REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVI APPELLATE JURISDICTION
CIVIL APPEAL NO. 2970 OF 2006
Jayant Achyut Sathe .......Appellant
Versus
Joseph Bain D' Souza and Ors. .......Respondents
WITH
Civil Appeal No. 2971 of 2006
Civil Appeal No. 2972 of 2006
Civil Appeal No. 2973 of 2006
Civil Appeal No. 2974 of 2006
Civil Appeal No. 2975 of 2006
Civil Appeal No. 2978 of 2006
Civil Appeal No. 2979 of 2006
Civil Appeal No. 2976 of 2006
Civil Appeal No. 2977 of 2006
Civil Appeal No. 5491 of 2008@ SLP (C)6712/2007
Civil Appeal No. 5492 of 2008@ SLP (C)6713/2007
Civil Appeal No.5493 of 2008@ SLP (C)6715/2007
Civil Appeal No.5494 of 2008@ SLP (C)6714/2007
Civil Appeal No. 5495 of 2008@ SLP (C)6716/2007
Civil Appeal No. 5490 of 2008@ SLP (C)14289/2007
Civil Appeal No. 5496 of 2008@ SLP (C)22326 /2008(CC.2987/08)
Cont.Pet. (C) No.44/2008 in C.A. No.2970/2006)
JUDGMENT
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in these appeals is to the judgment of the
Bombay High Court which while holding that Regulation 33
(7) of the Development Control Regulations, 1991 (in short the
`Regulations’) for the city of Mumbai as amended in the year
1999 does not suffer from any illegality, further observed that
the same applies only to dilapidated buildings of `A’ category
which satisfy the requirement and those declared prior to the
monsoon of 1997 under 3rd proviso are covered under
Regulation 33(7) and are entitled to extra “Floor Space Index”
(in short `FSI’). It also directed that certain site space has also
to be provided.
2
3. The conclusions essentially are as follows:
“For the reasons stated above, we hold that
the petition is very much maintainable and we read
the provisions of the first part of D.C. Regulation 33
(7) to cover only the privately owned dilapidated
buildings which require reconstruction and where
the cost of structural repairs exceeds the monetary
requirement specified under Section 88(3) of the
MHAD Act (vis. Rs.1200/- per sq.meter as of now).
In the circumstances, prayer (b) of the petition
deserves to be accepted though not prayer (a) and
D.C. Regulation 33(7) will have to be read to mean
that only the dilapidated buildings of “A” category
which satisfy this requirement (and those declared
unsafe prior to the monsoon of 1997 under 3rd
proviso thereof) are covered under D.C. Regulation
33(7) and entitled to extra FSI provided therein.
As far as the challenge to the side spaces
being reduced to half as against what is otherwise
provided, it was submitted that the provision is
totally unreasonable. The side spaces will now
hardly be about 1.5 metres (about 5 feet) and for a
building upto 24 metres, no separate fire fighting
arrangement will be insisted. This will almost mean
a building of ground plus 7 floors. The fire engines
will not be able to go inside. In our view,
independently on the merits of this submission, it.
is required to be accepted. It was submitted by the
respondents that in the erstwhile buildings there
was hardly any space between two such buildings
and if one goes for a tower, i.e. above 24 metres,
obviously the side space will increase and the fire
3
fighting facilities will have to be provided. In our
view, this is no answer to the safety of the
occupants with height of less than 24 metres. We
may not interfere into the reduction of the
recreational space or not providing the parking
facilities though that will also create difficulties for
the residents of such buildings. Considering that
there is so much of space crunch, we may not
interfere into the decision of the rule makers in
that behalf. However, having the side space of only
5 feet for buildings of the height less than 24 metres
(of ground plus 7 floors) is on the face of it
something difficult to substantiate. That provision
of the D.C. Regulations will have to be held as
arbitrary, unreasonable and violative of Article 14 of
the Constitution. We have no option, but to accept
prayer (f) to this extent. The requirement of
reducing side spaces for the buildings to be
reconstructed is bad in law and they will have to be
provided with the minimum side spaces as required
in the buildings on small plots, vis. 3.6 metres.
The Apex Court has observed in its order of
21st April, 2006 that no third party rights will be
created and it further observed that it will be for the
High Court to deal with that aspect. This being the
position, we direct, with a view not to cause
prejudice to the investors, that those projects of
reconstruction, which have already been approved,
will proceed as it is. However, the buildings not
having the certificate of the cost of structural
repairs exceeding Rs. 1200/- per sq. m. under
section 88 (3) of the MHAD Act will not be permitted
reconstruction henceforth. For future, the certificate
under section 88 (3) of the MHAD Act, viz. that the
structural repairs cannot be carried out within the
monetary limits specified therein will be mandatory
requirement whereafter if 70% of the occupants and
the landlord come together, the benefit under
4
Regulation 33(7) will be available and not otherwise.
Similarly, in all such buildings to be reconstructed,
the side spaces will be maintained at least as in the
case of other buildings on small plots vis. 3.6
metres.”
4. The background facts in a nutshell are as follows:
The three writ petitioners (respondent Nos. 1, 2 and 3
herein) claiming to be public spirited citizens filed a writ
petition before the Bombay High Court. The 1st petitioner is a
former Municipal Commissioner of Mumbai, who is also a
former Chief Secretary of the State of Maharashtra. The 2nd
petitioner has been a member of various committees
concerning urban development. The 3rd petitioner is a Civil
Engineer by profession and for many years was an Executive
Committee Member of the Bombay Metropolitan Authority. He
was also a member of the Slum Rehabilitation Committee
constituted by the State of Maharashtra.
5
The respondents in the writ petition were the State of
Maharashtra through the Secretary, Urban Development
Department, Municipal Corporation of Greater Mumbai which
is the Planning Authority for the city of Mumbai under the
Maharashtra Regional and Town Planning Act, 1966 (in short
the `Town Planning Act’) whereunder the regulations are
framed. Respondent No.3 was a statutory authority
constituted under the Maharashtra Housing and Area
Development Act, 1976 (in short the `Development Act’). The
concerned authority is Maharashtra Housing and Area
Development Authority (MHADA). Respondent No.4 was the
former Municipal Commissioner of Mumbai whose report was
amongst others led to the amendment of the Regulations in
the year 1999. Several parties intervened in the matter. Two of
them were the property owners. One was the Property Owners’
Association and one claimed to be a tenant in pre 1940
building. One of the interveners was Property Redevelopers’
Association. Intervener No.6 was an Architect by profession
who supported the petition while others opposed the petition.
Earlier, a Division Bench of the High Court rendered a
6
judgment on 17.10.2005. The Division Bench accepted
number of grievances and amongst others appointed a few
Committees to look into some such aspects which according
to it had relevance for the issues highlighted in the petition.
One of the interveners filed an appeal relatable to Special
Leave Petition(C) No.1376 of 2006 and others also filed
appeals. By order dated 14th July, 2006 this Court disposed of
the appeals inter-alia with the following observations:
“The High Court has not dealt with the basic
issues raised in the petition, i.e. as to whether
the amended Regulation 33(7) suffered from
any infirmity. We, therefore, think it
appropriate to direct the High Court to
examine those issues. The parties shall be
permitted to place their respective stands
before the High Court. It is open to the
appellants to canvass before the High Court as
to the non-maintainability of the writ petitions.
The High Court shall appropriately deal with
the same. It needs no re-iteration that the
High Court shall examine the challenge to
Regulation 33(7) as amended in 1999.”
Therefore, this Court directed the High Court to deal with
only that issue relating to the validity of the provisions and the
7
maintainability of the writ petitions. Intervention applications
had also been filed before this Court. These applications were
also to be directed to be dealt with by the High Court.
The grievances of the petitioners as noted before the
High Court were as follows:
“The petitioners are concerned with the
problem of congestion of the population in the
island city of Mumbai. The island area of the city
covers the area from Colaba in the South to Mahim
and Sion in the North (which originally consisted of
eight islands before they were all linked). The areas
of suburbs and extended suburbs are not covered
when one speaks of the island city. The existing
infrastructure in the island city, particularly with
respect to roads, water supply, sewage system,
open areas and gardens, is already over stretched
and under extreme strain. The petitioners point out
that the island city has already reached the
saturation point with respect to the population that
it can accommodate, which is not disputed by any
of the public authorities concerned. According to
the report entitled “Report on the Development Plan
of Greater Bombay, 1966”, the total acreage of the
island city is 17, 388.83 acres and the ultimate
population, which it can accommodate, is 32.5
lakhs. As of now, the existing population of the
island city is already in excess of this figure of
ultimate population. It is now estimated to be 33.4
lakhs. It is another matter that the population in
the suburbs is much more, but the area covered8
there is also much more than the island city. The
petition is concerning only the island city.
There is no dispute whatsoever that the
present pubic amenities are inadequate to cater to
the present population. Hence, according to the
Petitioners, any cause for the increase in the
population in the island city has to be appropriately
dealt with. Coupled with this deterioration of the
infrastructure in the island city, it is also a fact that
a very large number of buildings, i.e. more than
16,500 (16,502 according to one estimate) were
constructed prior to 1940 and are in the need of
urgent repairs and in some cases reconstruction.
The State has taken it upon itself to see to it that
these buildings are repaired and, wherever
necessary, reconstructed and for that purpose, it
created the Bombay Building, Repairs and
Reconstruction Board by passing the Bombay
Building Repairs and Reconstruction Board Act (Act
No.XLVII of 1969). One of the main reasons for this
large number of unattended buildings has been the
freezing of the rent under the Bombay Rents, Hotel
and Lodging House Rates Control Act, 1947 (“the
Bombay Rent Act” for short). Rents received by the
landlords were found very much insufficient for
them to carry out repairs.
The Bombay Buildings, Repairs and
Reconstruction Board Act was later on repealed and
the activities under the Act were taken over by the
Maharashtra Housing and Area Development
Authority (MHADA) when the Maharashtra Housing
and Area Development Act (MHAD Act) was passed
in 1976. A cess was to be contributed by the
tenants of the private buildings known as Mumbai
Building, Repairs and Reconstruction Cess under
Section 82 of the said Act. Lands and buildings
owned by the Central Government, State
9
Government, Municipal Corporation of Mumbai,
Mumbai Port Trusts, lands and buildings vested in
MHADA, lards and buildings of the Public Trusts
exclusively occupied for worship or educational
purposes and those vested in or leased to a
cooperative society, buildings exclusively in
occupation of the owner, buildings exclusively used
for non-residential purposes and some other
properties as mentioned in section 83 were
exempted from this requirement of paying the cess.
These cessed buildings were divided into the
following three categories under section 84 of the
MHAD Act.
