Even as I am writing this, officials of the Brihanmumbai Municipal Corporation (BMC) are trying to find ways to evict owners of flats in a building in central Mumbai, the Campa Cola Compound, because the Supreme Court has held that some floors were built illegally and need to be razed. The occupants are fighting tooth-and-nail by holdinghavans and putting up barricades.
There is no doubt building and municipal laws have been broken by the developer of the property, probably in cahoots with municipal officials and crooked politicians. This is how the illegal floors got built. So, purely from a legal point of view, there is no doubt that the illegality must be ended by razing these floors.But illegality cannot be fought merely by perpetrating what any normal human being – someone who has invested his or her lifetime’s savings to buy a roof over the family’s head - would consider injustice.
The decision to raze the floors actually amounts to punishing the victims and sparing the guilty. The wrong people are being harassed for someone else’s illegalities. Those who argue for the rule of law are obviously not those who spent all their money buying a house. There are thus right arguments to use, and wrong ones, in the Campa Cola case.
Right argument: The illegality cannot be condoned. But the issue is who should be penalised more for it. It would be unfair to raze the homes without providing the people who paid good money for it an alternative home or financial compensation. This means either they must get a home at little extra cost somewhere else as compensation, or the floors should be regularised with stiff fines – most of it borne by the builder.
Wrong argument: The government regularly removes slums; so why should only the middle class be crying foul when it is its turn to face the law? This is an enticing egalitarian argument, but there is a crucial difference: the people settling on public land (a.k.a. slums) know that it is not their land. They are just illegal squatters. The people who bought flats in the Campa Cola building may or may not have known of the illegality involving the building’s construction, but they paid good money for it. They may also have been misled into believing their floors would be legalised. I am not for razing slums either, but the comparisons are plain wrong.
Right argument: The real crooks are the builders, the complicit municipal officials and the politicians behind both. These are the people who both create the problem (artificial land scarcity in the city) and pretend to be saviours of the home buyers by agitating on their behalf when the courts decide to clamp down. The remedy for this clearly does not lie with the courts. The corrupt benefit from the rent-seeking opportunities created by artificial land scarcity – while ordinary people aid them by buying houses that they desperately need. This nexus of the greedy and the needy can only be solved by public protests and pressure. The Campa Cola residents’ cause will have to be taken up on a larger scale by home buyers all over Mumbai in order to force changes in land use policy that will allow the city to grow normally.
Wrong argument: Caveat emptor means the buyer has to be more careful.However, the well-settled principle in consumer law is that it is the manufacturer or service provider who has to pay for delivering a faulty product or service. So, even if it can be said that the Campa Cola residents were not sufficiently careful while putting their money into their illegal homes, it is the builder who must be made to carry the can for it. Most consumer courts penalise the seller and never the buyer. This principle must be made to apply in the Campa Cola case too.
Clearly, while the Supreme Court has upheld the law, the focus of media attention and everyone else has been on the wrong culprits: it is the builders who need to be made to pay and be jailed. And their abettors in officialdom. These are the ones deserving of high punishment and who need to be taught a lesson. The flat-owners have already been punished with the mental torture of the last few years when they faced the prospect of being turfed out of home and hearth.
The punishment must now seek out the real guilty parties.
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