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TMI Blog2017 (3) TMI 1720X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. - PUBLIC INTEREST LITIGATION NO.80 OF 2013 ALONG WITH CIVIL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 3rd March 2017 filed by Shri Sanjay Balkrishna Saoji, the Deputy Secretary of the Urban Development Department in which suggestions of the Planning Authorities have been set out and the response of the State Government on the said suggestions is also set out. 5 The learned Advocate General has taken us through the policy of regularization proposed to be implemented by the State Government which is annexed to the affidavit of Shri Avinash B. Patil dated 29th July 2016. By the same affidavit, leave of this Court is sought to implement the said policy. Exhibit1 is the copy of the said policy. There are three parts of the Exhibit1. The first part of the policy is described as the Policy for Regularization of Unauthorized Construction in Urban Areas. Annexure A contains salient features of the Draft policy in the matter of regularization of the unauthorized structures. Annexure B contains proposals for amendment to the Maharashtra Regional and Town Planning Act,1966 (for short `MRTP Act') for preventing unauthorized constructions. Annexure C contains the administrative measures proposed for controlling unauthorized constructions. 6 The learned Advocate General invited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention to clause 4 of Annexure A to the policy which provides that the proposal for regularization in such cases can be considered only after no objection certificate is issued by the Competent Officer of the land owning Authority. Inviting our attention to the other clauses of Annexure A, he submitted that the object of the policy of regularization is not to encourage the illegally but to ensure that the Planning Authorities do not exercise the wide power of regularization vesting in them arbitrarily. He urged that as nothing would be done contrary to the MRTP Act and DCR, no fault can be found with the policy. He invited our attention to the proposal to amend the MRTP Act and to confer a very drastic power on the Planning Authorities to demolish the patently illegal structures with the prior notice of 48 hours. He submitted that an amendment is proposed to be carried out for conferring a power on the Authorities to seal the machinery used for construction and the construction material at the site when a stop work notice is issued for stopping the work of illegal building. He submitted that even the administrative measures incorporated in Annexure C will strengthen the hands of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aised by the Municipal Commissioner of the NMMC is that there is already a a provision available under the statute in the form of section 53 of the MRTP Act under which an application can be made by taking recourse to section 44 for retention of an unauthorized construction. In the objections, he has stated that an unauthorized construction can be regularized provided it is in conformity with sanctioned DCR of NMMC. He has stated that the MRTP Act has been enacted to ensure the orderly and planned development of the State. He pointed out that the exercise of setting up a planned city of Navi Mumbai has been undertaken for last 45 years. The Commissioner has stated that if unauthorized constructions which have come up in unplanned manner and which are in conflict with DCR and MRTP Act are regularized, all the efforts made for planning of Navi Mumbai during last 45 years will go in vain. The third objection is that major chunk of the lands in the NMMC area except Gaothan is owned by CIDCO and MIDC. He has stated that without ownership or title, illegal constructions have been made on the public properties. Thirdly, he has stated that gaothans have been developed in haphazard manner w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ile dealing with the case of illegal constructions in Pimpri Chinchwad Municipal Corporation, he submitted that the citizens who were legitimately occupying the lawfully constructed structures cannot be deprived of civic amenities as such large scale illegal constructions have put pressure on the civil amenities. 12 The learned counsel for the applicants in Civil Application Nos.80 of 2016 and 54 of 2016 have supported the plea of the learned Advocate General. The contention raised in the Civil Application No.80 of 2016 is that Public Interest Litigation itself is not maintainable. 13 We have given careful consideration to the submissions. As far as the constraints on the power of a Writ Court to interfere with the policy decisions are concerned, the law is well settled. We may note here that in paragraph 11 of the decision of the Apex Court in the case of Ekta Shakti Foundation (supra), it was held that the scope of enquiry in such matters must confine to the question whether the policy decision is against the express statutory provision or is violative of fundamental rights of the citizens or is opposed to the provisions of the Constitution. The law is equally well settled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons framed thereunder can be regularized. Clause 6 provides that the respective Planning Authority shall publish a notice in the newspapers in widely circulated areas for inviting applications for regularization. Clause 8 lays down that an application for regularization shall be considered having regard to the provisions of section 46 read with section 22(m) and section 143 of the MRTP Act. Clause 9 provides retention of the structures by charging and recovering premium/penalty or compounding charges from the applicants as specified in Annexure A, B and C. 16 We may note here that the aforesaid clauses 5 to 9 cannot be read in isolation and the same will have to be read with Annexure A which contains salient features of the draft policy in the matter of regularization of unauthorized structures. 17 Before we advert to the Annexure A, the relevant provisions of MRTP Act will have to be considered. Section 22 deals with the contents of a Development Plan. Clause (m) of section 22 reads thus: 22. Contents of Development Plan:A Development plan shall generally indicate the manner in which the use of land in the area of the Planning Authority shall be regulated, and also indic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill the Development Control Regulations for such area are sanctioned: Provided further that, if such area does not have draft or sanctioned Regional plan, then Development Control Regulations applicable to the area under any Planning Authority, as specified by the Government by a notification in the Official Gazette, shall apply till the Development Control Regulations for such area are sanctioned.] 