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Bombay High Court
Joseph Bain D'Souza And Ors. vs State Of Maharashtra And Ors. on 17 October, 2005
Equivalent citations: 2005 (6) BomCR 543, (2005) 107 BOMLR 565
Author: D Chandrachud
Bench: D Bhandari, D Chandrachud

JUDGMENT

D.Y. Chandrachud, J.

I

Page 568

1. The issues which are raised before the Court by three citizens define for the present and will determine for posterity the quality of life for the residents Page 569 of the island city of Mumbai. The questions which confront the Court present on the one hand the dangers of urban disruption brought about by unchecked construction and on the other hand the need to protect the constitutionally guaranteed right to life of the large, if even silent, majority. With the destruction that was caused in the aftermath of monsoon rains this year in Mumbai, a hard look at them cannot be postponed. The urban environment of Mumbai is perched upon a precipice, one where the dividing line between existence and destruction is so tenuous as to leave an observer to question whether it exists. Every urban disaster is a grim reminder of the many more waiting to happen unless lessons are learnt and corrective measures taken. The issues are not free of complexity, but they must be confronted, if future generations are not to look upon this one as having presided over the urban destruction of Mumbai.

2. Much of the material that has emerged before the Court in these proceedings makes startling and disturbing reading. At the heart of the problem are the provisions of Development Control Regulation 33 (7) which allow incentives in the form of an additional Floor Space Index (FSI) of between 50% to 70% for the redevelopment of buildings in cessed Category A - those which were constructed prior to 1st September, 1940. Of the 19644 cessed buildings in the island city, 16502 belong to cessed Category A. A committee of two Senior District Judges which was appointed by this Court has demonstrated in its report how erstwhile structures comprising of one or two storeys have been demolished to avail of a virtually unchecked FSI under Development Control Regulation 33(7) giving way to gigantic towers of between 20 and 40 storeys overlooking, and in some cases touching the roadline of narrow streets. The Commissioners have found an instance where in a proposal under DCR 33(7), a commercial hotel touching the roadline has come up in the heart of the City and that a building consisting of a ground and two upper floors has given way to a new structure of 16 storeys. There is a serious burden on the existing infrastructure, something which neither the State nor the Municipal Corporation disputed before us. Every index of civic amenities such as water, waste disposal, transport and health care is under a severe strain against the weight of population in Mumbai. Open spaces are woefully inadequate -spaces for recreation are a mirage for the young and the elderly. The contamination of drinking water with sullage led to an outbreak of hepatitis in the not too distant past. The antiquated sewerage system is in urgent need of repair. In this background, the grievance of the Petitioners before the Court is that with an infrastructure which is critically overstretched and inadequate, it is arbitrary and unreasonable to grant additional or incentive FSI for the reconstruction of buildings which are not unsafe or beyond economic repair and in the face of the Report of an expert committee appointed by the Government which had suggested a limit on FSI of 4.

3. The credentials of the Petitioners before the Court have not been questioned. One of them is a former Municipal Commissioner and a former Chief Secretary of Maharashtra. The second is a Member of the Maharashtra Heritage Conservation Committee, besides being a Trustee of the Bombay Environment Action Group and of the Prince of Wales Museum. The Third is a Civil Engineer, Page 570 who for 13 years was a member of the Executive Committee of the Bombay Metropolitan Authority, a part of the Slum Rehabilitation Committee and has served with the City and Industrial Development Corporation of Maharashtra which set up the town of Navi Mumbai.

II

4. The city of Mumbai witnessed a large influx of population from within and outside the State at the turn of the 20th century. A significant segment of the work force was absorbed in textile mills. Areas around textile mills, such as Parel, Lalbag, Girgaon, and the docks witnessed the construction of buildings with small tenements of an area between 70 to 100 sq. ft. Most of these chawls were characterised by common toilet blocks on each floor. It was not uncommon for a tenement in the chawls to be occupied by large families consisting of near and not so near relatives who came to Mumbai in search of work. Many of the rooms in the chawls were let out by landlords. The climatic and weather conditions in Mumbai often resulted in the corrosion of steel and wooden beams used in construction. These buildings were not RCC structures. A need was perceived to constitute a body that would oversee the construction of new houses for the lower and middle income groups since the chawls were insufficient to cater to the massive influx of population. The Bombay Housing Board Act, 1948 was enacted with a view to provide for the construction of new houses for persons belonging to the low and middle income groups. Close on the cessation of hostilities in the Second World War, the Bombay Rent and Lodging House Rates Control Act, 1947 came to be enacted. The Rent Act froze rents as on 1st September, 1940. While the Rent Act was intended to protect tenants from the burden of increasing rents, it also had the effect of depriving landlords of resources that would sustain the maintenance of tenanted buildings. Buildings were neglected by landlords and some of them in due course came to be dilapidated. Between 1960 and 1970 many of these buildings showed signs of disrepair and there were instances of collapse. In 1969, the State Government stepped in to provide for the constitution of a Board under an enactment known as the Bombay Building Repair and Reconstruction Board Act 1969. The Board was charged with the responsibility of carrying out repairs to old private buildings and of ensuring reconstruction where it was necessary. The Act of 1969 provided for the imposition of a cess which was primarily to be used for carrying out repairs to old and dilapidated buildings.

5. The constitutional validity of the Bombay Buildings Repair and Reconstruction Board Act 1969 was challenged before the Supreme Court in Vivian Joseph Ferreira v. The Municipal Corporation of Greater Bombay, . The challenge was inter alia on the ground that the imposition of a cess on residential buildings, which were in sound and good condition, and which would not require structural repairs for the entire period of the Act, was an unreasonable restriction and that the Act failed to recognise the material differences between buildings in relation to their physical condition. The Supreme Court noted that one of the features of the city was that a large percentage of residential buildings have been constructed several years earlier Page 571 and being an island city with limited construction space buildings had to expand vertically. The type of construction was that buildings were built on timber frames; several had 5 or 6 storeys with one or two room tenements, each of which was habited by a large number of persons. The saline atmosphere of the city coupled with the absence of repairs began to have its toll and there were collapses of houses which were virtually unknown in pre-war days. The Supreme Court noted that rents have been frozen under the Rent Control Act and that 17490 buildings of a total of 36,000 surveyed by the Corporation had outlived their lives and that by 1980 the rest would also have outlived their existence. In these circumstances, the Act was enacted to deal with the problem of only residential houses. The Supreme Court held that the legislature was justified in confining its attention to residential buildings where the distress was more acute. The legislature, the Supreme Court held, had two alternatives, the first being the reconstruction of a large section of the city and replacing new buildings in place of the old; while the second was preserving and prolonging the life of existing structures by carrying out structural repairs and alterations. The first option was liable to create legal and economic problems and hence, the legislature had considered it fit to confine its attention to the second option. The object of the Act was not to repair all residential premises but to preserve and prolong their life in order to avert the dilemma caused by the acute shortage of residential accommodation on the one hand, and the reluctance or inability of owners to carry out repairs. The levy of a cess for funding such repairs was consequently upheld by the Supreme Court.

