UDCPR | Municipal Authorities Empowered To Grant Relaxation For Recreational Open Spaces In Redevelopment Projects: Bombay High Court

"The discretion conferred by Regulation 2.4 of UDCPR must be exercised on a case-to-case basis... the intention of subordinate legislation is clear where a larger ROS is mandated and has to be provided on podium, the minimum required ROS must be 'clearly open to sky', even where it is on 'ground over and above podium garden'." Bombay High Court, in a significant ruling dated October 1, 2026, upheld the discretionary power of the Navi Mumbai Municipal Corporation (NMMC) to grant relaxations for providing Recreational Open Spaces (ROS) on podium levels instead of exclusively on the ground level in redevelopment projects.

A division bench comprising Justices A.S. Gadkari and Kamal Khata held that the Unified Development Control and Promotion Regulations (UDCPR) must be read harmoniously, noting that, "The grant of concession in law, does not amount to a grant of exemption and the grant of concession is an essential ingredient of a planning discretion."

The petitioner, a social activist, challenged development permissions granted to five co-operative housing societies, alleging that the NMMC had illegally granted concessions by allowing ROS on podiums instead of the mandatory "ground level" under Regulation 10.10.2 of the UDCPR. The respondents, including various housing societies and the NMMC, argued that planning constraints such as height restrictions, mandatory parking requirements, and rehabilitation obligations rendered the provision of ROS strictly on mother earth unviable. They maintained that the Municipal Commissioner exercised due discretion under Regulation 2.4 of the UDCPR after considering specific project hardships.

The primary legal question was whether the "non obstante" clause in Regulation 10.10.2(3)(vi) of the UDCPR mandates that ROS must exclusively be provided on ground level, thereby overriding the discretionary powers granted under Regulation 2.4. The court was also tasked with determining whether the definition of ROS inherently excludes podium-level spaces and whether the failure to provide ROS on ground level constitutes a violation of the planned town development mandate.

Harmonious Construction of UDCPR

The Court rejected the petitioner's argument that the non obstante clause in the city-specific Regulation 10.10.2 excludes the operation of other general provisions. Relying on the Supreme Court’s decision in Mohd. Abdul Samad vs. State of Telangana, the bench held that non obstante clauses must be interpreted to allow for harmonious construction rather than total exclusion. The court emphasized that if Regulation 2.4 were deemed inapplicable, the entire regulatory framework of Chapter 10 would become unworkable, as planning authorities would be stripped of the ability to address site-specific constraints.

Discretionary Power in Redevelopment

The bench observed that the UDCPR does not statutorily prohibit the provision of ROS on podiums. It noted that the term "over and above podium garden" in the regulations implies that the legislature contemplated podium-based recreational spaces. The court further held that in redevelopment scenarios, where developers face rigorous constraints—such as mandatory rehabilitation tenements and airport height restrictions—the exercise of discretion under Regulation 2.4 is a legitimate executive function, provided it does not compromise health, fire, or structural safety.

"The grant of concession to provide ROS at the podium level furthers compliance with the requirement to provide such spaces in the redeveloped plot, without violating health safety, fire safety, structural safety or public safety of either the inhabitants or the neighborhood."

No Factual Foundation for Claims

The Court severely criticized the petitioner for failing to substantiate claims that residents of redeveloped societies would flock to public open spaces, causing overcrowding. The bench categorized these assertions as "bare allegations" lacking any empirical or factual foundation. Furthermore, the court noted that the petitioner had "selectively targeted" specific societies while ignoring other projects granted similar concessions, leading the bench to remark that the petition appeared motivated by publicity rather than genuine public interest.

Transparency in Municipal Governance

While dismissing the petition, the Court issued a strong obiter observation regarding the conduct of municipal authorities. The bench noted that the NMMC’s failure to provide timely and clear information in response to RTI queries often drives citizens to file litigation. The court urged state and civic authorities to adopt digital platforms and community oversight committees to ensure transparency, emphasizing that "The State and Civic Authorities must, in both letter and spirit, honour and give effect to the principles of ‘communication’ and ‘openness’."

Finding no perversity in the planning authority’s exercise of discretion and noting that the challenged projects had already received necessary clearances and progressed significantly, the High Court dismissed the Public Interest Litigation. Consequently, the pending Interim Application was also disposed of.

Date of Decision: 01 October 2026