TaxTMI 
TaxTMI 
2017 (3) TMI 1720
X X X X Extracts X X X X
X X X X Extracts X X X X
....s thus: (xx) We make it clear that this order will not affect the existing Policies of regularization of illegal structures. This order will not prevent the State Government from formulating a fresh policy of regularization of a class of illegal structures within the jurisdiction of three Authorities. However, the policy if formulated, shall not be acted upon without the leave of this Court. Before initiating the process of formulation of such policy, the State Government is bound to consider the law laid down by this Court in this order as regards the legality of such policy;" 2 Now, leave is sought of this Court in terms of the said clause for grant of approval to the draft policy annexed to the affidavit of Shri Avinash B. Patil dated 29th July 2016 filed on behalf of the State Government. 3 We may note at this stage that a similar application was made on behalf of the State Government in April 2016. By a detailed Judgment and Order dated 26th and 27th April 2016, the said application was rejected by holding that the draft policy which was tendered on record was arbitrary and/or irrational and it was also contrary to the several decisions of the Apex Court referre....
X X X X Extracts X X X X
X X X X Extracts X X X X
....aft Policy seems to be to ensure that the wide powers conferred on the Municipal Commissioners and other Authorities are exercised within the four corners of the framework and not arbitrarily. 7 He also invited our attention to section 46 of the MRTP Act. Inviting our attention to the amended provisions of the MRTP Act, it is possible to regularize certain structures on payment of premium. Referring to the unauthorized constructions on the reserved lands as well as unauthorized constructions on the lands vesting in the Central/State Governments and other public Authorities, he submitted that the question of entertaining applications for regularization will arise only after the person applying for regularization obtains an order of allotment or an order of transfer in his name of the land on which the building has been constructed. Unless such transfer is effected, the application for regularization will not be entertained. Even as regards clause F in Annexure A, he submitted that idea is not do away with the requirement of minimum width of the road. He submitted that only after an access road to the unauthorized building is widened to make it in conformity with relevant DCR, the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....zed constructions. He submitted that the policy decisions cannot be interfered with on the ground that there could have been a better policy adopted by the State. The submission is that unless the policy is found to be in violation of the Constitution of India or express provisions of a statute, no interference can be made by the writ Court with the said policy. 9 The learned counsel for the City and Industrial Development Corporation of Maharashtra Limited (for short "CIDCO") and the learned Counsel for the Maharashtra Industrial Development Corporation (for short "MIDC") have not disputed the legality of the policy of regularization proposed to be adopted by the State Government. We may note here that the learned counsel for the Navi Mumbai Municipal Corporation (for short `NMMC') on instructions submitted that the Municipal Commissioner has certain objections to the said policy. On the date on which the submissions were heard, when an objection was raised by the learned Advocate General, the learned counsel for the NMMC stated that he is making the said statement on instructions of Dr.Kailash Gaikwad, the Deputy Municipal Commissioner of NMMC (Encroachment). We must....
X X X X Extracts X X X X
X X X X Extracts X X X X
....construction made on the places reserved for public amenities such as gardens, play grounds, open space, roads, schools, hospitals, area under high tension electric lines etc are regularized, this will lead to serious consequences. He pointed out the letter of Government of India dated NO.D.O.No.45/ 2013WB( PT)339 dated 26th February 2016 which incorporates an instruction that natural nalas/drains should be kept free from encroachment. He has also offered his parawise comments on the features of the regularization policy in Annexure A. He has also pointed that as far as NMMC is concerned, there are no provisions for grant of premium FSI, fungible FSI and TDR. 11 The learned counsel for the petitioner in PIL No.80 of 2013 has submitted that there is no material difference between the earlier policy which was held to be arbitrary by this Court and the present policy. He invited our attention to the several decisions of the Apex Court and this Court which were already discussed while dealing with the earlier policy. He submitted that the proposed policy provides for regularization of illegal buildings which have been erected contrary to the MRTP Act and DCR. He submitted that the q....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... in local newspapers widely circulated in its area stating therein the details of the policy along with the form of application and time and date on or before which the application should reach to them. 7. The owner/occupier shall submit application accordingly to the respective Planning Authority. 8. Application received by the Planning Authority under this policy shall be considered as application made under Section 44 of the MRTP Act, 1966 and the Planning Authority shall consider such application having regard to the provision of Section 46 read with Section 22 (m) and 143 of the MRTP Act,1966. 9. Where the Planning Authority is satisfied that in a case or class of cases the unauthorized construction or use of such construction can be permitted for retention or continuation of use by charging and recovering premium/ penalty/ compounding charges from the applicant, as specified by the State Government in the Annexure A, B, C attached herewith this policy, the Planning Authority shall pass an order to that effect." 15 From clause 5 of the draft policy, it appears that no construction which is contrary to the MRTP Act and which is contrary to the Rule....
