Construction Problem Question

Introduction The land of Campa Cola compound buildings owned BMC and it gave to leased to company Pure Drinks ltd, company sold their development rights to the land to three builders to construct homes. But builders, during the period of construction which is 1984, constructed around 35 more floors, which was more than BMC approved for residential purpose. During construction, authorities issued notices for fine and ‘to stop construction work’. Builders paid their fine and resumed work they were under the impression that violation will be regularised. But they did not get Occupation Certificate from BMC. Despite, builders were illegally sold constructed flats. The residents of the buildings claimed when they were buying the flats they thought they will get the occupation certificated in due course. But Supreme Court rejected their claims and held the time of purchasing residents knew the construction was illegally[1]. Issues

• Whether flat owner should be punished for builder’s act?
• Whether Judiciary has a power to grant mercy for demolition?
• Whether illegal construction should have been regularizing?

Judicial Interpretation In this paper researcher giving our own opinion with the help of judgment given by Chief Justice Truepenny in the case of The Speluncean Explorers[2]. In campa cola case court held that illegality of construction cannot be propagated, i.e. illegal construction must go. For example, when judicial system understands the concept of “illegitimate child”, before that there was no term for those circumstances but after when they recognized the right term. The logic behind that is if two unmarried people voluntarily had sexual relationship and if a child born in that is called as “illegitimate child”, reason that his parents doesn’t have legitimate relationship with each other. But the point is innocent child should be punish for his parent’s act, but he had to suffer all through his life even where there was no involvement of child. The main lawbreakers are his parents not him, why should he punished in the place of his parents act, i.e. judicial system recognized “illegitimate child” so that he can use his rights as same as legitimate child. If same logic we apply in campa cola case “victims (owner of flats)” are going to suffer, where there was not fully involvement of them, at the time of committing the offence. Builders are the main law breaker in this case yet people who are living there for more than 25 years have to suffer all the consequences. In big cities it is very common that builders constructs illegal building or flats and after selling those they went off and people who bought it has to suffer all penalties. According to Chief Justice Truepenny in explorer case[3], he said legal rules are definite or clear cut in statues, and only court can give you definition of the legal defence for that specific rule. Cases which supports the judgment of Campa Cola case In Friends colony vs. State of Orissa case[4], court observed, builders have failed to perform their duty to follow original sanction planned, unwary purchaser in search of roof of their head, bought flats from builders, subsequently when they got to know about illegality of construction, they face the consequences. The builder filled their pocket and walk away but the honest people have to face all penalties for builder’s wrongful act. In these matter local authorities also failed to perform their duty, they have engineers and police inspectors to discontinue the illegal construction, but they also failed to perform duty. They should have inspected the area of campa cola where authority clearly gave order to stop construction. The municipal rules are made for welfare of the people to provide all basic needs from government, like water, electricity etc. it is government’s duty to think about for innocent and unwary buyers who are the victim of illegal act[5]. In case of Royal Paradise Hotel case[6], court said, if construction work had been made illegally even after notice has been issued, no authorities can regularize the construction. In further case of Dipak Kumar vs. Kolkata municipal corp., where court observed that illegal and unauthorised construction not only violates the municipal laws but also constitutional and fundamental rights of other persons. State must take an action against builders instead of innocent people; also state should take penalties or compensation for innocent people. Important facts of case In 1983, builder secured the permission from the chief minister of state raise the height of 60 feet. Revised plans submitted for construct more floors on every building are rejected by planned authority in 1984. Notwithstanding, builders resumed work, therefore Executive Engineer issued a notice regarding of ‘stop construction’ under section 354A 1888 act, which says that if the needful is not done, construction will be forcibly removed[7]. Therefore, after issued notice builder’s submitted a new construction plan in 1985, but authority refused to give permission on the basis of the construction is violating the sanctioned plan, thereupon again ‘stop work’ notice had been issued. In 1994 engineer, Shri Jayant Tipnis submitted another amended plans, but again Deputy Chief Engineer rejected the new plans[8]. Number of occasion’s builder’s has been informed to stop construction, but every time they refused to follow it. During this course many purchaser were came for buying flats and agreement made between them for purchasing. Each agreement it was mentioned builders had submitted an amended plans for sanction and buyers has been inspected for every document. Although, the members of the societies were knows at the time of purchasing that new planed had not been sanctioned and permission for occupation certificate had not been issued by government authorities, subsequently housing society’s member started litigation under the impression they will permitted the certificate by authority and court will regularize the building, but the High Court of Maharashtra, gave an order in favour of BMC, said that illegal construction must go, court rejected all the arguments of society and held BMC action is legally right. Researcher’s view In researcher view residents also have voluntarily participated in this wrongful act, as we discussed above builder’s amended proposal was not sanctioned by competent authority, and original plan was raise only up to 60 feet height, which developers or builder’s refused to follow and documents of building scrutinized by residents where it was mentioned the new plan of construction had been not sanctioned, even though people were buying the flats under the impression that building will be regularize by authority as had been going for years. They will receive the occupational certificate and BMC will regularize the building, but it didn’t happened, therefore, BMC refused to give water supply and when members of society went to court in 2005 for water connection, court refused to give permission in favour of members, court gave an decision in favour of BMC, after 30 years demolition of building is morally wrong but legally right. Hypothetical Judgement and its effects on parties If we talk about for consequences after giving order for both sides, suppose the result will be in the favour of BMC, then BMC have to demolish the building, therefore people or residents become homeless, while they will suffer the wealth crisis where they have no place to stay, there is no roof on their heads. Their homes have been taken from authority where these homeless people stayed more than 25 years. In future every other person will learn from this case and be careful at the time of purchasing flats or homes, thus in this way violation of such laws accordingly decreasing, further builders also be cautious for rules and regulation. Furthermore, on same logic suppose if court gives an order in favour of residents, then consequences will be positive and morally accurate in side of society. Residents just have to pay compensation for violating the law, their situations are quite well but in future again such type of case arrives then again judiciary have to think in a naturalistic way, which supports violation of such laws. Again, in big cities where such problems are very common, builders will construct the more illegal construction and sell to buyers. It would be reward for builders to fill their pockets. From researcher’s view, Judiciary doesn’t have any rules to prevent residents for being a victim in this case; further judiciary only works on the written rules in statue, which is violated by builders or developers, thus people allowed taking any action builder but outside the case, but in current situation court cannot provide any compensation or mercy from judiciary, rule has been broken therefore people have to suffer the consequences. Government or Chief Executive Council is only opportunity they have to use against the decision; it’s been more than 25 years these people are living on the same building and suddenly because of the mistake of builder, they have to suffer the consequences which is morally very wrong, Government should do something for them or punish builders instead of them. Executive Council is only can grant mercy in this case. Judiciary can also provide help to these residents to give petition to Executive Council with the sign of all judges requesting to show mercy to defendants.

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[1] See, Anonymous, The Mumbai Campa Cola Society case, available at, https://ibnlive.in.com/news/the-mumbai-campa-cola-society-case-all-you-want-to-know/480489-3-237.html, last accessed on 12th august, 2014. [2]Supreme Court of Newgarth, 4300. [3] Ibid. [4] (2004) 8 SCC 833. [5] Ibid. [6] (2006) 7 SCC 597. [7] Section 354A of the, Mumbai Muncipal Corporation Act, 1888. [8] Campa cola case.

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