JANHIT MANCH THROUGH ITS PRESIDENT BHAGVANJI RAIYANI & ANR. versus THE STATE OF MAHARASHTRA & ORS.
[2018] 14 S.C.R. 860, Supreme Court of India, 2018
Outcome: Dismissed (Dismissed)
Segment: Issues
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JANHIT MANCH THROUGH ITS PRESIDENT BHAGVANJI
RAIYANI & ANR.
v.
THE STATE OF MAHARASHTRA & ORS.
(Civil Appeal No. 10192 of 2010)
DECEMBER 14, 2018
[RANJAN GOGOI, CJI, SANJAY KISHAN KAUL AND
K. M. JOSEPH, JJ.]
Constitution of India – Art.226 – Government of Maharashtra
launched comprehensive slum rehabilitation scheme – Prayer in writ
petition inter alia to review the existing 1991 Regulations and the
Transferable Development Right (TDR) policy – Directions issued
by High Court – Held: High Court examined the issues raised in
the present lis  in detail and issued whatever directions were feasible,
keeping in mind the enormity of the problem – Local problems must
be attended to locally – High Court is a Constitutional Court –
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 Supreme 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 – No such case made out herein – Maharashtra Regional
and Town Planning Act, 1966 – s.2(9A) – Development Control
Regulations for Greater Bombay, 1991.
Doctrines/Principles – Principle of separation of powers –
Discussed.
Dismissing the appeal, the Court
HELD: 1.1 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
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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. No such case
made out, here. 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 Development
Control Regulations for Greater Bombay, 1991 (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 Floor Space Index (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.  [Paras 11, 12]
[868-A-F]
1.2 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 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
superseded 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. The High Court has already
JANHIT MANCH THR. ITS PRESIDENT BHAGVANJI RAIYANI v.
THE STATE OF MAHARASHTRA
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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.
[Paras 13, 14][868-G-H; 869-A-C]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 10192
of 2010.
From the Judgment and Order dated 20.11.2006 of the  High Court
of Judicature at Bombay in Writ Petition (PIL) No. 637 of 2003.
Atul Yeshwant Chitale, Sr. Adv., Ms. Ekta Kapil, Ms. Anuradha
Dutt, Ms. Fereshte D. Sethna, Ms. B. Vijayalakshmi Menon, Mrs. V. D.
Khanna, Vinay Navare, Ms. Gwen Karthika, Ms. Abha R. Sharma,
Mrs. Suchitra Atul Chitale, Ms. Tanvi Kakar,  Ms. Shivangi Khanna,
Ms. N. Annapoorani, S. Udaya Kumar Sagar, Ms. Bina Madhavan,
Piyush Dwivedi  (for M/S. Lawyer S Knit & Co.), Ms. Deepa M.
Kulkarni, Nishant Ramakantrao Katneshwarkar, E. C. Agrawala, Ms.
Chandan Ramamurthi, Ms. Asha Gopalan Nair, Chirag M. Shroff, Ms.
Anagha S. Desai, Advs. for the appearing parties.
Mr. Bhagvanji Raiyani, Appellant-in-person.
The Judgment of the Court was delivered by
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 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
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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 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.
JANHIT MANCH THR. ITS PRESIDENT BHAGVANJI RAIYANI v.
THE STATE OF MAHARASHTRA [SANJAY KISHAN KAUL, J.]
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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 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.”
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
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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.
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
1Writ Petition (Civil) No. 963 of 1991
JANHIT MANCH THR. ITS PRESIDENT BHAGVANJI RAIYANI v.
THE STATE OF MAHARASHTRA [SANJAY KISHAN KAUL, J.]
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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 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 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.
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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 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
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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.
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 mandatory policy of the government, which
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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.
Divya Pandey
Appeal dismissed.
JANHIT MANCH THR. ITS PRESIDENT BHAGVANJI RAIYANI v.
THE STATE OF MAHARASHTRA [SANJAY KISHAN KAUL, J.]