Bombay HC allows NGO to amend 20-year-old petition to challenge new 2034 DCR provision for slum schemes o – Times of India

MUMBAI: Bombay high court recently allowed an NGO to challenge the provision in Development Control Regulation (DCR) 2034 relating to in-situ rehabilitation of slums that have encroached open spaces and playgrounds in Mumbai by amending its old pending petition of 2002 but has not stayed the provision.
Under DCR 17(3) (D) (2) the policy provides for retaining 35 percent of open space on an encroached plot reserved as a playground or recreational ground and permitting redevelopment on the rest of the plot. The old 1991 DCR policy provided for retaining 33 percent as open space during slum rehabilitation schemes.
One cannot ignore that DCR-2034 is a piece of delegated legislation. Without DCR-2034 being subjected to challenge, its operation cannot remain stayed,” said the HC holding that an earlier stay in the old petition cannot be read to mean it sought to stay the operation of DCR 2034 without it being under challenge.
The petition filed in 2002 by a voluntary organization CitiSpace sought to espouse a noble cause said the HC bench of Chief Justice Dipankar Datta and Justice M S Karnik in its order earlier this month. The PIL seeks to prevent State, Slum Rehabilitation Authority (SRA), and BMC from legitimizing encroachments of open spaces in Mumbai and to preserve open spaces for their reserved use and not for slum dwellers’ rehabilitation.
The NGO’s senior counsel Shiraz Rustomjee said the threat to open spaces from various quarters ought to be warded off by appropriate protection by the HC.
The HC had on July 31, 2002, stayed rehabilitation schemes on land reserved for gardens, parks, playgrounds, RGs, maidans, No Development Zones, and roads.
In 2014, the HC permitted rehabilitation of slums on open spaces under a 67:33 ration scheme where 33 percent land would be retained for open spaces with a condition that CitiSpace would inspect the plot and suggest relocation, if needed, of the open space reservation so long as 100 percent of the open space was preserved.
In the 2014 order, the HC also permitted State to evolve a new policy, directing it to be placed before the court barred its implementation for four weeks thereafter—to enable a challenge by the NGO.
In December 2018 the State placed the new DCR before the HC and it became implementable from January 12, 2019, observed the HC adding, that at the time the NGO “did not take any step for obtaining an extension of the restraining order so as to prevent DCR-2034 from becoming implementable for reasons undisclosed.’’
The CitiSpace PIL was dismissed in 2019 for “non-prosecution” and restored to file in 2021 by the HC, along with interim order being revived.
Once restored, Citispace–merged with NAGAR in 2013–sought to amend and challenge new DCR provision too.
Rustomjee at recent hearing argued it was just “old wine in new bottle’’ as barring a few “insignificant cosmetic changes’’ was not intended to protect open spaces.
Rustomjee said the city was reeling under an abysmal lack of open space and any dilution of the 2014 order would affect rights of Mumbaikars.
An autonomous self-regulatory body for real estate industry NAREDCO sought to intervene in the PIL and through senior counsel Pravin Samdani sought a clarification that reimposition of stay would not apply to SRA schemes under the new DCR 2034 and cannot prevent developers from submitting rehabilitation proposals for such open spaces.
Samdani and the SRA through senior counsel Milind Sathe challenged the NGO’s amendment plea. Sathe said the NGO needs to file a fresh PIL to challenge the new DCR. He said, “the plots for open grounds are available to SRA for redevelopment only according to DCR 17 which has a completely different outlook and factors in open space reservations.’’
Samdani added, “there is no foundation even in the challenge to new DCR 2034.”
Rustomjee said, “The new DCR has not modified the scene.’’
The HC allowed the amendment “to avoid multiplicity of proceedings.”
The HC also said “public interest litigation having been instituted to ensure that the open spaces in the city of Mumbai, which have been reserved for play-ground, recreational grounds, etc., are not used for the redevelopment of slums and rehabilitation of slum dwellers,’’ the challenge to the relevant DCR 2034 regulation would not change the nature of the original petition.
Samdani and Sathe said the interim stay cannot be revived and is applicable to the new DCR. Rustomjee said NAREDCO has no locus standi (right to be heard) to seek clarification of the interim order
The HC accepted the need for clarification as sought by Samdani but said the NGO after amending its petition can file for a stay.