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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.10192 OF 2010

JANHIT MANCH THROUGH ITS PRESIDENT  BHAGVANJI RAIYANI & ANR.   ……APPELLANTS

Versus

THE STATE OF MAHARASHTRA & ORS. ….RESPONDENTS

J U D G M E N T

SANJAY KISHAN KAUL, J.

1. The expanding population of rural and urban areas has created its own

problems,  insofar  as  civic  amenities  are  concerned.   The  problem  is

aggravated in metropolitan cities, where there is movement of population

with the prospect of better livelihood.  Lack of opportunities for employment

has compelled people to leave their home and hearth.  We are concerned in

the present matter with the consequences of such mobility of population.

2. Mumbai is perceived to be a city that fulfills the dreams of many. The

movement of population has thus been manifold,  putting a strain on civil

services and open areas, including to play grounds and streets.  There has

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been vast encroachment on public lands by people who have migrated, or

otherwise,  and  who  could  not  find  reasonable  accommodation  for  their

residence.  There has been growth of slum areas, thereby blocking access to

public  land.   The  density  of  construction  was  therefore  required  to  be

upscaled to meet the pressing needs of the population. One methodology to

address the issue, devised by the State, was that of awarding development

rights, as defined in Section 2(9A) of the Maharashtra Regional  and Town

Planning Act, 1966 (hereinafter referred to as the said Act), which provides as

follows:

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

A  Transferable  Development  Right  (hereinafter  referred  to  as  ‘TDR’)  is

therefore a voluntary, incentive-based programme allowing land owners to

sell development rights from their land to a developer, or to other interested

parties, who  can  then  use  these  rights  to  increase  the  density  of

development at another designated location.   

3. In order to understand this concept, we would like to further elucidate

that  the  object  is  to  give  compensation  in  a different  way,  to  private

landowners who have transferred a portion of their land to the Government

as and when the Government  has required such private land to  build  or

expand public utilities like grounds, gardens, bus stands, roads, etc.  The

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alternate mode of compensation, instead of payment of money is TDR, which

is nothing but a development potential, in terms of increased Floor Space

Index (hereinafter referred to as ‘FSI’) awarded in lieu of the area of land

given, conferred in the form of a Development Rights 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 TDR for  himself  or  to sell  it  in  the open

market.

4. The other concept which would have to be dealt with in the context of

the present  dispute is  that of  Floor Area Ratio (hereinafter  referred 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 can be utilized in the zoning

process, to limit urban density.  It may be noted that often FAR and FSI are

used as interchangeable terminologies and what is taken into account is the

carrying capacity/infrastructure and amenities of  an area, which would, in

turn, have a direct impact on public health, safety and the right to life of the

occupants of the area.  Illustratively, if a plot of land measures 1000 sq. mts

and the permissible FSI is 1, then about 1000 sq. mts. is permissible to be

built on that plot of land.  

5. Now, turning to the problem referred to aforesaid, of the expanding

slums; the Government of Maharashtra has launched a comprehensive slum

rehabilitation scheme by introducing an innovative concept of using land as a

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resource and allowing FSI as an incentive, in the form of tenements for sale

in  the  open  market,  for  cross-subsidization  of  the  slum  rehabilitation

tenements, which are to be provided free of cost to the slum-dwellers.  The

petition  arises  out  of  a  prayer  of  the  petitioner  to  effectively  review the

existing  Development  Control  Regulations  for  Greater  Bombay,  1991

(hereinafter  referred  to  as  ‘DCR’).   Appellant  No.1  claims  to  be  an  NGO

espousing legal issues concerning the State and the Nation, in larger public

interest, while the second appellant is the President of the first appellant.  A

perusal of the pleadings and the impugned judgment shows that the primary

question which occasioned the Division Bench of the Bombay High Court to

examine the matter was whether the State, on account of financial inability

to provide housing to encroachers on public and private lands, residing in

structures which came up before 1.1.1995, could grant TDR to builders to be

used in the suburbs of Mumbai, by permitting increase of FSI from 1 to 2.

This was occasioned on account of the protection granted from eviction and

the inability of the State to free parks, gardens, footpaths and roads from

encroachment for which, in the wisdom of the Government, they chose a cut-

off date of  1.1.1995.   The original  prayers  show that  the concern of  the

petitioner was to stop the grant of TDR in certain specified areas as under:

“(i)        Between the tracks of the Western Railway and the Swami Vivekanand Road;

(ii) Between the tracks of the Western Railway and the Western Express Highway;

(iii) Between  the  tracks  of  the  Central  Railway  (Main Line) and the Lal Bahadur Shastri Road.”

