ILLEGAL AND UNAUTHORIZED CONSTRUCTIONS IN REDEVELOPMENT

As all of us are aware, the redevelopment proposals are grossly undertaken by the Builders and Developers mooted by old and dilapidated buildings of Cooperative Housing Societies, Tenanted Buildings, Chawls, Tabellas, Slums and areas in CRZ in Mumbai Central and Suburbs.

As per the Plot area and the loadable TDR/FSI or Premium FSI in permissible ratio i.e. 1:1, 1:1.3, 1:2, 1:2.5 or 1:3 or even more as applicable under various categories of projects, the Developers begin discussions with the Office Bearers/Architects/Members of the Societies or Landlords or as the case may be, for the redevelopment of their properties.

The Developers offer to the Members, a bigger and posh dream houses with additional carpet area/rooms over the existing ones, displacement compensation for alternate accommodation, corpus fund and eye-catching elevations with latest facilities and amenities etc.

The Developers construct either additional flats or commercial joints on the remaining area available at their disposal on the same plot and sale it in open market to earn the surplus. The Development Agreements and the Power of Attorneys are finally executed between the Societies and the Developers to complete the projects.

Initially, to obtain the IOD/CC from MCGM, the Developers submit the plans to MCGM as per the agreed terms in the Development Agreements executed with the Housing Society.

It has been often noticed that thereafter, during the process of redevelopment, the terms of Development Agreements as agreed upon, the unhealthy attempts with ulterior motives are made by the Developers to twist and grossly violate the rules of MRTP and DCR by unlawful planning and constructing additional and unauthorized areas that are beyond their entitlement (i.e. beyond the plot FSI and the TDR/FSI loaded) for their hidden financial gains. The buyers of such unlawful flats/properties land themselves in deals that lead to litigation at a later date.

At this stage, the Developers submit the amended plans for additional structures to MCGM which are not in conformity with the Development Agreements executed and additional/unauthorized constructions are carried out without informing beforehand or seeking formal approval from the Society's Architect/Society as per the Rules and Bye-Laws or execution and registration of further necessary Agreements to this effect.

The ill-observance of MRTP/MCGM/DCR Rules and guidelines are overlooked by the sympathetic officials of the MCGM and the plans so submitted, are sanctioned without verifying the eligibility or its conformity with the Development Agreements.

The Projects are completed and the Occupancy Certificates are issued without the proper inspection neither carried out by the MCGM officials nor taking pains to verify whether the actual measurement of the constructed areas tally with the final plans submitted.

It is further noticed that upon the completion of the projects, these additional/unauthorized constructions are silently regularized at the last moment by executing the Supplemental Agreements with the Office Bearers of the Societies with green handshakes/offering them handsome rewards.

The Gullible Members of the Societies, unaware of the Laws and Rules, are taken for a ride by the Developers and the satisfied Office Bearers together with their interested associates once the projects are completed and since the Members aim to get themselves re-housed in the redeveloped premises and on the other hand, the hidden financial benefits of such unauthorized and additional areas go to the Developers.

There are numerous news clips in various news papers with regard to Mumbai High Court’s reprimanding and lambasting severely the MCGM for violation of Development Control Act & Rules and are instructed to immediately issue the demolition orders to pull down such unauthorized/additional constructions and take stringent action against the erring officials for their lapses.

Under the Development Control Rules, it has been stated that in case of unauthorized development, the Commissioner shall - (a) take suitable action which may include demolition of unauthorized works as provided in section 53 of the MRTP Act, 1966 and the relevant provisions of the Mumbai Municipal Corporation Act, 1888 and shall take suitable action against the licensed technical person or the architect concerned.

Upholding the law for the welfare of the community is more valuable for society than extra heap of cement and concrete. Plenty of judgments are overlooked by greedy Developers to earn extra money.

On illegal constructions, the BMC had issued a circular, raising the penalty by four times. The rule applies to any addition or alteration made in high rises as well as work carried out beyond permissible limits in housing societies i.e. only up to 15 per cent of the total built-up area of the Residential Societies under redevelopment can be allowed to be constructed for commercial purposes i.e. Offices, Mall etc. This notification marks the withdrawal of the earlier circular that decreed demolition of unauthorized floors without giving the owner or builder a chance to apply for regularization under the MRTP Act.

