The rumble of the bulldozers continues, though a bit reluctantly than before. Both in Delhi and in Mumbai, there are hectic and very powerful attempts to get the government to issue ordinances to regularise the irregularities in constructions.  In Mumbai, the ordinance has already been signed by the governor, nothwithstanding the possibility of the courts. But the outcome is still uncertain. And that has made even politicians quite jittery.

<> After all, many of the irregular structures belong to the politically well connected.  All of them were condoned by those in power, either in the executive or the legislature.  These powerful men reckoned – logically, but in sheer contempt of law – that if the number of irregular structures kept on swelling, the very large size of the numbers would itself compel the law makers to amend the law.  They have, possibly erroneously, mistaken the power of numbers to be greater than the sanctity of the law, and more important, the basic tenets of the Constitution. . <> 

Therefore, passing any legislation to regularise these structures would be calamitous. And there are very serious issues that any government would have to gravely consider if it does not want the legislation to fall foul of the basic tenets of the Indian Constitution. <> 

First comes the principal of equality.  And this principle can both help those with irregular structures, as well as hurt them.  In fact, there are many good reasons why the occupants of premises built on government land cannot be dishoused, but need to be resettled.  After all, unlike slumdwellers, these people purchased the property from a builder who claimed that the documents were proper.  They paid to the authorities the requisite stamp duty to register their purchase of the property.  Then they continued to pay property and water taxes relating to this property, not to mention bills for other utilities like water and electricity.   <> 

Surely, those who pay taxes to the government have better rights than those who don’t.  Therefore, if a slum dweller – who illegally occupies the pavements, and does not pay taxes to the government – can be resettled at the government’s expenditure, why not others who have also built illegal structures but have actually paid money to the government for decades by way of property taxes?  The government may not be able to provide satisfactory justifications for not offering these people with alternative accommodation. <> 

But the same argument also demands that the occupants of these irregular structures will have to be resettled, rather than have the structures themselves regularised.  Says Sandip Vimadalal, a legal authority on the law and practice of conveyancing, “I think the government will have to regularise only those whose irregularities are minor that do not violate public space, or would have been regularised in the normal course.  But the structures that encroach on government or illegally trespass on someone else’s land will have to be demolished.” <> 

If not, there is a good chance of slum dwellers demanding that their stay on public land, including pavements, be regularised as well.  That would be frightening!  Just imagine if someone built a house whose bathroom window was just a foot away from your balcony and could get it regularised?  Or if your sea face view was suddenly blocked bbecause a politican has built his house right before it, and now demands that it be regularised!  Unthinkable! <> 

Then comes the issue of penalising the guilty.  And this is where the the courts will have to remedy a situation that keeps getting worse.  In other words the courts will ha ve to step in where the executive and the legislature have trampled on their own responsibilities. After all, the guilty can be easily identified by merely asking the question: How did the illegal structures come up?  <> 

I know from my several interactions with the Municipal Corporation that no illegal construction goes unnoticed by the ever-watchful eyes of the staff of the corporation.  A bit of rubble in the garbage bin will cause the municipal garbage cleaner to inform the ‘inspector’ in charge of the locality.  And he sniffs out the place where the rubble has come from with a deterity that would amaze even Scotland Yard.  He invariably finds out the source of the rubble – be it cement or fresh earth that has been dug up.  He then walks up to the contractor, architect or the owner of the premises and demands to see the letter from the Municipal Corporation which allows him to carry out the construction or even repairs.  If the letter exists, he walks away, or tries to discover another loophole in law that the contractor, architect or the owner may have  overlooked. <> 

If a violation of law is discovered, the municipal ‘inspector’ threatens to demolish it, unless he is persuaded to turn a blind eye.  Quite often, the ‘inspector’ himself shows the contractor, architect or the owner how to circumvent the laws.  Quite often, such discussions result in the ‘inspector’ demanding, and getting, a bribe.  Sometimes, the ‘irregularity’ gets ‘regularised’; sometimes it remains a flaw and is overlooked by the ‘inspector’ and his colleagues, provided the negotiated amounts are paid periodically.  Either way, the beat ‘inspector’ and the local ward officer (now called Assistant Municipal Commissioner in Mumbai) are responsible.  <> 

Yet, surprisingly, very few cases come to mind when irregular constructions have resulted in the dismissal or prosecution of the local beat ‘inspector’ or ward officer.  And, sadly, there are very few petitions – by individuals, organisations or NGOs – requesting the court to haul up the government to explain why a particular ward officer has not been hauled up, or even dismissed.  Thus, the beat ‘inspector’ and the ward officer go unpunished.  To ensure that the erring officer never gets punished, many of the ill-gotten the rewards are believed to be split among the local politicians, the local police and also the seniors in the Municipal Corporation.  <> 

What will be needed will be more petitions requesting the courts to ask the government to list out penalties meted out to officers who have committed sins of omission or commission in this respect during the past few decades.  There are, say lawyers, very strong grounds for initiating contempt of court proceedings against those who were supposed to take disciplinary action, but did not. Only then will people learn not to thumb a snook at the law. <> 

In fact, there are other issues too that need to be examined.  But that will be in my next column.