X X X X Extracts X X X X
X X X X Extracts X X X X
....racter of buildings and density of population allowed in a specified area, the use and purposes to which buildings or specified areas of land may or may not be appropriated, the subdivision of plots the discontinuance of objectionable users of land in any area in reasonable periods, parking space and loading and unloading space for any building and the sizes of projections and advertisement signs and boardings and other matters as may be considered necessary for carrying out the objects of this Act." Development Control Regularizations(DCR) have been framed by the Planning Authorities in the State in terms of clause (m) of section 22. Therefore, DCR are very much a part of a Development Plan which provides for several aspects of planning/reservation of various areas, water supply, conservation of natural scenery and landscape etc. This Court has repeatedly held that the exercise of preparation of a Development Plan partakes character of Legislative function. Section 46 which reads thus: "46 Provisions of Development Plan to be considered before granting permission The Planning Authority in considering application for permission shall have due regard to the prov....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r statutes such as the Works of Defence Act,1903 under which all constructions can prohibited within a particular area. Therefore, to that extent, the objections raised by the Commissioner of the NMMC appears to be correct when he contends that in the existing framework of law, it is possible for a person who has carried out illegal construction to apply for regularization, and therefore, it is not necessary to come out with any such policy for regularization. As the law stands today, only those constructions can be regularized which fulfill all the requirements of the DCR as well as sanctioned or draft Development Plan and which are not prohibited by any other provisions of law. 20 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. 21 In the context of this legal position, Annexure A to the policy will have to be appreciated. Clause (A) of Annexure A is a titled as "types of unauthorized constructions which cannot be regularized under this policy". Clause (B) has a heading "types of unauthorized constructions whi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cess of law. No construction is permissible contrary to the reservations provided in a Development Plan. This provision suggests that for regularizing unauthorized constructions on the reserved land, the State Government can even shift or delete the reservation. It follows that if an application for regularization of illegal constructions made on such reserved lands is filed, the same will be kept pending till the reservation is shifted or is deleted. This will give one more excuse to pray that an illegal structure on a reserved land should be protected till the decision is taken by the Government to shift or cancel the reservation. Shifting and/or changing the reservation of reserved plot for protecting illegal structures will be arbitrary and violative of Article 14 of the Constitution of India. 24 The real issue is in respect of subclause 5 of clause A. It goes to the extent of providing that unauthorized constructions on the lands vesting in the State Government/Central Government or other Authorities can be regularized when no objection certificate is issued by the Competent Officer of the land owning authority. It provides that no objection certificate can be issued after ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....is possible provided it is constructed by a person holding the title and is otherwise in conformity with the MRTP Act and DCR. SubClause (ii) under clause B provides that such unauthorized constructions in the residential zone of Development Plan in violation of the Rules for plot area, height of building, margins, road width etc. can be considered for the regularization as per the guidelines incorporated in the policy. This is something which is totally contrary to DCR which is having a force of law. SubClause B(iii) suggests that illegal construction on unauthorized subdivision of layouts/plot in residential zone can be regularized. This aspect is dealt with under the Claus "C" under the heading "guidelines to regularization of unauthorized constructions". Subclause "A" of clause C deals with unauthorized subdivision of layouts/plot in residential zone. It provides that such illegal subdivisions or layouts which are as per the DCR can be regularized by charging one time compounding charges specified by the State Government. Even without such policy being in existence, unauthorized layouts which are otherwise as per the DCR can be regularized. SubClause A(ii) of Clause C seeks to ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....akes a provision for regularization of FSI consumed beyond the permissible limits. It provides that construction can be considered for regularization by procuring premium FSI or fungible FSI or TDR admissible as per the current norms in the prevailing DCR. If DCR provides for grant of premium FSI or fungible FSI or TDR and if FSI is lawfully procured under such head, then it is possible to regularize the buildings even without any such policy, provided the buildings are otherwise perfectly legal. 28 Subclause "E" of Clause C deals with illegal buildings where inadequate marginal distance is provided. It seeks to regularize such buildings though set back distance is not as per the DCR by charging compounding charges. Subclause F of Clause C provides that the buildings can be regularized provided the width of the approach road must be as per the approved DCR. Further part of Subclause provides that if the approach road is not as per the Bylaws, the possibility of widening the same can be explored by adopting the process under the prevailing Acts or Rules or Regulations. This clause suggests that the Planning Authority will have to explore the possibility of widening the road by ta....