-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT WRIT WRIT PETITION NO. 637 OF 2003 PETITION NO. 637 OF 2003 PETITION NO. 637 OF 2003 1.Janhit Manch, ) Kuber Bhuvan, Bajaj Road, ) Vile Parle (West), ) Mumbai-400 056. ) 2.Bhagvanji Raiyani, the President) of the 1st Petitioner, residing ) at Sahakar, 13, Hatkesh Society ) 6th Road, Juhu Scheme, Vile ) Parle (West), Mumbai-400 056. )..PETITIONERS Versus 1.The State of Maharashtra ) through its Principal Secretary ) Urban Development Department, ) Mantralaya, Mumbai-400032. ) 2.The Brihanmumbai Municipal ) Corporation (Bmc.) through its ) Commissioner, Mahapalika Marg, ) Mumbai-400 001. ) 3.Jvpd Tenants & Residents ) Association, C/o. Walkman, ) Kamal Kunj, Road No.4, Juhu ) Scheme, Vile Parle (West), ) Mumbai-400 056 ) through its Secretary Shri ) Utasal Karani, Residing at ) Hem Niketan, N.S.Road No.5, ) Suvarna Nagar Society, Vile ) Parle (West), Mumbai-400 056. ) 4.Slum Rehabilitation Authority, ) 5th Floor, Griha Nariman Bhavan,) Bandra (E), Mumbai-400 051. ) 5.The Maharashtra Chamber of ) Housing Industry 9, Ruby House, ) 113 Lady Jamshedji Road, Opp. ) Sitladevi Temple, Mahim (West) ) Mumbai-400 016. ) 6.M/s.Shah Construction Company ) 24-A Shree Laxmi Niwas, M.G.Road) Ghatkopar (West), Mumbai-400 086) 7.M/s.Gurukrupa Developers, ) Neelam Industrial Estate, ) Shantilal Mody Cross Road No.2, ) Kandivali (West), Mumbay-400 067) 8.Cable Corporation of India Ltd. ) -2- Laxmi Building, 6, Shoorji ) Vallabhdas Marg, Mumbai-400 001.) 9.Harshad P. Mehta, Mehta Mahal ) Dadasaheb Phalke Road, Dadar, ) (West), Mumbai-400 028. ) 10. M/s.Natwar Parikh & Co., ) Pvt. Ltd., Natwar Parikh ) House, 107-109, P.D’Mello Road ) Mumbai-400 009. )..RESPONDENTS Mr. Aspi Chinoy, Senior Counsel, Amicus Curaie, present. Mr. B. Rayani, President of Petitioner in person present. Mr. Ravi M.Kadam, Advocate General with Mr.Niranjan Pandit, Asst. Govt. Pleader for Respondent No.1. Mr. K.K. Singhvi, Senior Counsel with Mrs.P.A. Purandhare & Mr. V. Mahadik for Respondent No.2. Dr. Virendra V. Tulzapurkar, Senior Counsel, with Mr. S.G. Surana for Respondent No.4. Dr. Virendra V. Tulzapurkar, Senior Counsel, with Mr. D.J. Khambatta and Mr. Rahul Dwarkadas i/by M/s. Wadia Ghandy & Co. for Respondent No.5. Mr. Janak Dwarkadas, Senior Counsel, with Mrs. Madhavi Divan, Mr. Paresh Shah and Ms.Pooja Bhatia i/by M/s.Shah & Sanghavi for Respondent Nos.6 & 7 and for Applicants in N/M. Nos. 469/04 & 540/05 & Ch/S.No.82/06. Mr. D.J. Khambatta, Sr. Counsel with Mr. Rahul Dwarkadas i/by Wadia Ghandy & Co. for Respondent No.10. Mr. Aniruddha Joshi i/by T.S. Patwardhan for Applicant in N/M.No.535/04 & 562/04. Mr. J. Reis, with Mr. H.V. Gala for Applicant in N/M. No.577/04. Mr. T.N Subramaniam, Sr. Counsel i/by Ghanekar & Co. for Applicant in N/M. No.712/04 & Ch/S.No.242/04. Mr. Milind Sathe, Senior Counsel, with Ms. Usha Gadagkar i/by. M/s. Khona & Kayser, for -3- Applicants in N/M. No.204/05. Mr. R.S. Deshpande for Applicant in N/M. No.222/05 & Ch/S.No.101/05. Mr. Snehal K. Shah i/b. Purnanand & Co. for Applicants in N/M.No.451/05. Mr. Aniruddha Joshi i/by L.J. Law for Applicant in N/M.No.473/05. Mr. T.N. Subramaniam, Sr.Counsel i/b. Purnanand & Co. for Applicants in N/M.Nos.388/05 & 422/05. Mr. Aniruddha Joshi i/by Mr. Nivit Srivastava for Applicant in N/M.No.285/05. Mr. M.S. Rane, i/b. Purnanand & Co. for Applicants in N/M.Nos.481/05 & 481/05. Mr. S.K.Sen with Mr.R.A.K. Nijam Sani for Applicant in N/M. No.401/05. Mr. F. Pooniwala with Mr. Y.R. Shah for Applicant in Ch/S.No.305/05. Mr. Firoz Ansari, for Applicant in N/M. No.477/04. Mr. Atul G. Damle for Applicant in N/M. No.537/04. Ms. Deepa Chavan i/by. Mr. Prasannna Sarpotdar for Applicant in N/M. No.67/05 & 68/05. Mr. M.U. Pandey for Applicant in N/M. No.100/05 & 53/06. Mr. J.S. Kini for Applicant in N/M. No.136/05. Mr. Raval Shah for Applicant in N/M. No.250/05. Mr. Rajiv Narulla i/by. Jhangiani Narulla & Associates for Applicant in N/M. No.330/05. Mr. Niranjan Lapasia i/by. Niranjan & Co., for Applicant in N/M. No.375/05. Mr. Viral Vora for Applicant in N/M. No.385/05. Ms. Snehal Paranjpe