In a scathing comment on protection provided by successive governments to slumdwellers, Bombay high court Chief Justice Dipankar Datta on Tuesday said it appears that government land is the “paternal property of the executive”.
“I am new to all this. But it seems like the State’s property is the paternal property of the executive,” said the CJ who hails from Bengal. He and Justice Girish Kulkarni heard suo motu a PIL on building collapses with a focus on last month’s Malwani crash that killed 12.
The CJ’s comment came after advocate general Ashutosh Kumbkhakoni clarified that protection to unauthorised hutments/occupiers is only till January 1, 2001 and the cut-off is not extended till January 1, 2011.
Those in between (these dates) we’ll try to accommodate subject to availability of tenements and on ownership or rent,” advocate general Ashutosh Kumbkhakoni added. The judges said there is “absolute recognition” for slumdwellers from 2001-2011 considering the huge floor space index if the state undertakes redevelopment. They noted that from1976, the state has been legitimising encroachers on government land. “The moment you bring them under a beneficial scheme, then the government land is written off, corporation land is written off,” said Justice Kulkarni.
The bench observed that the biggest planning mistake was to include government lands within Development Control Regulations. Also, while there is the Slums Act, the government brought slum societies, owners and developers under DCR. “It is a fraud on the Constitution. Public largesse cannot be handled by slum societies and others. Government is custodian of public interest. It cannot be done when you have a complete code,” said Justice Kulkarni. CJ Dipankar Datta added, “If you create a category of developers under DCR, land sharks come in.”
Senior advocate Aspi Chinoy with advocate Joel Carlos for BMC questioned how BMC as an “outside authority” can take action when a structure is protected under the Slums Act. Chinoy said it is only the competent authority—the deputy collector—who has a record of photo passes issued to such structures. “If I go as BMC, I cannot ask them to produce photo pass. Providing water and electricity is not necessarily knowledge of the structure. It will lead to absurdity if we start questioning,” he added.
But amicus curiae, senior advocate Sharan Jagtiani, said there is no question of BMC being handicapped about details of photopasses. “What it does in the cases of non-slums will apply in the same fashion,” he added. “This is what has happened here (at Malwani),” Justice Kulkarni said. With this, the hearing on the issue of jurisdiction as to who is the competent authority to act against illegal structures in slum areas concluded.