Bombay High Court: Minimum 35% Open Space Shall Be Retained In Every Slum Rehabilitation Scheme On Lands Reserved For Public Open Spaces

The Bombay High Court has directed that the minimum 35% open space shall be retained in every slum rehabilitation scheme undertaken on lands reserved for public open spaces (POS) under the Development Plan.

The Court was deciding a Writ Petition preferred by NGO Alliance for Governance and Renewal (NAGAR), challenging the consistent use of POS that are reserved for recreational purposes for the purposes of implementing slum rehabilitation schemes.

A Division Bench of Justice Amit Borkar and Justice Somasekhar Sundaresan issued the following directions to ensure preservation and protection of lands reserved as open spaces in the sanctioned Development Plan (DP) of Mumbai –

(i) In every slum redevelopment project approved under Regulation 17(3)(D)(2), the Municipal Corporation of Greater Mumbai and the Slum Rehabilitation Authority shall ensure that at least 35% of the total plot area is clearly marked, preserved, and developed as an open space.

(ii) The 35% open space shall be treated as a public amenity and not a private area for use only by the residents of the rehab buildings. It must remain open and accessible to the general public, including other residents in the surrounding area.

(iii) The State Government and the SRA shall form a dedicated monitoring committee or senior officer, who will oversee the implementation of the Regulation on the ground.

(iv) Any violation, such as building beyond the allowed 65% area or not providing the promised open space, must be corrected immediately, and disciplinary action shall be considered if necessary.

(v) In every slum rehabilitation scheme undertaken on lands reserved for public open spaces (POS) under the Development Plan, the minimum 35% open space required to be retained under Regulation 17(3)(D)(2) of the DCPR 2034: (a) Shall be clearly demarcated in the final approved layout plan at the time of issuance of Letter of Intent (LoI) or Commencement Certificate (CC), as the case may be. (b) The layout shall reflect the precise location, dimensions, shape, and orientation of the open space so that it cannot be subsequently modified or shifted under the guise of layout readjustments or design exigencies. (c) No approval shall be granted to any proposal unless this requirement is visibly and verifiably complied with.

(vi) The retained 35% open space must be developed as a functional and usable public park, which includes: (a) Green landscaping with appropriate vegetation and shaded areas; (b) Walking/jogging tracks with proper surfacing and illumination; (c) Installation of seating areas (benches), children’s play equipment, and fitness zones wherever feasible; (d) Lighting, drainage, and safety features ensuring usability during all hours of public operation; (e) Signage indicating that the space is public in nature and maintained under the authority of the local body.

(vii) The entire open space shall be formally handed over to the Municipal Corporation or the local planning authority (as the case may be) within 90 days of the date of obtaining the Occupation Certificate for the rehabilitation component.

(viii) The State Government, through the MCGM and the SRA, shall ensure that no new encroachment is permitted or allowed to occur after the reservation of land as open space in the sanctioned Development Plan.

(ix) The MCGM shall, within 90 days of the upload of this judgement on the website of this Court, prepare a ward-wise action plan listing all reserved open spaces and submit the same to the UDD.

(x) The MCGM shall, with the assistance of MahaIT and the State Remote Sensing Application Centre, complete a GIS-based mapping and geo-tagging of all plots designated as open space in the sanctioned Development Plan, including their current usage status, within a period of 4 months.

Senior Advocate Shiraz Rustomjee represented the Petitioners while Senior Advocates Anil Y. Sakhare, Milind Sathe, and Ram Apte represented the Respondents. Senior Advocates Pravin K. Samdani and Ashish Kamat represented the Applicant and Intervenor respectively.

Factual Background

The grievance in this case revolved around the State’s Notification issued in the year 1992 by the Urban Development Department (UDD), and also challenged the later Regulation 17(3)(D)(2) of the Development Control and Promotion Regulations, 2034 (DCPR 2034), which was brought into effect by an amendment notified in the year 2022. 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 submitted 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, was directly against the letter and spirit of sustainable development and the 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.

Court’s Observations

The High Court after hearing the contentions of the counsel, observed, “Basic elements such as clean air, safe water, and accessible green open areas like parks, maidans, and recreational grounds, can no longer be viewed as mere conveniences. They are essential parts of urban life. … We are deeply aware of the serious shortage of open spaces in the city of Mumbai. The data presented sourced from official surveys and civic reports clearly shows this. The per capita open space available in Mumbai is much lower than international and even national planning standards. This shortage is made worse by increasing population, unplanned urban growth, and competing demands for land.”

