Who is responsible for safety at construction sites, asks Pune as builders say no action against them

CM Fadnavis has assured city builders that they won’t be booked for negligence or culpable homicide in case of deaths of labourers at construction sites. But labour unions have opposed the move stating that it would further deteriorate implementation of safety measures at sites

pune Updated: Jul 20, 2018 15:06 IST
Nadeem Inamdar
Nadeem Inamdar
Hindustan Times, Pune
Pune,Mofa,Rera
According to builders, accident-related offences must be treated purely as an accident and not as a criminal offence. (Pratham Gokhale/HT Photo)

With builders seeking protection from police cases against them for accidents occurring on construction sites, residents and citizen activists have now raised concern over who will guarantee safety at construction sites. Real estate developers in Pune maintain that they should not be booked in criminal offences under the Indian Penal Code (IPC) and the Maharashtra Ownership of Flats Act (Mofa), citing that it has become a tool in the hands of Right to Information (RTI) activists to blackmail builders and file false cases against real estate developers.

REAL ESTATE DEVELOPERS vs LABOUR UNIONS
WHAT IS THE ISSUE
According to builders, accident-related offences must be treated purely as an accident and not as a criminal offence. Real estate developers in Pune maintain that they should not be booked in criminal offences under the Indian Penal Code (IPC) and the Maharashtra Ownership of Flats Act (Mofa), citing that it has become a tool in the hands of Right to Information (RTI) activists to blackmail builders and file false cases against real estate developers.
However, labour organisations have termed the move as "changing the law" and added that they will take legal recourse against the move.
Number of Mofa cases
Why builders oppose the act
Builders maintain that since the Maharashtra Real Estate Regulatory Authority is already in place, there is no need for booking builders or criminally prosecuting them under Mofa.
What is an offence under Mofa?
1
Any promoter guilty of contravention of Section 3 (general liabilities), Section 4 (registration of agreement), Section 5 (maintenance of separate accounts for deposits), Section 10 (formation of society or company) or Section 11 (conveyance of title) shall, on conviction, be punished with a term up to three years and/or a fine.
2
Any promoter who commits a criminal breach of trust with respect to any advance or deposit given to him for specified purposes shall, on conviction, be punished with a term up to five years and/or a fine. The penalty for contravening any other provision of the Act, on conviction, is a term of up to one year and/or a fine of up to Rs 10,000.
What is Mofa?
The Maharashtra Ownership of Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963, popularly known as Mofa, was repealed by Section 56 of Maharashtra Housing (Regulation and Development) Act 2012, which came into force on September 6, 2015.
What the Act entails
1
The Maharashtra Ownership of Flats (Regulation of the Promotion, Construction, Sale, Management and Transfer) Act, 1963 (Mofa), has been enacted to regulate the promotion, construction, sale, management and transfer of flats sold on an ownership basis within the state of Maharashtra.
2
Mofa is an important piece of legislation as it lays down the responsibilities of real estate developers/builders with respect to flats sold by them and conversely, the rights of flat purchasers within the state.
3
Introduced in the legislative assembly, with an aim to protect the interest of flat purchasers. It promotes transparency and discipline in transactions related to flats by putting a check on malpractices
4
In cases of accidental deaths on construction sites, real estate developers get booked under Section 304(A) of the Indian Penal Code (IPC). Similarly, police can also file FIRs against developers under MOFA.
Maha-Rera
The government of India enacted the Real Estate (Regulation and Development) Act 2016 (Rera Act) to ensure transparency and efficiency in real estate sector with regards to sale of plots, apartments, buildings or real estate projects along with protecting the interest of consumers in the real estate sector.
1
The act also ensures the establishment of adjudicating mechanisms for speedy dispute redressal as well as establishing appellate tribunals to hear appeals of the decisions, directions or orders of the Real Estate Regulatory Authority (Rera).
2
The Pune division encompasses the cities of Satara, Sangli, Solapur, Kolhapur and Ahmednagar. The Aurangabad dSSivision includes Nanded, Parbhani, Hingoli, Osmanabad, Latur and some smaller nearby districts.

Builders’ organisations and Pune police maintained that the number of criminal cases being lodged against real estate developers for accidents at construction sites, under different Sections of IPC, have gone up considerably, leading to rising concern in the construction business fraternity.

According to builders, accident-related offences must be treated purely as an accident and not as a criminal offence. However, labourer organisations have termed the move as “changing the law” and added that they will take legal recourse against the move.

The developers recently met chief minister Devendra Fadnavis and BJP chief Amit Shah, raising the issue of unnecessary action being taken against them by police under IPC for accidents happening at construction sites. Marathi Bandhkam Vyavasayik, a builders’ body, demanded that the practice of registering first information reports (FIR) against them in accidents at construction sites should be stopped. The builders also demanded that no action be taken against them under Mofa in such a case.

Similarly, offences under Mofa too have witnessed a significant rise after aggrieved residents have started lodging cases under the Act. Statistics available with the Pune police commissionerate state that the total number of Mofa cases registered against builders was 26 in 2016, 32 in 2017 and 35 in 2018 (till date), which is a clear indicator of the increasing number of cases being lodged against builders by residents.

Nitin Pawar, general secretary, Bandhkam Mazdoor Sabha, Maharashtra state, said that the principal employer, which is the builder, is responsible for the safety and securityof labourers employed at construction sites. “Action must be taken wherever safety and security measures are not observed. Action must be taken against the principal employer, whois responsible for the overall safety at construction sites. The builders should not just seek profits, but must think about the welfare of their employees. The common labourer is not getting justice because of a strong builder lobby which is denying them their rights by pulling the levers. They said that they will not allow a a change in the law and if need be, will approach court over the issue. The contracts with the labourers are signed in such a way that they will never get adequate compensation and justice,” said Nitin Pawar.

Pankaj Dahane, deputy commissioner of police (crime branch ), said that Mofa offences come under the economic offences wing (EOW) of the crime branch. “The cases are lodged under Mofa by the citizens at their respective police stations or via complaints sent to EOW ,” he said.

Gajendra Pawar, former president of Marathi Bandhkam Vyavasayik Association (MBVA), demanded that no action be taken against real estate developers for negligence and culpable homicide under Section 304 IPC (homicide), before Fadnavis said that developers must not be booked under Sections of IPC.

“The real estate developers comply with all the laid down norms and appoints architects, project managers and inspectors for the construction work. Most of this is outsourced. When they are booked under the provisions of IPC, especially Section 304 in case of accidental deaths, then it amounts to untold harassment of builders for no fault of theirs,” Pawar said. He added that there is no need for invoking Mofa Act against the builders when Rera act is already in place.

Pawar further explained that builders can be fined and the necessary compensation be taken from them, but filing criminal cases under IPC results in mental harassment of builders and the industry as a whole.

“Of late, Mofa is being used by RTI activists to blackmail builders over flimsy reasons and settle personal scores. I have requested CM to look into the issue and he has taken a positive view of the issue. He assured us that prompt action will be taken, wherein the builders will not be booked under the Act and an incident like an accident will be taken down as an accident and not a criminal offence,” he said.

He added that CM Fadnavis has promised that a fresh government resolution regarding the same will be issued after the end of monsoon session. The DGP office had earlier issued directions to all police stations in the state to promptly register offences against builders under Mofa Act.

First Published: Jul 20, 2018 15:00 IST