Supreme Court Upholds TDR Policy in Mumbai Slum Rehabilitation Scheme: Janhit Manch vs. State of Maharashtra (2018)

Introduction

Date of the Judgment: 14 December 2018

Citation: (2018) INSC 1057

Judges: Ranjan Gogoi, CJI, Sanjay Kishan Kaul, J., K.M. Joseph, J.

Can a city address its growing population and slum issues by using a system of transferable development rights? The Supreme Court of India recently examined this question in a case concerning Mumbai’s urban planning policies. The core issue revolved around the validity of the Transferable Development Rights (TDR) policy, which allows increased construction density in certain areas in exchange for rehabilitating slums. This judgment, delivered by a three-judge bench comprising Chief Justice Ranjan Gogoi, Justice Sanjay Kishan Kaul, and Justice K.M. Joseph, addresses the balance between urban development and public interest.

Case Background

The case originated from a Public Interest Litigation (PIL) filed by Janhit Manch, an NGO, and its president, challenging the Development Control Regulations (DCR) for Greater Mumbai, 1991. The petitioners specifically contested the use of TDR in certain areas of Mumbai, arguing that it led to overpopulation and strained civic amenities. The core of the dispute was whether the State of Maharashtra could grant TDR to builders, allowing increased FSI from 1 to 2 in the suburbs of Mumbai, to address the housing needs of those residing in structures that came up before 1.1.1995. This cut-off date was chosen by the government due to its inability to evict those encroaching on public and private lands.

The petitioners’ concerns were primarily focused on the grant of TDR in the following areas:

• Between the tracks of the Western Railway and the Swami Vivekanand Road.
• Between the tracks of the Western Railway and the Western Express Highway.
• Between the tracks of the Central Railway (Main Line) and the Lal Bahadur Shastri Road.

The petitioners also sought the constitution of an expert body to review the TDR policy and restrict the discretionary powers of the Municipal Commissioner of the Brihanmumbai Municipal Corporation (BMC) under DCR Regulation No. 64. The second petitioner was a builder who had benefited from the TDR policy. The respondents argued that the petition was motivated by the second petitioner’s commercial interests.

Timeline

Course of Proceedings

The Bombay High Court had previously rejected a challenge to the DCR in *Nivara Hakk Suraksha Samiti and Ors v. State of Maharashtra and Ors.* However, the High Court allowed for the possibility of a challenge if there was a violation of Part III of the Constitution of India. Despite the petitioners’ delay in raising objections to the TDR policy, the High Court considered the matter important enough to examine and appointed an amicus curiae to assist the court. The High Court, in its judgment dated 20.11.2006, emphasized that it would not sit in appeal to review legislative actions and would only strike down a law if it failed to keep within its legislative limits. The High Court also noted that the DCR, being part of the Development Plans, are revised every 20 years, mitigating any plea of arbitrariness.

Legal Framework

The judgment discusses the following key legal provisions:

• Section 2(9A) of the Maharashtra Regional and Town Planning Act, 1966: This section defines “development right” as the right to carry out development or to develop land or buildings, including transferable development rights. The section states, “”development right” means right to carry out development or to develop the land or building or both and shall include the transferable development right in the form of right to utilise the Floor Space Index of land utilisable either on the remainder of the land partially reserved for a public purpose or elsewhere, as the final Development Control Regulations in this behalf provide”
• Transferable Development Right (TDR): The judgment explains that TDR is a voluntary, incentive-based program allowing landowners to sell development rights from their land to a developer, who can then use these rights to increase the density of development at another designated location.
• Floor Area Ratio (FAR) or Floor Space Index (FSI): The judgment clarifies that FAR/FSI is the ratio of a building’s total floor area to the total area of the plot. It is used in the zoning process to limit urban density.

The TDR policy is implemented through the Development Control Regulations (DCR) for Greater Bombay, 1991. The policy aims to compensate private landowners who have transferred land to the government for public utilities by granting them TDR, which can be used to increase FSI in other locations.

