Bombay High Court
Builders Association Of Navi Mumbai vs Sandeep Thakur And Ors on 22 December, 2023
2023:BHC-AS:39082-DB
PIL.123.2016.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
PUBLIC INTEREST LITIGATION NO. 123 OF 2016
Sandeep Thakur
Age: 65 years,
Indian Citizen and Inhabitant
residing at F8/RH6/Sector 6,
Vashi, Navi Mumbai 400 703 ...Petitioner
Versus
1. The State of Maharashtra
Copy of the petition to be served
on Learned Government Pleader.
2. The Navi Mumbai Municipal Corporation
having its office at CBD-Belapur,
Navi Mumbai - 400 614
3. City & Industrial Development
Corporation of Maharashtra Limited
having it's office at 2nd floor,
Nirmal, Nariman Point,
Mumbai - 400 021.
4. Commissioner of Police
Navi Mumbai having his office at
CBD Belapur, Navi Mumbai
400 614.
5. Ekta JN-1/1-18 Apartment
Owner's Association,
Plot No.5, Sector No.9,
Juhu Nagar, Prabodhankar Thakre
Marg, Vashi, Navi Mumbai 400703
6. Kailash Apartment Owner's Association,
JN-1/19-45, Sector No.9, Juhu Nagar,
Prabodhankar Thakre Marg,
akn 1
::: Uploaded on - 22/12/2023 ::: Downloaded on - 23/12/2023 08:42:37 :::
PIL.123.2016.doc
Vashi, Navi Mumbai 400 703
7. Builders Association of Navi Mumbai
A Public Trust duly registered under
the provisions of Maharashtra Public
Trust Act, 1950 having its office at
Office No. 308/309, Persipolis,
Plot No. 74, Sector 17, Vashi,
Navi Mumbai 400 703.
8. Nalin Shyamlal Sharma
Adult Indian Inhabitant,
Proprietor of M/s. Sai Developers,
having its office address at
Office No. 901, Goodwill Excellency,
Plot No. 62, Sector 17, Vashi,
Navi Mumbai 400703. ...Respondents
WITH
INTERIM APPLICATION NO. 14928 OF 2023
WITH
INTERIM APPLICATION NO. 14929 OF 2023
WITH
INTERIM APPLICATION NO. 15735 OF 2023
IN
PUBLIC INTEREST LITIGATION NO. 123 OF 2016
Mr. Sandeep Thakur, Petitioner-in-person present.
Mr. Tejesh Dande a/w Mr. Bharat Gadhavi, Mr. Vishal Navale, Ms.
Trusha Shah, Mr. Vikrant Khare & Mr. Pratik Sabrad for Respondent
No.2-NMMC.
Mr. B. B. Sharma for Respondent No. 3-CIDCO.
Mr. M. M. Pabale, AGP for Respondent No. 4-State.
Mr. Sugandh Deshmukh for Respondent Nos. 5 and 6.
Mr. Saket Mone a/w Mr. Devansh Shah i/by Vidhii Partners for
Respondent Nos. 7 and 8.
akn 2
::: Uploaded on - 22/12/2023 ::: Downloaded on - 23/12/2023 08:42:37 :::
PIL.123.2016.doc
CORAM : DEVENDRA KUMAR UPADHYAYA, CJ. &
ARIF S. DOCTOR, J.
RESERVED ON : 11th OCTOBER, 2023
PRONOUNCED ON : 22nd DECEMBER, 2023
JUDGMENT [Per Chief Justice]:
1. Heard the Petitioner in-person and the learned Counsel
representing the Respondents.
2. This Public Interest Litigation (PIL) Petition has been filed
expressing concerns about the parking spaces as laid down in the
Unified Development Control and Promotion Regulations
(hereinafter referred to as "UDCPR") promulgated by the State
Government vide notification dated 02/12/2020 so far as it relates
to its application in the territories over which Navi Mumbai
Municipal Corporation (hereinafter referred to as "NMMC")
exercises its jurisdiction.
3. The challenge to the impugned provisions of UDCPR is
primarily on the ground that the same is absolutely arbitrary in as
much as it attempts to nullify and subvert the Interim order dated
05/10/2016 passed by this Court in this PIL Petition.
PIL.123.2016.doc
4. It has also been argued by the Petitioner that NMMC vide its
Affidavit dated 22/09/2016 filed in this Petition had assured the
Court that it is willing to further increase the parking requirements
by modifying the existing regulations relating to parking norms
after the approval of the State Government, however, the said
assurance has been given a go-by while promulgating the
impugned UDCPR.
5. It has been further argued that by not accepting the
recommendations made by the designated officer while finalizing
the impugned provisions of UDCPR, the State Government has
acted arbitrarily, which renders the impugned provisions of the
said regulations null and void.
