Illegal Constructions - Bombay Provincial Municipal Corporation Act, 1949 

ILLEGAL CONSTRUCTIONS....THE REAL(TY) LAW OF MUMBAI 

It is an illusively accepted by a common man in Mumbai that BMC civic authorities of Mumbai are cautious over the exercises against illegal constructions and infringements in construction industry and is enough prepared according to arrangements of Bombay Provincial Municipal Corporation Act, 1949 with vital labor with productive instruments to make vital move on grumblings seeing unlawful and unapproved developments as additionally occasionally give vital data to General Body, State Government and individuals from Assembly with respect to such unlawful and ill-conceived developments.

Whereas we often observed, the builders violate with impunity the sanctioned building plans and indulge in deviations much to prejudice of the planned development of the city and at the peril of the occupants of the premises constructed or of the inhabitants of the city at large. Unwary purchasers in search of roof over their heads and purchasing flats/apartments from builders find themselves having fallen prey and become victims to the designs of unscrupulous builders. 

The builder conveniently walks away having pocketed the money leaving behind the unfortunate occupants to face the music in the event of unauthorised constructions being detected or exposed and threatened with demolition at a later date. The murky stories of collusion between municipal officials, the local police, underworld dons and the builders are now surfacing. For a few lakhs, even a few thousand rupees. 

It is most surprising in case of seven housing societies (Esha Ekta Apartments CHS) at Campa Cola Compound in Worli that though the local authorities having the staff consisting of engineers and inspectors whose duty is to keep a watch on building activities and to promptly stop the illegal constructions or deviations coming up, they failed in discharging their duty. They escaped from their duties promptly for illegitimate considerations. 

The members of these Societies also pointed out that when the buildings were under construction, the BMC did not take any steps to stop the work apart from issuing notices to the builders, which were conveniently ignored. 

The members alleged that they bought the flats; they were made to believe that the permissions were in the process of getting cleared. Despite the builder defaulted on the permissions, the BMC didn’t take any serious action against him for obvious reasons. 

It is an established fact that the ill-observance of MRTP/MCGM/DCR rules and guidelines are overlooked by the sympathetic officials of the MCGM and the plans so submitted, are sanctioned without verifying the eligibility. 

The Projects are completed and the Occupancy Certificates are issued without proper inspection neither carried out by the MCGM officials nor taking pains to verify whether the actual measurement of the constructed areas tally with the final plans submitted. It is further noticed that upon the completion of the projects, these additional/unauthorized constructions are silently regularized at the last moment with green handshakes/offering them handsome rewards. 

There are numerous news clips in various news papers with regard to Mumbai High Court’s reprimanding and lambasting severely the MCGM for violation of Development Control Act & Rules and are instructed to immediately issue the demolition orders to pull down such unauthorized/additional constructions and take stringent action against the erring officials for their lapses. 

However, due to impotent judiciary system with its age old laws, the realty criminals flourish. Under the Development Control Rules, it has been stated that in case of unauthorized development, the Commissioner shall - 

(a) take suitable action which may include demolition of unauthorized works as provided in Section 53 of the MRTP Act, 1966 and the relevant provisions of the Mumbai Municipal Corporation Act, 1888 and shall take suitable action against the licensed technical person or the architect concerned. 

If such activities are to be stopped, stringent actions are required to be taken by ruthlessly demolishing the illegal constructions the moment they are noticed and not after 25 years as it has been now ordered by Supreme Court in case of Campa Cola housing societies. The unwary buyers who are the sufferers must be adequately compensated by the builder. 

In case of Campa Cola housing societies, the conduct of the builder in the present case deserves to be noticed. He knew it fully well what was the permissible construction as per the sanctioned building plans and yet he not only constructed additional built-up area on each floor but also added an additional fifth floor on the building which was totally unauthorised. 

Probably he thought that he would be able to either escape the clutches of the law or twist the arm of the law by some manipulation. Though the municipal laws permit deviations from sanctioned constructions being regularised by compounding but that is by way of exception. 

Unfortunately, the exception, with the lapse of time and frequent exercise of the discretionary power conferred by such exception has become the rule. Only such deviations deserve to be condoned which are bona fide or are attributable to some misunderstanding or are such deviations as where the benefit gained by demolition would be far less than the disadvantage suffered. 

Other than these, deliberate deviations do not deserve to be condoned and compounded. No authority administering municipal laws and other laws should encourage such violations. Even otherwise, no relief should be given when the violations are deliberate, designed, reckless or motivated. Marginal or insignificant accidental violations unconsciously made after trying to comply with all the requirements of the law can alone qualify for regularization which is not the rule, but a rare exception. In the last four decades, almost all cities, big or small, have seen unplanned growth. 

