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Request to chief minister maharashtra campa cola compound 03.11.2013


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Politician-builder-bureaucrat-police nexus

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Request to chief minister maharashtra campa cola compound 03.11.2013

  1. 1. CHIEF MINISTER OF MAHARASHTRA MUST BRING IN OWNERSHIP A “STRONG ACT” BY APARTMENT ORDINANCE IMMEDIATELY & ALSO MAKE A REQUEST FOR ARTICLE 143(1) REFERENCE SAVE 986 LIVES Dear Mr Chief Minister, Save the lives, homes & future of 986 men, women & children residing in Campa Cola Compound, Mumbai, which is scheduled to be demolished on 11.11.2013, upon the orders of Hon’ble Supreme Court which have attained finality in Civil Appeal No. 7934 of 2012 titled Esha Ekta v Municipal Corporation of Mumbai, (2013) 5 SCC 357. Hon’ble Supreme Court has rightly ordered that non approved construction, if any, after regularization as may be admissible and is granted, must be demolished, but the effect of the judgment has been that the aged, young and other residents alone have been punished, whereas the root of the mischief was identified by the Hon’ble Supreme Court as being in the unholy nexus between politicians, builders and bureaucrats in its judgment dated 29.02.2012 in Civil Appeal No. 33471 of 2011 titled Esha Ekta v Municipal Corporation of Mumbai (2012) 4 SCC 689. In this judgment it was noted by the Hon'ble
  2. 2. Supreme Court that Division Bench of the High Court took cognizance of the fact that the buildings had been constructed in violation of the sanctioned plans and passed order dated 11.10.2005: “Besides, the prosecution was launched against builder, developer and all the occupants of the building and they were convicted on admission of guilt and sentenced by way of Rs.600/- to Rs.2000/- imposition of fine from imposed by the Magistrate. Apart from the above actions, no other action has been taken by the Corporation in relation to the illegal construction. The affidavit-in-reply filed on behalf of the Corporation before issuance of rule in the petition by Shri Kurmi Deonath Sitaram, Executive Engineer, DP(City)(I) discloses that initial approval was granted for six wings consisting of ground plus five upper floors and it was issued on 9th June, 1981 and Commencement Certificate was granted on 10th June, 1981. The amendment plans were approved for nine wings of ground plus five upper floors on 2nd February, 1983. Thereafter, amendment plans proposing stilt plus twenty-four floors and stilt plus sixteen floors with additional sixth and seventh floor to building nos.2 and 4 and additional sixth floor for the part of building
  3. 3. no. 3 were submitted but they were refused on 6th September, 1984. In spite of that, the constructive activities continued and the work beyond the approved plans was carried out, and therefore Stop Work notice was issued under Section 353-A of the MMC Act on 12th November, 1984. However, the work continued. Again new architect submitted further plan with a fresh notice under Section 337. The same was rejected by the Corporation. 3. The affidavit also discloses the various illegalities committed in the course of construction of the buildings include construction of additional approval, which floors without increase in the height of the building and carrying of construction beyond the permissible limits of FSI, apart from other illegalities. The affidavit, however, does not disclose as to what action, if any, for prohibiting the developer and the owner from proceeding with the construction, was taken as well as what action was taken after having been carried out, illegal construction apart from launching prosecution and issuance of notices. Even in the course of the argument, learned Advocate appearing for the Corporation could not satisfy us about any concrete action having been taken by the Corporation for stoppage of illegal construction or
  4. 4. demolition of illegal construction. In fact, the arguments in the matter were heard partly on 27th September and again yesterday and as well as today. On the very first day of the argument, it was orally informed by the learned Advocate for the Corporation that he would ensure the presence of the officer of the Corporation to assist him in order to enable him to give correct detail information in the matter. In spite the officer being present, we are not able to get the detail information regarding the action taken by the Corporation as also the detail description of the illegalities committed by the builder and any other persons on his behalf in the matter. It is to be noted that undisputedly the records disclose some illegalities in the matter of construction carried out since the year 1984 onwards. In spite of affidavit having been filed in the year 2000, the Corporation has not explained part illegal to the reason take appropriate construction and for action failure on against even today apart its the from being assisted by the officer of the Corporation, the Advocate appearing for the Corporation is unable to disclose the reason for the same.” Right to housing has been recognized as a part of human right under Article 11(1) of the International Convention on
  5. 5. Economic, Social and Cultural Rights, 1966 (India acceded on 10.04.79) and under Article 25(1) of the Universal Declaration of Human Rights, 1948. On 10 December 1948 the Universal Declaration of Human Rights was adopted as Resolution 217(III) with 48 members, including a newly independent India, in favor, and 8 abstaining. However the Union Government is required to implement any treaty, agreement or convention made at any international conference, association or other body under Article 253 and for this purpose Parliament has been empowered to make any law for the whole or any part of the territory of India. In Basheshar Nath v The Commissioner of Income Tax AIR 1959 SC 159, Bhagwati, H.N. J. speaking for the majority held: “The arguments moreover extended to the whole field of fundamental rights and were not confined to Art. 14 only. We, therefore, see no reason why we should refrain from pronouncing our opinion on that question.....Ours is a nascent democracy and situated as we are, socially, economically, educationally and politically, it is the sacred duty of the Supreme Court to safeguard the fundamental rights which have been for the first time enacted in Part III of our Constitution. The limitations on those rights have been enacted in the Constitution itself, e.g., in Arts. 19, 33 and 34. But unless and until we find the limitations on such fundamental rights enacted in the very provisions of the Constitution, there is no justification whatever for importing any notions from the United States of America or the authority of