i/by Little & Co., for Applicant in N/M. No.403/05. -4- Mr. L.D. Shah i/by L.D. Shah & Co. for Applicant in N/M. No.423/05. Mr. D.S. Sakhalkar for Applicant in N/M. No.521/05 & 524/05. Mr. Manojkumar Upadhyay for Applicant in N/M. No.522/05, 523/05 & 545/05. Mr. Girish Lodha for Applicant in Ch/S.No.219/04. Mr. Satyan Vora for Applicant in Ch/S.No.277/04. Mr. Ketan R. Parikh, Applicant-in-person in Ch/S.No.1/05. Mr. J. D’Silva for Applicant in Ch/S.No.121/05. Ms. V. Mahadik with Ms. Neeta Madhyen i/by S.M. Associates for Applicant in Ch/S.No.181/05. Mr. T.N. Subramaniam, Sr.Counsel, with Mr. Kishore Thakoredas i/by Kishore Thakoredas & Co. for Applicant in Ch/S.No.236/05. Mr. S.G. Surana for Applicant in Ch/S.No.241/05. CORAM: CORAM: CORAM: F.I. REBELLO & F.I. REBELLO & F.I. REBELLO & DR. DR. DR. D.Y.CHANDRACHUD, JJ. D.Y.CHANDRACHUD, JJ. D.Y.CHANDRACHUD, JJ. DATE DATE DATE : 20TH NOVEMBER, 2006. : 20TH NOVEMBER, 2006. : 20TH NOVEMBER, 2006. JUDGMENT JUDGMENT JUDGMENT (PER F.I. REBELLO, J.) (PER F.I. REBELLO, J.) (PER F.I. REBELLO, J.) . The creative judicial interpretation of Article 21 by our constitutional Courts, has broadened our vision, in understanding the expression "right to life". Preventing degradation of our ecology and protection of our environment, including the right to clean drinking water and pollutant free atmosphere are some of its facets. Ecological factors as judicially understood, indisputably are relevant considerations in Town -5- and Country Planning Statutes. Courts to preserve the environment and ecology of "Earth" our home for the present and future generations whilst interpreting environmental laws, lean in favour of protection. The questions raised by the petitioners and which fall for our consideration, give rise to a host of legal issues. Can the State, citing its financial inability to provide housing to encroachers on public and private lands residing in structures which came up before 1-1-1995 to whom it has granted protection from eviction or its inability to free RG areas, parks, gardens, footpaths and roads from encroachment, enact legislation, granting TDR to builders which TDR is to be used in the suburbs of Mumbai by permitting increase of F.S.I. from 1 to 2. This apart from increasing the burden on infrastructural facilities permits construction without normal set backs and R.G. Areas. According to the petitioner this has resulted in affecting the quality of life of millions of citizens, staying in one room tenements and who pay their taxes and by obeying the law have either purchased or taken on rent tenements, to house themselves and their families. . The question posed is, do these law abiding citizens who believe in the rule of law, -6- living in this financial capital of India, have a right to life which is meaningful and worth living with human dignity. Are their children entitled to participate in sports. on public playgrounds and enjoy recreational facilities in parks, which are to be maintained, in terms of the development plan. Do senior citizens have a right to live in an atmosphere free from pollution and suspended particulate matter. Can the State abdicate its functions to maintain and preserve the rule of law by amending the Town Planning Laws to legalise encroachments. These are some of the broad aspects which we are called upon to consider, while deciding the legal issues which arise in this petition. Though lakhs of square feet of F.S.I. in the form of TDRs have been released pursuant to the S.R.A. Schemes with the avowed object of removing slums and providing human habitation to the hutment dwellers, the problem has become unmanageable because of the State increasing the cut-off dates for protection of illegal hutments from time to time. The Municipal Corporation has prepared a document called "City Development Plan under Jawaharlal Nehru Urban Renewal Mission (JNNURM). We may refer to the projections of Slum population and the need for housing from that document. -7- --------------------------------------------------- Year Slum popu- Total Popul- Formal Houses for -lation -ation Housing