Measure for measure: Enforcing building regulations

Measure for measure: Enforcing building regulations
By Xerxes Desai
The Times of India


The angry reaction to the BMP’s recent demolition by violators in Koramangala should be cause for concern. Clearly, no city can aspire to be livable and likable if the citizens feel free to build as they please. Also, the consequences of several decades of unbridled construction cannot be countered in one swoop. Where does the solution lie?

It seems that most buildings have violated regulations in one respect or the other. That past violations simply must be rectified and that future violations must be prevented

should be beyond debate. What needs to be debated, however, is how that should be done. What can be done in respect of violations that primarily impact others?

Perhaps the first step should be to announce a voluntary disclosure scheme, like the income-tax department does to unearth black money. This could be kept open for a reasonable period of time — with relatively mild monetary penalties and time for remedial action. Such a scheme could also be accompanied by a scheme for mandatory declarations by officers of the BMP and the BDA of violations known to them.

We could undertake a complete survey of all buildings to determine who has neither complied nor confessed — and to take harsher action. Unfortunately, this is unlikely to happen as we don’t have the resources.

What we could do, however, is to appoint an adequate number of, say, “commissioners” who would be empowered to act on complaints or on information. Their role would resemble that of the economic offences wing and the enforcement directorate.

We can reward citizens whose complaints lead to successful outcomes, yielding revenue. Of course, safeguards would have to be provided against malicious complaints.

What sort of corrective measures should be applied? They could be of three kinds: Imposition of monetary penalties, rectification of the compliance failure, and, as the last remedy, deprivation, whether by demolition or confiscation.

It is important to recognise that there will be quite a range of sins of omission and commission and that we would, therefore, need a range of monetary penalties to deal with them. Thus, land use, built-up area, parking space and pollution control violations would be more severely dealt with than failure, say, to provide sufficient set-backs or observe height restrictions. Also, lower monetary penalties would be imposed per unit transgressed where the measurable magnitude of the offence is small and harsher monetary penalties would be levied per unit for offences of a greater magnitude.

Rectification work to conform to regulations is almost a sine qua non, but exceptions could be considered.

Land use violations would normally involve restoration of the legally permissible use within a reasonable period of time, with rare exceptions made where there is a distinct benefit for the neighbourhood and acknowledged by it — provided, however, that it does not cause hardship and nuisance to those who live or work in close proximity.

Invariably, demolition should be the option of the last resort. Using demolitions as a primary instrument frustrates the objectives of justice. Monetary penalties and compounding payments should suffice. Demolition may also not be needed for wrongful land use if the premises can be reverted to their permissible use. Even for major floor space violations that cannot be allowed to be compounded, confiscation of the extra space for the benefit of the community or the option of simply denying usage without demolishing could also be considered. The guiding principle should be to conserve even illegal assets that are not otherwise a problem, while ensuring that the benefit of these assets accrues to society and not the erring owner, who, in fact, would face stiff penalties.

While penalties need to be imposed related to the nature and magnitude of the offence, it is also important to take into reckoning who committed the offence. Was it a corporation or some ignorant individual misled by a licenced but licentious architect? I submit that monetary penalties and time periods allowed for completion of corrective action should vary with the category of offender: get toughest with corporates, less so with cooperatives, societies and partnerships, least tough with proprietorships and individuals. Again, it is not enough to move against owners. Architects, engineering consultants and contractors must also be held accountable.

Last, but certainly not the least, in my scheme of things is the accountability of the enforcement agency. It is essential that erring officials are brought to book. Here again, penalties would have to be proportional to the offence, possibly mitigated to some extent by the degree of cooperation in the clean-up process. It is also essential that these processes are visible to the public.

Is there a will to do all this? Is not the draft comprehensive development plan prepared by the BDA in fact a solemn act of forgiveness for the sins of the past? Are not its claims of taking “market realities” into account and providing “structure” to the market’s need for “continuity” no more than acquiescence, if not connivance? If the elected representatives of the people or officialdom ignore the very laws they made, can citizens be organised and motivated to precipitate observance or even reform? After all, governments do fall when the cry for reform is ignored. Fortunately for us, we still have law courts of repute and judges to whom we can turn to uphold the rule of law and the basic principles of justice.