gopi 1 wp-lodg.1298-2011 & connected matters IN THE HIGH COURT OF JUDICATURE AT BOMBAY. ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION LODGING NO.1298 OF 2011 Shraddha Nirmal Das ..Petitioner V/s. State of Maharashtra & Ors. ....Respondents. WITH WRIT PETITION LODGING NO.1987 OF 2011 Suresh Chintamani & Ors. ..Petitioners V/s. State of Maharashtra & Ors. ....Respondents. WITH WRIT PETITION LODGING NO.1308 OF 2011 WITH NOTICE OF MOTION NO.431 OF 2011 AND NOTICE OF MOTION NO.394 OF 2011 Vimal Dada Magar ..Petitioner V/s. State of Maharashtra & Ors. ....Respondents. WITH WRIT PETITION LODGING NO.1358 OF 2011 Sunanda Sudharshan Belcheda ..Petitioner V/s. State of Maharashtra & Ors. ....Respondents. WITH WRIT PETITION LODGING NO.1653 OF 2011 Anand Bhalerao & Ors. ..Petitioners V/s. State of Maharashtra & Ors. ....Respondents. gopi 2 wp-lodg.1298-2011 & connected matters Mr. M.J. Nedumpara and Mr. S.M. F. Warsi for the petitioners. Ms. Geeta Joglekar for respondent B.M.C. Mr. M.A. Saiyed, AGP fofr State. CORAM: MOHIT S. SHAH, C.J., & MRS. ROSHAN DALVI, J. DATED : 9 December 2011. P.C. In these petitions the petitioners have challenged the action of the respondent, Municipal Corporation of Greater Mumbai, demolishing the petitioners’ hutments. 2. In our order dated 24 August 2011 we had indicated that the pipelines carrying water to the citizens in Mumbai are more than hundred years old and they carry water from 160 Kms. Ninety Kilometers of the pipes are over the ground and sixty kilometers are underground. However, there are hutments constructed by illegal encroachers on and around the pipelines. In view of the above, this Court had passed an order on 29 July 2009 and appointed a Committee headed by the Chief Secretary and the said Committee submitted its report, indicating the action plan for removal of hutments and for repairing/replacing the pipelines. According to the Corporation there are more than 15,000 hutments either adjacent to the pipelines or at the place where the pipelines are situate. In the order dated 14 September 2009 this Court had noted that the encroachments on and around the pipelines cause threat to the security as well the health of the citizens of Mumbai. This Court also noted the plan submitted by the Committee for removal of the hutments and for rehabilitation of eligible gopi 3 wp-lodg.1298-2011 & connected matters encroachers. This Court directed that the plan prepared by the Committee of Chief Secretary, Finance Secretary and Director General of Police shall be implemented in accordance with the report of the Committee. The petition was accordingly disposed of in terms of the above directions. 3. It is the case of the Municipal Corporation that in compliance with the above directions and as per the above plan the Municipal Corporation has been taking steps for removal of the hutments on and around the pipelines or surrounding the pipes and in the course of that exercise the Municipal Corporation is taking the impugned action under Section 314 of the Mumbai Municipal Corporation Act, 1888. Section 314 in so far as relevant ffor the purpose of these petitions reads as under:- “[314. Power to remove without notice anything erected, deposited or hawked in contravention of section 312, 313 or 313A] The Commissioner may, without notice, cause to be removed-- (a) any wall, fence, rail, post, step, booth or other structure or fixture which shall be erected or set up in or upon any street, or upon or over any open channel, drain, well or tank contrary to the provisions of sub-section (1) of section 312, after the same come into force in the city or in the suburbs, after the date of the coming into force of the Bombay Municipal (Extension of Limits) Act, 1950 or in the extended suburbs after the date of the coming into fofrce of the Bombay Municipal (Further Extension of Limits and Schedule BBA (Amendment) Act, 1956; gopi 4 wp-lodg.1298-2011 & connected matters (b) Any stall, chair, bench, box, ladder, bale, board or shelf, or any other thing whatever placed, deposited, projected, attached or suspended in, upon, ffrom or to any place in contravention of sub-section (1) of section 313; (c) any article whatsoever hawked or exposed for sale in any public place or in any public street in contravention of the provisions of section 313A and any vehicle, package, box, board, shelf for any other thing in or on which such article is placed or kept fofr the purpose of sale. (d) any person, unauthorisedly occupying or wrongfully in possession of any public land, ffrom such land together with all the things and material unauthorisedly placed, projected or deposited on such land by such person; Provided that, the Commissioner shall, while executing such removal, allow such person to take away his personal belongings and household articles, such as cooking vessels, bed and beddings of the family, etc.” The learned Counsel for the Municipal Corporation further states that as per the policy of the respondent authorities the encroachers who were on the land as on 1 January 1995 or prior thereto are required to be rehabilitated. The question whether the cut-off date should be 1 January 1995 or whether it should be extended to 1 January 2000 is pending consideration before the Supreme Court. 