Slums. (Lakh) (Lakh) (in Lakh) (in Lakh) --------------------------------------------------- 2001 69.00 119.14 12.54 12 --------------------------------------------------- 2010 65.04 129.13 16.03 11 --------------------------------------------------- 2020 60.35 150.39 22.51 10 --------------------------------------------------- The same document sets out that for a population of 12 million, in an area of 437 sq. Kms. there are only 753 parks with an area of 4.4 Sq.Kms. Forests which this Court had to intervene to protect, cover an area of 174.15 sq. Km. meters. Against the present requirement of 3900 MLD of water supply, what is available is 3100 MLD. There is a vehicle population of 1.2 million with annual increase of of 4 to 5%. 9.9 million people commute daily. Out of 2600 MLD of sewage only 1500 is collected and disposed off in an environmentally acceptable manner. The transportation system is plagued by inadequate capacity of the existing arterial roads, overriding surface of the roads, traffic bottle-necks and over burdened suburban rail system. The traffic density at peak hours is 6 to 8 kms. per hour. Based on these statistics, Petitioners argue that provisions, permitting usage of additional F.S.I. in the suburbs are illegal, -8- null and void. 2. The power conferred on a constitutional Court to strike down a Legislation may be considered from excerpts from Thomas M. Cooley on a ’Treatise on the Constitutional Limitations". . Courts in matters of striking down a law, conscious of the fallibility of the human judgment, should shrink from exercising in any case, where it can conscientiously and with due regard to duty, decline the responsibility. Being required to declare what the law is in the cases which come before them, Courts must enforce the constitution as the paramount law, whenever a legislative enactment comes in conflict with it. But the courts sit, not to review or revise the legislative action, but to enforce the legislative will and it is only where it finds that the legislature has failed to keep within its constitutional limits, are courts at liberty to strike down the law. Nevertheless, in declaring a law unconstitutional a court must necessarily cover the same ground which has already been covered by the legislative judgment, and must not indirectly overrule the decision of that coordinate department.The task is therefore, a delicate one, and only to be entered -9- upon with reluctance. To hold that a body to whom the people have committed the sovereign function of making the laws for the commonwealth, have deliberately disregarded the limitations imposed upon this delegated authority, and usurped power which the people have been careful to withhold and it is almost equally so when the Act which is adjudged to be unconstitutional appears to be chargeable rather to careless and improvident actions or error of judgment, than to intentional disregard of obligation. But it is a duty which Courts in a proper case are not at liberty to decline. . The law on this subject appears to be, that, except where the constitution has imposed limits upon the Legislative power, it must be considered as practically absolute, whether it accords with natural justice or not in any particular case. The courts are not the only guardians of the rights of the people of the State, unless those rights are secured by some constitutional provision which comes within the judicial cognizance. The remedy for unwise or oppressive legislation, within constitutional bounds, is by an appeal to the justice and patriotism of the representatives of the people. If this fails, the people in their -10- sovereign capacity can correct the evil; but courts cannot assume their rights. The judiciary can only arrest the execution of a statute when it conflicts with the constitution. It cannot run a race of opinions upon points of right, reason and expediency with the law making power. Any legislative act which does not encroach upon the powers apportioned to the other departments of the Government, being prima facie valid, must be enforced, unless restrictions upon the legislative power can be pointed out in the constitution and the case shown to come within them. . We may also consider the tests for judicial review of subordinate legislation, more so a regulation made under the Town Planning Statute. Reference may be made to the judgment of the Supreme Court in Bombay Dyeing & Mfg. Co. Ltd.