Document Fragment View

Matching Fragments

5 The learned Advocate General has taken us through the policy of regularization proposed to be ssp/gaonkar 4 pil80with 138 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. Exhibit-1 is the copy of the said policy. There are three parts of the Exhibit-1. 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.

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 sub-section 3 of section 53 which permits applications being made under section 44 for the retention of the unauthorized building/construction. Such application is required to be considered for all purposes as an application under section 44 MRTP Act for grant of a development permission. There are several orders passed by this Court and the Apex Court by which a liberty has been granted to the person erecting unauthorized construction to apply for the regularization of the unauthorized construction. When an application for regularization is made, only those constructions can be regularized which fulfill all the requirements of DCR as well as sanctioned or draft Development Plan and which are not prohibited by any other provisions of law. There are provisions under other statutes such as the Works of Defence Act,1903 under which all constructions can prohibited within a particular area. Therefore, to ssp/gaonkar 18 pil80with 138 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.

Therefore, the constructions made contrary to the provisions of DCR can be regularized subject to no objection certificate issued the Competent Authority. Therefore, sub-clause 1(i) of clause A is completely contrary to the provisions of the MRTP Act and the DCR. The same is the case with sub- clause 1(ii).

23 Sub-Clause 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. Sub-Clause 3 of Clause A provides that regularization of unauthorized constructions made on inam and Class-II lands can be considered on production of no ssp/gaonkar 20 pil80with 138 objection certificate from the Competent Authority. Under Sub-clause 3, it is possible to regularize illegal constructions even on inam lands and occupancy class-II lands which may not be permissible under the Maharashtra Land Revenue Code,1966 without seeking permission for change of user. Sub-Clause 4 of Clause A provides that any unauthorized construction on the land reserved for roads cannot be regularized. Further portion records that unauthorized construction on lands with reservation cannot be regularized unless such reservation is shifted or deleted by the Planning Authority after following the due process 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.

26 Sub-Clause (i) under clause B suggests that unauthorized construction for residential us in a residential zone of Development Plan as per the prevailing DCR can be considered for regularization. Even without such a policy, regularization of such a construction is possible provided it is constructed by a person holding the title and is otherwise in conformity with the MRTP Act and DCR. Sub-Clause

(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 ssp/gaonkar 23 pil80with 138 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. Sub-Clause B(iii) suggests that illegal construction on unauthorized sub- division 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". Sub- clause "A" of clause C deals with unauthorized sub-division of layouts/plot in residential zone. It provides that such illegal sub-divisions 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. Sub- Clause A(ii) of Clause C seeks to suggest that even unauthorized sub-division of a plot which is not in conformity with the DCR can be regularized by charging compounding and infrastructure charges. Sub-Clause A(iii) suggests that regularization can be made of the unauthorized sub-division where proper open spaces are not available in layout. It seeks to provide that if such open spaces are available in the adjoining land, then the option of providing such open spaces can be considered. Even if it is not available, 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, Sub-Clause A(iii) of clause C suggests that even if unauthorized sub-divisions ssp/gaonkar 24 pil80with 138 cannot be regularized for want of adequate open space as required by the Rules, the construction can be regularized by reducing FSI. Thus, sub-clauses A(ii) and A(iii) of clause "C" provide for regularization of the unauthorized sub-divisions of plots which is completely contrary to the DCR. We may note here that before an agricultural land is put to use for a non-residential purposes, a prior permission under the Maharashtra Land Revenue Code, 1966 is required. Therefore, Sub-Clauses A(ii) and A(iii) of clause C will be contrary even to the Maharashtra Land Revenue Code,1966. Sub-clause 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 otherwise in terms of the provisions of the MRTP Act and DCR Rules framed thereunder, it can be always regularized. For that, no policy is required. Sub- clause "B" of Clause C seeks to regularize multi- storied buildings having height more than 15 metres which are not in conformity with the DCR. The Sub- clause C of clause C deals with the cases where there is a mixed usage under R-1 and R-2 zones. It seeks to regularize illegal buildings without the limitation of the floors. Sub-Clause C(ii) of clause C seeks to compromise on minimum width of the road as provided in the DCR.