Document Fragment View

Matching Fragments

2. 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.

8. The present Public Interest Litigation has been filed by the petitioner with the primary object of protecting public open spaces in the city of Mumbai. The petitioner challenges the constitutional and legal validity of the Government Notification issued in 1992, as well as certain provisions of the Slum Act, to the extent they allow slum rehabilitation projects to be implemented on lands reserved for parks, gardens, playgrounds, roads, pavements, and other public open spaces (POS). It is the case of the petitioner that permitting construction and rehabilitation projects on such reserved open spaces amounts to diverting lands meant for public recreation and utility towards permanent and irreversible development activities, which is contrary to the purpose for which such lands were designated in the Development Plan. The petitioner submits that such action violates the right to clean and healthy environment under Article 21 of the Constitution of India and goes against the public trust doctrine, which mandates that resources like parks and gardens are to be preserved for the oswp1152-2002-J-Final.doc collective benefit of the public and not to be converted for other use, even under the garb of rehabilitation.

9. After taking cognizance of the concerns raised in the Petition, this Court, by way of an ad-interim order, passed a direction restraining the State Government and concerned authorities from sanctioning any new slum rehabilitation schemes on reserved open spaces, unless permission was specifically granted by this Court. The operative part of the said order reads as follows:

"Until further orders, no new rehabilitation scheme be sanctioned without the permission of this Court in respect of the open spaces which are reserved for gardens, parks, playgrounds, recreational spaces, maidans, no development zones, pavements, roads and carriageways."

12. In one of its significant interim orders in the present Petition, this Court recorded the statement made by the Secretary of the UDD, appearing on behalf of the State of Maharashtra. The Secretary submitted that:

"The State Government would devise schemes or incentives in order to free up the encroached RG/PG (Recreation Ground / Playground) open spaces, but that practical compulsions may make it difficult to completely exclude some extent of in situ rehabilitation."