MUMBAI, June 20 -- The Bombay high court on Thursday upheld the validity of a clause in Mumbai's development plan that permits 65% of encroached land reserved for public open spaces to be utilised for in-situ rehabilitation of slum dwellers occupying the land. A bench of justices Amit Borkar and Somasekhar Sundaresan also directed the Brihanmumbai Municipal Corporation (BMC) and the Slum Rehabilitation Authority (SRA) to strictly ensure that the remaining 35% of the reserved land remains available as public open space. The bench was ruling on a petition filed in 2002 by NAGAR, a Mumbai-based nonprofit that had challenged Regulation 17(3)(D)(2) of the Development Control and Promotion Regulations (DCPR) 2034. The regulation allowed the use of 65% of encroached public open spaces that are not otherwise buildable and measure over 500 square metres in area for the in-situ rehabilitation of the encroachers via a slum rehabilitation scheme. The remaining 35% area is to be retained as public open space, according to the regulation. Refusing to interfere with the regulation, the bench said, "It is a balanced policy that aims to recover a part of the land while also ensuring humane rehabilitation. This approach is neither unreasonable nor unconstitutional." Although the regulation reduces the reserved open space existing on paper, it ensures that at least 35% of the encroached land is freed and developed as a public amenity, the judges said. "This approach does not destroy environmental values. It tries to recover some environmental benefit from already encroached lands, while also recognising the housing rights of the urban poor," the bench added. NAGAR's petition challenged a notification issued by the state urban development department in 1992 and Regulation 17(3)(D)(2) of DCPR 2034. It contended that the notification and the regulation, in effect, legalised the diversion of 65% of the land for construction. This significantly diluted the purpose of the land's reservation and stripped the city of its much-needed green and open spaces, they said. According to the petitioners, the regulation went directly against the principles of sustainable development. They also highlighted that a larger pool of encroachers can now get in-situ rehabilitation, as the cut-off date for determining eligibility has been extended from January 1, 1976, to January 1, 2011. This has, in turn, increased the burden on scarce urban land, including reserved open spaces, the petitioners argued. The high court found no "clear legal or constitutional defect" in the policy and "no procedural irregularity or legal flaw" in the procedure. However, it added that a proper balance between the right to healthy environment and right to shelter and a dignified life would be achieved only if the remaining 35% of these lands are strictly maintained as public open spaces. To achieve this balance, the court directed that the remaining 35% open space must be clearly demarcated in the final approved layout plan of the slum scheme. The plan should also reflect the precise location and dimensions of the open space, which cannot be subsequently modified or shifted, it said. The court added that slum rehabilitation schemes on public open spaces should be approved only if the encroachment existed prior to the date of reservation, and the collector issues a certificate that alternate land to rehabilitate the slum dwellers is not available....