15 hours ago
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.
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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.
