Bombay High Court
Mayura Maru vs State Of Maharashtra, Through … on 2 November, 2018
Bench: A.S. Oka
1 ssp pil80groupwithospil82 .doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION PUBLIC INTEREST LITIGATION NO.80 OF 2013 ALONG WITH CIVIL APPLICATION NO.54 OF 2016, CIVIL APPLICATION NO.86 OF 2016, CIVIL APPLICATION NO.114 OF 2015, CIVIL APPLICATION NO.134 OF 2015, CIVIL APPLICATION NO.33 OF 2017, CIVIL APPLICATION NO.50 OF 2017 Rajiv Mohan Mishra …Petitioner vs. City and Industrial Development Corporation of Maharashtra Ltd. And others …Respondents. PIL/80/2013 Mr.Aspi Chinoy, Senior Advocate i/b Mr.Datta Mane for the Petitioner Mr.G.S.Hegde i/b G.S.Hegde & Associates for the respondent No.1 Ms Shyamali Gadre i/b Little & Co for the respondent No.2 Mr.Sandeep Marne for the respondent No.3 Mr.Mr.A.Y.Sakhare, Senior Advocate a/w Mr. A. B. Vagyani, GP with Ms Shruti Vyas, AGP `B’ Panel and Mr.Rohan Mirpury for the Respondent Nos.4,5 and 9 Mr.Sanjay Singhavi, Senior Advocate i/b Mr.Rahul Kamerkar for applicant in CAI/33/2017 and CAI/50/2017 Mr.Abhijeet J. Kandarkar for the applicant in CAI/54/2016 ALONG WITH WRIT PETITION NO.4927 OF 2017 Bhausaheb Baban Khedkar & Ors. …Petitioners vs. Maharashtra Industrial Development Corporation and others …Respondents::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:55 ::: 2 ALONG WITH WRIT PETITION NO.7167 OF 2017 Krishna Jotiba Naik …Petitioner vs. Maharashtra Industrial Development Corporation and others …Respondents WP/4927/2018 WITH WP/7167/2017 Mr.Sanjay Singhavi, Senior Advocate i/b Mr.Rahul Kamerkar for the petitioner Ms Shyamali Gadre I/b Little & Co. for the respondent No.1 Mr.Sandeep V. Marne for the respondent No.2 Mr.A.Y.Sakhare, Senior Advocate a/w Mr.A.B.Vagyani, GP a/w Mr.Manish Pabale, AGP a/w Ms Shruti Vyas, AGP `B’ Panel and Mr.Rohan Mirpury for the respondent No.3 WITH PUBLIC INTEREST LITIGATION NO.138 OF 2012 Mayura Maru …Petitioner Vs. The State of Maharashtra …Respondent PIL/138/2012 Mr.Mr.A.Y.Sakhare, Senior Advocate a/w Mr.A.B. Vagyani, GP with Mr.Manish Pabale, AGP with Ms Shruti Vyas, AGP `B’ Panel and Mr.Rohan Mirpury for the respondent No.1 Mr.G.S.Hegde I/b G.S.Hegde & Associates for the respondent No.2 Mr.Sandeep Marne for the respondent No.3 ALONG WITH PUBLIC INTEREST LITIGATION NO.29 OF 2018 Vivek Velankar …Petitioner vs. State of Maharashtra & Others …Respondents::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:55 ::: 3 Mr.A.V.Anturkar, Senior Advocate i/b Mr.Prathamesh B. Bhargude and Mr.Ranjit Shinde and Mr.Ajinkya Udane for the petitioner. Mr.A.Y.Sakhare, Senior Advocate a/w Mr.A.B.Vagyani, GP with Mr.Manish Pabale, AGP a/w Ms Shruti Vyas, AGP `B’ Panel and Mr.Rohan Mirpury for the respondent Nos.1 and 2. ORDINARY ORIGINAL CIVIL JURISDICTION PUBLIC INTEREST LITIGATION NO.82 OF 2017 Janhit Manch …Petitioner vs. The State of Maharashtra …Respondent Mr.Jalan Sandeep for the petitioner Mr.A.Y.Sakhare, Senior Counsel a/w Ms Geeta Shastri, Addl.G.P. and Mr.Amit Shastri, for the respondent State. CORAM : A.S.OKA AND A.K.MENON, JJ.
DATE ON WHICH JUDGMENT IS RRESERVED: MAY 4, 2018 DATE ON WHICH JUDGMENT IS PRONOUNCED:2nd NOVEMBER,2018 JUDGMENT: (PER A.S.OKA,J.) As can be seen from the administrative order passed by Hon’ble the Acting Chief Justice on 6th February 2018 (which is on the file of PIL No. 82 of 2017), these matters have been specially assigned to this Bench.
1 One of the issues involved in this group of Public Interest Litigations is of 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::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:55 ::: 4 structures constructed in the State on or before 31st December 2015. The issue is whether the concept of town planning will be thrown to winds if the said provision is implemented. The contention is that the very concept of town planning is sought to be destroyed and defeated by enacting section 52A. We are reminded of what Socrates said:
“By far the greatest and most admirable form of wisdom is that needed to plan and beautify cities and human communities.” Benjamin Franklin supposedly said once “If you fail to plan, you are planning to fail.” OVERVIEW 2 With a view to reduce the congestion in the city of Mumbai, in early seventies, the twin city of Navi Mumbai was set up by taking recourse to en-bloc acquisition of lands under the provisions of the Land Acquisition Act,1894 (for short `the Land Acquisition Act’). The City and Industrial Development of Maharashtra Limited (for short `CIDCO’), a Government of Maharashtra owned Company was given a status of Special Planning Authority under the provisions of the Maharashtra Regional and Town Planning Act, 1966 (for short `the MRTP Act’).
Few years before the development of Navi Mumbai commenced, there was a large scale acquisition of lands in some areas of Navi Mumbai for setting up industrial estates of the Maharashtra Industrial::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:55 ::: 5 Development Corporation (for short “MIDC”) which again is a statutory body created by the State Government under the provisions of the Maharashtra Industrial Development Act,1961 (for short `the MIDC Act’). It is also a Planning Authority within the meaning of MRTP Act for certain area of Navi Mumbai. Industrial estates were set up on large scale by MIDC and at one stage, industrial belt known as Thane-Belapur Belt which is now a part of Navi Mumbai was known to be one of the largest industrial areas in Asia. 3 PIL Nos.138 of 2012 and 80 of 2013 have been
filed for inviting attention of the Court to the large scale illegal constructions which have come up during the last few years in the city of Navi Mumbai(New Bombay). 4 The orders passed in PIL Nos.80 of 2013 and 138
of 2012 and the affidavits on record will show that there are large scale illegal constructions have come up in Navi Mumbai. The illegal constructions are not only of smaller structures or huts but of large multi storied residential buildings. The citizens have been persuaded to purchase flats/premises in the said illegal buildings. As can be seen from some of the orders passed in PIL Nos.80 of 2013 and 138 of 2012, in large number of cases, the persons have acquired flats with the full knowledge that the entire building is illegal. Most of the illegal constructions have come up on the::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:55 ::: 6 lands which were compulsorily acquired by the State Government either for setting up city of Navi Mumbai or for industrial estate of MIDC by paying large amount by way of compensation. Not only that large amount by way of compensation has been paid to those whose lands were acquired for Navi Mumbai Project, but they were allotted developed plots having an area equivalent to 12.5% of the area of the acquired lands. The plots have been allotted at concessional rates. The land mafia has got into action in the city of Navi Mumbai which was once advertised as a “dream city” and has successfully carried out hundreds of illegal constructions.
5 For a part of Navi Mumbai, the Municipal Corporation of city of Navi Mumbai (for short `the said Corporation’) is the Planning Authority within the meaning of MRTP Act. For certain areas, the CIDCO is the Planning Authority and for the remaining areas, MIDC is the Planning Authority. The orders passed in the aforesaid two PILs will show that the respective areas of jurisdiction of the said three Authorities as Planning Authorities are well defined. There is a clarity on this aspect brought about by the interim orders in these two PILs.
6 These two PILs have been filed to bring to the notice of this Court, the failure of the three Planning Authorities to prevent large scale illegal constructions and their failure to perform its::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:55 ::: 7 statutory duty to remove the illegal constructions. Under the interim orders passed in the aforesaid two petitions, a grievance redress mechanism has been set up which enables the citizens to lodge complaints about the illegal constructions. The three Planning Authorities are expected to take a prompt action against the illegal constructions both by way of prevention and demolition. The affidavits filed on record will show that some of illegal constructions have been demolished on the basis of the interim orders passed by this Court.
7 The orders passed in the aforesaid two PILs will show that on two occasions, the State Government came out with a policy to regularize the illegal constructions on a very large scale and sought leave to implement the policy. This Court rejected the applications made by the State Government on the ground that the policies were arbitrary and discriminatory and were violative of Article 14 of the Constitution of India. Ultimately, the State Government came out with a major amendment to the MRTP Act. The said amendment was by the Maharashtra Act No.XXXII of 2017 (for short `the Amendment Act’). The main feature of the Amendment Act is the introduction of section 52A in the MRTP Act which starts with non obstante clause. The said provision enables the compounding or regularization of unauthorized developments (illegal constructions) carried out in all areas of Development Plan in the State on or before 31 st::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:55 ::: 8 December 2015. Amendment Act introduces definition of compounded structures in the form of sub-section 5-A of section 2. By the said Amendment Act, the provisions of section 53 concerning the power of the Planning Authorities to deal with the unauthorized developments have been made more stringent. For giving effect to the provisions of section 52-A, the Maharashtra Town Planning (Compounded Structures) Rules,2017 (for short `the Compounded Structures Rules’) have been enacted. By amending the aforesaid two PILs, a challenge has been incorporated to the validity of the Amendment Act and to the Compounded Structure Rules. 8 PIL No.80 of 2013 is filed by the petitioner
who is claiming to be a Journalist and RTI activist. He has filed the said PIL inviting attention of the Court to the illegal constructions carried out on the lands described in paragraph 1A situated at village Digha in Navi Mumbai which are vesting in MIDC. It is pointed out that the illegal construction of buildings consisting of four to seven floors is being carried out. Apart from the prayers seeking a writ of mandamus directing demolition of the said buildings, by amending the petition, there is a challenge incorporated to the validity of provisions of the Amendment Act and in particular to section 52A thereof as well as the Compounded Structure Rules. 9 PIL No.138 of 2012 is filed by the petitioner::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:55 ::: 9
who is an Advocate by profession. The subject matter of the said PIL is wider. The subject matter is the issue of builders consuming FSI beyond permissible limits by carrying out illegal constructions in Navi Mumbai. There are prayers made for carrying out survey of illegal constructions and enjoining the CIDCO and the said Municipal Corporation to initiate action against the illegal constructions. 10 PIL No.29 of 2018 has been filed by the
petitioner who claims to be a Social Worker and who is running NGO known as Sajag Nagrik Manch. In this petition, there is a challenge to the validity of the provisions of the Amendment Act as well as to the validity of the Compounded Structure Rules. 11 PIL No.82 of 2017 has been filed by Janhit
Manch, an organization which has filed several PILs raising diverse issues. The challenge in this PIL is also to the provisions of the Amendment Act and the Compounded Structures Rules.
12 As far as Writ Petition Nos.7167 and 4927 of 2017 are concerned, the same challenge notices of demolition issued presumably on the basis of the directions issued in PIL Nos.138 of 2012 and 80 of 2013. 13 In PIL Nos.80 of 2013 and 138 of 2012, there
are directions issued for creating Grievance::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:55 ::: 10 Redressal Mechanism enabling the citizens to complain about the inaction of the Planning Authorities to take action and enjoining the Planning Authorities to take action. There are directions issued to the said Corporation, CIDCO and MIDC to take action of demolition of illegal structures in their capacity as the Planning Authority. At the time of final hearing, apart from one of the intervenors who has challenged the maintainability of the PILs, no one has argued on the necessity of establishing Grievance Redressal Mechanism and the arguments are confined only to maintainability of the PIL Nos.80 and 138 and challenge to the constitutional validity of the Amendment Act and the Compounded Structure Rules.
RELEVANT STATUTORY PROVISIONS 14 Before we refer to the extensive submissions made before us, we must refer to some of the relevant provisions of the MRTP Act. Sub-sections 5A, 7, 15 and 19 of section 2 read thus:
“[(5A) ” compounded structure ” means an unauthorized structure, in respect of which the compounding charges as levied by the Collector under the provisions of sub-section (2B) of section 18 are paid by the owner or occupier of such structure and which, upon such payment, has been declared as such by the Collector ;] By the Amendment Act, sub-section 5A was substituted by the following provision.::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:55 ::: 11
“(5A) “compounded structure” means any development of land in respect of which the compounding charges, infrastructure charges and premium as levied by the Collector under the provisions of sub- section (2B) of section 18 or by the Planning Authority under section 52A, are paid by the owner or occupier of such structure and which upon such payment has been declared as compounded structure by the Collector or Planning Authority, as the case may be;”.
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7″Development” with its grammatical variations means the carrying out of buildings, engineering, mining or other operations in, or over, or under, land or the making of any material change, in any building or land or in the use of any building or land [or any material or structural change in any heritage; building or its precinct] [and includes [demolition of any existing building structure or erection or part of such building, structure of erection; and] [reclamation,] redevelopment and lay-out and sub-division of any land; and “to develop” shall be construed accordingly];
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15 “local authority” means-
(a) the `Bombay Municipal Corporation constituted under the Bombay Municipal Corporation Act, or the Nagpur Municipal Corporation constituted under the City of Nagpur Municipal Corporation Act,1948, or any Municipal Corporation constituted under the Maharashtra Municipal Corporations Act,
(b) a Council and a Nagar Panchyat constituted under the Maharashtra Municipal Councils, Nagar Panchyats and Industrial Township Act,1965,]::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:55 ::: 12
(c)(i) A Zilla Parishad constituted under the Maharashtra Zilla Parishads and Panchayat Samitis Act,1961],
(ii) the Authority constituted under the Maharashtra Housing and Area Development Act,1976],
(iii) the Nagpur Improvement Trust constituted under the Nagpur Improvement Trust Act,1936 which is permitted by the State Government for any area under its jurisdiction to exercise the powers of a Planning Authority under this Act.
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19 “Planning Authority” means a local authority; and shall include –
(a) a Special Planning Authority constituted or appointed or deemed to have been appointed under section 40;
(b) in respect of the slum rehabilitation area declared under section 3C of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act 1971, the Slum Rehabilitation Authority appointed under section 3A of the said Act.”
15 Sections 52 to 56 and section 142 as they stood before the Amendment Act and after the Amendment Act are relevant which read thus: “52. Penalty for unauthorized development or for use otherwise than in conformity with Development plan – (1) Any person who, whether at his own instance or at the instance of any other person commences, undertakes or carries out development or institutes, or changes the use of any land- (a) without permission required under this Act; or (b) which is not in accordance with any permission granted or in contravention of any condition subject to which such permission has been granted; (c)after the permission for development has been duly revoked; or (d) in contravention of any permission which has been duly modified::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:55 ::: 13 shall, on conviction, [be punished with imprisonment for a term [which shall not be less than one month but which may extend to three years and with fine which shall not be less than two thousand rupees but which may extend to five thousand rupees, and in the case of a continuing offence with a further daily fine which may extend to two hundred rupees] for every day during which the offence continues after conviction for the first commission of the offence. (2) Any person who continues to use or allows the use of any land or building in contravention of the provisions of a Development plan without being allowed to do so under section 45 or 47, or where the continuance of such use has been allowed under that section continues such use after the period for which the use has been allowed or without complying with the terms and conditions under which the continuance of such use is allowed, shall, on conviction be punished [with fine which may extend to five thousand rupees;] and in the case of a continuing offence, with a further fine which may extend to one hundred rupees for every day during which such offence continues after conviction for the first commission of the offence. 53. Power to require removal of unauthorized development – (a) Whether development of land has been carried out as indicated in sub-section(1) of section 52, the Planning Authority may, subject to the provisions of this section, served on the owner a notice requiring him within such period, being not less than one month, as may be specified, therein after the service of the notice, to take such steps as may be specified in the notice, (a) in cases specified in clause (a) or (c) of sub-section (1) of section 52, to restore the land to its condition existing before the said development took place. (b) in cases specified in clauses (b) or (d) of sub-section (1) of section 52, to secure compliance with the conditions or with the permission as modified: Provided that, where the notice requires the discontinuance of any use of land, the Planning Authority shall serve a notice on the occupier also. (2) In particular, such notice may, for purposes of sub-section (1) ,::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:55 ::: 14 require- (a) the demolition or alteration of any building or works; (b) the carrying out on land of any building or other operations; or (c)the discontinuance of any use of land. (3) Any person aggrieved by such notice may, within the period specified in the notice and in the manner prescribed, apply for permission under section 44 for retention on the land of any building or works or for the continuance of any use of the land, to which the notice relates, and pending the final determination or withdrawal of the application, the mere notice itself shall not affect the retention of buildings or works or the continuance of such use. (4) The foregoing provisions of this Chapter shall, so far as may be applicable apply to an application made under sub-section (2). (5) If the permission applied for is granted, the notice shall stand withdrawn; but if the permission applied for is not granted, the notice shall stand; or if such permission is granted for the retention only of some buildings, or works, or for the continuance of use of only a part of the land, the notice shall stand withdrawn as respects such buildings or works or such part of the land, but shall stand as respects other buildings or works or other part of land, as the case may be and thereupon, the owner shall be required to take steps specified in the notice under sub- section (1) as respects such other buildings, works or part of the land. (6) If within the period specified in the notice or within the same period after the disposal of the application under sub-section (4), the notice or so much of it as stands is not complied with, the Planning Authority may- (a) prosecute the owner for not complying with the notice; and where the notice requires the discontinuance of any use of land any other person also who uses the land or causes or permits the land to be used in contravention of the notice; and (b) where the notice requires the demolition or alteration of any building or works carrying out of any building or other operations, itself cause the restoration of the land to its conditions before the development took place and secure compliance with the conditions of the permission or with the permission as modified by taking such steps as the Planning Authority may consider necessary including demolition or alteration of::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:55 ::: 15 any building or works or carrying out of any building or other operations; and recover the amount of any expenses incurred by it in this behalf from the owner as arrears of land revenue. (7) Any person prosecuted under clause (a) of sub-section (6) shall, on conviction, [be punished with imprisonment for a term [which shall not be less than one month but which may extend to three years and with fine which shall not be less than two thousand rupees but which may extend to five thousand rupees, and in the case of a continuing offence with a further daily fine which may extend to two hundred rupees] for every day during which such offence continues after conviction for the first commission of the offence. (8) The Planning Authority shall, by notification in the Official Gazette, designate an officer of the Planning Authority to be the Designated Officer for the purposes of exercise of the powers of the Planning Authority under this section and sections 54, 55 and 56. The Designated Officer shall have jurisdiction over such local area as may be specified in the notification and different officers may be designated for different local areas.]” (emphasis added) We must note here that by the Amendment Act, sub-section (1) of section 53 has been substituted by following:- “(1) (a) Where any development of land has been carried out as indicated in clause (a) or (c) of sub-section (1) of section 52, the Planning Authority may, subject to the provisions of this section, serve on the owner, developer or occupier a prior notice of 24 hours requiring him to restore the land to conditions existing before the said development took place ;(b) if the owner, developer or occupier fails to restore the land accordingly, the Planning Authority shall immediately take steps to demolish such development and seal the machinery and materials used or being used therefor. (1A) Where any development of land has been carried out as indicated in clause (b) or (d) of sub-section (1) of section 52, the Planning Authority may, subject to the provisions of this section, serve one months’ notice on the owner, developer or occupier::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:55 ::: 16 requiring him to take necessary steps as specified in the notice.” (emphasis added) 54. Power to stop unauthorized development – (1) Where any development of land as indicated in sub-section (1) of section 52 is being carried out but has not been completed, the Planning Authority may serve on the owner and the person carrying out the development a notice requiring the development of land to be discontinued from the time of the service of the notice; and thereupon, the provisions of sub-sections (3), (4), (5) and (6) of section 53 shall so far as may be applicable apply in relation to such notice, as they apply in relation to notice under section 53. (2) Any person, who continues to carry out the development of land, whether for himself or on behalf of the owner or any other person, after such notice has been served shall, on conviction [be punished with imprisonment for a term which may extend to three years or with fine which may extend to five thousand rupees or with both]; and when the compliance is a continuing one, with a further fine which may extend to one hundred rupees for every day after the date of the service of the notice during which the non-compliance has continued or continues. 55. Removal or discontinuance of unauthorized temporary development summarily- (1) Notwithstanding anything hereinbefore contained in this Chapter, where any person has carried out any development of a temporary nature unauthorizedly as indicated in sub-section (1) of section 52, the Planning Authority may by an order in writing direct that person to remove any structure or work erected, or discontinue the use of land made, unauthorizedly as aforesaid, within fifteen days of the receipt of the order; and if thereafter, the person does not comply with the order within the said period, the Planning Authority may request the District Magistrate or the Commissioner of Police, as the case may be, [or authorize any of its officers or servants,] to have such work summarily removed or such use summarily discontinued without any notice as directed in the order, and any development unauthorizedly made again,::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:55 ::: 17 shall be similarly removed or discontinued summarily without making any order as aforesaid. (2) The decision of the Planning Authority on the question of what is development of a temporary nature shall be final. 56. Power to require removal of authorized development or use.- (1) If it appears to a Planning Authority that it is expedient in the interest of proper planning of its areas (including the interest of amenities) having regard to the Development Plan prepared – (a) that any use of land should be discontinued, or (b) that any conditions should be imposed on the continuance thereof or (c)that any buildings or works should be altered or removed, the Planning Authority may, by notice served on the owner, (i) require the discontinuance of that use; or (ii)impose such conditions as may be specified in the notice on the continuance thereof; or (iii)require such steps, as may be specified in the notice to be taken for the alteration or removal of any buildings or works, as the case may be; within such period, being not less than one month, as may be, specified therein, after the service of the notice. (2) Any person aggrieved by such notice may, within the said period and in the manner prescribed, appeal to the State Government. (3) On receipt of an appeal under sub-section (2), the State Government or any other person appointed by it in this behalf may, after giving a reasonable opportunity of being heard to the appellant and the Planning Authority, dismiss the appeal or allow the appeal by quashing or varying the notice as it may think fit. (4) If any person – (i) who has suffered damage in consequence of the compliance with the notice by the depreciation of any interest in the land to which he is entitled or by being disturbed in his enjoyment of the land or otherwise; or (ii) who has carried out any works in compliance with the notice, claims from the Planning Authority, within the time and in the manner, prescribe compensation in respect of that damage, or of any expenses reasonably::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:55 ::: 18 incurred by him, for complying with the notice, then the provisions of sub-sections (2) and (3) of section 51 shall apply in relation to such claim as those provisions apply to claims for compensation under those provisions. (5) If any person having interest in land in respect of which a notice is issued under this section claims that by the reason of the compliance with the notice, the land will become incapable of reasonably beneficial use, he may within the period specified in the notice or within such period after the disposal of the appeal, if any, filed under sub-section (2) and in the manner prescribed, serve on the State Government a purchase notice requiring his interest in the land to be acquired; and thereupon, the provisions of section 49 for dealing with a purchase notice shall, so far as can be made applicable, apply as they apply to a purchase notice under that section. 142. Sanction of prosecution – No prosecution for any offence punishable under this Act or rules made thereunder shall be instituted or no prosecution instituted shall be withdrawn except with the previous sanction of the Regional Board, Planning Authority, or as the case may be, a Development Authority or any officer authorized by such Board or Authorized in this behalf.” We must note here that a proviso has been added to section 142 by the Amendment Act which reads thus: “Provided that, no sanction shall be necessary where unauthorized development has been carried out on the plot having area more than 1000 square meters.” (emphasis added) 16 For the sake of convenience, we are reproducing Amendment Act which reads thus: “1. This Act may be called the Maharashtra Regional and Town Planning (Amendment) Act,2017. 2 In section 2 of the Maharashtra Regional and Town Planning::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:55 ::: 19 Act,1966 (hereafter referred to as “the principal Act”), for clause (5A), the following clause shall be substituted, namely:- “(5A) “compounded structure” means any development of land in respect of which the compounding charges, infrastructure charges and premium as levied by the Collector under the provisions of sub-section (2B) of section 18 or by the Planning Authority under section 52A, are paid by the owner or occupier of such structure and which upon such payment has been declared as compounded structure by the Collector or Planning Authority, as the case may be,” 3. In section 18 of principal Act, in sub-section (2B), after the words “compounding charges” the words “infrastructure charges and premium” shall be inserted. 4. After section 52 of the principal Act, the following section shall be inserted, namely:- “52A. (1) Notwithstanding anything contained in this Act or any other law, for the time being in force, or in any judgment, order or direction of any Court where unauthorized development has been carried out on or before the 31st December 2015, in the area of Development Plan, the State Government may, upon the request of the Planning Authority, specify the terms and conditions, not inconsistent with the rules made in this behalf, on compliance of which and the compounding charges, infrastructure charges and premium on payment of which, the Planning Authority may declare such development as compounded structure. (2) On declaration of such development as compounded structure under sub-section (1), no further proceedings under any law for the time being in force against the owner or occupier of such structure shall be taken or continued: Provided that, no further development shall be permissible in any compounded structure, other than repairs and maintenance, and any::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:55 ::: 20 development or reconstruction of such structure shall be only as per the provisions of the prevailing Development Control Regulations.” 5. In section 53 of the Principal Act, for sub-section (1), the following sub-sections shall be substituted, namely :- “(1) (a) Where any development of land has been carried out as indicated in clause (a) or (c) of sub-section (1) of section 52, the Planning Authority may, subject to the provisions of this section, serve on the owner, developer or occupier a prior notice of 24 hours requiring him to restore the land to conditions existing before the said development took place; (b) if the owner, developer or occupier fails to restore the land accordingly, the Planning Authority shall immediately take steps to demolish such development and seal the machinery and materials used or being used therefor. (1A) Where any development of land has been carried out as indicated in clause (b) or (d) of sub-section (1) of section 52, the Planning Authority may, subject to the provisions of this section, serve one month’s notice on the owner, developer or occupier requiring him to take necessary steps as specified in the notice.” 6. In section 142 of the principal Act, the following proviso shall be added, namely :- “Provided that, no sanction shall be necessary where unauthorized development has been carried out on the plot having area more than 1000 square meters.” (emphasis added) 17 The provisions of the Compounded Structure Rules read thus:
“1. These rules may be called the Maharashtra Town Planning (Compounded Structures) Rules, 2017.