6. The State legislature enacted the Maharashtra Housing and Area Development Act, 1976 inter alia to unify, consolidate, and amend the laws relating to housing, repair and reconstruction of dangerous buildings and for carrying out improvement work in slum areas. Chapter VIII of the Act enacted provisions for the repair and reconstruction of dilapidated buildings. Section 82 provides for the levy of a cess for the purposes of the Chapter. Section 84 classifies cessed buildings into three categories with reference to the year of construction, these being : (i) Category A : Buildings erected before 1st September, 1940; (ii) Category B : Buildings erected between 1st September, 1940 and 31st December, 1950; and (iii) Category C : Buildings erected between 1st January, 1951 and 1969.

7. Section 76 casts a duty on the Board to (i) undertake and carry out structural repairs to buildings in order of such priority as the Board considers necessary, without recovering expenses from owners or occupiers; (ii) provide temporary accommodation to occupiers while repairs are undertaken or when a building collapses; (iii) undertake the work of ordinary and tenantable repairs; (iv) move the Government to acquire old and dilapidated buildings which in the opinion of the Board are beyond repair and to reconstruct new buildings thereon; (v) move the Government to acquire old and dilapidated buildings which were structurally repaired by the Board when any further repairs are not possible or economical; (vi) construct transit camps to provide temporary accommodation; (vii) demolish dangerous and dilapidated buildings which are not capable of being repaired at reasonable expense. Section 88 of the Act empowers the Board to undertake structural repairs to buildings Page 572 which the Board is satisfied are in a ruinous or dangerous condition, subject to a statutory maximum in terms of value per square meter defined by the legislative provision. Section 92 empowers the Board to submit a proposal to the Government for the acquisition of a building inter alia where the Board is of the opinion that it is not capable of being repaired or rendered fit for habitation at reasonable expense and is dangerous or injurious to the health and safety of the inhabitants.

III

8. The Development Control Regulations for Greater Mumbai were notified on 25th March, 1991. These Regulations form part of the Development Plan under Section 22(m) of the Maharashtra Regional Town Planning Act, 1966. The Floor Space Index for the Residential Zone in the island city, under Development Control Regulation 32, is 1.33. The Development Control Regulations brought in the concept of TDR (an acronym for Transferable Development Rights) by which the development potential of a plot of land is separated from the land and is made available to the owner of the land in the form of a Development Rights Certificate. Development Control Regulation 34 and Appendix VII provide for Transferable Development Rights (TDR) in the form of additional FSI which is granted in lieu of the surrender of land reserved for public purposes. Clause 10 of Appendix VII prohibits the use of TDR in the island city. The prohibition is in view of the fact that the area of the island city is congested and the infrastructure overburdened. Clause 11 prohibited the use of TDR in the three corridors adjoining the Western and Central Railways. By a subsequent amendment Clause 11 permitted the use of slum TDR in the three corridors. However, in view of the congested state of the island city, slum TDR is not permitted to be utilized in the island city. The only TDR which can be used in the island city is 'Heritage TDR' that is available in respect of heritage structures.

9. Development Control Regulation 33(7) regulates the reconstruction of cessed A category buildings. As it originally stood, Development Control Regulation 33(7) provided as follows :

"Regulation 33(7) : Reconstruction or Redevelopment by co-operative Housing Societies, or of old buildings belonging to the Corporation. For reconstruction/ redevelopment to be undertaken by co-operative Housing societies in respect of cessed properties located in the Island City which attract the provisions of Maharashtra Housing and Area Development Act, 1976, or by Cooperative Housing Societies of landlord, and occupiers of a cessed building of category A subject to the provisions of the said Act and for reconstruction / redevelopment of buildings of the Corporation constructed before 1940, the floor Space Index shall be 2.00 or the consumed floor space index of the existing old building whichever is more. This FSI will be subject to the Regulations in Appendix III so far as construction or redevelopment by such co-operative Housing Societies is concerned."

(emphasis supplied).

10. An objective standard was hence prescribed for determining what would be the FSI in the new building. That would either be 2 or the consumed FSI of the existing building whichever is more.

Page 573

11. Appendix III stipulated that (i) All occupants of the old building shall be accommodated in the redeveloped building; (ii) The list of occupants and the area occupied by each in the old cessed building shall be certified by the Bombay Housing and Area Development Board; and (iii) Marginal open spaces on all sides shall be atleast 1.5 mtrs.

12. On 13th June, 1996, the State of Maharashtra constituted the Sukhtankar Committee (named after its Chairman Shri. D.M. Sukhtankar, who was formerly a Chief Secretary of the State) in order to make "recommendations for the amendment in the legal provisions which are in force regarding the repairs and reconstruction of the old and dilapidated buildings". The Sukhtankar Committee submitted a report in July 1997 containing recommendations in regard to the reconstruction of dilapidated buildings. The Committee recommended that FSI be increased to 2.5 or the consumed FSI and that additional FSI be made available for providing accommodation of a minimum area of 225 sq. ft. to the existing tenants. The categoric recommendation of the Committee was that FSI of more than 4 should not be permitted in the island city under any circumstances. The Sukhtankar Committee noted in paragraph 6.5 of its report that even if there is no alternative, but to rehabilitate the tenants in their existing locations, an excess FSI (above 4) which may be necessary for that purpose would result into buildings of an excessive height and an increase in the density of population. This would be injurious both to property and to human life and to obviate the danger therefrom the Committee opined that in no circumstances should the FSI on an existing plot be allowed to exceed 4. The Committee observed that otherwise the adverse consequences of an unchecked growth upon open spaces, ventilation, urban facilities, traffic and fire fighting requirements would "lie beyond imagination".

13. Between 1991 and 1999 MHADA is stated to have approved the reconstruction of 318 buildings with FSI ranging up to 2. On 25th January, 1999 Development Control Regulation 33(7) came to be amended. By and as a result of the amendment, the FSI available in Development Control Regulation 33(7) for the reconstruction/ redevelopment of cessed A category buildings is thus : "The floor space index shall be 2.5 on the gross plot area or the FSI required for rehabilitation of existing tenants plus incentive FSI as specified in Appendix III, whichever is more."

14. Clause 5 of Appendix III provides that the incentive FSI will vary between 50% to 70%. Clause 13 stipulates that since the permissible FSI is dependent upon the number of occupiers and the actual area occupied by them, no new tenancy created after 13th June, 1996 shall be considered. Thus, under the original provisions of Development Control Regulation 33(7), the FSI was allowed upto a maximum of 2 or the consumed floor space index of the old building, whichever was more. This is now replaced by a floor space index of 2.5 on the gross plot area or the FSI required for rehabilitating existing tenants plus incentive FSI. Since each existing tenant is required to be provided with a minimum of 225 sq. ft. and upto a maximum of 753 sq. ft., the floor space index varies with the requirement that is demonstrated for Page 574 rehabilitating the existing tenants. The incentive FSI is then added on to the basic FSI that is available.

