Public Interest Litigation No. 10 of 2012, Chamber Summons (Lodg.) No. 362 of 2014 and Chamber Summons No. 74 of 2012. Case: Pani Haq Samiti and Ors. Vs Brihan Mumbai Municipal Corporation and Ors.. High Court of Bombay (India)
| Case Number | Public Interest Litigation No. 10 of 2012, Chamber Summons (Lodg.) No. 362 of 2014 and Chamber Summons No. 74 of 2012 |
| Counsel | For Appellant: Mihir Desai and Chetan Mali and For Respondents: Anil Singh, Senior Advocate and K.R. Punjabi |
| Judges | Abhay Shreeniwas Oka and A.S. Gadkari, JJ. |
| Issue | Constitution Of India - Articles 12, 21, 22; Maharashtra Slum Areas (improvement, Clearance And Redevelopment) Act, 1971 - Sections 3(Y), 3X, 3Z; Mumbai Municipal Corporation Act, 1888 - Sections 342, 347, 351, 352, 352A, 354, 354A |
| Judgement Date | December 15, 2014 |
| Court | High Court of Bombay (India) |
Order:
Abhay Shreeniwas Oka, J.
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The issue involved in this writ petition is as regards the supply of water to the occupants of the illegal slums in the city of Mumbai which have come up after 1st January 2000. Considering the issues raised in the petition, the same needs a detailed hearing. Accordingly, we issue Rule. The learned Counsel appearing for the 1st Respondent waives service. The learned AGP waives service for the 2nd and 3rd Respondents. We have heard the learned Counsel appearing for the parties on the prayer for interim relief. We have also heard the Applicant in Chamber Summons (Lodging) No. 362 of 2014 and Applicants in Chamber Summons No. 74 of 2012.
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In the city of Mumbai, a large number of illegal slums have been erected during the last several years on the public properties held by the State Government, Mumbai Municipal Corporation and other Public Authorities. There are several reasons why the illegal slums have came up. One reason can be of failure of the Municipal and other Authorities to take timely action for preventing the construction of the illegal slums and/or demolishing the same. We must note here that the State Government has from time to time legalized the slums illegally erected on the public properties in the City of Mumbai. Another reason can be the failure of the State to make available affordable residential accommodation in the city of Mumbai for common man.
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The Chapter-IB was incorporated in the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 (for short "the Slum Act"). Under Clause (c) of Section 3X of the Chapter IB of the Slum Act, a protected occupier means an occupier of a dwelling structure who is holding a photo-pass. Section 3(Y) provides for issuing a photo-pass in the prescribed format to the actual occupier of a dwelling structure, in existence on or prior to 1st January 1995. The sub-section 1 of Section 3Z provides that no protected occupier save as provided in sub-section 2 shall be evicted from his dwelling structure. The deadline of 1st January 1995 provided in Chapter IB is now extended up to 1st January 2000 thereby protecting the occupier of a dwelling structure which is in existence on or prior to 1st January 2000. Sub-section 2 of Section 3Z provides that the State Government has a power to evict the protected occupiers from the dwelling structures occupied by them. The said power can be exercised by the State Government subject to condition of relocating and rehabilitating the said occupiers in accordance with scheme prepared by the State Government in that behalf.
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Thus, initially the State Government protected the illegal slums which were in existence as of 1st January 1995 and thereafter, extended the said protection to the illegal slums which have came up in further period of five-years.
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In this petition, a challenge is to the Government Circular dated 4th March 1996 which provides that the Local Authorities shall ensure that the water supply is not released to any unauthorized constructions. The challenge is also to the relevant Rules framed by the Mumbai Municipal Corporation dealing with the water charges and in particular a Rule No. 6.9 which initially provided that the water lines shall be made available to the structures in existence in slum areas till 1st January 1995. Now the said deadline is extended till 1st January 2000.
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The contention of the learned Counsel appearing for the Petitioner is plain and simple. His submission is that the right to water is an essential ingredient of Article 21 of the Constitution of India and therefore, no Agency or Instrumentality of the State within the meaning of Article 12 of the Constitution of India can deny the water supply to the citizens who are occupying the illegal slums which have come up after 1st January 2000. A reliance is placed on several decisions of the Apex Court. A reliance is also placed on the Chapters on right to water in the International Covenant on Economic,Social and Cultural Rights.
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The submission of the learned AGP for the State Government is that the water supply is not being released to such an illegal slums as the State does not want to encourage the construction of such illegal slums and people occupying such illegal slums. He urged that there is nothing illegal in the policy of the State Government not to grant water supply to those who are residing in illegal slums. He submitted that the data set out in the affidavit-in-support of the Chamber Summons No. 74 of 2012 does not support the Petitioners and the fact that even some of the Police Constables/officers are residing in the illegal slums is no ground to grant any relief to the Petitioners.
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The learned Senior Counsel appearing for the Mumbai Municipal Corporation urged that grant of any relief to the Petitioners in the present petition will encourage the construction of the illegal slums. He submitted that the slums have been constructed on the hills and in the difficult areas of the city and even assuming that this Court grants interim relief, it is practically impossible for the Municipal Corporation to provide water supply to illegal slums on hills. He urged that there is nothing wrong with the policy of not providing water supply to the occupiers of the illegal slums.
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We must note here that the learned Counsel for the Petitioners during the course of his submission has relied upon the Government Resolution dated 19th June 2010 which deals with the supply of water by the local Authorities in the State. He has relied upon the Clause 3(c) of the Government Resolution which deals with the supply of water to the slums. His submission that one of three methods provided therein is of setting up public booths through which the water can be supplied on the basis of prepaid cards. Dealing with his submission, the learned Senior Counsel for the Municipal Corporation submitted that the sub-clause (c) of clause 3 of the said Government Resolution applies to the protected slums. He submitted that in any event, there is no scheme available with the Municipal Corporation of providing water supply through...
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