Case Note & Summary
Seven petitioners, all tax payers and rate-payers of the State of Maharashtra and the Municipal Corporation of Greater Bombay, filed a writ petition under Article 226 of the Constitution of India in the High Court of Judicature at Bombay. They challenged the validity of a notification dated 25th January 1999 which modified several provisions of the Development Control Regulations for Greater Bombay, 1991 (DC Regulations). The modifications included removal of height restrictions for reconstruction and redevelopment of old buildings undertaken under Regulations 33(7), 33(8), and 33(9), provided such buildings were not affected by Coastal Regulation Zone restrictions. Regulations 59 and 67 were also altered to relax height norms and exempt certain heritage buildings from restrictions. Regulation 33(7) was replaced, and Regulations 33(8) and 33(9) were amended to increase Floor Space Index (FSI) for reconstruction of cessed buildings and for housing the disshoused in the island city, with additional FSI not available when the owner undertakes development. The petitioners contended that these changes were not minor modifications permissible under Section 37(2) of the Maharashtra Regional Town Planning Act, 1966 (MRTP Act), but substantially altered the character of the Development Plan. They argued that the increase in FSI and height, without corresponding augmentation of essential services such as water supply, power, drainage, and sewerage, endangered public health and safety, caused severe strain on infrastructure designed decades ago, and violated their fundamental right to a clean environment under Article 21 of the Constitution. The petition also challenged an amendment to the definition of FSI by insertion of Section 2(13-A) through Maharashtra Act No. 39 of 1994, and sought quashing of Regulation 34 which permitted incentive FSI through Transfer of Development Rights (TDR) to be used on plots without adequate marginal side spaces. The petitioners further assailed a Municipal Corporation resolution levying fees for revalidation of building proposals. During the hearing, the Court noted its inability to issue mandamus to the legislature or its delegate to frame laws in a particular manner. The State and Municipal Corporation defended the modifications. After hearing extensive arguments from both sides, the Division Bench comprising Justices F.I. Rebello and Smt. V.K. Tahilramani delivered an oral judgment on 21st November 2006, the complete text of which is not available in the provided excerpt.
Issue of Consideration
Whether the modification of Development Control Regulations for Greater Bombay, 1991 vide notification dated 25th January 1999 is ultra vires Section 37 of the MRTP Act and violates Article 21 of the Constitution of India.
Case Details
2006 LawText (BOM) (11) 16
Writ Petition No. 283 of 2005
F.I. Rebello, Smt. V.K. Tahilramani
G. G. Kaleskar, A. C. Mahimkar, Ravi Kadam, Niranjan Pandit, K. K. Singhvi, A. Kamat, P. A. Purandare, R. M. Sawant, J. Reis, Y. M. Choudhari
State of Maharashtra & Ors.
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Nature of Litigation
Writ petition under Article 226 challenging the validity of modifications to the Development Control Regulations for Greater Bombay, 1991.
Remedy Sought
Petitioners seek quashing of notification dated 25th January 1999, which modified Regulations 31, 59, 67, 33(7), 33(8), 33(9), and related amendments regarding FSI definition and TDR usage; also seek quashing of building permissions and directions to amend regulations.
Filing Reason
Petitioners allege that the modifications are not minor changes, are ultra vires Section 37 of MRTP Act, and violate the right to clean environment under Article 21; they contend that increased FSI and removal of height restrictions endanger public health, safety, and infrastructure.
Issues
Whether the modifications to the Development Control Regulations for Greater Bombay, 1991 are ultra vires Section 37 of the MRTP Act as they are not minor modifications?
Whether the increase in FSI and removal of height restrictions, without augmenting essential services, infringe the right to clean environment under Article 21 of the Constitution?
Whether the impugned amendments are arbitrary, discriminatory, and amount to fraud on the statute?
Submissions/Arguments
Petitioners argued that the modifications are not minor and substantially change the character of the Development Plan, thus exceeding the power under Section 37(2) of MRTP Act.
They contended that allowing increased FSI and height without corresponding upgrade of essential services violates the right to clean environment under Article 21.
They submitted that the amendments defeat the purpose of the Development Plan and are unreasonable, capricious, and productive of public mischief.
They challenged the levy of fees for revalidation of building proposals as arbitrary.
Judgment Excerpts
The Petitioners are tax payers of the State of Maharashtra and rate-payers of Respondent No.2.
It is the submission of the Petitioners that the various amendments denies them the right to clean environment, recognized as part of right to life, under Article 21 of the Constitution.
Prayer Clause (i) seeks quashing the notification of 25th January 1999 and also the 1994 amendment of the definition of FSI, by insertion of Section 2(13-A) by Maharashtra Act No. 39 of 1994.
Procedural History
Writ Petition No. 283 of 2005 filed in the High Court of Bombay; heard on 21st November 2006.
Acts & Sections
- Maharashtra Regional Town Planning Act, 1966 (MRTP Act): Section 37(2), Section 2(13-A)
- Constitution of India: Article 21, Article 226