15. The Petitioners have demonstrated before the Court on the basis of a statement filed by the Municipal Corporation that after 1999 when the amendment was brought about, MHADA has approved (i) 94 buildings with an FSI ranging from 4 to 11.41: (ii) 88 buildings with an FSI between 2.51 and 4: and (iii) 386 buildings with an FSI between 2.01 and 2.50. In 50% of the cases or more, additional FSI is stated to have been granted for rehabilitating the existing tenants upon which additional incentive FSI of 50% to 70% has been granted. Based on the approval by MHADA, the Municipal Corporation grants planning permission. According to the Petitioners, the FSI that is sanctioned by the Municipal Corporation is in most cases more than that approved by MHADA. In some cases the difference exceeds 10,000 sq.ft.; while in certain cases, the Corporation has sanctioned twice the area approved by MHADA. This is stated to have resulted in original buildings of between two to four floors being replaced by new towers of 10 to 40 floors which have been constructed on the footprints of the original building. Most of these 94 towers are stated to be constructed or as being constructed at a distance of 1.5 mtrs. or 5 ft. from adjoining buildings. Most of the buildings abut narrow roads and have no provision for on site parking.

16. On 13th May, 2003 the Vice president and Chief Executive Officer of MHADA issued a circular recording that there are cases where buildings are in excellent condition with few tenants and do not need reconstruction. However, in order to claim the extra FSI of 2.5, Builders/Developers persuade the existing tenants to give their consents. The circular states that such a tendency to redevelop buildings which are in excellent condition has to be discouraged. Paragraph 2 of the circular then referred to serious complaints in regard to the creation of fake tenancies on the basis of which enhanced FSI was being claimed in development proposals. A general complaint received in most of the cases was regarding fake tenancies shown by Developers in their proposals. The guidelines on the subject are stated to be very clear. The number of tenancies existing on 13th June, 1996 are frozen and therefore should not be exceeded under any circumstances. It was therefore necessary to see the authenticated record prior to 1996 to ensure the correct number of tenants on 13th June, 1996. The circular directed that it should be ensured that tenants who are in actual occupation of tenements are the same as those whose names appear in the proposal of the Developer.

17. The circular of the then Chief Executive Officer of MHADA was fairly remarkable in the candour with which it assessed ground realities. Not unexpectedly, an effort followed to dilute the rigour of the circular. On 18th August, 2004 a circular was issued by the First and Third Respondents clarifying that Clause 1 of the earlier circular dated 13th May, 2003 stands deleted. The new circular provided that changes as regards tenancies would be permitted, while developers would not be permitted to increase the number of tenancies. A suggestion to the effect that the distribution of tenements to the tenants, in the reconstructed building should be regulated by the Repair Board was overruled with a note that it is the responsibility of the Developer to do so and the Repair Board lacked the man-power to perform the task.

Page 575

18. During the course of the hearing of this Petition, material was placed before the Court demonstrating merit in the apprehension of the deleterious impact upon the infrastructure and the quality of life in the city as a result of the FSI available for development proposals under Development Control Regulation 33(7). By an order dated 5th April, 2005 this Court noted the allegation that cessed buildings of one or two storeys with only five or six genuine tenants have been replaced by huge skyscrapers of more than 20 to 40 storeys. Counsel appearing for the Petitioners and Counsel for the Intervenors had suggested that the Court may visit sites of cessed buildings where Development Control Regulation 33(7) projects had come up to obtain a clear and comprehensive picture. We deemed it expedient and proper to appoint a Committee of two judicial officers, who would visit ten cessed buildings, of which a list of five would be provided by the Petitioners and five by the Respondents, to be approved by the Advocate General. Accordingly, we appointed two of our senior Selection Grade District Judges, Mr. V.R. Kingaonkar, Registrar (Legal) and Mr. C.L. Pangarkar, Registrar (Inspection) to carry out the task. The judicial officers have submitted a comprehensive report. Following the report, we had permitted the counsel appearing on behalf of the parties and for the Intervenors to take inspection of the files of MHADA pertaining to five cases in which the Commissioners have found serious violations and an inflation of tenancies. Accordingly, files have been inspected by the learned Counsel; submissions have been filed before this Court and we have allowed a further opportunity to all counsel to urge their submissions or, as the case may be, objections before the Court. We have accordingly heard submissions at length. We now propose to indicate what has emerged therefrom.

III

19. The Report of the Commissioners and the MHADA Files

I) Imran Co-operative Housing Society Ltd.

[Sr. No. VI of the report of the Court Commissioners]

In the case of this building, the co-operative society/developer filed an application for redevelopment under Development Control Regulation 33(7) stating that there were 29 existing occupants/ tenements in 1996. The inspection extract of the Municipal Corporation certified that there were only 19 tenements for the year 1994-95. MHADA by its letter dated 13th August, 1996 set out the names of the tenants and the built up area and certified the existence of 29 tenements. This was in face of the fact that in 1997 a writ petition had been filed in this Court which showed that there were only 19 tenants in the building who were occupants of 19 flats. An undertaking was given to this Court on behalf of these 19 tenants. A statutory audit report of the co-operative housing society for 1997 also recorded that there were only 19 members whose names were furnished together with the numbers of the tenements. MHADA noted that its Executive Engineer had certified the existence of 29 tenements in 1996. However, having regard to the Municipal extract, MHADA excluded from consideration the 10 bogus tenements and granted the application on the basis of 19 tenements.

Page 576

20. The Petitioners have submitted before the Court that : (i) This building was at all material times owned by a co-operative housing society and since co-operative societies are specifically excluded from the levy of cess under the MHADA Act, this was not a cessed building and therefore, ineligible for reconstruction under Development Control Regulation 33(7); (ii) MHADA itself concluded that the certification of 29 tenements done by its Executive Engineer in 1996 was ex facie incorrect and false, something which is borne out by judicial records of this Court, the statutory audit and the Municipal record; and (iii) Though the application for permission under Development Control Regulation 33(7) was based on 29 tenements of which 10 were ex facie non-existent, such a fraudulent application was entertained by MHADA and allowed, albeit excluding from consideration the 10 bogus tenements. The Developer in such a case has nothing to lose - if a proposal founded on inflated tenancies passes muster, he avails of a windfall in terms of additional FSI. On the other hand, if the Authority decides to exclude fake tenancies, the proposal under Development Control Regulation 33(7) is cleared for the balance.