6. Opposing the PIL Petition, learned Counsel representing the
Respondents have submitted that the impugned provisions of
UDCPR are a piece of subordinate legislation and unless the said
provisions are shown to be manifestly arbitrary or against any
provisions of the Constitution or any other law including
Maharashtra Regional and Town Planning Act, 1966 (hereinafter
referred to as "MRTP Act"), same cannot be struck down by this
PIL.123.2016.doc
Court for the reason that the scope of judicial review or judicial
scrutiny of such subordinate legislation is limited.
7. The submission further is that in a challenge to subordinate
legislation, presumption of its constitutionality has to be borne in
mind and burden to establish the subordinate legislation being
violative of any law lies heavily on the person intending to
challenge the same. It is argued further by the Respondents that
from the material available on record no inference can be drawn
that the impugned provisions of UDCPR suffer from any illegality
or procedural lapse or any other legal lacuna so as to render them
null and void and hence, in this view of the matter, the PIL Petition
is liable to be dismissed.
8. We have given our thoughtful consideration to the
competing submissions made by learned Counsel representing the
respective parties and have also perused the records available
before us on this PIL Petition. For reflecting appropriately on the
dispute and the issues raised in this PIL Petition, we need to note
certain facts, which are relevant for the purposes of deciding the
issues appropriately.
PIL.123.2016.doc
9. Prior to 07/09/1994, the Respondent No. 3-City and Industrial
Development Corporation of Maharashtra (CIDCO) was the
Planning Authority for all the nodes in Navi Mumbai. However, on
07/09/1994, the NMMC was appointed as Planning Authority for
the development nodes of Navi Mumbai comprising of Vashi,
Koparkhairane, Sanpada, Nerul, CBD-Belapur, Airoli etc. by the
State Government.
10. The Development Control Regulations (hereinafter referred
to as "DCRs") were framed by the CIDCO for the entire area of
Navi Mumbai, which included the area presently under the
jurisdiction of NMMC and the said DCRs were adopted and applied
by NMMC as a well. However, in the year 2005 NMMC decided to
frame its own DCRs and notification was published by the State
Government on 12/12/2007 and 21/07/2008 sanctioning the said
regulations with certain modifications.
11. The Petitioner filed PIL Petition viz. PIL No. 110 of 2009 with a
prayer for quashing regulations 16.4.12 and 16.4.13 of the DCR
regarding certain Change of Use and Mixed Use. The said PIL
PIL.123.2016.doc
Petition was decided by means of order dated 09/09/2014
whereby the said regulations were quashed. It has been further
submitted by the Petitioner that despite increased requirement of
parking spaces and despite phenomenal increase in number of
vehicles, while notifying the DCRs for NMMC inadequate parking
norms were provided in Regulation 44.
12. The Petitioner filed PIL Petition viz PIL No. 43 of 2009 with a
prayer inter alia that NMMC be directed to revise the norms for
parking spaces based on the data of ownership of vehicles and
density collected prior to the year 2000. The said PIL Petition was
disposed of by this Court by means of order dated 29/01/2009
with a direction to NMMC to consider the suggestions made by the
Petitioner and to forward the recommendations for taking
appropriate measures to the State Government. Thereafter, as per
the submissions made by the Petitioner, he realized that the State
Government had already issued notification u/s. 37(1-AA) of MRTP
Act proposing to revise the aforesaid parking norms by inviting
suggestions and objections to the proposed revision. The
Petitioner is said to have made suggestions and objections in view
of the notice published u/s. 37(1-AA) of the MRTP Act vide his
PIL.123.2016.doc
letter dated 16/02/2009 and also submitted written submissions
on 29/06/2009 at the time of personal hearing.
13. The Petitioner has further submitted that since no action was
taken by the authorities, he filed another PIL Petition viz. PIL No.
260 of 2009 submitting therein that despite the order dated
29/01/2009 passed by this Court in PIL No. 43 of 2009, the
authorities had not taken any effective steps. The said PIL Petition
No. 260 of 2009 was disposed of finally by a co-ordinate bench of
this Court by means of an order dated 22/04/2010 noticing the
statement made by the Additional Government Pleader appearing
for the State that the Government is collecting data and after
collection of data suitable amendments will be made in Regulation
44. The statement made on behalf of NMMC that relevant data has
been forwarded to the State Government so that proper
amendments can be made in Regulation 44 was also noticed by
the Court in its order dated 22/04/2010. The Court, thus disposed
of the said PIL Petition expressing confidence therein that
necessary amendments shall be made in Regulation 44 by the
State Government before 30/09/2010. Thereafter, the State
Government issued notification dated 26/10/2010 revising the
PIL.123.2016.doc
parking norms specified in the earlier regulation no. 44.2.