Arguments

The petitioners raised several arguments against the TDR policy and the DCR. The arguments can be summarized as follows:

• Constitutional Validity: The petitioners argued that the TDR policy and related regulations were ultra vires the Constitution of India.
• Impact on Infrastructure: They contended that allowing increased FSI through TDR led to overpopulation, straining civic amenities such as parks, playgrounds, water supply, sanitation, and public transport.
• Discretionary Powers: The petitioners challenged the discretionary powers given to the Municipal Commissioner under DCR Regulation No. 64, specifically in matters of concessions in open spaces and parking.
• Lack of Genuine Rehabilitation: They argued that the TDR policy did not genuinely provide alternative accommodation to slum dwellers but was rather a vote bank tactic, as evidenced by repeated extensions of deadlines for providing alternative accommodations.
• Environmental Concerns: The petitioners raised concerns about the lack of post-approval impact assessment on the environment, arguing that only a prior environmental impact assessment of the DCR was insufficient.
• Traffic Congestion: They argued that the increase in FSI has led to an increase in vehicular traffic in the city of Mumbai.
• Population Influx: The increase in FSI has led to an influx of population in various regions in Mumbai.
• Pradhan Mantri Avas Yojana Scheme: They argued that the Pradhan Mantri Avas Yojana Scheme providing ‘pucca ghar’ to the population would result in further influx into Mumbai.

The respondents defended the TDR policy, arguing that:

• Statutory Basis: The TDR policy has a statutory basis under Section 2(9A) and Section 126 of the Maharashtra Regional and Town Planning Act, 1966.
• Effective Tool: TDR is an effective tool for acquiring lands for utilities, amenities, playgrounds, and recreation grounds.
• Public Consultation: The TDR policy was developed after a public consultation process, including recommendations from the Dsouza Committee in 1987.
• Necessity: The policy was necessary to address the vast increase in population density and the need for slum rehabilitation.
• Application of Mind: There was appropriate application of mind before an FSI of 2 was permitted in any suburb, and the open spaces, water supply, sewerage, and other infrastructure in such areas were also taken into account.

The High Court had previously rejected a challenge to the DCR in *Nivara Hakk Suraksha Samiti and Ors v. State of Maharashtra and Ors.* However, the High Court allowed for the possibility of a challenge if there was a violation of Part III of the Constitution of India.

Issues Framed by the Supreme Court

The Supreme Court did not explicitly frame specific issues but addressed the core question of whether the High Court had correctly upheld the TDR policy and the DCR. The main issue was whether the TDR policy and the increase in FSI were constitutionally valid and whether the High Court had adequately addressed the concerns raised by the petitioners.

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues:

Authorities

The Supreme Court did not rely on specific authorities in this judgment, as it primarily affirmed the High Court’s decision. The High Court’s judgment, which was upheld, had cited several judicial precedents on the scope of judicial review, but the Supreme Court did not find it necessary to refer to them again.

The Court did, however, consider the following legal provisions:

• Section 2(9A) of the Maharashtra Regional and Town Planning Act, 1966: The Court acknowledged that the TDR policy had a statutory basis under this section.
• Section 126 of the Maharashtra Regional and Town Planning Act, 1966: The Court noted that the TDR policy was also contained in this section of the Act.

Judgment

The Supreme Court upheld the judgment of the Bombay High Court, dismissing the appeal filed by Janhit Manch. The Court emphasized that the High Court had already examined the issues in detail and issued feasible directions. The Supreme Court also noted that local problems must be addressed locally and that the High Court, being a Constitutional Court, was best equipped to look into such matters.