Category “A” Buildings erected prior to 1/9/ 1940
Category “B” Buildings erected between 1/9/ 1940
and 31/12/1950
Category “C” Buildings erected prior to 1/ 1/ 1951
and 30/12/1969
It appears to be the common case that as of
now as per the affidavit of the State Government in
the present matter, there are some 16502 buildings
in “A” Category, 1491 buildings in “B” Category and
1651 buildings in “C” Category.
Chapter VIII of MHAD Act provided for repairs
and reconstruction of dilapidated buildings. Under
section 88 from Chapter VIII of the MHAD Act,
Mumbai Housing and Area Development Board was
supposed to undertake structural repairs of the
buildings, which were in ruinous condition and
likely to deteriorate and fall. However, section 88 (3)
10
provides that where the cost of the structural
repairs exceed Rs.1200/- per sq. m., the Board may
not consider such buildings for repairs and issue a
certificate to that effect to the owner of the buildings
and affix it on the building for the information of
occupiers and then proceed to take action as
provided in this Chapter. Thereafter where the
occupiers were ready to contribute to the cost in
excess of Ps.1200/- per sq. metre, the Board may
carry out the structural repairs, for which a
provision is made in section 89 of the MHAD Act.
This will mean that oherwise the steps for
reconstruction will be taken by acquiring the
property as provided in sections 91 and 92 of this
Chapter. Section 91 provides for reconstruction
where a building suddenly collapses or becomes
inhabitate due to fire, torrential rein or tempest or
otherwise. Section 92 lays down the procedure for
acquisition where however a building suddenly
collapses.”
The High Court noted that there was no dispute that
there was hardly any progress in the matter of repairs and/or
re-construction by the procedure provided. Therefore, even in
the year 1981 the Government appointed a Committee under
one Mr. Ajit Kerkar to consider the problems. The Committee
emphasized that there should be a shift from re-construction
of individual buildings to the re-development of the entire
11
localities and the formulation of a programme of urban
renewal.
The High Court noted that it was a common case that
MHADA found it difficult to put in adequate funds for
acquisition of properties for reconstruction under Chapter VIII
of the Development Act and, therefore, Chapter VIII-A was
introduced in the said Act. The provisions of this Chapter have
been stated to be notwithstanding what was provided in
Chapter VIII as stated in Section 103-B of Chapter VIII-A. The
provisions under this Chapter were to operate when 70% of
the occupiers came together and approached the Government
to acquire the property. They were required to assure to
contribute towards acquisition and take steps since the
landlords were not cooperating and under the Scheme of this
Chapter the developed buildings were to be given FSI 2.
These provisions also did not receive adequate response.
On 25.3.1991 the Regulations were notified for greater
Mumbai. Regulation 33(7) to which these cases relate provided
12
for reconstruction or re-development of cessed buildings in the
island city by cooperative housing societies or of old buildings
belonging to the Corporation. The Regulation provided for old
consumed FSI or FSI 2 whichever is higher. This Regulation
was further amended on 25.1.1999 to provide the FSI of 2.5
on the gross plot area or the FSI required for rehabilitation of
the existing tenants plus incentive FSI as specified in
Appendix III to the Regulations. This amendment was brought
about after a report was submitted by Study Group under the
Chairmanship of Shri D.M. Sukhtankar, former Municipal
Commissioner who was respondent No.4 in the writ petition.
The Study Group had submitted its reply to the State
Government in July 1997 leading to amendments in the year
1999. The Regulation was further amended by adding a new
clause w.e.f. 27th February, 2004 whereby apart from the
Corporation buildings, those of Department of Police, Police
Housing Corporation, Jail and Home Guard of Government of
Maharashtra constructed prior to 1940 were also covered.
13
The main grievance in the writ petitions was that there
was gross misuse of the amended Regulation 33(7) when
applied to private buildings with which the petitions were
concerned. They submitted that taking shelter under the
amended Regulation 33, there has been misuse by pulling
down buildings which are otherwise in good conditions merely
because they were constructed prior to 1940. It was further
submitted that there are no guidelines under the Regulations
to lay down as to who are the tenants or occupiers who are
eligible to be protected under the Regulations. Numbers of
instances were cited. It was submitted that builders and
developers and people with money and muscle power were
dishousing genuine tenants/occupiers. The numbers of
tenants/occupiers were being inflated by creating bogus
tenancies to claim extra FSI. The consequence, it was
submitted, was that there was going to be unjustified and
tremendous increase in the population in the island city
causing further strain on its infrastructure. It was their case
that the extra FSI as per the amended Regulation was meant
for the reconstruction of unsafe and dilapidated buildings only
14
and not for all the 16502 `A’ category cessed buildings. The
dilapidated buildings are supposed to be just about 10% of
them. Accordingly, there was a prayer to prevent strong and
sound cessed buildings which are not in danger of collapse to
be not pulled down and Regulation 33(7) should be declared
to be applicable only to those cessed buildings which are
dilapidated and are in unsound and in unsafe condition.
Challenge was to the reduction in the marginal open
space requirement for the buildings under Regulation 33(7)
read with Appendix III as provided for the buildings under
other regulations and it was prayed that same should be also
struck down.
