JANHIT MANCH THROUGH ITS PRESIDENT BHAGVANJI RAIYANI & ANR. versus THE STATE OF MAHARASHTRA & ORS. on 14 December 2018

1. The expanding population of rural and urban areas has createdits own problems, insofar as civic amenities are concerned. The problemis aggravated in metropolitan cities, where there is movement ofpopulation with the prospect of better livelihood. Lack of opportunitiesfor employment has compelled people to leave their home and hearth.FWe are concerned in the present matter with the consequences of suchmobility of population.

2. Mumbai is perceived to be a city that fulfills the dreams ofmany. The movement of population has thus been manifold, putting astrain on civil services and open areas, including to play grounds andGstreets. There has been vast encroachment on public lands by peoplewho have migrated, or otherwise, and who could not find reasonableaccommodation for their residence. There has been growth of slumareas, thereby blocking access to public land. The density of constructionwas therefore required to be upscaled to meet the pressing needs of the H

population. One methodology to address the issue, devised by the State,was that of awarding development rights, as defined in Section 2(9A) ofthe Maharashtra Regional and Town Planning Act, 1966 (hereinafterreferred to as the said Act), which provides as follows:

“(9A) “development right” means right to carry out developmentor to develop the land or building or both and shall include thetransferable development right in the form of right to utilise theFloor Space Index of land utilisable either on the remainder of theland partially reserved for a public purpose or elsewhere, as thefinal Development Control Regulations in this behalf provide”

A Transferable Development Right (hereinafter referred to as‘TDR’) is therefore a voluntary, incentive-based programme allowingland owners to sell development rights from their land to a developer, orto other interested parties, who can then use these rights to increasethe density of development at another designated location.

3. In order to understand this concept, we would like to furtherelucidate that the object is to give compensation in a different way, toprivate landowners who have transferred a portion of their land to theGovernment as and when the Government has required such privateland to build or expand public utilities like grounds, gardens, bus stands,roads, etc. The alternate mode of compensation, instead of payment ofmoney is TDR, which is nothing but a development potential, in terms ofincreased Floor Space Index (hereinafter referred to as ‘FSI’) awardedin lieu of the area of land given, conferred in the form of a DevelopmentRights Certificate (hereinafter referred to as ‘DRC’), by the Government.Such TDR or DRC is negotiable and can be transferred for consideration,leaving it open for the owner of the acquired land to either use the TDRfor himself or to sell it in the open market.

4. The other concept which would have to be dealt with in thecontext of the present dispute is that of Floor Area Ratio (hereinafterreferred to as‘FAR’), which is the ratio of a building’s total floor area(gross floor area) to the total area of the plot. The concept of FAR canbe utilized in the zoning process, to limit urban density. It may be notedthat often FAR and FSI are used as interchangeable terminologies andwhat is taken into account is the carrying capacity/infrastructure andamenities of an area, which would, in turn, have a direct impact on publichealth, safety and the right to life of the occupants of the area.

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AIllustratively, if a plot of land measures 1000 sq. mts and the permissibleFSI is 1, then about 1000 sq. mts. is permissible to be built on that plot ofland.

5. Now, turning to the problem referred to aforesaid, of theexpanding slums; the Government of Maharashtra has launched aBcomprehensive slum rehabilitation scheme by introducing an innovativeconcept of using land as a resource and allowing FSI as an incentive, inthe form of tenements for sale in the open market, for cross-subsidizationof the slum rehabilitation tenements, which are to be provided free ofcost to the slum-dwellers. The petition arises out of a prayer of thepetitioner to effectively review the existing Development ControlCRegulations for Greater Bombay, 1991 (hereinafter referred to as ‘DCR’).Appellant No.1 claims to be an NGO espousing legal issues concerningthe State and the Nation, in larger public interest, while the secondappellant is the President of the first appellant. A perusal of the pleadingsand the impugned judgment shows that the primary question whichDoccasioned the Division Bench of the Bombay High Court to examinethe matter was whether the State, on account of financial inability toprovide housing to encroachers on public and private lands, residing instructures which came up before 1.1.1995, could grant TDR to buildersto be used in the suburbs of Mumbai, by permitting increase of FSI from1 to 2. This was occasioned on account of the protection granted fromEeviction and the inability of the State to free parks, gardens, footpathsand roads from encroachment for which, in the wisdom of theGovernment, they chose a cut-off date of 1.1.1995. The original prayersshow that the concern of the petitioner was to stop the grant of TDR incertain specified areas as under:

F“(i)Between the tracks of the Western Railway and the SwamiVivekanand Road;

(ii) Between the tracks of the Western Railway and the WesternExpress Highway; G(iii)Between the tracks of the Central Railway (Main Line)and the Lal Bahadur Shastri Road.”

