By Aditya Pratap, Advocate, Bombay High Court
Kamala Mills, Mumbai’s premier office destination a newly emerging entertainment and restaurant hub, descended into infamy on 28th December, 2017. Well-heeled Mumbaikars, who had assembled for an evening of party and dance in the terrace restaurants of ‘1 Above’ and ‘Mojos Bistro’, were trapped in a fiery inferno which resulted when a smouldering ‘hookah’ came into contact with a flammable curtain. The ensuing flames engulfed the entire building, leave people with little or no room for escape. Panicked partygoers went scurrying about looking for fire escapes, which were found to be blocked and locked. A few of them took the fateful decision of seeking shelter in the bathroom, only to die of Carbon Monoxide poisoning. The graphic video footage shocked civil society, leading to calls for action and prosecution of the persons responsible.
Fire tragedies in Mumbai City are not new. Time and again shoddily constructed buildings have become tinderboxes, resulting in infernos. These are followed by condemnations and expression of outrage by civil society. The short-term nature of public memory ensures subsidence in a few weeks, and re-emergence of the wicked builder-babu nexus which allowed the tragedy in the first place. As a result, the Police will file closure reports while Municipal officials impose paltry sums as ‘penalty’, allowing offenders to go scot-free.
Prelude to the Tragedy – Misuse of DC Regulation 64: A Pretext to bypass the Law:
The Development Control Regulations for Greater Mumbai, which came into force in 1991, introduced the concept of ‘regularisation’ of unauthorised constructions by exercise of discretionary powers by the Municipal Commissioner. Under DC Regulation 64, the Municipal Commissioner could regularise unauthorised constructions and relax mandatory requirements for projects citing ‘hardships’ in planning. Thus if a Developer had difficulty in providing the mandatory open space or leaving the required recreation ground, he could apply to the Municipal Commissioner and have these requirements relaxed. Upon receipt of such an application, the Municipal Commissioner was duty-bound to apply his mind and ascertain if the hardships were genuine. Only then could he relax the rules in favour of the Developer.
Where there is Discretion, there is Corruption:
It is a time-honoured saying that law must be strictly applied, irrespective of the hardship or discomfort it may cause. Strict enforcement and implementation of the law alone ensures its compliance. Any leeway or waiver granted to an offender weakens the rule of law and results in adverse consequences. The passage of DC 64 thus, quickly became an excuse to condone the most heinous of violations. Developers would submit building plans that defied the law in every way. From paved recreation grounds on podiums to negligible space for fire engines, these plans violated the DC Regulations in letter and spirit. Yet the Municipal Commissioner consistently accepted the lame excuses of ‘hardship’ put up by Developers and granted approval, leading to unbridled proliferation of dangerous, congested high-rise buildings in the City of Mumbai.
High Court Guidelines for Regularisation of Unauthorised Constructions:
The Bombay High Court in the case of Rajendra Thacker vs. MCGM and Ors, (Citation: 2004(4) Bom CR1) had prescribed guidelines for regularisation of unauthorised constructions and imposed restrictions upon the Municipal Commissioner’s power to grant arbitrary relaxations in planning parameters. The Division Bench comprising Justices H.L. Gokhale and R.S. Mohite held that violations of Floor Space Index (FSI) norms could not be regularised. Relaxation of mandatory requirements pertaining to “Floor Space Index” (FSI) and Open Spaces, regularisation would be permitted only if health, life and fire safety was not compromised. The Court also held that before any decision on relaxation of norms was taken, a fair hearing was to be given to the residents of the layout so that their right to life under Article 21 of the Constitution of India was not compromised. The gist of guidelines for regularisation was laid down as under:
- The power of regularization would vest only with the Municipal Commissioner and sub-delegation was prohibited;
- While deciding any question, the Municipal Commissioner was duty bound to hear all parties who would be affected by the construction, such as local residents;
- Violations of Floor Space Index (FSI) could not be condoned – demolition mandatory;
- The Municipal Commissioner was to apply his mind and ensure that health, safety and fire-safety were not compromised as a result of regularisations;
By prescribing such elaborate guidelines, the High Court intended to ensure that regularisation would be an exception, not the rule. Developers of unauthorised constructions were to be taken to task and put to strict proof in respect of their deeds. Finally, the Municipal Commissioner was duty bound to place the health and life safety of the people above all pecuniary considerations and reject a Developer’s application for regularisation if the same was found to be in conflict.
The Kamala Mills Tragedy – A Textbook Example of Misuse of DC 64 to Grant Permissions in complete Violation of Law:
The noble intentions of the Bombay High Court in the Rajendra Thacker case did not go down well with the Municipal Corporation and the ‘Builder Lobby’. Successive Municipal Commissioners acted disregarded the ruling and committed wilful contempt. D.C. Regulation 64 thus became a profitable channel for Developers to evade compliance with Mumbai’s DC Regulations in matters of recreational areas, means of access and fire safety. Kamala Mills was a prime example where the Developer, Ramesh Govani not only erected massive structures in close proximity to one another, but also rented out the statutory recreation grounds to a prominent entertainment company, which constructed gaming arcades for people to indulge themselves at prohibitive prices.
Shortly after the tragedy, on 31st December, 2017 renowned lawyer Abha Singh addressed a letter to the Chief Minister of Maharashtra, Shri Devendra Fadnavis where she pointed out the modus operandi adopted by the builder. She alleged the Municipal Commissioner, Shri Ajoy Mehta, had given reckless approval to eighteen restaurants in one building in Kamala Mills despite the fact that the structure in question lacked the mandatory 6 meter open space for manoeuvring fire tenders. Recreational areas, such as gardens, were grossly deficient and those that existed were paved over with concrete. Though such development was highly inimical to the health and life safety of the people, no hearing was accorded to them. Mr. Ajoy Mehta brazenly accepted the lame excuses of ‘hardship’ raised by the Developer and permitted the development, with disastrous consequences.
Looking Forward to the Way Ahead:
The menace of illegal construction confronts Indian Cities on a daily basis. For every building that faces demolition, a hundred illegal ones escape the axe. Social activists who challenge them by filing public interest litigations are put to task by the judiciary, which faults them for ‘delay and laches’ and approaching the court with ‘unclean hands’. The laxity of the judiciary, which has so far escaped public scrutiny, has virtually eliminated the fear of the law, encouraging Developers and Municipal Officials to enhance the scale of their crimes day-after-day. The Maharashtra amendment to 156(3) of the Code of Criminal Procedure, 1973, which forbids FIRs against public servants without prior sanction, only deepens the mess.
It goes without saying that the root cause of the Kamala Mills tragedy is corruption. The only way to counter corruption is to remove the restrictions on registration of FIRs against public servants. This removal must be complemented by the establishment of an independent investigative agency such as the ‘Lokpal’ who would operate without fear or favour. Finally, the Courts must realise that illegal constructions are the outcomes of fraud, which remain concealed under a thick cloak of conspiracy and secrecy. Such violations are exposed only through the diligent efforts of social activists. Therefore the time has come to dispense with the doctrine of ‘delay and laches’ in such cases and instead, take the offenders to task for their crimes against humanity. Indeed, as the time-honoured saying goes, Not only must Justice be done, it must also seen to be done!
(Aditya Pratap is a practising lawyer at the Bombay High Court. He appears in diverse civil and criminal cases as well as before the Real Estate Regulatory Authority. Questions pertaining to the article can be mailed to him at email@example.com.)