Stand of the respondents apart from questioning the
maintainability of the writ petitions, the locus standi of the
writ petitioners, was that Regulation 33(7) as amended was
applicable to all `A’ category cessed buildings which are
constructed prior to 1940. Whenever 70% of the
tenants/occupiers of such buildings came together alongwith
their landlords for redevelopment of their properties, they were
15
entitled to get extra FSI. This will provide houses with
minimum 225 sq.ft. free of cost to all tenants in these pre-
1940 buildings. Many of them are otherwise cramped in still
smaller tenements. The benefit could not be restricted only to
the old and dilapidated buildings. There was no such
restriction contemplated under Regulation 33.
The High Court while upholding the validity of Regulation
33(7) accepted some of the prayers of the writ petitioners
which are led to the filing of the appeals.
5. Stand of appellants in these appeals is that the amended
Regulation 33(7) came into force on 25th January, 1999 after
inviting suggestions/objections from the public at large under
Section 37 of the Town Planning Act, 1966 and after
considering the same. Neither any suggestions nor any
objections were filed by the writ petitioners nor did they
challenge the said amended D.C. Regulation 33(7) from 1999
till October, 2004. In other words there was a delay of nearly
6 years.
16
6. It is submitted by learned counsel for the appellants that
Public Interest Litigation as claimed to have been filed is not
maintainable. Such a petition lies at the instance of the a
third party only when it is shown that the affected person is
unable to approach the Court. It would not lie if a section of
the public was not interested in the cause. The writ
petitioners did not file any objections or suggestions when
statutory notice was issued. Therefore, they could not have
invoked Article 226 of the Constitution and to pray that the
High Court should consider their suggestions and restrict the
regulation to old and dilapidated buildings beyond economic
repair as set out in Section 88 of the Development Act or to
consider impact on environment or infrastructure due to
unlimited FSI or to restrict the FSI given to MHADA. They,
therefore, seek to substitute the High Court for the statutory
authorities. This is not permissible. The affected parties to any
dispute on the PIL are essentially the property owners and the
persons against whom serious allegations of alleged misuse of
the regulation were made. These persons were not impleaded.
17
It is a settled position in law that in cases of public interest
litigation the principles of natural justice apply and any order
passed without impleading the affected parties would be bad.
The prayer was to amend the Regulations as framed. This
prayer could not have been accepted. As per the Kerkar
Report the FSI permissible to the Board ranged between 3.19
and 5.88. By the impugned judgment the applicability of
Regulation 33(7) was restricted to dilapidated buildings, the
cost of repair which was beyond the statutory time limit fixed
under Section 88 of the Development Act. Such a course is
impermissible as it is contrary to the intention of the delegated
legislation in view of the clear use of the expression “subject to
the provision of MHADA Act” which has been used in the
directives issued under Section 154 of Town Planning Act in
January 1989. Notification dated 9.3.1989, DC Regulation of
1991 and the amendments made in 1994 to the DC
Regulations of 1991 were deleted. The expression “old and
dilapidated cessed buildings” have been used in the
Government Policy on reconstruction of old buildings of
12.11.1984 and in the letter dated 20.3.1987 regarding
18
Regulations of 1991, and the amendments made in 1994 to
the Regulations of 1991. The expression “old and dilapidated
cessed building” had been used in the Government Policy on
Reconstruction of old buildings of 12.11.1984 and in the letter
dated 20.3.1987 regarding Regulations, and the said
expression is not found in Regulation 33(7). It has been
consistently held that landlord need not wait for the building
to get dilapidated as he is entitled to re-construct to augment
his income.
7. It is pointed out that the historical background has great
relevance also. With the advent of the Second World War in
1939, rents in Bombay were frozen at 1939 levels, initially
under the Bombay Rent Restriction Act, 1939 and
subsequently at 1940 levels under the Bombay Rent Act 1947.
As a result of the freezing of rents on the one hand and
increase in prices of building materials, wages of workers etc.
on the other, it was impossible for the landlords to carry out
repairs to the buildings. This led to collapse of some buildings.
To meet this situation, the Bombay Buildings Repairs and
19
Reconstruction Board Act, 1969 was enacted on 1st October
1969. It was a temporary Act for ten years. It was applicable
only to the island city of Mumbai and not to the suburbs. The
buildings in Mumbai were categorized into three groups
depending on their year of construction viz.,
Category “A” Buildings constructed prior 16,502 buildings.
to 1/09/1940
Category “B” Buildings constructed – 1,491 buildings.
between 1/09/1940 and
31/12/1950
Category "C" Buildings constructed - 1,651 buildings.
between 1/01/1951 and
30/12/1969
Total 19,644 cessed buildings
8. A cess was levied on these buildings and the Repair
Board established under the said Act, had taken up the
responsibility of repairing the said buildings. In case the
repairs were beyond economic levels, such buildings were to
be acquired by the Board and reconstructed/ redeveloped.
20
9. The said 1969 Repairs Act was replaced by the
Development Act, which consolidated various Acts, including
the said 1969 Repairs Act, which was inserted into
Development Act as Chapter VIII with modifications.
Collection of Cess continued under the Development Act.
