Development Control Regulation 33(7) in Mumbai: Constitutional Contours, Urban Renewal, and Jurisprudential Challenges

Development Control Regulation 33(7) in Mumbai: Constitutional Contours, Urban Renewal, and Jurisprudential Challenges

Introduction

Development Control Regulation 33(7) (hereinafter “DCR 33(7)”) of the Development Control Regulations for Greater Mumbai, 1991 represents one of the most ambitious statutory mechanisms for urban renewal in India. By permitting enhanced Floor Space Index (“FSI”) for the reconstruction of cessed buildings and certain other dilapidated structures, it seeks simultaneously to (i) rehabilitate vulnerable tenants, (ii) revitalise an ageing building stock, and (iii) unlock cross-subsidising real-estate value for developers. Over three decades, however, DCR 33(7) has generated complex constitutional, environmental, planning, and consumer-protection controversies, spawning a substantial body of jurisprudence in the Bombay High Court and the Supreme Court. This article critically examines the statutory evolution, judicial treatment, and future trajectory of DCR 33(7), integrating the primary reference materials supplied and situating the discussion within India’s broader legal framework.

Legislative and Policy Background

1. Statutory Architecture

The Maharashtra Regional and Town Planning Act, 1966 (“MRTP Act”) empowers the State Government to frame development plans and accompanying regulations for local planning areas (ss. 22, 31). Exercising this power, the State promulgated the Development Control Regulations for Greater Mumbai in 1991 (“DCR 1991”). Regulation 33 contains a suite of incentive-based redevelopment tools; sub-regulation (7) focuses on cessed buildings—structures constructed prior to 1 September 1940 and thereafter subjected to a repair cess under the Maharashtra Housing and Area Development Act, 1976 (“MHADA Act”). The core features of DCR 33(7) may be summarised thus:

  • Eligibility: Buildings classified in Categories A, B, C (and later, certain public-sector buildings) situated in the Island City.
  • FSI Framework: Originally “consumed FSI or 2, whichever is higher”; amended in 1999 to “FSI 2.5 on gross plot area or rehabilitation FSI plus incentive FSI as per Appendix III, whichever is higher”.[1]
  • Implementation Agency: Primarily cooperative housing societies of occupants; alternatively the landlord or MHADA.
  • Mandatory Consent: 70 per cent consent of occupants (later aligned with s. 103B MHADA Act mechanisms).
  • Administrative Oversight: No-objection certificate (“NOC”) from MHADA, followed by Intimation of Disapproval/Commencement Certificate from the Municipal Corporation of Greater Mumbai (“MCGM”).

2. Policy Objectives and Urban Context

Mumbai’s Island City comprises approximately 19,600 cessed buildings accommodating over half a million tenants.[2] Severe structural dilapidation, rent-control distortions, and limited availability of public funds precipitated a strategic shift from direct governmental reconstruction (Chapter VIII, MHADA Act) to market-mediated redevelopment (Chapter VIII-A and DCR 33(7)). Incentive FSI was thus deployed as a form of “tradable development right” to internalise the cost of tenant rehabilitation within private projects. While conceptually elegant, this design raised acute concerns regarding infrastructural capacity, environmental sustainability, and distributive justice.

Core Legal Issues Arising under DCR 33(7)

1. Constitutional and Statutory Competence

In Maharashtra Chamber of Housing Industry v. State of Maharashtra (“MCHI”) the Bombay High Court upheld State amendments expanding the definition of “sale” for works-contract taxation, emphasising the broad sweep of legislative competence under Art. 246 r/w Art. 366(29A).[3] Although MCHI concerned taxation rather than town planning, its ratio underscored an interpretive willingness to validate State innovation in complex urban-economic domains provided constitutional limits are respected. This rationale has been invoked arguendo to defend the State’s power to create legal fictions—such as incentive FSI—within DCR 33(7). Critics, however, contend that excessive FSI may infringe the fundamental right to life under Art. 21 by aggravating civic-infrastructure deficits. The Bombay High Court in Joseph Bain D’Souza v. State of Maharashtra (2005) entertained that challenge in public interest but ultimately declined to strike down DCR 33(7), adopting a nuanced proportionality review: policy-driven zoning regulations warrant judicial deference absent manifest arbitrariness or violation of non-derogable rights.[4]