  6. 6. cases decided by the Supreme Court there in order to whittle down the plenitude of the fundamental rights enshrined in Part III of our Constitution. The genesis of the declaration of fundamental rights in our Constitution can be traced to the following passage from the Report of the Nehru Committee (1928):“Canada, Australia and South Africa have no declaration of rights in their Constitutions but there are various articles to be found in the Constitution of the Irish Free State which may properly be grouped under the general head "fundamental rights". The reason for this is not far to seek. Ireland is the only country where the conditions obtaining before the treaty were the nearest approach to those we have in India. The first concern of the people of Ireland was, as indeed it is of the people of India to-day, to secure fundamental rights that have been denied to them. The other dominions had their rise from earlier British settlements which were supposed to have carried the law of England with them. Ireland was taken and kept under the rule of England against her own will and the acquisition of dominion status by her became a matter of treaty between the two nations. We conceive that the constitutional position in India is very much the same. That India is a dependency of Great Britain
  7. 7. cannot be denied. That position can be altered in one of two ways-force or mutual consent. It is the latter in furtherance of which we are called upon to recommend the principles of a constitution for India. In doing so it is obvious that our first care should be to have our fundamental rights guaranteed in a manner which will not permit their withdrawal under any circumstances.” In view of the above factual and legal position having grave consequences for the ordinary citizens’ right to meaningful and respectful life, the citizens of India expect complete justice for a 90 year old senior citizen, lady doctor & freedom fighter, young infants and other women, children & senior citizens many of whom are in the last stages of their life fighting illness & penury. The government has to be blamed, if the flats were illegal why was registration done and why was power and water supply given to those flats, could they not make rules such as no registration without OC, first the government leaves loop holes for the builder mafia to survive and then penalizes the people who now have to loose their homes. If an illegality is not located by BMC in time, concurrent to construction it could well be assumed by a lay citizen as valid. BMC also collects tax on all buildings. Acceptance of tax leads to an implication that construction might have tacit approval of the powers that be. The above discussion would show that the 986 persons of the Campa Cola Complex may be found fault with for their alleged
  8. 8. omissions and commissions but under no circumstances their fundamental rights under Article 14, 19 & 21 may be taken away by throwing them out in the street. If at all the Bombay Municipal Corporation is to demolish their tenements it would have to provide similar accommodation before it throws them out, not least because the omissions and commissions have been stretched over 30 years by the officials and elected members of the Bombay Municipal Corporation, the officials and political leadership of the Maharashtra Government and the promoter builder lobbies in connivance with each other, as noticed by the Apex Court itself, in its judgment. Any action to throw the residents out on the street violates Article 14, 19 & 21 of the Constitution of India. In Pasupuleti Venkateswarlu v. The Motor & General Traders 1975 (1) SCC 770 V.R. Krishnaiyer, J. delivered the judgment for a three judge Bench headed by A.N. Ray, C.J.I. and held:“It is also on the theory of an appeal being in the nature of a re-hearing ......dismissing the eviction petition, leaving the near decade-old litigation to be reopened in a fresh unending chapter of forensic fight. The learned Judge gave little comfort to the litigant who had come with a proved case of bona fide requirement ....: 'If so advised the petitioner may seek to obtain such relief as may be open to him by filing a fresh petition ....We think it unfair to drive parties to a new litigation of unknown duration but direct, in the special circumstances of the case
  9. 9. (which are peculiar) that: (a) the revision before the High Court shall stand dismissed; ..... we partially allow the appeal as indicated above ....” It is good that the Supreme Court has taken the correct stand to demolish non approved construction but the Restitution Mechanism to uphold Article 21 rights has been omitted, and all the Apex Court had to offer was to relegate the poor evictees to a civil suit wherein they could ill afford to deposit the enormous court fees for a civil suit which may last another 30 years and the spirit of the judgment of the Constitution Bench in Olga Tellis v. Bombay Municipal Corporation (1985) 3 SCC 545 would stand violated with impunity by the very same Bombay Municipal Corporation once again which held: “No individual can barter away the freedoms conferred upon him by the Constitution. A concession made by him in a proceeding, whether under a mistake of law or otherwise, that he does not possess or will not enforce any particular fundamental right, cannot create an estoppel against him in that or any subsequent proceeding. Such a concession, if enforced, would defeat the purpose of the Constitution. Were the argument of estoppel valid, an allpowerful state could easily tempt an individual to forego his precious personal freedoms on promise of transitory, immediate benefits. Therefore, notwithstanding the fact that the petitioners had conceded in the Bombay High