II) Siddhesh Apartment

[Sr. No. IX of the report of the Court Commissioners]

This development comprises of an amalgamation of Govardhan Niwas and Seksaria Building. The new building consists of a ground floor and 24 floors. The Court Commissioners have found in their report that in the case of Seksaria Building, 28 original tenements were inflated to 48 tenements and in the case of Govardhan Niwas, 31 existing tenements have been inflated to 41 tenements. In other words, the development proposal which was accepted shows a bogus inflation of 30 tenements. In the case of Govardhan Niwas, the inspection extract of the Municipal Corporation shows 31 tenements while there were 28 tenements in Seksaria Building. The modus operandi which has been followed is to show a sub-division of existing flats in Govardhan Niwas for example into flats which are numbered 5A, 8A, 17A, 24A, 26A, 26B, 27A, 28A and 28B. There was no sub-division according to the inspection extract. The same position obtained in the case of Seksaria Building. MHADA specifically noted in the files that the tenements which were claimed to exist have not been reflected in the inspection extract of the Municipal Corporation. MHADA nonetheless purported to accept such additional and bogus tenements on the basis of an ostensible physical verification though in most cases no documentary evidence showing the existence of such tenements in 1996 had been produced before or verified by MHADA. Thus in contrast with the Imran Cooperative Housing Society's case, where the additional tenements that were created were excluded from consideration since they were not reflected in the inspection extract, the inspection extract in the case of Seksaria Building and Govardhan Niwas was ignored in favour of an alleged physical verification. Seksaria Building originally consisted of a ground floor and three floors. Govardhan Niwas originally was a building of a ground and four floors. The reconstructed building consists of a ground floor and 24 floors.

III) Krishna Bhuvan

Page 577

[Sr. No. III of the report of the Court Commissioners]

In this case, a building comprising of a ground floor and two upper floors has been redeveloped into a structure consisting of a ground floor and 15 upper floors. Reaccommodation has been provided only on the first and second floors in the front portion whereas, the rest is in use as a commercial hotel touching the roadline. The report of the Court Commissioners is to the effect that there were at the highest 18 tenants in the original structure whereas MHADA has permitted reconstruction on the basis of 40 tenements/ occupants in 1996. On the inspection of the files, the Petitioners have pointed out before the Court that the application was made on behalf of one Krishna Shetty, the landlord/ owner of the building on the basis that there were 21 tenants occupying 37 tenements. Of these, 18 tenements are stated to be occupied by the landlord, his wife and their children. The Petitioners have established before the Court on the basis of the inspection of MHADA files that (a) 10 tenements were stated to have been occupied by Krishna Shetty, for all of which he produced and relied upon the same shop licence and the same electricity bill of 1992; there is nothing on record to show that the shop licence refers to all the 10 tenements. The electricity bill refers specifically only to Room No. 6 and the only other document produced by Krishna Shetty was a rent receipt issued by himself in February 1996; (b) For one tenement, Krishna Shetty's wife relied on the very same electricity bill of 1992; ( c) For two tenements, Krishna Shetty's son relied on an electricity bill of 2001 in the name of his mother, apart from which there is no document on the file; (d) For two tenements, Krishna Shetty's wife has relied on the same electricity bill of 2001 and a shop licence for a hotel from 1995; (e) For one tenement, the daughter of Krishna Shetty has relied on a rent receipt issued by her father in February 1996 while for another tenement there is no document whatsoever.

21. The Court Commissioners have also referred to a building by the name of Govind Niwas in which a main building consisting of a ground floor and four floors and an outhouse of ground and two upper floors is being replaced by a new building consisting of a ground floor and 17 floors. For the purposes of these proceedings, we have, however, considered it appropriate not to refer to the facts of Govind Niwas since a separate petition is pending before this Court (Writ Petition 1817 of 2003).

IV

Urban Planning and Development Control Regulation 33(7)

22. The report filed by the Court Commissioners before the Court demonstrates a pattern of conduct on the part of builders and developers by which the provisions of Development Control Regulation 33(7) have been utilized to subvert every conceivable norm of urban planning in order to promote their own rapacious ends. Unfortunately, MHADA which has to certify and scrutinize the list of tenants has chosen to look the other way for reasons which are not far to seek. MHADA has not been consistent with the norms which it applies in scrutinizing the claims of tenancies. It is obvious that even in the face of Municipal and other records showing a stipulated number of tenements and tenancies, an inflation of existing tenements has taken place on an ostensible Page 578 physical verification at site. A hotel has come up in the heart of the island city, under a development proposal with reference to Development Control Regulation 33(7). Large towers have come up in the veritable heart of the congested island city, virtually touching the road line. The roads overlooking these towers are in many cases not more than 25 feet in width. The deficiency in the open space requirement has on occasion been condoned by the Planning Authority. The unfortunate, if not stark reality is that the interests of the landlord, the tenant and the developer coincide in a redevelopment proposal under Development Control Regulation 33(7). Each is liable to become a willing participant in the scheme of the developer to increase the number of existing tenements by a bogus or fictitious inflation of tenancies that would only result in the enhancement of the incentive FSI. Development Control Regulation 33(7) provides an incentive FSI in the case of redevelopment proposals of Cessed A category buildings by co-operative societies of landlords, tenants or occupiers. What Development Control Regulation 33(7) does in effect is to provide a windfall to developers. The availability of FSI is irrespective of (i) the nature of the existing neighbourhood; (ii) the availability of civic services; (iii) the density of population; (iv) the ability of the area to sustain a surge in residents; and (v) the impact on the quality of life on traditional neighbourhoods in the island city. These neighbourhoods are the kernel of the middle class - they are under a threat of being swept away by the rash of constructions.

23. This then is a sombre reflection of the manner in which urban planning works in the city of Mumbai. The quality of the urban environment affects in a fundamental manner the right to life of the residents of the city. Courts are disinclined to enter upon lush fields of policy. The issue here is not one of policy but of the right to life under Article 21 of the Constitution. Urban planning is undoubtedly not a static concept. The urban planner is entitled to advance socio-economic objectives. The emphasis in the present case is not on the reconstruction of buildings per se, but on the incentive which Development Control Regulation 33(7) allows, as an incident of a proposal for redevelopment. These incentives have a serious impact on the quality of life in the island city. Undoubtedly, Cessed A category buildings are constructed prior to 1st September, 1940. Tenants residing in those buildings particularly such of them as are beyond economic repair have a legitimate claim for reconstruction. In many buildings the areas occupied by tenants are less than 225 sq. ft. and the planner can justifiably require the provision of at least a minimum size of dwelling accommodation (fixed at 225 sq. ft. by the Regulation). Incentives may be required to be provided to the developer who has to provide a minimum of 225 sq. ft. free of cost to tenants. A balance has to be made between the rights of tenants in dilapidated constructions and the rights of the community at large which faces the impact of the upsurge in population densities when huge residential towers come up in congested neighbourhoods. The grant of an incentive cannot be divorced from the necessity for reconstruction for it is then that the burden on infrastructure can be justified by a countervailing principle of the safety and welfare of the occupants of a Cessed A category building. Absent such a linkage, 16502 Cessed A category buildings will result in the replacement of existing Page 579 structures of a few storeys with behemoths without a semblance of an upgradation of the island city's infrastructure.

