1. The submissions of the learned Advocate General and the other parties to the petition including the applicant in Civil Application No. 80 of 2016 and the applicant in Civil Application No. 54 of 2016 were heard on the earlier date. The prayer made by the learned Advocate General was for 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. Clause (xx) of paragraph 40 of the Order dated 28th, 29th and 30th July 2015 passed in these PILs reads 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 referred in the said order.
4. We must note here that after the draft policy was tendered on record along with the said affidavit dated 29th July 2017, the State Government called for the responses from the various Planning Authorities in the State. The State had invited various Planning Authorities to submit their suggestions. There is an affidavit 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. 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 'M.R.T.P. Act') for preventing unauthorized constructions. Annexure C contains the administrative measures proposed for controlling unauthorized constructions.
6. The learned Advocate General invited our attention to the clause 5 of the Policy (for short 'Draft Policy') for Regularization of Unauthorized Constructions in Urban Areas. He would urge that in the event there being a conflict between the draft Policy and the provisions of the M.R.T.P. Act and any other laws or Rules and Regulations, the provisions of M.R.T.P. Act will prevail. His submission is that object of the policy is not to do something which is contrary to the law and Regulations but the object is to ensure that the structures which are not in conflict with the law are regularized. He submitted that in case of some of the local authorities, there are Development Control Regulations (for short "DCR") framed which are a part of the Development Plan and the said Regulations confer a very wide power on the Municipal Commissioners. He submitted that one of the objects of the draft 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 M.R.T.P. Act. Inviting our attention to the amended provisions of the M.R.T.P. 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 application for regularization will be entertained. In response to a query of the Court whether construction of unauthorized buildings on the properties vesting in public authorities which have been acquired by taking recourse to the law of compulsory acquisition after payment of substantial compensation will be regularized, he invited our attention to clause 4 of Annexure A to the p
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olicy 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 M.R.T.P. Act and DCR, no fault can be found with the policy. He invited our attention to the proposal to amend the M.R.T.P. 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 the Planning Authorities for taking effective action for preventing illegal constructions.
8. He submitted that while considering the prayer of the State Government for granting approval to the draft Policy, this Court will have to take into consideration the limitations on power of Writ Court in a petition under Article 226 of the Constitution of India to interfere with the policy decision of the State Government. In this behalf, he relied upon the decision of the Apex Court in the case of Esta Shakti Foundation v. Government of NCT of Delhi : (2006) 10 SCC 337. He heavily relied upon a decision of a Division Bench of Gujarat High Court in the case of Shivlal K. Purohit and others v. State of Gujrat and others which deals with the similar issue of a challenge to provisions of an enactment for regularizing unauthorized 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 note here that thereafter, the learned counsel for the NMMC has placed on record a letter dated 10th March 2017 addressed by the Municipal Commissioner to the Principal Secretary of the Urban Development Department of the Government of Maharashtra setting out his objections to the proposed policy of the State Government.
10. The first objection raised by the Municipal Commissioner of the NMMC is that there is already a provision available under the statute in the form of section 53 of the M.R.T.P. 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 M.R.T.P. 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 M.R.T.P. 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 where there is 200% violation of provisions regarding marginal open places, parking and other requirements as per the DCR. He has stated that if development which has been carried out abutting very narrow streets is regularized, it may lead to disaster in the event of any natural or man made calamity. He has also stated in the letter of objection that majority of unauthorized constructions have been erected not only in gross violation of sanctioned DCR provisions but without any supervision under licensed Architect and Structural Engineer. He has stated that the quality of the construction material used cannot be ascertained and therefore, the regularization of such structures will lead to serious issues of health safety, fire safety, structural safety and public safety of the inhabitants. It is also pointed out in his letter that if the 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. 4-5/2013-WB(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 M.R.T.P. Act and DCR. He submitted that the question is of regularizing the multi-storied illegal buildings constructed on public properties. He submitted that the agreements on record show that the flat purchasers have taken the flats by executing the Agreements containing the recitals that the construction is completely illegal. Inviting our attention to the observations made by this Court while 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 that a Writ Court cannot interfere with the policy decision on the ground that a better policy decision could have arrived at. Even the correctness of the reasons set out by the Government which prompted the Government to take a policy decision is not relevant when comes to judicial review of a policy decision.
