Mumbai:

The Bombay High Court today directed the Maharashtra government to make the state advisory board for policies related to disabled persons functional within a month.

“For God’s sake, do it by then,” the high court said.

A division bench of Chief Justice DK Upadhyaya and Justice Amit Borkar said it was alarming that the state government requires directives from the court to fulfil its statutory obligations.

The state government should not wait for orders from court to implement laws, especially reformative ones, it said.

The government constituted the board under provisions of the Rights of Persons with Disabilities Act in 2018, but it has been non-functional since 2020 as posts of the non-official members are vacant.

The high court bench on Wednesday asked the government to inform a time frame by when vacancies would be filled and the board would be made functional.

Additional government pleader Abhay Patki on Thursday said the board would be made functional in 15 days.

“We will give you some more time than 15 days. For God’s sake, do it by then. We direct that the advisory board shall be constituted and made functional within a month from today,” the high court said.

The court was hearing a public interest litigation taken up suo motu (on its own) on the issue of bollards put up on footpaths in Mumbai, thus making them inaccessible to persons with disabilities.

The bench noted that if the state advisory board was functional, then courts would not be burdened with matters pertaining to the welfare of persons with disabilities.

“We could have relegated this matter also to the board. It could have taken all measures,” the court said.

The state government should not wait for orders from court to implement laws, especially reformative ones, it said.

“Can there be anything more alarming that for an Act the court has to issue directions. This is your (government) obligation. For this also you need directions?” CJ Upadhyaya asked.

In July 2023, the Maharashtra government informed the Supreme Court, which was hearing a matter related to disabled persons, that the state advisory board was constituted, the bench noted.

It is true that the board was set up in 2018 but it is non-functional since 2020 due to vacancies, the court said.

“What is the use of merely constituting a board when it is not functional? We hope and expect that within 30 days the board shall be made functional in all respects,” the high court said posting the matter for further hearing on August 14.
 

(Except for the headline, this story has not been edited by NDTV staff and is published from a syndicated feed.)

New Delhi:

The Maharashtra government came up with a law for acquiring old and dilapidated buildings that were unsafe as the tenants were sitting tight over the properties and landlords had no money for repairs, the Supreme Court observed on Tuesday while examining whether privately owned resources can be considered “material resources of the community”.

Chief Justice D Y Chandrachud made the observations while dealing with a host of petitions filed by landlords who are up against the Maharashtra law.

He is heading a nine-judge constitution bench which is considering the vexed question arising from the petitions about whether private properties can be considered “material resources of the community” under Article 39 (b) of the Constitution, which a is part of the Directive Principles of State Policy (DPSP).

Article 39(b) makes it obligatory for the State to create policy towards securing “that the ownership and control of the material resources of the community are so distributed as best to subserve the common good”.

Mumbai is a densely populated city with old, dilapidated buildings that house tenants despite having become unsafe due to lack of repairs. In order to repair and restore these buildings, the Maharashtra Housing and Area Development Authority (MHADA) Act, 1976 imposes a cess on its occupants which is paid to the Mumbai Building Repair and Reconstruction Board (MBRRB) that oversees repair and reconstruction of these “cessed buildings”.

Invoking the obligation under Article 39(b), the MHADA Act was amended in 1986. Section 1A was inserted into the Act to execute plans for acquiring lands and buildings in order to transfer them to those needy and in possession of such lands or buildings.

The amended law has Chapter VIII-A with provisions allowing the state government to acquire cessed buildings and the land they are built on if 70 per cent of the occupants make such a request.

The Property Owners Association has challenged Chapter VIII-A claiming that the provisions discriminate against the owners and violate their right to equality under Article 14.

As many as 16 petitions including the lead petition filed by the Mumbai-based Property Owners Association (POW) was heard by the bench which also comprised Justices Hrishikesh Roy, BV Nagarathna, Sudhanshu Dhulia, JB Pardiwala, Manoj Misra, Rajesh Bindal, Satish Chandra Sharma and Augustine George Masih.

The lead plea was filed by POW way back in 1992 and it was referred thrice to larger benches of five and seven judges before being referred to a nine-judge bench on February 20, 2002.

The CJI referred to the distinction between a case of a private person as opposed to title in the community. He gave the example of private mines and said, “They may be private mines. But in a broader sense, these are material resources of the community. The title may rest in a private individual but for the purpose of Article 39 (b), our readings should not be constricted but must have that broad understanding.” “Take a case like these buildings in Mumbai. Technically, you are right that these are privately owned buildings, but what was the reason for the law (MHADA Act)… we are not commenting on the legality or the validity of the law that will be tested independently,” the CJI said.

“The reason why the state legislature came out with this (Act) was that these are old buildings of the 1940s…With a kind of monsoon in Mumbai, these buildings get dilapidated because of the saline weather,” Justice Chandrachud said.

He referred to the meagre rent being paid by tenants, especially in Mumbai, living in these old buildings.

