‘By exercising the power under section 52A, unauthorised development which is contrary to the provisions of the Development Plans/Regional Plans under the MRTP Act and the Development Control Regulations framed under the MRTP Act shall not be declared as a compounded structure.’
The Bombay High Court has read down the provisions of section 52A of the Maharashtra Regional and Town Planning Act, 1966 and struck down Rules 4 (partly), 5 and 7 of the Compounded Structures Rules holding that they offend Articles 14 and 21 of the Constitution of India.
The bench comprising Justice AS Oka and Justice AK Menon read down Section 52-A of the MRTP Act to mean that non obstante clause in sub-section (1) of Section 52-A does not enable the planning authorities or the state government to compound unauthorized developments which are contrary to the provisions of the development plans/regional plans under the MRTP Act and the Development Control Regulations framed under the MRTP Act. It said that by exercising the power under section 52A, an unauthorised development which is contrary to the provisions of the Development Plans/Regional Plans under the MRTP Act and the Development Control Regulations framed under the MRTP Act shall not be declared as a compounded structure.
A number of PILs were filed challenging the validity of Section 52A of the Maharashtra Regional and Town Planning Act, 1966 which provides for en-bloc regularization of a very large number of illegal structures constructed in the state on or before 31st December. Their contention was that the said amendment, brought last year, destroys and defeats the very concept of town planning.
The bench observed thus in 138-page judgment: “If a provision or statute permits en-bloc regularization of illegal construction by completely overriding the provisions of the MRTP Act, DCR and draft or Development/Regional Plan it will surely constitute violation of Article 21 of the Constitution of India. But the law can be justified by the State by producing material which is not done by the State in this case. If a statute permits regularization of illegal development carried out before a cut off date, which is otherwise legal and it is illegal only on the ground that the same has been carried out without obtaining development permission, such a statute may not attract violation of Article 21. There is no violation of the town planning involved in such regularization. In the present case, if section 52A read is with the Compounded structure Rules, it permit regularization of illegal construction of multi storied buildings on public properties, on the lands reserved for public purposes, on the lands acquired for public purpose etc. We find for the reasons already set out that the provisions of section 52A and Rules 4, 5 and 7 Compounded structures Rules offend Articles 14 and 21 of the Constitution of India.”
The court also struck down Clauses (d) and (e) of Rule 4 (only to the extent to which the same permit compounding of structures contrary to provisions regarding zones) as well as Rules 5 and 7 of the Compounded Structure Rules.
The court further illustrated: “If construction of a building is carried out without obtaining development permission under the MRTP Act and the permissions required under the Municipal laws, it can be regularized if (i) all the required parameters such as size of the plinth, available FSI, necessary safeguards for fire fighting etc as provided in the DCR are taken care of and (ii)the structure can be made conforming to the provisions of DCR. By exercise of powers under sub-section (1) of section 52-A, such structure could be compounded if necessary, by imposing a condition to modify or alter the structure to bring it in conformity with the DCR. Obviously, if FSI is used which is more than what is permissible under the MRTP Act and the DCR framed thereunder, the structure to the extent to which additional F.S.I has been used cannot be regularized. If the DCR requires open spaces and set back to be provided in a particular manner, unless such provisions are complied with, the structure cannot be regularized. If DCR provides that only owner or lessee of property can apply for development permission, the structure can be regularized or compounded only if owner or lessee apply for regularization. Moreover, a structure made on a public property by encroaching upon it cannot be regularized.”
Referring to various apex court judgments, the bench said: “The Planning Authorities and the State will have to show zero tolerance to illegal constructions and it is the duty of the Planning Authority to take immediate steps for demolition of illegal developments. It is also their duty to ensure that such illegal developments are prevented and therefore, as far as PILs concerning Navi Mumbai are concerned, interim orders directing survey of illegal constructions, creation of Grievance Redress Mechanism etc. will have to be continued as final directions.”