Basic objective of Chapter VIII of said Act was to carry out
structural repairs to the cessed buildings and if they were
beyond economic repairs to acquire and reconstruct. This
scheme of reconstruction/ redevelopment failed. Thereafter in
1986, Development Act was amended by incorporating
Chapter VIIIA by which 70% of the occupiers of “A” category
cessed buildings could come together and acquire the
property through Development Act for “reconstruction” on
paying only 100 months net rent to the owner [the rents were
frozen at 1940 levels]. The owner had no role to play in this
scheme. The occupiers could acquire the building, demolish
the building and reconstruct it. This scheme of
reconstruction/ redevelopment also failed. The Government
Policy for reconstruction/redevelopment from 12th November
21
1984 to 23rd November 1991 granting FSI 2 or consumed FSI
whichever is more, to the co-operative societies of the owners
and occupiers also failed.
10. Therefore, on 23rd March 1991, as part of the Town
Planning Act and not as part of Development Act, Regulation
No.33 (7) was brought into force in 1991.
11. Under Regulation 33(7), in 1991 the FSI was 2 or the
consumed Floor Space Index of the existing old building,
whichever is more. There was no incentive FSI. The minimum
carpet area for rehabilitating the tenants/occupiers in the new
building was 180 sq, ft. minimum upto a maximum of 735 sq.
ft. The redevelopment was to be “subject to the provisions of
the said Act” i.e. Development Act.
12. In 1994, DC Regulation 33(7) was amended to make the
FSI 2 on the gross plot area or the consumed Floor Space
Index, that is, the total built-up area of the existing old
building, whichever is more. This was also “subject to the
provisions of the said Act” i.e. Development Act. The said
22
amendment to D.C. Regulation 33 (7) in 1994, however failed
to achieve the desired object. In 1996, the Maharashtra
Government therefore constituted a Committee popularly
known as “the Sukhtankar Committee”, which committed
comprised of members from all affected groups including
tenants, landlords, bureaucrats, experts, etc. It was a very
broad-based Committee. The terms of reference inter alia
included how the reconstruction of the old cess buildings
could be speeded up.
13. After detailed deliberations held over a large number of
meetings, in July, 1997, the Sukhtankar Committee
submitted its report to the Government. It was noted in the
said Report that the life of most of the buildings in Category
“A” had nearly come to an end and instead of repairing such
buildings periodically, their reconstruction would be the only
far sighted solution. It was felt that without giving incentive
FSI nothing could be achieved in respect of reconstruction and
redevelopment of the old buildings.
23
14. Therefore, amendment was made on 25’h January 1999
to Regulation 33(7), under the provisions of the Town Planning
Act, whereby for reconstructing “A” category cessed buildings,
FSI of 2.5 was granted on the gross plot area or the FSI
required for rehabilitating the tenants plus 50% to 70%
incentive FS], (as specified in Appendix III] whichever is more.
The words “subject to provisions” of Development Act were
expressly deleted.
15. Further under the 1st proviso to the amended Regulation
33(7), with the prior approval of the Government, MHADA and
the Corporation would be eligible to get additional incentive
FSI over the otherwise permissible FSI as specified in
Annexure III of these Regulations without any cap.
16. The history of the Regulation 33(7) framed under the
Town Planning Act, 1966 for reconstruction and
redevelopment and the scheme for reconstruction/
redevelopment under Development Act shows that there are
24
separate schemes under two separate Acts, that are self
contained and one cannot borrow the provisions from one Act
and incorporate them into the other, without upsetting the
scheme of Regulation 33(7) read with Appendix III thereof.
17. The scheme under Regulation 33(7) involves landlords
with the consent of 70% of the occupiers. There is no
acquisition for redevelopment under this Scheme. Therefore to
bring in “old and dilapidated buildings” which is a prerequisite
for acquisition and reconstruction under the other Scheme,
namely under Chapter VIII of MHADA cannot be included in
the provisions of Regulation 33 (7) read with Appendix III.
18. Learned counsel for the original writ petitioners on the
other hand submitted that the matters involved are not to be
considered in the background of factual scenario only. The
concept of Article 21 of the Constitution of India, 1950 (in
short the `Constitution’) cannot be lost sight of. It is
submitted that there is congestion and pressure on the
infrastructure facilities such as, sewerage, water, transport.
25
The fire safety requirements cannot be adhered to in the
cramped areas. With the increased inflow of persons into the
island city of Mumbai, the quality of life will be affected.
19. In reply, learned counsel for the appellant submitted that
there was no need for filing a Public Interest Litigation if there
was good governance. The buildings in question are situated
in extremely congested localities. There are narrow lanes.
Traditional buildings are Ground plus First floor and some
times two to four or to six floors. Originally, there was no
notion of FSI which is presently prescribed.
20. The Development Act does not really deal with present
issues. The density development parameters are very relevant.
With high FSI the density goes off. The basic challenge was to
the non-availability of the infrastructure and the basic quality
of life. The Town Planning Act has to ensure descent quality of
life. More than 16% buildings fall in `A’ category and not all
that are in dilapidated condition. Regulation 67 deals with
26
heritage buildings. The structural repairs concept cannot be
lost sight of.
21. The basic question raised is applicability of Section 88
vis-a-vis Regulation 33(7). It is pointed out that focus is on
structural repairs and for greater preservation of
reconstruction.
22. Learned counsel for MHADA, State and the Corporation
pointed out that there was no challenge in the writ petitions to
the legality of Regulation 33(7) on the ground of either Articles
14 or 21 of the Constitution. It is urged that nothing can be
read into Regulation 33(7). Reference is also made to the
Development Act, Appendix III dealing with the procedure and
the reconstruction Board.
