Date - 2/11/2013 From: 1. Concerned citizens of India c/o Raman Sharma , CW 58 First Floor Malibu Towne Sohna Road Gurgaon 2. Col.Sarvdaman Singh Oberoi 1102/Tower -1 , Uniworld Garden , Gurgaon . 3.Electronic Media Association , Gurgaon 4.Progressive Gurgaon Forum , Gurgaon To: The Hon’ble President of India Rashtrapati Bhawan New Delhi PETITION UNDER ARTICLE 143 OF THE CONSTITUTION OF INDIA TO SAVE THE LIVES, HOMES & FUTURE OF 106 FAMILIES RESIDING IN CAMPA COLA COMPOUND, KHER ROAD, WORLI, MUMBAI Hon’ble Rashtrapatiji, 1. We the concerned citizens of India wish to make as prayer to save the lives, homes & future of 106 families residing in Campa Cola Compound, Mumbai, which is scheduled to be demolished on 11.11.2013, upon the orders of Hon’ble Supreme Court which have attained finality in Civil Appeal No. 7934 of 2012 titled Esha Ekta v Municipal Corporation of Mumbai, (2013) 5 SCC 357. 2. It is most respectfully submitted that whereas the Hon’ble Supreme Court has rightly ordered that non approved construction if any must be demolished, the effect of the judgment has been that the aged, young and other residents alone have been punished, whereas the root of the mischief was identified by the Hon’ble Supreme Court as being in the unholy nexus between politicians, builders and bureaucrats in its judgment dated 29.02.2012 in Civil Appeal No. 33471 of 2011 titled Esha Ekta v Municipal Corporation of Mumbai (2012) 4 SCC 689. In this judgment it was noted by the Honble Supreme Court that Division Bench of the High Court took cognizance of the fact that the buildings had been constructed in violation of the sanctioned plans and passed order dated 11.10.2005: “Besides, the prosecution was launched against builder, developer and all the occupants of the building and they were convicted on admission of guilt and sentenced by way of imposition of fine from Rs.600/- to Rs.2000/- imposed by the Magistrate. Apart from the above actions, no other action has been taken by the Corporation in relation to the illegal construction. The affidavit-in-reply filed on behalf of the Corporation before issuance of rule in the petition by Shri Kurmi Deonath Sitaram, Executive Engineer, DP(City)(I) discloses that initial approval was granted for six wings consisting of ground plus five upper floors and it was issued on 9th June, 1981 and Commencement Certificate was granted on 10th June, 1981. The amendment plans were approved for nine wings of ground plus five upper floors on 2nd February, 1983. Thereafter, amendment plans proposing stilt plus twenty-four floors and stilt plus sixteen floors with additional sixth and seventh floor to building nos.2 and 4 and additional sixth floor for the part of building no. 3 were submitted but they were refused on 6th September, 1984. In spite of that, the constructive activities continued and the work beyond the approved plans was carried out, and therefore Stop Work notice was issued under Section 353-A of the MMC Act on 12th November, 1984. However, the work continued. Again new architect submitted further plan with a fresh notice under Section 337. The same was rejected by the Corporation. 3. The affidavit also discloses the various illegalities committed in the course of construction of the buildings which include construction of additional floors without approval, increase in the height of the building and carrying of construction beyond the permissible limits of FSI, apart from other illegalities. The affidavit, however, does not disclose as to what action, if any, for prohibiting the developer and the owner from proceeding with the construction, was taken as well as what action was taken after illegal construction having been carried out, apart from launching prosecution and issuance of notices. Even in the course of the argument, learned Advocate appearing for the Corporation could not satisfy us about any concrete action having been taken by the Corporation for stoppage of illegal construction or demolition of illegal construction. In fact, the arguments in the matter were heard partly on 27th September and again yesterday and as well as today. On the very first day of the argument, it was orally informed by the learned Advocate for the Corporation that he would ensure the presence of the officer of the Corporation to assist him in order to enable him to give correct detail information in the matter. In spite the officer being present, we are not able to get the detail information regarding the action taken by the Corporation as also the detail description of the illegalities committed by the builder and any other persons on his behalf in the matter. It is to be noted that undisputedly the records disclose some illegalities in the matter of construction carried out since the year 1984 onwards. In spite of affidavit having been filed in the year 2000, the Corporation has not explained the reason for failure on its part to take appropriate action against the illegal construction and even today apart from being assisted by the officer of the Corporation, the Advocate appearing for the Corporation is unable to disclose the reason for the same.” 3. Right to housing has been recognized as a part of human right under Article 11(1) of the International Convention on Economic, Social and Cultural Rights, 1966 (India acceded on 10.04.79) and under Article 25(1) of the Universal Declaration of Human Rights, 1948.On 10 December 1948 the Universal Declaration of Human Rights was adopted as Resolution 217(III) with 48 members, including a newly independent India, in favor, and 8 abstaining. However the Union Government is required to implement any treaty, agreement or convention made at any international conference, association or other body under Article 253 and for this purpose Parliament has been empowered to make any law for the whole or any part of the territory of India. 