In this legal article we are going to discuss about associstion that How a common man can file a complaint against unwanted government construction like roads which is not needed at all?
Introduction:
The area under public lands in India is massive. Due to the unavailability of a comprehensive report on public lands, the exact monetary value is unknown. But fragmentary reports from different sources provide us with an idea. For eg, in Ahmedabad, Gujarat, 32% of the total land is with the Municipal Corporation of Ahmedabad. These lands serve as a major source of income for the government. For eg, around 13 hectares of land in the Bandra Kurla complex was leased out by the Metropolitan Mumbai Regional Development Authority (MMRDA) for roughly ten times its annual infrastructure budget at INR 5000 crores. But unauthorised construction on the public lands is creating huge losses for the government. Let us discuss how the problem of unauthorised construction can be reduced.
Making of Projects by the government
The construction industry in India does not subscribe to any standard form of construction contract, however, some of the commonly used forms include the suite of contracts published by FIDIC (International Federation of Consulting Engineers), ICE (Institution of Civil Engineers) and the model published by the IIA (Indian Institute of Architects). Governmental construction authorities, such as the National Highways Authority of India, employ their own standard form contract as per their departmental requirements, particularly for Public and Private Partnership projects. One standard FIDIC form extensively used in the Indian construction industry is the Plant and Design/Build Contract. Design-only contracts prevalent in India are majorly inspired by the FIDIC Conditions of Contract for Plant and Design/ Build (the FIDIC Yellow Book).
Besides the NHAI, several government departments such as the Public Works Department, Delhi Metro Rail Corporation, Indian Oil Corporation, National Building Construction Corporation, Central Public Works Department, etc. have their own standard form contracts.
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Management contracts are executed in the form of Engineering, Procurement and Construction Management Contracts. As the name suggests, such contracts are executed between employers and contractors, wherein contractors are hired to holistically manage the completion of a construction project while overseeing developments regarding engineering, procurement and construction of a project. Are there either any legally essential qualities needed to create a legally binding contract (e.g. in common law jurisdictions, offer, acceptance, consideration and intention to create legal relations), or any specific requirements which need to be included in a construction contract.
As per the Indian Contract Act, 1872
Indian Contract Act, 1872 – the “Act”). It is largely based on English Common Law. For any binding contract to come into existence, there should be an agreement between two or more parties who are competent to contract, and the parties must have entered into the agreement with their free consent, for a lawful consideration and a lawful object. These requirements are mandated by the Act (Section 10 thereof). As all other contracts, construction contracts must also satisfy the aforesaid requirements to be legally enforceable. Further, rudimentary requirements of a valid offer, followed by an acceptance of an offer, with the intention of entering into a legally enforceable agreement not void in law, are other essentials of a valid contract under the Act. Act provides, contracts need not be evidenced in writing, which similarly applies to all construction contracts.
What is Public Land:
Referred to. 3.5 Footpaths or pavements are public properties which are intended to serve the convenience of the general public. Supreme Court of India. Cites 36 – Cited by 593 – Full Document. Article 51A in The Constitution Of India 1949.
Examples of public domain land are the margins of the sea and of the rivers, roads, streets, railways, ports, military areas, monuments.
Difference between Public and Private land:
Public properties are land and buildings owned and directly managed by public authorities which are used for public purposes. Private properties are lands and buildings owned by individuals and corporations.
Forms of Laws Regulating Land in India:
It is a well-known fact that India is the world’s 7th largest country in terms of geographical area. But, the laws that govern and regulate this massive landmass is not so common knowledge. Laws such as Transfer of Property Act 1882, Real Estate (Regulation and Easement) Act 2016, Registration Act 1908, Stamp Act 1899, Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013 etc. affect the use of land in India. But on a general level.
These laws can be categorized as the following:
Laws relating to Zoning of Land:
Under the Zoning laws, an area is demarcated by bringing out ordinances, which specifies the specific use of land in that area or block. It is a tool for regulating certain areas for a particular use. This creates a functional real-estate market. It can be used as a tool by the government to increase or slow down the development of certain areas. In a Zoning ordinance, regulation specifications such as lot size, density or bulk, height, Floor Area Ratio (FAR) are mentioned. This allows the government to restrict incompatible lands being located in the vicinity of each other. A Zoning ordinance also specifies such permissions, which will be required, in case the permitted usage of land needs to be changed. For eg: If the owner wants to convert his residential property into commercial, he will be required to procure permission before doing so.
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Laws relating to the Subdivision of Land:
Under the Subdivision laws, information such as plot size, layouts, a process for using private land for public purposes and street improvements are included. The main difference between the Zoning laws and Subdivision laws is that the latter concerns itself with the use of land for the residential purpose for the major part. The Subdivision laws are a great tool for restricting the suburbanisation near heavily populated towns.