  10. 10. Court that they have no fundamental right to construct hutments on pavements and that they will not object to their demolition after October 15, 1981, they are entitled to assert that any such action on the part of public authorities will be in violation of their fundamental rights. How far the argument regarding the existence and scope of the right claimed by the petitioners is well- founded is another matter. But, the argument has to be examined despite the concession.” When the Apex Court had given an opportunity in September 2013 for the BMC to consider regularization as may be permissible no action was taken mostly because builder Pure Drinks would benefit from the FSI freed up by demolition as no steps to transfer the lease to flat owners have been taken in 30 years whereas law mandates 4 months after persons move in (MOFA 1963) – at least the ground plus 5 floors owners need to be granted transfer of land lease from Pure Drinks immediately by the Chief Minister/BMC. The Chief Minister of Maharashtra must consider the case on the basis of Article 21 fundamental right to meaningful life and liability of the State to provide alternate equivalent accommodation, for which State may in turn recover from the officials and builders responsible, at a subsequent date. 1680 complaints were given to Lok Ayukta Maharashtra since 2007 - not even one has been processed so far. Maharashtra has
  11. 11. no State Vigilance Commission only a pre-independence Anti Corruption Bureau which has failed to indict the Municipal Commissioner of BMC for writing on file that the matter of colluding by Corporation officials with builders in Campa Cola Compound Case be NOT referred to VIGILANCE DEPARTMENT of BMC for investigation - this could only have been possible in view of severe indictment of Municipal Commissioner of BMC by Bombay High Court in order dated 11 October 2005 with the tacit if not active support from Chief Minister Office which has the final say in vigilance and land use violation matters in every State in India. RECOMMENDATION NO. 1 It is therefore essential that Chief Minister of Maharashtra refer the law and facts of this case under Article 143(1) so that the life, liberty, home & hearth of these 986 persons residing in the Campa Cola Compound at Worli, Mumbai be saved otherwise they would die on account of the unbearable hardship. The other aspect is the gross failure of Maharashtra to have a “Strong Apartment Ownership Act.” There is no mention of housing in any of the three lists in the Seventh Schedule under Article 246 even as rural housing does find mention in the Twelfth Schedule under Article 243G of the Constitution of India. Therefore it is perhaps plausible that rural housing may be legislated by the States under Item 5 of List III
  12. 12. (Local Government). Urban housing may well be included upon a similar argument. However the Union Government is required to implement any treaty, agreement or convention made at any international conference, association or other body under Article 253 and for this purpose Parliament has been empowered to make any law for the whole or any part of the territory of India. Right to housing has been recognised as a part of human right under Article 11(1) of the International Convention on Economic, Social and Cultural Rights, 1966 (India acceded on 10.04.79) and under Article 25(1) of the Universal Declaration of Human Rights, 1948.On 10 December 1948 the Universal Declaration of Human Rights was adopted as Resolution 217(III) with 48 members, including a newly independent India, in favor, and 8 abstaining. It has now become clear that Indian legislation has failed miserably over the last sixty years to provide a conducive environment for affordable housing to the people of India, whether in the economically weaker sections or in sections of the middle class who do not own a house. In fact the Rajasthan and Orissa Governments announced affordable housing policies in 2009 but till 2013 the Rajasthan Assembly failed to take up the Rajasthan Apartment Ownership Bill 2012. Injeti Srinivas, Principal Secretary, Housing & Urban Development, Government of Orissa, in a Paper dated 15.04.13 listed "Strong
  13. 13. Apartment Ownership Act" as a pre-requisite reform required for implementing affordable housing. The State Governments having failed to resolve this endemic problem in last 60 years; it is now time for Parliament to take matters into its realm and exercise its beneficial power to make a uniform law for the whole of India to implement Article 11(1) of the International Convention on Economic, Social and Cultural Rights, 1966 and Article 25(1) of the Universal Declaration of Human Rights, 1948. The only viable solution in the background of urban land shortage lies in the apartment ownership model pioneered by Maharashtra and followed by at least 18 other States. There are two aspects in apartment ownership legislation: (a) "Real Estate Regulation Act" in order to regulate, control and set up a mechanism of compensation for developers, builders, promoters and their customers. (b) Apartment ownership, maintenance, heritable interest, transfer and registration i.e. "Apartment Ownership Act". The performance of States has been poor with reference to the ideal model which should have the following ingredients: (a) An all India "Real Estate Regulation Act" since the large builders enjoy all India presence and are required to follow national building standards such as National Building Code of India, 2005, IS-3861:2002 etc.
