Bombay High Court dismisses a Navi Mumbai open-space PIL, then tells the civic authorities they cannot play hide and seek with the public
Justices A.S. Gadkari and Kamal Khata hold that Chapter 10 of the UDCPR does not displace the planning authority's power to relax, while recording that the petitioner's RTI queries were answered belatedly and vaguely.
A retired executive who has lived in Navi Mumbai since 1980 argued in person that the municipal corporation had let five housing societies put their mandatory recreational open space on a podium instead of on the ground, in breach of a regulation that says it must be open to the sky and over and above any podium garden. A Division Bench of Justices A.S. Gadkari and Kamal Khata has dismissed his petition on a point of statutory construction, and listed a series of reasons why he was the wrong person to bring it. It then spent three paragraphs on the authorities, recording that his questions had gone unanswered and that the State cannot play hide and seek with the public.
The regulation, and what it appears to say
The petition under Article 226 sought a writ of mandamus quashing development permissions granted by the State and the Navi Mumbai Municipal Corporation to five cooperative housing societies for redevelopment projects. The petitioner, appearing in person, had retired in 2019 as a vice-president in a multinational British company and now takes up social causes concerning Navi Mumbai; he claimed to have been a member of an advisory committee formed by the Corporation.
His case rested on the Unified Development Control and Promotion Regulations, 2020, sanctioned by the State in December 2020 and applicable to Navi Mumbai from that date.
Chapter 10 of the UDCPR contains city-specific regulations and opens with the words “Notwithstanding anything contained in these Regulations”. Regulation 10.10.2 governs the reconstruction and redevelopment of buildings in CIDCO and Navi Mumbai Municipal Corporation areas, including buildings destroyed by natural calamity or fire, collapsed with age or demolished under the Commissioner's order. Within it, Regulation 10.10.2(3)(vi) provides that in a condominium or plot area it is mandatory to keep a minimum of 10 per cent or 15 per cent as compulsory recreational open space on ground, clearly open to sky, over and above a podium garden — the lower figure for land between 2,500 and 4,000 square metres, the higher for land above 4,000.
The Court set out the arithmetic that follows: on a 2,500 square metre plot, 250 square metres; on a 4,000 square metre plot, 600 square metres — on the ground, clearly open to the sky, and in addition to the podium garden.
The petitioner's argument was that the non obstante clause at the head of Chapter 10 makes Regulation 10.10.2 override everything else in the UDCPR, including Regulation 3.4 in the general chapter on land development requirements, so that the ground-level requirement admits of no concession. The Corporation, he said, had granted surplus benefits to developers by excusing them from providing that open space at ground level, for extraneous reasons.
Which way a non obstante clause cuts
The Bench accepted that the concern reflected a genuine public interest. Its stated object, the judgment records, was to caution architects, developers and planning authorities against using their professional expertise to flout mandatory provisions and secure concessions that defeat the legislature's intent of planned city development, and to warn them that such conduct will not go unnoticed.
It then decided the construction point against him.
Relying on Mohd. Abdul Samad v. State of Telangana, which in turn draws on Aswini Kumar Ghosh v. Arabinda Bose, the Court recalled what a non obstante clause does: it is appended to give the enacting part of a provision overriding effect in case of conflict with what is mentioned in the clause — and it is only where the enacting part cannot be read harmoniously with the non obstante clause that the clause yields. Applying that, the Bench held that Regulation 10.10.2(3)(vi) must necessarily yield to the other enacting provisions of the UDCPR and cannot override them. The word “notwithstanding” in Chapter 10 cannot be read to exclude the general regulations in Chapters 1, 2 and 3.
That matters because Regulation 2.4, in the general chapters, is the provision under which the planning authority may grant relaxation. On the Court's reading, the city-specific open-space requirement does not sit outside that power.
The Bench also drew out what the city-specific rule is for. In non-CIDCO areas no recreational open space is required at all where the land is under 4,000 square metres, and only 10 per cent where it reaches that size. In CIDCO areas 10 per cent is required once the plot exceeds 2,500 square metres and 15 per cent once it exceeds 4,000 — a stricter regime, not a self-contained one.
What the record showed
On the facts the Court found the petition wanting in several respects.
