ASN 1 WPL-1443.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION LODGING NO.1443 OF 2011 Badlu Prasad Jaiswal and ors. ...Petitioners. Vs. Municipal Corporation for Greater Mumbai and ors. ...Respondents. Mr. A.V. Anturkar i/by Mrs. A.R.Awasthi for the Petitioners. Mrs. Geeta Joglekar for Respondent No.1-BMC. Mr. J.S.Saluja, A.G.P. for Respondent Nos. 3 to 6. Mr. G.D.Utangale along with B.V. Phadnis i/by Utangale & Co. for Respondent No.7. CORAM : MOHIT S. SHAH, C. J. AND GIRISH S. GODBOLE, J. 27 July 2011 PC: The petitioners, 52 in number, have challenged the notices issued by the Municipal Corporation for Greater Mumbai under Section 314 of the Mumbai Municipal Corporation Act, 1888. The petitioners have also challenged the plan prepared by the Chief Secretary, Finance Secretary of Government of Maharashtra and the Director General of Police, Mumbai which was prepared pursuant to the directions given by this Court in order dated 29 July 2009 of this Court in PIL No.140 of 2006 with Chamber Summons No.372 of 2007. ASN 2 WPL-1443.sxw 2 It is not disputed that the pipes carrying water from the source to the citizens in Mumbai are more than hundred years old and they carry water from 160 Kilometers. Ninety kilometers of the pipes are over the ground and sixty kilometers are underground. There are hutments constructed by illegal encroachers on and around the pipes. In view of the above, this Court had passed an order dated 29 July 2009 and appointed Committee headed by the Chief Secretary and the said committee submitted its report. According to the Corporation, there are more than 15000 hutments either adjacent to the pipeline or at the place where the pipeline is situated. This Court noted in the order dated 14 September 2009 that the encroachments on and around the pipelines cause threat to the security as well to the health of the citizens of Mumbai. This Court further noted that the committee appointed by the Court made a plan by which the hutments dwellers would be removed and the eligible encroachers will be rehabilitated by 2015. This Court accepted the plan prepared by the Chief Secretary, Finance Secretary and the Director General of Police and directed that the plan shall be implemented in accordance with the report of the committee. The petition was accordingly disposed of in terms of the above directions. It was further directed to the Director General of Police to take all steps and measures to protect the pipes and ensure that the water reaching through these pipes is not polluted or used for any purpose which would endanger the lives of the citizens of Mumbai. 3 It is the case of the Municipal Corporation for Greater Mumbai that in compliance with the above directions and as per ASN 3 WPL-1443.sxw the above plan, the Corporation has started taking steps for removal of hutments from the land below which the pipes are passing or surrounding the pipes and in the course of that exercise the Municipal Corporation has issued the impugned notices under Section 314 of the Mumbai Municipal Corporation Act, 1888 (hereinafter referred to as “MMC Act”). 4 The learned counsel for the petitioners has raised the following contentions. a) The petitioners’ hutments are not located on the land below which the pipelines are passing but the petitioners’ hutments are on the adjoining land and in any case the land does not belong to the Municipal Corporation. b) The land on which the petitioners’ hutments is situated is part of Dharavi hutments and therefore the provisions of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 (hereinafter referred to as “The Slum Act”) are applicable and therefore only Slum Rehabilitation Authority (SRA) is the competent authority to evict the petitioners and not the Municipal Corporation. c) The impugned plan is prepared by three officers who are the officers of State Government and is not a Slum Rehabilitation Scheme and therefore, the said plan cannot be implemented. ASN 4 WPL-1443.sxw 5 On behalf of the Municipal Corporation, affidavit in reply dated 26 July 2011 has been filed by the Project Officer, Dharavi who is the Officer of the Municipal Corporation. 5.1 It is pointed out in the said affidavit that the Committee appointed by this Court had observed in its report that all the hutments existing upto 1 January 2000 will be considered eligible for rehabilitation by providing temporary alternate accommodation and the encroachments made after 1 January 2000 were proposed to be removed. The Committee also submitted a phase wise programme for removal and rehabilitation of the hutments. After referring to the directions given by this Court in the order dated 14 October, 2009, it is stated that the respondent Corporation issued notices under Section 314 of the MMC Act, 1988 in December 2010 to 238 encroachers affected within 10 meters span from water main on either side. Some of the encroachers challenged the said notices by filing writ petition before this Court. Those writ petitions Nos. 994 of 2011 and 995 of 2011 came to be dismissed by order dated 8 June 2011 of this Court. The contention that the hutment dwellers in Dharavi are entitled to be accommodated in Dharavi area itself was not accepted by this Court. This Court held that Writ Petition Lodging No.565 of 2011 challenging similar notices issued by the Municipal Corporation for demolition has been disposed of by this Court. 