  14. 14. (b) Housing being purely a residential subject, Parliament is empowered to pass all India "Apartment Ownership Act" having purely residential nature, and not non-residential. This all India "Apartment Ownership Act" would supersede and get rid of all the inconsistent laws, as regards residential complexes, brought in by different States, some of which are purely residential, some separate the residential and other category(s) while West Bengal follows a mixed model in order to regularize past sins of having shops, showrooms and residences all in the same building. Maharashtra is a classic example of shedding crocodile tears for the Aam Aadmi. Here is a State that introduced a flats act in 1963 without any ownership controls. The Supreme Court in 1975 dealt with the right of owner of a flat under MOFA, 1963 to dispose of his rights in other countries.[Ramesh Himmatlal Shah vs Harsukh Jadhavji Joshi 1975 (2) SCC 105]. However Maharashtra has failed to set up any machinery under the MAOA, 1970 till date and it is only the Schedule to MAOA, 1970 which imposes upon MOFA, 1963, the definition of apartment legislated in MAOA, 1970. MAOA, 1970 was optional and continues to be so - it was purely residential to begin with but was amended vide Maharashtra Act 53 of 1974 (1-1-75) to include non-residential uses as well. The definition of apartment was purely residential to commence with but has been diluted to include non-residential use leading to much mischief as common areas are not defined in MOFA, 1963.
  15. 15. West Bengal was the first State to copy the MAOA, 1970 and it was purely residential to begin with but was amended vide West Bengal Act 29 of 2008 to include non-residential uses as well. However West Bengal made the Act compulsory vide West Bengal Act 21 of 1992 and West Bengal also passed the West Bengal Building (Regulation of Promotion and Construction and Transfer by Promoters) Act 1993 i.e. "Real Estate Regulation Act". In 2010 West Bengal notified the "Procedure for Registering Association of Apartment Ownership" under the West Bengal Apartment Ownership Act, 1972, and presently it has directly registered 38 Apartment Owners Associations under the West Bengal Apartment Ownership Act, 1972. No other State has notified any "Procedure for Registering Association of Apartment Ownership" hence registration of ownership and land parcels of apartments across the country continues to be nontransparent / improper. Though core ownership is not affected, yet ownership is impaired and ease of transfer as envisaged in the Apartment Ownership Acts is also hampered. In this scenario unscrupulous builders in league with the other lobbyists, land mafias etc have a field day cheating unwary flat purchasers in a sellers market, where one-sided contracts are the order of the day. List of apartment/ flat acts in India is as follows: LIST OF RELEVANT ACTS IN INDIA
  16. 16. 1. Maharashtra Ownership Flats (Regulation of the promotion of construction, sale, management and transfer) Act, 1963 (Act 45 of 1963) 2. Maharashtra Apartment Ownership Act 1970 (Act 15 of 1971) 3. West Bengal Apartment Ownership Act 1972 (Act 16 of 1972) 4. West Bengal Building (Regulation of Promotion and Construction and Transfer by Promoters) Act 1993 (Act 20 of 1993) 5. Karnataka Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1972 (Act 16 of 1973) 6. Karnataka Apartment Ownership Act 1972 (Act 17 of 1973) 7. Gujarat Ownership Flats Act, 1973 (Act 13 of 1973) 8. Uttar Pradesh Ownership of Flats Act, 1975 (Act 50 of1975) 9. Uttar Pradesh Apartment (Promotion of Construction, Ownership and Maintenance) Act, 2010 (Act 16 of 2010) 10. Himachal Pradesh Apartment (Regulation of Construction and Transfer) Act, 1978. (Act 40 of 