14. Not being satisfied by the said notification dated 26/10/2010
whereby the amendments were made in Regulation 44.2, the
Petitioner again filed PIL Petition viz. PIL No. 34 of 2011 with the
assertion that the norms for parking spaces even after the
issuance of notification dated 26/10/2010 do not meet the
requirement. During the pendency of the said PIL Petition, the
State Government issued corrigendum dated 26/04/2011 inserting
certain corrections in the notification dated 26/10/2010 whereby
one parking space for (1) 4 tenements having carpet area upto 35
sq.mt. each, (2) 2 tenements with carpet area exceeding 35
sq.mt. each, (3) 1 tenement with carpet area exceeding 45 sq.mt.
but not exceeding 60 sq.mt. each and (4) ½ tenements with
carpet area exceeding 60 sq.mt. was provided. It was also
provided by the Corrigendum dated 26/04/2011 that in addition to
the above, parking shall be provided to the extent of 10% of the
number stipulated above, subject to minimum of one.
15. Thereafter in pursuance of an order dated 22/06/2011
passed by this Court in PIL No. 34 of 2011 post decisional hearing
PIL.123.2016.doc
was provided to the Petitioner by the Principal Secretary of the
State Government in the Department of Urban Development on
18/07/2011 and on the basis of the said personal hearing, a note
was prepared by the Principal Secretary of the State Government
in the Urban Development Department on 18/07/2011, wherein
certain suggestions were made including the suggestion that
parking requirement for residential use of smaller tenements upto
35 sq.mtrs carpet area will have to be amended and this exercise
should be taken up and completed within six months.
16. The PIL No. 34 of 2011 was finally disposed of by a
co-ordinate Bench of this Court by means of order dated
07/09/2011 by providing that directions/recommendations
contained in the note dated 18/07/2011 prepared by the Principal
Secretary will have to be followed by the NMMC and also by the
State Government. The Court further directed that scientific
survey may be started immediately and it may be completed as
expeditiously as possible. The Court further directed that
procedure u/s. 37 of MRTP Act to amend the DCRs will also be
adopted and complied as early as possible.
PIL.123.2016.doc
17. As submitted by the Petitioner, since in pursuance of the
order dated 07/09/2011 passed by this Court in PIL No. 34 of 2011,
nothing was done, the proceedings of the instant PIL Petition have
been instituted.
18. During pendency of this PIL Petition an order was passed by
this Court on 05/10/2016 noticing the earlier round of litigation.
The Court by means of this order dated 05/10/2016 issued certain
directions, which are as under:
"17. Upon cumulative consideration of the
aforesaid facts and circumstances, we issue the
following directions: -
(a) The Commissioner, NMMC is directed to show
cause as to why action under Contempt of Courts
Act, 1971 read with Article 215 of the Constitution
of India be not initiated for non-compliance with
the directions issued in the order dated 7
September 2011 in PIL 34 of 2011. Such cause to
be shown within a period of four weeks from
today;
(b) The NMMC and the State Government to
comply with the directions issued by this Court in
its order dated 7 September 2011 in PIL 34 of
2011 as expeditiously as possible and in any case
within a period of three months from today.
(c) Taking into consideration the virtually
undisputed material and circumstances referred
to in paragraphs 13, 14 and 15 of this order, we
grant interim relief in terms of prayer clause (E)
PIL.123.2016.doc
of the petition, which is transcribed in paragraph
3 of this order. This means that the NMMC, in any
permission for construction/development which it
may issue hereafter, shall necessarily include a
condition that the owner / builder / developer
provides at least one parking space for one
tenement having built up area upto 45 sq. meters
or carpet area upto 35 sq. meters."
19. During pendency of the instant PIL Petition and during the
subsistence of the order dated 05/10/2016, the State Government
published a notice u/s 37(1AA)(a) of the MRTP Act inviting
objections and suggestions with respect to certain modifications
proposed in the then existing DCRs. The said notice dated
08/03/2019 declared the intention of the State Government to
replace the existing DCRs in supersession of all the earlier
existing/proposed DCRs of NMMC. The notice dated 08/03/2019
described the proposed DCPR as "Draft Comprehensive and
Integrated Development Control Regulations for Municipal
Corporations in Mumbai Metropolitan Region".
20. The notification dated 08/03/2019 initially excluded certain
municipal bodies including NMMC. However, a corrigendum was
published on 09/08/2019 to correct certain errors and
typographical mistakes in the notice dated 08/03/2019 whereby
PIL.123.2016.doc
the NMMC was included in the proposed DCRs. Pursuant to the
said notice dated 08/03/2019 and corrigendum issued thereto,
dated 09/08/2019, the Petitioner is said to have submitted his
suggestions and objections to the proposed draft Regulations vide
letter dated 03/12/2019 by stating therein that the proposed off
street parking requirement depicts lesser area than what was
required under existing DCRs and also under original draft
regulations published on 28/02/2017 and gazetted on 02/03/2017.
21. In sum and substance, the Petitioner in his objections,
submitted pursuant to the notice dated 08/03/2019 as corrected
vide corrigendum dated 09/08/2019, stated that the proposed
regulations will reduce the actual effective area for parking and
that the same do not provide for adequate parking. In the
objections it was also stated by the Petitioner that proposed
regulations do not provide for any parking for shops and row
houses for plots upto 100 sq.mrts though the existing DCRs
provided for the same.
