The Bombay High Court Tuesday came down heavily on the Maharashtra government and the Brihanmumbai Municipal Corporation (BMC) for allowing illegal and unauthorised constructions to “blatantly” come up without following existing laws.
“…it seems like the state’s property is the paternal property of the executive,” Chief Justice Dipankar Datta remarked after the government submitted that structures of slum dwellers holding valid photo passes were protected and could not be demolished under the slum rehabilitation policies.
The division bench, also comprising Justice Girish S Kulkarni, was hearing a suo motu PIL it had initiated in September 2020 after the collapse of a building in Thane’s Bhiwandi which had claimed 40 lives. The high court has also taken cognizance of the recent building collapses in the Mumbai Metropolitan Region (MMR) between May 15 and June 10 due to “rampant” illegal constructions, including the Malwani incident.
On Tuesday, senior counsel Aspi Chinoy along with advocate Joel Carlos for BMC submitted due to the state policy, which protects encroachers, the civic authority could not take action against them under the provisions of the Municipal Corporation Act, and had a limited role to play as an “outsider authority”. Amicus curiae senior advocate Sharan Jagtiani contested the submission.
Advocate General Ashutosh Kumbhakoni, appearing for the state government, referred to the Maharashtra government’s slum rehabilitation policies granting statutory protection against the demolition of structures constructed before January 1, 2000, and not higher than 14 feet. The HC had pulled up the state government for further extending protection, through government resolution, to illegal structures up to 2011.
After Kumbhakoni said successive governments had extended the cut-off date (for protecting slums) till 2000, the judges noted that from 1976 to 2000, the state had legitimised encroachers on government land. “The moment you (state) bring them under a beneficial scheme, state land and corporation lands are written off,” the HC said.
“Biggest planning mistake is to include government land within the purview of Rule 33 (10) of Development Control Rules (DCR). Actually, it is a fraud on the constitution. Public largesse cannot be handled by slum redevelopment or such authorities,” Justice Kulkarni said. As per Rule 33 (10), under the Slum Rehabilitation Authority (SRA) scheme, any society of slum dwellers can undertake redevelopment of the slum and the floor space index for every square foot of land of the society, three square feet of construction would be allowed.
The court also concluded its hearing on the issue of who will be the competent authority to take action against the illegal structures in protected slum areas.