Is Shifting Slum Dwellers to the Outskirts Justified? Bombay High Court Upholds Inclusive Housing

In a landmark judgment delivered on June 19, 2025, the Bombay High Court addressed the contentious issue of slum rehabilitation in Mumbai’s congested landscape. The case, NGO Alliance for Governance and Renewal (NAGAR) & Ors. v. State of Maharashtra & Ors., revolved around whether lands reserved for open spaces under the city’s Development Plan (DP) could be lawfully used for rehabilitating slum dwellers.

The Court’s analysis and final ruling uphold the principle of inclusive housing without compromising the integrity of planned urban spaces, reshaping the debate on the rights of slum dwellers vis-à-vis environmental and civic priorities.

Background of the Dispute

Mumbai’s urban sprawl has long been marked by a shortage of planned housing and a proliferation of slums. Public lands reserved for parks, gardens, and playgrounds have often been encroached upon by informal settlements. In 2002, public interest litigation was filed by NAGAR, challenging state notifications that permitted slum rehabilitation on such reserved lands. The petitioners argued that diverting public open spaces for construction violated principles of sustainable development and constitutional guarantees under Articles 14 and 21.

A significant point of contention was Regulation 17(3)(D)(2) of the Development Control and Promotion Regulations, 2034 (DCPR 2034), which permits slum rehabilitation on open spaces exceeding 500 sq. meters, subject to 35% of the area being kept vacant for public use.

Petitioners’ Concerns: Loss of Open Spaces

The petitioners, supported by environmental advocates and urban planners, contended that:

• Regulation 17(3)(D)(2) effectively legalises construction on up to 65% of reserved open land.
• This dilutes the purpose of reservations made under the DP and deprives citizens of essential green spaces.
• Allowing such rehabilitation sets a precedent for legitimising encroachments and undermines planning laws.

The PIL relied heavily on constitutional doctrines like the right to a clean environment (Article 21), sustainable development, and the public trust doctrine, which mandates that the State preserve public resources for collective use.

State’s Justification

The Maharashtra Government and the Slum Rehabilitation Authority defended the regulation by arguing that:

• In-situ rehabilitation is a humane and practical approach to resolving slum crises.
• Uprooting slum dwellers to city outskirts violates their rights to livelihood and education.
• Regulation 17(3)(D)(2) strikes a balance by preserving a portion of the land for public use while addressing housing shortages.

The State also submitted that the impugned regulation was not an arbitrary departure but a continuation of the 1992 policy, modified to reflect ground realities and the growing need for housing.

Role of the Court: Balancing Competing Interests

The Bombay High Court’s judgment, delivered by a Division Bench of Justices Amit Borkar and Somasekhar Sundaresan, carefully considered the competing rights of slum dwellers and the larger public interest.

Key findings include:

1. No Absolute Right to In-Situ Rehabilitation: While slum dwellers have a right to housing, it is not absolute or site-specific. The Court observed that no individual has a vested right to demand housing on land reserved for public amenities.
2. Planning Mandates Prevail: The use of public open spaces must be governed by statutory planning frameworks. Allowing widespread construction on these lands would irreversibly alter Mumbai’s urban fabric.
3. Precautionary Principle: The Court emphasised the application of this environmental law doctrine, holding that public authorities must anticipate and prevent environmental degradation rather than justify it retrospectively.

Environmental and Constitutional Dimensions

The Court delved into the environmental jurisprudence evolved by the Supreme Court, citing precedents such as:

• Bangalore Medical Trust v. B.S. Mudappa (1991): Land reserved for public parks cannot be used for any other purpose, even for socially beneficial ones like hospitals.
• MCGM v. Kohinoor CTNL Infrastructure (2014): Highlighted Mumbai’s low per capita open space and the need to augment it.

These judgments collectively established that the right to life under Article 21 includes the right to access green and recreational spaces, essential for physical and mental well-being.

Doctrine of Public Trust and Urban Planning

Applying the public trust doctrine, the Court held that lands reserved for parks and gardens are public assets. The State acts as a trustee and cannot dispose of such lands without overriding public necessity. The Court clarified that practical compulsions or encroachments cannot justify the erosion of public interest embedded in statutory development plans.

Moreover, the planning history—from DCR 1991 to DCPR 2034—revealed a progressive weakening of safeguards. Earlier policies required at least 1,000 sq. meters and 25% encroachment for rehabilitation. The new regulation, in contrast, permits use even without existing encroachment—a move the Court found troubling.

Urban Equity v. Environmental Justice

The judgment also addressed a critical urban dilemma: How to ensure housing equity without compromising environmental justice?

Relocation vs. In-Situ: The Court acknowledged the State’s efforts to avoid displacement. However, it affirmed that when lands are designated for parks or gardens, relocation becomes constitutionally and statutorily necessary.

Equity in Open Space Access: Mumbai’s per capita open space—less than 1 sq. meter—is among the lowest globally. Children and the urban poor, already living in congested conditions, bear the brunt of such scarcity.

The judgment thus advocated a middle path: rehabilitation must be inclusive but not at the cost of future generations’ rights to a livable city.

Court’s Final Observations

The High Court ultimately upheld the constitutional balance between:

• The right to shelter of slum dwellers, and
• The right to a clean and healthy environment for all city residents.

It reiterated that:

• Slum rehabilitation is a welfare goal but must comply with planning law.
• Any policy allowing housing on reserved lands must pass tests of rationality, environmental impact, and proportionality.
• Authorities must explore and prioritise alternative sites, especially when dealing with un-encroached reserved open spaces.

Key Highlights of the Judgment

Justice Somasekhar Sundaresan and Justice Amit Borkar, while delivering the judgment, stated: 

“Our decision should not be read as giving a free hand to the State to reduce open spaces in the city. The responsibility to maintain and increase open spaces continues. The State and local planning bodies must take concrete steps to improve the per capita open space availability, especially in areas where it is dangerously low.

These steps must include: Identifying and purchasing private lands that can be converted into gardens or parks; Turning unused NDZ areas or buffer lands into recreation zones where environmentally suitable; Strictly enforcing open space provisions in all layouts, residential or commercial. Preserving what remains is not enough. The city needs new and better open spaces for its growing population.”

Implications of the Judgment

This verdict sets a significant precedent in Indian urban law:

1. For Civic Bodies: It reinforces that they cannot alter land-use plans without compelling justification.
2. For Slum Dwellers: It acknowledges their right to dignified housing while cautioning against unrestricted expectations of in-situ rehabilitation.
3. For Urban Planners and Developers: It serves as a warning against using regulatory loopholes to bypass planning obligations.
4. For Future Policies: It mandates that environmental justice must be central to urban housing decisions.

Conclusion: Inclusive Housing with Environmental Caution

The Bombay High Court’s decision in NAGAR v. State of Maharashtra underscores that inclusive housing and environmental sustainability are not mutually exclusive. Rather than evicting slum dwellers to the city’s periphery, the State must identify viable, environmentally sound alternatives that honour both the rights of vulnerable populations and the collective urban need for breathable, green public spaces.

This judgment reminds us that while cities must shelter their people, they must also preserve their soul—and open spaces, once lost, cannot be reclaimed.