NAME SATWIK SINGHID 2121423 JURISPRUDENCE 3RD Year which is known was the campa cola compound.FACTS The name of the case is “Esha Ekta Appartments Chs Ltd vs Mun. which eventually did not issue the Occupation Certificate (OC) to the project. This is a classic case of builders not giving heed to rules and regulations of the government to pursue their goal of maximising their profits either by hook or crook.Of Mumbai & Ors”. the builders went ahead and sold the illegally constructed flats to the home buyers. the builders kept modifying plans but none of the plans with these floors were approved by BMC. The issues pertinent to this case are as follows . often with little or no fear of the law. The BMC is also responsible for the mess created since it is its responsibility to enforce the rules and regulations. This is case is primarily based on the issue of illegality of a residential complex in Mumbai. The builders have alleged that the residents knew that the residential flats were not regularised and yet they went with their decision to buy the flats since it was being offered at very cheap rates. When it knew of the fact that rules and regulations were not being followed. it should have stopped the construction of the illegal structures immediately however no such action was done in this regard. It is very regrettable that authorities have failed in their duty to enforce the laws. The builders. BMC did not give water connection in the absence of OC and the residents of this portion continued to manage water through tankers for almost a decade. ISSUES This case according to me has many pertinent issues which need to be solved in order to come at a judgment which will fulfil not only the question of natural justice and equity but also bring the guilty to book who violate the rules and regulations with impunity.Corp. during the period from 1984 to 1989 constructed 35 more floors than what was approved by the BMC. Despite this hurdle. The additional floors were in blatant violation of floor space index (FSI) applicable in Mumbai at that period. Stop work notices were sent but the builders continued with the work assuming the violation will be regularised. In a nutshell the case revolves around the residential complex which was sold at 1/3rd of the prevailing market rate to the residents. The main disadvantage being that in an event the law is unjust. What is the legal status of the buildings. This has been substantiated when one looks at the case of “Friends Colony Development Committee v. It does not concern itself with what the law ought to be. That would be the application of positivism combined with the suggestion of clemency from the executive. at the same time. since some of them have not been regularised? Can the residents be punished for the wrongs done by the builders and the promoters? It has been nearly two decades and the BMC is now asking for the demolition of the illegal structures. State of Orissa 1” this case has similarities to the case at hand because this case also dealt with builders who violated the laws in the construction of a particular building. the infrastructure consisting of 1 (2004) 8 SCC 733 . The advantage being that in cases of violations of laws by defaulters. Serious threat is posed to ecology and environment and. they do not get any leeway to manipulate their way out if the laws are strict in nature. if any of the residents who knew that the flats were not regularised but still went ahead to buy them? What is the liability of the BMC. the court made a very good observation which also applies to this particular case. This has its advantages and disadvantages. which knew of the illegality of the flats being constructed but did nothing to stop the construction at that time? Are the residents free to sue the builders for compensation? RULES For the purpose of this project and according to instructions given in the class. is that legally and morally tenable? What is the extent of the liability. That way they are always subject to a very strict and rigid interpretation of laws which helps in to bring accountability in event of a lapse. ANALYSIS Positivism deals with what the law is. I have chosen to apply the ratio used by chief justice Truepenny in the case of “Speluncean Explorers”. there is the chance of justice being denied to the aggrieved party. “Builders violate with impunity the sanctioned building plans and indulge in deviations much to the prejudice of the planned development of the city and at the peril of the occupants of the premises constructed or of the inhabitants of the city at large. The name of the case is “Priyanka Estates International Pvt. The builder knew of the permissible construction and yet some addendums were constructed. Unwary purchasers in search of roof over their heads and purchasing flats/apartments from builders. v. in this case the court rejected that plea of regularization of the apartment by giving the reasoning that in big cities due to the lack of space available unauthorised and illegal constructions are on the rise and this needs to be dealt with firm hands. This is a very important precedent which applies in the present case because from the fact situation it is very clear that the builder’s conduct was vitiated from the beginning. and if violation is detected. sewerage and traffic movement facilities suffers unbearable burden and is often thrown out of gear. rather they just paid the penalty in cash and continued with it. The interesting fact here is that the work continued unheeded and the BMC did not intervene even when its order was violated. notification was issued. State of Assam 3”. where the courts check the facts of the case. This suggests two grave things. In this case the facts show that the builders did not try for the regularising of their illegal constructions. for some reason the authorities could not enforce their stop work notification due to the possible political and financial clout of the builders or two. that is. It is even more surprising that such constructions were allowed even when the property was part of a pending litigation. In this case also it is known from the fact situation that after the illegality of the structures was exposed. one the builders and the promoters hold enough sway in the BMC to get their way. This is a grave audacity and a very important case needs to be mentioned in light of this judgment. The facts situation does suggest that some of the residents were aware 2 Ibid 3 (2010) 2SCC 27 . There is no exemption whatsoever.water supply. The positivist view is thus shown here. punish the wrongdoers. they are themselves part of this racket and thereby allowing the builders to continue violating the norms. The builder conveniently walks away having pocketed the money leaving behind the unfortunate occupants to face the music in the event of unauthorised constructions being detected or exposed and threatened with demolition” 2. Ltd.find themselves having fallen prey and become victims to the designs of unscrupulous builders. It is very important for developing nations that emphasis on planned development is put by regulating the building construction activities. a ‘Stop Work’. Another important fact that needs to be analysed is the contention that whether the residents were aware of the fact that the buildings were not regularized. Clearly it is very evident that residents of this compound have been facing hardships due to the actions of the builder. I am very sympathetic with the people who are losing their property. The BMC is also guilty of not enforcing the rules properly. Also the residents have mentioned that the builders had assured them that the regularization issue would be taken care of in the subsequent years. think twice before doing such action in the future. merely issuing notices is not the way to proceed with the builders who have no respect for rules and regulations. The process of regularization should not be allowed because it serves as an incentive for the other builders to break and bend rules and then get away with it. so much so that the BMC stopped the water supply forcing the resident to live by the help of water tankers. CONCLUSION After going through all the facts and after applying the ratio used by chief justice truepenny to this particular case. They are free to get compensation from the builders for this hardship imposed on them.of this anomaly and yet they proceeded with their decision to buy these flats. The BMC cannot take advantage of its own wrongdoings in connivance with the builders. but we must deal very strictly with the builders who are responsible for the situation. One of the mitigating factors is the time taken. The residents are middle income level people so it not hard to fathom the intention behind such action. The builders are also guilty of proceeding with the construction of the building even when stop work noticed where issued to them. that is the case is very old and all of a sudden they cannot be asked to move out without proper compensation and rehabilitation. The unplanned construction of different buildings not only ad to look at but also is dangerous for the environment and hence the enforcement of the laws should be very strict. They should have used administrative force to stop the construction of the illegal buildings since not only they violate legal norms but also pose a serious physical hazard to the people living around them. The people who bought the flats even after knowing the illegal nature of the flats have mitigating factors in favour of them. . I recommend that they should be awarded the current market value of the flats and sometime be given to them to look for alternative accommodations which should be assisted by the BMC. It has also been mentioned that these flats were selling at 1/3rd of the prevailing price of property at that time. However this must not be looked into at isolation. I hold the builders guilty of misusing the trust that was bestowed upon them by the buyers who invested their hard earned life savings in buying the apartments. however this was not done. The illegal flats should be pulled down and made an example of so that the builders and the promoters.