was already facing de-registration proceedings. The competent authority rejected the application, citing that the land was part of a larger layout and that the builder had plans for further development using additional Floor Space Index (FSI) and Transferable Development Rights (TDR). Justice Borkar dismissed the developer's contentions, stating, 'The right of flat purchasers to receive conveyance crystallises once the society is formed. This right does not depend on any vague promises or future intentions of the promoter to construct additional buildings or complete an entire layout.' He added, 'Once a reasonable time has passed, the promoter is legally bound to convey the property. In this case, the promoter has neither completed the remaining development nor provided any concrete plan to do so. They cannot be permitted to use their own delay as a shield to obstruct the rights of the society.' The court directed the District Deputy Registrar, Cooperative Societies, Thane, to issue a deemed conveyance certificate to the association, effectively granting ownership rights to the housing societies.
