M J Antony: Master plans at builders' mercy

OUT Of COURT

Unauthorised constructions, manipulation of master plans and regularisation of illegal structures on payment of nominal compounding charges are the bane of urban areas. Ordinary citizens appear helpless before the powerful nexus between local politicians and the building mafia.

Few fight these vested interests with perseverance, as some did in the recent case decided by the Supreme Court in Friends Colony vs State of Orissa. After a long discussion on civic ills, the judgement by the Chief Justice gave seven directions in the case before him.

Although the discourse was with reference to Cuttack, it could be about any town in our country. Victims in similar situations and the judiciary in the rest of the country could take a cue from this significant decision.

The contractor in this case raised a six-storeyed apartment building against the sanction for four floors. Even on the sanctioned plan, there were gross deviations. The Cuttack Development Authority tried to stop the violations, and even sent a demolition notice.

The builder continued his activity nevertheless. Then the residents and the builder went into complex litigation, ultimately reaching the Supreme Court.

The judgement remarked that the documents and material brought on record disclosed "a very sorry and sordid state of affairs prevailing in the matter of illegal and unauthorised constructions".

The builder violated the sanctioned building plans with impunity and indulged in deviations, much to the prejudice of the planned development and to the peril of the occupants of the building and inhabitants of the city at large.

Infrastructural facilities like water and electricity supply were thrown out of gear. The builder walked away having pocketed the money, leaving behind the unfortunate occupants.

The main reason for this state of affairs is that the local authorities often fail in discharging their duty. "Either they do not act or do not act promptly or do connive at such activities apparently for illegitimate considerations," the court observed. If such activities are to stop, stringent action must be taken, including demolishing of the illegal constructions.

Another bane of the system is the municipal rule permitting compounding of the deviations. The builder gets away with his violation of the plan by paying a fine. The provision enabling this deceit is inserted as an exception. But now it has become the rule.

"Only such deviations deserve to be condoned as are bona fide or are attributable to some misunderstanding or such deviations as where the benefit gained by demolition would be far less than the disadvantage suffered," the court said.

A builder understands the regulations and it should be presumed that the deviations are deliberate on his part. Therefore, the court asked the state governments to levy heavy penalties on the builders, and not the pittance charged as at present.

Such penalty amounts collected from the builders should be put in a welfare fund that can be utilised for compensating and rehabilitating the unwary buyers who may be displaced on account of demolition of the illegal constructions.

In this case, the Supreme Court asked the high court to take "appropriate steps for the rehabilitation and compensation at the cost of the builder."

Moreover, applications for compounding the deviations must be dealt with at a higher level by a committee so that the builders cannot manipulate. The officials who have connived at unauthorised or illegal constructions should not be spared. The strength of the staff supervising construction activities must be increased.

The Supreme Court suggested to the high court that if illegal construction activities are "so rampant as to be noticed judicially", it may start a public interest litigation on its own and issue directions so as to curb the problem.

The judgement has, thus, given full handle to the authorities and the local courts to deal with the menace. However, one may notice that it is not the lack of power that hinders efforts to bridle the builders; it is the lack of will on the part of the powers that be.

The rise of public interest litigation and the increasing awareness of environmental considerations are signs of hope for the future of our cities.