2. These rules shall apply to the unauthorized developments carried out on or before 31/12/2015 within the jurisdiction of Local/Planning Authority area.
3. In these rules,unless the context requires otherwise,-::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:55 ::: 21
(a) “Act” means the Maharashtra Regional and Town Planning Act, 1966 (Mah.XXXVII of 1966);
(b) “Buffer zone” means an area to be left free from development as per the concerned regulations;
(c) “Compounded structure” means a structure defined as compounded structure under clause (5A) of section 2 of the Act;
(d) “Compounding charges”, “infrastructure charges” and “premium” means compounding charges, infrastructure charges and premium as specified by the Government under these rules;
(e) “Prohibited areas” means the areas where development is prohibited on account of safety and legal or natural impediments or constraints;
(f) “Regulations” means Development Control and Promotion Regulations made under the Act;
(g) “Structurally unsafe buildings” means the building which is declared as dangerous structure under the relevant provisions of the concerned Municipal laws time being in force;
(h) “Unauthorized development” means an unauthorized development as envisaged in subsection (1) of Section 52 of the Act;
The words an expression used in these Rules but not defined hereinabove shall have the same meaning as respectively assigned to them under the Act, rules or regulations made thereunder.
4.The following types of unauthorized developments shall not be considered for declaration as compounded structure under section 52(A) of the Act, namely:-
(a) Unauthorized developments in the areas where development is prohibited by or under the law, such as rivers, canals, tanks, blue flood line, defence zone, quarry, heritage buildings, dumping grounds, ecologically sensitive areas like hill slope having slope greater than 1:5, CRZ-I areas, mangroves, forest etc.;
(b) Unauthorized development in Buffer Zones.
(c) Structurally unsafe building;::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:55 ::: 22
(d) Unauthorized development on lands in zones other than the Residential Zone, Public-Semipublic Zone, Commercial Zone & Industrial Zone.
(e) Unauthorized development carried out by violating the land use permissible in zones of Development Plan except in the Residential Zone.
5. The following types of unauthorized developments may be considered for declaration as compounded structure subject to the fulfillment of conditions mentioned below and parameters specified in the table annexed to these rules.
(a) Unauthorized development on imam lands and class-II Occupant lands on production of clearance or No Objection Certificate from the competent authority.
(b) Unauthorized developments on lands reserved for public purposes except play ground, garden and open spaces in any plan, if the said reservation is shifted or deleted after following due process of law, subject to the condition that the cost of shifting or deletion is born by the owner and / or occupier.
(c) Unauthorized developments on lands reserved for linear reservations such as roads, railways, metros in any plan if the said linear reservations are shifted after following due process of law.
(d) Unauthorized developments on buildable reservations in any plan, if requirements of regulation for Accommodation Reservation are complied with.
(e) Unauthorized developments violating the land use zone,if the land use zone is changed after following due process of law subject to the condition that the cost of zone change is born by the owner and / or occupier.
(f) Unauthorized developments on Government lands or lands owned by other public authorities on production of, –
(i) No objection certificate from the land owning authority authorized to do so under the law applicable thereto;and
(ii)After transfer or allotment or lease of such land to the concerned person by following due process of law under the law applicable thereto.
(g) Unauthorized developments on unauthorized plots subject to conditions mentioned in entry 14 in the table annexed hereto;
6.Development which is permissible in Residential or Commercial or Public-::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:55 ::: 23
semipublic or Industrial Zone as per prevailing development control Regulations but constructed without obtaining prior permissions of the authority shall be considered for declaration as compounded structure by charging compounding charges.
7.Unauthorized developments which is carried out in Residential or Commercial or Public-semipublic or Industrial Zone in violation of Regulations for the following grounds may be considered for declaration as compounded structure after taking into consideration the parameters specified in the table annexed to these rules.
(i) Floor Space Index (F.S.I.)
(ii) Height of building
(iii) Marginal open spaces.
(iv) Coverage.
(v)Road width or
(vi) Other development control matters provided in the table annexed to these rules.
8. Every Planning Authority shall,within six months from the commencement of these rules, publish notice,in local newspapers widely circulated in its area, inviting applications, in the form provided by it in the public notice, from the owners or occupiers of unauthorized development, for consideration to declare such structure as compounded structure and stating therein the time and date on or before which the application must reach to it and applications received thereafter shall not be considered;
9. Every Planning Authority shall consider the applications received by it after taking into consideration the parameters specified in these rules and in the table annexed to these rules;
10. Where the Planning Authority is satisfied in case or class of cases the unauthorized developments or use of such developments can be permitted for retention or continuation of use by charging and recovering premium, infrastructure charges and compounding charges, as specified in these rules and upon such payments, the Planning Authority may declare such unauthorized development as compounded structure;::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:55 ::: 24
11. Where the planning authority has declared any unauthorized development as compounded structure, no further development shall be permissible in such structure other than repairs and maintenance, and any redevelopment or reconstruction of such structure shall be permissible only as per the provisions of the prevailing Development Control and Promotion Regulations;
12.In respect of unauthorized development to be declared as compounded structure, in addition to the Development Charges,-
(a)i)Infrastructure charges equal to the development charges shall be levied and recovered.
ii) Compounding charges not less than double the development charges shall be levied and recovered.
(b) Premium shall be assessed, levied and recovered as applicable in the jurisdiction of planning authorities for the categories such as Addition Floor Space Index premium, Transferable Development Rights (TDR) loading premium, infrastructure improvement charges, Deficiency premium etc. as the case may be.
13. All money received by the planning authority as a premium, infrastructure charges and compounding charges under these rules shall be credited to a separate head of account and the same shall be utilized only for the purpose for providing public amenities, utilities and services in the respective areas.” “By order and in the name of the Governor of Maharashtra”::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:55 ::: 25 Table Parameters to be taken into consideration by the Planning Authority while declaring unauthorized developments as compounded structures 1 Permissible height of building Road Maximum with respect to Road Width. width permissible height 6.00 mt. Upto 15.00 mt.
9.00 mt. Upto 24.00 mt. 12.00 mt. Upto 36 mt. 2 Permissible building use. Mixed uses under R-1 and R-2 zones may be considered as permissible in Development Control Regulations without the limitations of the floors. Uses in independent building may be considered as permissible in Development Control Regulations, provided the road width is minimum 9 mt. Mixed use other than residential use may be considered by charging compounding charges as specified in these rules. 3 Permissible Floor Space Provided that if some extra Index (FSI) construction has been carried out beyond the then permissible Floor Space Index limit or areas free of Floor Space Index have been brought into habitable use, then such areas / construction can be considered for declaration as compounded structure by procuring premium Floor Space Index or Fungible Floor Space Index or Transferable Development Right admissible as per the current norms in the prevailing Development Control Regulation by paying additional compounding charges at the rate of 10% of land rate::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:55 ::: 26 as mentioned in the Annual Statement Rates in addition to the premium for such additional Floor Space Index; Explanation:- For the purpose of this clause higher permissible Floor Space Index as applicable for Economically Weaker Section / Low Income Group housing and slum rehabilitation projects shall be taken into consideration subject to the restrictions of dwelling unit sizes mentioned in the respective Development Control Regulations.
4 Inadequate set backs Inadequate marginal distances with respect to Development Control Regulations may be considered as per the following table:-
Sr. Building Minimum No height required setback 1 Height up 0.75 mtr. to 10 mtr. 2 10 to 24 50 % of required mtr. setback 3 Above 24 50 % of required mtr. setback or as decided by Chief Fire Officer. It can be considered for compounding subject to recovery of an amount equal to 50 % of the cost of the unauthorized development occupied by inadequate marginal distance calculated as per the
construction rate mentioned in applicable Annual Statement of Rates, with additional compounding charges equal to 10 % of the land rate in current Annual Statement of Rates subject to No::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:56 ::: 27 Objection Certificate of fire, wherever necessary.
5 Width of approach road Width of approach road must be as per the approved Development Control Regulations of the concerned planning authority. If width of approach road is not as per the Development Control Regulations, the possibility of widening the same may be explored by adopting the process under prevailing Acts / Rules / Regulations. However, in any case, following minimum width of road should be observed.
In Gaothan Area –
i) For purely Residential use – at least 4.50 m.
ii) For Mixed use – at least 6.00 m.
In Outside Gaothan Area –
i) For purely Residential use – at least 6.00 m.
ii) For Mixed use – at least 9.00 m.
However such uses may be considered by charging the additional compounding charges equal to 10 percent of the land rate in current Annual Statement of Rates.
6 Plinth area (Ground Coverage) Plinth area or Ground Coverage may be relaxed by the concerned planning authority or officer authorized by charging the additional compounding charges equal to 10% of the land rate in current Annual Statement Rates. These charges shall not be necessary in cases in which charges for inadequate setback are recovered.
7 Parking area If parking area is not possible to be provided for the individual building, possibility be explored to provide mechanical parking or a space for common parking adjoining such area. If::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:56 ::: 28 not possible then concession be given by charging additional premium equal to 20% of land rate in current Annual Statement of Rates.
8 Stair case width / passage Relaxation may be granted up to 30 % of width / balcony / terrace / the base Floor Space Index as per the misuse of any free Floor Development Control Regulations by Space Index component.
recovering additional compounding charges equal to 10 % of the land rate in current Annual Statement of Rates.
9 No Objection Certificates No Objection Certificate from authorized of Drainage Department officer of Planning Authority is required wherever necessary.
10 No Objection Certificates No Objection Certificate from authorized of Water Supply Department officer of Planning Authority is required wherever necessary.
11 No Objection Certificates No Objection Certificate from authorized of Garden officer of Planning Authority is required wherever necessary.
12 No Objection Certificates of Wherever required as per the Fire department Development Control Regulations, fire No Objection Certificate from authorized officer is necessary.
13 Structural stability of Wherever required as per the Unauthorized building Development Control Regulations, Structural stability certificate / No Objection Certificate from authorized structural engineer is necessary.
14 Unauthorized sub-division Unauthorized layouts which are as per of layouts / plot in Residential the Development Control Regulations Zone can be regularized by charging one time compounding charges as specified by the Government. But when such layouts are not as per the Development Control Regulations, then in such cases compounding charges plus land value of compulsory re-recreational open space shall be recovered. for unauthorized sub-::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:56 ::: 29
division of plot, when such plot owner comes for regularization then such plot may be regularized by charging compounding and infrastructure charges.
iii) In cases (i) and (ii) above where open spaces are not available in layouts, in such cases Floor Space Index shall be the75 per cent of the basic Floor Space Index.
By order and in the name of Governor of Maharashtra, SUBMISSIONS 18 The learned senior counsel appearing for the petitioner in PIL No.80 of 2013 has made detailed submissions. The first submission is that permitting/regularizing the constructions is contrary to the town planning laws and the Development Plan under the MRTP Act. It violates the rights of the citizens guaranteed under Article 21 of the Constitution of India. In support of the submissions, he has has placed reliance on the decisions of the Apex Court in the case of Virendra Gaur vs. State of Haryana1, M.C.Mehta vs. Union of India and others2, Dr.Mahesh Bedekar vs. State of Maharashtra3, Janhit Manch and another vs. State of Maharashtra and others4, Dipak K. Mukherjee vs. Kolkatta Municipal Corporation5, Consumer Action Group vs. State of Tamil Nadu and others 6. He 1 (1995) 2 SCC 577 2 2004 (6) SCC 588 3 2016 SCC Online 8894 (Bom) 4 2006 SCC Online 1145 (Bom) 5 (2013) 5 SCC 336 6 AIR 2000 SC 3060::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:56 ::: 30 pointed out that Article 21 of the Constitution of India encompasses within its ambit protection and preservation of environmental and ecological balance. Right to reside in a pollution free atmosphere is also a part of it. He submitted that if open lands vested in Local Authorities which are meant for public amenity to the residents of the locality are allowed to be constructed upon, it will adversely affect the health and environment and it will affect ecology. He submitted that en- bloc regularization of illegal structures will put an extra load on existing infrastructure which will be violative of Article 21 of the Constitution of India. His submission is that there is no material placed on record to show the impact of regularization of such large number of illegal constructions across the State on the environment, ecology and infrastructure. He urged that the regularization of such large number of structures cannot be countenanced if the same is going to violate the rights of the citizens under Article 21 of the Constitution of India. He submitted that the planned development of cities is also a facet of right to life as held by this Court in the case of P.G.Gupta vs. State of Gujrat and others7. He urged that the right to life under Article 21 of the Constitution of India includes living in a clean environment with proper infrastructural needs. He submitted that the rights of the citizens cannot be defeated on the pretext of 7 1995 Supp (2) SCC 182::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:56 ::: 31 protecting those who continue to occupy public lands. He also pointed out the decision of the Apex Court in the case of Consumer Action Group Vs. State of Tamil Nadu (supra). He pointed out that though the challenge to section 113 of the Tamil Nadu Town and Country Planning Act which provided for regularization of large number of structures failed, the Apex Court has considered only the arguments based on violation of Article 14 of the Constitution of India on the ground of absence of guidelines and on the ground that the provisions conferred unbridled power. He pointed out that the Apex Court confirmed the decision of the Madras High Court in the case of Consumer Action Group (supra) by which an amendment Act extending cut off date for regularization under section 113A of the Tamil Nadu Town and Country Planning Act was struck down by the High Court on the ground of violation of the rights under Articles 14 and 21 of the Constitution of India.
19 The learned senior counsel relied upon the decision of the Apex Court in the case of Deena @ Deen Dayal and others vs. Union of India and others8 and submitted that when it is demonstrated that a particular enactment violates the rights under Article 21 of the Constitution of India, heavy burden lies on the State to justify by placing a cogent material and evidence that the legislation is necessary and it is just, fair and reasonable.
8 1983 (4) SCC 645::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:56 ::: 32 He relied upon various paragraphs of the said decision. He submitted that Article 21 refers to not only procedural due process but also to substantive due process as Articles 14 and 19 will have to read with Article 21. He relied upon the recent decision of the Apex Court in the case of K.S.Puttaswamy Vs. Union of India9.
20 He made a submission that section 52-A as well as the Compounded Structure Rules are arbitrary, unreasonable and unfair. For that purpose, he has taken us through the various provisions of the said Rules. He pointed out that the State Government has not relied upon any material or survey report which deals with the impact of such large scale regularization of the illegal structures.
21 His submission is that the wholesale regularization of such large number of structures on the lands reserved for railways, roads, Metro, public purposes except gardens and buildable reservation on Government lands will have a direct impact on the existing infrastructural facilities, public amenities and the life of lawful residents. He submitted that no such study has been made by the State Government before enacting the Amendment Act. He would urge that difficulties which may be faced in demolition of the illegal structures and providing housing is no ground to defeat the fundamental rights of the citizens under Article 21 9 (2017) 10 SCC 1::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:56 ::: 33 of the Constitution of India.
22 In support of PIL No.80 of 2013, submissions are the same. In support of PIL No.29 of 2018, the learned senior counsel for the petitioner submitted that the Amendment Act and the Compounded Structure Rules are violative of Article 14 on the ground that there is no object sought to be achieved. He submitted that the object, if any, has to be a constitutionally permissible object and that there has to be a rational nexus to any object sought to be achieved. He urged that section 52-A of the Amendment Act does not lay down any guidelines for Planning Authorities and the State Government to whom legislature has delegated power to regularize the structures and in absence of guidelines, impugned Amendment Acts and the Compounded Structure Rules, suffer from excessive delegation. He pointed out that the statement of objects of the Amendment Act. He pointed out that only rationale is to overreach the decisions of this Court by which permission to implement policy of regularization was refused. He submitted that by a legislation, the basis of the judicial pronouncement can be taken away. However,in this case, without taking away the basis of the judicial decisions, a legislation is sought to be made only with a view to overruling the judicial pronouncement. ::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:56 ::: 34
23 He urged that the impugned Amendment Act is arbitrary and it is well settled that arbitrariness is a ground to challenge a legislation. The learned senior counsel relied upon the decision of the Constitution Bench of the Apex Court in the case of E.P.Royappa vs. State of Tamil Nadu10. He also relied upon another decision of the Apex Court in the case of Maneka Gandhi vs. Union of India 11. He submitted that the observations made in paragraph 62 of the decision of the Apex Court in the case of Rajbala and others Vs. State of Haryana and others12 do not support the argument that any proposition contrary to the earlier decisions in the case of E.P.Royappa (supra) and Maneka Gandhi (supra) has been laid down. He submitted that the Amendment Act introduces discrimination which is violative of Article 14 of the Constitution of India. He submitted that a power is conferred on the State Government to permit regularization of the structures within the jurisdiction of different Planning Authorities by imposing different terms and conditions. He submitted that the said provision discriminates between the persons who can afford to make payment of infrastructural charges, compounding charges and premium and those who are not in a position to pay the said amounts. He submitted that neither in the statement of objects and reasons nor in the affidavit in reply filed by the State Government, it is stated that 10 (1974) 4 SCC 3 11 (1978) 1 SCC 248 12 (2016) 2 SCC 445::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:56 ::: 35 any detailed survey was conducted by the State Government. He submitted that some of the Rules show that the legislature has even given a total go-by to the reservations under the Development Plans thereby sacrificing the interests of general public. Relying upon section 53A(2), he submitted that in case of an elected councilor who carries out illegal construction, if the illegal construction is compounded, even proceedings for disqualification cannot be initiated. He submitted that in absence of guidelines given to the Planning Authorities and the State Government to whom power to regularize has been delegated, the provisions of the Amendment Act become vulnerable. He placed reliance on the decision of the Apex Court in the case of Kishan Prakash Sharma and others Vs. Union of India and others13. He also submitted that even the provisions of the Compounded Structure Rules become vulnerable. The submission of the learned counsel for the petitioner in PIL No.82 of 2017 are similar to those of the other petitions.