23. It is pointed out that 3.6 meters space as fixed by the
High Court is not practicable. No basis has been indicated for
fixation of such apace. It has also been pointed out that many
constructions already made shall be required to be
27
demolished if the order is followed. It is further pointed out
that minimum FSI open space was always there. Reference is
made to the situation in 1984, 1987, 1989 and 1991. Clause
(6) in the old Appendix continued till 2004 and there was no
challenge earlier. It is pointed out that there cannot be any
fixed norms to satisfy whether the building is dilapidated or
not.
24. Firstly, the scope of judicial review in matters of policy
need to be looked into. In Balco Employees Union (Regd.) v.
Union of India and Ors. (2002 (2) SCC 333) it was observed as
follows:
“34. Applying the analogy, just as the court
does not sit over the policy of Parliament in
enacting the law, similarly, it is not for this
Court to examine whether the policy of this
disinvestment is desirable or not. Dealing with
the powers of the Court while considering the
validity of the decision taken in the sale of
certain plants and equipment of the Sindri
Fertilizer Factory, which was owned by a
public sector undertaking, to the highest
tenderer, this Court in Fertilizer Corpn. Kamgar
Union (Regd.) v. Union of India SCC 568 at
p.584, while upholding the decision to sell,
observed as follows: (SCC para 35)28
“We certainly agree that judicial
interference with the administration
cannot be meticulous in our Montesquien
system of separation of powers. The
Court cannot usurp or abdicate, and the
parameters of judicial review must be
clearly defined and never exceeded. If the
directorate of a government company has
acted fairly, even if it has faltered in its
wisdom, the court cannot, as a
superauditor, take the board of directors
to task. This function is limited to testing
whether the administrative action has
been fair and free from the taint of
unreasonableness and has substantially
complied with the norms of procedure set
for it by rules of public administration.”
36. In State of M.P. v. Nandlal Jaiswal the
change of the policy decision taken by the
State of Madhya Pradesh to grant licence for
construction of distilleries for manufacture
and supply of country liquor to existing
contractors was challenged. Dealing with the
power of the Court in considering the validity
of policy decision relating to economic matters,
it was observed at pp.605-06 as follows: (SCC
para 34)
“34. But, while considering the
applicability of Article 14 in such a case,
we must bear in mind that, having regard
to the nature of the trade or business,
the Court would be slow to interfere with
the policy laid down by the State
Government for grant of licences for
manufacture and sale of liquor. The
Court would, in view of the inherently
pernicious nature of the commodity allow
a large measure of latitude to the State
Government in determining its policy of
regulating, manufacture and trade in
liquor. Moreover, the grant of licences for
manufacture and sale of liquor would
29
essentially be a matter of economic policy
where the Court would hesitate to
intervene and strike down what the State
Government has done, unless it appears
to be plainly arbitrary, irrational or mala
fide. We had occasion to consider the
scope of interference by the Court under
Article 14 while dealing with laws relating
to economic activities in R.K. Garg v.
Union of India. We pointed out in that
case that laws relating to economic
activities should be viewed with greater
latitude than laws touching civil rights
such as freedom of speech, religion, etc.
We observed that the legislature should
be allowed some play in the joints
because it has to deal with complex
problems which do not admit of solution
through any doctrinaire or strait-jacket
formula and this is particularly true in
case of legislation dealing with economic
matters, where, having regard to the
nature of the problems required to be
dealt with, greater play in the joints has
to be allowed to the legislature. We
quoted with approval the following
admonition given by frankfurter J in
morey v. Doud:
`In the utilities, tax and economic
regulation cases, there are good reasons
for judicial self-restraint if not judicial
deference to legislative judgment. The
legislature after all has the affirmative
responsibility. The courts have only the
power to destroy, not to reconstruct.
When these are added to the complexity
of economic regulation, the uncertainty,
the liability to error, the bewildering
conflict of the experts, and the number of
times the Judges have been overruled by
events — self-limitation can be seen to be
the path to judicial wisdom and
institutional prestige and stability.’
30
What we said in that case in regard to
legislation relating to economic matters must
apply equally in regard to executive action in
the field of economic activities, though the
executive decision may not be placed on as
high a pedestal as legislative judgment insofar
as judicial deference is concerned. We must
not forget that in complex economic matters
every decision is necessarily empiric and it is
based on experimentation or what one may
call `trial and error method’ and, therefore, its
validity cannot be tested on any rigid `a priori’
considerations or on the application of any
strait-jacket formula. The Court must while
adjudging the constitutional validity of an
executive decision relating to economic
matters grant a certain measure of freedom or
`play in the joints’ to the executive. `The
problem of Government’ as pointed out by the
Supreme Court of the United States in
Metropolis Theater Co. v. State of Chicago:
`are practical ones and may justify, if they
do not require, rough accommodations,
illogical, it may be, and unscientific. But
even such criticism should not be hastily
expressed. What is best is not
discernible, the wisdom of any choice
may be disputed or condemned. Mere
errors of Government are not subject to
our judicial review. It is only its palpably
arbitrary exercises which can be declared
void’.
The Government, as was said in Permian Basin
Area Rate cases, is entitled to make pragmatic
adjustments which may be called for by
particular circumstances. The Court cannot
strike down a policy decision taken by the
State Government merely because it feels that
another policy decision would have been fairer
or wiser or more scientific or logical. The Court
31
can interfere only if the policy decision is
patently arbitrary, discriminatory or mala fide.
It is against the background of these
observations and keeping them in mind that
we must now proceed to deal with the
contention of the petitioners based on Article
14 of the Constitution.
