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In a judgment passed on Tuesday, a division bench of Justices Girish Kulkarni and Jitendra Jain said the state’s policy has resulted in large pockets of land being siphoned out from the “state pool”.
It also called for a “thorough introspection of such government policies, keeping in view the plight of the future generation who would suffer the ill-effects of the state of affairs”.
The court said once slums on a private land are recognised under the Slum Act, strangely the encroachment on a private land gets converted into a legitimate right of a free tenement to the encroacher under the slum policy of the state government, which, in our opinion, is as good as a premium on the illegality of the encroacher in encroaching on either private or public land.
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The court said it is reminded of “woeful realities” wherein major public lands in Mumbai have vanished from the public pool and are subjected to private development by developers under the garb of slum redevelopment.
If the official machinery was to act as per law, today we would not have been confronted with the situation of an international city like Mumbai being also known for its slums on private and public lands, it said.
The court said the Slum Rehabilitation Authority (SRA) has an onerous obligation to reasonably, non-arbitrarily, and objectively deal with the valuable property rights of private citizens who are dragged in such situation where the monsters of encroachment and persons supporting them take the rule of law in their hands in depriving the land owner of his right to property.
“They forget that there is a rule of law and there are courts and any such attempt to dent the rule of law can be dealt with iron hands. We may also add that if the official machinery was to act as per law, today we would not have been confronted with the situation of an international city like Mumbai being also known for its slums on private and public lands,” the HC said.
The bench quashed a notice of October 2021 issued by the CEO of the SRA to the Mount Mary Church trust seeking to acquire some portion of land owned by it in suburban Bandra for a slum redevelopment project.
“In our opinion, the acquisition in the present case is totally unwarranted. The decision of the SRA, as hurriedly taken, hence, is patently illegal,” it said.
The court was hearing a petition filed by Bishop John Rodrigues, sole trustee and rector of Basilica of Our Lady of the Mount Mount Mary Road in Bandra challenging the SRA notice seeking to acquire 1596 sq metres land for the slum redevelopment project.
As per the plea, the trust owns the 9,371 sq metres, situated at Bandra Mumbai, out of which 35 slum structures occupy the 1,596 sq metres land.
The court in its order said the right of the slum-dwellers is only to a permanent alternate accommodation under the statutory scheme and the state policies.
“The slum-dwellers cannot have an approach that they become owners of the land and assert rights to defeat the rights of the real owners of the land. In our opinion, neither such rights of any ownership of the land to the slum dwellers are recognised by the Slum Act nor can such rights be so inferred,” it said.
“Unfortunately, it is the state policy which in fact has encouraged encroachments on all categories of lands and resulted in large government lands being siphoned out from the ‘state pool’ and equally private lands being completely lost to its owners,” the court said.
Such a position is wholly unacceptable when the rights of every individual/person are conferred by the Constitution and the laws, it added.
The bench said a thorough introspection is required on such government policies, keeping in view the plight of the future generation who would suffer the ill-effects of the state of affairs, as they exist today, continues.
“It is high time to ponder on the future rights on such aspects. We are conscious of the needs of the large cities which require a large amount of migrant work force and recognition of the residential needs of such a workforce. However, this could not mean that valuable lands, either public or private, can be taken away merely because such lands for a long period are permitted to be encroached, throwing to the winds, the elementary adherence of principles of law on the right to property,” it said.
The bench said the SRA and other authorities need to be conscious of the ground realities that it is an herculean task in Mumbai to remove any encroachment on private and public land.
It is equally difficult for a private owner of the land to safeguard its land and prevent encroachment, HC said.
“This is the sad story, as encroachment does not happen by such encroachers simply squatting on the land, but are invariably backed by slumlords, criminals, social workers, politicians (as the squatters would be vote banks),” it said.