14. The first part of the policy provides that the same will apply to unauthorized construction of any house constructed on or before 31st December 2015. Clauses 5 to 9 of the draft policy are very material which read thus:
"5. In the event of there being any conflict between this policy and the provisions of M.R.T.P. Act, 1966, any other law or rules and regulations, the provisions of M.R.T.P. Act, 1966 any other law and rules/regulations shall prevail.
6. The respective Planning Authorities shall publish a notice 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 M.R.T.P. 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 M.R.T.P. 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 M.R.T.P. Act and which is contrary to the Rules and Regulations can be regularized. The clause 5 provides that if there is a conflict between the draft policy and the provisions of M.R.T.P. Act and the Rules and Regulations made thereunder, the provisions of law, Rules and Regulations will prevail. Thus, clause 5 indicates that no illegal construction which is in violation of the provisions of the M.R.T.P. Act or Rules and Regulations 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 M.R.T.P. 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 M.R.T.P. 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 indicate the manner in which the development of land therein shall be carried out. In particular, it shall provide so far as may be necessary for all or any of the following matters, that is to say,-
(m) provisions for permission to be granted for controlling and regulating the use and development of land within the jurisdiction of a local authority including imposition of conditions and restrictions in regard to the open space to be maintained about buildings, the percentage of building area for a plot, the location, number, size, height, number of storeys and character 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 sub-division 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 provisions of any draft or final plan (or proposal) published by means of notice) [submitted] or sanctioned under this Act:
Provided that, if the Development Control Regulations for an area over which a Planning Authority has been appointed or constituted, are yet to be sanctioned, then in considering application for permission referred to in sub-section (1), such Planning Authority shall have due regard to the provisions of the draft or sanctioned Regional plan, till 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 M.R.T.P. 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 M.R.T.P. 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 M.R.T.P. 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 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 M.R.T.P. 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 which can be regularized under the policy".
22. Perusal of sub-clauses 1 to 5 under the clause A of Annexure A show that in fact, these sub-clauses contain provisions for regularization of the structures. Sub-clause 1(i) of Clause A indicates that if there is a no objection certificate issued by the Competent Authority, unauthorized construction even in prohibited area from river, canal, tanks, blue flood line, defense zone, quarry, jail, heritage buildings, dumping ground etc can be regularized. Sub-clause 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, sub-clause 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, sub-clause 1(i) of clause A is completely contrary to the provisions of the M.R.T.P. 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 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.
24. The real issue is in respect of sub-clause 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 the land is transferred to the society of the persons in occupation. There are several decisions of the Apex Court which hold that no Government land or a land vesting in the Public Authorities can be transferred or allotted to any person unless a fair and transparent procedure is followed. It is repeatedly held that no procedure can be said to be fair and transparent unless the members of the public are informed and given an opportunity to apply for allotment the land which 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 sub-clause 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. Sub-Clause 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 will be in violation of Article 14 of the Constitution of India. As far as the State Government is concerned, under the Maharashtra Land Revenue Code, 1966, there are specific powers conferred on the State Government of regularizing the encroachments on the Government land. There is an elaborate procedure prescribed for doing so including publishing a public notice. The regularization of encroachments on the Government land is not as a matter of right.
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 M.R.T.P. 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 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 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". 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 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 M.R.T.P. 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.
27. The first part of clause D provides that if FSI consumed is as per the prevailing DCR, the building can be regularized. Sub-clause D(B) of clause C makes 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. Sub-clause "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. Sub-clause 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 Sub-clause provides that if the approach road is not as per the By-laws, 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 taking recourse to the process of law. So in a given case, only for protecting the illegal buildings constructed without having appropriate approach road, the Planning Authority will have to undertake the exercise of widening the road by taking recourse to the law.