24 The learned counsel for the applicant in Civil Application Nos.33 and 50 of 2017 in PIL No.80 of 2013 (petitioners in Writ Petition Nos.4927 of 2017 and 7167 of 2017) opposed the petitions. He submitted that the power of the Courts in India of judicial review are limited to due procedure under Article 21 of the Constitution of India and substantive due process cannot be invoked. He 13 (2001) 5 SCC 212::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:56 ::: 36 submitted that only ground on which a provision of law enacted by a competent legislature can be struck down is that it is violative of some provisions of the Constitution. He submitted that properly enacted law cannot be struck down as being arbitrary. He submitted that a law which gives any judicial power to executive can also be struck down as being arbitrary as it does not comply with the rationale of law or of the purpose for which such executive power is granted. He submitted that there is no challenge in the PILs to the provisions of the Amendment Act and the Compounded Structure Rules on the ground of lack of legislative competence. He invited our attention to the objects of MRTP Act which are reflected from its preamble. He submitted that the main object of the MRTP Act is planned development and use of the land. He submitted that the plans envisaged by the MRTP Act are required to be prepared after taking into consideration the existing condition of the lands from time to time. He submitted that necessarily the plans prepared under the MRTP Act have to provide for regularization of the structures which may be already existing on the lands unless the Planning Authority keeping in view the object of making a plan or scheme under the MRTP Act in a proper manner prefers to demolish the illegal structures. He submitted that the object of MRTP Act is not only to demolish illegally built structures but to plan “Developments and use of land” to ensure that the::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:56 ::: 37 town planning schemes are made in a proper manner and their execution is effectively made. He submitted that in given circumstances, planning can be best made by providing for regularization of certain structures built illegally. He submitted that if for tackling the issue of large scale illegal constructions, the State Government can provide for regularizing the same, it will be perfectly within the four corners of the MRTP Act. Therefore, the legislature in its wisdom can fix a cut off date and provide that structures illegally erected before the said cut off date could be regularized. He submitted that if such provision is made by amending the MRTP Act, the same would be perfectly legal. He submitted that in a given case, it is not necessary to fix the cut off date. He relied upon a decision of Gujarat High Court in the case of Shivlal K. Purohit and others Vs. State of Gujarat14. He invited our attention to section 113A and 113C of Tamil Nadu enactment dealing with the town planning. He submitted that by amendment, cut off dates for tolerating illegal structures were changed from time to time. He submitted that such amendments were held to be legal. In this behalf, he relied upon the decision of Madras High Court in the case of K.R.Ramaswamy alias Traffic Ramaswamy Vs. State of Tamil Nadu15. He submitted that Karnataka High Court upheld the similar amendments on a particular cut off date made by the 14 2012 SCC OnLine Guj 5059 15 2014 (1) L.W.657::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:56 ::: 38 legislature of Karnataka.
25 Dealing with the argument of discrimination, he submitted that discrimination per se does not violate Article 14 of the Constitution of India. He submitted that the question is whether categories created are intelligible and separate and whether creation of categories has nexus with the object sought to be achieved. He submitted that in case of impugned Amendment Act, the object sought to be achieved is planned development and use of lands. He urged that the object is to ensure that various plans under the MRTP Act are effectively implemented and executed. He submitted that that is the reason why there is a provision made for payment of Compounding charges, Infrastructure charges etc. He submitted that the provisions relating to the said charges have direct a nexus with the object sought to be achieved by the Amendment Act. He submitted that merely because an argument is made that only the rich people may be able to pay the Compounding charges as well as Infrastructure charges and poor people may not able to pay the same is not sufficient to uphold the contention regarding violation of Article 14 of the Constitution of India. He submitted that the amendment cannot become discriminatory because different Planning Authorities are entitled to have different norms for Compounding of illegal structures. He submitted that different areas have different plans having different Development::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:56 ::: 39 Control Regulations. That is the reason why each area can have separate norms.
26 He submitted that as far as India is concerned, the substantive due process of law cannot be read into Article 21 of the Constitution of India. He submitted that the right claimed by the PIL petitioners to clean environment and better conditions of life under Article 21 of the Constitution of India has to be weighed against the right to have a shelter available to the citizens under Article 21 of the Constitution of India. He submitted that both the rights which are available under Article 21 of the Constitution of India can be curtailed to the extent considered necessary by the competent legislature. He urged that the substantive due process of law as urged by the petitioners cannot be applied. He submitted that the argument that the Amendment Act has been enacted to overrule the Judgments of this Court is completely erroneous. He pointed out that on two occasions, the State Government came out with a policy for regularization and this Court held that the policy was illegal on the ground that it is not consistent with the law. He submitted that now, the legislature has amended the MRTP Act by the Amendment Act which is perfectly permissible. He relied upon the decision of the Apex Court in the case of Bakhtawar Trust and others vs. M.D.Narayan and others16. He submitted that the said decision 16 (2003) 5 SCC 298::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:56 ::: 40 accepts the proposition that such a law could be framed by a competent legislature. He submitted that there is no properly constituted challenge to the Compounded Structure Rules. He submitted that if an occasion arises, the applicants reserve their right of challenging the Compounded Structure Rules. He made submissions on anomaly created by the use of words “twenty four hours” which were introduced by the Amended Act in clause (a) of sub-
section 1 of section 53 of the MRTP Act. He submitted that clauses (a) and (b) of sub-section 1 of section 53 will have to be harmoniously construed. Anomaly can be removed by reading down clause (a) of sub-section 1 of section 53 by striking down the words “twenty four hours”.
27 The learned senior counsel for the State and the learned Government Pleader by relying upon the decision of the Apex Court in the case of Chameli Singh and others Vs. State of U.P. and another 17 urged that the right of human being to shelter was held to be a basic human right. It is an essential requisite of the right to live. They relied upon the decision of the Apex Court in the case of Ahmednagar Municipal Corporation vs. Nawab Khan Gulab Khan and others18 wherein it is held that the State has a Constitutional duty to provide adequate facilities by distributing its wealth and resources for erection of shelter for the citizens to make their life meaningful, effective and fruitful. 17 (1996) 2 SCC 549 18 (1997) 11 SCC 121::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:56 ::: 41 Reliance was placed upon other two decisions of the Apex Court in the cases of P.G.Gupta vs. State of Gujrat and others (supra) and U.P.Avas Evam Vikas Parishad and another vs. Friends Co-operative Housing Society Limited and another19, in support of the proposition that the right to shelter is a fundamental right guaranteed to citizens which springs from right to residence under Article 19(1)
(e) and Right to life under Article 21 of the Constitution of India.
28 It is submitted that the State Government took a note of large scale illegal structures in the entire State. It is submitted that the State Government felt that it is impossible to demolish a huge number of illegal constructions which would render a huge number of occupants and other flat purchasers homeless and without shelter. He submitted that the State does not possess adequate lands, and therefore, the State will not able to bear the burden of providing shelter to all the occupants. He submitted that the State cannot ignore its constitutional obligation to provide shelter to the citizens and to protect their lives. It is submitted (and it is specifically recorded in the written submissions filed by the State) that the legislature has enacted section 52-A as one time measure which permits compounding of certain illegal structures within the permissible limits and guidelines provided under the Compounded 19 1995 Supp (3) SCC 456::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:56 ::: 42 Structure Rules.
29 The learned Government Pleader submitted that there is always a presumption in favour of the legality of a statute. He submitted that the Amendment Act does not provide en-bloc for regularization of the illegal structures erected up to 31st December 2015 and in fact, parameters have been specifically laid down in the Compounded Structure Rules as to which illegal structures can be regularized. He submitted that ultimately, the legislature has to make an endeavour to strike the balance between the object of planned development under the MRTP Act and the protection right to shelter which is guaranteed to the citizens under Article 21 of the Constitution of India.
30 Relying upon the decision of the Apex Court in the case of State of Bihar vs. Bihar Distillery20, he urged that while deciding the issue of constitutional validity of an enactment, the Court has to start with the presumption of Constitutionality. He submitted that it is the duty of the Court to sustain the validity of legislation to the extent possible and the Court can strike down the statute only when it is impossible to sustain the same. He submitted that no statute could be declared as void unless it’s unconstitutionality is plainly and clearly established. He relied upon the observations of 20 (1997) 2 SCC 453::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:56 ::: 43 the Apex Court laying down the approach of the Court in such matters. He also relied upon the decision of the Apex Court in the case of Mark Netto vs. State of Kerala21. He submitted that the Court will have to presume that the legislature understands and appreciates the needs of the people and the laws it enacts are with the object of solving the problems. He submitted that the elected representatives who assemble in the legislature have collective experience. He relied upon another decision of the Apex Court in the case of B.R.Enterprises vs. State of U.P 22. He urged that the law is well settled. Mere possibility of abuse of law is not at all a ground to hold it to be unconstitutional. He relied upon the decision of the Apex Court in the case of Sushil Kumar vs. Union of India23. He submitted that the validity of a statute can be challenged only on two well recognized grounds, (i) absence of the competence of the legislature and (ii) clear violation of the provisions of the Constitution. He urged that a statute cannot be struck down on the ground of arbitrariness. He relied upon the decision of the Apex Court in the case of Government of A.P vs. P. Lakshmi Devi24 as well as another decision in the case of Rajbala and others vs. State of Haryana and others (supra).
31 He also relied upon well known decision of the 21 (1979) 1 SCC 23 22 (1999) 9 SCC 700 23 (2005) 6 SCC 281 24 (2008) 4 SCC 720::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:56 ::: 44 Apex Court in the case of Welfare Association A.R.P. Maharashtra and another vs. Ranjit P. Gohil25 and submitted that the burden is on the petitioners to prove transgression of the constitutional principles.
32 He submitted that the legislature has taken a note of the large number of the illegal constructions which have come up in the State and the fact that the large number of citizens will be affected by demolition of the illegal constructions. He reiterated that as one time measure, the legislature has come out with section 52-A. He submitted that such one time measure has been approved by the Apex Court in the case of Consumer Action Group and another vs. State of Tamil Nadu and others. He also criticized the argument based on arbitrariness of the cut off date. He submitted that there is nothing capricious and whimsical about such cut off date. He relied upon the decision of the Apex Court in the case of D.S.Nakara and others vs. Union of India26.
33 He submitted that the challenge to section 52-A on the basis of the alleged violation of Article 14 cannot be sustained and the argument that the unbridled and unfettered power is conferred to regularize the structures has no basis in view of the Compounded Structure Rules. 25 (2003) 9 SCC 358 26 (1983) 1 SCC 305::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:56 ::: 45 He submitted that the reliance placed on the decision of the Apex Court in the case of Deena @ Deen Dayal and others (supra) is misplaced as it was the case where the challenge was to the method of imposing death penalty. In that context, the Apex Court shifted the burden on the State to show that the action was in terms of the procedure established by law.
34 He submitted that the Compounded Structure Rules provide for detailed guidelines as to in what manner the power under section 52-A can be exercised. He urged that the said Rules provide for several cases in which illegal structures can be declared as compounded structures.
35 The learned Government Pleader lastly relied upon the decision of the Apex Court in the case of Bombay Dyeing & Manufacturing Co. Limited (3) vs. Bombay Environmental Action Group and others27. He pointed out that the Apex Court categorically held that the requirement of entire population of Mumbai from environmental aspect cannot be a factor to be taken into consideration for interpretation of a statute. He submitted that the statute has to be considered as a legislative thought and it cannot be looked with a coloured glass. In the context of a challenge based on violation of rights under Article 21 of the Constitution of India, he submitted that the 27 (2006) 3 SCC 434::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:56 ::: 46 Compounded Structure Rules specifically provide that the structures in eco-sensitive areas, mangroves areas, river banks, CRZ areas cannot be declared as Compounded Structures and hence, cannot be regularized. He submitted the Compounded Structure Rules itself show that the legislature has made every possible effort to ensure that regularization of illegal structures does not affect the environment. He would, therefore, submit that section 52A and the Compounded Structure Rules are not ultra virus and the challenge to the same must failed.
36 The learned counsel for the MIDC and the CIDCO have submitted that their stand cannot be contrary to the stand of the State Government. The stand of the said Corporation appears to be the same.
37 Shri Nedumpara, the learned counsel appearing for one of the Intervenors urged that these PILs are not maintainable as there is no public interest involved. He submitted that admittedly a number of citizens will be affected by the orders which may be passed in the PILs and none of them are the parties to the petitions. He pointed out that these two PILs ought not to have been entertained. He urged that by no stretch of imagination, it can be said that the petitioners are pro-bono litigants. He submitted that the amendment under challenge is itself made::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:56 ::: 47 in public interest.
38 He submitted that a Public Interest Litigation can be entertained only for the benefit of the poor and downtrodden who by reason of poverty or otherwise are unable to approach the Court of law. He urged that the petitioners in these PILs do not fall in the said category. He submitted that the petitioners cannot seek a direction for demolition of large number of structures without impleading the persons who will be directly affected as the party respondents.
39 We have carefully considered the submissions. We have carefully examined all the decisions relied upon by the parties.
CONSIDERATION OF THE AFORESAID PRELIMINARY OBJECTION 40 The Apex Court in the case of Avishek Goenka (2) v. Union of India28 held thus: 13. The judgment dated 27-4-2012 [Avishek Goenka (1) v. Union of India, (2012) 5 SCC 321 : (2012) 2 SCC (Cri) 712] was passed in a public interest litigation and the orders passed by this Court would be operative in rem. It was neither expected of the Court nor is it the requirement of law that the Court should have issued notice to every shopkeeper selling the films, every distributor distributing the films and every manufacturer manufacturing the films. But, in any case, this was a widely covered matter by the Press.
It was incumbent upon the applicants to approach the Court, if 28 (2012) 8 SCC 44::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:56 ::: 48 they wanted to be heard at that stage. The writ petition was instituted on 6-5-2011 and the judgment in the case was pronounced after hearing all concerned, including the Union Government, on 27-4-2012 [Avishek Goenka (1) v. Union of India, (2012) 5 SCC 321 : (2012) 2 SCC (Cri) 712] , nearly after a year. Hence, this ground raised by the applicants requires noticing only for being rejected.
(emphasis added) 41 In the present case, the record will show that number of affected persons have been heard. Mr.Singhvi, learned Senior Counsel has made very detailed submissions on behalf of the persons for whose benefit the Amendment Act has been enacted. The record will show that large number of affected persons are aware of the proceedings. Wide publicity was given in media about the pendency of the issues in these matters. The law laid down as above will squarely apply. Therefore, we reject the argument of Shri Nedumpara. No one has seriously challenged the locus of the Petitioners as pro- bono litigants by placing any material on record. The issues involved in these PILs affect fundamental rights of large number of citizens. The issues affect the future of the planning in the cities in the State. Hence, the objection to maintainability of PILs stands rejected. The interim directions issued by this Court direct the Planning Authorities to demolish the illegal structures only after following due process of law. The directions ensure that no illegal structure is demolished without giving an::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:56 ::: 49 opportunity of being heard as provided in law.
SCOPE OF CHALLENGE TO STATUTORY PROVISIONS ON THE BASIS OF VIOLATION OF ARTICLES 14 AND 21 42 It is well settled that there is always a presumption that a statute is valid. It is not necessary to reproduce the large number of decisions relied upon in that behalf. As far as the scope of challenge to constitutional validity of a legislation is concerned, in the case of Binoy Viswam vs Union of India29, in paragraph 76, the Apex Court held that “Scope of judicial review of the legislative Act”
76. Under the Constitution, Supreme Court as well as High Courts are vested with the power of judicial review of not only administrative acts of the executive but legislative enactments passed by the legislature as well. This power is given to the High Courts under Article 226 of the Constitution and to the Supreme Court under Article 32 as well as Article 136 of the Constitution. At the same time, the parameters on which the power of judicial review of administrative act is to be undertaken are different from the parameters on which validity of legislative enactment is to be examined. No doubt, in exercises of its power of judicial review of legislative action, the Supreme Court, or for that matter, the High Courts can declare law passed by Parliament or the State Legislature as invalid. However, the power to strike down primary legislation enacted by the Union or the State Legislatures is on limited grounds. Courts can strike down legislation either on the basis that it falls foul of federal distribution of powers or that it contravenes fundamental rights or other constitutional rights/provisions of the Constitution of India. No doubt, since the Supreme Court and the High Courts are treated as the ultimate arbiter in all matters involving interpretation of the Constitution, it is the courts which have the final say on questions relating to rights and whether such a right is violated or not. The basis of the aforesaid statement lies in Article 13(2) of the Constitution which proscribes the State from making “any law which takes away or abridges the right conferred by Part III”, enshrining fundamental rights. It categorically states that 29 (2017) 7 SCC 59::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:56 ::: 50 any law made in contravention thereof, to the extent of the contravention, be void.
77. We can also take note of Article 372 of the Constitution at this stage which applies to pre-constitutional laws. Article 372(1) reads as under:
“372. Continuance in force of existing laws and their adaptation.–(1) Notwithstanding the repeal by this Constitution of the enactments referred to in Article 395 but subject to the other provisions of this Constitution, all the laws in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent legislature or other competent authority.” In the context of judicial review of legislation, this provision gives an indication that all laws enforced prior to the commencement of the Constitution can be tested for compliance with the provisions of the Constitution by courts. Such a power is recognized by this Court in Union of India v. Sicom Ltd. [Union of India v. Sicom Ltd., (2009) 2 SCC 121] In that judgment, it was also held that since the term “laws”, as per Article 372, includes common law the power of judicial review of legislation, which is a part of common law applicable in India before the Constitution came into force, would continue to vest in the Indian courts.
78. With this, we advert to the discussion on the grounds of judicial review that are available to adjudge the validity of a piece of legislation passed by the legislature. We have already mentioned that a particular law or a provision contained in a statute can be invalidated on two grounds, namely: (i) it is not within the competence of the legislature which passed the law, and/or (ii) it is in contravention of any of the fundamental rights stipulated in Part III of the Constitution or any other right/provision of the Constitution.
Ultimately, in paragraph 83, the Apex Court held thus:
83. It is, thus, clear that in exercise of power of judicial review, the Indian courts are invested with powers to strike down primary legislation enacted by Parliament or the State Legislatures. However, while undertaking this exercise of judicial review, the same is to be done at three levels. In the first stage, the Court would examine as to whether impugned provision in a legislation is compatible with the fundamental rights or the constitutional provisions (substantive judicial review) or it falls foul of the federal distribution of powers (procedural judicial review). If it is not found to be so, no further exercise is needed as::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:56 ::: 51 challenge would fail. On the other hand, if it is found that legislature lacks competence as the subject legislated was not within the powers assigned in the List in Schedule VII, no further enquiry is needed and such a law is to be declared as ultra vires the Constitution. However, while undertaking substantive judicial review, if it is found that the impugned provision appears to be violative of fundamental rights or other constitutional rights, the Court reaches the second stage of review. At this second phase of enquiry, the Court is supposed to undertake the exercise as to whether the impugned provision can still be saved by reading it down so as to bring it in conformity with the constitutional provisions. If that is not achievable then the enquiry enters the third stage. If the offending portion of the statute is severable, it is severed and the Court strikes down the impugned provision declaring the same as unconstitutional.
(emphasis added) Another decision on this aspect is the decision of the Apex Court in the case of Deena @ Deen Dayal and Others vs. Union of India and others (supra). By the said decision, the Apex Court held that it is permissible to challenge the validity of a statute on the ground of violation of Article 14 of the Constitution of India. The Apex Court also dealt with the issue of burden of proof as regards the challenge based on Articles 14, 19 as well as 21 of the Constitution. In paragraph 17 of the said decision, the Apex Court held thus: “17 Thus, there is a fundamental distinction between cases::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:56 ::: 52 arising under Article 14 and those which arise under Articles 19 and 21 of the Constitution. In a challenge based on the violation of Articles 19 and 21, the petitioner has undoubtedly to plead that, for example, his right to free speech and expression is violated or that he is deprived of his right to life and personal liberty. But once he shows that which really is not a part of the “burden of proof”, it is for the State to justify the impugned law or action by proving that, for example, the deprivation of the petitioner’s right to free speech and expression is saved by clause (2) of Article 19 since it is in the nature of a reasonable restriction on that right in the interests of matters mentioned in clause (2), or that, the petitioner has been deprived of his life or personal liberty according to a just, fair and reasonable procedure established by law. In cases arising under Article 19, the burden is never on the petitioner to prove that the restriction is not reasonable or that the restriction is not in the interests of matters mentioned in clause (2). Likewise, in cases arising under Article 21, the burden is never on the petitioner to prove that the procedure prescribed by law which deprives him of his life or personal liberty is unjust, unfair or unreasonable. That is why the ratio of cases which fall under the category of the decision in Ram Krishna Dalmia must be restricted to those arising under Article 14 and cannot be extended to cases arising under Article 19 of Article 21 of the Constitution.” (emphasis added) 43 In paragraph 22, of the same decision, the Apex Court held thus: ::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:57 ::: 53 “22 Another decision in the same category of cases is Mohd. Faruk V. State of Madhya Pradesh, in which the State Government issued a notification cancelling the confirmation of the municipal bye-laws in so far as they related to the permission to the slaughtering of bulls and bullocks. Dealing with the challenge of the petitioner to the notification on the ground that it infringed his fundamental right under Article 19 (1) (g) of the Constitution Shah,J., who spoke for the Constitution Bench observed: (SCC pp.856-57,para8) When the validity of a law placing restriction upon the exercise of fundamental rights in Article 19(1) is challenged, the onus of proving to the satisfaction of the Court that the restriction is reasonable lies upon the State…. Imposition of restriction on the exercise of a fundamental right may be in the form of control or prohibition, but when the exercise of a fundamental right is prohibited, the burden of proving that a total ban on the exercise of the right alone may ensure the maintenance of the general public interest lies heavily upon the State. When, in a matter arising under Article 21, the person aggrieved is found to have been totally deprived of his personal liberty or is being deprived of his right to life, the burden of proving that the procedure established by law for such deprivation is just, fair and reasonable lies heavily upon the State.” (emphasis added) 44 Another decision of the Constitution Bench of the Apex Court which is very material on the aspect::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:57 ::: 54 is in the case of K.S.Puttaswamy Vs. Union of India (supra). The Apex Court was dealing with the right of privacy which is guaranteed by Article 21 of the Constitution. The majority view which is reflected from the erudite exposition by Dr D.Y.
