Slum Development Schemes To Rehabilitate Encroachers On Same Land A Mockery Of Public Trust Doctrine; Must Be Done Away With: Bombay HC

Municipal authorities cannot be "pawns at the hands of land mafia and elected representatives," and encourage encroachment of public land for extraneous reasons, the Bombay High Court observed in a landmark judgement on illegal construction and building collapses in Maharashtra. The bench of Chief Justice Dipankar Datta and Justice GS Kulkarni criticised the Slum Rehabilitation Policy by which slum dwellers are rehabilitated on the same land they encroach, while others have to travel for miles for a small dwelling unit."Is it necessary that the encroachers are rehabilitated on the same land, when others who want to purchase a small dwelling unit are required to go miles away from such prime places, where encroachments on public land happen with impunity", the Court asked, "Merely because the slums turn into potential 'vote banks' such policy of rehabilitation on hypothetical cut off dates is being implemented under the garb of slum rehabilitation. This, in our opinion, is a mockery of the public trust doctrine." "We were constrained to make these observations, as not only these larger issues stare at us in plethora of litigations reaching the Courts, but also for the reason that the building collapse with which we are concerned has taken place in a purported rehabilitation and/or a slum area", the Court added.The court emphasized the need to do away with policies that legalize encroachments as they nullify public trust doctrine. "Also there is a need to do away with such policies which confer a premium illegality in favour of the encroachers, by granting them a windfall of State largesse, namely, a gift of valuable government land in the form of tenements on Government lands wherever situated. This is nothing but legalizing encroachments on prime public lands, in a manner nullifying the "public trust doctrine" and catering to private gains in the teeth of the well-established Constitutional requirements while dealing with State largesse. By such mechanism, valuable public lands are gone forever." "There cannot be such an imbalance in the societal position in which the citizens are placed when Article 14 of the Constitution stares at the State." In a 123-page-order authored by Justice Kulkarni, a slew of directions were passed to keep illegal encroachments in check and fix accountability in case of building collapses, especially in rehabilitated slum pockets. The court accepted pertinent recommendations by the commission headed by Justice J.P. Devdhar (Retd.), appointed by the court. "In the deepest of our hearts, we were concerned for the human lives being lost in these building collapses." The court directed slum dwellers to be rehabilitated in any part of the Municipal Corporation or the adjoining Municipal Corporation and free public lands of encroachment within a year. Significantly the court said no slum scheme, regarding development of encroached Government land should be implemented in the future unless a 'no objection' is given by the state and published in atleast two news papers that it does not require the land for any of its purposes. "Unless, such no objection is received from the State Government or the Central Government or any other public body, the development of any slum scheme or private utilization of such land shall stand freezed," the order said. "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. Unless, such no objection is received from the State Government or the Central Government or any other public body, the development of any slum scheme or private utilization of such land shall stand freezed".The bench stressed the need to "wipe out" the impression that municipal officers or those who are concerned with implementing the municipal laws, are law unto themselves, and the regime of "the rule of law" as set down by the Constitution and the binding effect of the Court orders hardly mattered to them.Significantly the court held that MCGM being the planning authority for the entire Greater Mumbai area can exercise all powers under the MMC Act, MRTP Act and the Slums Act, to take action against illegal structures that also fall within the Slums Act."From a holistic reading of the provisions of the Slums Act..it is difficult to conceive that merely because an area is declared to be a slum under Section 4, the planning authority would lose its control and authority to regulate the structure by implementing the provisions of the...

Slum Development Schemes To Rehabilitate Encroachers On Same Land A Mockery Of Public Trust Doctrine; Must Be Done Away With: Bombay HC

Sharmeen Hakim

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