Case Note & Summary
This public interest litigation, filed by three public-spirited citizens of Mumbai, challenged the legality of Regulation 33(7) of the Development Control Regulations, 1991, as amended in 1999. The impugned provision allowed private landlords in the island city to obtain a floor space index (FSI) of 2.5 or the FSI required for rehabilitation of existing tenants plus incentive FSI, whichever was higher, for reconstruction of dilapidated buildings. The petitioners, including a former Municipal Commissioner, a former Chief Secretary, and a civil engineer, contended that the island city's population had already exceeded its planned capacity of 32.5 lakhs, reaching an estimated 33.4 lakhs, and that the existing infrastructure—roads, water supply, sewage, and open spaces—was under severe strain. Over 16,500 pre-1940 buildings required urgent repair or reconstruction, largely due to frozen rents under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, which left landlords with insufficient funds. The State had created the Bombay Building, Repairs and Reconstruction Board (later subsumed by the Maharashtra Housing and Area Development Authority) and collected a cess from tenants to address the issue. The petitioners argued that the increased FSI under the amended regulation would exacerbate congestion and violate Article 14 of the Constitution. The writ petition was opposed by the State of Maharashtra, the Municipal Corporation of Greater Mumbai, and several interveners, including property owners and redevelopers. A Division Bench of the Bombay High Court had earlier passed a judgment on 17th October 2005, accepting certain grievances and appointing committees, but that order was set aside by the Supreme Court on 14th July 2006 in Civil Appeal No. 2970/2006. The Supreme Court directed the High Court to decide the basic challenge to the validity of the amended Regulation 33(7) and the maintainability of the writ petition within three months, while continuing its interim order of 21st April 2006 restraining creation of third-party rights without its leave. Following the Supreme Court's direction, the matter was heard by this Bench from 8th November 2006 to 23rd November 2006, and judgment was reserved. The judgment was pronounced on 11th December 2006; however, the text of the judgment provided here does not contain the court's analysis or final decision.
Issue of Consideration
Whether the amended Regulation 33(7) of the Development Control Regulations, 1991, insofar as it provides for floor space index (FSI) of 2.5 or more for reconstruction of buildings owned by private landlords in the island area of Mumbai, is legal and valid, particularly with respect to Article 14 of the Constitution of India; and whether the writ petition is maintainable.
Case Details
2006 LawText (BOM) (12) 19
Writ Petition No. 3189 of 2004
H.L. Gokhale, J.P. Devadhar
For Petitioners: Aspi Chinoi, Gautam Patel, Sharan Jagtiani; For Respondents: Ravi Kadam (AG), G.W. Mattos, K.K. Singhvi, Suresh Pakale, Preeti Purandare; For Interveners: T. Subramaniam, Chirag Balsara, Devrajan, Mrudula Kadam, Ashok Rajgopalan, George Das, A.N. Jakhadi, J. Reis, Vimal Tiwari, Y.M. Choudhari, Dharam Sharma, Manoj Thatte
Joseph Bain D’Souza, Cyrus J. Guzder, Shirish B. Patel
State of Maharashtra (through Secretary, Urban Development Department), Municipal Corporation of Greater Mumbai, Maharashtra Housing and Area Development Authority, D.M. Sukthankar
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Nature of Litigation
Public interest litigation challenging the legality of Regulation 33(7) of the Development Control Regulations, 1991, as amended in 1999, pertaining to extra FSI for reconstruction of privately owned buildings in the island city of Mumbai.
Remedy Sought
Petitioners seek a declaration that the amended Regulation 33(7) is invalid, particularly the provision granting FSI of 2.5 or the FSI required for rehabilitation plus incentive FSI, whichever is more, and to quash the same under Article 14 of the Constitution.
Filing Reason
The regulation allegedly permits excessive FSI leading to increased congestion, strain on inadequate infrastructure, and violation of the equal protection clause, as it arbitrarily benefits private landlords and developers.
Previous Decisions
A Division Bench of this Court had earlier passed a judgment on 17th October 2005, accepting grievances and appointing committees. The Supreme Court, by order dated 14th July 2006 in Civil Appeal No. 2970/2006, set aside that judgment and directed the High Court to decide the basic challenge to the validity of the amended Regulation 33(7) and the maintainability of the writ petition. The Supreme Court also continued its interim order dated 21st April 2006 restraining creation of third party rights without its leave.
Issues
Whether the amended Regulation 33(7) of the Development Control Regulations, 1991 is legally valid and does not violate Article 14 of the Constitution of India.
Whether the writ petition is maintainable.
Judgment Excerpts
the petition seeks to challenge the legality of Regulation No.33(7) of the Development Control Regulations, 1991 for the city of Mumbai, as amended in the year 1999, to the extent it provides amongst others that the buildings owned by private landlords in the island area of the city and covered for reconstruction thereunder are permitted Floor Space Index (FSI) of 2.5 or the FSI required for rehabilitation of existing tenants plus incentive FSI whichever is more.
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.
the amended Regulation 33(7) suffered from any infirmity.
the Apex Court had directed that no third party rights shall be created without leave of the Apex Court.
Procedural History
1. The writ petition (WP 3189/2004) was filed in 2004 challenging the amended DCR 33(7). 2. A Division Bench of the Bombay High Court passed a judgment on 17th October 2005, accepting certain grievances and appointing committees. 3. Intervener Jayant Achyut Sathe filed SLP (C) No.1376/2006, which was converted to Civil Appeal No.2970/2006. 4. The Supreme Court passed an order on 14th July 2006, setting aside the earlier High Court judgment and directing the High Court to decide the basic challenge to validity and maintainability within three months, while continuing the interim order of 21st April 2006 restraining third-party rights. 5. The matter was listed before this Bench on 18th September 2006, and notices were directed to interveners. 6. Chamber summonses for intervention were allowed on 9th October 2006. 7. Hearing took place from 8th November 2006 to 23rd November 2006, and judgment was reserved. 8. Judgment was pronounced on 11th December 2006.
Acts & Sections
- Constitution of India: Article 14
- Maharashtra Regional and Town Planning Act, 1966:
- Maharashtra Housing and Area Development Act, 1976:
- Bombay Rents, Hotel and Lodging House Rates Control Act, 1947:
- Bombay Building, Repairs and Reconstruction Board Act, 1969:
