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The Supreme Court judgement to demolish Mumbai’s Campa Cola development is both sobering and scary. Sobering because it sets a clear judicial precedent, increasing the risk for those who build or buy unauthorized buildings. Scary for hundreds of thousands of residents currently living and working in illegal, unauthorized structures.

In the face of unabated cases of unauthorized occupation and construction on land across urban India, the Supreme Court judges have been faced with a tough choice—to consider the future, or to consider the past. They have chosen to consider the future.

Sizing the problem of ‘unauthorized’

The term “unauthorized" captures two illegalities of development regulations—the first is illegal use and/or occupancy of land, and the second is illegal construction on the land.

Evaluation of the size of the problem suggests that unauthorized development is an equal opportunity offender across state boundaries. In Mumbai, between January 2012 and March 2013 alone, the municipal authorities claim to have received more than 21,000 complaints about unauthorized slums and construction. In addition, 55,000 buildings are estimated to be illegally occupied, without the requisite certification. In the capital city of Delhi, unauthorized colonies (1,639 in number, 200 of them on forest and Archaeological Survey of India land) are home to 4-5 million residents. Police records indicate an annual trend of illegal constructions between years 2010 and 2014 that is relentless, at between 20,000 and 30,000.

In Kolkata, the estimated figures by municipal officials for illegal buildings are upwards of 800,000 structures, i.e. 50% of the total 1.6 million properties. In Bangalore, a May 2014 survey conducted by the municipal corporation found 95% of buildings had irregularities.

Response of state—demolition and regularization

Confronted by the runaway problem and driven primarily by court directives, government response over the years is twofold: demolition drives and regularization policies.

Brihanmumbai Municipal Corporation (BMC) has razed more than 59,000 illegal constructions since 2010, of which 49% were residences and commercial buildings in middle class areas, and the rest in slum areas. Demolition is the most extreme option, with a high social and financial cost. A similar story unfolds in Jaipur, Chennai, Hyderabad and Bangalore.

Regularization policies

In November 2013, chairman of Mumbai BMC Civic Law Committee, Makarand Narvekar, initiated efforts to revise the cut-off year for regularizing illegal buildings in Mumbai, from year 1962, to year 1995 as provided for regularizing slums, stating: “We have slums spread across the city where we provide them with basic amenities. But when it comes to tall structures, the authorities will consider an outdated cut-off period. We don’t understand the logic behind this move. The deadline for both slums and buildings must be made the same, to give relief to taxpaying residents."

State regularization initiatives unfortunately, have become tainted as tools for corruption, or political populism, or as a means to generate revenue for the state. Consider the following: in Kolkata, a meagre ex-parte penalty of 500 per square foot allows regularization of illegal floors. Journalist Deepankar Ganguly, in a searing article in 2010, termed regularization as the “most wanted" tool of builders in Kolkata. All cumbersome clearances required for new construction are waived under this “build illegally and regularize" model, while providing full benefits of registered sale deed and access to bank loans.

In Delhi, the municipal corporation in 2007 provided for self-regularization. In March 2012, the PHD Chamber of Commerce and Industry, in a note to urban development minister Kamal Nath, wrote tellingly, “It is a well recognized fact that hundreds of apartment buildings have been built on individual plots developed by DDA (Delhi Development Authority)...builders have been having a field day constructing flats and selling them to prospective house owners on Power of Attorney, more often than not with changes from sanctioned plans and without completion certificates."

Then chief minister Sheila Dikshit, in a January 2013 address to representatives of unauthorized colonies, said: “We won’t leave any colony where police or MCD (Municipal Corporation of Delhi) would come and demolish it. We will not leave any colony unauthorized, even if it takes one month, two months, six months or one year."

In June 2013, the New Delhi Municipal Council introduced a scheme for self-regularizing illegal construction of floors, based on the upward rezoning regulations provided in the Master Plan 2021.

In Karnataka, the Akrama Sakrama Bill has the fingerprints of all state political parties over the last decade. It has gained new momentum in 2014, allowing for regularizing of up to 50% violations to zoning regulations, and a cut-off date for unauthorized construction built as late as October 2013. The state anticipates a revenue windfall of 32,000 crore, estimating hundreds of thousands of property owners will take advantage of the generous leeway in the regulations.

In Andhra Pradesh, the Building Penalisation Scheme (BPS), 2007, gave a cut-off date of June 2008 for regularization. The purported “one-time only" BPS continued into 2013. According to chief city planner G.V. Raghu, 135,000 applications for regularization in Hyderabad city have been cleared, accounting for 40% of Hyderabad’s estimated total 320,000 residential properties and 50,000 commercial properties.

Leadership for the future

Besides creating resentment in the sinking fraction of law-abiding property owners, the regulatory attempts have made no apparent dent in the mounting problem. This is because not only do governments appear to be chasing the wrong goals, they are also chasing the wrong end of the problem. The goals for the strategy must be for planned development and compliance with regulations, not for revenue generation and political patronage. And the problem to solve is not how to deal with unauthorized construction, but how to meet the demand for affordable land and housing, and how to improve and enforce our master plans.

Unauthorized slums are a failure of governments to ensure housing supply matching demand. The supply is so far off-target, the projected numbers have lost meaning—a current shortfall of 25 million affordable homes, and an additional 25 million homes in the next two decades.

And shortcomings of the master plan have to be dealt with comprehensively on three fronts—plan preparation, plan implementation and plan enforcement. Until such time, regulations will continue on paper, divorced from the ground reality.

The challenges are not trivial and, therefore, the solutions will not be trivial either. It will require the ability to make tough decisions, and leadership in state governments that is enlightened and informed.

Dealing with the legacy of the past

Dealing with the legacy of existing unauthorized buildings is an immediate test of such leadership. It requires the use of regularization, not as a repeated tool for failed enforcement, but with commitment to wipe the slate clean for the future. One logical approach could be to analyse the unauthorized construction into three broad classifications of impact and action:

1. Impact is restricted to the occupants of building, colony or site, but without impacting safety of any resident within: higher compound walls, increased floor area ratio, without impact to neighbours, etc. These can be regularized immediately, with high penalties based on area and size.

2. Impact restricted to residents in the neighbourhood: street experience, light, air, noise, connectivity, etc. These can be regularized based on the consent of the residents impacted and incentivized with penalty levies that go towards improving the neighbourhood.

3. Impact extending to a large number of city residents, and on the safety of those living in such constructions: building on low lying areas, storm drains, onto streets, on public assets, or without engineering, services, or fire safety. These cannot be regularized, and are to be demolished.

The Campa Cola judgement serves to caution all buyers—to verify that the ownership documents are clear, and that the building has the required plan and occupancy approval certificates.

Swati Ramanathan is the chairperson of Jana Urban Space Foundation, and co-founder of Janaagraha Centre for Citizenship and Democracy.

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