In the 21st century, the menace of illegal and unauthorised constructions and encroachments has acquired monstrous proportions and everyone has been paying heavy price for the same. Economically affluent builders having support of the political, underworld and executive apparatus of the State have constructed buildings, commercial complexes, multiplexes, malls, etc. in blatant violation of the municipal and town planning laws, master plans, zonal development plans and even the sanctioned building plans. 

In most of the cases of illegal or unauthorised constructions, the officers of the municipal and other regulatory bodies have turned blind eye either due to the influence of higher functionaries of the State or for other extraneous reasons. As and when the Courts have passed orders or the officers of local and other bodies have taken action for ensuring rigorous compliance with laws relating to planned development of the cities and urban areas and issued directions for demolition of the illegal/unauthorised constructions and those in power have come forward to protect the wrongdoers either by issuing administrative orders or enacting laws for regularisation of illegal and unauthorised constructions in the name of compassion and hardship. It is high time that the executive and political apparatus of the State take serious view of the menace of illegal and unauthorised constructions and stop their support to the lobbies of affluent class of builders and others. 

The failure of the State mechanism to take prompt action to demolish such illegal constructions has convinced the citizens that planning of the laws are enforced only against poor and all compromises are made by the State machinery when it is required to deal with those who have money power or unholy nexus with the power corridors.

A total of 200 families of seven housing societies at Campa Cola compound in Worli are affected by the Supreme Court order to demolish 35 floors in buildings having unauthorized floors. A total of 140 flats have got eviction notices, asking them to vacate the flats within 48 hours. But, residents of the five legal floors too are worried at the fault of the builder. If we go in flashback, in 1983, a proposal was mooted to secure permission from the Chief Minister of the State to raise the height of the buildings up to 60 feet. 

However, the revised plans were rejected by the Planning Authority vide order dated 6.9.1984. Notwithstanding rejection of the revised building plans, the builder continued to construct the buildings with pre-planned addition of 35 floors illegally. 

Therefore, Executive Engineer, A.E. Division of the Corporation issued 'Stop Work Notice' dated 12.11.1984 under Section 354A of the 1888 Act mentioning therein that if the needful is not done, the construction will be forcibly removed. 

It is a different story that after issuing 'Stop Work Notice', the Authorities of the Corporation buckled under pressure from the builders and turned blind eye to the illegal constructions made between 1984 and 1989. 

The Supreme Court in February, 2013 ordered the BMC to raze all floors above the fifth floor in each of the buildings. The BMC announced it will soon bring down the unauthorised portions. The BMC says it will conduct demolition in way that legal floors are safe. But considering the manner in which the buildings are constructed, it will be foolish to believe the BMC and it is sure that the lower five floors will certainly be damaged in the demolition, a resident said. As per the judgment, only five floors of the buildings are legal. The rest of 35 floors are unauthorised.

It is claimed that the order will have a huge impact on the city’s illegal buildings and would prove as deterrent for such builders. The civic authorities are illusively nurturing once again that this judgment will have a far-reaching impact in the city and will also give them more teeth in dealing with such buildings. 

What about the shamble in which the residents of other apartments would have to live in, during the demolition? 

However, not bringing the unauthorised apartments down would be contempt of court, but allowing them to have come up in the first place itself requires a judicial enquiry against the guilty officers followed by rigorous punishment as well. We have hardly heard anything much about those who perpetrate such frauds, of being held accountable are arrested and pushed behind bars. This does not at all mean that enforcement of law has to be only selective in the sense the builders who come up with the grand designs to cheat and then, with ever-eager willingness to leak the shoes of the builders by civic officials often at the behest of politicians who urge everyone to wink at the deviations, can go scot free. Even as eviction notices were handed out to 140 residents of Worli buildings after the Supreme Court ordered the demolition, it is falsely believed that the BMC has decided to deal strictly with cases of construction violations. 

On Thursday, prosecution sanctions were given for as many as 270 cases involving various violations under the MRTP Act. These cases were pending since 2011 as the BMC had been casual over prosecution sanctions since last two years. As per the procedure, after the civic body registers a case under the MRTP Act for various violations, the police officials need its prosecution sanctions to book the violators.

The violations include illegal or unauthorised alterations inside buildings, carrying out work beyond the scope of pre-approved plans such as adding more floors and change of user. It is repulsive and undoubted fact that most of the archaic laws, acts and rules since having low impact despite the prima facie evidences against the criminals do not have the power of rigorous accountability requirements. This has resulted in to a massive ingress of corrupt elements in to the system led by the Govt. and its Agencies. 

Every other day we read in News Paper that in addition to the unsolved and ever mounting cases, more and more number of cases of the aggrieved flat buyers are being referred to various Courts like Civil Court, High Court, Supreme Court, Criminal Court, Consumer Court, State Level Commission, National Level Commission, Tribunals and Supreme Court.

It is a matter of doubt whether a flat buyer will ever get justice to reach finality during the rest of the tenure of his life.