BMC cannot cite excuse of 'private road' to dodge duty to clear encroachments: Bombay High Court

The Bombay High Court recently held that the Brihanmumbai Municipal Corporation (BMC) cannot hide behind a ‘private road’ label to avoid acting against encroachments when a road has assumed the character of a public street through years of usage [Beaumont HFSI Pre-Primary & Anr. v. BMC & Ors.]

The Bench interpreted Sections 312 and 314 of the Mumbai Municipal Corporation Act, which empower the Commissioner to prohibit and remove, without notice, unauthorised structures on land.

A Bench of Justices Ravindra Ghuge and Abhay Mantri stressed that the statute repeatedly uses the phrase ‘any street’ to prohibit obstructions and empower the Commissioner to remove them with no distinction between public and private streets.

“We find that the language in the provisions refers to ‘any street’ and consistently uses these words without distinguishing between a public street and a private street. With regard to erections, the statute does not use the word ‘public street’ and instead uses the word ‘any street’,” the order recorded.

This statutory scheme undercuts BMC’s stand that it can act only on roads already vested in the Corporation, the Court said.

The interpretation of the statute came during the hearing of a petition filed by Beaumont HFSI, a pre-primary school, complaining of large-scale encroachment on a 90-feet-wide concrete road in Powai.

The road was shown as a proposed road in the 1991 Development Plan and is now an existing road as per the Development Control and Promotion Regulations, 2034. 

BMC claimed that since the strip remained privately owned and never vested in the Corporation and public funds could not be used to clear encroachments, even as encroachments on the adjoining public road had been removed.

The Bench found that this undercut BMC’s stand that it can act only on roads already vested in the Corporation.

The judges underlined that an encroachment anywhere is a challenge that should concern the civic authorities; however, there was no disagreement among Mumbai residents that “encroachment has assumed the character of a disease”.

The civic body said that it would act only in respect of areas that are public streets even if some of the private streets have been used for decades to effectively become public streets. 

The Court found this stance to be astounding and a weak excuse.

“A three-lane concrete road used for decades as a regular thoroughfare cannot be treated as abandoned merely because it is technically a private road”, the Court held. 

It reiterated a Supreme Court decision which stated that where a statute imposes a duty on a civic body, performance is not a matter of discretion. 

The Court directed the civic authority to frame a plan for the removal of encroachments within 60 days and to remove mobile toilets and water tankers within 48 hours with police protection if needed.

Senior advocate Naushad Engineer with advocates Yash Momaya and Hussain Dholkawala appeared for the school. 

Advocates Dhruti Kapadia, Kavita Dhanuka and Anjali Ghuge appeared for BMC. 

Additional government pleader Rakesh Pathak appeared for State.

[Read Order]