4. The learned Counsel for the Municipal Corporation further states that all those hutment dwellers, who have produced the documents to show that they were at the site in question on 1 January 1995 or even gopi 5 wp-lodg.1298-2011 & connected matters as on 1 January 2000 are being considered for rehabilitation. But those who have not produced such documents are not to be rehabilitated. It is submitted that all those hutment dwellers who submitted the documents in support of their claim that they were at the site on 1 January 1995 or even as on 1 January 2000 or prior thereto have been considered to be eligible for rehabilitation. However, the petitioners herein have not been found to be eligible and not produced any document to show that they meet the eligibility criteria. Hence such hutments have been demolished. 5. The learned counsel for the petitioners, however, submits that irrespective of the cut-off date all the hutment dwellers are entitled to be protected and are entitled to be rehabilitated. 6. We do not find any substance in the contention as a Division Bench of this Court (Coram: F.I. Rebello & Dr. Chandrachud, JJ.) has already considered this issue and has restrained the Corporation and the authorities from extending the cut-off date beyond 1 January 1995. The question whether the cut-off date should be 1 January 1995 or 1 January 2000 is pending consideration before the Supreme Court. 7. The learned counsel for the petitioners further submits that the Municipal Corporation has no authority or jurisdiction to take any action for demolition because such power is conferred only on the Mumbai Metropolitan Regional Development Authority (MMRDA). It is submitted that even demolition of hutments amounts to development work under Section 37 of the M.R.T.P. Act and, therefore, only the MMRDA can take such action. gopi 6 wp-lodg.1298-2011 & connected matters 8. We are unable to accept the above contention. The impugned action of the Municipal Corporation is under Section 314 of the Municipal Corporation Act which empowers the Corporation to remove unauthorised constructions. When the Municipal Corporation is removing the encroachments on and around the pipelines which carry water to the citizens of the Corporation and the Corporation is performing the function, which is its obligation, it is open to the Corporation under the Municipal Corporation Act to take action under Section 314 of the Mumbai Municipal Corporation Act which expressly confers power on the Municipal Commissioner to remove without notice anything erected or constructed without permission of the Municipal Commissioner. Section 61 of the Municipal Corporation Act in terms provides that it shall be incumbent on the Corporation to made adequate provision for each of the following matters:- “(a)........ (b) the construction and maintenance of works and means for providing a supply of water for public and private purposes.” It is thus clear that it is obligatory upon the Corporation to provide for and to maintain pipelines for carrying water for public and private purposes. It is in the exercise of this power that the Municipal Corporation is carrying on the demolition work of hutments from and around the pipelines so that the pipelines can be replaced and/or repaired. Therefore, such action cannot be said to be within the exclusive jurisdiction of the MMRDA 9. We are, therefore, of the view that the impugned action is rightly being taken by the Corporation under the provisions of Section gopi 7 wp-lodg.1298-2011 & connected matters 61 read with Section 314 and 315 of the M.M.C. Act. The provision of water pipelines being within the province of the Municipal Corporation, it cannot be said that the Corporation is acting without authority in removing the encroachment from and around the pipelines. 10. When the petitioners herein have not produced any documents before the Municipal Corporation to show their eligibility or after showing their documents they are not seen to fall within the datum line, no relief can be granted to the petitioners. 11. However, we make it clear that even at this late stage and after their structures are demolished for want of any documentary evidence being produced, if any, if the petitioners produce documents showing their structures to have been in existence on or around the pipelines, the Municipal Corporation shall consider them for the purpose of determining the eligibility of such claimants. However, there shall be no stay against the demolitions which are now in progress. 12. It is clarified that these directions are not to be applied to those petitioners whose cases have already been considered by the Municipal Corporation. 13. Subject to the above directions, all the petitions are dismissed. 14. In view of the order passed in the Writ Petitions, the Notices of Motion have become infructuous. Hence, Notices of Motion are disposed of as infructuous. CHIEF JUSTICE (MRS. ROSHAN DALVI, J.)