29. If the intention of the Government is to regularize buildings which are having the approach road with adequate width as provided in the DCR, no policy of regularization is necessary. The policy also suggests that 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. Sub-clause G seeks to allow relaxation of the plinth area or ground coverage area. Sub-clause G of Clause C suggests that the plinth area/ground coverage area can be relaxed even if it is not permissible under DCR. Sub-clause 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 Sub-clause 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 Sub-clauses 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. Sub-clause N deals with the requirement of obtaining structural stability certificate/NOC from the authorized officer of the concerned department. This clause does not provide that a structural stability certificate should be obtained from an expert having necessary qualifications. In fact, in the note submitted by the Commissioner of NMMC, he has expressed an apprehension that without considering the structural stability of illegal buildings and without considering whether construction material of inferior quality is used in the construction, the buildings are likely to be regularized. If multi-storied buildings are regularized only by obtaining NOCs from the authorized officers of the Planning Authority without seeking an opinion of the experts, the said action will be arbitrary.
30. Sub-clause O of Clause C looks innocuous, 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 M.R.T.P. 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. Sub-clause O suggests that if the owner of a plot under reservation who has made illegal construction thereon offers an alternative site, reservation will be shifted to the alternative plot. If there is a specific provision in the DCR for exchange of plots, it will pose no difficulty. Otherwise, when there is no such provision, the said clause will be completely contrary to the provisions of the M.R.T.P. Act.
31. Therefore, as indicated earlier, though the draft policy looks innocuous in view of Clause 5 of the first part quoted in paragraph 14 above, practically all the clause in the Annexure-A offend either the provisions of the M.R.T.P. 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 M.R.T.P. Act. Under M.R.T.P. Act, there is only one provision for regularization which is in the form of Section 53. Under the M.R.T.P. Act the word development is assigned a very wide meaning which includes construction of buildings. Sub-section (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 contravention of any condition incorporated in such permission; (c) where development is made after the permission for development has been duly revoked; and (d) where development is made in contravention of any permission which has been modified. Sub-section (3) of Section 53 gives an opportunity to the person aggrieved by the notice issued under sub-section (1) to apply for permission under Section 44 of the M.R.T.P. Act for retention of any such building or any work. Thus, Sub-section (3) permits regularization of development carried out in contravention of Sub-section (1) of Section 52 by making an application under Section 44. Section 44 provides for an application for grant of permission for development. As per Sub-section (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 Sub-section (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 M.R.T.P. 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 M.R.T.P. Act, which will include a Regional Plan and a Development Plan. Thus, regularization contemplated by Sub-section (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 construction carried out of a residential building on a plot of land shown as reserved for a public purpose in sanctioned Development Plan cannot be regularized under Sub-section (3) of Section 53. Therefore, the only statutory provision under which Planning Authorities can regularize unauthorized buildings does not permit the Planning Authorities to regularize the buildings if the same are not in conformity with the sanctioned Development or Regional Plan. The Development Control Regulations are part of the sanctioned Development Plan, as can be seen from Section 22 of the M.R.T.P. 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 bye-laws is concerned, the law is no more res integra. In case of Mahendra Baburao Mahadik and others v. 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 M.R.T.P. Act whether at the initial stage or when a notice is served under sub-section (2) of Section 53 of the M.R.T.P. Act. The power to grant such permission could be exercised only within the purview of the Building Bye-laws. Therefore, being beyond the scope of Section 44 of the M.R.T.P. Act, the Municipal Council did not have any jurisdiction to direct regularization of such unauthorized constructions by reason of the said resolution or otherwise. The power of the Municipal Council, it is trite, being confined to the provisions of the said Acts, no action could be taken by them contrary thereto or inconsistent therewith."
18. Therefore, the Apex Court has held that while considering an application for regularization made in accordance with Sub-section (3) of Section 53 of the Act, no action can be taken by the Planning Authority contrary to the provisions of M.R.T.P. Act. Thus, it follows that as the building bye-laws or the Development Control Regulations are framed in exercise of powers under the M.R.T.P. Act, the Planning Authorities cannot regularize a structure contrary to the Development Control Regulations or the building bye-laws. 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 M.R.T.P. Act and contrary to the provisions of Development Control Regulations and building bye-laws."