Laws relating to Building Regulation:
Building regulations as a term is self-explanatory. These are the laws that regulate the way a building is to be constructed. It prescribes the height limits, position, style of architecture etc. for a structure in a particular zone. It also prescribes different regulations for buildings built for different purposes. This helps the government agencies to differentiate between buildings on the basis of the purpose for which they are developed.The laws on Building regulation also regulate the maintenance requirements of a building. This helps in preventing the deterioration of the real estate in the area.
What is Unauthorised Construction:
A structure without proper clearances, or, a structure built in contravention of the prescribed norms, is not a legal structure. This process of constructing an illegal structure is called unauthorised construction. They are liable to be demolished by the government authorities. Before starting construction work on any property, there are various permits that are required to be obtained from the government, such as, Land Clearances, Zonal Clearances, Building Approval etc. You also need to show your title to the land on which the structure is to be built. A structure without proper clearances, or, a structure built in contravention of the prescribed norms, is not a legal structure. This process of constructing an illegal structure is called unauthorised construction. They are liable to be demolished by the government authorities.
Unauthorised Construction on Private Land:
This happens, when the construction is done on land or property by the legal owner of the said land or property, but in contravention of any of the provisions of law. It could be unauthorised in instances such as:
The person doing the construction didn’t get the required permissions from the government.The person doing the construction flouts the prescribed limits.
For eg :- A builder, who has permission to build a 4 storey building, builds two additional floors on top of the prescribed 4 stories. Here, he has exceeded the limits that were prescribed to him. The top two floors of the building would amount to unauthorised construction and will be illegal.
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The person doing the construction does not follow the guidelines prescribed by the government for the building’s structure-type :--
Unauthorised Construction on Public Land:
This happens, when the construction is being done on that land, the ownership of which does not belong with the person doing the construction, but lies with the government. This happens mainly due to the social factors that are prevalent in a country such as poverty, unemployment, large population etc.
Unauthorised Construction in India:
The problem of housing is a major problem in India. The country has been fighting these issues since Independence. The housing has become unaffordable in urban centers for the majority of the population due to rising costs. A large chunk of our population is still below the poverty line. This results in a lot of unauthorised construction. Some people get involved in the practice of unauthorised construction to save money involved in meeting with different compliance requirements while others do it because of poverty, unemployment and other social constructs. This has led to a situation where unauthorised construction has acquired a monstrous proportion.
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The Courts in India have repeatedly emphasised on the importance of planned development of cities in our country. They have always maintained a stern attitude towards unauthorised construction, terming it a ‘menace for our society’. The Courts have repeatedly given orders to demolish these unauthorised and illegal structures.
The Courts in India have repeatedly emphasised on the importance of planned development of cities in our country. They have always maintained a stern attitude towards unauthorised construction, terming it a ‘menace for our society’. The Courts have repeatedly given orders to demolish these unauthorised and illegal structures.
Now we would like to go through with somse case laws, for more light on our article by showing some cases regarding this issue so that the readers of our article may better understand my view!!
Civil Construction vs The Government Of India.
JUDGMENT by A.S. Anand , C.J.
Date:- 7 February, 1991
The court decides In view of the all discussion, the writ appeals fails and shall stand dismissed, but, in the circumstances there will be no order as to costs.
S. Nagarjuna Construction Co vs Govt. Of A.P. and Ors on 20 October, 2008
CASE NO:- CIVIL APPELLATE JURISDICTION , CIVIL APPEAL NO. 1438 OF 2004
DATE OF JUDGMENT: 20 October, 2008
BENCH:- Arijit Pasayat, P. Sathasivam
After going through all the matter of this case, the impugned order of the High Court. The matter is remitted to the State Government to re-consider the matter after supplying to the appellants copies of reports/inspection notes on which the Department case rests. It shall also consider the effect of the concession made by the Department in the earlier rounds of proceedings before the High Court.The appeals are allowed but without any order as to costs.
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Conclusion:-
On the basis of my above research, we agree with all the cases and the content we mentioned. On the most intimate and personal matters concerning in our day today’s life, each individual ought to be free to make his or her decisions against the government too in the matters where the public is right. they know without telling them what they can and cannot do.
While there is controversy over a so-called legal right to complaint for any thing around their surroundings where they see any unwanted construction to be found that is unwanted by public and still is done by Government. In our country every common man has right to speak against the wrongfull things. And if they any wrong thing which are done by the government too, then also they can take stand for themselves and go for the justice.
This article written by Legal Advisory Interen Ms. Vaishali Pal, She is 3rd-year law student at Amity University, Patna
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