Bombay HC Upholds Slum Rehab Policy On Open Spaces, Mandates 35% Green Space, BMC Monitoring

Mumbai: In a significant judgment balancing housing needs with environmental concerns, the Bombay High Court has upheld the legality of a State policy permitting slum rehabilitation projects on open spaces reserved for public amenities like parks and playgrounds, provided that a minimum of 35% of such plots is preserved as continuous, publicly accessible green space.

The court upheld the validity while deciding a public interest litigation filed by NGO Alliance for Governance and Renewal (NAGAR), which had challenged both a 1992 Government Notification and the more recent Regulation 17(3)(D)(2) of the Development Control and Promotion Regulations, 2034 (DCPR 2034). NAGAR’s counsel Shiraz Rustomjee argued that allowing construction on open plots reserved for recreational use violates the constitutional right to a healthy environment and undermines the public trust doctrine.

However, a bench of Justices Amit Borkar and Somasekhar Sundaresan declined to strike down the policy. The court remarked that it was not an “arbitrary executive action” but a regulatory framework introduced through a legally structured policy-making process. It emphasised that the policy was brought in after public consultation and expert review, aimed at resolving two pressing urban challenges: encroachments on public land and the urgent need to rehabilitate slum dwellers in-situ.

“We find no procedural irregularity or legal flaw in the way the Regulation was enacted. Hence, it is valid in law,” the bench said in a detailed 191-page judgment. “sThe 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 space is not acceptable. 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.”

NAGAR had argued that the amendment to DCPR 2034, brought into force in 2022, significantly dilutes protections for open spaces by reducing the minimum plot size eligible for redevelopment from 1,000 to 500 square metres and by allowing 65% of such plots to be used for construction.

The NGO contended that this legalises encroachments and results in the “permanent and irreversible” loss of public spaces, especially in a city like Mumbai where official studies have found that the per capita open space is less than one square metre.

The court, while recognising the critical need to preserve green spaces, rejected the plea to read down the law. It pointed out that lands already fully encroached by informal housing “do not hold the same ecological importance as a lake, forest or wetland”.

It added: “This is not a case where land is being handed over for private benefit or where there is abuse of power. Rather, it is a case where the State, following due legal process, has framed a policy which tries to serve both environmental and social goals.”

At the same time, the court issued a series of stringent directions to ensure that the policy does not become a tool for indiscriminate construction. It held that the 35% open space mandated by the regulation must be retained in “one contiguous, functional stretch, not broken up into unusable fragments”.

This green area, the court said, must be clearly demarcated at the time of planning approval, developed as a public park with landscaping, lighting, play equipment, and seating, and handed over to the BMC within 90 days of the project’s completion.

“The open space shall be treated as a public amenity and not a private area for use only by residents of the rehab buildings,” the court stressed. “It must remain open and accessible to the general public, including other residents in the surrounding area.”

To prevent misuse, the court directed the BMC and the Slum Rehabilitation Authority to set up a special monitoring cell headed by a senior officer. This cell will conduct quarterly inspections, upload status reports online, and ensure that violations—such as exceeding the 65% construction cap or fencing off the open space—are addressed promptly.

The court also directed the State to complete GIS-based mapping and geo-tagging of all reserved open spaces within four months, and to upload the data publicly. Within 24 months, the government must conduct a full review of the regulation’s impact on environmental and urban health, consult stakeholders, and evaluate whether the 35:65 ratio adequately serves the goals of sustainable development.

Crucially, the court underlined that its endorsement of the policy was not unconditional. “Our decision should not be read as giving a free hand to the State to reduce open spaces in the city. The responsibility to maintain and increase open spaces continues,” the bench said. “Preserving what remains is not enough. The city needs new and better open spaces for its growing population.”

The HC has kept the plea for compliance review on December 4.

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