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The Chief Justice Swatanter Kumar of Bombay High court in a case before it, is quoted as saying- “......if they are carried away by the brochure and public advertisements, and do not make such inquiries, then, they cannot turn around and seek assistance of the court”.
It is highly unwarranted when courts attend citizenry like as irresponsible childrens supposedly to seek undeserving claims. Under no circumstances, citizenry can assume that courts are forum to legalize negligence. We the citizenry knock the doors of court to enforce our rights, our dues, constitutional and statutory. The courts cannot give what is not our dues and this we the citizenry know well. Courts are merely a platform to claim our dues.
As emphatically subscribed by Bombay High Court Chief Justice Swatanter Kumar that consumers are empowered enough to check illegality, I say- the moot question is not if a consumer is empowered to check illegality, the pertinent question in my view is- Is it the duty of a consumer to check illegality of construction ? My certain view- Definitely Not.
The consumer, (the citizenry) has, for to check illegality has employed the local body, i.e. Mumbai Municipal corporation in the instant case to check illegality and irregularity of any kind. Moreover, it is not exaggeration if I were to say that it is this consumer who is paying salary to these people of local bodies to check illegalities. Then, why is this consumer is obliged to check himself when he has lawfully entrusted this work to local body, although he may be empowered to do the same. I may not exercise my rights when I have lawfully entrusted someone to take care of my rights. There should not be any prejudice cause to me if I do not exercise my rights then.
Moreover, it can safely be presumed the legality of a transaction of immovable property when the men employed to check illegalities doesn’t declare illegality of any kind during construction of building. Otherwise we will be encouraging further callous behaviour of 'State men' in charge of checking illegality for he is not held accountable for his failing in his duty to check illegality and furthermore he is empowered to take action against the innocent buyer.
The news report says- during routine inspection, the BMC officer discovered that builder has shooted 24 floors against permission of 7. And the BMC officer thus takes us all for FOOLS that illegal 17 floors were shooted overnight. I don’t know if the Bombay High Court Chief Justice Swatanter Kumar chose to ask BMC if those illegal 17 floors were shooted overnight.
Bombay High Court Chief Justice Swatanter Kumar has been quoted as saying: Legalising building fraud will lead to disaster. The observation statement of Chief Justice assume sweeping significance. In my view, by this statement the court say that- since local body, i.e. BMC has a traditional practise of turning a blind eye to unauthorized constructions, and in the circumstances, if courts are not very strict while giving/denying permission to regularize unauthorized constructions, there will be all round haphazrd illegal constructions.
A division bench of chief justice Swatanter Kumar and justice SC Dharmadhikari said in their 123-page order that the planning authority had to consider various factors such as infrastructure, congestion, water supply, and roads before regularising illegal constructions against payment of a penalty. "If there is an increasing pressure and burden on the existing facilities and amenities then the whole system would collapse resulting in large-scale inconvenience." Can it be said that in all the permissions so far given to regularize has not caused pressure and burden to the existing facilities and amenities in the immediate neighbourhood. It is akin as judges telling that permission for authorizing illegal constructions should only be given to those structures which do not increases “allowed weight of the building”. But then, is it possible to have a situation when you allow additional unauthorized structure and yet you “maintain weight of the structure”.
Although section 53(1) of the Maharashtra Regional Town Planning Act provides for regularisation of unauthorised structures, the court said that indiscriminate regularisation through TDR or FSI can have "disastrous consequences". "Regularization of unauthorised constructions will have to be permitted on a case-to-case basis," the court ruled. The laws are made and accordingly having regard to existing conditions of facilities, permission is given for building certain number of floors. While any single permission is given for regularization of unauthorized construction, the consequence of increasing pressure and burden on the existing facilities and amenities in the immediate neighbourhood is inevitable. Is it possible to have on one hand authorizing illegal construction and on the other hand presuming that such authorization will not have consequences and burden to the existing facilities and amenities.
In my view, in the light of submissions made by the Senior Advocate of the Petitioners, if there is a provision in law to remedy the situation by arranging the TDR and paying penalty, this mercy of law cannot be denied to the deemed innocent flat buyers. The purpose of existence of any law can never be lose sight of. This provision has apparently come into being to protect innocent flat buyers who were deceived by developer and are victim of negligent officials of local bodies who were to check all illegalities connected with the construction.
It is not permissible for local body to have first turn a blind eye to unauthorized constructions and then deny the mercies of legal entitlements available to remedy the situation and rather assume unguided power to choose at their whims, to whom permission for regularization should be given.
In the present Constitutional democratic set up we all Indians live in, the Laws are made and passed by the Parliament and the State Legislatures and these laws represents the wishes and ambitions of we the people of India. It is the Prime responsibility of the Govts and its various instrumentalities to implement and administer the Laws so made by the Parliament and the State Legislatures.
It is even not open to the Supreme Court and the High Courts to act or give judgments in deviation from established laws. All Statutes or Laws so made and passed by Legislatures is to remedy the ill that has plagued the society. All Statutes comes into being with some policy and objective to be achieved. Every statutory provision in a Statute comes into being after due deliberation and every letter of the law is employed with great caution and care and with some purpose.
It is suffice if one merely seek the bare observance of the letter of the law and the spirit inherent in the letter of the law. As everyone says that we live in a Rule of Law society. What we really mean by Rule of Law is that the Law which is established must be observed in all the circumstances except in cases where the Law itself is absurd and or arbitrary. Every letter of the Law must be observed with due respect, unless the same is declared by the competent court of Jurisdiction as manifestly arbitrary and or absurd.
A great deal of confusion & doubt has come to set in our minds when judges refuse citizenry of their due legal entitlements. The false impression then we earn & import is- Judges & courts are empowered to refuse citizenry their due legal entitlement. To me it is not small impression that if taking roots in our minds.. The denial to mercies of law, i.e. denial to avail the benefits of established laws only leads to violation of article 14 of the constitution of India.
Moreover, Should I not invoke Promissory Estoppel of all laws against all Public Servants including Judges for they voluntarily took Oath of allegiance to Rule of Law.
iN APPRECIATION,
Sandeep Jalan
Advocate
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