If Illegal Structures Are Demolished Following Due Process Of Law, There Can’t Be Violation Of Rights U/Article 300-A Of Constitution: Bombay HC [Read Judgment]

The Bombay High Court recently held that if illegal structures are demolished after following due process of law, then there cannot be a violation of rights under Article 300-A of the Constitution.

Article 300-A of the Constitution is a constitutional right, it reads-

“Persons not to be deprived of property save by authority of law.- No person shall be deprived of his property save by authority of law.”

A division bench of Justice AS Oka and Justice RI Chagla was hearing a batch of petitions filed by residents of areas around the main water pipeline that supplies water to the city of Mumbai as well as the sub-urban districts.

Case Background

The said petitioners challenged a demolition notice issued by the Brihanmumbai Municipal Corporation in compliance of directions of the high court.

What happened was that the high court had disposed of a PIL filed by Janhit Manch and others in 2009. In the said PIL, it was stated that length of the main water pipeline that passes through the city of Mumbai and Mumbai sub-urban districts is about 160 km. Out of this, 90 km is above ground and there are a lot of illegal structures around the said pipeline which are posing a threat to the pipeline.

A committee headed by the Chief Secretary of the state government was appointed to look into the issue. The committee recommended the removal of all structures within the distance of 10 meters from the main pipeline and also recommended rehabilitation of eligible persons holding the structures within the distance of 10 meters from the pipeline. The State Government agreed with the recommendations of the committee by filing an affidavit. In an order dated October 14, 2009, the court directed removal of the said structures within 10 meters of the pipeline.

The said pipeline supplies water from various lakes in Thane district and a couple of lakes in Mumbai city. Cautioning the State about the need for protection of the said pipeline, the court had observed in the said order that unless the structures are removed, the pipeline may easily become a subject of terrorist attack. It was also observed that any such attack will endanger the life of the citizens of Mumbai.

Thereafter, demolition notice was issued by BMC which was challenged in the present petitions. While there were 57 residents who were petitioners in the first petition, there were 58 residents in the second petition.

Submissions and Judgment

Senior counsel AV Anturkar appeared on behalf of all the petitioners and submitted that regardless of the fact that these structures are on a private property or on a public property, the petitioners being holders/owners of the structures cannot be dispossessed without following due process of law inasmuch as if they are dispossessed without following due process of law, their rights under Article 300­A of the Constitution of India will be violated.

The court noted that some structures were on privately owned land but were to be demolished as they were within 10 meters from the said pipeline, while some were built on public land and there were others which were non-residential structures. There were a few residents that were found eligible for rehabilitation.

Regarding structures built on privately owned land, the court had observed in an order dated March 1, 2018:

“In the present case, there is nothing placed on record by the said Corporation to show that any due process of law was followed before ordering demolition of the structures on the private properties. The notices which are impugned do not refer to exercise of any particular statutory power. The notices which are impugned do not refer to exercise of any particular statutory power. Even if the structures are unauthorised, due process of law as laid down in the said Act or the Maharashtra Regional and Town Planning Act, 1966 will be required to be followed.”

Thus, the bench noted:

“If the illegal structures are demolished in exercise of powers under the statutes which empower authorities to take action of demolition of illegal structures, there will not be any occasion to take proceedings under the said Act of 2013. If illegal structures are demolished after following due process of law, there cannot be any violation of rights under Article 300­A of the Constitution of India. In this case, even in case of structures which are stated to be on public property, due process of law has not been followed.”

Thus, the court directed BMC to follow due process of law before demolishing any of the structures built on private land or public land. The bench also directed the State to give an offer to those eligible for rehabilitation within three weeks and thereafter, one-month time will be given to the residents of these privately-owned structures to accept BMC’s offer.

In case, the offers are not accepted, BMC has been given a free hand to demolish the structures but only after following due process of law.

Thus, the petitions were partly allowed.