(3) vs. Bombay Environmental Action Group, (2006) 3 SCC 434 and to the following Paragraphs 104, 105, 115, 116, 117,118, 119 and 123 which read as under:- 104. A policy decision, as is well known, should not be lightly interfered with but it is difficult to accept the submissions made on behalf of the learned -11- Counsel appearing on behalf of the appellants that the courts cannot exercise their power of judicial review at all. By reason of any legislation, whether enacted by the legislature or by way of subordinate legislation, the State gives effect to its legislative policy. Such legislation, however, must not be ultra vires the Constitution. A subordinate legislation apart from being intra vires the Constitution, should not also be ultra vires the patent Act under which it has been made. A subordinate legislation, it is trite, must be reasonable and in consonance with the legislative policy as also give effect to the purport and object of the Act and in good faith. 105. In P.J. Irani v. State of Madras, this Court has clearly held that a subordinate legislation can be challenged not only on the ground that it is contrary to the provisions of the Act or other statutes; but also if it is violative of the legislative object. The provisions of the subordinate legislation -12- can also be challenged if the reasons assigned therefor are not germane or otherwise mala fide. The said decision has been followed in a large number of cases by this Court. (See also Punjab Tin Supply Co. vs. Central Govt.)." 115. Furthermore, interpretation of a town planning statute which has an environmental aspect leading to application of Articles 14 and 21 of the Constitution cannot be held to be within the exclusive domain of the executive. 116. There cannot be any doubt whatsoever, that the validity and/or interpretation of a legislation must be resorted to within the parameters of judicial review, but it is difficult to accept the contention that it is totally excluded. 117. Unreasonableness is certainly a ground of striking down a subordinate legislation. A presumption as to the constitutionality of a statute is also to be raised but it does not mean that the -13- environmental factors can altogether be omitted from consideration only because the executive has construed the statute otherwise. 118. It is interesting to note that the scope of judicial review on facts has been held to be permissible in law. (See Manager, Reserve Bank of India v. S. Mani, Sonepat Coop. Sugar Mills Ltd. vs. Ajit Singh and Cholan Roadways Ltd. vs. G. Thirugnanasmbandam). 119. In Anil Kumar Jha vs. Union of India, it was held that in an appropriate case, the Supreme Court may even interfere with a political decision including an action of Speaker or the Governor of the State although it may amount to entering into a political ticket. (See also Rameshwar Prasad (VI) vs. Union of India.) 123. For the foregoing reasons, we are of the opinion that in cases where constitutionality and/or interpretation of any legislation, be it made by -14- Parliament or an executive authority by way of delegated legislation, is in question, it would be idle to contend that a Court of superior jurisdiction cannot exercise the power of judicial review. A distinction must be made between an executive decision laying down a policy and executive decision in exercise of its legislation-making power. A legislation be it made by Parliament/Legislature or by the executive must be interpreted within the parameters of the well-known principles enunciated by this Court. Whether a legislation would be declared ultra vires or what would be the effect and purport of a legislation upon interpretation thereof will depend upon the legislation in question vis-a-vis the constitutional provisions and other relevant factors. We would have to bear some of the aforementioned principles in mind while adverting to the rival contentions raised at the Bar in regard to interpretation of DCR 58 as well as constitutionality thereof." -15- . Bearing these principles in mind, let us examine the facts on record and the legal issues involved. 