24. In its decision in Usman Gani J. Khatri of Bombay v. Cantonment Board, , the Supreme Court emphasized that the private interest of the land owner or builder must always be subservient to the public interest in an orderly urban environment:

"The slogan of the builders and land owners of utilising the maximum area for construction of high-rise buildings for fulfilling the need of houses in big urban cities should always be subservient to the building restrictions and regulations made in the larger interest of the whole inhabitants of Pune and keeping in view the influx of population, environment hazards, sanitation, provision for supply of water, electricity and other amenities."

25. In a more recent judgment in Friends Colony Development Committee v. State of Orissa , the Supreme Court emphasized the serious threat that was posed to ecology and to the environment and the unbearable burden placed on the infrastructure of water supply, sewerage and transport by unchecked urban development. The Court emphasized the role of urban planning in these observations : "In all developed and developing countries there is emphasis on planned development of cities which is sought to be achieved by zoning, planning and regulating building construction activity. Such planning, though highly complex, is a matter based on scientific research, study and experience leading to rationalisation of laws by way of legislative enactments and rules and regulations framed thereunder. Zoning and planning do result in hardship to individual property owners as their freedom to use their property in the way they like, is subjected to regulation and control. The private owners are to some extent prevented from making the most profitable use of their property. But for this reason alone the controlling regulations cannot be termed as arbitrary or unreasonable. The private interest stands subordinated to the public good. It can be stated in a way that power to plan development of city and to regulate the building activity therein flows from the police power of the State. The exercise of such governmental power is justified on account of it being reasonably necessary for the public health, safety, morals or general welfare and ecological considerations; though an unnecessary or unreasonable intermeddling with the private ownership of the property may not be justified."

26. In another decision arising out of a News Item Published in Hindustam Times in relation to the Pollution of the River Yamuna , the Supreme Court made these observations in the context of the relaxation of the building bye-laws in New Delhi:

"It is noticed that increase of FAR and increased density without corresponding increase in provision of services like water, power, Page 580 circulation, parks etc. would lead to making urban areas in Delhi uninhabitable and lead to ecological degradation and urban degeneration. Hence, upgradation of services was considered essential before any relaxation in bye-laws could be considered."

While permitting a relaxation of the FAR sought by the Municipal Corporation of Delhi and the Union of India, the Supreme Court noted that this was only to allow for an increased number of floors with an undertaking that no additional dwelling units would be created. The Court noted that various Committees had suggested that it would not pose a stress on services as long as additional dwelling units were not permitted. The Court held that this would only allow a little more accommodation without adding to the burden on infrastructural facilities. In clear contrast what is taking place in the present case is a substantial enhancement of the number of dwelling units; an increase in the density of population without even an incremental enhancement of civic services including water supply, open spaces and public transport. The situation of the infrastructure in the island city must now be evaluated.

V

Civic Infrastructure

27. The Report on the Development Plan for Greater Bombay 1964 states that the total area of the island city is 17,388.83 Acres and the ultimate population that the city can hold would be 32.5 lacs. The present population of the island city which is 33.4 lacs is already in excess of what was stipulated almost 40 years ago as the population holding capacity of the island city. The Petitioners have pleaded and set up the acute deficiency of infrastructure in the island city. There are categorical averments that the existing infrastructure in the island city - consisting of roads, water supply, sewerage and open areas amongst others - is overstretched and under extreme strain. There is a limited scope for increasing the width of roads, the extent of open areas and for augmenting infrastructure in the island city. The State Government and the Municipal Corporation have accepted this position. The Development Control Regulations, therefore, provide that Transferable Development Rights (TDR) granted in respect of land required for public purposes and TDR in lieu of slum rehabilitation projects cannot be utilized for construction activities in the island city. The Petitioners have adverted, as an example, to the development taking place in the congested areas of Girgaon within a 1 km. radius around Harkisandas Hospital. On the date of the institution of the proceeding there were as many as 5 to 6 major projects under Development Control Regulation 33(7), some as high as 40 storeys. The Petitioners have expressed a grave apprehension of the increase in congestion in an already congested neighbourhood once new high rise constructions in excess of 15 to 20 storeys are put up. One of the extrapolations made by the Petitioners postulates that at present approximately 297 cessed buildings have been reconstructed with an additional incentive FSI between 50 and 70%. Since there are approximately 16,200 cessed buildings, if the figures of additional occupants generated by 297 buildings is statistically extrapolated to all the buildings, it would result in an additional occupancy or population by approximately Page 581 17 lacs or increase in 50% of the total population of the island city. This exercise in statistical extrapolation made by the Petitioners may or may not necessarily be accepted, but the principle which the Petitioners seek to espouse does not brook any answer. There was not even an attempt on the part of the State, in the submissions of the Advocate General to demonstrate that the existing infrastructure can cope with an additional population. Indeed, it is significant that neither the State Government nor for that matter, the Municipal Corporation have attempted to rebut the fundamental premise of the Petitioners in regard to the inadequacy of the infrastructure in the island city of Mumbai. Neither the Learned Advocate General nor the learned Counsel appearing on behalf of the Municipal Corporation made any effort to displace the submissions made on behalf of the Petitioners highlighting the grievous impact of the additional construction on the already depleted infrastructure of the city. The opposition in these proceedings has come from the Property Owners Association. The affidavit filed by the Association does admit that in 2003 the demand for water was for 3500 million litres per day, but the Corporation could supply only 2950 million litres per day, making a short fall of 550 million litres per day. In a study report of the TIFR, upon which the Petitioners have relied, it has been stated that there was a short fall of 552 million litres per day between the demand for and the supply of water for the Bombay Metropolitan Region in 1995. In their submissions, the Petitioners have highlighted that even these figures of shortages are based on an artificial and inadequate norm of 135 litres per capita per day in high rise buildings, 90 litres per capita per day for the chawls and 45 litres per capita per day in the slums. The Municipal Corporation is stated to release water for less than two hours every day in large segments of the island city and most high rise buildings are required to resort to water supplied through tankers which is itself susceptible to the spread of disease and infection. The attention of the Court has been drawn to the fact that the Municipal Corporation has issued press statements to the effect that no new constructions will receive water until the year 2007.

28. The position in regard to the inadequacies of water supply is not any different in relation to waste disposal and the sewerage system. The sewers in the island city are antiquated. Particularly in the island city the sewerage lines have not seen any significant renewal or improvement. In so far as open spaces are concerned, when the development plan for 1964 was being prepared, it was noted that a standard of half an acre per 1000 population was feasible within city limits and that a higher standard of 4 Acres could be adopted for the suburbs. Thus, as far back as in 1964, the parameters that were fixed for the island city were substantially lower than those for the suburbs. Presently Mumbai's average is only 0.03 Acres per 1000 population. That the roads in the island city are totally inadequate to deal with the number of vehicles needs no emphasis. The Mumbai Metropolitan Regional Development Authority ('MMRDA') has in a report in connection with the Mumbai Urban Infrastructure Project noted that the city of Mumbai with its present population of over 12 Million generates more than 120 Million daily passenger trips which are catered by the suburban railways and the public transport bus services provided by BEST. The ever growing vehicular and Page 582 passenger demands, coupled with constraints on capacity augmentation of the existing network, have according to MMRDA resulted in chaotic conditions during peak hours. There is similarly a woeful inadequacy of health care and education facilities.