37. A policy decision of the Government
whereby validity of contract entered into by
Municipal Council with the private developer
for construction of a commercial complex was
impugned, came up for consideration in G.B.
Mahajan v. Jalgaon Municipal Council and it
was observed at p.104 as follows: (SCC para
22)
“The criticism of the project being
`unconventional’ does not add to or
advance the legal contention any further.
The question is not whether it is
unconventional by the standard of the
extant practices, but whether there was
something in the law rendering it
impermissible. There is, no doubt, a
degree of public accountability in all
governmental enterprises. But, the
present question is one of the extent and
scope of judicial review over such
matters. With the expansion of the
State’s presence in the field of trade and
commerce and of the range of economic
and commercial enterprises of
Government and its instrumentalities
there is an increasing dimension to
governmental concern for stimulating
efficiency, keeping costs down, improved
management methods, prevention of time
and cost overruns in projects, balancing
of costs against timescales, quality
32
control, cost-benefit ratios etc. In search
of these values it might become
necessary to adopt appropriate
techniques of management of projects
with concomitant economic expediencies.
These are essentially matters of economic
policy which lack adjudicative
disposition, unless they violate
constitutional or legal limits on power or
have demonstrable pejorative
environmental implications or amount to
clear abuse of power. This again is the
judicial recognition of administrator’s
right to trial and error, as long as both
trial and error are bona fide and within
the limits of authority.”
38. To the same effect are the observations of
this Court in Peerless General Finance and
Investment Co. Ltd. v. Reserve Bank of India in
which Kasliwal, J. observed at p. 375 as
follows: (SCC para 31)
“31. The function of the Court is to see
that lawful authority is not abused but
not to appropriate to itself the task
entrusted to that authority. It is well
settled that a public body invested with
statutory powers must take care not to
exceed or abuse its power. It must keep
within the limits of the authority
committed to it. It must act in good faith
and it must act reasonably. Courts are
not to interfere with economic policy
which is the function of experts. It is not
the function of the courts to sit in
judgment over matters of economic policy
and it must necessarily be left to the
expert bodies. In such matters even
experts can seriously and doubtlessly
differ. Courts cannot be expected to
33
decide them without even the aid of
experts.”
39. In Premium Granites v. State of T.N. while
considering the Court’s powers in interfering
with the policy decision, it was observed at p.
“54. It is not the domain of the Court to
embark upon unchartered ocean of
public policy in an exercise to consider as
to whether a particular public policy is
wise or a better public policy can be
evolved. Such exercise must be left to the
discretion of the executive and legislative
authorities as the case may be.”
92. In a democracy, it is the prerogative of
each elected Government to follow its own
policy. Often a change in Government may
result in the shift in focus or change in
economic policies. Any such change may
result in adversely affecting some vested
interests. Unless any illegality is committed in
the execution of the policy or the same is
contrary to law or mala fide, a decision
bringing about change cannot per se be
interfered with by the Court.”
25. It is to be noted that if different language is used in the
same section or in different sections, the legislative intent is
that they are intended to lead to different results and there is
a conscious intent. (See the Member Board of Revenue vs.
Arthur Paul Benthall (1955 (2) SCR 842, 845 846.) Similar
34
was the view expressed in Commissioner of Income Tax, New
Delhi (now Rajasthan) v. M/s East West Import and Export (P)
Ltd. (now known as Asian Distributors Ltd.), Jaipur (1989 (1)
SCC 760). It was inter alia observed as follows:
“7. The Explanation has reference to the point
of time at two places: the first one has been
stated as “at the end of the previous year” and
the second, which is in issue, is “in the course
of such previous year”. Counsel for the
revenue has emphasised upon the feature that
in the same Explanation reference to time has
been expressed differently and if the legislative
intention was not to distinguish and while
stating “in the course of such previous year” it
was intended to convey the idea of the last day
of the previous year, there would have been no
necessity of expressing the position differently.
There is abundant authority to support the
stand of the counsel for the revenue that when
the situation has been differently expressed
the legislature must be taken to have intended
to express a different intention.”
26. It is of significance to note that in the writ petitions filed
there was no challenge to Regulation 33(7). Only incentive FSI
was challenged. So far as Regulation 33(7) is concerned, there
will be no acquisition in Chapter VIII. Stress is on spending
35
money out of the funds and of acquisitions. Chapter VIII-A
essentially deals with occupiers. Acquisition and the Board’s
role is that of certification. Under Regulation 33(7) the
occupier and the landlord are involved. There is no acquisition
and there is no government fund utilized. There is a
Transferable Development Right (in short `TDR’) and the
concept of incentive FSI.
27. It is the case of the appellant that the TDR is utilized to
recover the money spent for subsidizing other constructions.
28. Certain other aspects also need to be noted.
29. The provisions relating to buildings which have been
declared unsafe are specifically covered by Regulation 33(6)
and reconstruction by MHADA is covered by Regulation 33(9).
When the situation has been differently expressed in different
sections, the legislature must be taken to have intended to
express a different intention.
36
30. A survey conducted by the Corporation in 1980-81
showed that 30,237 buildings would have crossed their life
span by 1996. The Kerkar Committee report also recorded
that the vast majority of the buildings would have to be
reconstructed. The report on the Development Plan for Greater
Bombay showed that in 1981, 5,82,200 tenements were
required to house the natural growth of population.