Chandrachud, J. (On behalf of Khehar, C.J., Agrawal, J., himself and Nazeer, J.) reads thus: “291. Having noticed this, the evolution of Article 21, since the decision in Cooper [Rustom Cavasjee Cooper v. Union of India, (1970) 1 SCC 248] indicates two major areas of change. First, the fundamental rights are no longer regarded as isolated silos or watertight compartments. In consequence, Article 14 has been held to animate the content of Article 21. Second, the expression “procedure established by law” in Article 21 does not connote a formalistic requirement of a mere presence of procedure in enacted law. That expression has been held to signify the content of the procedure and its quality which must be fair, just and reasonable. The mere fact that the law provides for the deprivation of life or personal liberty is not sufficient to conclude its validity and the procedure to be constitutionally valid must be fair, just and reasonable. The quality of reasonableness does not attach only to the content of the procedure which the law prescribes with reference to Article 21 but to the content of the law itself. In other words, the requirement of Article 21 is not fulfilled only by the enactment of fair and reasonable procedure under the law and a law which does so may yet be susceptible to challenge on the ground that its content does not accord with the requirements of a valid law. The law is open to substantive challenge on the ground that it violates the fundamental right. ……………………. 294. The Court, in the exercise of its power of judicial review, is unquestionably vested with the constitutional power to adjudicate upon the validity of a law. When the validity of a law is questioned on the ground that it violates a guarantee contained in Article 21, the scope of the challenge is not confined only to whether the procedure for the deprivation of life or personal liberty is fair, just and reasonable. Substantive challenges to the validity of laws encroaching upon the right to life or personal liberty has been considered and dealt with in varying contexts, such as the death penalty (Bachan Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684 : 1980 SCC (Cri) 580] ) and mandatory death sentence (Mithu [Mithu v. State of Punjab, (1983) 2 SCC 277 : 1983 SCC (Cri) 405] ), among other cases. A person cannot be deprived of life or personal liberty except in accordance with the procedure established by law. Article 14, as a guarantee against arbitrariness, infuses the entirety of Article 21. The interrelationship between the guarantee against arbitrariness and the protection of life and personal liberty operates in a multi-faceted plane. First, it ensures that the procedure::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:57 ::: 55 for deprivation must be fair, just and reasonable. Second, Article 14 impacts both the procedure and the expression “law”. A law within the meaning of Article 21 must be consistent with the norms of fairness which originate in Article 14. As a matter of principle, once Article 14 has a connect with Article 21, norms of fairness and reasonableness would apply not only to the procedure but to the law as well. 295. Above all, it must be recognized that judicial review is a powerful guarantee against legislative encroachments on life and personal liberty. To cede this right would dilute the importance of the protection granted to life and personal liberty by the Constitution. Hence, while judicial review in constitutional challenges to the validity of legislation is exercised with a conscious regard for the presumption of constitutionality and for the separation of powers between the legislative, executive and judicial institutions, the constitutional power which is vested in the Court must be retained as a vibrant means of protecting the lives and freedoms of individuals. 296. The danger of construing this as an exercise of “substantive due process” is that it results in the incorporation of a concept from the American Constitution which was consciously not accepted when the Constitution was framed. Moreover, even in the country of its origin, substantive due process has led to vagaries of judicial interpretation. Particularly having regard to the constitutional history surrounding the deletion of that phrase in our Constitution, it would be inappropriate to equate the jurisdiction of a constitutional court in India to entertain a substantive challenge to the validity of a law with the exercise of substantive due process under the US Constitution. Reference to substantive due process in some of the judgments is essentially a reference to a substantive challenge to the validity of a law on the ground that its substantive (as distinct from procedural) provisions violate the Constitution.
(emphasis added) 45 The controversy whether a legislation can be challenged on the ground of violation of Article 14 is now laid to rest by a recent decision of the five Judge Constitution Bench of the Apex Court in the case of Shayara Bano v. Union of India30. Rohinton Fali Nariman,J. speaking for himself and on behalf of Lalit,J., held thus: “67. We now come to the development of the doctrine of arbitrariness and its application to State action as a distinct doctrine on which State action may be struck down as being violative of the rule of law contained in Article 14. In a significant passage, Bhagwati, 30 (2017) 9 SCC 1::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:57 ::: 56 J., in E.P. Royappa v. State of T.N. [E.P. Royappa v. State of T.N., (1974) 4 SCC 3 : 1974 SCC (L&S) 165] stated: (SCC p. 38, para 85) “85. The last two grounds of challenge may be taken up together for consideration. Though we have formulated the third ground of challenge as a distinct and separate ground, it is really in substance and effect merely an aspect of the second ground based on violation of Articles 14 and 16. Article 16 embodies the fundamental guarantee that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Though enacted as a distinct and independent fundamental right because of its great importance as a principle ensuring equality of opportunity in public employment which is so vital to the building up of the new classless egalitarian society envisaged in the Constitution, Article 16 is only an instance of the application of the concept of equality enshrined in Article 14. In other words, Article 14 is the genus while Article 16 is a species. Article 16 gives effect to the doctrine of equality in all matters relating to public employment. The basic principle which, therefore, informs both Articles 14 and 16 is equality and inhibition against discrimination. Now, what is the content and reach of this great equalizing principle? It is a founding faith, to use the words of Bose, J., “a way of life”, and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be “cribbed, cabined and confined” within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it effects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reason for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to mala fide exercise of power and that is hit by Articles 14 and 16. Mala fide exercise of power and arbitrariness are different lethal radiations emanating from the same vice: in fact the latter comprehends the former. Both are inhibited by Articles 14 and 16.” 68. This was further fleshed out in Maneka Gandhi v. Union of India [Maneka Gandhi v. Union of India, (1978) 1 SCC 248] , where, after stating that various fundamental rights must be read together and must overlap and fertilise each other, Bhagwati, J., further amplified this doctrine as follows: (SCC pp. 283-84, para 7)::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:57 ::: 57 “The nature and requirement of the procedure under Article 21 7. Now, the question immediately arises as to what is the requirement of Article 14: what is the content and reach of the great equalising principle enunciated in this article? There can be no doubt that it is a founding faith of the Constitution. It is indeed the pillar on which rests securely the foundation of our democratic republic. And, therefore, it must not be subjected to a narrow, pedantic or lexicographic approach. No attempt should be made to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits. We must reiterate here what was pointed out by the majority in E.P. Royappa v. State of T.N. [E.P. Royappa v. State of T.N., (1974) 4 SCC 3 : 1974 SCC (L&S) 165] , namely, that: (SCC p. 38, para 85) ’85. … From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic, while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14….’Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be “right and just and fair” and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied.” 70. That the arbitrariness doctrine contained in Article 14 would apply to negate legislation, subordinate legislation and executive action is clear from a celebrated passage in Ajay Hasia v. Khalid Mujib Sehravardi [Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722 : 1981 SCC (L&S) 258] : (SCC pp. 740-41, para 16) “16. … The true scope and ambit of Article 14 has been the subject-matter of numerous decisions and it is not necessary to make any detailed reference to them. It is sufficient to state that the content and reach of Article 14 must not be confused with the doctrine of classification. Unfortunately, in the early stages of the evolution of our constitutional law, Article 14 came to be identified with the doctrine of classification because the view taken was that that article forbids discrimination and there would be no discrimination where the classification making the differentia fulfils two conditions, namely, (i) that the classification is founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group; and (ii) that that differentia has a rational relation to the object sought to be achieved by the impugned legislative or executive action. It was for the first::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:57 ::: 58 time in E.P. Royappa v. State of T.N. [E.P. Royappa v. State of T.N., (1974) 4 SCC 3 : 1974 SCC (L&S) 165] that this Court laid bare a new dimension of Article 14 and pointed out that that article has highly activist magnitude and it embodies a guarantee against arbitrariness. This Court speaking through one of us (Bhagwati, J.) said: (SCC p. 38, para 85) ’85. … The basic principle which, therefore, informs both Articles 14 and 16 is equality and inhibition against discrimination. Now, what is the content and reach of this great equalising principle? It is a founding faith, to use the words of Bose, J., “a way of life”, and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be “cribbed, cabined and confined” within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it effects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment.’ This vital and dynamic aspect which was till then lying latent and submerged in the few simple but pregnant words of Article 14 was explored and brought to light in Royappa case [E.P. Royappa v. State of T.N., (1974) 4 SCC 3 : 1974 SCC (L&S) 165] and it was reaffirmed and elaborated by this Court in Maneka Gandhi v. Union of India [Maneka Gandhi v. Union of India, (1978) 1 SCC 248] where this Court again speaking through one of us (Bhagwati, J.) observed: (SCC pp. 283-84, para 7) ‘7. Now the question immediately arises as to what is the requirement of Article 14: what is the content and reach of the great equalising principle enunciated in this article? There can be no doubt that it is a founding faith of the Constitution. It is indeed the pillar on which rests securely the foundation of our democratic republic. And, therefore, it must not be subjected to a narrow, pedantic or lexicographic approach. No attempt should be made to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits. … Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non- arbitrariness pervades Article 14 like a brooding omnipresence….’::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:57 ::: 59 This was again reiterated by this Court in International Airport Authority case [Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489 : (1979) 3 SCR 1014] , SCR at p. 1042 (SCC p. 511) of the Report. It must therefore now be taken to be well settled that what Article 14 strikes at is arbitrariness because any action that is arbitrary, must necessarily involve negation of equality. The doctrine of classification which is evolved by the courts is not paraphrase of Article 14 nor is it the objective and end of that article. It is merely a judicial formula for determining whether the legislative or executive action in question is arbitrary and therefore constituting denial of equality. If the classification is not reasonable and does not satisfy the two conditions referred to above, the impugned legislative or executive action would plainly be arbitrary and the guarantee of equality under Article 14 would be breached. Wherever therefore there is arbitrariness in State action whether it be of the legislature or of the executive or of an “authority” under Article 12, Article 14 immediately springs into action and strikes down such State action. In fact, the concept of reasonableness and non- arbitrariness pervades the entire constitutional scheme and is a golden thread which runs through the whole of the fabric of the Constitution.” 72. Close upon the heels of this judgment, a discordant note was struck in State of A.P. v. McDowell & Co. [State of A.P. v. McDowell and Co., (1996) 3 SCC 709] Another three-Judge Bench, in repelling an argument based on the arbitrariness facet of Article 14, held: (SCC pp. 737-39, para 43) “43. Shri Rohinton Nariman submitted that inasmuch as a large number of persons falling within the exempted categories are allowed to consume intoxicating liquors in the State of Andhra Pradesh, the total prohibition of manufacture and production of these liquors is “arbitrary” and the amending Act is liable to be struck down on this ground alone. Support for this proposition is sought from a judgment of this Court in State of T.N. v. Ananthi Ammal [State of T.N. v. Ananthi Ammal, (1995) 1 SCC 519] . Before, however, we refer to the holding in the said decision, it would be appropriate to remind ourselves of certain basic propositions in this behalf. In the United Kingdom, Parliament is supreme. There are no limitations upon the power of Parliament. No court in the United Kingdom can strike down an Act made by Parliament on any ground. As against this, the United States of America has a Federal Constitution where the power of the Congress and the State Legislatures to make laws is limited in two ways viz. the division of legislative powers between the States and the Federal Government and the fundamental rights (Bill of Rights) incorporated in the Constitution. In India, the position is similar to the United States of America. The power of Parliament or for that matter, the State Legislatures is restricted in two ways. A law made by Parliament or the legislature can be struck down by courts on two grounds and two grounds alone viz. (1) lack of legislative competence, and (2) violation of any of the fundamental rights guaranteed in Part III of the Constitution or of any other constitutional provision. There is no third ground. We do not wish to enter into a discussion of the::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:57 ::: 60 concepts of procedural unreasonableness and substantive unreasonableness–concepts inspired by the decisions of the United States Supreme Court. Even in USA, these concepts and in particular the concept of substantive due process have proved to be of unending controversy, the latest thinking tending towards a severe curtailment of this ground (substantive due process). The main criticism against the ground of substantive due process being that it seeks to set up the courts as arbiters of the wisdom of the legislature in enacting the particular piece of legislation. It is enough for us to say that by whatever name it is characterised, the ground of invalidation must fall within the four corners of the two grounds mentioned above. In other words, say, if an enactment is challenged as violative of Article 14, it can be struck down only if it is found that it is violative of the equality clause/equal protection clause enshrined therein. Similarly, if an enactment is challenged as violative of any of the fundamental rights guaranteed by sub-clauses (a) to (g) of Article 19(1), it can be struck down only if it is found not saved by any of clauses (2) to (6) of Article 19 and so on. No enactment can be struck down by just saying that it is arbitrary [ An expression used widely and rather indiscriminately–an expression of inherently imprecise import. The extensive use of this expression in India reminds one of what Frankfurter, J. said in Hattie Mae Tiller v. Atlantic Coast Line Railroad Co., 87 L Ed 610 : 318 US 54 (1943), “A phrase begins life as a literary expression; its felicity leads to its lazy repetition and repetition soon establishes it as a legal formula, undiscriminatingly used to express different and sometimes contradictory ideas”, said the learned Judge.] or unreasonable. Some or other constitutional infirmity has to be found before invalidating an Act. An enactment cannot be struck down on the ground that court thinks it unjustified. Parliament and the legislatures, composed as they are of the representatives of the people, are supposed to know and be aware of the needs of the people and what is good and bad for them. The court cannot sit in judgment over their wisdom. In this connection, it should be remembered that even in the case of administrative action, the scope of judicial review is limited to three grounds viz. (i) unreasonableness, which can more appropriately be called irrationality, (ii) illegality and (iii) procedural impropriety (see Council of Civil Service Unions v. Minister for Civil Service [Council of Civil Service Unions v. Minister for Civil Service, 1985 AC 374 : (1984) 3 WLR 1174 : (1984) 3 All ER 935 (HL)] which decision has been accepted by this Court as well). The applicability of doctrine of proportionality even in administrative law sphere is yet a debatable issue. (See the opinions of Lords Lowry and Ackner in R. v. Secy. of State for Home Deptt., ex p Brind [R. v. Secy. of State for Home Deptt., ex p Brind, 1991 AC 696 : (1991) 2 WLR 588 : (1991) 1 All ER 720 (HL)] , AC at pp. 766-67 and 762.) It would be rather odd if an enactment were to be struck down by applying the said principle when its applicability even in administrative law sphere is not fully and finally settled. It is one thing to say that a restriction imposed upon a fundamental right can be struck down if it is disproportionate, excessive or unreasonable and quite another::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:57 ::: 61 thing to say that the court can strike down enactment if it thinks it unreasonable, unnecessary or unwarranted.”This extract is taken from Shayara Bano v. Union of India, (2017) 9 SCC 1 : 2017 SCC On Line SC 963 at page 82 73. This judgment in McDowell & Co. case [State of A.P. v. McDowell and Co., (1996) 3 SCC 709] failed to notice at least two binding precedents, first, the judgment of a Constitution Bench in Ajay Hasia [Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722 : 1981 SCC (L&S) 258] and second, the judgment of a coordinate three-Judge Bench in Lakshmanan [K.R. Lakshmanan v. State of T.N., (1996) 2 SCC 226] . Apart from this, the reasoning contained as to why arbitrariness cannot be used to strike down legislation as opposed to both executive action and subordinate legislation was as follows. 74. According to the Bench in McDowell [State of A.P. v. McDowell and Co., (1996) 3 SCC 709] , substantive due process is not something accepted by either the American courts or our courts and, therefore, this being a reiteration of substantive due process being read into Article 14 cannot be applied. A Constitution Bench in Mohd. Arif v. Supreme Court of India [Mohd. Arif v. Supreme Court of India, (2014) 9 SCC 737 : (2014) 5 SCC (Cri) 408] has held, following the celebrated Maneka Gandhi [Maneka Gandhi v. Union of India, (1978) 1 SCC 248] , as follows: (Mohd. Arif case [Mohd. Arif v. Supreme Court of India, (2014) 9 SCC 737 : (2014) 5 SCC (Cri) 408] , SCC pp. 755-56, para 27-28) “27. The stage was now set for the judgment in Maneka Gandhi [Maneka Gandhi v. Union of India, (1978) 1 SCC 248] . Several judgments were delivered, and the upshot of all of them was that Article 21 was to be read along with other fundamental rights, and so read not only has the procedure established by law to be just, fair and reasonable, but also the law itself has to be reasonable as Articles 14 and 19 have now to be read into Article 21. [See at SCR pp. 646-48 : SCC pp. 393-95, paras 198-204 per Beg, C.J., at SCR pp. 669, 671-74 & 687 : SCC pp. 279-84 & 296-97, paras 5-7 & 18 per Bhagwati, J. and at SCR pp. 720-23 : SCC pp. 335-39, paras 74-85 per Krishna Iyer, J.]. Krishna Iyer, J. set out the new doctrine with remarkable clarity thus: (SCR p. 723: SCC pp. 338-39, para 85) ’85. To sum up, “procedure” in Article 21 means fair, not formal procedure. “Law” is reasonable law, not any enacted piece. As Article 22 specifically spells out the procedural safeguards for preventive and punitive detention, a law providing for such detentions should conform to Article 22. It has been rightly pointed out that for other rights forming part of personal liberty, the procedural safeguards enshrined in Article 21 are available. Otherwise, as the procedural safeguards contained in Article 22 will be available only in cases of preventive and punitive detention, the right to life, more fundamental than any other forming part of personal liberty and paramount to the::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:57 ::: 62 happiness, dignity and worth of the individual, will not be entitled to any procedural safeguard save such as a legislature’s mood chooses.’ 28. Close on the heels of Maneka Gandhi case [Maneka Gandhi v. Union of India, (1978) 1 SCC 248] came Mithu v. State of Punjab [Mithu v. State of Punjab, (1983) 2 SCC 277 : 1983 SCC (Cri) 405] , in which case the Court noted as follows: (SCC pp. 283-84, para 6) ‘6. … In Sunil Batra v. Delhi Admn. [Sunil Batra v. Delhi Admn., (1978) 4 SCC 494 : 1979 SCC (Cri) 155] while dealing with the question as to whether a person awaiting death sentence can be kept in solitary confinement, Krishna Iyer, J. said that though our Constitution did not have a “due process” clause as in the American Constitution; the same consequence ensued after the decisions in Bank Nationalization case [Rustom Cavasjee Cooper v. Union of India, (1970) 1 SCC 248] and Maneka Gandhi case [Maneka Gandhi v. Union of India, (1978) 1 SCC 248] ….In Bachan Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684 : 1980 SCC (Cri) 580] which upheld the constitutional validity of the death penalty, Sarkaria J., speaking for the majority, said that if Article 21 is understood in accordance with the interpretation put upon it in Maneka Gandhi [Maneka Gandhi v. Union of India, (1978) 1 SCC 248] , it will read to say that: (SCC p. 730, para 136) “136. ‘No person shall be deprived of his life or personal liberty except according to fair, just and reasonable procedure established by valid law.’ ” ‘ The wheel has turned full circle. Substantive due process is now to be applied to the fundamental right to life and liberty.” 75. Clearly, therefore, the three-Judge Bench in McDowell case [State of A.P. v. McDowell and Co., (1996) 3 SCC 709] has not noticed Maneka Gandhi [Maneka Gandhi v. Union of India, (1978) 1 SCC 248] cited in Mohd. Arif [Mohd. Arif v. Supreme Court of India, (2014) 9 SCC 737 : (2014) 5 SCC (Cri) 408] to show that the wheel has turned full circle and substantive due process is part of Article 21 as it is to be read with Articles 14 and 19. 82. It is, therefore, clear from a reading of even the aforesaid two Constitution Bench judgments in Mithu case [Mithu v. State of Punjab, (1983) 2 SCC 277 : 1983 SCC (Cri) 405] and Sunil Batra case [Sunil Batra v. Delhi Admn., (1978) 4 SCC 494 : 1979 SCC (Cri) 155] that Article 14 has been referred to in the context of the constitutional invalidity of statutory law to show that such statutory law will be struck down if it is found to be “arbitrary”. 83. However, the three-Judge Bench in McDowell [State of::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:57 ::: 63 A.P. v. McDowell and Co., (1996) 3 SCC 709] dealt with the binding Constitution Bench decision in Mithu [Mithu v. State of Punjab, (1983) 2 SCC 277 : 1983 SCC (Cri) 405] as follows: (McDowell case [State of A.P. v. McDowell and Co., (1996) 3 SCC 709] , SCC p. 739, para 45) “45. Reference was then made by Shri G. Ramaswamy to the decision in Mithu v. State of Punjab [Mithu v. State of Punjab, (1983) 2 SCC 277 : 1983 SCC (Cri) 405] wherein Section 303 of the Indian Penal Code was struck down. But that decision turned mainly on Article 21 though Article 14 is also referred to along with Article 21. Not only did the offending provision exclude any scope for application of judicial discretion, it also deprived the accused of the procedural safeguards contained in Sections 235(2) and 354(3) of the Criminal Procedure Code. The ratio of the said decision is thus of no assistance to the petitioners herein.” A binding judgment of five learned Judges of this Court cannot be said to be of “no assistance” by stating that the decision turned mainly on Article 21, though Article 14 was also referred to. It is clear that the ratio of the said Constitution Bench was based both on Article 14 and Article 21 as is clear from the judgment of the four learned Judges in paras 19 and 23 set out supra. [ It is clear that one judgment can have more than one ratio decidendi. This was recognised early on by the Privy Council in an appeal from the Supreme Court of New South Wales, in Commissioners of Taxation for the State of New South Wales v. Palmer, 1907 AC 179 (PC). Lord Macnaghten put it thus: (AC p. 184)”… But it is impossible to treat a proposition which the court declares to be a distinct and sufficient ground for its decision as a mere dictum, simply because there is also another ground stated upon which, standing alone, the case might have been determined.”In Jacobs v. London County Council, 1950 AC 361 : (1950) 1 All ER 737, the House of Lords, after referring to some earlier decisions held, as follows: (AC p. 369 : All ER p. 741)”… However, this may be, there is, in my opinion, no justification for regarding as obiter dictum a reason given by a Judge for his decision, because he has given another reason also. If it were a proper test to ask whether the decision would have been the same apart from the proposition alleged to be obiter, then a case which ex facie decided two things would decide nothing. A good illustration will be found in London Jewellers Ltd. v. Attenborough, (1934) 2 KB 206 (CA). In that case the determination of one of the issues depended on how far the Court of Appeal was bound by its previous decision in Folkes v. R., (1923) 1 KB 282 (CA), [in which] the court had given two grounds for its decision, the second of which [as stated by Greer, L.J., in Attenborough case, (1934) 2 KB 206] was that: (KB p. 222)’… where a man obtains possession with authority to sell, or to become the owner himself, and then sells, he cannot be treated as having obtained the goods by larceny by a trick.’ “In Attenborough case, (1934) 2 KB 206 it was contended::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:57 ::: 64 that, since there was another reason given for the decision in Folkes case, (1923) 1 KB 282, the second reason was obiter, but Greer, L.J., said in reference to the argument of counsel: (Attenborough case, KB p. 222)”I cannot help feeling that if we were unhampered by authority there is much to be said for this proposition which commended itself to Swift, J., and which commended itself to me in Folkes v. R., (1923) 1 KB 282, but that view is not open to us in view of the decision of the Court of Appeal in Folkes v. R., (1923) 1 KB 282. In that case two reasons were given by all the members (footnote 65 contd.)of the Court of Appeal for their decision and we are not entitled to pick out the first reason as the ratio decidendi and neglect the second, or to pick out the second reason as the ratio decidendi and neglect the first; we must take both as forming the ground of the judgment.”So, also, in Cheater v. Cater, (1918) 1 KB 247 (CA) Pickford, L.J., after citing a passage from the judgment of Mellish, L.J., in Erskine v. Adeane, (1873) LR 8 Ch App 756, said: (Cheater case, KB p. 252)”… That is a distinct statement of the law and not a dictum. It is the second ground given by the Lord Justice for his judgment. If a Judge states two grounds for his judgment and bases his decision upon both, neither of those grounds is a dictum.”] A three-Judge Bench in the teeth of this ratio cannot, therefore, be said to be good law. Also, the binding Constitution Bench decision in Sunil Batra [Sunil Batra v. Delhi Admn., (1978) 4 SCC 494 : 1979 SCC (Cri) 155] , which held arbitrariness as a ground for striking down a legislative provision, is not at all referred to in the three-Judge Bench decision in McDowell [State of A.P. v. McDowell and Co., (1996) 3 SCC 709] . 95. On a reading of this judgment in Natural Resources Allocation case [Natural Resources Allocation, In re, Special Reference No. 1 of 2012, (2012) 10 SCC 1] , it is clear that this Court did not read McDowell [State of A.P. v. McDowell and Co., (1996) 3 SCC 709] as being an authority for the proposition that legislation can never be struck down as being arbitrary. Indeed the Court, after referring to all the earlier judgments, and Ajay Hasia [Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722 : 1981 SCC (L&S) 258] in particular, which stated that legislation can be struck down on the ground that it is “arbitrary” under Article 14, went on to conclude that “arbitrariness” when applied to legislation cannot be used loosely. Instead, it broad based the test, stating that if a constitutional infirmity is found, Article 14 will interdict such infirmity. And a constitutional infirmity is found in Article 14 itself whenever legislation is “manifestly arbitrary” i.e. when it is not fair, not reasonable, discriminatory, not transparent, capricious, biased, with favouritism or nepotism and not in pursuit of promotion of healthy competition and equitable treatment. Positively speaking, it should conform to norms which are rational, informed with reason and guided by public interest, etc. 101. It will be noticed that a Constitution Bench of this::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:57 ::: 65 Court in Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India [Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India, (1985) 1 SCC 641 : 1985 SCC (Tax) 121] stated that it was settled law that subordinate legislation can be challenged on any of the grounds available for challenge against plenary legislation. This being the case, there is no rational distinction between the two types of legislation when it comes to this ground of challenge under Article 14. The test of manifest arbitrariness, therefore, as laid down in the aforesaid judgments would apply to invalidate legislation as well as subordinate legislation under Article 14. Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary. We are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as pointed out by us above would apply to negate legislation as well under Article 14. (emphasis added) Kurian Joseph J speaking for himself approved the aforesaid view by observing thus: “5. In that view of the matter, I wholly agree with the learned Chief Justice that the 1937 Act is not a legislation regulating talaq. Consequently, I respectfully disagree with the stand taken by Nariman, J. that the 1937 Act is a legislation regulating Triple Talaq and hence, the same can be tested on the anvil of Article 14. However, on the pure question of law that a legislation, be it plenary or subordinate, can be challenged on the ground of arbitrariness, I agree with the illuminating exposition of law by Nariman, J. I am also of the strong view that the constitutional democracy of India cannot conceive of a legislation which is arbitrary.” (emphasis added) 46 This view has been affirmed recently by another Constitution Bench of the Apex Court in the case of Navtej Singh Johar vs. Union of India31.
