Residents of unauthorized buildings in Mumbai got a temporary reprieve from a demolition order, Neerav Merchant of Majmudar & Partners explains the facts and discusses the issues
Since the demolition order for the Campa Cola compound in Mumbai made headlines in the media, residents of the city have been grappling with various questions, most importantly, what went wrong? The situation calls for a review and evaluation of the facts to understand what led to the demolition order.
Chronology of events
Mumbai Municipal Corporation (MMC) originally leased the land where the Campa Cola compound stands today to Pure Drinks Ltd (PDL) for setting up a factory. In 1980, PDL sought MMC’s permission to develop a portion of the land for residential purposes and signed agreements with three developers to construct seven residential buildings.
MMC says that initial approval was granted for six wings consisting of ground plus five floors and a commencement certificate was granted in June 1981. Thereafter, amendment plans proposing additional floors were submitted, but these amendments were refused in September 1984.
The construction continued without approved plans. Therefore, MMC, in November 1984, issued a “stop work notice” under section 353-A of the Mumbai Municipal Corporation Act, 1888. Notwithstanding, the builders continued to construct unauthorized floors.
As these buildings were not constructed as per MMC-approved plans, MMC did not issue an occupation certificate, which is mandatory before occupying a newly constructed structure. MMC did not even approve water connection to the unauthorized buildings. Therefore, the residents approached Bombay High Court for directions that MMC should provide water supply.
In October 2005, the high court sought an explanation from MMC for its failure to take action against the illegal construction. The MMC commissioner told the court that necessary steps would be taken within two months.
In November 2005, MMC issued notices for demolition of the illegal structures. The residents replied to the notices, but their replies were rejected by MMC in December 2005. The residents then approached the Bombay City Civil Court for quashing of the notices.
The city court stayed the demolition. However, on discovering that an application for regularization of illegal construction was rejected by MMC, the city court rejected the residents’ contention that they were unaware of the stop work notice when purchasing their flats.
The residents appealed before Bombay High Court but their appeal was dismissed. The residents then challenged the dismissal order before the Supreme Court through a special leave petition (SLP). The residents also filed a writ petition in Bombay High Court seeking regularization of the illegal structures. At the hearing of the SLP, the Supreme Court, on its own initiative, called for the writ petition to be heard along with the SLP.
Supreme Court action
On 27 February this year, the Supreme Court dismissed both the SLP and the writ petition. MMC then issued notices for demolition of the unauthorized structures.
The affected residents filed another writ petition before Bombay High Court for a stay on the demolition order. The high court dismissed the writ petition.
The residents filed another SLP before the Supreme Court. On 1 October, the court refused to stay the demolition order but extended it until 11 November, allowing further time to the residents to vacate. On 13 November, after MMC bulldozers entered the compound, news came that the Supreme Court had asked authorities to stay demolition of the compound until 31 May 2014.
Precedent shows that such demolition has often been averted through regularization or redevelopment of illegal structures by state governments. The affected Campa Cola residents may be hoping for something similar.
Prospective buyers have to be diligent and cautious before investing, and must always insist on seeing the occupation certificate prior to taking possession of a flat.
The Supreme Court has upheld the importance of planned development by emphasizing adherence to urban land planning laws, and has termed the regularization of illegal colonies “regrettable”.
While regularization through legislative intervention appears to be an option to prevent demolition of illegal structures on the Campa Cola land, the core debate is whether regularization for avoiding mass displacement should assume precedence over planned development in urban areas. It is imperative for parties to maintain the precarious balance between social justice and urban development, to welcome measures which are equitable and address key concerns regarding the residents’ welfare, without defying the government’s agenda of encouraging planned urban development.
Neerav Merchant is a partner in the disputes practice of Majmudar & Partners.