In November 2013, headlines and prime time talking heads were all agog about Campa Cola Compound. In one of the most contentious cases of illegal construction in the city, residents of 97 flats across 35 floors in a housing colony in upmarket Worli were faced with losing their homes, because they had been built in violation of Floor Space Index (FSI) limits, air space norms, and other development regulations. The residents claimed to have been deceived by unscrupulous builders who had brazenly flouted the law. Residents are still in their flats, but they are still not in the clear despite years spent in court; their matter of regularising now lies before the Urban Development Department.
At the time, many Mumbaikars realised, with some trepidation, that they too hadn’t checked whether their buildings had the mandatory Occupation Certificate and a Completion Certificate. As if playing on their fears, within months, it became apparent that Campa Cola was by no means an isolated case. There were many such buildings all across the Mumbai Metropolitan Region and, indeed, in practically every other Indian city. Lakhs of families wondered whether they too faced the prospect of watching their homes be reduced to rubble.
New rules to the rescue
On October 7, 2017, the Urban Development Department put into effect the Maharashtra Town Planning (Compounded Structures) Rules, 2017. The rules allow for regularising unauthorised structures that came up on or before December 31, 2015, provided that the structures conform to certain norms, and after payment of certain fees. While it may not benefit Campa Cola — experts say there are multiple violations and complexities to reckon with there — its supporters say the new rules will help many other victims of deceitful builders. But, town planners and activists warn, every Mumbaikar may be forced to pay the price of this decision.
- In addition to the property cost, there are development charges, at 4% of the Ready Reckoner for a residential user, and 8% for a commercial user.
- Infrastructure charges are equal to development charges.
- Compounding charges are no less than double the development charges.
- In case of FSI violations, premium FSI, Transfer of Development Rights or Fungible FSI needs to be purchased.
- Recently, the State government set the rate of premium FSI at 60% of the ready reckoner rates for residential, commercial and mixed units. This amounts to (at least) 16% of the ready reckoner rate to regularise a residential user. Added to this would be premium FSI to account for FSI violations.
- Source: Yomesh Rao, Director, YMS Consultants
The path to the new rules wasn’t smooth.
In 2016, a Bombay High Court bench of Justice Abhay Oka and Justice Prakash Naik was hearing a public interest litigation, filed by activist Rajeev Mishra, against unauthorised constructions in Navi Mumbai. The court struck down Maharashtra’s draft policy on regularisation, terming it ‘arbitrary’. In March 2017, the HC bench — this time headed by Justice Abhay Oka and Justice Anuja Prabhudessai — rejected a second draft, for being contrary to the Maharashtra Regional Town Planning Act (MRTP). The court pointed out that the Act provides for planned development, which would be turned on its head with the State’s draft policy.
Despite the HC’s rejections of the draft regularisation policy, both houses of legislature went ahead and altered the Act in April 2017; then in October, put into effect the new Rules.
Not a good idea
An RTI filed by activist Anil Galgali lays out the magnitude of the problem: between January 1 and September 31, 2016, the BMC’s helpline (1916) received 9,934 complaints directed to the city’s Building and Factories (B&F) Department, which is responsible for doing away with illegal or unauthorised constructions and alterations. “These figures only refer to complaints on the helpline, and not those given in writing to the respective wards,” he says. “One can also safely assume that unofficial figures are much higher as many cases go unreported, either due to apathy or fear of repercussions.” Over the past 15 years, Mr. Galgali says, unauthorised construction has increased.
Pallavi Divekar, Partner, Divekar and Co. Advocates and Solicitors, agrees: “There is no fear of consequences, and this new rule will make law-breakers bolder. The Campa Cola case highlighted the lack of a law to protect hapless flat owners. But such regularisation is a misdirected effort by the government. It sets a bad example, in that today’s irregular structures could be safely presumed to become regular tomorrow, in a single stroke.” Dr. Divekar calls the stringent MRTP Act “the need of the hour in overcrowded metros,” because it protects the blueprint of the city, safeguarding open spaces, gardens and public areas, protecting zones, and controlling the usage of FSI.
Activist Rajeev Mishra too thinks the new rules are a bad idea: “If such unauthorised construction is legalised, it results in increased density of population, in an already congested city.” Such haphazard construction puts a strain on civic resources and public amenities, and reduces the quality of our lives, he says.
Besides, Mr. Mishra thinks the rules violate Constitutional rights. As per Article 21, he says, “We have a right to a life of dignity; to live in a clean and pollution-free environment. All of which will be compromised by unfettered development.” And there is the fundamental Right to Equality as envisaged under Article 14.
“Is it fair that a person who bought a lawfully-constructed flat is put on par with someone who occupies an unauthorised flat, merely because the latter paid a fee?” The result, he says, is that those who respected the law will pay, because they will have to share limited resources such as water and drainage facilities, as well as increased traffic on roads and footpaths, “for the benefit of those who broke the law.”