Thus, it can be taken as settled that a legislation could be successfully challenged on the ground of violation of the rights guaranteed by Article 14 of the constitution of law. As far as challenge under Article 14 is concerned, it will be certainly 31 (2018) SCC On Line SC 1350::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:57 ::: 66 available on the ground of manifest arbitrariness as laid down in the case of Shayara Bano (supra). Obviously, the ground of non application of mind by the legislature will not be available. In considering Article 21 challenge to a legislation, the expression “procedure established by law” in Article 21 does not connote a formalistic requirement of a mere presence of procedure in an enacted law. That expression has been held to signify the content of the procedure and its quality which must be fair, just and reasonable. The mere fact that the law provides for the deprivation of life or personal liberty is not sufficient to conclude its validity and the procedure to be constitutionally valid must be fair, just and reasonable. The quality of reasonableness does not attach only to the content of the procedure which the law prescribes with reference to Article 21 but to the content of the law itself. In other words, the requirement of Article 21 is not fulfilled only by the enactment of fair and reasonable procedure under the law and the law which does so may yet be susceptible to challenge on the ground that its content does not satisfy the requirements of a constitutionally valid law. The law which lays down the procedure contemplated by Article 21 has to stand the tests laid down in Articles 14 and 19.
VALIDITY OF THE AMENDMENT ACT AND THE COMPOUNDED STRUCTURES RULES::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:57 ::: 67 SECTION 52-A 47 We have quoted section 52-A and the relevant part of the Compounded Structure Rules. It will be necessary to firstly refer to the statement of objects and reasons of the Amendment Act which read thus: “STATEMENT OF OBJECTS AND REASONS The State Government had set up a committee headed by the Municipal Commissioner of the Greater Mumbai Corporation to look into the issue and to make report to the Government, so as to enable the Government to take the decision in the matter of unauthorised developments in the urban areas. 2 The committee submitted its report to the State Government with certain recommendations regarding legal and administrative reforms to be undertaken for controlling the unauthorised developments as well as regularization of unauthorised constructions in the urban areas. 3 The Government had framed a policy providing for regularization of certain unauthorised developments as well as legal and administrative measures for::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:57 ::: 68 controlling the unauthorised developments in the urban areas. 4 The policy was subjected to the PIL Nos.80/2013 and the Hon’ble High Court declined to grant permission to implement the policy stating that it is contrary to the provisions of Maharashtra Regional and Town Planning Act,1966 and the Development Control Regulations and No. policy is required as said Act provides for regularization unauthorised developments. 5 The State Government is satisfied that it is expedient to make suitable amendments in the Maharashtra Regional and Town Planning Act,1966, for removing the basis on which the Hon’ble High Court has declined to grant leave to implement the said policy and to enable the Planning Authority to request the State Government for regularization of unauthorised developments carried out on or before the 31st December 2015, those are in conformity with Development Control Regulations, by declaring such structures as compounded structures after payment of compounding charges, infrastructure charges and premium by::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:57 ::: 69 the owner or occupier as well as to control the unauthorised developments carried out in their respective jurisdiction. 6 Further to do away with the previous sanction for prosecution in the cases where unauthorised development has been carried out or being carried out on the plot having area more than 1000 square meters.
7 The Bill seeks to achieve the above objectives.” (emphasis added) Thus, the stated object is to amend the MRTP Act for providing for tolerating only those structures which are in conformity with the Development Control Regulations. Though the object as stated in objects and reasons may not be conclusive, it is certainly relevant to an extent. In the case of Shashikant Laxman Kale v.
Union of India32, the Apex Court held thus: “15. It is first necessary to discern the true purpose or object of the impugned enactment because it is only with reference to the true object of the enactment that the existence of a rational nexus of the differentia on which the classification is based, with the object sought to be achieved by the enactment, can be examined to test the validity of the classification. In Francis Bennion’s Statutory Interpretation (1984 Edn.), the distinction between the 32 (1990) 4 SCC 366::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:57 ::: 70 legislative intention and the purpose or object of the legislation has been succinctly summarised at p. 237 as under: ‘The distinction between the purpose or object of an enactment and the legislative intention governing it is that the former relates to the mischief to which the enactment is directed and its remedy, while the latter relates to the legal meaning of the enactment.’ 16. There is thus a clear distinction between the two. While the purpose or object of the legislation is to provide a remedy for the malady, the legislative intention relates to the meaning or exposition of the remedy as enacted. While dealing with the validity of a classification, the rational nexus of the differentia on which the classification is based has to exist with the purpose or object of the legislation, so determined. The question next is of the manner in which the purpose or object of the enactment has to be determined and the material which can be used for this exercise. 17. For determining the purpose or object of the legislation, it is permissible to look into the circumstances which prevailed at the time when the law was passed and which necessitated the passing of that law. For the limited purpose of appreciating the background and the antecedent factual matrix leading to the legislation, it is permissible to look into the Statement of Objects and Reasons of the Bill which actuated the step to provide a remedy for the then existing malady. In A. Thangal Kunju Musaliar v. M. Venkatachalam Potti [A. Thangal Kunju Musaliar v. M. Venkatachalam Potti, (1955) 2 SCR 1196 : AIR 1956 SC 246 : (1956) 29 ITR 349] , the Statement of Objects and Reasons was used for judging the reasonableness of a classification made in an enactment to see if it infringed or was contrary to the Constitution. In that decision for determining the question, even affidavit on behalf of the State of ‘the circumstances which prevailed at the time when the law thereunder consideration had been passed and which necessitated the passing of that law’ (SCR p. 1237 : AIR p. 265, para 65) was relied on. It was reiterated in State of W.B. v. Union of India [State of W.B.v. Union of India, (1964) 1 SCR 371 : AIR 1963 SC 1241] that the Statement of Objects and Reasons accompanying a Bill, when introduced in Parliament, can be used for ‘the limited purpose of understanding the background and the antecedent state of affairs leading up to the legislation’. (SCR p. 382 : AIR p. 1247, para 13) Similarly, in Pannalal Binjraj v. Union of India [Pannalal Binjraj v. Union of India, 1957 SCR 233 : AIR 1957 SC 397 : (1957) 31 ITR 565] a challenge to the validity of classification was repelled placing::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:57 ::: 71 reliance on an affidavit filed on behalf of the Central Board of Revenue disclosing the true object of enacting the impugned provision in the Income Tax Act.”
48 We have already quoted the provisions of section 52 to 56 of the MRTP Act which confer/vest powers on the Planning Authorities to remove illegal constructions/unauthorised developments.
49 Apart from these provisions of the MRTP Act, as far as illegal constructions are concerned, the field is occupied by the Municipal laws such as the Mumbai Municipal Corporation Act,1888 (for short `the said Act of 1888′), the Maharashtra Municipal Corporations Act,1949 (for short `the said Act of 1949′) and the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 (for short `the said Act of 1965′). The Municipal Corporations and Councils established under the said laws are the Planning Authorities within the meaning of the MRTP Act. The Municipal laws confer power on the Municipalities to take action of demolition of illegal constructions.
50 Thus, there are elaborate provisions in the form of sections 52 to 56 of the MRTP Act and the aforesaid Municipal laws for demolition of the illegal constructions. Judicial notice will have to be taken of the fact that all major cities in the State of Maharashtra have large number of::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:57 ::: 72 illegal constructions. The entire city of Navi Mumbai has been set up on the lands acquired under the provisions of the Land Acquisition Act,1894 by paying a huge compensation to the owners of the lands.
51 The Apex Court in several decisions had an occasion to deal with the menace of the illegal constructions in the cities. In the case of M.C.Mehta Vs. Union of India and others (supra), the Apex Court was dealing with unauthorised industrial activities in Delhi in residential/non conforming areas. Various directions were issued in the said case from time to time by the Apex Court. The Apex Court passed earlier order dated 19th April 1986 observing that master plan had to be complied with and non residential activity which is not permitted in the residential areas had to be stopped. In the same case, the State made an application seeking modification of the earlier orders passed by the Apex Court in which the directions were issued for shifting of industries in residential areas which have not been found eligible for grant of alternate accommodation. The application made by the State suggested that industrial units functioning in residential areas where concentration of industry was 70%, should be permitted to continue to operate from their existing locations. Thus, in short, the State sought regularization. In paragraph 16, the Apex::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:57 ::: 73 Court dealt with the issue of regularization. Paragraph 16 of the said Judgment reads thus: “16 Regularization cannot be done if it results in violation of the right to life enshrined in Article 21 of the Constitution. The question will have to be considered not only from the angle of those who have set up industrial units in violation of the master plan but also others who are residents and are using their premises as allowed by law. Further, the regularization affects not only the remaining 30% residents of the areas wherein regularization may be in contemplation but has effect on the entire area, particularly with respect to the infrastructure available.” (emphasis added) 52 Thus, the Apex Court in no uncertain terms held that the regularization of such illegal industries, if it results in violation of the right to life enshrined in Article 21 of the Constitution, cannot be done.
53 In the same decision, in paragraph 51, the Apex Court held thus: “51. The growth of illegal manufacturing activity in residential areas has been without any check and hindrance from the authorities. The manner in which such large-scale violations have commenced and continue leaves no manner of doubt that it was not possible without the connivance of those who are required to ensure compliance with law and reasons are obvious. Such activities result in putting on extra load on the infrastructure. The entire planning has gone totally haywire. The law-abiders are sufferers. All this has happened at the cost of health and decent living of::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:57 ::: 74 the residents of the city violating their constitutional rights enshrined under Article 21 of the Constitution of India. Further, it is necessary to bear in mind that the law-makers repose confidence in the authorities that they will ensure implementation of the laws made by them. If the authorities breach that confidence and act in dereliction of their duties, then the plea that the observance of law will now have an adverse effect on the industry or the workers cannot be allowed. Within the framework of law, keeping in view the norms of environment, health and safety, the Government and its agencies, if there was genuine will, could have helped the industry and workers by relocating industries by taking appropriate steps in the last about 15 years. On the other hand, it encouraged illegal activities.
(emphasis added) 54 While dealing with the provisions of sections 52 and 53 of the MRTP Act, a Division Bench of this Court in the case of Sudhir M. Khandwala vs. Mumbai Municipal Corporation and others33 in paragraphs 123 observed thus: 123. The Supreme Court has time and again expressed its serious concern over unauthorized and indiscriminate constructions in cities and big towns. In fact, the Supreme Court has cautioned against liberal use of the power of regularization and retention of unauthorized works and buildings. The Supreme Court has warned that authorities must take into account considerations of public safety and health, protection of environment and ill-effects of unregulated and uncontrolled construction in cities and towns.
Therefore, it cannot be said that every unauthorized construction can be permitted to be regularized by loading of TDRS or by condoning or relaxing the restrictions relating to FSI, open space, set backs, height of the building, etc. In 33 2010 (2) Mh.L.J. 759::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:57 ::: 75 individual cases and by applying the standards and rules strictly and rigourously , the authorities must take an informed decision bearing in mind the building regulations, restrictions and conditions therein. The retention of unauthorized works and constructions should not result in wholesale condonation and relaxation or exemption from the Building Rules and Bye-laws or else there will be chaos and break down of the rule of law.
Ultimately, planning authorities have been conferred such powers for public good and in public interest. As observed by the Supreme Court in the case of Mahendra Mahadik (supra), all powers are in the nature of Trust. The authorities and officers exercising powers under Building Regulations so also under planning laws, act as trustees of the public at large. The faith and trust that is reposed in them is in the belief and hope that they do not exercise the discretionary powers, without any adherence to the very laws, under which they are empowered to act and decide such cases. They cannot bye-pass their own rules and regulations and sacrifice public health and public safety. These are vital matters and they cannot be a casualty in the hands of the Municipal and Town Planning authorities. Therefore, before they take any decision they must not only consider the alleged hardship to individual flat purchasers/ holders/occupants but bear in the interest of those residing in the neighbourhood and the public at large. The city and town so also the area as a whole has a vital interest in such matters. Ultimately, planned and regulated development of a city or town is the object of enacting planning laws. Therefore, the interest of all residents is at stake. The Municipal and Town Planning authorities cannot adopt an attitude by which they further the interest and cause of developers and wrong-doers at the cost of the township as a whole. They must bear in mind the fact that essential and basic amenities like water and electricity are scarce. The pressure on land is immense. It is not possible to construct bridges, roads all the time. Ultimately, a city or town is planned for a certain number of people and population. The infrastructure and basic amenities are provided considering the existing population and growth at a projected rate over a passage of time. If there is increasing pressure and burden on the existing facilities and amenities, then, the whole system would collapse resulting in large scale inconvenience. In every city or town certain number of schools, educational institutions, hospitals, public conveniences etc. are provided on the basis of population figures and by future projection. These matters must therefore have a bearing, when an application for retention is made and it is not possible to hold that the authorities should allow such applications only because the Builder/Developer manages to generate FSI in the form of TDR or otherwise. Similarly, the argument that these constructions be::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:57 ::: 76 regularized by imposing fine and charging high fees as a matter of course is also difficult to accept, for the afore-mentioned reasons. If by imposition of fine and charging of compounding fees, large scale unauthorized constructions are regularized, then, that would encourage the Builders and Developers so also others having interest in the development activities, to violate laws openly. They will always proceed on the basis that the building regulations can be breached with impunity and all that they would be visited with, is high compounding fees. That is not the intention of the Legislature.
The penal provisions in Sections 52 and 53 of the MRTP Act, 1966, are enacted with a defined object and purpose. It is to discourage unauthorized and illegal development and also punish the wrong doers. In addition to punishment of wrong doers and offenders, the Legislature empowers the Planning Authority to pull down, remove or alter the unauthorized development or works. Therefore, there is a twin object and purpose in such provisions. That is to check and control unauthorized construction and development and at the same time penalise all those who are responsible for the same. Therefore, by merely charging compounding fees and imposing heavy fines such construction cannot be regularized. Ultimately, the exercise of this discretionary power must not result in a license to break planning laws. Individual’s interest in a property, his right to enjoy it is subject to larger public good and purpose. That right has to be balanced with the requirements of the society. It is not absolute. While dealing with request of retention and regularization, the deviation and deficiencies, the extent of irregularities, the damage and ill-effects thereof and the conduct of the parties, are all relevant considerations. What can be termed as a minor deviation or departure in a given case, may still have adverse affects and consequences on the overall development and planning of the city and town. Once the population is increasing, then what is a minor deviation and what could be termed to be a major infraction or breach or violation of the planning laws, are matters which must be decided by the Planning Authorities in the facts and circumstances of each case bearing in mind the above objects and purpose. They cannot as a matter of rule regularize unauthorized constructions by allowing the Builder/Developer/wrong doer to compensate for the violation in terms of money or by permitting him to load TDR/FSI from adjoining plots and areas. If we lay down such a general rule, we would be going contrary to the judicial pronouncements in the field. That would be violating the law of the land. We are bound by the Supreme Court decisions and, therefore, cannot lay down any principle contrary to the same.
(emphasis added) 55 Another decision of the Apex Court which is::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:58 ::: 77 relevant for dealing with the provisions of sections 52 and 53 of the MRTP Act is in the case of Mahendra Baburao Mahadik vs. Subhash Krishna Kanitkar and others34. In paragraphs 18 and 19 as well as in paragraphs 38 to 49 held thus: 18. Section 52 contains penal provisions. Section 53 authorises the local authority to direct removal of unauthorised development. Sub-section (1) of Section 53 authorises the local authority to issue a notice where a development of land has taken place in violation of the conditions indicated in sub-section (1) of Section 52. 19. In terms of sub-section (7) of Section 53, a person prosecuted under clause (a) of sub-section (6) of Section 53 will be inflicted with the punishment specified therein. 38. The Municipal Council being a creature of statute was bound to carry out its functions within the four corners thereof. Being a statutory authority, it was required to follow the rules scrupulously. Concededly, the Municipal Council is not possessed of any statutory power to regularise unauthorised constructions. Its power is confined to compounding the offences in certain cases. Moreover, even development charges could not be recovered from the appellant in respect of unauthorised constructions in terms of Section 124-E(2) of the MRTP Act. 39. It appears that the Municipal Council itself in terms of a letter dated 20-11-1998 sought for guidance of the Deputy Director, Town Planning stating: “Sub.: Common disposal of cases of unauthorised/without permission constructions made within the Municipal Council limits by imposing penalty under the provisions of Section 143 of the Maharashtra Regional and Town Planning Act, 1966. Ref.: Council’s Resolution No. 134 dated 12-10-1998.
Sir, With reference to above, it is seen that in Bhiwandi city there are large number of unauthorised/without permission constructions made. Proceedings against the said unauthorised constructions are afoot already.
34 2005 (4) SCC 99::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:58 ::: 78 However, in spite of the action taken pursuant to the decisions of the courts of law and due to inadequate strength of municipal staff, there is no reduction noticed in the unauthorised constructions. Similarly, it is observed that the people are residing in/using the unauthorised constructions. Hence, only because the constructions are unauthorised, the demolition of the same is not deemed proper/possible. Hence, in this regard the Municipal Council has passed a unanimous resolution dated 12- 10-1998 in general meeting, being Resolution No. 134. Such cases can be disposed of commonly under the provisions of Section 143 of the Maharashtra Regional and Town Planning Act, 1966, considering development planning proposal, FSI, etc. Powers for dealing with such cases on behalf of the Planning Authority are delegated to the Chief Officer. Copy of the resolution is annexed hereto for perusal. Hence, it is requested that necessary legal and technical guidance in that regard be kindly given.”
40. A reference to the Government also appears to have been made by the Director, Town Planning by a letter dated 29-7-2000 addressed to the Head Secretary of the Government of Maharashtra in the following terms:
“Sub.: Recovery of development fees on unauthorised constructions. Ref.: (1) Letter dated 27-7-1999 of Chief Officer, Bhiwandi Nizampura Municipal Council.
(2) Letter No. TPS-1299-1105/CD-12 dated 29-3-2000 of City/Development Department, Government of Maharashtra. Sir, With reference to above-referred letter of Bhiwandi Nizampura Municipal Council, guidance is sought for recovery of development fees on unauthorised construction. Considering the provisions of Section 124- E(2) of the Maharashtra Regional and Town Planning Act, 1966, proceedings of recovery of development fees on unauthorised constructions by Municipal Councils is not proper. Instead of that, the Municipal Councils should take actions under the provisions of Sections 52, 53 and 54 of the aforesaid Act with respect to unauthorised constructions. And only the constructions which can be regularized in accordance with rules, actions for such constructions should only be taken to regularise and recovery of development fees in such cases would be proper. Accordingly, the Municipal Councils may be advised.”
41. It may be true that certain demands were made upon the appellants herein to deposit the development charges by the Municipal Council but the same were made without prejudice to their rights, as would appear from the notice dated 3-11-1998. Demand of the development charges without prejudice to the rights of the Municipal Council did not, thus, create any legal right in favour of the appellants. (See Chairman and MD, NTPC Ltd. v. Reshmi Constructions, Builders & Contractors [(2004) 2 SCC 663] .)
42. Payment of development charges by itself, therefore, did not lead to exoneration from the consequence of commission of an offence or regularization of unauthorised constructions.::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:58 ::: 79
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 sub-section (2) of Section 53 of the MRTP 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 MRTP Act, the Municipal Council did not have any jurisdiction to direct regularization of such unauthorised 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.
44. In Friends Colony Development Committee v. State of Orissa [(2004) 8 SCC 733] this Court opined: (SCC p. 744, para 25) “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.”
45. In M.I. Builders (P) Ltd. v. Radhey Shyam Sahu [(1999) 6 SCC 464] this Court observed: (SCC p. 529, para 73) “73. The High Court has directed dismantling of the whole project and for restoration of the park to its original condition. This Court in numerous decisions has held that no consideration should be shown to the builder or any other person where construction is unauthorised. This dicta is now almost bordering the rule of law. Stress was laid by the appellant and the prospective allottees of the shops to exercise judicial discretion in moulding the relief. Such a discretion cannot be::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:58 ::: 80 exercised which encourages illegality or perpetuates an illegality. Unauthorized construction, if it is illegal and cannot be compounded, has to be demolished. There is no way out. Judicial discretion cannot be guided by expediency. Courts are not free from statutory fetters. Justice is to be rendered in accordance with law. Judges are not entitled to exercise discretion wearing the robes of judicial discretion and pass orders based solely on their personal predilections and peculiar dispositions. Judicial discretion wherever it is required to be exercised has to be in accordance with law and set legal principles. As will be seen in moulding the relief in the present case and allowing one of the blocks meant for parking to stand we have been guided by the obligatory duties of the Mahapalika to construct and maintain parking lots.”
