JOSEPH BAIN DSOUZA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(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 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 precise, 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, 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