Politician-builder-bureaucrat-police nexus

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. 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. 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. 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. 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. 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. 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. 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. (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. 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. 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. (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. 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. (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. 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. 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. 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. 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. 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