2. Environmental and Infrastructure Impact

The two-Judge Committee appointed in Joseph Bain D’Souza documented how low-rise structures had been replaced by 20–40-storey towers abutting narrow streets, placing “a serious burden on existing infrastructure”.[5] The High Court, while refraining from invalidation, directed the State to revisit Appendix III incentive tables and to formulate impact-assessment protocols. Further, where projects fall within Coastal Regulation Zones (“CRZ”), the Supreme Court in Suresh Estates Pvt Ltd v. MCGM held that pre-1991 DCR must govern FSI computation if the 1991 regulations were not applicable on the CRZ notification date.[6] The Bombay High Court has consequently quashed DCR 33(7) approvals in CRZ-II precincts when premised on the 1991 rules (Official Trustee v. MHADA).[7]

3. Procedural Safeguards and Occupant Rights

Multiple decisions emphasise that redevelopment is tenant-centric, not developer-centric. The Supreme Court in Jayant Achyut Sathe v. Joseph Bain D’Souza upheld the 1999 amendment granting FSI 2.5, noting that enhanced incentives were intended to ensure feasibility after empirical review.[8] Nevertheless, courts have invalidated projects where:

  • Consent was fabricated or less than the stipulated 70 per cent (Sarla Dilip Somaiya v. State).[9]
  • Non-tenants were allotted permanent accommodation contrary to Appendix III norms (Ramniranjan A. Jaiswar v. Ramashre R. Jaiswar).[10]
  • MHADA’s NOC conditions were breached (Jugraj Tejraj & Sons v. Executive Engineer).[11]

Consumer fora have likewise entertained deficiency-of-service complaints when developers delay possession or alter flat areas, rejecting jurisdictional objections premised on “non-consumer” status (M.M. Enterprises v. Munifa Begum).[12]

4. Interface with Slum and Hazardous-Industries Regulations

DCR 33(7) overlaps territorially with DCR 33(10) (slum redevelopment) and industrial-hazard zoning controls. While the Bombay High Court in Pant Nagar Mahatma Phule clarified that Slum Act notifications are not sine qua non for DCR 33(10) schemes,[13] analogous reasoning has informed the view that once a building is categorised as cessed, separate hazardous-industry clearances do not ipso facto displace DCR 33(7) if industrial use has long ceased (M.A. Panshikar v. State of Maharashtra).[14]

Judicial Synthesis of the Reference Materials

  1. MCHI (2012) supplies the doctrinal foundation for legislative flexibility in complex economic spheres, indirectly bolstering the State’s power to calibrate FSI under DCR 33(7).
  2. Tulsiwadi Navnirman CHS (2007) delineates the breadth of Section 3K of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971, underscoring the State’s competence to impose development conditions respecting open space, density, and building form—parameters mirrored in Appendix III.
  3. Joseph Bain D’Souza trilogy (2005–2006) constitutes the principal PIL challenge, culminating in a pragmatic “fine-tuning” rather than abrogation of the regulation.
  4. Jayant Achyut Sathe (SC 2008) affirms the constitutional validity of the 1999 amendment, emphasising empirical policy review and legislative intent.
  5. Subsequent High Court cases (2014–2021) refine procedural rigour: accurate tenant lists, NOC compliance, CRZ compatibility, and periodic monitoring.

Critical Evaluation

While DCR 33(7) has undeniably enabled the renewal of several unsafe structures, three systemic challenges persist.