22. The process of preparing Comprehensive and Integrated
Development Control Regulations for Municipal Corporations in
PIL.123.2016.doc
Mumbai Metropolitan Region initiated vide notification dated
08/03/2019 ultimately culminated in issuance of notification dated
02/12/2020 whereby requisite sanction was accorded by the State
Government u/s 37(1-AA)(c) and u/s 20(4) of the MRPT Act. The
sanctioned UDCPR was published by the State Government in the
official gazette as well.
23. It has been stated by the Petitioner that in the UDCPR
notified on 02/12/2020, provisions for off-street parking does not
have any relation whatsoever with the off-street parking
requirement in the existing DCR of NMMC and further that the
same are derogative of the interim orders passed by this Court in
this PIL Petition.
24. It is also the submission of the Petitioner that the
Regulations 8.1 to 8.2.2 in the UDCPR notified on 02/12/2020
regarding off-street parking requirement run contrary to the
assurance given by the NMMC in its Affidavit dated 22/09/2016
wherein it was stated that NMMC was willing to further increase
the parking requirements by modifying the existing DCR relating
to parking norms as per the recommendations of the Committee
PIL.123.2016.doc
after the approval of the State Government.
25. It has also been argued by the Petitioner that the said
regulations are against the report of the designated officer
whereby the government was advised to follow the orders passed
by this Court and hence, the provisions regarding off-street
parking requirements made in the UDCPR notified on 02/12/2020
are absolutely arbitrary which amounts to nullifying and
subverting the order dated 05/10/2016 passed by this Court in the
instant PIL Petition.
26. On the aforesaid grounds, it has been argued vehemently by
the Petitioner that the Regulations 8.1 to 8.2.2 regarding parking
spaces and off-street parking requirement as available in the
UDCPR are liable to be struck down.
27. As already observed above, learned Counsel representing
the Respondents including learned AGP appearing for the State
and learned Counsel representing NMMC have submitted that the
impugned regulations being subordinate legislation, scope of
judicial review by this Court under Article 226 of the Constitution
PIL.123.2016.doc
of India is very limited and unless the regulations are found to be
manifestly arbitrary no interference by the Court will be
permissible. So far as this submission made on behalf of the
Respondents is concerned, there cannot be any quarrel to the
legal proposition that the ground of challenge to subordinate
legislation is very limited and in fact subordinate legislation can be
questioned only on the grounds on which plenary legislation is
questioned. It has been held by the Hon'ble Supreme Court in
case of Dental Council of India vs. Biyani Shikshan Samiti
and Another reported in (2022) 6 SCC 65 that subordinate
legislation though does not carry the same degree of immunity
enjoyed by a plenary legislation passed by competent legislature,
however, it may be challenged on any of the grounds on which a
statute can be questioned and in addition it may also be
questioned on the ground that it does not conform to the statute
under which it is made. Subordinate legislation can also be
challenged on the ground that it is contrary to some other statute.
28. Referring to the judgment in Indian Express Newspapers
(Bombay) Private Ltd. and others vs. Union of India and
others, (1985) 1 SCC 641, Dental Council of India (supra)
PIL.123.2016.doc
lays down that subordinate legislation though can be questioned
on the ground of unreasonableness; however, such
unreasonableness should not be in the sense of not being
reasonable but it should be in the sense that it is manifestly
arbitrary. Paragraph nos. 26 and 27 in the case of Dental Council
of India (supra) are extracted hereinbelow:
"26. It will be relevant to refer to the following
observations of this Court in Indian Express
Newspapers (Bombay) (P) Ltd. and others vs. Union
of India and others, (1985) 1 SCC 641:
"75. A piece of subordinate legislation does not
carry the same degree of immunity which is
enjoyed by a statute passed by a competent
Legislature. Subordinate legislation may be
questioned on any of the grounds on which
plenary legislation is questioned. In addition it
may also be questioned on the ground that it
does not conform to the statute under which it
is made. It may further be questioned on the
ground that it is contrary to some other statute.
That is because subordinate legislation must
yield to plenary legislation. It may also be
questioned on the ground that it is
unreasonable, unreasonable not in the sense of
not being reasonable, but in the sense that it is
manifestly arbitrary."
23. It could thus be seen that this Court has held
that the subordinate legislation may be questioned
on any of the grounds on which plenary legislation
is questioned. In addition, it may also be
questioned on the ground that it does not conform
to the statute under which it is made. It may
further be questioned on the ground that it is
PIL.123.2016.doc
contrary to some other statute. Though it may also
be questioned on the ground of unreasonableness,
such unreasonableness should not be in the sense
of not being reasonable, but should be in the sense
that it is manifestly arbitrary."
29. A reference, in relation to the scope of interference by this
Court under Article 226 of the Constitution of India to a
subordinate legislation, can be had to a Division Bench of this
Court in the case of Janhit Manch & Anr vs. State of
Maharashtra & Ors reported in 2006 SCC OnLine Bom 1145.