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The  inter-linked  prayers  were  for  constituting  an  expert  body  of  social

activists, architects, lawyers, bureaucrats etc. to review the TDR policy and

to lay down parameters  to  restrict  the discretionary  powers  given to the

Municipal  Commissioner,  of  the  Brihanmumbai  Municipal  Corporation

(hereinafter referred to as ‘BMC’), under DCR Regulation No.64, specifically in

matters of concessions in open spaces and parking, in consultation with the

Committee.

6. The appellant, through amendments, thereafter expanded the scope of

the petition to lay a challenge to the aforesaid regulation, on the ground that

it was  ultra vires the Constitution of India, and to quash Appendix VII A &

Appendix VII B of DCR insofar as they deal with the use of heritage and slum

TDR in the three prohibited zones.  There were many impediments in the way

of the appellants, for their petition to be entertained.  Firstly, the challenge

to the DCR had already been rejected by the judgment of the Division Bench

of the Bombay High Court in Nivara Hakk Suraksha Samiti and Ors v. State of

Maharashtra and Ors.,1 dated 16th April, 1991.  However, it may be stated

that a window was provided by the Division Bench of the High Court which

observed,  in  the  impugned  order,  that  it  was  permissible  to  permit  a

challenge in case of violation of Part III of the Constitution of India.

1 Writ Petition (Civil) No. 963 of 1991

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7. The second aspect was that the appellants were not new in Mumbai,

and yet they had not objected when the TDR concept was implemented in

1991 and, even when it  was implemented in the corridors in question, in

1997.  The petition was filed only in 2003.  In this interim period of time,

there was large scale implementation of the TDR concept and various slums

were cleared by spending vast monies.  

8. Thirdly and most importantly, the second appellant himself is a builder

who was residing in a building constructed by the use of TDR in Deepak Villa,

Vallabh Nagar Society, J.V.P.D. Scheme, Mumbai, at the time of filing of the

petition.  Apparently, appellant No.2 had failed to get advantage of the Slum

Regulation Scheme, and thus a defence was raised 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 petitions were attributed with the motive of

attempting to manipulate the prices of properties.  The use of TDR in corridor

areas  had  resulted  in  prices  in  the  western  suburbs  to  have  fallen

substantially since there was a boost in the housing sector, which in turn had

hurt  the commercial  interest of  builders,  including that  of the appellants.

The issue was further aggravated by the fact that the second appellant is a

partner of  a firm by the name La Builde Associates,  which had executed

several projects in the suburbs of Mumbai.  A Writ Petition No.1080 of 2003

was filed in  the name of  the said firm, assailing grant  of  TDR towards a

competing party in a tender.  This petition was dismissed on 28.4.2003.  The

present petition is stated to be a sequitur r to that insofar as it was moved

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only after  the earlier  petition,  that  is  Writ  Petition No.1080 of  2003,  was

dismissed, and thus having failed in the earlier proceedings and tender, an

endeavor was 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 appointed an

amicus curiae to assist the court.  Respondents, however, pleaded that there

was appropriate application of mind before an FSI of 2 was permitted, in any

suburb, by utilization of the concept of TDR.  The open spaces, water supply,

sewerage and other infrastructure in such area were also taken note of.  The

necessity of using such methodology and employing TDRs, on account of the

vast increase in population density was emphasized.  The TDR policy was

also stated to have a statutory flavor, in view of it being contained in Section

9(a) and Section 126 of the said Act.  No challenge had been laid to these

provisions.   The TDR was stated to have worked as  an effective tool  for

acquiring lands for utilities, amenities, playgrounds, recreation grounds etc.

TDR had its conception in the Draft Regulation Bill of 1984, which Bill was

followed by the recommendation of the Dsouza Committee in 1987. The said

recommendations  finally  found  reflection  in  the  Development  Control

Regulations, which came into force in March 1991.  All these envisaged a

public consultation process. The impugned judgment deals with it extremely

elaborately,  to say the least.   In  terms of  the impugned judgment dated

20.11.2006, the Court not sitting in appeal to review legislative actions was

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rightly emphasized. The Court held that only when a legislation fails to keep

within its legislative limits, would an occasion arise for the court to strike

down the law.  This was not found to be so in the present case.  The DCR,

forming part  of  the Development Plans, are liable to be revised every 20

years, which is a circumstance that mitigates any plea of arbitrariness.  The

result of the exercise of the test of unreasonableness of a legislation must

fall  within the category of  ‘manifest arbitrariness’.    A number of  judicial

precedents on the scope of judicial review have been cited in the impugned

order, and no useful purpose would be served by referring to them again.