A. Infrastructure Externalities

Incentive FSI represents a spatially concentrated development right that does not always internalise concomitant infrastructure costs. The absence of a mandatory, project-specific impact fee or value-capture instrument places disproportionate pressure on public utilities, contradicting Art. 21 obligations to secure a healthy environment. A statutory amendment mandating Infrastructure Impact Assessments (IIA) and levy of a proportional charge, as recommended by the Sukhtankar Committee, should be considered.

B. Consent Mechanism Integrity

Judicial review reveals recurrent coercion or misrepresentation during the 70 per cent consent process. Introducing electronic consent audits, third-party certification, and criminal penalties for falsification could strengthen legitimacy. The Maharashtra Cooperative Societies Act, 1960 could be amended to designate such malpractice as a cognisable offence.

C. Harmonisation with Environmental and Heritage Norms

Projects in CRZ-II, heritage precincts, or areas governed by special plans frequently witness regulatory conflict. A unified “portal clearance” mechanism integrating CRZ, heritage, and DCR assessments would reduce arbitrariness, ensuring that incentive FSI aligns with overarching environmental principles recognised in Indian Council for Enviro-Legal Action v. Union of India (1996) and the public-trust doctrine.

Comparative and Forward-Looking Perspectives

Delhi’s Master Plan 2021 introduces transferable development rights (“TDR”) to decongest high-density areas, while Singapore links bonus gross floor area to direct developer contributions for public amenities. Mumbai could experiment with off-site TDR rather than on-site FSI stacking, thereby balancing redevelopment incentives with urban-form optimisation. Further, the Real Estate (Regulation and Development) Act, 2016 (RERA) provides a contemporary consumer-protection layer; integrating DCR 33(7) schemes within RERA’s escrow and disclosure architecture would mitigate delays and information asymmetry.

Conclusion

DCR 33(7) embodies the perennial tension between developmental imperatives and sustainable urbanism. The jurisprudence reviewed herein demonstrates judicial deference to legislative policy coupled with vigilance against procedural and environmental lapses. Going forward, calibrated reforms—impact-linked charges, consent-integrity safeguards, and inter-regime harmonisation—can preserve the regulation’s rehabilitative ethos while safeguarding constitutional and ecological values. Courts, planners, and legislators must therefore engage in a dialogic process to refine DCR 33(7) rather than dismantle it, ensuring that Mumbai’s vertical growth remains both inclusive and resilient.

Footnotes

  1. Government Notification dated 25 Jan 1999 amending DCR 33(7); see also Jayant Achyut Sathe v. Joseph Bain D’Souza, (2008) SCC Online SC 615.
  2. Joseph Bain D’Souza & Ors. v. State of Maharashtra & Ors., 2005 SCC Online Bom 1246, ¶2 (report of Committee).
  3. Maharashtra Chamber of Housing Industry v. State of Maharashtra, 2012 SCC Online Bom 546.
  4. Joseph Bain D’Souza (2005), supra note 2, ¶31–35.
  5. Ibid., ¶2 (Committee findings).
  6. Suresh Estates Pvt Ltd v. MCGM, (2007) 14 SCC 439.
  7. Official Trustee, State of Maharashtra v. MHADA, 2014 SCC Online Bom 421, ¶57.
  8. Jayant Achyut Sathe, supra note 1, ¶9–10.
  9. Sarla Dilip Somaiya v. State of Maharashtra, 2017 SCC Online Bom 967.
  10. Ramniranjan A. Jaiswar v. Ramashre R. Jaiswar, 2018 SCC Online Bom 11871.
  11. Jugraj Tejraj & Sons v. Executive Engineer, 2021 SCC Online Bom 240.
  12. M.M. Enterprises v. Munifa Begum, State Consumer Disputes Redressal Commission (Maharashtra), 2024.
  13. Pant Nagar Mahatma Phule v. MHADA, 2016 SCC Online Bom 952, ¶68.
  14. M.A. Panshikar v. State of Maharashtra, 2001 SCC Online Bom 949.