18 Thus, it is very clear 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. By way of illustration, if a plot is reserved in a draft or sanctioned Development Plan for a school building or hospital building, the construction of a building which is to be used for other than school or hospital cannot be permitted in view of express provisions of section 46 which are mandatory in nature. 19 On conjoint reading of section 44 and section 53 of the MRTP Act, we find that there is a provision in the form of subsection 3 of section 53 which permits applications bein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an be regularized. Subclause 1(ii) of Clause A implies that in ecologically sensitive area like hill slope having slope greater than 1.5, CRZ mangroves, forest etc shall not be regularized. Thus, subclause 1(i) of Clause A provides that even an unauthorized construction is within rivers, canals, tanks, blue flood line, defense zone and on dumping grounds can be regularized provided no objection certificate of the Competent Authority is produced. In fact, under section 20 of the Maharashtra Land Revenue Code,1966 the lands below rivers, tanks etc vest in the State Government. No DCR can permit such construction. Therefore, the constructions made contrary to the provisions of DCR can be regularized subject to no objection certificate issued the Competent Authority. Therefore, subclause 1(i) of clause A is completely contrary to the provisions of the MRTP Act and the DCR. The same is the case with subclause 1(ii). 23 SubClause 2 of Clause A does not pose any difficulty as it provides that structurally unsafe unauthorized constructions cannot be regularized. Even otherwise, under the existing law, such constructions cannot be regularized. SubClause 3 of Clause A provides that regula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is sought to be allotted. Thus, if this part of the policy is implemented, there will be virtually an allotment of the public property in favour of the person carrying on illegal construction thereon without following a fair and transparent procedure. Thus, the underlying object of the subclause 5 appears to be to enable the persons who have carried out illegal constructions on public property to apply for regularization and to get the public property transferred in their names. There is no law which permits unauthorized constructions to be carried out by encroaching upon on the lands vesting in the State Government or Central Government or in the public authorities. The law is that any attempt made to dispose of the said public property without following a fair and transparent policy is violative of Article 14 of the Constitution of India. 25 SubClause 4 of the Clause A suggests that in a given case, the Government or the other public authorities will be entitled to transfer the land vesting in it in favour of a person who has carried out unauthorized construction thereon. The allotment of a public property to an encroacher without following a fair and transparent procedure wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble, FSI should be allotted to the extent of 75% of the basic FSI unless the open space reduction is to the extent of 10% of the open space requirement. Thus, SubClause A(iii) of clause C suggests that even if unauthorized subdivisions cannot be regularized for want of adequate open space as required by the Rules, the construction can be regularized by reducing FSI. Thus, subclauses A(ii) and A(iii) of clause C provide for regularization of the unauthorized subdivisions of plots which is completely contrary to the DCR. We may note here that before an agricultural land is put to use for a nonresidential purposes, a prior permission under the Maharashtra Land Revenue Code, 1966 is required. Therefore, SubClauses A(ii) and A(iii) of clause C will be contrary even to the Maharashtra Land Revenue Code,1966. Subclause A(i) of clause C provides that unauthorized constructions of buildings which are as per the DCR but not having development permission from the authorized Officer of the authority can be regularized by charging one time penalty. As stated earlier, if unauthorized construction is made without obtaining development permission from the Planning Authority and if it is otherwis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat in case of buildings in Gaothan, even if the width of the road is not as per DCR, the buildings should be regularized. The same thing is suggested in cases of areas outside the Gaothan. Subclause G seeks to allow relaxation of the plinth area or ground coverage area. Subclause G of Clause C suggests that the plinth area/ground coverage area can be relaxed even if it is not permissible under DCR. Subclause H seeks to compromise on parking area. It suggests that if adequate parking area as per the DCR is not available, concession should be given contrary to the DCR by charging premium equal to 20%. Under Subclause I, there is a proposal to grant relaxation of the provisions of the DCR upto 30% in respect of the width of staircases, width of passage, balcony, terrace, etc. Under Subclauses J,K,L and M, it is provided that for regularization, No Objection Certificates from various authorities named therein will be necessary. Even without any such policy, illegal buildings can be regularized in terms of DCR. The regularization requires NOCs from the concerned departments. Subclause N deals with the requirement of obtaining structural stability certificate/NOC from the authorized off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RTP Act or DCR or are arbitrary being violative of Article 14 of the Constitution of India. In fact, the law on this aspect has been elaborately discussed by this Court while passing the order dated 26th and 27th April 2016. Paragraphs 15 to 18 of the said order read thus: 15. We must note here, which we have noted in the earlier part of the order, that the State Government wants to implement this policy of regularization within four corners of existing municipal laws. All the Municipal Corporations