It is most extremely significant to note that Bombay High Court which is one of the oldest and most esteemed High Courts in India in a most learned, laudable, landmark, logical and latest judgment titled NGO Alliance for Governance and Renewal (NAGAR) vs State of Maharashtra in Writ Petition No.1152 of 2002 and cited in Neutral Citation No.: 2025:BHC-OS:8961-DB that was reserved on May 3, 2025 and then finally pronounced on June 19, 2025 has minced absolutely just no words whatsoever to hold in no uncertain terms that the Constitution of India is a ‘living framework’ and the people living in slums or informal settlements are protected by the Constitution. It must be noted that a Division Bench comprising of Hon’ble Mr Justice Amit Borkar and Hon’ble Mr Justice Somashekhar Sundaresan refused to buy the specious argument that the only solution to retaining the open spaces in Mumbai is to enforce the laws strictly and evict the encroachers – slum dwellers. It was made amply clear in this 191-page sagacious judgment that the people living in slums or informal settlements are not outside the protection of the Constitution.
At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Mr Justice Amit Borkar for a Division Bench of the Bombay High Court comprising of himself and Hon’ble Mr Justice Somashekhar Sundaresan sets the ball in motion by first and foremost putting forth in para 1 that, “The petitioner, a public-spirited organization committed to the protection of public spaces, has approached this Court challenging the consistent use of public open spaces that are reserved for recreational purposes, for the purposes of implementing slum rehabilitation schemes. The grievance primarily revolves around the State’s Notification issued in the year 1992 by the Urban Development Department (“UDD”), and also challenges the later Regulation 17(3)(D)(2) of the Development Control and Promotion Regulations, 2034 (hereinafter referred to as DCPR 2034), which was brought into effect by an amendment notified in the year 2022.”
To put things in perspective, the Division Bench envisages in para 2 stating that, “As per the newly inserted Regulation 17(3)(D)(2), it is now permitted that open spaces (which are otherwise non-buildable and reserved under the Development Plan for parks, gardens, playgrounds, etc.) and which exceed 500 square meters in area, can be used for slum redevelopment schemes, subject to the condition that at least 35% of the ground area is kept vacant and continues to serve the designated public reservation. However, the petitioner submits that the said Regulation, in effect, legalizes the diversion of up to 65% of the land from its reserved public use for the purpose of construction, thereby significantly diluting the purpose of reservation and denuding the city of its much-needed green and open spaces. This, according to the petitioner, is directly against the letter and spirit of sustainable development and the public trust doctrine, which require that public assets such as parks and open spaces be preserved for collective enjoyment of the community, and not be sacrificed to accommodate encroachments or private development, even under the banner of welfare schemes.”
It is worth noting that the Division Bench notes in para 312 that, “In our view, the State, through this Regulation, is not violating the public trust. Rather, it is trying to fulfil two constitutional goals: (i) to protect and revive open spaces for public use; and (ii) to provide dignified and secure housing to slum dwellers, thereby upholding the ideal of social justice. Both these objectives are part of Article 21 of the Constitution, and are also supported by the Directive Principles of State Policy.”
Most significantly and so also most remarkably, the Division Bench encapsulates in para 290 what constitutes the cornerstone of this notable judgment postulating that, “This concept of balancing rights is firmly recognised in our constitutional law. Article 21, which has been expanded through judicial interpretation, includes not just the right to life, but also the right to live with dignity. This includes both the right to a clean and healthy environment and the right to proper housing. These two rights are not in conflict in fact, they complement each other. A house without basic living conditions is not truly a shelter, and a clean city that excludes the poor from access to it cannot be called fair or just.”
Quite significantly, the Division Bench propounds in para 321 holding that, “The constitutional right to housing for the slum dwellers cannot be protected by compromising the right of other citizens to live in a healthy, inclusive and environmentally balanced urban area. Both these rights are part of Article 21, and both must coexist. This balance must be achieved not through vague assurances, but through clear, concrete, and enforceable duties placed upon the authorities. Accordingly, we propose to issue certain directions and clarifications to ensure that the implementation of Regulation 17(3)(D)(2) in future is carried out in a manner that genuinely respects the public nature of open spaces, helps to reclaim and conserve them, and protects the environmental and civic rights of all citizens. These directions are not meant to obstruct the Government’s policy, but to strengthen it, so that its twin objectives (i) to provide dignified housing to slum dwellers, and (ii) to recover and preserve part of the land as open space, are both truly fulfilled, not merely in theory, but in real and visible effect.”