29. The severe deficiencies of infrastructure in the island city of Mumbai were taken note of in a Report of a High Powered Steering Committee for dilapidated houses, appointed by the Government of Maharashtra in its report of 1986. The Kerkar Committee, as it is known, noted in paragraph 4.4 of its report that it was the stance of the Housing Department of the State Government that the grant of an additional or incentive FSI should be confined to those buildings which were beyond economic repair. In paragraph 4.5 the Committee noted that any additional FSI would add to the congestion in the already congested areas of the city. The Municipal Corporation had calculated that if a relaxation was permitted to all the buildings where the scheme then proposed was feasible, an additional population of 3.25 lacs could be expected. However, it was noted that all cessed buildings would be eligible for the scheme which, it was observed, had not been the recommendation of any of the Committees. The Sukhtankar Committee which was appointed by the State Government in June 1996 adverted to the unimaginable consequences in the island city, particularly upon the urban environment if the FSI were to be indefinitely relaxed. The Committee expressed grave concerns in regard to safety and the quality of life. The Sukhtankar Committee recommended a grant of incentive FSI only to buildings which fell into cessed categories A and B and which were in a dangerous condition. The recommendations of the Sukhtankar Committee proposing a cap of 4 on the FSI allowed for projects under Development Control Regulation 33(7), must therefore be understood in the background of the near unanimity of expert opinion on the inability of the infrastructure to cope with the burden of an increasing population.

30. In this background, it would be necessary to make a reference to some of the other provisions in Development Control Regulation 33 relating to the relaxation of FSI norms. Development Control Regulation 33(5) makes provision for low cost housing schemes of MHADA, for the economically weaker sections and for the low income groups. For such schemes, an increased FSI is allowed to the extent of 20% over and above what is normally permissible viz. 1.33. In other words, the total FSI that is permissible is 1.33 plus 0.27 or 1.60. Development Control Regulation 33(6) provides for the reconstruction, in whole or in part, of buildings which have ceased to exist as a result of an accidental fire, collapse or demolition by reason of the buildings having been declared to be unsafe under a lawful order. The FSI that is permissible is not to exceed that of the original building or the FSI permissible under the Regulations whichever is more. Development Control Regulation 33(6) takes within its purview all buildings which existed on or after 10th June, 1977 irrespective of whether the building is cessed or uncessed. Development Control Regulation 33(10) similarly provides for rehabilitation projects in slum areas. The maximum FSI that is permissible in respect of a slum redevelopment scheme is 2.50. It is only in the case of Development Control Regulation 33(7) that a virtually unchecked provision Page 583 has been made for the grant of an FSI together with incentives which are liable to vary from 50% to 70%.

VI

31. In structuring the approach of the Court in proceedings such as these, several principles must be placed in balance. The first circumstance which must be kept at the forefront is that the jurisdiction of the Court under Article 226 has been invoked in a Petition that has been filed in the public interest. The nature and ambit of the jurisdiction of the High Court while dealing with a public interest litigation will merit some reflection. There is a challenge in these proceedings to the vires of Development Control Regulation 33 (7) inter alia on the ground that the effect of the provision is to allow a large windfall of incentive FSI which seriously impinges upon the right to life of the residents of the island city under Article 21 of the Constitution. In Guruvayoor Devasom Managing Committee v. C.K. Rajan, , the Supreme Court held that "ordinarily, the High Court should not entertain a writ petition by way of public interest litigation questioning the constitutionality or validity of a statute or a statutory rule" (para 50(xi) page 571). The expression ordinarily is suggestive of the fact that the rule is not inflexible. Nonetheless before the High Court does entertain a challenge to the constitutional validity of a statute or a statutory rule in a petition filed in the public interest, exceptional circumstances must be demonstrated to exist in order to justify recourse to the extraordinary jurisdiction. For instance, in Prof. Yashpal v. State of Chhattisgarh, , the Supreme Court entertained a challenge to the Chattisgarh Niji Kshetra Vishwavidhyalaya (Sthapana Aur Viniyaman) Adhiniyam, 2002 in a public interest petition and quashed the provisions of Sections 5 and 6 where there was a clear want of legislative power in the State legislature. In Guruvayoor Devasom (supra), the Supreme Court clarified that the Court did "not intend to lay down any strict rule as to the scope and extent of a public interest litigation, as each case has to be judged on its own merits".

32. The second circumstance is that the provisions of Development Control Regulation 33(7) are an intrinsic part of the development plan for Greater Mumbai brought into force under the provisions of the Maharashtra Regional and Town Planning Act 1966. The Act of 1966 mandates due observance of statutory procedures in the making and publication of a Development Plan. These statutory procedures include surveys, preparation of land use, inviting of objections, modifications and a final notification enforcing the plan. The State Government in notifying the Development Control Regulations acts as a delegate of the State legislature.

33. Another and the third important facet of the matter which must be emphasized is that the mere possibility of the abuse of a provision by those Page 584 in charge of administering it cannot be a ground for holding the provision to be procedurally or substantively unreasonable. (A. Thangal Kunju Musaliar v. M. Venkatichalam Potti, , Collector of Customs v. Nathella Sampathu Chetty, (1962) 3 SCR 786, State of Rajasthan v. Union of India,- . Mafatlal Industries Ltd. v. Union of India, , In a recent decision in Sushil Kumar Sharma v. Union of India, , the Supreme Court laid down the principle of law thus : "From the decided cases in India as well as in the United States of America, the principle appears to be well settled that if a statutory provision is other wise intra vires, constitutional and valid, mere possibility of abuse of power in a given case would not make it objectionable, ultra vires or unconstitutional. In such cases, "action" and not the "section" may be vulnerable. If it is so, the court by upholding the provision of law, may still set aside the action, order or decision and grant appropriate relief to the person aggrieved."

34. Litigation instituted bonafide in the public interest is an important instrument in aid of the judicial power under Article 226 of the Constitution. Recent decisions of the Supreme Court emphasize that Courts must carefully scrutinize whether their jurisdiction has been invoked in furtherance of genuine causes and not for an oblique motive. Unfortunately, contemporary experience shows that the spurt in public interest litigation has given rise to litigation which is initiated not genuinely in the public interest, but as a means of securing private ends or, as it were, of settling private scores. These proceedings do not belong to that genre. Each of the Petitioners before the Court has a bona fide record of public service and there is not even a suggestion before the Court that their motivations have been anything, but proper.