3. The Petition was filed for reviewing the existing "Development Control Regulations for Greater Bombay, 1991". Petitioner No. 1 claims as an N.G.O. espousing legal issues concerning the State and the nation before the concerned authorities for resolution, in the larger public interest. The second Petitioner is a Resident of Juhu Vile Parle Development Scheme and President of the first Petitioner. Some of the reliefs as originally prayed for read as under :- "(f) The no TDR corridor provided under sub section 11, Appendix VII of Regulation 34 as originally provided in D.C. Regulations, 1991 be strictly restored and retained as it is i.e. any further grant of TDR be stopped in the areas: (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 -16- Central Railway (Main Line) and the Lal Bahadur Shastri Road." . Relief was also sought in the form of Prayer Clause (j) which was re-numbered as (ji) which reads as under : "A "A "A Committee of experts comprising Committee of experts comprising Committee of experts comprising architects, social activists, lawyers, bureaucrats and retired State and BMC Officers be appointed by this Hon. Court to review the TDR policy in the larger interest in view of the submissions made in this petition and to frame norms and guidelines for future implementation and submit its report within two months for the consideration of this Hon. Court." . The Petitioners have also sought relief by way of Prayer Clause (h) which reads as under : "The Respondents be directed to lay down parameters of the discretionary powers given to the B.M.C. Commissioner under the D.C. Regulation No. 64 particularly in the matter of concessions in open spaces and parking in consultation with -17- the committee as noted in Prayer Clause (j) (now renumbered as (ji)." . This Petition was directed to be treated as PIL Petition pursuant to the order of this court dated 30.3.2003. On 08.07.2004 this court was pleased to pass the following order :- "In the meantime and till further orders Corporation is directed not to grant permission for utilisation of TDR in the corridor area." . The ad-interim order was thereafter continued by the order of this court dated 15.7.2004 and continues till date. . Prayer (ee) was added pursuant to an amendment, and reads as under :- "This Hon’ble Court be pleased to quash Appendix VII.A (heritage TDR) Regulation 5 & 6 & Appendix VII-B (SLUM TDR) Regulations 9, 10 & 11, insofar as they purport to permit the use of Heritage & Slum TDR in the three prohibited zones set out in Appendix VII.A. Regulation -18- 11(a) (b) & (c)." . By way of further amendment, the following prayer clause was added as Prayer Clause (j) which reads as under : "that this Hon’ble Court be pleased to declare that DC Regulation 34 and Rule 10 of Appendix VII are ultra vires Article 14 & 21 of the Constitution of India". . The petition as originally filed was against the use of slum and heritage TDR in the corridor areas which are described in prayer clause (f). This relief was made more specific by challenge to App. VII.A and App.VII-B. in so far as heritage and slum TDR are concerned. The subsequent amendment introduced Prayers to declare D.C. Regulation 34 and Regulation 10 of App. VII as ultra vires Article 14 and 21 of the Constitution of India as also other reliefs. The Petition as filed did not specifically invoke either Article 14 or 21 of the Constitution of India. There were however, pleadings regarding open spaces and parking and about the manifold increase in the population and traffic congestion in the suburbs, more particularly in Vile Parle -19- area, caused by indiscriminate use of T.D.R.It is submitted that the discretion conferred upon the Municipal Commissioner by Regulation 64(b) was being exercised arbitrarily, open spaces have