4. In Basheshar Nath v The Commissioner of Income Tax AIR 1959 SC 159, Bhagwati, H.N. J. speaking for the majority held: “The arguments moreover extended to the whole field of fundamental rights and were not confined to Art. 14 only. We, therefore, see no reason why we should refrain from pronouncing our opinion on that question.....Ours is a nascent democracy and situated as we are, socially, economically, educationally and politically, it is the sacred duty of the Supreme Court to safeguard the fundamental rights which have been for the first time enacted in Part III of our Constitution. The limitations on those rights have been enacted in the Constitution itself, e.g., in Arts. 19, 33 and 34. But unless and until we find the limitations on such fundamental rights enacted in the very provisions of the Constitution, there is no justification whatever for importing any notions from the United States of America or the authority of cases decided by the Supreme Court there in order to whittle down the plenitude of the fundamental rights enshrined in Part III of our Constitution. The genesis of the declaration of fundamental rights in our Constitution can be traced to the following passage from the Report of the Nehru Committee (1928):- “Canada, Australia and South Africa have no declaration of rights in their Constitutions but there are various articles to be found in the Constitution of the Irish Free State which may properly be grouped under the general head fundamental rights. The reason for this is not far to seek. Ireland is the only country where the conditions obtaining before the treaty were the nearest approach to those we have in India. The first concern of the people of Ireland was, as indeed it is of the people of India to-day, to secure fundamental rights that have been denied to them. The other dominions had their rise from earlier British settlements which were supposed to have carried the law of England with them. Ireland was taken and kept under the rule of England against her own will and the acquisition of dominion status by her became a matter of treaty between the two nations. We conceive that the constitutional position in India is very much the same. That India is a dependency of Great Britain cannot be denied. That position can be altered in one of two ways-force or mutual consent. It is the latter in furtherance of which we are called upon to recommend the principles of a constitution for India. In doing so it is obvious that our first care should be to have our fundamental rights guaranteed in a manner which will not permit their withdrawal under any circumstances.” 5. In view of the above factual and legal position having grave consequences for the ordinary citizens’ right to meaningful and respectful life, we the citizens of India have come with a last hope to the highest office of the land praying for complete justice for a 90 year old senior citizen, lady doctor & freedom fighter, young infants and other women, children & senior citizens many of whom are in the last stages of their life fighting illness & penury. 6. The government has to be blamed, if the flats were illegal why was registration done and why was power and water supply given to those flats, could they not make rules such as no registration without OC, first the government leaves loop holes for the builder mafia to survive and then penalizes the people who now have to loose their homes. If an illegality is not located by BMC in time, concurrent to construction it could be assumed as valid. BMC also collects tax on all buildings. Acceptance of tax leads to an implication that construction might have taciy approval of the powers that be. 7. The above discussion would show that the 106 families of the Campa Cola Complex may be found fault with for their alleged omissions and commissions but under no circumstances their fundamental rights under Article 14, 19 & 21 may be taken away by throwing them out in the street. If at all the Bombay Municipal Corporation is to demolish their tenements it would have to provide similar accommodation before it throws them out, not least because the omissions and commissions have been stretched over 30 years by the officials and elected members of the Bombay Municipal Corporation, the officials and political leadership of the Maharashtra Government and the promoter builder lobbies in connivance with each other, as noticed by the Apex Court itself, in its judgment. Any action to throw the residents out on the street violates Article 14, 19 & 21 of the Constitution of India. 8. In Pasupuleti Venkateswarlu v. The Motor & General Traders 1975 (1) SCC 770 V.R. Krishnaiyer, J. delivered the judgment for a three judge Bench headed by A.N. Ray, C.J.I. and held:“It is also on the theory of an appeal being in the nature of a re-hearing ......dismissing the eviction petition, leaving the near decade-old litigation to be reopened in a fresh unending chapter of forensic fight. The learned Judge gave little comfort to the litigant who had come with a proved case of bona fide requirement ....: If so advised the petitioner may seek to obtain such relief as may be open to him by filing a fresh petition ....We think it unfair to drive parties to a new litigation of unknown duration but direct, in the special circumstances of the case (which are peculiar) that: (a) the revision before the High Court shall stand dismissed; ..... we partially allow the appeal as indicated above ....” 9. It is good that the Supreme Court has taken the correct stand to demolish non approved construction but the Restitution Mechanism to uphold Article 21 rights has been omittede, and all the Apex Court had to offer was to relegate the poor evictees to a civil suit wherein they could ill afford to deposit the enormous court fees for a civil suit which may last another 30 years and the spirit of the judgment of the Constitution Bench in Olga Tellis v. Bombay Municipal Corporation (1985) 3 SCC 545 would stand violated with impunity by the very same Bombay Municipal Corporation once again which held: “No individual can barter away the freedoms conferred upon him by the Constitution. A concession made by him in a proceeding, whether under a mistake of law or otherwise, that he does not possess or will not enforce any particular fundamental right, cannot create an estoppel against him in that or any subsequent proceeding. Such a concession, if enforced, would defeat the purpose of the Constitution. Were the argument of estoppel valid, an all-powerful state could easily tempt an individual to forego his precious personal freedoms on promise of transitory, immediate benefits. Therefore, notwithstanding the fact that the petitioners had conceded in the Bombay High Court that they have no fundamental right to construct hutments on pavements and that they will not object to their demolition after October 15, 1981, they are entitled to assert that any such action on the part of public authorities will be in violation of their fundamental rights. How far the argument regarding the existence and scope of the right claimed by the petitioners is well- founded is another matter. But, the argument has to be examined despite the concession.” PRAYER 10. It is therefore most respectfully submitted that the law and facts be referred under Article 143(1) so that the life, liberty, home & hearth of these 106 defenceless families residing in the Campa Cola Compound at Worli, Mumbai be saved otherwise they would die on account of the unbearable hardship.
Posted on: Sat, 02 Nov 2013 18:08:32 +0000
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