30. The law relating to the tests available for judicially
scrutinizing any subordinate legislation has been exhaustively
reviewed by the Division Bench of this Court in Janhit Manch
(supra) wherein it has been held that subordinate legislation
must be manifestly arbitrary to be held as arbitrary i.e. a law
which could not be reasonably expected to emanate from an
authority delegated with law making power. The Court in Janhit
Manch (supra) has further held that the question which is
required to be considered while judicially scrutinizing a delegated
legislation is not as to what material was available at the time
when subordinate legislation was made but the question is
PIL.123.2016.doc
whether the delegated legislation is either beyond the scope of
the Act or is ex-facie or manifestly arbitrary.
31. Janhit Manch (supra) further observes that for holding a
delegated legislation to be unreasonable the person challenging
the same must establish the facts which support the plea of
unreasonableness and that the unreasonableness must be seen
by merely reading the impugned Legislation itself and not by
enquiring as to what material justifies the delegated legislation.
Paragraph Nos. 82 to 84 of the judgment in the case of Janahit
Manch (supra) are relevant to be referred to which read as
under:
"82. Development Control Regulations form a
part of the Development Plans and do not have a
permanent existence, but they are liable to be
revised every 20 years, is a circumstance
mitigating arbitrariness. The aforesaid decision
in Kruse vs. Johnson has been followed by the
Supreme Court. See (Maharashtra S.B.O. & H.S.
Education vs. Paritosh) reported in A.I.R. 1984
SC 1548 at 1555. See also (Suman H.C. vs.
Rehabilitation Ministry Employees Housing
Building Society Ltd.) reported in (1991) 4 SCC
488 at 499-500. In fact in (Khoday Distilleries Vs.
State of Karnataka) (1996) 1 SCC 304, the
Supreme Court held that in order to hold
delegated legislation as arbitrary, such
legislation must be manifestly arbitrary i.e. a
law which could not be reasonably expected to
PIL.123.2016.doc
emanate from an authority delegated with law
making power.
83. In the case of a delegated legislation, the
question that is required to be considered is not,
from the view point of what material was
available at the time when the legislation was
enacted, but whether the delegated legislation
is either beyond the scope of the Act or is ex-
facie or manifestly arbitrary i.e. without
requiring any evidence. The impugned delegated
legislation is enacted under the Maharashtra
Regional Town Planning Act. The impugned
delegated legislation pertains also to the issues
under the Slum Clearance Act. Both the Acts are
required to be harmoniously construed and in
deciding the challenge under Article 14 of the
Constitution of India or under Article 21 of the
Constitution of India, regard must be had to the
objects sought to be achieved by the said
legislation considering the objects of the
relevant enactment. The Maharashtra Slum
Clearance Act, 1971 and the Maharashtra
Regional Town Planning Act have both been
enacted to achieve the same or similar purpose.
The enactments were brought into force and the
delegated legislation was enacted to meet the
emerging challenges and changed situations.
See (State of Maharashtra vs. Mahadev
Pandarinath Dhole) reported in 1980 Bombay
Cases Reporter, 590.
84. When can delegated legislation be said to be
unreasonable. The petitioners for that must
establish the facts which support the plea of
unreasonableness. The unreasonableness must
be seen by merely reading the impugned
Legislation itself and not by enquiring as to what
material justifies the delegated legislation.
When you use the expression unreasonable, it
must be understood that it is unreasonable not
PIL.123.2016.doc
in the sense of it not being reasonable but in the
sense that it is manifestly arbitrary. (See Indian
Express Newspaper (Bombay) Private Limited vs.
Union of India (1985) 1 SCC 641 : A.I.R. 1986
S.C. 515. The Court when testing the
constitutional validity of a piece of delegated
legislation on the touch stone of Article 14 of the
Constitution, can examine whether the criterion
adopted is reasonable. "Reasonableness, for
purposes of judging whether there was an
excess of power or an arbitrary exercise of it, is
really the demonstration of a reasonable nexus
between the matters which are taken into
account in exercising a power and the purposes
of exercise of that power. See (Meenakshi Mills
vs. Union of India), (1974) 1 SCC 468 : AIR 1974
SC 366, (Panipat Co-op. Sugar Mills vs. Union of
India), (1973) 1 SCC 129: AIR 1973 SC 537 and
(SI Syndicate vs. Union of India) (1974) 2 SCC
129 : AIR 1975 SC 460. It would, therefore, be
clear from the above, that it would not be
possible for this Court considering the object
behind the D.C. Regulation and Appendix VII-B to
hold that they are ultra vires Article 14 and 21 of
the Constitution of India as being manifestly
arbitrary, unreasonable and or discriminatory.
32. It is also to be noticed that in a challenge to delegated
legislation the Court must proceed on the presumption that law is
constitutional and it is only when the person challenging the same
discharges his burden to establish that the legislation is arbitrary
or discriminatory, would the burden shift on the State to justify the
constitutionality of the legislation.