A discretionary power must be exercised having regard to the larger public interest.
46. In Consumer Action Group v. State of T.N. [(2000) 7 SCC 425] this Court held: (SCC p. 443, para 30) “While exercising such a power the authority has to keep in mind the purpose and the policy of the Act and while granting relief has to equate the resultant effect of such a grant on both viz. the public and the individual. So long as it does not materially affect the public cause, the grant would be to eliminate individual hardship which would be within the permissible limit of the exercise of power. But where it erodes the public safety, public convenience, public health etc. the exercise of power could not be for the furtherance of the purpose of the Act. Minor abrasion here and there to eliminate greater hardship, may in a given case, be justified but in no case affecting the public at large. So every time the Government exercises its power it has to examine and balance this before exercising such a power. Even otherwise, every individual right including fundamental right is within reasonable limit but if it makes inroads into public rights leading to public inconveniences it has to be curtailed to that extent. So no exemption should be granted affecting the public at large. Various development rules and restrictions under it are made to ward off possible public inconvenience and safety. Thus, whenever any power is to be exercised, the Government must keep in mind, whether such a grant would recoil on the public or not and to what extent. If it does then exemption is to be refused. If the effect is marginal compared to the hardship of an individual that may be considered for granting.”
Mr Naphde, therefore, is not correct in contending that the High Court should have taken a lenient view.
(emphasis added) 56 The Apex Court also dealt with its earlier decision in the case of Friends Colony Development::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:58 ::: 81 Committee vs. State of Orissa (supra). As regards the preparation of various plans and legal effect thereof, in paragraphs 22 and 23 in the case of Friends Colony (supra), the Apex Court observed thus: 22. In all developed and developing countries there is emphasis on planned development of cities which is sought to be achieved by zoning, planning and regulating building construction activity. Such planning, though highly complex, is a matter based on scientific research, study and experience leading to rationalization of laws by way of legislative enactments and rules and regulations framed thereunder. Zoning and planning do result in hardship to individual property owners as their freedom to use their property in the way they like, is subjected to regulation and control. The private owners are to some extent prevented from making the most profitable use of their property. But for this reason alone the controlling regulations cannot be termed as arbitrary or unreasonable. The private interest stands subordinated to the public good. It can be stated in a way that power to plan development of city and to regulate the building activity therein flows from the police power of the State. The exercise of such governmental power is justified on account of it being reasonably necessary for the public health, safety, morals or general welfare and ecological considerations; though an unnecessary or unreasonable intermeddling with the private ownership of the property may not be justified. 23. The municipal laws regulating the building construction activity may provide for regulations as to floor area, the number of floors, the extent of height rise and the nature of use to which a built-up property may be subjected in any particular area. The individuals as property owners have to pay some price for securing peace, good order,::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:58 ::: 82 dignity, protection and comfort and safety of the community. Not only filth, stench and unhealthy places have to be eliminated, but the layout helps in achieving family values, youth values, seclusion and clean air to make the locality a better place to live. Building regulations also help in reduction or elimination of fire hazards, the avoidance of traffic dangers and the lessening of prevention of traffic congestion in the streets and roads. Zoning and building regulations are also legitimised from the point of view of the control of community development, the prevention of overcrowding of land, the furnishing of recreational facilities like parks and playgrounds and the availability of adequate water, sewerage and other governmental or utility services.
(emphasis added) 57 In the case of Shanti Sports Club and another vs. Union of India and others35 in paragraphs 74 and 75, the Apex Court held thus: “74. In the last four decades, almost all cities, big or small, have been unplanned growth. In the 21 st century, the menace of illegal and unauthorised constructions and encroachments has acquired monstrous proportions and everyone has been paying heavy price for the same. Economically affluent people and those having support of the political and executive apparatus of the State have constructed buildings, commercial complexes, multiplexes, malls, etc in blatant violation of the municipal and town planning laws, master plans, zonal development plans and even the sanctioned building plans. In most of the cases of illegal or unauthorised constructions, the officers of the municipal and other regulatory bodies turn blind eye either due to the influence of higher functionaries of 35 (2009) 15 SCC 705::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:58 ::: 83 the State or other extraneous reasons. Those who construct buildings in violation of the relevant statutory provisions, master plan, etc and those who directly or indirectly abet such violations are totally unmindful of the grave consequences of their actions and/or omissions on the present as well as future generations of the country which will be forced to live in unplanned cities and urban areas. The people belonging to this class do not realise that the constructions made in violation of the relevant laws, master plan or zonal development plan or sanctioned building plan or the building is used for a purpose other than the one specified in the relevant statute or the master plan, etc., such constructions put unbearable burden on the public facilities/amenities like water, electricity, sewerage, etc apart from creating chaos on the roads. The pollution caused due to traffic congestion affects the health of the road users. The pedestrians and people belonging to weaker sections of the society, who cannot afford the luxury of air- conditinoed cars, are the worst victims of pollution. They suffer from skin diseases of different types, asthma, allergies and even more dreaded diseases like cancer. It can only be a matter of imagination how much the Government has to spend on the treatment of such persons and also for controlling pollution and adverse impact on the environment due to traffic congestion on the roads and chaotic conditions created due to illegal and unauthorised constructions. This Court has, from time to time, taken cognizance of buildings constructed in violation of municipal and other laws and emphasized that no compromise should be made with the town planning scheme and no relief should be given to the violator of the town planning scheme, etc on the ground that he has spent substantial::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:58 ::: 84 amount on construction of the buildings, etc.- K. Ramadas Shenoy v. Town Municipal Council, Udipi, G.N.Khajuria (Dr.) v DDA, M.I.Builders (P) Ltd.v. Radhey Shyam Sahu, Friends Colony Development Committee v. State of Orissa, M.C.Mehta V. Union of India and S.N.Chandrashekar v. State of Karnataka. 75 Unfortunately, despite repeated judgments by this Court and the High Courts, the builders and other affluent people engaged in the construction activities, who have, over the years shown scant respect for regulatory mechanism envisaged in the municipal and other similar laws, as also the master plans, zonal development plans, sanctioned plans, etc., have received encouragement and support from the State apparatus. As and when the Courts have passed orders or the officers of local and other bodies have taken action for ensuring rigorous compliance with laws relating to planned development of the cities and urban areas and issued directions for demolition of the illegal/unauthorised constructions, those in power have come forward to protect the wrongdoers either by issuing administrative orders or enacting laws for regularization of illegal and unauthorised constructions in the name of compassion and hardship. Such actions have done irreparable harm to the concept of planned development of the cities and urban areas. It is high time that the executive and political apparatus of the State take serious view of the menace of illegal and unauthorised constructions and stop their support to the lobbies of affluent class of builders and others, else even the rural areas of the country will soon witness similar chaotic conditions.
(emphasis added)::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:58 ::: 85 The Apex Court has summarized the drastic effects of illegal constructions carried out in violation of master plan/zonal plan. It is obvious that such large scale constructions affect the right of citizens to lead dignified and meaningful life.
58 In the case of Priyanka Estate International Pvt. Ltd. And others vs. State of Assam and others36, the Apex Court again took a judicial notice of the fact that unauthorised constructions are on rise in bigger cities. In paragraph 55, the Apex Court observed thus: “55 It is a matter of common knowledge that illegal and unauthorised constructions beyond the sanctioned plans are on rise, may be due to paucity of land in big cities. Such activities are required to be dealt with by firm hands otherwise builders/colonisers would continue to build or construct beyond sanctioned and approved plans and would still go scot-free. Ultimately, it is the flat owners who fall prey to such activities as the ultimate desire of a common man is to have a shelter of his own. Such unlawful constructions are definitely against the public interest and hazardous to safety of occupiers and residents of multistoreyed buildings. To some extent both parties can be said to be equally responsible for this. Still the greater loss would be of those flat owners whose flats are to be demolished as compared to the builder.” (emphasis added) 59 As regards regularization of the illegal structures, the Apex Court had an occasion to deal 36 2010 (2) SCC 27::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:58 ::: 86 with the issue in the case of Royal Paradise Hotel Pvt. Ltd vs. State of Haryana and others 37. In paragraph 8, the Apex Court held thus: “8 We also find no merit in the argument that regularization of the acts of violation of the provisions of the Act ought to have been permitted. No authority administering municipal laws and other laws like the Act involved here, can encourage such violations. Even otherwise, compounding is not to be done when the violations are deliberate, designed, reckless or motivated. Marginal or insignificant accidental violations unconsciously made after trying to comply with all the requirements of the law can alone qualify for regularization which is not the rule, but a rare exception. The authorities and the High Court were hence right in refusing the request of the appellant.” (emphasis added) 60 In the case of Dipak Kumar Mukherjee vs Kolkata Municipal Corporation (supra), in paragraph 2, the Apex Court observed thus: “2.In the last four decades, the menace of illegal and unauthorised constructions of buildings and other structures in different parts of the country has acquired monstrous proportion. This Court has repeatedly emphasized the importance of planned development of the cities and either approved the orders passed by the High Court or itself gave directions for demolition of illegal constructions as in K. Ramadas Shenoyv. Town Municipal Council, Udipi [(1974) 2 SCC 506] , Virender Gaur v. State of Haryana [(1995) 2 SCC 577] , Pleasant Stay Hotel v. Palani Hills Conservation Council [(1995) 6 SCC 127] , Cantonment Board, 37 2006 (7) SCC 597::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:58 ::: 87Jabalpur v. S.N. Awasthi [1995 Supp (4) SCC 595] , Pratibha Coop. Housing Society Ltd. v. State of Maharashtra[(1991) 3 SCC 341] , G.N. Khajuria v. DDA [(1995) 5 SCC 762] , Manju Bhatia v. NDMC [(1997) 6 SCC 370] , M.I. Builders (P) Ltd. v. Radhey Shyam Sahu [(1999) 6 SCC 464] , Friends Colony Development Committee v. State of Orissa [(2004) 8 SCC 733] , Shanti Sports Club v. Union of India [(2009) 15 SCC 705 : (2009) 5 SCC (Civ) 707] and Priyanka Estates International (P) Ltd. v. State of Assam [(2010) 2 SCC 27 : (2010) 1 SCC (Civ) 283] .” In paragraph 8, the Apex Court held thus: “8. What needs to be emphasised is that illegal and unauthorised constructions of buildings and other structures not only violate the municipal laws and the concept of planned development of the particular area but also affect various fundamental and constitutional rights of other persons. The common man feels cheated when he finds that those making illegal and unauthorised constructions are supported by the people entrusted with the duty of preparing and executing master plan/development plan/zonal plan. The reports of demolition of hutments and jhuggi jhopris belonging to the poor and disadvantaged section of the society frequently appear in the print media but one seldom gets to read about demolition of illegally/unauthorisedly constructed multi-storeyed structures raised by economically affluent people. The failure of the State apparatus to take prompt action to demolish such illegal constructions has convinced the citizens that planning laws are enforced only against poor and all compromises are made by the State machinery when it is required to deal with those who have money power or unholy nexus with the power corridors. (emphasis added) In paragraph no. 29, the Apex Court held thus: “9. It must be remembered that while preparing master plans/zonal plans, the Planning Authority takes into consideration::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:58 ::: 88 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.” (emphasis added) 61 Now coming to the provisions of MRTP Act, in the preamble, the object of enacting the said Act is ” it is expedient to make provision for planning the development and use of land in Regions established for that purpose and for the constitution of Regional Planning Boards thereof;
to make better provision for the preparation of Development plans with a view to ensuring that town planning schemes are made in a proper manner and their executions is made effective;”. We are dealing with Development Plans as section 52A which is under challenge is applicable only to Development Plan areas. Chapter II provides for making of a Development Plan by the Planning Authorities. It contains very elaborate provisions starting from the Planning Authorities preparing existing land use map, preparing a draft plan, hearing of objections and suggestions at various stages and sanction of the plan by the State Government. The process starts from the Planning Authorities carrying out the survey of area within::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:58 ::: 89 its jurisdiction and preparation of existing land use map. The contents of Development Plan are provided in section 22 which reads thus:
22. A Development plan shall generally indicate the manner in which the use of land in the area of a 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,–
(a) proposals for allocating the use of land for purposes, such as residential, industrial, commercial, agricultural, recreational ;
(b) proposals for designation of land for public purpose, such as schools, colleges and other educational institutions, medical and public health institutions, markets, social welfare and cultural institutions, theaters and places for public entertainment, or public assembly, museums, art galleries, religious buildings and government and other public buildings as may from time to time be approved by the State Government ;
(c) proposals for designation of areas for open spaces, playgrounds, stadia, zoological gardens, green belts, nature reserves, sanctuaries and dairies ;
(d) transport and communications, such as roads, high-ways, park-ways, railways, water-ways, canals and air ports, including their extension and development ; ::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:58 ::: 90
(e) water supply, drainage, sewerage, sewage disposal, other public utilities, amenities and services including electricity and gas ;
(f) reservation of land for community facilities and services ;
(g) proposals for designation of sites for service industries, industrial estates and any other development on an extensive scale ;
(h) preservation, conservation and development of areas of natural scenery and landscape ;
(i) preservation of features, structures or places of historical, natural, architectural and scientific interest and educational value 1[and of heritage buildings and heritage precincts] ;
(j)proposals for flood control and prevention of river pollution ;
(k) proposals of the Central Government, a State Government, Planning Authority or public utility undertaking or any other authority established by law for designation of land as subject to acquisition for public purpose or as specified in a Development plan, having regard to the provisions of section 14 or for development or for securing use of the land in the manner provided by or under this Act ;
(l) the filling up or reclamation of low lying, swampy or unhealthy areas or levelling up of land ;
(m) provisions for permission to be granted for controlling and regulating the use and development of land within the jurisdiction of a local authority 1[including imposition of fees, charges::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:58 ::: 91 and premium, at such rate as may be fixed by the State Government or the planning Authority, from time to time, for grant of an additional Floor Space Index or for the special permissions or for the use of discretionary powers under the relevant Development Control Regulations, and also for 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”
62 Thus, a Development Plan contains very elaborate details of planning, use of lands in various zones, restrictions on use, reservations and designations for public purposes. Clause (m) provides for Regulations which are popularly known as Development Control Regulations (for short DCR). The position of a Development Plan is sacrosanct as indicated by section 46 which provides that the Planning Authority whilst considering application::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:58 ::: 92 for permission shall have due regard to the provisions of any draft or final plan published by means of notice, submitted or sanctioned under the Act. It also provides that, if the DCR for an area over which a Planning Authority has been appointed or constituted, are yet to be sanctioned, then while 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 DCR for such area are sanctioned. Thus, a Planning Authority cannot grant a development permission which is contrary not only to a sanctioned Development Plan, but to a notified draft Development Plan. Moreover, a Development Plan is never static as section 38 contemplates its periodical revision after every 20 years. Thus, a Development Plan is a comprehensive document which controls the development within the wide meaning under clause (7) of section 2 which reads thus: ” development ” with its grammatical variations means the carrying out of buldings, engineering, mining or other operations in or over or under, land or the making of any material change, in any building or land or in the use of any building or land or any material or structural change in any heritage building or its precinct] and includes demolition of any existing building, structure or erection or part of such building, structure of erection; and reclamation, redevelopment and lay-out and sub-division of any land; and ” to develop” shall be construed accordingly;” ::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:58 ::: 93
63 On comprehensive analysis of the MRTP Act, it is clear that it does not permit any development including erection or re-erection of structures or a layout or subdivision of a land contrary to a Development Plan. A Development Plan controls the use of lands or buildings by providing for various zones such as Residential, Industrial, No Development Zone etc. DCR which is a part of a Development Plan provide for the extent of available FSI, sizes of buildings and its parts such as size of staircases, passages etc. DCR provides for rules regarding maximum height of different categories of buildings, amenities such as water tanks and lifts, open spaces, parking places,projections etc. Even the Rules regarding minimum size of plots are a part of it. Even norms of fire safety are a part of DCR. In short, DCRs control all the building and development activities. It provide for the manner in which and subject to what conditions a development permission can be granted. Therefore, making and amending DCR is always a legislative function as held in the case of Pune Municipal Corporation vs. Promoters and Builders38 In fact the process of making a Development Plan partakes character of a legislative function. Therefore, as provided in section 31(6), Planning Authority is bound by a Development Plan.
38 (2004) 10 SCC 796::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:58 ::: 94 64 If an unauthorised development or unauthorised constructions are carried out contrary to the provisions of a Development Plan and/or DCR, the town planning goes haywire. The provisions of DCR and Development Plan provide for a particular FSI in a particular area or restrictions or prohibition on constructions or a particular class of constructions in a particular area, considering the local situations. In a Development Plan, certain areas are reserved for public utilities like gardens, play grounds, hospitals, schools, colleges etc. It provides for construction of roads and for widening the width of the existing roads. The Planning Authority while making a Development Plan and making provisions such as maximum permissible FSI, maximum size of a building, minimum size of plots, minimum width of roads etc takes into consideration several factors such as population density, availability of water supply, the capacity of drainage/ sewerage system, availability of roads, vehicle density, availability of parking spaces etc. Under Article 21 of the Constitution, every citizen has a right to live a dignified and meaningful life. He has right to live in a pollution free atmosphere and environment. A citizen cannot live a meaningful life unless he is provided with civic amenities such as water supply, electricity supply and recreational facilities like gardens, open spaces, playgrounds. This Court has held in the case of Dr. Mahesh Vijay Bedekar (supra) that right to have roads and::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:58 ::: 95 footpaths/footways in a reasonable condition is an integral part of the Article 21. For leading meaningful life, a citizen needs facilities like educational institutions, hospitals etc. In fact the principles of sustainable development have been incorporated under the MRTP Act. It cannot be disputed that large number of illegal constructions in any city put enormous burden on civic amenities. Such situations lead to violation of fundamental rights guaranteed under Article 21 to the citizens.
65 The right to shelter is a fundamental right. But, the fundamental right does not extend to carrying out construction of houses and that also multi storied houses contrary to the provisions of a Development Plan or DCR. The regulation of construction activity is by a Development Plan or by DCR which are made in exercise of legislative function. The same provide for procedure established by law within the meaning of Article
21. Therefore, right to shelter under Article 21 cannot be exercised contrary to a Development Plan or DCR. Even the right under Article 19(1)(g) is subject to reasonable restrictions provided under law. We must reiterate that the applicability of section 52A is not restricted to huts or shanties made by poor. It applies to commercial and industrial structures as well. Even in the case of Olga Telis vs. Bombay Municipal Corporation,the Apex Court while holding that right to shelter is a facet of Article 21, in paragraph 57 held thus:::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:58 ::: 96 “57. To summarise, we hold that no person has the right to encroach, by erecting a structure or otherwise, on footpaths, pavements or any other place reserved or earmarked for a public purpose like, for example, a garden or a playground;”
66 If we peruse the record of PIL Nos 80 of 2013 and 138 of 2012, it is brought on record that only in one village (Digha) which is one of the 95 villages forming a part of Navi Mumbai, by the year 2016, more than 100 illegal multi storied buildings had been identified. MIDC had issued notices to 2118 illegal constructions in Navi Mumbai till October 2015. The interim order dated 26 th and 27th April 2016 notes that within the area of Pimpri Chinchwad Municipal Corporation, which is one of the several Planning Authorities in the State, 66,000 illegal constructions had been identified by the year 2012. This Court has dealt with large number of Petitions pointing out large scale illegal constructions within the limits of Bhiwandi-Nizampur and Ulhasnagar Municipal Corporations. Thus, we are dealing with the areas of Development Plan where there are very large number of illegal constructions. Thus, it can be said that the Amendment Act seeks to protect thousands of illegal structures by completely destroying the concept of town planning.
67 Now coming back to the section 52-A, we have already set out its objects and reasons. In PIL::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:58 ::: 97 Nos.80 of 2013 and 138 of 2013, prior to coming into force of the amendment Act, the State Government sought leave of this Court to implement the policies of en-bloc regularization. However, this Court held that the said policies were contrary to the provisions of the MRTP Act. Clause 5 of the Object and Reasons of the Amendment Act specifically states that for removing the basis of the said decisions that the amendment was made to the MRTP Act by the Amendment Act. It also makes it clear that the intention is to regularise only those illegal constructions which are in conformity with DCR.
68 Sub-section (1) of section 52A starts with a non obstante clause which seeks to override the provisions of the MRTP Act and other laws, Judgments, Orders and directions of any Court in relation to unauthorised developments carried out on or before 31st December 2015. As can be seen from the definition of `development’ in section 2 of the MRTP Act, the scope of development is very wide which includes practically all categories of construction works. As sub-section (1) of section 52-A applies only to the areas of Development Plan, the provisions of section 52-A and consequently, Compounded Structure Rules apply only to those areas for which a Development Plan within the meaning of MRTP Act is already made or is required to be made. The second part of sub-section (1) of section 52-A provides that upon request of the::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:58 ::: 98 Planning Authority, the State Government may specify the terms and conditions on compliance of which and on payment of Compounding charges, infrastructure charges and premium, the Planning Authority may declare such unauthorised development which has been carried out on or before 31 st December 2015 as compounded structure. Sub-section (1) specifically provides that the terms and conditions which may be specified by the State Government should not be inconsistent with the Rules made in this behalf (the Compounded Structures Rules). Sub-section (2) of section 52 provides that once such development is declared as compounded, no proceedings under any law for the time being in force against owner or occupier of such structure shall be taken or continued. Therefore, apart from the fact that the action of demolition/removal cannot be taken in respect of a compounded structure, even if criminal law is set in motion against the owner/occupier of the illegal structure for making an illegal construction, the prosecution cannot proceed. Thus, the Amendment Act not only provides for compounding of an illegal structure, but it seeks to protect violators from prosecution for the offence punishable under section 52 of the MRTP Act. Hence, it seeks to protect not only shelter but it also seeks to save a person who commits an offence from prosecution. Proviso to sub-section (2) provides that development or reconstruction is permissible in compounded structures only as per the provisions::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:58 ::: 99 prevailing DCR. This provision is hardly relevant, as compounding is permissible even if a structure is contrary to DCR.