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 M.R.T.P. Act, no action can be taken by the Planning Authority contrary to the provisions of the M.R.T.P. Act and, therefore, it follows that regularization cannot be permitted contrary to the building by-laws or DCR which are framed under the M.R.T.P. 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 a reference to the decision of Apex Court in the case of Deepak Kumar Mukharjee v. Kolkata Municipal Corporation and others. In paragraph 29 of the said decision, the Apex Court observed thus:
"29. It must be remembered that while preparing master plans/zonal plans, the Planning Authority takes into consideration the prospectus of future development and accordingly provides for basic amenities like water and electricity lines, drainage, sewerage, etc. Unauthorized construction of buildings not only destroys the concept of planned 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."
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 attributable to some misunderstanding or are such deviations as where the benefit gained by demolition would be far less than the disadvantage suffered. Other than these, deliberate deviations do not deserve to be condoned and compounded. Compounding of deviations ought to be kept at a bare minimum. The cases of professional builders stand on a different footing from an individual constructing his own building. A professional builder is supposed to understand the laws better and deviations by such builders can safely be assumed to be deliberate and done with the intention of earning profits and hence deserve to be dealt with 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."
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 v. 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."
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 CHS Limited and others v. Municipal Corporation of Mumbai and others : (2013)5 SCC 357. The Paragraph 25 of the said Judgment of this Court reads thus:
"25. We may also make a useful reference to a decision of Apex Court in the case of Esha Ekta Apartments CHS Limited and others v. Municipal Corporation of Mumbai and others. Paragraphs 1 and 56 are relevant, which read thus:
"1. In the last five decades, the provisions contained in various municipal laws for planned development of the areas to which such laws are applicable have been violated with impunity in all the cities, 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. v. 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 would encourage violators of the planning laws and destroy the very idea and concept of planned development of urban as well as rural areas."
35. In Paragraphs 26 and 27 of the said judgment and order, this Court has noted the consequences of regularization of large number of illegal constructions contrary to the Development Plan, M.R.T.P. Act and DCR. It is pointed out in Paragraph 26 that the policy will protect more than 2,50,000 illegal buildings in the State apart from the slums. In case of Pimpri Chinchwad Municipal Corporation, this Court noted that there were more 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 cut-off 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 cut-off date which are of the year 1962 and 1964. As far as the slums are concerned, the protection has been granted to the slums in existence as of 1st September 2000 across the State.
37. There is another interesting aspect of the draft policy. It seeks to apply to all the structures which are erected up to 31st December 2015. As indicated earlier, such structures will be regularized though they are constructed contrary to the provisions of the M.R.T.P. Act, DCR or Building Bylaws. In a matter where a policy decision is challenged, Writ Court cannot go into the adequacy of the reasons given by the State for framing a policy. In the present case, we find that the State Government has not come out with any reason as to why the cut-off 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 cut-off 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 M.R.T.P. Act has been enacted. It will destroy the concept of Development Plan which is being implemented under the M.R.T.P. Act.
38. Therefore, we have no hesitation in holding that the draft policy which seeks to provide regularization of illegal buildings contrary to the express provisions of M.R.T.P. 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. Regularizing illegal structures erected on the public properties by suggesting that the persons who have erected illegal structures can get the land transferred in their name from public authorities is violative of Article 14 of the Constitution of India.
39. Another aspect which was pointed out was that in case 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 M.R.T.P. 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 M.R.T.P. 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 with the regularization of existing illegal structures. The same is the case with the administrative measures for prevention and for controlling the illegal constructions. Even for implementing these administrative measures, a permission of this Court was not necessary. It cannot be that only after this Court grants approval to the policy of regularization of large number of illegal constructions that the State adopts legislative and administrative measures for prevention and control of illegal constructions.
41. While we are holding that the draft policy to the extent of regularization of illegal structures, 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 M.R.T.P. Act, Building By-laws 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 under the Caption of "Directions"