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ous, which reads thus: "No reservation shall be deleted/shifted to regularize such construction unless alternative site is provided by the applicant or cost of such reservation development is provided by the applicant." This cannot be done unless there is a specific provision in the DCR. A reservation or designation in the Development Plan is provided after completing a very elaborate exercise which starts from carrying out a survey and preparing an existing land use map under Section 21. The publication of a Draft Development Plan is contemplated at different stages. A huge exercise is required to be carried out for finalizing a Development Plan till it is sanctioned under Section 31 of the MRTP Act. If any modification of the reservations provided in such Plan or DCR is required, recourse is required to be taken to Section 37 which again provides for an elaborate procedure of notifying the proposed change for inviting objections and suggestions. No one can seek modification of the Development Plan as a matter of right. Subclause O suggests that if the owner of a plot under reservation who has made illegal construction thereon offers an alternative site, reservation wi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r SubSection (1) of Section 44, the said application is required to be made in writing in such form and containing such particulars as may be prescribed. Therefore, an application made for regularization under SubSection (3) of Section 53 will be for all purposes and intent an application for grant of a regular development permission under Section 44. Such an application will be governed by Section 46 of MRTP Act, which reads thus : "46. Provisions of Development plan to be considered before granting permission:The Planning Authority in considering application for permission shall have due regard to the provisions of any draft or final plan or proposals,published by means of notice submitted or sanctioned under this Act." 16. In view of Section 46, no application for grant of permission to develop can be allowed if the proposed development is not in conformity with any Draft or Final Plan under MRTP Act, which will include a Regional Plan and a Development Plan. Thus, regularization contemplated by SubSection (3) of Section 53 is permissible only in a case where the construction carried out is not contrary to the draft or final development plan. Thus, illegal cons....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e contrary to the Development Control Regulations or the building byelaws. What is proposed to be done by the policy tendered by the State Government is that the Planning Authorities are sought to be authorized to permit regularization contrary to the provisions of the MRTP Act and contrary to the provisions of Development Control Regulations and building byelaws." (emphasis added) 32 Thus, 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)4 SCC 99 . 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. In Paragraph 19, this Court quoted the well known decision of the Apex Court in the case of Deepak Kumar Mukharjee v. Kolkata Municipal Corporation and others(2013) 5 SCC 336. The Paragraph 19 of the said decision reads thus: "19. On this aspect, it will be necessary to make....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... sternly so as to act as a deterrent for future. It is common knowledge that the builders enter into underhand dealings. Be that as it may, the State Governments should think of levying heavy penalties on such builders and therefrom develop a welfare fund which can be utilized for compensating and rehabilitating such innocent or unwary buyers who are displaced on account of demolition of illegal constructions." (emphasis added) 24. As far as the power of the Planning Authorities to regularize illegal constructions is concerned, another decision of the Apex Court is relevant, which is in the case of Consumer Action Group and another Vs. State of Tamil Nadu and others. In paragraph 29, the Apex Court has observed that whenever discretion is conferred by the statute on a statutory authority, howsoever wide the discretion may be, the same has to be exercised reasonably within the sphere of what that statute confers and such exercise of powers must stand the test to judicial scrutiny." (emphasis added) 34 Lastly, in Paragraph 25 of the said Judgment, this Court noted the view expressed by the Apex Court in the decision in the case of Esha Ekta Apartments CH....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e than 66,000 illegal constructions identified in the year 2012. This Court has further noted that only in one village, out of 96 villages forming part of Navi Mumbai, there are more than 100 illegal buildings. We may note here that as far as the number of illegal constructions are concerned, in the subsequent orders passed by this Court shocking state of affairs have been noted. In the order dated 16th January 2017, this Court has noted that as per the information obtained under the Right to Information Act, 2005, 303 illegal structures are constructed or are being constructed within the area of NMMC in the year 2015. In fact, it is noted that after 1st January 2016, more than 130 illegal structures have come within the area of the said Corporation. A list of such structures has been notified in a daily newspaper dated 1st September 2016. 36 We may note here that in the State of Maharashtra, there is already a policy in existence for protecting structures erected in slums before a cutoff date which has been extended on more than one occasion. In some of the cities like City of Mumbai, there are policies which seek to protect illegal structures erected before the cutoff date whi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ase of City of Navi Mumbai, the lands which are vested in CIDCO and MIDC have been acquired under the Land Acquisition Act,1894 by paying substantial compensation to the owners of the lands and, therefore, it will be arbitrary to regularize the illegal structures on such lands when substantial amount of compensation has been paid from the State exchequer. The reply of the learned Advocate General was that it is for the concerned local authorities such as CIDCO and MIDC to take a call and refuse to give no objection certificate for regularizing illegal constructions on their lands. 40 As far as the second Annexure to the draft policy is concerned, it lays down the proposed amendment to the MRTP Act. We have already observed that the proposed amendments are necessary for preventing unauthorized constructions. If the real intention of the State was to prevent the construction of illegal structures, the State could have always come out with the amendment to the MRTP Act for which leave of this Court is not required. But, somehow, the State Government seems to have linked the legislative measures which are required to be taken for preventing the illegal structures across the State wi....