A classic example is quoted here with regard to unauthorized constructions and how BMC regularised the irregularities of IAS Officers' Housing Society at Andheri (West).

The Kamdhenu complex is owned by the nearby Patliputra Society comprising 50 Members, mostly high-ranking IAS officials.

As per rules, such societies are allowed to utilise 15 per cent of the total FSI for commercial purposes. Permission was taken to construct small shops on a part of the land, but instead, the Developer had constructed a commercial mall Kamdhenu, which was illegal. The free-of-FSI basement, passages, lift rooms, space below the staircase were allegedly merged with the usable area of the mall.

When a BMC survey pinpointed the irregularity, the civic agency gave a written complaint to Versova police, who, after 11 months, registered an FIR against Kamdhenu mall instead of lodging a case against the IAS officers who had been allotted the plot by the government for residential purposes.

The case against the mall was registered under Section 53 of the Maharashtra Regional and Town Planning Act (MRTP), 1966 for carrying out construction without permission. Former IPS officer and lawyer YP Singh, who had been pursuing the case against Patliputra for a decade now, had then alleged that the police deliberately booked the mall without involving the society, which is the actual owner. However, the criminal conspiracy and confederacy of corrupts was given green signal by corrupts only. 

If buildings and malls constructed illegally could be regularised so easily by paying a fine, rich builders could do it every time. Instead, the mall should have been demolished and the IAS officers booked, but BMC legalised it because of their political clout. If it were a poor man's house, they would have demolished it then and there.
"At a time when the civic body is looking to explore fresh sources of revenue, it is only prudent to charge more for unauthorized work instead of demolishing them arbitrarily. The earlier circular was not in line with procedures laid out in the law," said a senior BMC official.

Sections 52 to 54 of the MRTP Act lay down the law to penalize Developers for irregular constructions and regularize unauthorized work.

A 1985 Government circular empowered the civic body with the right to impose a fine on the accused to regularize work carried out beyond the approved plans and the penalty amount can range between 5% and 15% (in four categories) of the Ready Reckoner Rate of the building. The amount is charged on a premium, 25% on the land rates of the project. But the new verdict has now revised the rates, starting from 20% and going up to 100% in the fourth category. "The rise will have a major impact (and act as a deterrent) as even the Ready Reckoner Rates have also gone up manifolds.

Municipal Commissioner knows that regularizing illegal floors in buildings could be a source of big money for the BMC, has also introduced changes in two other categories of the penalty. First, a 30% fine for "change of utility in approved buildings", and a second penalty for alterations, such as illegally added cabins and partitions and unauthorized excavation of project foundations. This last category will invite a fine of Rs 425 per sq. metres from the earlier Rs 400 per sq. metres, with the amount slated for a rise by 5% every year.

The Commissioner has issued a set of 11 rules that nullified the practice of allowing the regularization of illegal floors and filing of a police case for work beyond permissible limit.

Until then, the BMC would issue a notice under Section 354 of the BMC Act and then slap another notice under Section 53 (1) of the MRTP Act, directing the developer to restore the work to the original status and also gives him time to apply for the regularization of floors.

The Members of the Cooperative Housing Societies in Mumbai are required to be vigilant while handing over their Societies for redevelopment to such Developers who, by rewarding the Office Bearers and their associates, carry out the unauthorized/additional constructions for their hidden financial gains which they are not entitled to. When unauthorized constructions beyond the laws are the statutory norms of such intellectually dishonest Developers rather than the exception to the rules, the strict laws of the land have always to be upheld by taking stern actions under the laws.

Housing Societies, please educate yourself and be vigilant from Irregularities and illegalities committed in redevelopment by the Developers, illegal gratifications showered on greedy and corrupt Members of Managing Committees of many housing societies, rampant corruption in BMC, flagrant violation of Rules and Regulations by the Developers, how to beware of cheat and fraud Developers and their criminal and felonious acts.

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