Bombay HC Upholds Slum Rehab on Reserved Lands, Highlights Shelter–Environment Balance

In a recent ruling that shapes Mumbai's urban landscape, the Bombay High Court has upheld the validity of Regulation 17(3)(D)(2) of the Development Control and Promotion Regulations (DCPR) 2034, which permits slum rehabilitation on reserved open spaces. The court held that urban development must strike a balance between the right to shelter and the right to a clean environment.

In a 191-page judgment, a division bench of 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.”

As per the regulation, up to sixty-five per cent of land reserved for parks, gardens, playgrounds, or maidans can be used for slum rehabilitation, while thirty-five per cent must be retained and developed as open space.

The High Court held that this approach seeks to recover some environmental benefit from already encroached land, while also recognising the housing rights of slum dwellers.

“The right to a clean and healthy environment is indeed a part of the right to life under Article 21 of the Constitution. At the same time, the right to shelter, particularly for slum dwellers who form a significant part of Mumbai’s population, is also a fundamental right. Urban planning must therefore strike a careful balance between these competing yet equally important rights,” the court ruled.

The verdict was passed in response to a Public Interest Litigation (PIL) filed by an NGO Alliance for Governance and Renewal (NAGAR) challenging the constitutional validity of Regulation 17(3)(D)(2) of the DCPR 2034.

The petitioner had argued that the regulation legalises large-scale construction on land meant for public use. It was contended that such development violates the principles of sustainable development and the public trust doctrine. The NGO had also submitted that allowing construction on reserved open spaces undermines the right to a clean and healthy environment under Article 21 of the Constitution.

The petitioner further contended that the regulation violates Article 14, arguing that it unjustly favours slum encroachers over the general public and deviates from the original purpose for which the land was reserved.

Rejecting the argument that Regulation 17(3)(D)(2) violated Article 21 of the Constitution, the court held, “We are unable to hold that the impugned regulation falls foul of Article 21,” adding that “preserving open spaces is undoubtedly essential, but it cannot come at the cost of excluding slum dwellers from the city they help sustain.”

Regarding the Article 14 challenge, the court stated that it was neither arbitrary nor unreasonable. The court opined that the Regulation was based on an intelligible differentia, to provide in-situ housing for slum dwellers without displacing them to the city’s outskirts.

On the petitioners' contention that public open spaces are held in trust by the State and cannot be diverted for housing or private development, even under welfare schemes, the court rejected the argument, holding that the public trust doctrine must also account for the needs of the urban poor. It held that in-situ rehabilitation of slum dwellers serves a public purpose, and the regulation strikes a balance by ensuring that 35% of the land is retained for its originally designated use.

Ultimately, the court ruled, "We, therefore, decline to strike down Regulation 17(3)(D)(2). The writ petition, to that extent, stands dismissed. However, keeping in mind the important constitutional values involved, such as the need to protect the environment, the public trust doctrine, the rights of slum dwellers, and the goal of sustainable development, we have exercised our powers under Article 226 of the Constitution and issued specific directions (i) to (xvii) earlier in this judgment,"

 Case Title: NGO Alliance for Governance and Renewal (NAGAR) vs State of Maharashtra