By Abhishek Mohanty, WBNUJS
Editor’s Note: This paper discusses the case of Esha Ekta Apartments Co-operative Housing Society v. Municipal Corporation of Mumbai or more famously known as the Campa Cola Case.
“The essence of law lies in the spirit, not its letter, for the letter is significant only as being the external manifestation of the intention that underlies it” – Salmond
The case before the court is a tedious one which has come before the court through a Special Leave Petition filed by the residents of Campa Cola society. The plot of land in question, Plot 9, Scheme 58, Worli, Mumbai was leased out by Municipal Corporation of Mumbai to M/s Pure Drinks in 1962 as ‘General Industrial’ land. However, after 16 years, the company chose to build residential buildings and applied for change of status of land to ‘Residential’. Although permission was obtained for raising the height of the buildings, the revised building plans were rejected by the Planning Authority. Henceforth, the builders were served with ‘stop work notice’ in 1984 with warnings of forcible eviction, but surprisingly no action was taken by the authorities to implement the warning. Subsequently, the purchasers entered into agreements with builders to take possession of the property and with the knowledge that the flats were illegal. The presence of knowledge has been verified by both the trial court and the High court and hence is not in contention anymore. The apartment complex came under the glare of BMC in 1999, when one of the societies of the block decided to apply for water supply and subsequent regularization. When the issue of regularization came before the courts, the courts refused to entertain any such pleas and allowed BMC to take whatever steps it deems necessary. BMC issued notice under Section 351 of BMC Act and sought to demolish the illegal structure. Both the issues of regularization and demolition were decided against the residents and hence the issues have been brought before this court today.
By the powers vested in me by our Constitution, I am in a position to decide on the fate of the 140 odd families who would be rendered shelterless if I decide to uphold the orders passed by the lower courts which have been decided on the basis of black letter of law. However, the idea of justice requires me to consider moral principles. Natural law theory believes that a law is truly law only when it conforms to principles of justice and morality. The truths of natural law are not based on any random assumptions but can be ascertained by man through the exercise of reason. I echo the sentiments of Pollock who argued that :
“Our courts have to go on making a great deal of law, which is really natural law, whether they know it or not for they must find a solution to every question that comes before them, and general considerations of justice and convenience must be relied on in default of positive theory.”
The actions of BMC in the whole sequence is conspicious. After issuing a stop work notice in 1984, it turned a blind eye to the unauthorized construction done by the builders. There is reasonable doubt that that the then officials connived with the builders and did not pay any heed to the issue. By ordering demolition of the building, the BMC is avoiding its own liability by overlooking its wrong which was taking prompt steps to stop the construction. Had the officials then acted in the haste they are showing now, there would not have been any illegal building and this whole fiasco could have been avoided.
Owning a house is still a cherished achievement for many Indians. The residents in question were given a chance to achieve this with the housing project where they received the property at a reduced price. Further, they were also led to believe by the builders and promoters that their society would be regularized later. Loans were also disbursed on the basis of the papers given to builders. Even the huge period of inaction by the BMC which has been pointed out earlier would have led them to believe that there has been some kind of condonation. If media reports are to be believed, BMC had even agreed for regularization but inexplicably chose not to go along with it. It is pertinent to note that the residents did not face any issue whatsoever until one society Midtown Apartments Cooperative Housing Society applied for water supply.
A house is not merely a structure of four walls. It has a deep emotional element attached to it. A house can be termed as ‘primary goods’ under the concept developed by Rawls. Primary goods are defined as the things with more of which men can generally be assured of advancing their ends, the things that are required for the execution of their rational plans. A house is where a person has the opportunities to grow physically, mentally and spiritually. Even the Supreme Court has recgonised the importance of housing by recognizing right to shelter as an integral part of all-encompassing Right to Life under Article 21 in the landmark cases of Olga Tellis v. Bombay Municipal Corporation and Chameli Singh v. State of Uttar Pradesh. India is also a signatory to International Convention on Economic, Social and Cultural Rights(ICESCR) which places an obligation on India to fulfill the needs of housing and show that its realization is progressive. The convention and this court’s reading of importance of housing underscore the centrality of houses in one’s life. By ordering for demolition of the homes of the residents for illegality conducted by the builders and promoters, it would take away a very essential part of the lives of so many people.
Purposive interpretation is a product of the mischief rule of interpretation as established in Heydon’s case. It looks into the purpose for which the act was enacted and hence it differs from golden rule and literal rule. In the fictitious case of Speluncean Explorers, Judge Foster made an important argument regarding ‘purposive interpretation’. The legislation even when accepted, should be subject to intelligent scrutiny by the courts.
It is in the opinion of the Court that the relevant statute i.e. BMC Act of 1988 has the intended purpose of making the builders/developers of any illegal building liable. Section 351 which has been used by the Municipal Corporation comes in Chapter XII of the Act. In Chapter XII, all the provisions relate to ‘person who shall intend to erect a building’ or the like. Even the notice under Section 53(1) was served to the developers and not the residents, which is evidence of the intent of the administrative machinery to penalize the violators which are the builders in this case. Hence, there is no reason why the consequences of such a section should be borne by the residents who are not the subject matter or intended targets of the legislation.
