CHIEF MINISTER OF MAHARASHTRA MUST

BRING IN A “STRONG APARTMENT

OWNERSHIP ACT” BY 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

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 imposition of fine from

Rs.600/- to Rs.2000/- 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

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 which

include construction of additional floors without

approval, 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 illegal construction

having been carried out, 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

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 the reason for failure on its

part to take appropriate action against the

illegal construction and even today apart 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

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

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

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

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

(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 all-

powerful 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

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

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

(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

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.

(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.

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 non-

transparent / 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

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:

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, 1983, Suvarna

Publications, Cochin, October 2011 Edition.

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

regulation

Apartment

Act

Ownership

Y/N/P** O/C* R/S/M*

1 Maharashtra

1963**1970*

Y O S

2 Goa MOFA

1963**

Y -&

-&

3 West Bengal

1972*1993**

Y C M

4 Karnataka

1972**1972*

Y O R

5 Gujarat 1973* P O R

6 Uttar Pradesh

2010*2010**

Y C S

7 Uttarakhand

UPOFA1975*

N O R

8 H. P.1978*

1978**2005**

P

Y

O

C

R

S

9 Orissa 1982* N C R

10 Haryana1983* N C S

11 Kerala 1983* N O R

12 Delhi 1986* P C S

13 Andhra Pradesh

1987*

P O S

14 Punjab 1995*

1995**

Y C M

15 Tamil Nadu

1997*

N C S

16 Madhya

Pradesh 2000*

P C M

17 Chhattisgarh

MPPSA2000*

P C M

18 Bihar 2006* P C S

19 Jharkhand

BAOA 2006*

P C S

20 Rajasthan&

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)

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