The inter-linked prayers were for constituting an expert body ofsocial activists, architects, lawyers, bureaucrats etc. to review the TDRpolicy and to lay down parameters to restrict the discretionary powersgiven to the Municipal Commissioner, of the Brihanmumbai MunicipalH

Corporation(hereinafter referred to as ‘BMC’), under DCR RegulationNo.64, specifically in matters of concessions in open spaces and parking,in consultation with the Committee.

6. The appellant, through amendments, thereafter expanded thescope of the petition to lay a challenge to the aforesaid regulation, on theground that it was ultra vires the Constitution of India, and to quashAppendix VII A & Appendix VII B of DCR insofar as they deal withthe use of heritage and slum TDR in the three prohibited zones. Therewere many impediments in the way of the appellants, for their petition tobe entertained. Firstly, the challenge to the DCR had already beenrejected by the judgment of the Division Bench of the Bombay HighCourt in Nivara Hakk Suraksha Samiti and Ors v. State ofMaharashtra and Ors.,[1] dated 16[th] April, 1991. However, it may bestated that a window was provided by the Division Bench of the HighCourt which observed, in the impugned order, that it was permissible topermit a challenge in case of violation of Part III of the Constitution ofIndia.

7. The second aspect was that the appellants were not new inMumbai, and yet they had not objected when the TDR concept wasimplemented in1991 and, even when it was implemented in the corridorsin question, in1997. The petition was filed only in 2003. In this interimperiod of time, there was large scale implementation of the TDR conceptand various slums were cleared by spending vast monies.

8. Thirdly and most importantly, the second appellant himself is abuilder who was residing in a building constructed by the use of TDR inDeepak Villa, Vallabh Nagar Society, J.V.P.D. Scheme, Mumbai, at thetime of filing of the petition. Apparently, appellant No.2 had failed to getadvantage of the Slum Regulation Scheme, and thus a defence wasraised by the respondents, to the petition that it was a mala fide attempt,couched in the form of a public interest litigation. In fact, the petitionswere attributed with the motive of attempting to manipulate the prices ofproperties. The use of TDR in corridor areas had resulted in prices inthe western suburbs to have fallen substantially since there was a boostin the housing sector, which in turn had hurt the commercial interest ofbuilders, including that of the appellants. The issue was further aggravatedby the fact that the second appellant is a partner of a firm by the name A

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ALa Builde Associates, which had executed several projects in the suburbsof Mumbai. A Writ Petition No.1080 of 2003 was filed in the name ofthe said firm, assailing grant of TDR towards a competing party in atender. This petition was dismissed on 28.4.2003. The present petitionis stated to be a sequitur r to that insofar as it was moved only after theearlier petition, that is Writ Petition No.1080 of 2003, was dismissed, andBthus having failed in the earlier proceedings and tender, an endeavorwas made in the second proceedings, in the form of this present petition.

9. The High Court, however, despite these various impediments,considered the issue important enough to examine, and even appointedan amicus curiae to assist the court. Respondents, however, pleadedCthat there was appropriate application of mind before an FSI of 2 waspermitted, in any suburb, by utilization of the concept of TDR. The openspaces, water supply, sewerage and other infrastructure in such areawere also taken note of. The necessity of using such methodology andemploying TDRs, on account of the vast increase in population densityDwas emphasized. The TDR policy was also stated to have a statutoryflavor, in view of it being contained in Section 9(a) and Section 126 ofthe said Act. No challenge had been laid to these provisions. The TDRwas stated to have worked as an effective tool for acquiring lands forutilities, amenities, playgrounds, recreation grounds etc. TDR had itsconception in the Draft Regulation Bill of 1984, which Bill was followedEby the recommendation of the Dsouza Committee in 1987. The saidrecommendations finally found reflection in the Development ControlRegulations, which came into force in March 1991. All these envisageda public consultation process. The impugned judgment deals with itextremely elaborately, to say the least. In terms of the impugned judgmentFdated 20.11.2006, the Court not sitting in appeal to review legislativeactions was rightly emphasized. The Court held that only when alegislation fails to keep within its legislative limits, would an occasionarise for the court to strike down the law. This was not found to be so inthe present case. The DCR, forming part of the Development Plans, are liable to be revised every 20 years, which is a circumstance thatGmitigates any plea of arbitrariness. The result of the exercise of the testof unreasonableness of a legislation mustfall within the category of‘manifest arbitrariness’. A number of judicial precedents on the scopeof judicial review have been cited in the impugned order, and no usefulpurpose would be served by referring to them again.

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JANHIT MANCH THR. ITS PRESIDENT BHAGVANJI RAIYANI v.THE STATE OF MAHARASHTRA [SANJAY KISHAN KAUL, J.]