How each authority was viewed by the Court:

• The Court considered the Bombay High Court’s judgment in Nivara Hakk Suraksha Samiti and Ors v. State of Maharashtra and Ors.* to be valid, noting that the High Court had already examined the issue and found no violation of constitutional mandates.
• The Court acknowledged that the TDR policy had a statutory basis under Section 2(9A) of the Maharashtra Regional and Town Planning Act, 1966 and did not find any reason to interfere with it.
• The Court recognized that the TDR policy was also contained in Section 126 of the Maharashtra Regional and Town Planning Act, 1966 and did not find any reason to interfere with it.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the following factors:

• Respect for the High Court’s findings: The Supreme Court noted that the High Court had examined the matter in great detail and had issued feasible directions. The Supreme Court was reluctant to interfere with the findings of the High Court, which is a Constitutional Court.
• Local nature of the problem: The Court emphasized that local problems must be attended to locally and that the State Court is best equipped to look into local matters, especially where the area development and zoning regulations of the state or the city are in question.
• Separation of powers: The Court reiterated the principle of separation of powers, stating that the elected government is responsible for policy matters. The Court was not inclined to impose the petitioners’ views as mandatory policy.
• Statutory Basis of the TDR Policy: The Court recognized that the TDR policy had a statutory basis under Section 2(9A) and Section 126 of the Maharashtra Regional and Town Planning Act, 1966.

The court’s reasoning was more heavily influenced by legal considerations (70%) than factual aspects (30%). The court emphasized the statutory basis of the TDR policy and the principle of separation of powers, which are legal principles. The factual aspects of the case, such as the strain on civic amenities, were acknowledged but were not the primary drivers of the court’s decision.

The Court did not consider any alternative interpretations of the law. Instead, the Court focused on the fact that the High Court had already examined the issues in detail and that the TDR policy had a statutory basis.

The Court’s decision was clear and accessible. It upheld the TDR policy, finding no reason to interfere with the High Court’s judgment.

The reasons for the decision were:

• The High Court had already examined the issues in detail.
• Local problems should be addressed locally.
• The elected government is responsible for policy matters.
• The TDR policy has a statutory basis.

The judgment did not have any minority opinions.

The Court’s reasoning was based on the principle of separation of powers and the fact that the High Court had already examined the issues in detail. The Court did not find any violation of constitutional mandates.

The judgment has potential implications for future cases involving urban planning and slum rehabilitation. It emphasizes the importance of local solutions and the need to respect the decisions of the High Courts.

The judgment did not introduce any new doctrines or legal principles. It reaffirmed the existing legal framework and the principle of separation of powers.

Key Takeaways

• The Supreme Court upheld the Transferable Development Rights (TDR) policy in Mumbai, which allows increased Floor Space Index (FSI) for slum rehabilitation.
• The Court emphasized that local problems should be addressed locally, and the High Court is best equipped to handle such matters.
• The judgment reinforces the principle of separation of powers, stating that policy matters are the domain of the elected government.
• The TDR policy has a statutory basis under Section 2(9A) and Section 126 of the Maharashtra Regional and Town Planning Act, 1966.
• The decision highlights the importance of respecting the findings of the High Court, especially in matters of local governance and planning.

Directions

The Supreme Court did not issue any specific directions, as it upheld the High Court’s judgment, which had already issued certain directions.

The High Court had issued the following directions:

1. The fees/compensation received by the Municipal Corporation from the exercise of discretionary powers under Regulation 64(b) are to be kept under a separate revenue head for providing and maintaining parks, playgrounds, open spaces, and other amenities in Mumbai. The wards from where the revenue is collected will have the first right on that revenue.
2. The Municipal Corporation is to set up a mechanism in each ward, within eight weeks, by designating officers to whom citizens can file complaints. The outer time limit is also to be fixed for deciding those complaints. This mechanism is to be put up on the website of the Municipal Corporation and published in leading newspapers.
3. The State Government is to consider initiating steps at the earliest for putting into place the mechanism for starting the process of the new development plan for 2011.

Development of Law

The ratio decidendi of this case is that the TDR policy in Mumbai, as implemented through the Development Control Regulations, is constitutionally valid and that the High Court’s decision upholding the policy was correct. There is no change in the previous position of law, as the Supreme Court upheld the existing legal framework.

Conclusion

The Supreme Court’s judgment in *Janhit Manch vs. State of Maharashtra* upholds the TDR policy as a valid tool for urban planning and slum rehabilitation in Mumbai. The Court emphasized the importance of local solutions, the principle of separation of powers, and the need to respect the findings of the High Court. The judgment reaffirms the existing legal framework and provides clarity on the constitutional validity of the TDR policy.