The Bombay high court has upheld a move by the Brihanmumbai Municipal Corporation (BMC) to demolish 17 illegally constructed floors in a Kandivli building in Mumbai’s western suburbs. In the process, it gave home buyers a chilling warning: courts will not rescue them if they get carried away by builders’ glib promises.
In short, caveat emptor. Let the buyer beware.
The high court last week upheld a May 14, 2007, order of the BMC asking the builders of the 24-storey Gaurav Gagan — Ravi Real Estate Developers — to demolish the top 17 floors at their own expense.
“If they (home buyers) are carried away by the brochure and public advertisements and do not make such (relevant) inquiries, then, they cannot turn around and seek (the) assistance of courts,” the court said.
The BMC had sanctioned the construction of Gaurav Gagan as a stilt-plus-seven-storey building in January, 1992. However, during a routine inspection in 1997, BMC officers discovered that the builders had constructed 24 storeys, prompting the demolition order.
Last week’s order by the high court will surely be challenged by the builder in the Supreme Court, but the people who bought flats in Gaurav Gagan are unlikely to get much peace of mind in the near future.
Sudhir Khandwala, who had purchased two flats on the 10th floor of the building, is one of them. He had challenged the demolition order, issued by former municipal commissioner Jairaj Phatak, contending that he and several others had spent their life’s savings to purchase the flats.
Khandwala contended that he and the others were unaware that the building was under the scanner for illegal construction.
The petitioners pleaded that the building be regularised by hoarding transfer of development rights (TDR) after the payment of penalty as they would otherwise become homeless.
However, the high court’s division bench headed by former chief justice Swatanter Kumar said that if such regularisation was permitted, builders and developers would hoard TDRs and floor space index (FSI) from one construction and use it to regularise illegal constructions elsewhere.
“If such a course is permitted, there shall be increased pressure on the infrastructure and basic amenities available in or around the plot, and particularly its neighbourhood,” the court said. Developers would also “openly flout building bylaws and regulations”.
Arguing for Khandwala, senior advocate VA Thorat told the court that builders often suppressed facts from flat purchasers. He added that there was enough scope under the law for condoning lapses on the part of builders and developers by regularising and retaining illegal and unauthorised constructions. “Demolition is the last resort and should be so,” Thorat submitted.
The court, however, disagreed. “In this era, where science and technology have advanced to a great extent, so also enactments such as the Right to Information Act are in place. It is not unreasonable to accept that flat purchasers should avail of the same and seek appropriate and relevant details of the construction before booking and purchasing flats in large-scale building projects.”
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