10. The provisions of the said Act and the DCR have beenscrutinized in great detail. In the larger public interest, certain directionshave been issued to the following effect:

“(1). We have noted that the existing infrastructure in terms ofParks, Play grounds, open spaces, water supply, sanitation andsewerage disposal, ambient quality of air and public transport isinadequate. There is serious congestion on roads and railways.Yet considering the cut off date as 1.1.1995 which shall not beextended further and bearing in mind the object behind the SlumRehabilitation Scheme for those residing in slums or protectedstructures before 1.1.1995, we have rejected the challenge underArticles 14 and 21.

(2) The fees/compensation received by Respondent No. 2 fromthe exercise of discretionary powers under Regulation 64(b) byRespondent No. 2 or by Respondent No. 1, are directed to bekept under a separate revenue head for providing and maintainingparks, Play grounds, open spaces and such other amenities in thecity of Mumbai. The wards from where the revenue is collected,however will have the first right on that Revenue for makingprovisions for parks, Play grounds and such other amenities, asthe revenue is generated from those wards by relaxing thedimensions of space.

(3) Considering the complaints by the petitioners that theRespondent No. 2 is not acting on the complaints, RespondentNo. 2 to set up a mechanism in the form of a Scheme in eachward, within eight weeks from today by designating officers byposts, to whom the citizens can file their complaints. The outertime limit be also fixed for deciding those complaints. Themechanism be put up on the website of Respondent No. 2. Thismechanism to be also published in two leading Newspapers in theEnglish language and one newspaper each, in Marathi, Hindi andGujarati languages.

(4) We have recorded the statement made by the learned AdvocateGeneral that the process of new development plan will commencein 2008. We have however, noted that in respect of thedevelopment plan published in the year 1991, the process hadtaken a long time. Considering that, Respondent No. 1 to consider ABC

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Ainitiating steps at the earliest for putting into place the mechanismfor starting the process of the new development plan for 2011.”

11. We have heard the petitioner-in-person and wondered whatgrievance of his still survives! We specifically put this question to himalso in the context of the fact that the High Court had examined theBmatter in such great detail. It is also appropriate to emphasise that localproblems must be attended to locally. The High Court is a ConstitutionalCourt. The State Court is best equipped to look into local matters,especially where the area development and zoning regulations of thestate or the city are in question. The problems and solutions may varyfrom state to state. It is really not for this Court to sit as an appellateCcourt over these matters, unless some patent illegality is shown, or it isshown that there is any contravention of the constitutional mandate.We find no such case made out, here.

12. Appellant No.2, appearing in-person on behalf of the appellants,really sought to put forth what he thinks would be best for the city. Thus,Dfor example, pleas were raised, inter alia, for post approval impactassessment on environment and not only a prior environment impactassessment of the DCR; that there was no genuine endeavor to providealternative accommodation to slum dwellers, but it was only vote bankpolitics, as evidenced by repeated extensions of deadlines for providingEalternative accommodations; that the new development plan continuedto offer FSI incentive to land owners; that the Commissioner exercisespowers, in respect of FSI, almost as a mandatory requirement ratherthan a discretionary exercise; that there has been an increase in vehiculartraffic in the city of Mumbai; that the increase in FSI has led to an influxof population in various regions in Mumbai; that the Pradhan MantriFAvas Yojana Scheme providing ‘pucca ghar’ to the population wouldresult in further influx into Mumbai, etc.

13. We have to keep in mind the principles of separation of powers.The elected government of the day, which has the mandate of the people,is to take care of policy matters. There is a democratic structure atGdifferent levels, starting from the level of Village Panchayats, NagarPalikas, Municipal Authorities, Legislative Assemblies and the electedParliament; each of them has a role to perform. In aspects, as presentedin the instant case, a consultative process is always helpful, and is onewhich has already been undertaken. The philosophy of appellant no.2Hcannot be transmitted as a mandatory policy of the government, which JANHIT MANCH THR. ITS PRESIDENT BHAGVANJI RAIYANI v.THE STATE OF MAHARASHTRA [SANJAY KISHAN KAUL, J.]

is what would happen were a mandamus to be issued on the prayersmade. Perspective of individuals may vary, but if the elected bodieswhich have policy formulation powers, is to be superceded by the idealsof each individual, the situation would be chaotic. The policies formulatedand the legislations made, unless they fall foul of the Constitution ofIndia, cannot be interfered with, at the behest of the appellants. Theappellants have completely missed this point.

14. We are unequivocally of the view that the High Court hasalready examined, in detail, the issues that were raised in the present lis,and hasissued whatever directions were feasible, keeping in mind theenormity of the problem. Nothing more is required.

15. We, thus, dismiss the appeal leaving it open to the parties tobear their own costs.

Divya Pandey

Appeal dismissed.

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