2017 (3) TMI 1720 - HC - Indian Laws

Grant of leave to the State Government to implement the policy of regularization of unauthorized/illegal structures in existence as on 31st December 2015 in the entire State. Held that - While considering the applications for grant of development permission (for construction of buildings) made under section 44 of the MRTP Act, the Planning Authority shall have due regard for the provisions of the draft or final Development Plan made under section 22 - On the basis of an application for regularization, an illegal structure which could not have been otherwise permitted in accordance with the provisions of the MRTP Act or other statutes or DCR cannot be regularized. This Court relied upon a decision of the Apex Court in the case of Mahendra Baburao Mahadik and others v. Subhash Krishna Kanitkar and Others 2005 (3) TMI 806 - SUPREME COURT OF INDIA . The Apex Court in the said decision has held that while considering an Application for regularization under the MRTP Act, no action can be taken by the Planning Authority contrary to the provisions of the MRTP Act and, therefore, it follows that regularization cannot be permitted contrary to the building bylaws or DCR which are framed under the MRTP Act. The impact assessment study ought to have been made before taking a policy decision. As held by this Court in the earlier order, regularizing a large number of illegal buildings which offend DCR will completely destroy the concept of Town Planning for which MRTP Act has been enacted. It will destroy the concept of Development Plan which is being implemented under the MRTP Act. The draft policy which seeks to provide regularization of illegal buildings contrary to the express provisions of MRTP Act and Rules and Regulations including DCR framed thereunder as well as other Statutes such as the Maharashtra Land Revenue Code, 1966 is arbitrary and illegal - we decline to grant leave to the State Government to implement the draft policy with the first Annexure thereto. No case is made out for granting leave as provided in Clause (xx) of the operative part of the order dated 28th, 29th and 30th July 2015.

Summary

Issues Involved:
1. Legality of the State Government's policy for regularization of unauthorized/illegal structures.
2. Constraints on the power of the Writ Court to interfere with policy decisions.
3. Compliance of the proposed policy with the Maharashtra Regional and Town Planning Act, 1966 (MRTP Act) and Development Control Regulations (DCR).
4. Potential impact of regularizing unauthorized constructions on urban planning and civic amenities.
5. Specific objections raised by the Navi Mumbai Municipal Corporation (NMMC) and other authorities.

Detailed Analysis:

1. Legality of the State Government's Policy for Regularization of Unauthorized/Illegal Structures:
The State Government sought leave from the Court to implement a policy for regularizing unauthorized constructions existing as of December 31, 2015. The policy was annexed to an affidavit and included three parts: regularization in urban areas, amendments to the MRTP Act, and administrative measures for controlling unauthorized constructions. The Court had previously rejected a similar application in April 2016, deeming the draft policy arbitrary and contrary to Supreme Court decisions.

2. Constraints on the Power of the Writ Court to Interfere with Policy Decisions:
The Court acknowledged the limitations on its power to interfere with policy decisions under Article 226 of the Constitution of India. It cited the Supreme Court's decision in "Ekta Shakti Foundation vs. Government of NCT of Delhi" which held that policy decisions should not be interfered with unless they violate statutory provisions, fundamental rights, or the Constitution.

3. Compliance of the Proposed Policy with the MRTP Act and DCR:
The Court examined the proposed policy's clauses and found several inconsistencies with the MRTP Act and DCR. For instance, Clause 5 of the draft policy stated that in case of conflict, the MRTP Act and other laws would prevail. However, the Court found that various subclauses allowed for regularization of constructions even in prohibited areas, which was contrary to the MRTP Act and DCR. The Court highlighted that unauthorized constructions on public lands or reserved lands could not be regularized without violating statutory provisions.

4. Potential Impact of Regularizing Unauthorized Constructions on Urban Planning and Civic Amenities:
The Court emphasized that regularizing a large number of unauthorized constructions would undermine the concept of planned development and place a burden on civic amenities. It cited the Supreme Court's observations in "Deepak Kumar Mukharjee vs. Kolkata Municipal Corporation" and "Friends Colony Development Committee vs. State of Orissa" which stressed the importance of adhering to planning laws to avoid hazardous conditions and ensure orderly development.

5. Specific Objections Raised by the NMMC and Other Authorities:
The NMMC raised objections to the proposed policy, arguing that it would nullify efforts made over 45 years for planned development in Navi Mumbai. The objections included concerns about safety, structural stability, and the impact on public amenities. The Court agreed with these objections, noting that the existing legal framework already allowed for regularization of constructions that complied with the MRTP Act and DCR.

Conclusion:
The Court concluded that the proposed policy was arbitrary, illegal, and violative of Article 14 of the Constitution of India. It held that the policy sought to regularize illegal constructions contrary to the MRTP Act and DCR, thereby undermining the concept of planned development. The Court declined to grant leave to the State Government to implement the draft policy and emphasized that only those constructions that complied with existing laws could be regularized.

Orders:
1. Leave to implement the draft policy was denied.
2. The policy's rejection was subject to the Court's observations.
3. Further compliance and directions were scheduled for a subsequent hearing.

This comprehensive analysis preserves the legal terminology and significant phrases from the original text, ensuring a thorough understanding of the judgment.