“Because, honestly, the fact that the rent was so meagre that the landlord said no, they had no money at all actually to repair them…and (with) the tenants sitting tight, no one would have the wherewithal to repair the whole building and hence the legislature came up (with the Act),” the CJI said.

Elaborating on the phrase ‘material resources of the community’, the bench said the community has a vital interest, and if a building falls, the community is directly affected.

There are around 13,000 cessed buildings in Mumbai which need restoration or reconstruction.

However, their redevelopment is often delayed due to differences between tenants or between owners and tenants on appointing a developer.

At the outset, Solicitor General Tushar Mehta, appearing for the Maharashtra government, told the bench that “the only issue that has been referred to a larger Bench of 9-judges is whether the expression ‘material resources of the community’ under Article 39 (b) covers privately owned resources or not.” The top law officer also said, “It is clear that the un-amended Article 31-C, to the extent upheld by the judgment in the Kesavananda Bharati case, is valid and in operation”.

The historically acclaimed 1973 Kesavananda Bharati judgement on “basic structure” doctrine had clipped the vast power of Parliament to amend the Constitution and simultaneously gave the judiciary the authority to review any amendment.

At the same time, the 1973 verdict also upheld the constitutionality of a provision of Article 31-C, which implied that amendments for implementing the DPSP, if they do not affect the ‘basic structure’ of the Constitution, shall not be subjected to judicial review.

The hearing remained inconclusive and would resume on Wednesday. 

(Except for the headline, this story has not been edited by NDTV staff and is published from a syndicated feed.)

Mumbai:

The police action of arresting a music teacher and illegally detaining him for a bailable offence smacks of police high-handedness and insensitivity, the Bombay High Court said on Friday while directing the Maharashtra government to pay Rs 2 lakh in compensation to the man. A division bench of Justices Revati Mohite Dere and Gauri Godse passed the order on a petition filed by Neelam Sampat alleging that the police had illegally detained her husband Nitin Sampat and that he was arrested although the charges against him were bailable.

“This is a case, where there is a gross violation of Nitin’s right guaranteed to him under Article 21; his right to be released on bail in bailable offences; and a clear violation of Supreme Court judgments that say that arrest in cases should be made only when it is absolutely warranted,” the bench said.

“The facts as narrated in the case smack of police high-handedness. It smacks of their insensitivity. It reveals their lack of knowledge of legal provisions. This action of the police has resulted in unjustified trauma – physical, emotional and mental to the petitioner’s husband – Nitin,” the court said in its order.

The court further said though the plea has not sought compensation, it was of the opinion that compensation ought to be awarded not only for violation of law but also for violation of the man’s fundamental right under Article 21 of the Constitution (Right to live with dignity).

“The grave injustice caused to the petitioner’s husband – Nitin, no doubt, cannot be compensated by money alone, however, granting some compensation and directing some action to be taken against the errant officers, would offer some solace/balm to the wounds, which the petitioner’s husband and his family has suffered,” the court said.

According to the plea, the Tardeo police arrested Mr Nitin on charges of sections 354A (sexual harassment) and 509 (insulting the modesty of a woman) of the Indian Penal Code on July 17. The complainant in the case had alleged that Nitin had spoken to her indecently when she raised the issue of increased fees for music classes.

The man’s advocate was ready to furnish bail, but the police refused to release him and sent him to the lock-up where he was allegedly stripped and made to spend the night. He was released the next day.

Mr Nitin’s wife in her plea said he was a music teacher with an unblemished record and that his illegal detention and torture while in custody has caused him immense trauma.

The bench in its order said the rights of individuals must be recognised by the instrumentalities of the State and that any abuse or misuse of power should attract consequences.

“Hence, in the peculiar facts, the State must repair the damage done to the petitioner’s husband’s right, by its officers. Of course, it is for the State to take recourse against those officers responsible for the said violation,” it said.

The bench said as a constitutional court, it cannot be oblivious to the gross abuse of law.

The bench in its order noted that the police had issued the man a notice under section 41A of the Criminal Procedure Code (CrPC), which was complied with and the man had appeared before the police for questioning on several occasions.

During earlier hearings of the plea in the court, the police had tendered an apology and said the arrest was an inadvertent mistake on their part. The police said an inquiry has been initiated and the errant officials found guilty of dereliction of duty would be punished.

The bench said Mr Nitin was illegally detained by the police even though the offences with which he was charged were bailable.

“Nitin was not only detained by the police of the Tardeo police station for bailable offences but was sent to Saat Rasta lock-up and made to stay there the entire night, despite the offences being bailable and despite offering to give bail,” the court said.

It added that Mr Nitin was asked to strip and made to sit in the lock-up with other criminals and the CCTV footage corroborates this.

The court ordered that the compensation amount be paid to the man within six weeks.

It also directed the Mumbai police commissioner to appoint a deputy commissioner of police to conduct an inquiry into the incident, after which the compensation amount shall be recovered from the salary of officials found responsible for the illegal detention.

The bench also directed for a copy of its order to be sent to the Director General of Police of Maharashtra and Commissioner of Police, Mumbai, to enable them to issue guidelines or directions to police stations on the issue.