10. The provisions of the said Act and the DCR have been scrutinized in

great detail.  In the larger public interest, certain directions have been issued

to the following effect:

“(1). We  have  noted  that  the  existing  infrastructure  in terms of Parks, Play grounds, open spaces, water supply, sanitation  and sewerage disposal,  ambient  quality  of  air and  public  transport  is  inadequate.  There  is  serious congestion on roads and railways. Yet considering the cut off date as 1.1.1995 which shall not be extended further and  bearing  in  mind  the  object  behind  the  Slum Rehabilitation  Scheme  for  those  residing  in  slums  or protected structures before 1.1.1995, we have rejected the challenge under Articles 14 and 21.

(2) The fees/compensation received by Respondent No. 2 from the exercise of discretionary powers under Regulation 64(b) by Respondent No. 2 or by Respondent No. 1, are directed  to  be  kept  under  a  separate  revenue  head  for providing  and  maintaining  parks,  Play  grounds,  open spaces and such other amenities in the city of Mumbai. The wards from where the revenue is collected, however will have the first right on that Revenue for making provisions for parks, Play grounds and such other amenities, as the

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revenue  is  generated  from those  wards  by  relaxing  the dimensions of space.

(3) Considering the complaints by the petitioners that the Respondent  No.  2  is  not  acting  on  the  complaints, Respondent No. 2 to set up a mechanism in the form of a Scheme in each ward, within eight weeks from today by designating officers by posts, to whom the citizens can file their  complaints.  The  outer  time  limit  be  also  fixed  for deciding those complaints. The mechanism be put up on the website of Respondent No. 2. This mechanism to be also published in two leading Newspapers in the English language and one newspaper each, in Marathi, Hindi and Gujarati languages.

(4) We have recorded the statement made by the learned Advocate  General  that  the  process  of  new development plan will commence in 2008. We have however, noted that in respect of the development plan published in the year 1991, the process had taken a long time. Considering that, Respondent No. 1 to consider initiating steps at the earliest for  putting  into  place  the  mechanism  for  starting  the process of the new development plan for 2011.”

11. We have heard the petitioner-in-person and wondered what grievance

of  his  still  survives!   We specifically  put  this  question to him also in  the

context of the fact that the High Court had examined the matter in such

great detail. It is also appropriate to emphasise that local problems must be

attended to locally.  The High Court is a Constitutional Court.  The State Court

is  best  equipped  to  look  into  local  matters,  especially where  the  area

development and zoning regulations of the state or the city are in question.

The problems and solutions may vary from state to state.  It is really not for

this  Court  to  sit  as  an  appellate  court  over  these  matters,  unless  some

patent illegality is shown, or it is shown that there is any contravention  of

the constitutional mandate.  We find no such case made out, here.

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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,  for

example, pleas were raised, inter alia, for post approval impact assessment

on environment and not only a prior environment impact assessment of the

DCR;  that  there  was  no  genuine  endeavor  to  provide  alternative

accommodation  to  slum dwellers,  but  it  was  only  vote  bank  politics,  as

evidenced  by  repeated  extensions  of  deadlines  for  providing  alternative

accommodations;  that the  new  development  plan  continued  to  offer  FSI

incentive to land owners; that the Commissioner exercises powers, in respect

of  FSI,  almost  as  a  mandatory  requirement  rather  than  a  discretionary

exercise; that there has been an increase in vehicular traffic in the city of

Mumbai; that the increase in FSI has led to an influx of population in various

regions in Mumbai; that the Pradhan Mantri Avas Yojana Scheme providing

‘pucca ghar’ to the population would result 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 at  different

levels, starting from the level of Village Panchayats, Nagar Palikas, Municipal

Authorities, Legislative Assemblies and the elected Parliament; each of them

has  a  role  to  perform.   In  aspects,  as  presented  in  the  instant  case,  a

consultative process is always helpful, and is one which has already been

undertaken.  The philosophy of appellant no.2 cannot be transmitted as a

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mandatory policy of the government, which is what would happen were a

mandamus to be issued on the prayers made.  Perspective of  individuals

may vary, but if the elected bodies which have policy formulation powers, is

to be superceded by the ideals of each individual,  the situation would be

chaotic.  The policies formulated and the legislations made, unless they fall

foul of the Constitution of India, cannot be interfered with, at the behest of

the appellants. The appellants have completely missed this point.

14. We  are  unequivocally  of  the  view  that  the  High  Court  has  already

examined, in detail, the issues that were raised in the present  lis, and has

issued whatever directions were feasible, keeping in mind the enormity of

the problem.  Nothing more is required.

15. We, thus, dismiss the appeal leaving it open to the parties to bear their

own costs.

                                      …….. ………………………….CJI

[RANJAN GOGOI]  

……..……………………………….J.                                                                             [SANJAY KISHAN KAUL]

……..……………………………….J.                                   [K. M. JOSEPH]

NEW DELHI. DECEMBER 14, 2018