69 As noted earlier, sub-section (1) of section 52-A starts with the non-obstante clause. Therefore, it seeks to override the provisions of MRTP Act and other laws such as Municipal Laws which provide for regulating the activity of building construction. If a structure is erected without obtaining development permission under the MRTP Act on or before 31st December 2015 in the area of Development Plan, the Planning Authority has a power to declare such structure as a compounded structure. Once, such structure is declared as a compounded structure, in view of sub-section (2) of section 52-A, it remains protected from demolition. We have already noted that this provision is applicable only to an area of Development Plan under the MRTP Act which is defined in clause (9) of section 2 as “Development Plan” means a plan for the development or re-development of the area within the jurisdiction of a Planning Authority and includes revision of a Development Plan and proposals of a special Planning Authority for development of land within its jurisdictions. Thus, section 52A will apply only to the areas under jurisdiction of the Planning Authorities or Special Planning Authorities. Thus, by virtue of definition of Planning Authority read with the definition of local authority, all municipal areas will be areas::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:58 ::: 100 of Development Plan. The State Government has power to specify the terms and conditions which are not inconsistent with the Rules made in this behalf (Compounded Structure Rules) subject to which a structure can be declared as compounded structure by the Planning Authority. A structure can be declared as compounded structure provided compounding charges, infrastructure charges and premium is paid. The development charges referred to under Rule 12 are obviously in terms of section 124 of the MRTP Act.
COMPOUNDED STRUCTURE RULES 70 Now, we turn to Compounded Structure Rules. We must note here that section 52A and the Compounded Structures Rules provide for regularization of all illegal development including multi-storied RCC buildings. We must note that in sub-section (1) of section 52A, it is not specifically mentioned that the said provision overrides Development Plan and DRC. On the Contrary, the statement of objects and reasons talks about protecting only those structures which are in conformity with DCR. The Compounded Structure Rules, as stated hereafter, permit developments made contrary to DCR. The said provisions are not dealing only with the shanties/huts of poor people which have a protection of Slum laws like The Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971. Unauthorised developments as specified in Rule 4 cannot be considered for declaration as a::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:58 ::: 101 compounded structure. The clauses (a) to (c) of Rule 4 do not run contrary to DCR. But clause (d) suggests that unauthorised development on lands in Residential Zones, semi-public zones and commercial Zones can be regularized. Clause (e) permits compounding of development made by violating permissible land use in Residential Zones. Rule 5 deals with unauthorised developments which may be considered for being declared as compounded structures. Under clause (b) thereof, even unauthorised developments on the lands reserved for public purpose under a Development Plan or regional plan (except play ground, garden and open spaces reservations) can be considered as compounded structures. However, the reservation is required to be shifted or deleted after following due process of law. By way of illustration, we may refer to reservations in Development Plan for schools, colleges, hospitals, public utility buildings for Courts, for Sewarge Treatment Plants (STP) etc. Unauthorised developments thereon can be tolerated by changing or shifting the reservation. The preparation and sanction of a Development Plan is a very elaborate process starting from section 21 of preparing land use map and ending with section 31 of the MRTP Act. It contemplates preparation of land use plans, consultations at various levels, inviting objections and suggestions, finalization of the draft plan by the Planning Committee as well as by the Planning Authority and ultimate sanction by the State. Even::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:58 ::: 102 modification thereof is a very elaborate process under section 37. As stated earlier, there could be important reservations for various purposes provided in the Development Plan such as hospitals, schools, colleges, STPs roads, road widening etc. Clause (b) of Rule 5 provides that unauthorized developments on such reserved lands will qualify for being declared as compounded structures by shifting or cancelling of reservation at the cost of the person applying for regularization. Thus, in a given case, a person who has made unauthorised development by constructing a building on the lands reserved for hospitals, schools, colleges etc, will be entitled to apply for declaring the structure as a compounded structure by getting the reservation for public purpose under a Development Plan cancelled or shifted. When a person who has carried out illegal construction on a reserved land applies for declaring his structure as a compounded structure, the Planning Authority and the State Government will have to follow due process of law and change or shift the reservation. This provision gives a premium to the person who commits illegality. This sets at naught the entire process of planning under the MRTP Act. Clause (c) of Rule 5 goes one step ahead. It provides for permitting declaration of illegal structures as compounded structures which are constructed on lands reserved for linear reservations such as roads, railways, metros in any plan if said reservations are shifted after due process of law.::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:58 ::: 103
In case of clause (b) of Rule 5, the cost of following the due process of law for shifting or cancellation of reservation is to be borne by the owner or the occupier. Such a provision is absent in clause(c). The process of shifting or cancellation of reservation is a very elaborate process which involves inviting suggestions and objections, hearing of objections and the ultimate decision making. Therefore, till the process is complete, applications for declaration of structures as compounded structures in the cases covered by clauses (b) and (c) will have to kept pending and the illegal structures may have to be protected. Clause (d) conditionally permits compounding of unauthorised development on buildable reservations. Clause (e) permits compounding of illegal development though it violates land use zone after making a change of zone at the cost of the owner or occupier. Thus, in a given case, an illegal construction made on a land in no development zone in a Development Plan can be declared as a compounded structure. Clause
(f) of Rule 5 is very drastic. It permits declaration of illegal structures as compounded structures constructed on the Government lands or on the lands vesting in the public Authorities. Such structures can be declared as compounded structures, on production of No Objection Certificate of the land owning Authority and after transfer or allotment or lease of such land to the concerned person by following due process of law.::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:59 ::: 104
Very often, the Government or the public Authorities acquire lands for public purpose by taking recourse to compulsory acquisition by paying substantial compensation to the owners. Large number of lands in Navi Mumbai have been accordingly acquired. In the case of Planning Authorities, acquisition can be made by granting TDR/FSI in lieu of compensation. Clause (f) enables the compounding of illegal structures on the public properties.
71 The law regarding public properties is well settled. Though a land may be vesting in the State or public Authority, the State or public Authority, as the case may, be cannot act as a private owner in view of applicability of doctrine of public trust. The State Government or the public Authorities, as the case may be, have to act as Trustees. Therefore, if such land is to be disposed of or transferred or allowed to be used by a private party, the State or the public Authorities, as the case may be, are under an obligation to follow a fair and transparent process which must stand the scrutiny of Article 14 of Constitution of India. In the cases covered by clause (f), a person who commits encroachment on a public property and makes illegal construction thereon will end up in getting not only compounding of his illegal structure but will virtually get an allotment of the public property over which members of the public have a right. Allowing illegal::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:59 ::: 105 structures erected on public properties to be regularized in this fashion will be certainly a violation of Article 14 of the Constitution of India. It virtually provides for en-bloc regularization of illegal structures on public properties. Clause (a) permits regularization of structures even on Class II occupancies. Such lands are occupied by allottees on stringent conditions. It is a case of manifest arbitrariness.
72 In fact, the aforesaid clauses in Rule 5 are examples of manifest arbitrariness. The table appended to the Compounded Structure Rules will have to be read with the Rule 5 which provides that the types of unauthorised developments specified therein qualify for being declared as compounded structures subject to fulfillment of the conditions mentioned in the said Rule and parameters specified in the table. Rule 7 expressly permits compounding of structures which are constructed in violation of DCR. Item 1 of the table permits compounding though width of the road abutting a structure may not be as provided in DCR. Item 2 permits user contrary to DCR by virtually amending DCR. Item No.3 in the table permits compounding of structures made by utilising Floor Space Index (for short “FSI”) more than what is permissible under DCR. In such a case, the owner can procure premium FSI, Fungible FSI for TDR by paying additional compounding charges at the rate of 10% of the land rate. Item 5 of the table indicates that while declaring a::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:59 ::: 106 structure as compounded structure, even Rules regarding minimum width of a road can be relaxed subject to payment of additional compounding charges. Item 6 contemplates grant of benefit of compounding even in the case of a structure where the plinth area exceeds the area permitted in DCR. This can be done by charging additional compounding charges. Item 7 shows that even if it is not possible to procure parking as required by DCR, there can be regularization subject to payment of 20% of the additional premium. Item 4 provides for relaxation of Rules regarding set back. Item 8 permits the compromising on Rules in DCR regarding staircase width, passage width and misuse of FSI component. Item 14 permits relaxation of Rules regarding sub-division of layouts in residential areas. Thus, Rule 4 read with items 1 to 8 and 14 enable the Planning Authority to waive or relax major or important requirements of DCR and Development Plan only for tolerating large illegal constructions. This is nothing but manifest arbitrariness.
73 It is true that in view of Rule 12, substantial amount will be payable by way of infrastructure charges, compounding charges and premium. It means that the structures of those who have violated the provisions of MRTP Act as well as DCR and who can afford to pay such huge amounts can be regularized and who cannot afford to pay cannot be regularized.::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:59 ::: 107
74 Under sub-section (3) of section 53 of the MRTP Act, there is a provision under which a person to whom a notice under sub-section (1) of section 53 is served can apply for regularization of the construction carried out without obtaining development permission or in breach of the terms and conditions of the permission. This is the only statutory provision in the MRTP Act, the said Act of 1949, the said Act of 1888 and the said Act of 1965 under which an application for regularization can be made as a matter of right. Therefore, a person who makes an illegal development, has a right to apply for regularization only if a notice under sub-section (a) of section 53 is served upon him and not otherwise. In paragraph 43 of the decision of the Apex Court in the case of Mahendra Baburao Mahadik (supra), the Apex Court held 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 sub-section (2) of Section 53 of the MRTP 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 MRTP Act, the Municipal Council did not have any jurisdiction to direct regularization of such unauthorised 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. ” (emphasis added)::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:59 ::: 108 The Apex Court was dealing with the case of a Planning Authority under the MRTP Act. An application for regularization under sub-section (3) of section 53 is nothing but an application for grant of a development permission under section 44 of the MRTP Act. Hence, regularization contemplated in case of such applications can be made provided the structures are constructed without violating the provisions of the Development Plan or Regional Plan, draft or final, and DCR. An attempt made by the State by impugned Amendment Act and the Compounded Structures Rules is to permit regularization of illegal structures which are not otherwise in accordance with the provisions of the MRTP Act, Development or Regional Plan and DCR. In short, the impugned Amendment Act in the form of section 52-A and the Rules framed thereunder permit compounding of illegal structures which cannot be tolerated in terms of the law to be tolerated by declaring it as Compounded structures subject to payment of various amounts. There are several Planning Authorities (more than 350) in the entire State and therefore, section 52-A has a sweeping effect. Thus, section 52-A and the Compounded Structure Rules provide for regularizing of lakhs of structures which are illegally constructed in violation of the provisions of the MRTP Act and the municipal laws which could not have been permitted to be constructed under the provisions of the said laws. Offending provisions permit regularization::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:59 ::: 109 of constructions on lands vesting in public authorities, lands reserved in Development Plans for construction of roads, hospitals, schools, colleges etc. ARTICLE 21 OF THE CONSTITUTION 75 Laws relating to Town Planning such as MRTP Act or Municipal laws are for the benefit of the citizens. Such laws ensure that the development takes place in all municipal or Development Plan areas in a planned and orderly manner. The Development Plans provide for making available amenities such as roads, recreation grounds, open spaces, adequate drainage arrangements, adequate water supply, facility of hospitals, disposal of sewerage, STPs, schools and colleges etc. A Development Plan also takes into consideration the requirements of public health and safety. The principles of sustainable development have been incorporated in the MRTP Act with a view to protect the rights of citizens under Article 21. It cannot be disputed that the regularization of such large number of illegal constructions will destroy the very concept of town planning which will violate the rights of the citizens guaranteed by Article 21 of the Constitution of India. It will put heavy burden on availability of civic amenities and infrastructure thereby affecting life of citizens. Such a large scale regularization of illegal structures will violate fundamental rights of the citizens under Article 21 of the::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:59 ::: 110 Constitution of India.
76 As held by the Apex Court in the case of Deena @ Deen Dayal and others vs. Union of India and others (supra), in any challenge based on Article 21, once violation of fundamental rights as established, it is always for the State to justify the impugned law and the State has to produce material to discharge heavy burden. In the case of M.C.Mehta vs. Union of India and others (supra), the Apex Court observed that such regularization would result in putting extra load on the infrastructure which violates fundamental rights guaranteed under Article 21 of the Constitution of India. It was observed that the regularization of industries was proposed to be done without conducting scientific study and without examining relevant considerations such as availability of sewerage, power and water supply.
77 In the present case, affidavit filed by the State Government and in particular the affidavit of Shri Sanjay Banait relies upon the report submitted by a Committee of Government Officers. However, it is not the case made out by the State Government that any study was made prior to the enactment of the impugned Amendment Act (a) to ascertain as to how many structures will be regularized under the impugned amendment; (b) to ascertain possible impact of such large scale compounding on the environment and ecology as well as on civic::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:59 ::: 111 amenities such as sewerage, roads, drainage, power and water supply; (c) to assess the impact of such large scale regularization on the town planning as envisaged in the MRTP Act and (d) to know the impact of such large scale regularization of structures on the rights of the citizens who are residing or occupying lawfully constructed structures. The perusal of the report of the Committee shows that this exercise was not at all done by the Committee. There is no impact assessment study undertaken by the State. The State has placed no such material on record. There is no material placed on record to justify the cut off date of 31st December 2015. Thus, section 52A and the Compounded Structure Rules which violate rights under Article 21 do not stand the test of Article 14.
78 Now, we turn to the decision of the Apex court in the case of Consumer Action Group vs. State of Tamil Nadu (supra). This was a case where there was a challenge under Articles 14 and 21 of the Constitution to section 113 of the Tamil Nadu Town Country Planning Act,1971. The decision shows that only a challenge based on Article 14 was considered. Section 113 started with non-obstante clause which provided that notwithstanding anything contained in the said Act of 1971, the Government may exempt any land or building or class of lands or buildings from any or all the provisions of the said Act and Rules and Regulations framed::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:59 ::: 112 thereunder. The said Act of 1971 dealt with issue of Town Planning, grant of developments permission etc. In paragraph 18, the Apex Court observed thus: “18 The catena of decisions referred to above concludes unwaveringly in spite of very wide power being conferred on delegatee that such a section would still not be ultra vires, if guideline could be gathered from the Preamble, Object and Reasons and other provisions of the Acts and Rules. In testing validity of such provision, the Courts have to discover, whether there is any legislative policy purpose of the statute or indication of any clear will through its various provisions. If there be any, then this by itself would be a guiding factor to be exercised by the delegatee. In other words, then it cannot be held that such a power is unbridled or uncanalised. The exercise of power of such delegatee is controlled through such policy. In the fast changing scenario of economic, social order with scientific development spawns innumerable situations which Legislature possibly could not foresee, so delegatee is entrusted with power to meet such exigencies within the in built check or guidance and in the present case to be within the declared policy. So delegatee has to exercise its powers within this controlled path to subserve the policy and to achieve the objectives of the Act. A situation may arise, in some cases where strict adherence to any provisions of the statute or rules may result in great hardship. In a given situation, where exercise of such power of exemption is to remove this hardship without materially effecting the policy of the Act, viz., development in the present case then such exercise of power would be covered under it. All situation cannot be culled out which has to be judiciously judged and exercised, to meet any such great hardship of any individual or institution or conversely in the interest of society at large. Such power is meant rarely to be used. So far decisions relied by the petitioner, where the provisions were held to be ultra vires, they are not cases in which Court found that there was any::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:59 ::: 113 policy laid down under the Act. In A.N.Parsuraman (AIR 1990 SC 40) (supra) Court held Section 22 to be ultra vires as the Act did not lay down any principle or policy. Similarly, in Kunnathat Thathunni Moopil Nair (AIR 1961 SC 552) (supra) Section 7 was held to be ultra vires as there was no principle or policy laid down.”
79 During the pendency of the Appeal before the Apex Court, sections 113-A was brought on the book of the said Act of 1971. The Apex Court reproduced section 113-A in paragraph 32 of its decision which reads thus: “32. This bring us to the next and the last consideration which is the matter of the connected writ petition. During the pendency of this appeal in this Court, the State passed the Tamil Nadu Town and Planning (Amendment) Act, 1998 (hereinafter referred to as “the amending Act”) through which Section 113-A was introduced in the aforesaid 1971 Act, which is reproduced below: “113-A. Exemption in respect of development of certain lands or buildings.–(1) Notwithstanding anything contained in this Act or any other law for the time being in force, the Government or any officer or authority authorised by the Government, by notification, in this behalf may, on application, by order, exempt any land or building or class of lands or buildings developed immediately before the date of commencement of the Tamil Nadu Town and Country Planning (Amendment) Act, 1998 (hereafter in this section referred to as ‘the said date’) in the Chennai Metropolitan Planning Area, from all or any of the provisions of this Act or any Rule or Regulation made thereunder, by collecting regularization fee at such rate not exceeding twenty thousand rupees per square metre, as may be prescribed. Different rates may be prescribed for different planning parameters and for different parts of the Chennai Metropolitan Planning Area. (2) The application under sub-section (1) shall be made within ninety days from the said date in such form containing such particulars and with such documents and such application fee, as may be prescribed. (3) Upon the issue of the order under sub-section (1),::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:59 ::: 114 permission shall be deemed to have been granted under this Act for such development of land or building. (4) Nothing contained in sub-section (1) shall apply to any application made by any person who does not have any right over the land or building referred to in sub-section (1). (5) Save as otherwise provided in this section, the provisions of this Act, or other laws for the time being in force, and Rules or Regulations made thereunder, shall apply to the development of land or building referred to in sub-section (1). (6) Any person aggrieved by any order passed under sub- section (1) by any officer or authority may prefer an appeal to the Government within thirty days from the date of receipt of the order.” It seems, situation developed to such an extent, that irregularity, violation became the order of the day and regularization through power of exemption may not be appropriate, this amendment was brought in to overcome this situation. By this, the Government is empowered, on application being made by the person affected, to exempt any land or building developed immediately before the date of the commencement of this amending Act from all or any of the provisions of the Act, Rules and Regulations by collecting regularization fees at such rate not exceeding Rs 20,000 per square metre. The aforesaid 1982 amendment also added clause (cc) to sub-section (2) of Section 122 of the 1971 Act. The Governor in exercise of his power under this clause (cc) made the Application, Assessment and Collection of Regularization Fees (Chennai Metropolitan Rural Area) Rules, 1999 which prescribe the rates of regularization fees with respect to the various violations if one seeks to regularise them under Section 113-A. The petitioner has also challenged this amending Act, through Writ Petition (Civil) No. 237 of 1999, which we have heard along with the main writ petition. 80 Thereafter, Apex Court referred to the objects and reasons of the Amendment Act by which under sections 113-A was incorporated. Paragraphs 36 and 37 read thus: 36. The Statement of Objects and Reasons exhibits the change of legislative policy to regularise all those buildings or lands developed in contravention of the various provisions of the Act and the Rules. Section 113-A read with the Statement of Objects and Reasons clearly::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:59 ::: 115 indicates the legislature’s intent and policy, instead of demolishing illegal constructions to regularise them by charging regularization fees. Thus no similar attributable vice could be attached to Section 113-A which was submitted for Section 113. In Section 113-A the legislature itself lays down what is to be done by the Government, while in Section 113 the Government is conferred with wide discretion though to act within the channel of the policy. In Section 113-A hardly any discretion is left to the Government while in Section 113 very large discretion is left. Challenge to Section 113 is an unguided wide power to a delegatee, but no such challenge could be made against the legislature. Section 113-A is the mandate of the legislature itself to grant exemption and realise regularization fees, no discretion on the delegatee. Hence we hold that Section 113-A as a one-time measure is a valid piece of legislation and challenge to its validity has no merit. It is interesting, though a matter of concern, what is recorded in the Statement of Objects and Reasons. It records: (A) A rough estimate of about three lakh buildings (approximately 50% of the total number of buildings) will be violative of the Development Control Rules or unauthorised structures. (B) Under the Act demolition action against such structures cannot be pursued against any of them unless a notice was issued within 3 years of its completion. (C) Chennai Metropolitan Development Authority could book only five thousand such structures and Chennai City Municipal Corporation could book only one thousand such buildings against which demolition action could be taken. (D) Administratively also demolition of such a large number of cases is neither feasible nor desirable, as it will result in undue hardship to the owners and the occupants. (E) Considering the practice followed in other metropolitan cities of the country, the State Government took a policy decision to exempt buildings and lands by collecting regularization fees. 37. Mere reading of this reveals administrative failure, regulatory inefficiency and laxity on the part of the authorities concerned being conceded which has led to the result, that half of the city buildings are unauthorised, violating the town planning legislation and with staring eyes the Government feels helpless to let it pass; as the period of limitation has gone, so no action could be taken. This mess is the creation out of the inefficiency, callousness and the failure of the statutory functionaries to perform their obligation under the Act. Because of the largeness of the illegalities it has placed the Government in a situation of helplessness as knowing the illegalities, which are writ large, no administrative action of demolition of such a large number of cases is feasible. The seriousness of the situation does not stay here when it further records, this is the pattern in other metropolitan cities of India. What is the reason? Does the Act and Rules not clearly lay down, what constructions are legal, what not? Are the consequences of such illegal constructions not laid down? Does the statute not provide for controlled development of cities and rural lands in the interest of the::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:59 ::: 116 welfare of the people to cater to public convenience, safety, health etc.? Why this inaction? The Government may have a gainful eye in this process of regularization to gain affluence by enriching coffers of the State resources but this gain is insignificant compared to the loss to the public, which is State concern also as it waters down all preceding developments. Before such pattern becomes cancerous and spreads to all parts of this country, it is high time that remedial measure was taken by the State to check this pattern. Unless the administration is toned up, the persons entrusted to implement the scheme of the Act are made answerable to the laches on their failure to perform their statutory obligations, it would continue to result with wrongful gains to the violators of the law at the cost of the public, and instead of development bring back cities into the hazards of pollution, disorderly traffic, security risks etc. Such a pattern retards development, jeopardies all purposeful plans of any city, and liquidates the expenditure incurred in such development process. 81 The object and reasons quoted therein show that before enacting section 113 A, a detailed study was undertaken by the State to ascertain total number of illegal constructions in the State. Moreover, in paragraph 41 of the said decision of the Apex Court which is the operative part, it was specifically observed that section 113-A is a one time Legislation. In the case in hand, no such study has been undertaken and the objects and reasons do not show that it is one time measure.
Moreover, the challenge on the basis of violation of Article 21 was not considered by the Apex Court. Furthermore, we have seen repeated extensions of the cut off date for protecting illegal huts under the Maharashtra Slum Areas (Improvement, clearance and Redevelopment) Act,1971. There is nothing in the Amendment Act that prevents the State from extending the cut off date hereafter. Therefore, the violators can merrily continue to construct more illegal structures with the hope that the::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:59 ::: 117 State will be magnanimous to extend the cut off date in future.