Most forthrightly, the Division Bench expounds in para 351 holding that, “Consequently:
(i) We hold that Regulation 17(3)(D)(2) of the Development Control and Promotion Regulations, 2034 is well within the powers delegated to the State Government under the Maharashtra Regional and Town Planning Act, 1966. The Regulation was brought into effect after following the required statutory process, starting with publication of a draft, inviting public objections and suggestions, scrutiny by the Planning Committee, and final approval under Section 31 of the MRTP Act. We find no procedural irregularity or legal flaw in the way the Regulation was enacted. Hence, it is valid in law.
(ii) We are of the view that the distinction made in the Regulation, between encroached open lands and non-encroached ones, and between plots above and below a certain size, is based on clear and logical criteria. This classification has a direct and reasonable connection with the aim of the Regulation, which is to provide in-situ rehabilitation to slum dwellers and, at the same time, preserve open spaces where feasible. The policy is applied uniformly, is guided by measurable conditions, and attempts to balance two important public concerns. It is not arbitrary or discriminatory and does not violate Article 14.
(iii) We agree that the right to a clean and healthy environment is a part of the right to life under Article 21, just as the right to shelter and a dignified life is also protected by the same Article. The Regulation, if implemented as it is intended and along with the safeguards we propose, does not amount to a denial of the right to environment. Although it does reduce the open space originally reserved on paper, it ensures that at least 35% of the land is kept open, developed as a public amenity, and preserved. At the same time, it provides better housing and infrastructure to slum residents. This approach does not destroy environmental values, it tries to recover some environmental benefit from already encroached lands while also recognising the housing rights of the urban poor.
(iv) We are satisfied that the Regulation is not based on arbitrary administrative decision-making. It is supported by facts, expert input, and urban planning reports, including the Afzalpurkar Committee Report. The Regulation reflects a practical approach to a difficult and long-standing issue, namely, that removing all slums may not be possible, and losing all open space is not acceptable. It is a balanced policy that aims to recover a part of the land while also ensuring humane rehabilitation. This approach is neither unreasonable nor unconstitutional.
(v) We have considered the key environmental principles cited, precautionary principle, sustainable development, and the public trust doctrine. These are indeed important constitutional doctrines and must guide all decisions of the State involving public land, environment, and welfare. However, in this case, we do not find that the Regulation goes against those principles. On the contrary, it retains a defined portion of land as public open space, requires proper development of that space, and mandates that it be handed over to the local authority for public use. These steps reflect an attempt to respect environmental obligations, even while addressing the ground-level challenges of slum housing. The precautionary principle, as explained earlier, is best applied in cases where the environmental harm is unknown or irreversible. Here, the impact is known and limited, and the Regulation represents a planned and controlled response, not a blind risk. However, the public trust doctrine serves as a reminder that even partial changes in the use of public lands must be watched closely. Any reduction in civic open spaces, even for a public purpose, requires proper justification and must not result in abuse or neglect. The 35% land promised for open use must be genuinely made available, and not be reduced to a formality. Poor planning, inaccessibility, or lack of maintenance would defeat the purpose. To ensure this, we will issue clear directions to guide how the Regulation should be carried out. These directions will help make sure that the open spaces reclaimed under the scheme are real, usable, and beneficial to the public, and that the public trust in such lands is not lost, even as the State takes steps to fulfill other duties under Article 21.”
Be it noted, the Division Bench notes in para 355 that, “We, therefore, decline to strike down Regulation 17(3)(D) (2). The writ petition, to that extent, stands dismissed. However, keeping in mind the important constitutional values involved, such as the need to protect the environment, the public trust doctrine, the rights of slum dwellers, and the goal of sustainable development, we have exercised our powers under Article 226 of the Constitution and issued specific directions (i) to (xvii) earlier in this judgment.”
Further, the Division Bench directs in para 356 stating that, “In the result, and subject to the above directions, the Rule stands discharged. There shall be no order as to costs.”
Furthermore, the Division Bench then further directs in para 357 holding that, “Let a copy of this judgment be forwarded to the Chief Secretary, Government of Maharashtra, for appropriate action and circulation to all departments and authorities concerned with the subject.”
What’s more, the Division Bench then further directs and holds in para 358 that, “List the writ petition for compliance on 4th December 2025.”
Finally, the Division Bench then aptly concludes by directing and holding in para 359 that, “Interim Application No.1771 of 2022, and Interim Application (L) Nos.28459 of 2021 and 30716 of 2021 stand disposed of in terms of this order.”
Sanjeev Sirohi