HC chides Maharashtra government, BMC for treating state land as ‘paternal property’

The Bombay high court, while coming down heavily on the Maharashtra government and the Brihanmumbai Municipal Corporation (BMC), observed that it seemed that the state assets were being assumed to be the “paternal property” of the executive, as illegal and unauthorised constructions were allowed to blatantly come up on government land without adhering to the existing laws

The Bombay high court, while coming down heavily on the Maharashtra government and the Brihanmumbai Municipal Corporation (BMC), observed that it seemed that the state assets were being assumed to be the “paternal property” of the executive, as illegal and unauthorised constructions were allowed to blatantly come up on government land without adhering to the existing laws.

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The sharp criticism was prompted after the state submitted that as per the Slums Act, structures of slum dwellers holding valid photo pass were protected and could not be demolished.

However, amicus curiae Sharan Jagtiani pointed out that while there was protection for slums, there was no law that restrained the local authorities concerned, including BMC, from taking action against the structures that violated the 14-feet restriction. Hence, the report of court-appointed inquiry commissioner was justified in its observations that illegal structures had the patronage of local civic and political entities.

A division bench of chief justice Dipanakar Datta and justice Girish Kulkarni, while hearing the suo motu public interest litigation initiated by HC last year following the Bhiwandi building collapse, was informed by Jagtiani that the BMC’s submissions, expressing its inability to curb illegal extension of slums due to the protection extended to such structures by state policy was not valid.

He referred to the Slums Act which was relied upon by BMC and stated that while the Act provided protection to the structure of a slum dweller with a valid photo pass, it did not turn a blind eye to any addition or illegal extension to the structure. Jagtiani referred to the relevant clauses of the Slums Act which dealt with protection, relocation and rehabilitation of protected occupiers and also powers to the competent authority to demolish unauthorised or illegal dwelling structures.

He submitted that the Act enabled the authority to carry out demolition of illegal extensions and additions to structures that were built after January 1, 1995, by following the due process of law on receipt of complaints and hence, BMC could not wiggle out of its responsibility.

On Monday, senior counsel Aspi Chinoy for BMC had canvassed the arguments that due to the photo pass, structures of slum dwellers which were illegally extended or added could not be demolished and the competent authority was the collector who could initiate action on such structures and not BMC.

Advocate general Ashutosh Kumbhakoni for the state informed the bench that the cut-off date of protection granted to slum dwellers was January 2000 and any structure thereafter would be considered illegal. When asked about the proposal to extend the cut-off to 2011, Kumbhakoni assured the court that the state was not extending it but was trying to accommodate slum dwellers till that date. He added that the 2000 cut-off date was accepted by all governments.

After hearing the submissions and justifications, the bench noted that from 1976 to 2000, the state had been legitimising encroachers on government land.

“The moment you bring them under a beneficial scheme, state land and corporation lands are written off. This is absolute recognition to encroachers so that you have a maximum floor space index (FSI). This is a method to indirectly legitimise encroachments of structures for benefits,” noted the bench.

It added that including government land under DCR (development control regulations) 33 (10) was an attempt to use public land for vested interest as the slum rehabilitation authority (SRA) was not a competent authority to curb such manipulations and manage public largesse. The court also hinted at the large-scale misuse of the rehabilitation policy in Mumbai.

“I am new to all this. But it seems like the state’s property is the paternal property of the executive,” said chief justice Datta. He had become the chief justice of Bombay HC last April and was earlier a judge at Calcutta HC.

“The biggest planning mistake is to to include government land within the purview of 33 (10) of DCR. Actually it is a fraud on the Constitution. Public largesse cannot be handled by slum redevelopment or such authorities. This also speaks about the rehabilitation that is happening.”