31. In 1991 nearly 73% of the households occupied one
room tenements – vertical slums; 18% occupied two rooms i.e.
most of the persons – more than 90% lived in small areas.
Those occupying large areas constitute 2.7% only. Between
1961 and 1991, the number of households increased to
20,88,000. Most of the tenements are of 100 to 120 square
feet area only.
32. It is thus clear that the policy was to enhance the quality
of the lives of those living in such poor conditions by
increasing the living space to nearly double. This is to be
contrasted with the need to give a better lifestyle to those who
37
can afford it namely those who can afford the time to live a
leisurely life. If such people have to undergo some hardships,
the policy cannot be faulted especially when they constitute a
minority.
33. In interpreting a statute, the meaning of particular words
is to be found not so much in a strict etymological propriety of
language, nor even in popular use, as in the subject or
occasion on which they are used and object that is intended to
be attained.
34. The writ Petitioners did not challenge the validity of
Regulation 33(9) pertaining to reconstruction by MHADA or
Regulation 33(7) in so far as it applies to the reconstruction by
the Government or the Municipal Corporation even though the
FSI is the same. The proviso to Regulation 33(7) allows
Government, MHADA/Corporation to get even more than the
FSI specified in Appendix III.
38
35. Most of the buildings constructed prior to 1940 (17,490
buildings) were constructed prior to 1905. Most of the
buildings have outlived the period of their survival by 1979.
80% were occupying one-room tenements. [See: Vivian Joseph
Ferreira and Anr. v. The Municipal Corporation of Greater
Bombay and Ors. 1972 (1) SCC 70 (paras 9, 10 and 11).
36. In Mahadeolal Kanodia v. The Administrator General of
West Bengal (1960 (3) SCR 578), it was held that rules of
grammar require that an adjectival phrase qualifies the
proximate substance. [pages 584-585]. Applying that rule, the
term “which attracts the provisions of MHADA Act, 1976”
could only qualify the proximate substance “cessed building of
A category in Island city” and nothing more.
37. It would be seen that with respect to reconstruction of
buildings both Chapters VIII and VIIIA require the building to
be acquired by the Board for the reconstruction in terms of
Sections 92 and 103B (3). This is not the case with Regulation
33 (7).
39
38. Appendix III casts several duties on the Board for the
working of Regulation 33 (7) as inter alia:
(a) Clause 3 requires certification of the occupiers and
irrevocable consent to be certified by the Board;
(b) Clause 4 requires that the tenements have to be allotted to
the occupiers as per the list certified by the Board;
(c) Clause 11 requires the FSI as in Regulation 33 (7) should
be allowed only after the Board is satisfied that the
redevelopment proposal satisfies all the conditions to be
eligible for the benefits under the Regulations.
39. The challenge to the restriction of five feet open space
(1.5 metres) is hopelessly delayed and barred by time as inter
alia:
(i) the requirement of limiting the open space to five feet has
been in existence since 1984 and was also a part of
Development Control Regulation of 1991.
40
40. When the Board reconstructs a building it covers almost
the entire land save for five feet open space. The Sukthankar
Committee also recommended that the open space should be
5 feet. The challenge to the restriction of five feet open space
has been made on the basis that the open spaces are already
too low and that the DC Regulations made it even less. This is
a contention which was rejected by this Court in Bombay
Dyeing & Mfg. Co. Ltd. (3) v. Bombay Environmental Action
Group and Ors. (2006) 3 SCC 434) at paras 297 & 298.
41. The State and MHADA filed affidavits in CA 2970 of
2006 supporting the appeals. In the affidavit dated 12th
March filed by the State, it was set out that :
(i) The Tour Planning Act does not define category A cessed
buildings and the reference to the provisions of Development
Act were only to explain what the term “category A cessed
buildings” meant.
41
(ii) By and large the old buildings constructed prior to 1940
were built when there was no concept of FSI and the open
spaces were at times only 2 to 3 feet.
(iii) The width of most of the plots was about 30 feet and
requiring a 12 feet open space to be left would mean that
there would be no scope to redevelop the building.
(iv) Where a building was in the set back area as per the
development plan, the land covered by the set back area had
to be given to the authorities and the road was widened.
42. In the affidavit dated 17th March 2007 filed by MHADA, it
was set out that:
(i) Reference to Development Act is with reference to the
definition of cessed buildings which is not found under the
Town Planning Act or the DC Regulations and is found only in
the Development Act.
(ii) A perusal of Regulation 33 (7) shows that the emphasis is
on pre 1940 buildings and nothing more.
42
(iii) Confining Regulation 33 (7) to only the private buildings
and not the Government buildings would make the Regulation
arbitrary.
(iv) Under Regulation 33 (10) the open space is 5 feet and to
insist on 12 feet as per the High Court judgment it would
make the same unreasonable and prevent even buildings
which are on the verge of collapse from being redeveloped.
43. Above being the position, the inevitable conclusion is
that the High Court was not justified in reading additional
requirements into Regulation 33(7) after holding the same to
be valid. The appeals are allowed but in the circumstances
with no order as to costs.
44. In view of the order passed in Civil Appeal No.2970/2006
and other connected appeals, no order is necessary to be
passed in contempt petition.
…………………………..J.
(Dr. ARIJIT PASAYAT)
43
…………………………..J.
(P. SATHASIVAM)
New Delhi,
September 4, 2008
44