and Municipal Councils as well as CIDCO and MIDC are Planning Authorities within the meaning of MRTP Act. Under MRTP Act, there is only one provision for regularization which is in the form of Section 53. Under the MRTP Act the word development is assigned a very wide meaning which includes construction of buildings. SubSection (1) of Section 53 requires a planning Authority to issue a notice when construction or development is carried out in violation of Section 52 of the said Act. Section 52 covers development carried out in following cases (a) where development is carried out without permission; (b) where development is not in accordance with any permission granted or in contrave ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the sanctioned Development Plan, as can be seen from Section 22 of the MRTP Act. In the present case, the policy provides for regularization of illegal buildings constructed in contravention of the provisions of a sanctioned development or regional plan. 17. As far as power of the Planning Authorities to regularize the constructions made in breach of building byelaws is concerned, the law is no more res integra. In case of Mahendra Baburao Mahadik and others Vs. Subhash Krishna Kanitkar and others (2005)4 SCC 99, in paragraph 43, the Apex Court specifically dealt with this issue. Paragraph 43 reads thus : 43. The jurisdiction of a local authority is confined only to deal with application for grant of permission for construction as contained in Section 44 of the MRTP Act whether at the initial stage or when a notice is served under subsection (2) of Section 53 of the MRTP Act. The power to grant such permission could be exercised only within the purview of the Building Byelaws. Therefore, being beyond the scope of Section 44 of the MRTP Act, the Municipal Council did not have any jurisdiction to direct regularization of such unauthorized constructions by reason of the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned development which is beneficial to the public but also places unbearable burden on the basic amenities and facilities provided by the public authorities. At times, construction of such buildings becomes hazardous for the public and creates traffic congestion. Therefore, it is imperative for the public authorities concerned not only to demolish such construction but also impose adequate penalty on the wrongdoer. (underline supplied) 33 In Paragraphs 23 and 24, this Court made a reference to another decision of the Apex Court in the case of Friends Colony Development Committee v. State of Orissa and others (2004)8 SCC 733 . Paragraphs 23 and 24 of the said decision read thus: 23. Paragraph 25 of the said decision deals with the issue of permitting deviations from the municipal law. Paragraph 25 reads thus : 25. Though the municipal laws permit deviations from sanctioned constructions being regularized by compounding but that is by way of exception. Unfortunately, the exception, with the lapse of time and frequent exercise of the discretionary power conferred by such exception, has become the rule. Only such deviations deserve to be condoned as are bona fide or are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , big or small, and those entrusted with the task of ensuring implementation of the master plan etc. have miserably failed to perform their duties. It is highly regrettable that this is so despite the fact that this Court has, keeping in view the imperatives of preserving the ecology and environment of the area and protecting the rights of the citizens, repeatedly cautioned the authorities concerned against arbitrary regularization of illegal constructions by way of compounding and otherwise. 56. In view of the above discussion, we hold that the petitioners in the transferred case have failed to make out a case for directing the respondents to regularize the construction made in violation of the sanctioned plan. Rather, the ratio of the abovenoted judgments and, in particular, Royal Paradise Hotel (P) Ltd. Vs. State of Haryana [(2006) 7 SCC 597] is clearly attracted in the present case. We would like to reiterate that no authority administering municipal laws and other similar laws can encourage violation of the sanctioned plan. The courts are also expected to refrain from exercising equitable jurisdiction for regularization of illegal and unauthorized constructions else it woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... policy. In the present case, we find that the State Government has not come out with any reason as to why the cutoff date of 31st December 2015 has been proposed. If reasons were set out, possibly an argument was available that the Writ Court cannot go into the reasons. However, no attempt is made by the State Government to give reasons for the choice of the said cutoff date. In fact, a submission is rightly made across the bar by the learned counsel appearing for the Petitioners that before taking a policy decision to regularize such large number of illegal structures across the State, the impact of regularization of such illegal buildings on the cities and the civic amenities provided therein ought to have been studied and taken into consideration. Thus, 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. 38 Therefore, we have no hesitation in holding that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tructures, we must note here that this order should not be construed to mean that the power of the Planning Authority to regularize illegal constructions is taken away. As held earlier, the power exists, but it can be exercised provided illegal construction made is otherwise legal and is otherwise in terms of the provisions of the MRTP Act, Building Bylaws or DCR and provisions of other Laws. In short, if an application is made to the Planning Authority for regularization of the buildings erected without prior permission and if the constructions could have been permitted within the four corners of law, the statutory powers for regularization can be always exercised. 42 Hence, 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. 43 The rejection of prayer is subject to the observations made earlier. 44 For considering further compliance and for issuing directions to the Court Receiver, the PILs shall be listed along with the pending Court Receiver s Report on 12th April 2017 unde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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