The Court said that in several city wards, the open space available per person is so low that it is measured in square feet, not square metres and the effects of this shortage are not just theoretical—they are visible in daily life through rising stress levels, poor air quality, lack of play areas for children and recreational space for the elderly, and a general decline in the overall quality of life.

“While the State has the power to make planning and land use policies, such policies cannot override constitutional protections under Article 21. The role of the Court is not to interfere in planning or governance, but to ensure that the minimum standard of environmental dignity, as guaranteed by the Constitution, is not violated. … any urban development policy or regulation that allows conversion of reserved open spaces into built-up areas must be tested carefully. It must not only be checked against the text of the law, but also its impact on the environment and public health of the city. Regulation 17(3)(D)(2) must be examined with this approach in mind”, it further emphasised.

The Court was of the opinion that the real environmental issue is not the existence of slums, but that they are unregulated and unplanned and the answer lies in redevelopment—transforming these areas into formal, safe housing, while restoring open spaces wherever possible.

“… the vision put forward by the petitioner, while well-intentioned and environmentally conscious, is constitutionally incomplete. The right to environment and the right to shelter are both fundamental. The Constitution expects us to find a balance, not choose one over the other. … The constitutional duty of this Court is not to enforce one right by ignoring the other. Our task is to ensure that both the rights under Article 21 that is, the right to a clean environment and the right to shelter are protected together in a way that maintains constitutional balance”, it also remarked.

The Court said that a house without basic living conditions is not truly a shelter, and a clean city that excludes the poor from access to it cannot be called fair or just.

“After giving our careful thought to the matter and keeping in mind the constitutional values that lie at the heart of this issue, we are of the clear view that the impugned Regulation does not violate the right to a clean and healthy environment under Article 21 in such a manner that would require the Court to strike it down. A Court can strike down a delegated legislation, especially one that is made under statutory authority and after public consultation, only in cases of clear and serious constitutional violations. That standard, in our opinion, is not met in the present case”, it held.

Furthermore, the Court observed that the application of the public trust doctrine in this case does not lead to the invalidation of the Regulation.

“That being said, our conclusion that Regulation 17(3)(D)(2) is constitutionally valid does not mean that it can be implemented in an unrestricted or casual manner. The public trust doctrine, though not found to be violated in this case, continues to remain an important constitutional safeguard”, it clarified.

The Court also said that merely showing 35% as open space on paper is not sufficient and this portion must not become a leftover patch of land, oddly shaped, poorly located, or unusable due to bad design or neglect.

“In order to uphold the public trust in open spaces, and to protect the right to a clean and inclusive urban environment under Article 21 of the Constitution, we hold that the 35% open space retained under the Regulation must satisfy the following mandatory conditions:

(i) It must be clearly shown in the approved layout plan, so that its location, size, and shape cannot be later changed, shifted, or reduced arbitrarily;

(ii) It must be properly developed with standard features expected of a public park, such as green landscaping, walking or jogging tracks, lighting, benches, play equipment for children, and, wherever suitable, areas for public fitness or social interaction;

(iii) It must be kept free from any further encroachment or construction, except for basic utilities necessary for public use of the open space;

(iv) It must be handed over to the municipal authority within a reasonable and specified time frame, along with a budget or allocated funds to ensure its regular upkeep and long-term maintenance;

(v) It must remain open and accessible to the general public, including citizens living nearby, and must not be fenced off or restricted only to the residents of the rehabilitation project”, added the Court.

Conclusion

The Court held that Sections 3X(a), 3X(c), and 3Z serve important social functions and are not unconstitutional and Section 3Z(2) is the operative balancing tool. It further noted that "larger public interest" under Section 3Z(2) includes the implementation of Development Plan reservations, subject to the facts of each case.

“In-situ rehabilitation is a policy guideline and not an absolute rule. The statutory scheme of the Slum Act and the MRTP Act can be harmoniously construed to serve both social welfare and planned urban development. … We hold that Regulation 17(3)(D)(2) of the Development Control and Promotion Regulations, 2034 is well within the powers delegated to the State Government under the Maharashtra Regional and Town Planning Act, 1966”, it also held.

The Court, therefore, declined to strike down Regulation 17(3)(D) (2).

Accordingly, the High Court dismissed the Writ Petition to the above extent and issued necessary directions.

Cause Title- NGO Alliance for Governance and Renewal (NAGAR) & Ors. v. State of Maharashtra & Ors. (Neutral Citation: 2025:BHC-OS:8963-DB)

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