The precedents which have been presented by the defendants to support their case have a distinction with the present case. In all the other cases, the builders were also a party to the suit. Infact, in the Friends Colony judgment, the court said that the purchasers must be compensated by the builder. However, in this case the real perpetrators have been let free by the authorities.
The question now comes to how should the illegal act be punished. In my personal opinion, I treat punishment as an utilitarian tool as was propounded by Bentham. Any punishment should be judged on what pleasure or pain it produces. It is the utilitarian belief that where the mischief can be prevented at cheaper rate, one should not be harsh in one’s punishment. Here, there is to be a balance between allowing the large number of lives to remain in their houses or decide on the long term considerations of town planning and hazards of illegal construction.
If we look into the consequences of demolition, they are: one, rendering the residents homeless and two, the land will go back to developers. The only beneficiaries of the demolition will be builders since the plot has not yet been convened to the society and hence would return to M/s Pure Drinks. This would serve as a double jolt to the residents who are fighting for the roofs on their heads. Keeping all this in mind, I am inclined to decide for the residents considering that the perceived long term benefits caused by demolition are not as imperative nor imminent than the good achieved by allowing the structure to continue standing. In this case, only residents are paying for the builders’ illegalities. The actual perpetrators of the crime, the builders and the authorities have gone scot-free.
Under the Maharashtra Regional and Town Planning Act 1966, Section 52 prescribes the penalty that Planning Authority can levy for unauthorized development of land otherwise than in conformity with development plan. Section 53 empowers it to require the wrongdoer to remove unauthorized development which can only be used after following principles of natural justice. Subsequent sections allow stopping of unauthorized development, remove or discontinue unauthorized development summarily. The counsel for the petitioners have submitted that the information gathered through a RTI application reveals that with the payment of the compounding fee, 86 of the 102 flats which were supposed to be demolished can be saved. I would direct that since there is a provision for punishing the illegality through penalty and demolition is only the next option, in this case, there should not be any demolition and appropriate penalty must be collected from the builders.
Article 142 provides for the Supreme Court powers to do complete justice. There is a small restriction on the powers of Supreme Court in the exercise of Article 142 that it should not be used to ‘supplant’ any substantive law. Article 142 can be used to fill in the legislative gap if the legislature or the executive fails to perform its responsibility. The court recognizes that there is no provision which can be used for condonation of illegal or unauthorized structure. However, there is no express bar on such regularization. So, using the powers to do complete justice will not run counter to any provisions of the act and would still hold as good law. Hence, the court directs regularization of the Campa Cola society.
However, it is important to note that this case should not act as a precedent for any such future cases relating to illegal construction. The courts should find wisdom and strive to decide such extraordinary cases on a case-to-case basis.
Edited by Hariharan Kumar
 Dr Avtar Singh, Introduction to Jurisprudence (2nd, Wadhwa and Company, Nagpur, New Delhi 2006) 74
 Frederick Pollock, Essays in Jurisprudence and Ethics (1st, Nabu Press, London 2010) 19,23
 Express News Service, ‘Campa Cola compound: All about the case and the lessons we can take home’ (The Indian Express 2014) <http://indianexpress.com/article/india/india-others/campa-cola-all-about-the-case-and-the-lessons-we-can-take-home/> accessed 12 August 2014
 Linah Baliga, ‘Only builders will gain from demolition: Campa Colony society resident’ (The Times of India 2013) <http://timesofindia.indiatimes.com/city/mumbai/Only-builders-will-gain-from-demolition-Campa-Colony-society-resident/articleshow/23927235.cms> accessed 12 August 2014
John Rawls, A theory of justice (Harvard University Press, Cambridge 1999) 62
 Olga Tellis v. Bombay Municipal Corporation  2 SCR 365
 Chameli Singh v. State of Uttar Pradesh AIR 1996 SC 105
 Heydon’s Case  3 CO REP 7a
 Lon L. Fuller , ‘The Case of the Speluncean Explorers’  Harvard Law Review Vol 62 No 4
 Supra, note 5
 Friends Colony Development Committee v. State of Orissa (2004) 8 SCC 733
Jeremy Bentham, An introduction to the principles of morals and legislation (Universal Law Pub. Co Ltd, New Delhi, 2006) 51
 Supra, note 5
J. Venkatesan, ‘Supreme Court refuses to stay demolition of Campa Cola flats’ (The Hindu 2014) <www.thehindu.com/news/national/supreme-court-refuses-to-stay-demolition-of-campa-cola-flats/article6079479.ece> accessed 11 August 2014
 Bharat Sewa Sansthan v UP Electronic Corpn. Ltd. (2007) 7 SCC 737
 Vineet Narain v Union of India (1998) 1 SCC 226