5.2 It is further pointed out in the affidavit that in compliance with the directions dated 19 July 2011 of this Court, Corporation ASN 5 WPL-1443.sxw accepted the documentary evidence submitted by the petitioners and other hutment dwellers and out of 110 hutment dwellers to whom notices under Section 314 had been given, 76 hutment dwellers submitted documents and after scrutiny made by the concerned department of the Municipal Corporation, it was found that only 46 hutment dwellers (residential 20 and commercial 26) are eligible for alternate accommodation and the notice to that effect was served upon the concerned parties by pasting them on site. It is further stated that the alternate accommodations are offered to the eligible residential hutment dwellers and the allotment of commercial accommodation will be made within two days after the sanction from the Assistant Commissioner (Markets) of the Municipal Corporation. 5.3 As regards the petitioners’ contention that the land in question does not belong to the Corporation, that contention is denied and it is stated that water main belongs to the Corporation and the land in question also belongs to the Corporation and the provisions of the Slum Act, 1971 do not apply to the present case. The petitioners’ contention that the Development Control Rule 33(10) applies to the land in question is also disputed. It is specifically contended that there is no redevelopment project in respect of the land and surrounding area of the water main. 6 It is thus clear that as far as hutment dwellers who have produced documentary evidence to the satisfaction of the Corporation that they were occupying the site from the date prior to 1 January 2000 ASN 6 WPL-1443.sxw are concerned, they have been offered temporary alternate accommodation. However, even those who are eligible for such temporary alternate accommodation have to be first evicted from the land in question which is surrounding the water pipe line. It has been brought to our notice that even the application for extending the cut-off date for eligibility for allocation of permanent alternate accommodation as and by way of permanent rehabilitation from 1.1.1995 to 1.1.2000 is pending for consideration before the Supreme Court and the question as to whether the said cut-off date should be extended till 1.1.2000 is yet to be decided by the Supreme Court. It is in this context that while the Committee has suggested permanent rehabilitation of the slum dwellers occupying unauthorized structures prior to 1.1.2000 and while the occupants from 1.1.1995 to 31.12.1999 are being provided temporary alternate accommodation, the question of grant of permanent alternate accommodation to the said persons will be decided only after the Supreme Court takes appropriate decision regarding the request for extension of cut-off date. 7 As regards the contention of the petitioners that Section 314 of the MMC Act does not apply, because the land in question is part of Dharavi slum is concerned, we are unable to accept this contention. Section 314 confers power on the Municipal Corporation to remove, without notice, anything erected, deposited or hawked in contravention of Section 312, 313 or 313A of the MMC Act which requires any person putting up any building or structure or any fixtures to obtain prior permission of the Municipal Corporation. For application of the said ASN 7 WPL-1443.sxw Section 314, it is not even necessary that the land in question should belong to the Corporation. 8 Even where the land may be the part of any slum which is covered by the Slum Act, 1971, there is nothing in the provisions of the Slum Act to over ride the provisions of Section 314 of the MMC Act. The learned counsel for the petitioner has placed reliance upon Section 47 of the Slum Act which reads as under. “47 Cesser of corresponding laws and powers conferred thereunder temporarily :-(1) where any area is declared to be slum area under this Act, then as from the date of such declaration, the provisions of an municipal or other law corresponding to the provisions of this Act for slum improvement in relation to the slum area in force immediately before the said date shall, save as otherwise provided in this Act, cease to be in force in the slum area, but so long only as the said declaration remains in force.” On careful reading of the provisions of the Slum Act and the MMC Act, it is clear that only those provisions of the Municipal Law will cease to be in force in slum area which correspond to the provisions of the Slum Act relating to slum improvement in relation to the slum area, in so far as they existed prior to the coming into force of applicability of the Slum Act, 1971. Hence, only those provisions in MMC Act which provided for improvement and clearance of slum like areas and structures therein may be affected