been reduced to 3 mtrs. between the buildings, regardless of the height, which is more or less a mockery of the notion of side open spaces being sufficient to provide adequate light and air at all floor levels. Considering the existing infrastructure and amenities as well as current plans for further expansion, it is submitted that a Carrying Capacity study is needed to determine how much additional floor space, each part of the city can sustain. The study also must indicate how much additional recreational or other public space must be made available in the area, before further floor space additions are permitted. By the first amendment to the Petition, it was pointed out that the Respondent themselves had concluded vide App.VII that considering the extent of development/construction and the existing infrastructure, the three corridor/areas were not capable of supporting any additional population, if the additional structures were constructed by use of TDR. The location of these areas is such that there is no room for increasing the infrastructure to cope with the increase in residence/structures -20- that would follow if TDR was allowed. The Respondents have amended the Development control Regulations to provide in Appendix VII.A for TDR to the owner, lessee of any heritage building who suffers loss of developmental rights due to restriction imposed by the Commissioner/Government under Regulations 67. Regulation 67, Appendix VII.A does not prohibit the use of such Heritage TDR in the said three prohibited zones, delineated in Regulations 11(a)(b) and (c) of Appendix VII. It is submitted that the object of prohibiting additional constructions/residence in the prohibited area was having regard to the extent of existing development/congestion. The existing infrastructure is such that the area cannot take the burden of additional constructions/residents. 4. By the subsequent amendment, it has been pleaded that permissible F.S.I. under the Regulation in the suburbs, continues to be 1.00. For the utilisation of TDR the Respondent No. 1 has permitted a 100% loading on the existing FSI throughout the suburbs i.e. the stipulated FSI of 1 can be increased/loaded upto a FSI of 2 by using TDR. This Floor Space Index has been stipulated without having regard to the carrying capacity/extent of development/construction which -21- the existing infrastructure/amenities (open areas for recreation, roads, sewers, water supply etc. ) can support/cope with. By permitting F.S.I. to be doubled by use of TDR, Regulation 34 & Appendix VII completely undermine the concept of FSI and the need for maintaining a co-relation between the available infrastructure/amenities & permissible development.The TDR policy permits indiscriminate use of TDR in the entire suburbs in areas to the North of the generating plot, notwithstanding the fact that the open areas, infrastructure and civic amenities available in many areas are already inadequate to cope with the additional development/occupancy. Though the TDR policy has now been in force for more than ten years, and has resulted in additional construction of approx 48 lakh sq. mts., 100,000 tenements and almost half a million additional inhabitants, no study/review has been conducted even till date about the manner in which it has operated or its consequences on the localities/their inhabitants and the civic amenities and infrastructure. Though the grant of TDR lessens the fiscal pressure on the Respondent Nos. 1 and 2, in effect it transfers the burden on the citizens of Mumbai and particularly the occupants/residents of the western suburbs), who have to bear the consequences of additional -22- pressure on the already stretched/overburdened infrastructure. Such doubling of the permissible FSI without corresponding increase in the provision of services like parks/open areas, water, sewerage etc. have made large parts of the suburbs virtually uninhabitable and have resulted in ecological and urban degeneration. . The population density in Bandra (1991) was 75,3462 per sq. km. which was more than that of the most congested areas of the Island