The Urban Design Research Institute (UDRI), like Mr. Mishra, has said the new rules are a violation of the Right to Life. UDRI has also said, in its suggestions and objections to the Urban Development Department, “With the introduction of this policy, the entire MRTP Act would become infructuous. Provisions to condone illegal structures negate the entire Act.”
UDRI also points out specifics, such as that the new rules allow for reduction in setback area — the distance between the building and the road — by as much as 50% (for buildings whose heights fall within 10 m to 24 m). This in turn, affects the side margins; a hazard, that will impede rescue operations in case of a disaster.
One of the rules’ most distressing features is the easing of the previously arduous process — requiring several clearances — to legalise commercial units within a residential building. It’s now easier to change usage for such units that have been in operation before the December 2015 cut-off. Union Park Residents Association in Khar (W) is no stranger to coping with eateries in residential buildings. Bharati Kakkad, its secretary, says, “Living near a restaurant, with their chimneys, a floating population with their honking cars, is akin to living near a mini-factory. Residential units were not built to accommodate such infrastructure.”
Mr. Mishra points to another disturbing sanction: it is now possible to compound unauthorised structures on government land, or land owned by other public authorities, on production of a No Objection Certificate (NOC) from the land-owning authority. “This puts too much power in the hands of a Collector, or a chosen few.” Mr. Mishra has raised these and other points in his petition against the latest amendment, which is part of his PIL. While his arguments have concluded, those of the government will commence shortly, with the next hearing scheduled on November 16, 2017.
The counter-view
Not everyone believes the new rules are troublesome.
Yomesh Rao, Director of YMS Consultants, an architectural firm that designs and helps developers and housing societies undergoing redevelopment to secure municipal sanctions, says, “Many home owners were tricked into buying flats which hadn’t been approved by the municipality. Later, they found themselves facing flak from the authorities, or even from anti-social elements who held them to ransom. Now it’s possible for them to get legal status while also generating revenue for the State.”
Mr. Rao, who is also a lawyer, says there will now be a reduced burden on the judiciary. “So far, when an MRTP notice is served to a property owner — whether for a huge FSI violation or minor breaches such as an unauthorised enclosure of a balcony — the case often landed up in courts, sometimes lingering for years.” Now, there is a speedier solution: apply for regularisation if the violations are within the ambit of the revised norms. Mr. Rao also points out that, as witnessed in the Campa Cola case, a threat of demolition resulted in residents clashing with the police. “This move prevents such a law-and-order situation from arising.”
Mr. Rao disagrees with other points critics have raised. On Mr. Mishra’s fears of official power being misused, he says, “For a NOC to compound a structure on government land, there is a due process of law to be followed by each officer.” On fears that unscrupulous builders will profit, he believes the high charges for compounding will be a deterrent. And as to profiteering from legalised compounded structures during redevelopment, he says, “The compounded structure will not be accounted for when the building undergoes redevelopment.”
Arun Kumar (name changed on request), who lives in an unauthorised flat and has suffered through years of litigation, says, “This notification is a good move, particularly because there was absolutely nothing to protect flat owners like me, until RERA.” (The Real Estate Regulatory Act (RERA), 2016, aims to provide transparency and accountability, requiring builders and developers to register their projects and approved plans and providing for arbitration on disputes between builders and buyers.) But even the new Rules have shortcomings, Mr. Kumar says: “Why does it come with so many restrictions — height restrictions, CRZ rules, and so on — when the intent is to finally help the victims? Also, is it fair that after I paid for my flat, I now have to pay compounding charges? In today’s real estate market, where prices are skyrocketing, where is a middle-class person going to get the money?” Instead of charging home-owners, he says, the Act should have incorporated heavy penalties for builders. “It’s time to have fast-track courts to bring them to task. This will prevent more people from becoming victims.”
Possible improvements
Mr. Mishra worries that this law could already have been gamed. “There was much talk of this policy for a few years; a shrewd developer, who anticipated this move would have gone ahead and built without necessary clearances, only to regularise later for a flat fee.” He suggests that, instead, builders and developers who cheated buyers must be penalised, “and these funds must go towards creation of planned housing units for those who were duped. Otherwise, this rule only rewards the wrong-doers.”
UDRI, Mr. Mishra and Mr. Rao all agree that the magnitude of punishment should be in accordance with the crime. Mr. Mishra says, “You cannot deal with someone who enclosed a veranda in the same way as you deal with one who usurped several hundred square feet of the common compound.” He and UDRI both suggest that an upper limit be fixed on the FSI violations that can be compounded.
Among UDRI’s suggestions: create a list of all structures that can apply for compounding, mark them on the Development Plan, and call for suggestions before regularising.
The new rules may preclude another spectacle like the Campa Cola Compound, where residents formed a human chain, clashed with the police, and did havans in appeal to the gods. But while offering relief to duped buyers, they also inadvertently protect unscrupulous builders, and create new issues. Not to speak of doing nothing about the congestion that is already suffocating Mumbai.
