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oswp1152-2002-J-Final.doc

14. The stay originally granted by this Court in 2002-2003 thus continued to remain in force, ensuring that any proposal for slum rehabilitation on reserved open spaces could not be undertaken arbitrarily or without judicial oversight. The petitioner submits that this approach of this Court was and continues to be in consonance with the principles of constitutional governance, environmental justice, and inter-generational equity.

23. The impugned Regulation 17(3)(D)(2) and related executive actions of the Respondents violate these settled constitutional mandates. They allow large portions of public open spaces, meant for recreation, breathing, and community use, to be diverted for private or semi-private redevelopment purposes without any environmental safeguard or compensatory provision. Such actions go against the very essence of sustainable and inclusive urban planning.

24. The petitioner further submits that the impugned policy also violates Article 14 of the Constitution, which guarantees equality and prohibits arbitrariness. The regulation prioritizes private benefit over public interest, by enabling use of scarce public land for private construction; has no rational or scientific basis for deciding how much open space may be diverted, how the affected population will be compensated, or how environmental loss will be balanced; fails to assess the impact of the policy on the city's ecological balance, urban health conditions, and inter-generational equity; and does not explain or justify the allocation of valuable public land, a form of State largesse, for purposes which are not backed by any public interest test or environmental clearance.

33. Applying these principles to the present case, the petitioner submits that the impugned Regulation 17(3)(D)(2) of the DCPR 2034: fails to apply the precautionary principle, no environmental study or impact assessment has been carried out before allowing 65% of reserved open space to be diverted for construction; places no burden on the authorities or developers to show that such construction will not permanently damage the urban ecological balance; ignores the long-term environmental and public health consequences of reducing Mumbai's already scarce open spaces; does not consider future generations' rights, thus breaching the principle of inter-generational equity. Therefore, it is submitted that the impugned policy is contrary to the settled principles of sustainable development and precaution, and is liable to be struck down on this ground alone.

55. In light of the above, the petitioner submits that: The Planning Committee Report fails to justify the continuation of the accommodation reservation policy through Regulation 17(3)(D) (2); The figures and assumptions in the report are unreliable, misleading, and based on areas which are either inaccessible, privately held, or speculative; There has been no scientific, environmental, or town planning justification provided for why only 33% or 35% of reserved open space must be retained, and why the remaining land should be diverted to slum rehabilitation; The Respondents have not discharged their burden under the precautionary principle to show that the impugned policy is environmentally benign or sustainable in the long term. It is therefore submitted that the impugned Regulation 17(3)(D)(2), and the attempt to justify it by relying on the Planning Committee Report, do not satisfy constitutional requirements under Articles 14 and 21, nor do they conform to the principles of sustainable development, inter-generational equity, or public trust. The oswp1152-2002-J-Final.doc Planning Committee Report, far from constituting the basis for a new and improved policy, in fact confirms that the impugned Regulation is merely a continuation of the old scheme, repackaged without any meaningful evaluation or recalibration of its impact on the city's ecology, public health, or urban equity.