by Section 47 of the Slum Act. The provisions under Chapter 12A of the MMC Act provide for ASN 8 WPL-1443.sxw city improvement and improvement schemes. So, at the highest, only those provisions of said Chapter 12A may be overridden in a Slum Area declared under the Slum Act to the extent of inconsistency. Section 314 does not fall in Chapter 12A of MMC Act. 9 Having examined the provisions of Section 3Z, 3Z.1 and 3Z.2 of the Slum Act; we do not find anything in the said provision which could have over riding effect over Section 314 of the MMC Act. 10 As regards the contention that under Section 3Z.6 of the Slum Act, only the lands belonging to the Central Government are excluded from the special provisions of Slum Rehabilitation Housing Scheme, this contention would require examination only if Rehabilitation Housing Scheme under Chapter I(C) of the Slum Act had been prepared for the land in question. Nothing has been placed on record to indicate that any such rehabilitation housing scheme has been prepared. 11 As regards the contention that the petitioners are entitled to be protected under Section 3Z of the Slum Act, it is clear that sub section (2) of Section 3Z specifically provides that if it is necessary in larger public interest, to evict the protected occupiers from the dwelling structures occupied by them; the State Government may, subject to the condition of relocating and rehabilitating them in accordance with the scheme or schemes prepared by the State Government in this behalf; evict them from the dwelling structures...... ASN 9 WPL-1443.sxw It is clear that the committee appointed under the orders of this Court has already prepared the plan and the Municipal Corporation is implementing the said plan as per the directions contained in the order dated 14 October, 2009. Even otherwise, the Municipal Corporation has offered temporary alternate accommodation to the 46 hutment dwellers on their submitting necessary documentary evidence in support of their case that they are occupying the sites in question prior to 1 January 2000. 12 As a matter of fact, the question whether the hutment dwellers made encroachment between 1 January 1995 and 31 December 1999 itself is pending consideration before the Supreme Court, but for the present, the Municipal Corporation has also offered alternate accommodation to those who made encroachments between 1 January 1995 and 31 December 1999 and hence, at this juncture, for deciding this petition, it is not necessary to await for any further orders of the Supreme Court with regard to that controversy. 13 The learned counsel for the petitioners had initially relied upon the directive issued by the Government of Maharashtra in its Urban Development Department under Section 37 of the Maharashtra Regional and Town Planning Act, 1966 for commencing the process for modification of the Development Plan of MMC for addition of DCR 33 (10A) in the D. C. Rules, 1991 for Greater Mumbai and has relied upon ASN 10 WPL-1443.sxw the direction contained in the said letter, which direction is purportedly issued under Section 154 of the Maharashtra Regional and Town Planning Act, 1966 to the effect that pending the modification of D.C. Rules after following the procedure prescribed by Section 37 of the Maharashtra Regional and Town Planning Act, 1966; the draft D.C.Rule 33(10A) should be implemented forthwith. Reliance was placed on the proposed provision in draft D. C. Rule 33(10A) to buttress the submission that the structures in Dharavi area have to be rehabilitated either in Situ i. e. in the same place or at least in Dharavi area. However, when some reservation was expressed about the scope of the provisions of Section 154 and the power of the Government to issue such a directive, the learned counsel for the petitioners made a statement that he is not pressing the said submission. 14 In view of the above, we do not find any merit in this petition and the petition is accordingly dismissed. 15 At this stage, the learned counsel for the petitioners prays for stay of operation of this order. The learned counsel for the Municipal Corporation states that since the Corporation has already offered alternate accommodation to those who had made encroachment prior to 1 January 2000, the prayer of the petitioners may be rejected. 16 As far as prayer for stay of operation of this order is concerned, there is no justification for staying the implementation of this order because the directions given by this Court are for the purpose ASN 11 WPL-1443.sxw of ensuring that repairs of water pipe lines which are hundred years old are carried out immediately. Any delay will only expose the citizens getting water from these pipe lines to various health hazards. However, in the facts and circumstances of the case and in order to enable the petitioners to make alternative arrangements for shifting their belongings, we direct that eviction notices issued against the petitioners shall not be implemented till 22 August 2011. Parties to act on a copy of this order duly authenticated by the registry of this Court. CHIEF JUSTICE GIRISH S. GODBOLE, J.