35. A significant purpose of the evolution of public interest jurisprudence in India is the effort on the part of the Courts to ensure the structural regularity of decision making by the executive. In a democratic society the executive is accountable to society and must be responsive to the needs of its citizens. In a society governed by the rule of law, the executive has to be even handed in the administration of law. In vital areas of decision making, the law commands the executive to take into consideration diverse social needs and circumstances. Many of those needs have legal recognition in terms of rights. Some of those which lie at the root of a civilized system are recognized as fundamental in a constitutional system based on ordered liberty. Hence, in the context of a judicial system such as ours, where Courts are the interpreters both of legislation and of valuable constitutional safeguards, public interest litigation has assumed an important role of ensuring that the decision making process is orderly, that it takes into account constitutional rights and principles and that decisions are not based on considerations that are alien Page 585 to norms of rectitude. Governance in a civil society must be founded on fairness and transparency. The powers exercised by Courts in matters of public interest have advanced the principles of structured decision making by the executive and its instrumentalities. Public interest litigation is an important instrument of seeking the establishment of structural due process in the Indian legal system.

VII

36. The material before the Court amply demonstrates that the problem of fake tenancies has assumed a serious dimension. The problem is now of such a magnitude that unless it is tackled with a sense of purpose, it would imperil all the fundamentals of urban planning in the metropolis. Builders and real estate developers have unfortunately obtained the benefit of a regulatory system which is inconsistent and lacking in transparency. The brazen manner in which tenancies have been inflated with bogus claims is the result of a deep and pervasive malaise in the system. The regulator has chosen to blink, to nod and to look the other way. The certification process by MHADA is seriously flawed. The report of the Commissioners before this Court is a striking commentary on the manner in which the process of certification has ignored or in cases, overlooked the creation of fake tenancies. Such a state of affairs cannot be allowed to perpetuate itself. There has been a serious failure on the part of MHADA to control these wrong doings.

37. In our view, it is necessary that there should be an independent monitoring mechanism. The process of certifying tenancies in pursuance of proposals under Development Control Regulation 33(7) should be scrutinized and screened by an independent Screening Committee, presided over by a former Judge of this Court. Since the functions of the Committee will entail an investigation of facts, the Committee shall also consist of a retired District Judge. The Committee must have the assistance of representatives from MHADA and of the Municipal Corporation. We accordingly constitute a committee consisting of (i) Mr. Justice V.P. Tipnis, Former Judge of this Court; (ii) Mr. P.L. Joshi, Former District Judge; (iii) An Additional Municipal Commissioner to be nominated by the Commissioner of the Mumbai Municipal Corporation; (iv) The Vice President and Chief Executive Officer of MHADA; and (v) Mr. N.V. Merani, former Principal Secretary, Public Works Department; and (vi) Mr. Vidyadhar K. Phatak, former Chief Planner, MMRDA. The Committee shall have the power to scrutinize and certify the list of tenants submitted with each development proposal under Development Control Regulation 33(7). For the aforesaid purpose, the Committee shall lay down the parameters that shall be observed in the process of certification. In carrying out the task of certification, the Committee shall have due regard to the municipal assessment record, the electoral roll and such other public records maintained in the ordinary course by a statutory or public authority as the committee may consider it proper to accept as genuine and authentic. All the pending development proposals under Development Control Regulation 33(7) shall also be submitted to the Committee for verification and certification. The Committee shall endeavour to complete its investigation in each case and certify the list of tenants within a period of sixty days of the receipt of the initial list with the recommendations of MHADA and necessary documentary Page 586 evidence. The Committee will be at liberty to inspect the concerned cessed building in order to verify the position in regard to genuine tenancies.

38. The experience gained by the State Government, and by the Planning Authority in regard to the implementation of the amended provisions of Development Control Regulation 33(7) must warrant a considered fresh look. Development Control Regulation 33(7) was amended in 1999. Planning is not a static process, and the statutory authorities entrusted with responsibilities in the area of urban planning should consider the operation and impact of Development Control Regulation 33(7) so as to determine what modifications are necessary in public interest. This is essentially a matter where the urban planner must take a considered decision. The Government of Maharashtra shall hence reconsider the provisions of Development Control Regulation 33(7) and determine whether appropriate modifications of the Regulation are necessary. In order to facilitate the exercise and in order to enable the State Government to have the benefit of a carefully researched analysis, we have considered it appropriate to constitute an expert and broad based Committee. Mr. Justice S.P. Bharucha, former Chief Justice of India has consented to act as the Chairperson of the Committee. Besides the Learned Chairperson, the Committee shall consist of the following members :

-(i) Mr. N.N. Shrikhande, Structural Engineer,

-(ii) Mr. Vidyadhar K. Phatak, former Chief Planner, MMRDA,

-(iii) Mr. P.M. Apte, former Architect and Chief Planner, HUDCO,

-(iv) Mr. N.V. Merani, former Principal Secretary, PWD,

-(v) Mr. G.S. Pantbalekundri, former Deputy Secretary, Urban Development Department, Government of Maharashtra,

-(vi) Mr. Sitaram J. Kunte, Vice President & CEO, MHADA,

-(vii) Mr. U.P.S. Madan, IAS.

The Committee will be at liberty to set down its own procedure and to conduct public hearings to solicit the viewpoints of a cross section of the interests affected including tenants, landlords and property owners and residents. The State Government shall provide secretarial assistance and other assistance to the Committee. The Chief Secretary shall facilitate the work of the Committee by ensuring that necessary arrangements are made in accordance with the directions of the Chairperson. The Committee is requested to endeavour an early submission of its report to the State Government, preferably within six months of the date of the first meeting. We direct the State Government to consider the Report of the Committee and arrive at a final decision within a period of three months of the receipt of the Report. In the meantime and until a final decision is taken by the State Government, proposals with reference to Development Control Regulation 33(7) shall be processed in accordance with the directions issued hereafter, subject to the condition that the list of tenants shall be certified by the monitoring committee appointed by this Court.

39. Without laying down an exhaustive catalogue of considerations for the State Government, we would emphasise some of those which emerge from the aforesaid discussion :

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i) FSI defines the buildable potential of a plot of land. Allowable FSI must bear a rational relationship to the availability of civic infrastructure including water supply, sewerage, transport, electricity and open spaces. An increase in FSI is liable to result in an increase in the density of population. FSI has an important bearing on the quality of urban life. A relaxation of FSI norms or, as the case may be, an enhancement of FSI by urban planners cannot be disembodied from the adequacy, or as the case may be, an inadequacy of civic services;

ii) Development Control Regulation 33(7) provides for FSI of a kind and nature which is not available under any of the other cognate provisions of the Regulations namely, Development Control Regulations 33(5), 33(6) and 33(10). None of these other provisions allow development without a cap on FSI;

iii) The Sukhtankar Committee suggested a ceiling on FSI of 4 citing in support of its recommendation the unimaginable consequences for the city if this was not imposed;

iv) The provisions of Development Control Regulation 33(7) have resulted in a windfall for builders without any real protection to tenants. MHADA has by its decision of 18th August, 2004 recorded that it is not its obligation to oversee the actual rehabilitation of tenants and this, must rest in the contractual realm between the developer and the tenant. The Repair Board is said to lack the manpower to perform the task. Unless protective provisions are made to ensure the actual rehabilitation of tenants, an exodus of tenants away from the island city is liable to result under the provisions of Development Control Regulation 33(7). Development Control Regulation 33(7) should not become a convenient instrument of obtaining vacant possession from old tenants and depriving them of their age old residences in conventional neighbourhoods;

