FPJ Legal: Bombay HC seeks data on ground plus two houses across slums in Mumbai

Slums in the city have proliferated because of the neglect and by design of successive state governments, the Brihanmumbai Municipal Corporation (BMC) told a Bombay high court bench of Chief Justice Dipankar Datta and Girish Kulkarni on Monday.

Having said this, the civic body, while stating that slums were a problem, also advocated that they were essential for the functioning of the city. The BMC then suggested that the Maharashtra government should allow only ground plus one structures that are 14 feet in height to remain standing while demolishing those beyond this height.

The bench then sought data on the total number of houses in slums across Mumbai that are beyond the permissible 14 feet height and have more than a floor above a ground floor structure.

The judges, during a day-long hearing, were critical of the state’s policy to regularise illegal and unauthorised structures up to 2000, saying such a policy shouldn't be allowed.

Upon being asked, the state through Advocate General Ashutosh Kumbhakoni told the bench that it would not be possible for the state to demolish ground plus two and above structures in the slums across the city.

Malvani Report

Senior Counsel Aspi Chinoy referred to the report submitted by Justice (retd.) Jayprakash Devadhar on the tragic incident of Malvani building collapse, wherein 12 persons including eight children died.

“The report suggests that there are around 8,485 structures in the vicinity where the house collapsed in Malvani on June 10. Of these, only 1,400 odd structures are within the permissible ground plus one structure (14 feet) and the rest are having G+ 2, 3 and even 4 floors,” Chinoy pointed out, adding, “There is no structural sanctity in that area. It can be said, a disaster is waiting to happen.”

Chinoy further pointed out that the encroachment prevention committee of the state hasn’t met right from its inception, a fact which is also mentioned in Justice Devadhar’s report.

“It means that is a still-born committee,” Justice Kulkarni remarked.

On slums

Chinoy stated, “Slums are a problem but also essential for the working for the city. So even if the state allows G+1 structures, let’s stop further floors. Anything over the floor becomes a viable solution to prevent instances of collapses.” At this, Justice Kulkarni pointed out that it wasn’t necessary to have slums and spoke of the ‘Singapore Model’, which has mass housing for all, without any slums.

But Chinoy responded saying that there was no space left in Mumbai to build Singapore-like quarters. “Governments over the years have indulged in design neglect and haven’t let slums go,” the senior counsel argued.

Having heard the contention, Justice Kulkarni said that it was only in Maharashtra where encroachment on government land was allowed and in return, the encroachers got free housing. He said that Chief Justice Datta, who has come to Bombay from West Bengal has also denied of any such policy in his home town.

Justice Kulkarni said, "We haven’t seen such a policy in any other state apart from ours. In fact, there is no clarity on how and on what basis do the authorities issue a ‘photopass’ to the slum owners.”

“It is like a person is inadvertently given an Aadhaar card and based on that he has automatically been granted citizenship,” the judge remarked.

State policy to regularise illegal constructions

Further, the bench noted that the state policy to regularise illegal structures and the first such policy decision was taken way back in 1995. “First, the state allowed regularisation till 1995 and then it was extended till 2000 and now till 2011. But is the state having powers to extend the cut-off date?” CJ Datta said.

Referring to the situation at Malvani, Justice Kulkarni said the situation has gone out of control. “We cannot have policies that permit people to die. We have to value human life. Just because people say they have nowhere else to live, we can’t allow them to risk lives and stay in illegal structures.”

The chief justice further said that it was due to the laxity of authorities that citizens had proceeded to build more than one floor. The bench noted that the latest cut-off date of up to 2011 has not been extended by following due procedure but only by notifying through a government resolution.

At this, Chinoy pointed out that there was in fact an HC judgment that clearly restrained the state from further extending the cut-off date from 2000.

“Let us know the exact number of houses in slums that have more than a floor,” CJ Datta said.

Can’t act against illegal structures, State tells HC

During the hearing, the bench directly asked AG Kumbhakoni about the state’s stand on the issue of houses with more than a floor in slums. “We are a welfare state so what is the government thinking about the welfare of the residents of the second, third and fourth floors of the slums?” the chief justice asked the AG, who responded, “Given the nature of the structure, it won’t be possible to remove part of the houses but the entire structure would have to be demolished.”

“I am not saying that I am for or against it... But there is a practical difficulty,” the AG added.

At this, CJ Datta observed, “We cannot leave the life of the citizens on the mercy of the legislators.”

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