PIL.123.2016.doc
33. It is also to be noticed that in Janhit Manch (supra) what
was under challenge therein was "the Development Control
Regulations of Greater Bombay, 1991" framed under the relevant
provisions of the MRTP Act, 1966 and it is in this context that the
Division Bench in Janhit Manch (supra) noticed that any
legislation which deals with a development plan is socio-economic
legislation and as such laws relating to economic activities would
be reviewed with greater latitude than laws touching civil rights
such as freedom of speech, etc. The Court further proceeds to
observe that the legislature should be allowed some play in the
joints as it has to deal with complex problems, which may not
admit a solution to any straight jacket formula.
34. The Division Bench in Janhit Manch (supra) has further
observed that in such cases the Court feels more inclined to give
judicial deference to the legislative judgment in the field of
economic regulations than in other areas where fundamental
human rights are involved. Paragraph 95 of the judgment in
Janhit Manch is relevant to be quoted here, which is as under:
"95. It is therefore clear that only in those cases
involving/violation of Environmental Protection
laws and ecological disasters, will the principle
PIL.123.2016.doc
enunciated in Vellore case and as expanded in
(A. P. Pollution Control Board V. M.V. Nayudu
(Retd)), case reported in (1999) 2 SCC 718 :
A.I.R. (1999) (S.C.) 812 : (1999) 2 SCC 718 be
applied. It cannot be applied to every case
where some issue relating to environment is
raised, more so to those cases, where the sub-
stantive legislation lays down the parameter for
publishing a development plan and making D.C.
Regulations, taking into consideration environ-
mental needs of the planning area. Considering
these aspects, the court must proceed on the
presumption that the law is constitutional. It is
only on the Petitioner's discharging the prima
facie burden that the legislation is arbitrary or
discriminatory would the burden shift on the
State to justify the constitutionality of the legis-
lation. In our opinion that burden has not been
discharged. In the instant case, material has
been produced by the private Respondents to
support the constitutionality of the Legislation.
It is always open to the court to rely on such ma-
terial and need not reject the material produced
by the private respondents, because it has not
come from the State. As we have noted earlier,
Legislation which deals with Planning is a socio-
economic Legislation and as such laws relating
to economic activities would be reviewed with
greater latitude than laws touching civil rights
such as freedom of speech, etc. The Legislature
should be allowed some play in the joints, be-
cause it has to deal with complex problems
which do not admit of solution through any doc-
trinaire or straight jacket formula. In such cases
the Court must feel more inclined to give judicial
deference to legislative judgment in the field of
economic regulation than in other areas where
fundamental human rights are involved. The
Court must therefore adjudge the constitutional-
ity of such legislation by generality of its provi-
sions and not by its crudities or inequities or by
PIL.123.2016.doc
the possibilities of abuse of any of its provisions.
So tested we do not find that the challenge on
the ground that the legislation is manifestly ar-
bitrary or unreasonable and/or discriminatory
and must be rejected."
35. We may also refer to the judgment of the Hon'ble Supreme
Court in case of Promoters & Builders Association of Pune
vs. Pune Municipal Corporation and others reported in
(2007) 6 SCC 143 wherein the Court, while dealing with the
challenge to the Development Control Regulations for Pune
Municipal Corporation framed under MRTP Act, has held while
discussing various provisions of MRTP Act that u/s. 37 of the MRTP
Act the government has been given absolute liberty to make or
not to make inquiry before granting sanction to proposed
regulations, with or without modifications. It is further held that
Government could impose such conditions as it deems fit and
further it is also permissible for the Government to refuse the
sanction.
36. On the basis of above discussion of the legal principle as
evolved by the Hon'ble Supreme Court and this Court in respect of
scope and extent of challenge to a delegated legislation, the legal
PIL.123.2016.doc
position which emerges is that though the subordinate legislation
is not as immune from the challenge as a statute, however, it can
be questioned on the grounds available for questioning or
challenging an act of legislation. The subordinate legislation can
be challenged on additional ground of the same being contrary to
the Act under which it has been framed or it is contrary to any
other enactment. It is also clear from the above discussion that
subordinate legislation though can be questioned on the ground of
unreasonableness, however, such unreasonableness should be in
the sense that it is manifestly arbitrary and not in the sense of not
being reasonable.
37. It is also clear that in a challenge even to subordinate
legislation, the Court must proceed on the presumption that such
subordinate legislation is constitutional and burden lies heavily on
the person or party challenging the same to prove its
unconstitutionality and it is only once the party challenging the
subordinate legislation discharges its burden of establishing that
legislation is arbitrary or discriminatory, the burden would shift on
the State to justify the constitutionality of such delegated
legislation.
PIL.123.2016.doc
38. While dealing with the facts of the present case, we are
conscious of the legal principles relating to limitation of this Court
in interfering with subordinate legislation, however, at the same
time certain facts relevant for appropriate adjudication of this case
cannot be lost sight of.