(v) Development Control Regulation 33(7) does not necessarily ensure that the projects that are pursued with priority are in respect those buildings where conditions of habitation or of structural disrepair are of a serious nature. In one of the submissions filed before the Court by the Federation of Old Buildings Co-operative Housing Societies' and Tenants' Association, it has been pointed out that a large number of projects under Development Control Regulation 33(7) have been undertaken for redevelopment in prime localities where the rates for the sale of flats are between Rs. 6,000/- to Rs. 8,000/- per sq. ft. or more. Moreover, it has been stated that MHADA has not indicated as to how many permissions were granted for redevelopment of chawls with tenements of less than 225 sq. ft. and on the other hand how many old, but well maintained buildings with residential flats situated in prime localities such as Matunga, Dadar -Parsi Colony, Dadar - Hindu Colony, Shivaji Park and Prabhadevi were allowed to be demolished under the scheme of Development Control Regulation 33(7). Hence, one of the issues which merits serious consideration is the need to ensure that the focus of redevelopment is concentrated on those buildings in which living conditions and structural stability require the most immediate attention. Otherwise builders and developers only target those properties wherein the greatest commercial Page 588 potential is available, defeating thereby the object and purpose of Development Control Regulation 33(7);

vi) The problem of fake tenancies reflects a complete and total failure of MHADA to exercise its regulatory powers in accordance with law. The systematic manner in which tenancies have been inflated could not have been possible without the collusion and connivance of the officials of MHADA with builders and developers. There is a complete absence of consistency in the application of norms to redevelopment projects under Development Control Regulation 33 (7);

vii) There is admittedly a serious deficiency of infrastructure. Consideration should be devoted by the urban planners and by the Government to the likely impact of an increase in the density of population on the strained infrastructure of the island city. The replacement in traditional middle class neighbourhoods of one or two storeyed structures with towers between twenty and forty storeys is bound to impact upon the conditions of life of all existing residents. The severity of the impact merits a scientific assessment;

viii) There have been liberal grants of exemption from the requirement of marginal open spaces without regard to the systemic impact on the quality of life;

(ix) Another issue of vital importance is as to whether the benefit of DCR 33(7) should be given at all to every occupier irrespective of whether the nature of occupation was lawful at the inception of occupancy. There are valid reasons for protecting persons who came into occupation as tenants. Section 2(25) of the Maharashtra Housing and Area Development Act, 1976, defines the expression "occupier" to include inter alia any person who is liable to pay to the owner damages for the use and occupation of any land or building. Since the additional FSI to be granted under DCR 33(7), has a material bearing on civic infrastructure, it needs consideration by the Committee as to whether any benefit should be granted to a trespasser who has no lawful right of occupation.

40. These considerations must be weighed and balanced with the need to provide conditions for dignified existence to those occupants who reside in Cessed A category buildings. The right to housing is a basic human right. Many of the Cessed A category structures are in urgent need of repair or replacement. Constructed with the aid of building patterns then in vogue, these buildings have suffered the ravages of nature and of human neglect. The saline conditions of Mumbai are a source of considerable erosion. Many of those buildings lack facilities as elementary as a self contained toilet attached to a tenement. Hence, the preservation of the balance of life warrants a balance between competing equalities. The impact of an additional population on the existing civic services is one facet of the impact on the quality of life. The other is the need to ensure dignified conditions for tenants of buildings constructed prior to September 1940. The balance is not easy to define but a balance has to be made on the basis of a considered understanding of all the facets of a complex problem.

41. While concluding, we draw upon these reflections of Mr. H.M. Seervai in a paper entitled "Justice" which he presented to the Bombay Philosophical Society in 1952 :

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"We talk of life as a journey, but how variously is that journey performed. There are some who come forth girt and shod and mantled to walk on velvet lawns and smooth terraces where every gale is arrested and every beam is tempered. There are others who walk on the Alpine paths of life against driving misery and through stormy sorrows over sharp afflictions, walk with bare feet, and naked breast, jaded, mangled and chilled."

(Quoted in Evoking H.M. Seervai compiled by Feroza H. Seervai (2005) pp 144-145).

42. The serious destruction caused by the monsoon rains of 2005 in the city of Mumbai renders a considered review by the State Government a matter of grave urgency. There are sobering lessons which emerge from the dangers of rampant urban growth. The State Government must consider its response, to salvage what remains of Mumbai.

43. By an interim order dated 26th October 2004, Respondent Nos. 1 to 3 were restrained (i) from granting any permission for reconstruction under DCR 33(7) unless the cessed building in respect of which permission was sought, was first verified and found to be dilapidated, unstable and unsafe by a panel consisting of Civil/Structural Engineers to be appointed by Respondent Nos. 1 to 3; (ii) from granting basic FSI in excess of 2.5 or the FSI actually consumed in the existing building plus incentive FSI under Appendix-III, subject to the Commissioner being permitted to grant additional FSI, by a reasoned order, where the applicant satisfies the Commissioner that such additional basic FSI is required for the rehabilitation of existing tenants occupying tenements on 13th June 1996 of less than 225 sq.ft. The Commissioner was permitted to do so after a full and proper scrutiny and verification of existing tenements and tenancies claimed to exist as on 13th June 1996, with reference to the municipal assessment record, voters' list and other public/statutory records; and (iii) from converting any non-cessed building into a cessed building or from approving any plans under DCR 33(7) regarding any converted building. In pursuance of the order of the Court, a Committee of three Civil/Structural Engineers was constituted. By our order dated 6th May 2005, we recorded the statement of Counsel for the Municipal Corporation that in pursuance of the order of the Court dated 26th October 2004, all plans which were not in excess of FSI 2.5 are being processed by the Municipal Corporation. We direct that until the Committee chaired by the Hon'ble Shri Justice S.P. Bharucha, former Chief Justice of India, submits its report and the State Government takes a final decision on the amendments necessary to DCR 33(7), the interim order dated 26th October 2004 shall continue to operate. Since the verification of tenancies has been directed to be carried out by the Committee headed by the Hon'ble Shri Justice V.P. Tipnis, we clarify that the decision of the Commissioner on whether additional FSI should be granted as a special case for the purposes of rehabilitating existing tenants, occupying tenements on 13th June 1996 of less than 225 sq.ft., shall be taken on the basis of the verification of genuine tenancies by the Committee.

The Petition is disposed of in these terms. There shall be no order as to costs.