Building Collapse - Take Penal Action Against Municipal Officers Allowing Unauthorized Constructions : Bombay High Court Issues Guidelines
Alarmed and deeply pained by incidents of collapse of buildings resulting in loss of lives, the Bombay High Court issued a slew of direction in a suo motu PIL initiated in September 2020 after 38 people lost their lives in a building collapse in the satellite town of Bhiwandi outside Mumbai. Noting the "chaotic" existing pattern of mushrooming slums and illegal constructions in every...
Alarmed and deeply pained by incidents of collapse of buildings resulting in loss of lives, the Bombay High Court issued a slew of direction in a suo motu PIL initiated in September 2020 after 38 people lost their lives in a building collapse in the satellite town of Bhiwandi outside Mumbai.
Noting the "chaotic" existing pattern of mushrooming slums and illegal constructions in every possible pocket of private and public open land, with municipal authorities turning a blind eye, and the land mafia and elected representatives encouraging the phenomenon, the HC emphasized the need for mass public housing.
"The entire focus is on putting up skyscrapers on slum lands. It cannot be a situation that people from all parts of the country come to work in urban areas and there is no alternative to them but to encroach on government/public lands or private open lands and reside in filthy surroundings and in illegal structures. Such is the sorry state of affairs", a bench comprising Chief Justice Dipankar Dutta and Justice GS Kulkarni observed.
The bench held that "The right to livelihood includes a right of decent living and not an animal existence. It would include a right to live with dignity and implicit in it, is a right to live in decent houses, opposed to filthy living conditions."
"This ought to be an issue of prime concern for, so to device means to create mass housing facilities for the poor and for the economically weaker sections of the society, who are forced to live in slums in bigger cities so as to earn their livelihood and whose need for the city is perhaps indispensable. An endeavour ought to be made to bring about an era to have cities with no slums", the judgment authored by Justice Kulkarni noted.
The bench reproduced mass housing facilities being adopted by some of the countries like Singapore, United States of America, United Kingdom and Hong Kong.
Guidelines
The court had appointed a commission headed by Justice Mr J.P. Devdhar (Retd.) after building collapses in the suburb of Malwani, in Mumbai.
- The court accepted the commissioner's report and directed the Principal Secretary to initiate action against the Municipal and State Government officials.
- Except for an acceptable and lawful reason, if an illegal and unauthorized construction is found to have subsisted and/or its non-removal is aided and/or abetted by the municipal officers or its employees for a substantial time of more than six months, the Municipal Commissioner shall take penal action against such erring municipal officers including lodging of prosecution under the Municipal laws, in addition the relevant provisions of the Indian Penal Code, apart from initiating disciplinary proceedings.
- The planning authorities shall keep the Urban Development Department of the State informed on the numbers of illegal constructions in the respective municipal and jurisdictional areas and the action being taken in regard to such illegal constructions, which shall be notified on the website of the planning authority.
- The names and designations of the officers/Municipal Officers in charge of the respective municipal areas, shall be notified by the planning authorities/ Municipal Corporations ward-wise on its official websites, so that accountability can be attributed and fixed in deciding complaints which may be filed by the aggrieved persons.
- Municipal Commissioner and/or the competent authority of a designated planning authority, is directed to take a review of the illegal buildings/structures in every ward and actions taken thereon, periodically between the 25th to 30th day of every month
- In so far as the notified slum areas are concerned, in accordance with Section 3Z-2 (7) of the Slums Act, the State Government is directed to lodge prosecution, including against officers of the SRA for having aided or abetted the construction of unauthorized or illegal structures.
BUILDING COLLPASE
- In the event of a building collapse resulting in loss of lives, the Principal Secretary (UDD) and/or the Municipal Commissioner, as the case may be, shall immediately conduct an enquiry to be completed within a period of fifteen days from such collapse, so to determine the responsibility of the concerned Government Officials and take action.
- Such criminal prosecution not only shall be under the provisions of the municipal laws but also under the relevant provisions of the Indian Penal Code.
- The persons who put up illegal or unauthorized constructions cannot claim any immunity by undertaking such illegal acts. The Municipal Commissioner apart from taking action for demolition of such illegal structures, shall also institute criminal proceedings against such persons, who are found to have violated municipal laws.
- This apart those who are victims of a building collapse, in the absence of any fault on their part, would also be entitled to seek reliefs in appropriate civil and criminal proceedings against the owners of the building and the municipal officers, notwithstanding their right in law to claim compensation from such parties.
- The concerned Municipal Commissioners are directed to give effect to the provisions of Section 152A of the MMC Act and Section 267A of the Maharashtra Municipal Corporations Act to levy penalty which shall be equal to twice the property taxes leviable on such building, so long as it remains unlawful and recover such amounts as arrears of property taxes.
- In so far as the State Government's land and/or other public lands in respect of which, till date no slums schemes are approved by the Slum Rehabilitation Authority, such lands shall not be redeveloped under slum redevelopment schemes, unless the State Government or the concerned public authority gives a 'no objection' to be published, in at least two local newspapers, that in future it does not require such public lands for any of its purposes, or for the public purposes of any other public bodies under the State or the Central Government.
- The State Government and the public bodies shall take appropriate steps as permissible in law, to remove the encroachments of the public lands as described so that land is made encroachment free, to be utilized for public purpose.
- In the event the encroached lands are required by the State Government or by any public body, steps be taken to remove the encroachment and make the land encroachment-free within one year, by rehabilitating the slum dwellers of such lands, if they are protected occupiers. Such eligible slum dwellers be rehabilitated in any other part of the city or in the municipal jurisdiction of the adjoining municipal corporation as the State Government may decide.
Case Title : High Court on its own motion (in the matter of Jilani Building at Bhiwandi) vs Bhiwandi Nizampur Municipal Corporation & Others
Citation : 2022 LiveLaw (Bom) 53