1978) 11.Himachal Pradesh Apartment Ownership Act, 1978. (Act 41 of 1978) 12. Himachal Pradesh Apartment and Property Regulation Act, 2005 (Act 21 of 2005) 13. Orissa Apartment Ownership Act 1982 (Act 1 of 1984) 14. Haryana Apartment Ownership Act 1983 (Act 13 of 1984) 15. Kerala Apartment Ownership Act 1983 (Act 5 of 1984) 16. Delhi Apartment Ownership Act, 1986 (Act 58 of 1986) 17. The Andhra Pradesh Apartments (Promotion of Construction and Ownership) Act, 1987 (Act 29 of 1987) 18. Punjab Apartment and Property Regulation Act, 1995 (Act 14 of 1995) 19. Punjab Apartment Ownership Act, 1995 (Act 13 of 1995) 20. Tamil Nadu Apartment Ownership Act 1994 (Act 7 of 1995) 21. M.P. Prakostha Swamitva Adhiniyam, 2000 (Act 15 of 2001) 22. Bihar Apartment Ownership Act, 2006 (Act 28 of 2006) 23. Rajasthan Apartment Ownership Act, 2012 (Draft Bill Pending) List of books available on apartments/flats in India is as follows:
  17. 17. 1. The Maharashtra Ownership of Flats Act, 1963 Sunil Dighe, Snow White Publications Pvt. Ltd, Mumbai, July 2013 Edition. 2. Law of Ownership of Apartments/Flats in West Bengal, Prof. D.N. Banerjee, Book-n-Trade, Publishers & Law Book Sellers, Kolkata, 2011 Edition. 3. The Karnataka Apartment Ownership Act, 1972, KLJ Publications, Bangalore, 2013 Edition. 4. U.P. Ownership of Flats Act, 1975 with Rules, Eastern Book Company, Lucknow, 2010 Edition 5. U.P. Apartment Act, 2010 With Rules & Model Bye-Laws, Eastern Book Company, Lucknow, 2012 Edition 6. The Gujarat Ownership Flats Act with Rules, The New Gujarat Law House, Ahmedabad, 2013 Edition. 7. The Odisha Apartment Ownership Manual, Ranjan Kumar Samal, Kalinga Law House, Bhubaneshwar, 2013 Edition. 8. Haryana Urban Development Laws, J.C. Arora, The Bright Law House, New Delhi, 2012 Edition. 9. Kerala Apartment Ownership Act, Publications, Cochin, October 2011 Edition. 1983, Suvarna 10. Commentaries on Delhi Apartment Ownership Act, 1986, A.S. Ramachandra Rao, Eastern Book Company, Lucknow, 1987 Edition. 11. Law of Flats, Apartments & Buildings, M.V. Durga Prasad, Asia Law House, Hyderabad, 2012 Edition. 12. The Tamil Nadu Apartment Ownership Act, 1994, K.S. Mahalingam, C. Sitaram & Co. Pvt. Ltd., Chennai, 2013 Edition. The broad comparison of legislation by Parliament/ Legislatures in the two aspects of Real Estate Regulation & Apartment Ownership Acts is as follows: COMPARISON OF LEGISLATION IN REAL ESTATE REGULATION & APARTMENT OWNERSHIP ACTS S.No. State Real estate Apartment Ownership regulation Act Y/N/P** O/C* R/S/M*
  18. 18. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Maharashtra 1963**1970* Goa MOFA 1963** West Bengal 1972*1993** Karnataka 1972**1972* Gujarat 1973* Uttar Pradesh 2010*2010** Uttarakhand UPOFA1975* H. P.1978* 1978**2005** Orissa 1982* Haryana1983* Kerala 1983* Delhi 1986* Andhra Pradesh 1987* Punjab 1995* 1995** Tamil Nadu 1997* Madhya Pradesh 2000* Chhattisgarh MPPSA2000* Bihar 2006* Jharkhand BAOA 2006* Rajasthan& Y O S Y -& -& Y C M Y O R P Y O C R S N O R P Y N N N P P O C C C O C O R S R S R S S Y C M N C S P C M P C M P P C C S S P C S *O/C/R/S/M-Optional/Compulsory/Residential/Separate/Mixed **Y/N/P-Yes/No/Partial & Notes:1. The position in Goa mirrors the Maharashtra situation. 2. Rajasthan Apartment Ownership Bill, 2012 is pending. RECOMMENDATION NO. 2 It is therefore also essential that Chief Minister of Maharashtra takes immediate steps to make the provisions of Maharashtra Apartment Ownership Act, 1970 (Act 15 of 1971) (MAOA, 1970)
  19. 19. mandatory rather than optional at the mercy of the builder as it stands today & invokes the machinery for direct registration under MAOA, 1970 and its enforcement as the lone State of West Bengal has done in 2010. REGARDS CONCERNED CITIZENS OF INDIA