39. The history of litigation and repeated challenge made by the
Petitioner to the regulations relating to parking and off-street
parking had already been discussed above. It will be relevant to
mention that before the impugned regulations were notified on
02/12/2020, during the pendency of this PIL Petition, the Court
had passed a detailed order on 05/10/2016 issuing certain
directions, which are already extracted above.
40. The background facts noticed by this Court while passing the
order on 05/10/2016 needs to be reiterated by us at this juncture.
The Court in the said order dated 05/10/2016 has firstly noticed
the order dated 07/09/2011 whereby the earlier PIL being PIL No.
34 of 2011 filed by the Petitioner was disposed of with following
directions:
PIL.123.2016.doc
"2. The scientific survey may be started immedi-
ately. One year's time is an outer limit. It may be
completed as expeditiously as possible and the
procedure under Section 37, to amend the D
Regulations, may also be adopted and com-
pleted as early as possible. Six months' time
limit laid down by the Principal Secretary (UD-I)
for that purpose is merely an outer limit. Efforts
may be made to complete the procedure as early
as possible.
3. The petitioner's grievance is redressed as of
today, hence the petition is disposed of."
41. The Court, in the order dated 05/10/2016 has further noticed
the Affidavit filed on behalf of NMMC on 22/09/2016 and observed
that the NMMC had completely ignored the directions issued by
this court in its order dated 07/09/2011 in as much as no scientific
survey as directed was conducted. While passing the order dated
05/10/2016, the Court further noticed that it was not the
contention of the NMMC that existing regulations relating to
parking spaces are adequate or that there is no necessity to revise
said regulations. The Court further observed in the said order
dated 05/10/2016 that it is conscious that in the matter relating to
regulations, the Court has limited role to play and normally these
matters are for the Corporation and the State Government to
address. The Court also noticed that, however, in the present
PIL.123.2016.doc
case, there was really no dispute whatsoever apart from there
being overwhelming material on record to establish that the
existing regulations relating to parking spaces are woefully
inadequate and cry for urgent revision. Paragraph 12 of the
interim order passed in this PIL Petition by the Court on
05/10/2016 is extracted hereinabove.
"12. We are conscious that in matters relating
to regulations, whether for the purposes of
construction of buildings or providing parking
spaces, this court, has quite a limited role to
play. Normally, these are matters for the
Corporation and the State Government to
address. However, in the present case, there
is really no dispute whatsoever apart from
there being overwhelming material on record
to establish that the existing regulations
relating to parking spaces are woefully
inadequate and cry for urgent revision. Whilst,
at this stage, we do not propose to make any
observations upon the submissions of Mr.
Thakur that the lethargy and inaction on the
part of NMMC is only to afford benefits to
builders and developers, we cannot be
oblivious of the serious issues arising out of
inadequate parking spaces and matters
connected therewith."
42. The Court while passing an order dated 05/10/2016 had also
taken into account the recommendations made by the Principal
Secretary to the State Government in Urban Development
Department in his note dated 18/07/2011, which were reiterated
PIL.123.2016.doc
by this Court in it order dated 07/09/2011 passed in PIL Petition
No. 34 of 2011. The Court also noticed the Affidavit dated
22/09/2016 filed by the NMMC which made a reference to the
Report of the Expert Committee constituted under the
Chairmanship of Principal Secretary of the Government for
preparation of all-inclusive and standardized Development Control
Regulations. The Court also noticed that the Expert Committee in
its report recommended that the parking norms should provide 3
parking spaces for 1 tenement having built up area of more than
70 sq. meters, 2 parking spaces for tenement having built up area
between 50 to 70 sq, meters, 2 parking spaces for every 2
tenements having built up area between 35 sq. meters to 50 sq.
meters, and 1 parking space for every 2 tenements having built
up area less than 35 sq. meters.
43. The Court also noticed that, "on the inadequate parking
spaces in buildings and co-operative housing society
projects, invariably several vehicles are parked upon
public roads and in other public places. This results in
traffic congestion, accidents and vehicular pollution. There
is no gain saying that the members of the public are very
PIL.123.2016.doc
severally prejudiced as a result".
44. The Court also observed that right to open spaces, proper
roads, clean and healthy environment are within the ambit of
Article 21 of the Constitution of India as held by the Hon'ble
Supreme Court in Municipal Corporation of Greater Mumbai
& Ors. vs. Kohinoor CTNL Infrastructure Company Private
Limited & Anr. Reported in (2014) 4 SCC 538. These
observations are contained in paragraph 16 of the order passed by
this Court on 05/10/2016, which is also extracted hereinbelow:
"16. There is substantial increase in the popula-
tion and number of vehicles within the jurisdic-
tion of NMMC. On account of the present regula-
tions, which require the builders and developers
to provide only one parking space for every four
tenements having carpet area upto 35 sq. me-
ters each, the problem of parking of vehicles has
assumed very serious proportions. On account of
inadequate parking spaces in buildings and co-
operative housing society projects, invariably
several vehicles are parked upon public roads
and in other public places. This results in traffic
congestion, accidents and vehicular pollution.
