Judiciary shouldn't override public policy: Court backs slum rehab on open land
The Bombay High Court has refused to strike down a provision under the Development Control and Promotion Regulations (DCPR) 2034, which allows the use of public open spaces for slum redevelopment projects. The court said that decisions related to urban planning should be left to the authorities and not the judiciary unless there is a clear violation of legal or constitutional principles.advertisementA bench of Justices Amit Borkar and Somasekhar Sunderasan delivered the verdict while hearing a petition filed by an alliance of NGOs in 2002. The petition challenged the use of open spaces, meant for parks, gardens, and playgrounds, for slum rehabilitation schemes. The petitioners argued that the policy went against the principles of sustainable development and the public trust doctrine, which protects public assets from private use.The court examined regulation 17(3)(D)(2) of the DCPR 2034, which permits reserved open spaces above 500 square metres to be used for slum redevelopment. The policy requires that at least 35 per cent of the ground area be left vacant and continue to serve public purposes.
The bench said, "The regulation shows a sincere attempt to balance two competing rights, exactly as the Constitution requires. It supports a vision of environmental well-being that also respects human dignity, and promotes a model of urban growth that includes the poor, rather than pushing them to the city's margins."advertisementIt also said that courts must respect the limits of judicial review. "This does not mean that courts have no role. As constitutional protectors, courts must step in where a policy violates the law, infringes fundamental rights, or is arbitrary and unfair," the bench added."But, even while doing so, the court must remain within the boundaries of judicial review and avoid functioning as a policymaking authority, particularly when the government has followed due process and attempted to balance competing interests in an open and fair manner," the court further said.Earlier, the High Court had passed an ad-interim order restraining the government from approving any new slum rehabilitation schemes on such lands without court permission. The interim order remained in effect for nearly two decades, during which time several developers and housing societies had to approach the court to seek relief.Must Watch
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