The relaxation actually sought in the project examined was for fragmenting the recreational ground area rather than reducing it, and the sanctioned plan and the environmental clearance showed the required area had been provided. The planning constraints placed before the authority when discretion under Regulation 2.4 was invoked were set out in the judgment: building height restricted to 130 metres, a road setback of about 124 square metres to be surrendered free of cost to the Corporation, which reduced ground coverage, and mandatory rehabilitation tenements for 288 original members with a minimum carpet area of 300 square feet, besides 29 units to be constructed for CIDCO and the Corporation.
The petitioner's own pleadings undid his case on arbitrariness. They recorded that of seven plots, the five respondent societies had been granted the concession and two had not — which, the Bench held, indicates that the authority applied its mind rather than granting relaxations as a matter of course. No perversity in the exercise of power under Regulation 2.4 was demonstrated.
His central factual proposition — that without ground-level open space the residents of the redeveloped societies would crowd the public open spaces — was held to be a bare assertion with no foundation laid for it. An order of the National Green Tribunal of September 2022 did not help him, because the environmental clearance had issued at the end of August 2022 and the order does not operate retrospectively. The redevelopments had obtained all required permissions including environmental clearance, and there was no material to suggest any of it was procured on false or fabricated documents.
The reasons the Court gave for doubting the petitioner
Paragraph 50 is unusually direct. The Court recorded that the petitioner has no expertise in the field, holds no qualification in town planning and has no special knowledge of building construction; that when the Corporation invited him to join its committee and assist it, he declined; that he offered no explanation for failing to raise the issue earlier, which supported the respondents' plea of delay and laches; that he had selected only five societies rather than all the projects granted concessions on open spaces; and that the petition was vague and devoid of particulars as to how the concessions were arbitrary.
Those observations, it said, lend credence to the respondents' assertion that the petitioner is motivated by publicity — adding, carefully, that it expressed no view on whether his actions were in fact well-intentioned.
And the reasons it gave for doubting the authorities
The three paragraphs that follow are addressed elsewhere, and they are the part of this judgment likely to be cited.
Public-spirited individuals who file such petitions, the Bench observed, often do so only to draw the Court's attention to lacunae on the part of authorities who frequently keep their decisions opaque — opacity that gives rise to suspicion and drives such petitions. On this record the assertions made it abundantly clear that the petitioner's queries were responded to belatedly and vaguely, and that some information sought under the Right to Information Act was never divulged. State authorities must be transparent in their functions and cannot play hide and seek with the public: if their decisions are substantiated, they ought to have no reason to shield them from disclosure. The Court was equally conscious that RTI applications are at times made only to create doubt and to threaten a developer with litigation, with a view to extorting money.
From there it moved to suggestions. Civic participation is fundamental to a thriving democracy, fostering ownership and responsibility among citizens and allowing them to hold elected officials accountable. Civic authorities may address this by convening meetings to discuss local issues, receive grievances and propose solutions, giving citizens direct interaction with elected officials. The State may consider establishing community oversight committees comprising diverse stakeholder groups to monitor and evaluate the authorities' activities. Where meetings are not feasible, digital platforms may let civic authorities and elected representatives coordinate redressal. The State and the civic authorities, the Bench said, must honour and give effect to the principles of communication and openness in both letter and spirit.
Order
Finding no merit in the petition, the Court dismissed it, and the interim application did not survive.
The holding that matters beyond Navi Mumbai is the construction one. A city-specific chapter introduced by “notwithstanding anything contained in these Regulations” reads, on its face, as a sealed compartment. The Bench held it is not: the general chapters, including the relaxation power, continue to apply, and a mandatory-sounding requirement in Chapter 10 is therefore relaxable like any other. Anyone litigating a UDCPR concession now has to attack the exercise of discretion under Regulation 2.4 on its own terms — perversity, want of application of mind, absence of planning justification — rather than argue that the city-specific rule left no discretion to exercise.
The rest of the judgment is a study in a petition failing for want of particulars while the grievance behind it is recorded as real. The Court did not find that the open spaces were adequate as a general matter; it found that this petitioner had not shown otherwise, had come late, had picked five of seven projects, and had turned down the chance to work on the problem from inside. That the same Bench then told the Corporation it cannot withhold what it has no reason to hide suggests where it thought the underlying fault lay.