There is no gain saying that the members of the
public are very severally prejudiced as a result.
By now, it is accepted that the right to open spa-
ces, proper roads, clean and healthy environ-
ment is within the ambit of Article 21 of the Con-
stitution of India. The NMMC as well as the State
Authorities, despite acknowledgment the
present regulations are woefully inadequate and
PIL.123.2016.doc
cry for urgent revision, have failed to take steps,
even though, such steps were directed by the
Principal Secretary (UD) and this Court in its or-
der dated 7 September 2011 in PIL 34 of 2011.
Inaction and lethargy, whatever may be the mo-
tive cannot be countenanced in a situation of
this nature."
45. Thus, having regard to the entire facts and circumstances, as
also the need for better parking spaces, the Court had passed the
order 05/10/2016. While passing the said order the Court has
taking into account the contents of the Affidavit dated 22/09/2016
filed by the NMMC wherein it was stated inter alia that NNMC is
willing to further increase the parking requirement by modifying
the DCRs applicable to parking norms as per the
recommendations of the Committee after the approval of the
State Government. The relevant extract of the said Affidavit dated
22/09/2016 filed by the NMMC is quoted herein below:
"The above comparative chart shows that the
existing parking norms of NMMC are at par with
Thane Municipal Corporation and stringent than
CIDCO norms. Despite this position, NMMC is
willing to further increase the parking
requirements by modifying the DCR relating to
parking norms as per recommendation of the
Committee after approval of State Government."
46. Another Affidavit filed on 15/11/2016 by the NMMC is also
PIL.123.2016.doc
relevant to be pointed out wherein the NMMC has regretted that it
could not pursue the matter to get its DCR modified in tune with
the decision of the government dated 18/07/2011. Paragraph no.
10 of the said Affidavit filed on 15/11/2016 is extracted herein
below:
"10. I further say that, it is a matter of great
regret that the Navi Mumbai Municipal
Corporation did not implement the directions
issued by this Hon'ble Court within the time
limit and even after expiry of thereof. It is
also unfortunate that, though the State
Government had showed the willingness in the
form of decision dated 18th July, 2011 to accept
parking norms of one parking space for every
2 tenements of 45 Sq.mtrs. of built up area
(with slight modification prescribing 35
Sq.mtrs. carpet area), the Municipal
Corporation failed and neglected to pursue the
matter further and get its Development
Control Regulations modified in accordance
with its own proposal."
47. Thus, we find that while framing the UDCPR notified on
02/12/2020 neither the State Government nor NMMC has taken
into consideration the directions issued by this Court and its order
dated 05/10/2016, nor has it taken into consideration the
assurances given to the Court by NMMC. It is also worthwhile to
note at this juncture that the need of increased parking area and
off-street parking though has been recognized by the NMMC which
PIL.123.2016.doc
is the Planning Authority, however, such need has not been
addressed while issuing of impugned UDCPR notified on
02/12/2020.
48. As a matter of fact, the facts and circumstances in which the
order dated 05/10/2016 was passed by this Court are self-
speaking as noticed by the Court in the said order which clearly
establishes the need of having better parking spaces. In our
considered opinion the said concern expressed by the Planning
Authority as also by the Court stands unredressed even after the
issuance of impugned UDCPR notified on 02/12/2020, which call
upon us to issue necessary directions in the interest of justice and
also keeping in view the dire need of having better parking
spaces.
49. We, thus, dispose of the PIL Petition with the following
directions:
a) The Navi Mumbai Municipal Corporation (NMMC)
shall take a fresh look at the need of having better
and adequate parking spaces within the territory of
PIL.123.2016.doc
NMMC and prepare a report by conducting a study
for making suggestions for appropriate
amendments, which may be warranted in UDCPR
notified on 02/12/2020, in its application to NMMC.
b) The study as directed above, will be conducted by
an Expert Committee to be appointed by the
Commissioner, NMMC, which shall submit its report
within four months from the date a copy of this
order is produced before the Commissioner, NMMC.
c) Based on the aforesaid study, NMMC and the State
Government shall take appropriate steps to provide
for better and adequate parking space in NMMC by
taking recourse to the procedure as prescribed u/s
37 of MRTP Act, 1966.
d) The entire exercise shall be completed by the State
Government and NMMC and all other authorities or
bodies concerned within 12 months from today.
PIL.123.2016.doc
50. Before parting we may put on record our appreciation for the
Petitioner, who has, relentlessly, been striving for a public cause
highlighted in this PIL Petition.
51. We also observe that we have issued the aforesaid directions
so as to ensure that the spirit and zeal shown by the Petitioner for
the public cause of having better and adequate spaces do not die.
52. There shall be no order as to costs.
53. All the Interim Applications also stand disposed of.
(ARIF S. DOCTOR, J.) (CHIEF JUSTICE)
