Governments acted as though state
property was paternal property: Bombay HC

Mumbai: Embarrassing all the governments that have ruled Maharashtra till date, a Bombay High Court bench of Chief Justice Dipankar Datta and Justice Girish Kulkarni on Tuesday said successive governments had perpetrated a fraud on the Constitution of India by tinkering with the laws pertaining to slums. The bench went to the extent of saying that governments had acted as though state property was their paternal property.

The bench was hearing a suo motu public interest litigation (PIL) taken up over the menace of illegal constructions in Mumbai and nearby districts, and also the rise in cases of building collapse.

On Tuesday, when the matter was called out for hearing, senior counsel Sharan Jagtiani, the amicus curiae (friend of court) assisting the bench, argued that the BMC being the city’s planning authority can take action against the slum houses that are constructed in breach of the permissible 14-feet height.

Senior counsel Aspi Chinoy for the BMC, however, pointed out the concept of ‘census’ of slums that aren’t notified under the relevant state laws. “The state conducts census of slums. It is a vexed issue,” Chinoy argued.

The bench, while hearing the arguments, noted that there is no provision for protecting such houses which are above 14 feet; However, the state hasn’t done much to address that issue. “What have you (state) been doing for so many years? Why were these flagrant violations allowed?’ Chief Justice Datta remarked.

Advocate General Ashutosh Kumbhakoni then made submissions justifying the decisions of successive governments to extend the cut-off dates (for protecting such slums) from 1995 to 2000 and then till 2011.

At this, Chief Justice Datta remarked, “I am very new to such a policy of regularising unauthorised structures. It appears the state property is taken as paternal property by the executive.”

The judges further noted that there is no legal provision for “censused slums” and said, “It appears the executive has used its law-making powers to tinker with these norms and brought in a totally different category of censused slums.”

“The biggest mistake on part of the governments till date has been of including these slums into Development Control Rules (DCR) provisions. And the introduction of beneficial housing schemes (SRA schemes) indirectly legitimising encroachment,” Justice Kulkarni observed, adding, “When there is a detailed code for slums, why to bring them under the purview of DCR provisions? This has left government lands open for builders.”

“Public largesse can’t be handled by anyone else other than the state government, since it is the custodian of public interest. But we are sorry to say governments so far have acted against it. This is nothing but a fraud on the Constitution,” Justice Kulkarni remarked.

The judge further said that with such a mistake, the state is now running from pillar to post searching land for its own projects. “In fact, you don’t have any land even for the new HC building,” the judge remarked.

During the hearing, the judges noted that photo-passes have been issued to slums without any due process and that houses beyond the 14-feet limit have acquired photo-passes, which acts as a ‘protection’ for them and even makes them eligible for free housing schemes under the SRA.

The bench sought to know from the BMC if it would be taking action against slums that have photo-passes but are beyond the permissible height. To this, Chinoy responded, “No. We are a planning authority. We cannot take action as the state laws make a photo-pass as a protection for the houses.”

“It would lead to absurdity if we act against such houses. We can’t go there and ask them if they have a photo-pass or not. It is for the collectorate authorities to check,” Chinoy added.

At this, the Chief Justice said, “Can a photo-pass act as a protection? Can a totally dilapidated structure which is beyond the 14-feet limit be protected with a photo-pass?”

The Chief Justice further asked the state AG to respond on an affidavit if the Malwani area was a notified slum or a “censused” one, as there was no material on record to show as to which category did these slums belong to.

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