‘Complete abdication of duty’: HC ‘disappointed’ by BMC’s failure to act against Powai encroachments

The petitioners, through senior advocate Naushad Engineer claimed that the civic body helped the slum-dwellers by providing them with toilets and tanker water supply.

A bench of Justices Ravindra V Ghuge and Abhay J Mantri had on Thursday questioned BMC if it was powerless as it was “surrendering Mumbai to all encroachers”.

It had asked the Deputy Municipal Commissioner of the ward concerned, along with the senior most officer of the local police station to remain present during the next hearing on Friday.

On Friday, advocate Dhruti Kapadia on instructions from BMC officials submitted that the road in question was privately owned and that traffic was caused on this road by heavy vehicles due to Metro work in the vicinity.

The petitioner’s lawyer however said that as per the Maharashtra Town Planning (MRTP) Act, “the removal of obstructions or projections in or upon streets, bridges and other public roads would include a road on which there is a regular thoroughfare of the public at large.”

He claimed that any street including the private road, on which the people have uninterrupted right of passage or access, becomes a public street, as per the said law, therefore, removal of encroachment would come under BMC’s purview.

The HC said it was “surprised” with BMC’s stand, which was a “lame excuse” and observed the civic body did not have the “will, desire, courage or means” to remove encroachments. The court also orally questioned if a statue of a leader was erected on the road to “create obstruction”.

“We would have appreciated if the BMC would have at least ventured in to say that being a civic body, it has to ensure that the residents falling into jurisdiction of the corporation have to be given civic amenities. And if they are facing serious problems of encroachment on a street, which has assumed the character of a public street, considering the heavy use of that patch for decades, they (BMC) will attempt to remove the encroachment,” the bench noted in the order.

However, the petitioner claimed not a single statement in that regard was made by the BMC in its affidavit in reply to the plea.

The bench, before passing an order had initially warned BMC of issuing contempt notice for flouting its directions. The BMC lawyer, on instructions from its Additional Commissioner stated that it will not go beyond what was stated in the affidavit.

It questioned if the BMC’s stand would “virtually amount to giving up that area by calling it a private road”  which was not barricaded, and would amount to “abdication” of its duty.

The HC said the law instead permitted the BMC Commissioner to issue orders to ensure “smooth flow of traffic and to avoid congestion.” Therefore, it said plan for removal of encroachments should not just be to create an “eyewash”. It also asked the BMC to remove the mobile toilet parked on the road within 48 hours.