82 The decision of the Apex Court is of 18 th August 2000. Thereafter, section 113-C was introduced in the said Act of 1971. The said amended provision was subjected to a challenge before the Madras High Court in the case of K.R.Ramaswamy alias Traffic Ramaswamy Vs. State of Tamil Nadu (supra). Madras High Court upheld validity of section 113-C which permitted grant of exemption to buildings or a class of buildings constructed before 1st July 2007 from applicability of the provisions of the said Act of 1971. The impugned Tamil Nadu enactment was not supported by the Rules like the Compounded Structure Rules.
83 Another interesting aspect to be noted is that after the decision dated 18th August 2000 of the Apex Court in the case of Consumer Action Group vs. State of Tamil Nadu (supra), there was a challenge before the Madras High Court to further amendments carried out to section 113-A of the said Act of 1971 by which the cutoff date was extended up to 31st March 2002. The Madras High Court decided the case on 23rd August 2006. It was the case of Consumer Action Group vs. State of Tamil Nadu 39. In the said decision, Madras High Court upheld the challenge to constitutional validity of section 113-A as amended so far as it is applicable to the 39 2006 SCC Online Mad 733::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:59 ::: 118 constructions made after 28th February 1999 and to that extent section 113-A was held ultra vires the Articles 14 and 21 of the Constitution of India. In paragraph 26 onwards, a Division Bench of the Madras High Court held thus: “26. The catena of decisions referred to above unwaveringly show that the word “environment” is of broad spectrum which brings within its ambit hygienic atmosphere and ecological balance. It is, therefore, not only the duty of the State, but also the duty of every citizen to maintain hygienic environment. There is constitutional obligation on the State Government and the Municipalities, not only to ensure and safeguard proper environment, but also an imperative duty to take adequate measures to promote, protect and improve both man-made and natural environment. The Municipal Laws regulating the building construction activities have been enacted to achieve a larger purpose of public health, safety and general welfare. Any violation of zoning and regulation laws, takes a toll in terms of public welfare and convenience being sacrificed apart from the risk, inconvenience and hardship which is posed to the occupants of the building. Though Municipal Laws permit deviation from sanctioned constructions being regularized by compounding but that is by way of exception. 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. At the time of planning, experts in the field of town planning take into account various aspects, such as, healthy living, environment, lung space need, land use intensity, areas where the residential houses are to be built and::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:59 ::: 119 where the commercial buildings are to be located, the need of household industries, etc. Regularizing the constructions erected in violation of the regulations has serious consequences. Regularization in many cases for the violation of the front setback, will not make it easily feasible for the Corporation to widen the abutting road in future and bring the incumbent closer to the danger of the road. The waiver of requirement of side set back will deprive adjacent buildings and their occupants of light and air and also make it impossible for a fire engine to be used to fight fire in a high- rise building. The violation of the floor space index, will result in undue strain on the civil amenities such as water, electricity, sewage collection and disposal. The waiver of requirements regarding fire stair case and other fire prevention and fire fighting measures would seriously endanger the occupants resulting in the building becoming a very veritable death trap. The waiver of car parking and abutting road width requirements would inevitably lead to congestion on public roads causing severe inconvenience to the public at large. Such grant of exemption and the regularization is likely to spell ruin for any city as it affects the lives, health, safety and convenience of all its citizens. The Court cannot remain a mute spectator when the violations also affect the environment and healthy living of law-abiders. If the laws are not enforced and the orders of the Court to enforce and implement the laws are ignored, the result can only be total lawlessness. 27. In Consumer Action Group’s case, cited supra, the Supreme Court upheld the constitutional validity of section 113-A of the Act on the premise that it was a power to be exercised as a one-time measure and the legislature cannot extend the scheme contrary to the order of the Supreme Court. It is not open to the Government to keep on amending schemes or bring new schemes by frequently extending the cut-off date thereby virtually making a complete mockery of the provisions of the Act. As pointed out by the Supreme Court, the exemption clause may properly apply only to excessive and genuine hardship and::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:59 ::: 120 not to exempt the violators from the application and control of the Act thereby allowing them a free hand to violate the rules which are enacted in the interest of the community and for the orderly development of the city. By virtue of amended Section 113-A of the Act, buildings which have been constructed after 1999 in violation of the Town Planning Law, zoning regulations and the Development Control Rules, are now eligible to get those violations regularized and this would in effect defeat the object of the legislation itself and the order of the Supreme Court directing the respondents to nip the violations in the bud. To repeatedly enable an authority to grant dispensation of the application of the Rules is to create a situation which would virtually encourage the consistent pattern of abuse of the provisions of the Act and the Rules. The objective of the Act is to promote planned development in the city. The frequent amendments effected to Section 113-A suggest that the Government expects to check and curb unplanned development only by imposing a fee. The power of exemption cannot operate to destroy the substantive provisions of the statute and these exemption clauses can be applied only to remove excessive and genuine hardship and not to virtually allow the builders a free hand in violating the rules which are enacted in the interest of the community and for the orderly development of the city. 28. We are unable to find either in the exempting provision or in the method of its application, any discernible reason as to why the exemption should be granted in favour of the violators. Having regard to the purpose of the Act, Rules and the necessity for their observance in regulating building growth in the city, it is imperative that the Rules should be scrupulously and strictly applied. Section 113-A by offering priced amnesty to violators at the cost of public interest and scientific town planning reduces the status of such regulations to a purchasable privilege from that of mandatory safeguards designed to ensure the orderly growth of the city. All violations are grouped together and the Rules only provide for different categorization for differential pricing only. The application and observance of the Development Control Rules is vital for the proper and planned growth and development of the city. If these rules are given a go-by, the inevitable result will be shortage of water and electricity, choked roads and ecological and environmental imbalance. Such hardship would be suffered by every resident of the city. The impugned amendments to the section are thus in gross violation of Articles 21 & 14 of the Constitution of India, inasmuch as they arbitrarily affect the constitutional guarantee of ensuring a decent and planned environment.::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:59 ::: 121 29. Learned Advocate General submitted that pursuant to the scheme framed under Section 113-A, not enough Applications were received by the authorities as the fees were highly excessive and, therefore, the State Government with an intention to enable the people to apply for regularization considered it necessary to extend the cut-off date from time to time. He submitted that since it was not possible for the authorities to ascertain the exact date of construction, having regard to the large number of Applications, and also having regard to the fact that it was not possible for the authorities to ascertain as to whether the construction was before the cut-off date i.e., 28.2.1999, it was necessary to enact a law to cover all the violations up to the extended dates as per the scheme. It is not possible to accept the submission of the learned Advocate General. If enough Applications were not received by the State Government, then the State Government could have extended the date of making applications. But there was no justification for extending the cut-off date so as to cover the violations after 28.2.1999. This is especially so when the Supreme Court has upheld the validity of Section 113-A, as a one-time measure. We hasten to add that the extension of date for making applications for regularization, as well as the reduction in fees cannot be said to be illegal and the construction made prior to 28.2.1999 may be regularized, provided the Application for regularization has been preferred before the extended date i.e. 30.06.2002.
The aforesaid decision was upheld by the Apex Court. After having carefully perused the law laid down therein, we concur with the view taken.
84 Shri Singhvi, the learned senior counsel placed reliance on the decision of Gujrat High Court in the case of Shivlal K. Purohit and others Vs. State of Gujrat(supra) wherein the challenge was to the provisions of Gujrat Regularization of Unauthorized Development Act, 2011. Paragraphs 16 to 26 of the said decision are material which reproduce the provisions of law: ::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:59 ::: 122 “16. We have gone through the provisions contained in Section 8 of the Act where the circumstances in which unauthorized development should not be regularized have been enumerated. According to the said section, any unauthorised development shall not be regularized where the unauthorised development is carried out on any of the following lands:- (a) land belonging to Government, local authority or statutory body; (b) land acquired or allotted by the Government, local authority or statutory body for a specific purpose (c)land under alignment of roads indicated in development plan or a town planning scheme or under alignment of a public road; (d) land designated or reserved under a development plan or a town planning scheme; (e)lands till regularized as provided in section 9; (f) water courses and water bodies like tank beds, river beds, natural drainage and such other places; (g) areas earmarked for the purpose of obnoxious and hazardous industrial development. 17. Sub-section (2) of Section 8 further prescribes that an unauthorized development shall not be regularized if the same is inconsistent with fire safety measures under the relevant law or structural stability requirements are per the G D C R. Sub- section (30) of Section 8 provides for certain conditions for regularization of unauthorised development. 18. Section 10 of the Act authorizes the designated authority to regularise unauthorized development in respect of the following matters:- (i) Ground Coverage, (ii) Built up area, (iii) Height of Building, (iv) Change of use,::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:59 ::: 123 (v) Common plot, and (vi) Parking, subject to the condition that the occupier or owner shall provide parking as per GDCR in unauthorized development and where it is not so feasible, in a place owned or occupied by himself or more than one applicant, within much distance not exceeding five hundred meters from the unauthorised development as directed by the designated authority within a period of six months from such direction. However, in the event of non-compliance of the aforesaid directions for any reason, the State Government by rules and such committee after making such inquiry as it deems fit, will suggest suitable options which shall be taken into consideration by the Designated Authority for the purpose of implementation; (vii) Sanitary facility, subject to the condition that the designated authority is satisfied that the sanitary facility provided is adequate; (viii) Such other matters which the State Government may, prescribe. 19. Sub-section (2) of section 10, however, maintains that the designated authority shall not regularise unauthorized development in respect of the following matters:- (a) having such floor space index which the State Government may prescribe; (b) projections beyond the plot boundary; (c)the change of use which in the opinion may cause danger to health or lead to health hazard; (d) falling under the alignment of means of water supply, drainage, sewerage, supply of electricity or gas or of any other public utility service; and (e) such unauthorised development which the State Government may, prescribe 20. After going through the aforesaid provisions of the Act, we find that the State Legislature was well aware of the fact that in the past there has been unauthorised development in the city of Ahmedabad and development areas of the State on a large scale and although those are liable to be demolished in accordance with the::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:59 ::: 124 relevant laws of the land, removal or pulling down of such unauthorised development would cause hardship to a large number of people and, therefore, a chance has been given for regularization on conditions indicated therein. From the above provisions of law, it appears that while making the provisions of regularization, it has not compromised with fire safety measures under the relevant law and structural stability requirements as per the GDCR. 21 Such being the position, we find no substance in the contention of Mr.Panchal that the proposed amendment is opposed to fire safety measures provided under the existing law. 22 As pointed out by the Supreme Court in the cases mentioned by us in this judgment, the Legislature contains representatives of people elected by it and authorised by the people to enact laws. In the case before us, there is no dispute that the State Legislature had the required competency over the subject matter. If State Legislature on consideration of the situation prevalent in the State, decides to regularise unauthorised construction without compromising with the safety measures provided under other existing law, in our opinion, the same cannot be said to be violative of Article 21 of the Constitution of India. 23 We do not find any substance also in the contention of Mr.Panchal that the same is violative of Article 14 of the Constitution of India. It has laid down criteria for regularization and the classes of people who are entitled to get such benefit. In those conditions, there is no inequality or want of equal protection of law among the same classes of citizens. 24 Simply because the mode of regularization adopted by the State Legislature could be made in a better way or in a stricter way, for that reason, this Court sitting in a jurisdiction under Article 226 of the Constitution cannot declare it as ultra vires. Once legislative competency is established and at the same time, it does not violate::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:59 ::: 125 any of the provisions of Part-III of the Constitution, there is no scope of declaring the same as ultra vires. It is not even the object of the Act of 2011 to continue with violation of the existing law of the land and its applicability is restricted only to a specific unauthorised construction for a limited period where the government could not tackle the situation. 25 If the Legislature of the State decides to condone the act of violation made by the citizens on payment of penalty without compromising with the safety measures of the people, we are of the view, there is no scope of interference with the enactment concerned. 26 In our opinion, a law, which subject to some conditions being fulfilled, seeks to classify certain activities of the citizen as legal which were previously branded as illegal, cannot be said to be in violation of Article 14 if there is no discrimination amongst the beneficiaries of such law. We also do not find any substance in the contention of Mr.Panchal, the learned advocate for the petitioner that Legislature has no right to repeatedly condone unauthorised construction for the purpose of favouring a class of persons who consistently defied the law. No doubt such act may amount to giving benefit to a law breaker but for that reason alone, a Court is not vested with power to declare an Act as ultra vires. The Legislature has right to enact a law by giving benefit to a particular class of people without giving such benefit to another class, provided such benefit is granted based on proper classification. A Legislature in its wisdom can decide to declare an existing law as no longer valid and instead of that may add new definition in the existing Act. It is beyond the province of a writ-Court to demand explanation from the Legislature for enactment of a particular legislation nor can the writ- Court modify the same on the ground that according to the Court a better option was available. As pointed out by the Supreme Court in the case of Maneka Gandhi v. Union of India reported in (1978) 1 SCC 248 unless a classification made by the Legislature is patently arbitrary, there is presumption in favour of validity of the enactment.::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:59 ::: 126 In the case before us, the ground of regularization cannot be said to be absurd. Only thing that can be complained is that it is inconsistent with the existing law which has been violated. We have already pointed out that in a given situation for the purpose of solving the problem arising out of mass violation of existing law, the Legislature is vested with the power to tackle the situation by enacting this type of Regularization Act which is not unknown in the field of legislation.”
85 Thus, under the Gujarat Act, it was impermissible to regularise unauthorised development on the lands vesting in local Authorities or public Authorities. There was prohibition on regularization of the structures on the land acquired or allotted by the Government, Local Authority or Statutory Authority for a specific purpose. Illegal developments on the land reserved under the Development Plan are excluded from regularization. In the case in hand, offending provisions permit regularization of structures on the public properties. It permits regularization of the structures on the lands acquired as per law of compulsory acquisition. It permits regularization of illegal constructions on the lands designated or reserved for public purpose under the Development Plan or town planning scheme.
Therefore, Gujarat High Court was dealing with an altogether different law. An argument was sought to be canvassed that in many States, laws for regularization of illegal structures have been enacted. However, the argument is irrelevant as the provisions of each State law are different. ::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:59 ::: 127
86 Coming back to the provisions of the MRTP Act and the Municipal laws applicable to the State, a specific provision for making an application for regularization as a matter of right of the illegal structures or unauthorised development can be found only under sub-section 3 of section 53 of the MRTP Act. The said provision can be invoked when a notice under sub-section (1) of section 53 is served upon the concerned person. When such application is made under sub-section (1) of section 53, obviously, the construction or unauthorised development can be regularized provided it is otherwise lawful in the sense that the construction/development is otherwise permissible as per the Development Plan/Regional Plan or the draft Development Plan/draft Regional Plan and DCR framed under clause (m) of section 22 of the MRTP Act. However, when an action of demolition is taken or removal of illegal development is initiated under the provisions of Municipal laws or under section 54 and 55 of the MRTP Act, there is no specific provision which enables the persons concerned to apply for regularization as a matter of right.
87 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::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:59 ::: 128 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.
88 The Apex Court has repeatedly held that as far as possible, a statute should be saved from being declared as unconstitutional, if necessary by reading down the statute. Sub-section (1) of section 52-A starts with the words, “notwithstanding anything contained in this Act or any other law for the time being in force or in any Judgment, Order or direction of any Court, where unauthorised development has been carried out on or before 31st December 2015, in the area of::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:59 ::: 129 Development Plan…..”. But clause 5 of the objects and reasons states that “The State Government is satisfied that it is expedient to make suitable amendments in the Maharashtra Regional and Town Planning Act,1966, for removing the basis on which the Hon’ble High Court has declined to grant leave to implement the said policy and to enable the Planning Authority to request the State Government for regularization of unauthorised developments carried out on or before the 31st December 2015, those are in conformity with Development Control Regulations, by declaring such structures as compounded structures. ” The objects and reasons are not wholly irrelevant. In the case of A.G.Varadarajulu vs. State of T.N40, in paragraph 16, while dealing with an interpretation of non- obtante the Apex Court held thus: “16. It is well settled that while dealing with a non obstante clause under which the legislature wants to give overriding effect to a section, the court must try to find out the extent to which the legislature had intended to give one provision overriding effect over another provision. Such intention of the legislature in this behalf is to be gathered from the enacting part of the section. In Aswini Kumar Ghose v. Arabinda Bose [AIR 1952 SC 369 : 1953 SCR 1] Patanjali Sastri, J. observed: “The enacting part of a statute must, where it is clear, be taken to control the non obstante clause where both cannot be read harmoniously;”In Madhav Rao Scindia v. Union of India [(1971) 1 SCC 85] (SCC at p. 139) Hidayatullah, C.J. observed that the non obstante clause is no doubt a very potent clause intended to exclude every consideration arising from other provisions of the same statute or other statute but “for that reason alone we must determine the scope” of that provision strictly.
When the section containing the said clause does not 40 (1998) 4 SCC 231::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:59 ::: 130 refer to any particular provisions which it intends to override but refers to the provisions of the statute generally, it is not permissible to hold that it excludes the whole Act and stands all alone by itself. “A search has, therefore, to be made with a view to determining which provision answers the description and which does not.”
(emphasis added) The clause 5 of the objects and reasons gives an indication that there was no intention to override DCR or plans prepared under the MRTP Act by the non obstante clause.
89 We have held that section 52A infringes Articles 14 and 21. The question is whether the offending provision of section 52A can be read down. We find that the same can be read down to mean that the non Obstante clause does not permit the Planning Authorities to compound illegal developments which are otherwise not permissible in accordance with the Plans prepared under the MRTP Act and DCR made thereunder. However, if there is any order of any Court directing demolition or removal of illegal development which has taken place on or before 31st December 2015, notwithstanding the said order, unauthorised development can be compounded provided it is otherwise permissible under the Development and or Regional Plan and DCR. We must note that under the various DCRs applicable to different Planning Authorities, there is invariably a discretionary power given to the Planning Authorities to condone minor variations and departures from DCR. ::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:59 ::: 131
90 Now coming to the Compounded Structure Rules, clauses (c) and (d) of Rule 4 (to the extent to which it permits compounding contrary to the rules regarding various zones) and Rule 5 and 7 in its entirety will have to be struck down as it permit compounding of structures constructed contrary to the provisions of plans made under the MRTP Act and DCR made thereunder. While striking down the part of Rule 4, we must hasten to clarify that no illegal structure made contrary to the zones provided under the Development or Regional Plan can be compounded. The same is the position with the contents of items 1 to 8 and 14 table appended to the Compounded Structure Rules. We have already set out detailed reasons for arriving at the said conclusion.
SECTION 53 OF THE MRTP ACT 91 We have quoted sub-sections 1 and 1A of
Section 53 which was substituted by the Amendment Act. In one of the PILs, clause (a) and (b) of sub- section (1) have been criticized on the ground that in case any development is carried out as incorporated in clauses (a) or (c) of sub-section 1 of section 52, even a reasonable time will not be available to enable the concerned party to apply for regularization under sub-section 3 of section 53 as a notice can be given of 24 hours.
92 It is true that sub-section 3 of section 53::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:59 ::: 132 permits application for compounding to be made within the period specified in a notice under sub-section 1. In cases covered by clauses (a) and
(c) of sub-section (1) of section 52, Clause (a) of sub-section (1) provides for giving a prior notice of only 24 hours. We may note here that clause (b) of sub-section (1) provides for the Planning Authority taking immediate steps to demolish the said development and seal the machinery and materials used or being used therefor. There is no specific time such as time of 24 hours prescribed in clause (b) of sub-section (1). It is true that if immediately after expiry of 24 hours after service of notice under clause (a) of sub-section (1) of section 53, action of removal is taken, even a reasonable opportunity to apply for regularization under sub-section (3) of section 53 will not be available and reasonable time will not be available to challenge the notice. To save clauses (a) and (b) of sub-section (1) of section 53, the State can always exercise power under section 154 of the MRTP Act of issuing a direction to all the Planning Authorities directing them to take action of demolition of the developments, after expiry of a reasonable time from the date of service of notice under clause (a) of sub-section (1) of section 53. However, action of sealing the machinery and material can be taken immediately. We propose to issue directions in that behalf. The notice issued under sub-sections 1A of section 53 for violation of clauses (b) or (d) of sub-section::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:59 ::: 133 (1) poses no difficulty as it provides for service of one month’s notice and therefore, period of one month will be available under sub-section (3) of section 53 to apply for compounding or regularization of the illegal work.
93 As stated earlier, we have read down sub- section (1) of section 52-A. We must give few illustrations as to how the reading down of the section will work. 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::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:30:59 ::: 134 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. We are not dealing with the issue whether by exercising power under any other statutes, encroachments on the public properties can be regularized.
94 As far as the issue of tolerating the illegal constructions is concerned, we have already summarized the law on the point. As held by the Apex Court, 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. The directions issued under the interim order dated 28th , 29th and 30th July 2015 and in particular clause (I) to (xvi) will continue as final directions subject to modifications made by this judgment. A reasonable time will have to be granted to complete survey of illegal developments made in Navi Mumbai and the work of demolition will have to be monitored.::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:31:00 ::: 135
95 Hence, we dispose of the petition by passing the following order:
(I) We hold that section 52-A of the MRTP Act shall be read down 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. Hence, 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 ;
(II) 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 are hereby struck down. The table appended to the Compounded Structure Rules in so far as columns 1 to 8 and 14 are concerned, is hereby struck down;
(III) We direct the State Government to issue a direction under section 154 of the MRTP Act to the Planning Authorities to grant a reasonable time to::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:31:00 ::: 136 those who have been served with a notice under clause (a) of sub-section (1) of section 53 of the MRTP Act to enable them to apply under sub-section (3) of section 53;
(IV) All interim orders passed in the PIL No.80 of 2013 and 138 of 2012 and especially interim directions in the order dated 28th, 29th and 30th July 2015 directing the City and Industrial Corporation of Maharashtra Limited, the Maharashtra Industrial Development Corporation and the Navi Mumbai Municipal Corporation to take action of demolition of illegal constructions will continue to apply as final directions. Even the directions issued regarding setting up of Grievance Redressal Mechanism shall continue to operate as final directions;
(V) We direct CIDCO, MIDC and Navi Mumbai Municipal Corporation to carry out a survey within their respective jurisdictions as Planning Authorities for identifying and locating the total number of illegal constructions;
(VI) The Revenue and Survey Officers under the Maharashtra Land Revenue Code,1966 shall render necessary co-operation to the aforesaid Planning Authorities for carrying out the survey. The work of carrying out survey shall be completed within a period of one year from the date on which this Judgment and Order is uploaded;::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:31:00 ::: 137
(VII) We direct the aforesaid three Planning Authorities to file a quarterly report in this Court setting out details of the action taken for demolition of illegal constructions. The first of such reports shall be filed on or before 31 st March 2019;
(VIII) The Court Receiver appointed under the interim orders in PIL Nos. 80 of 2013 and 138 of 2012 shall continue. However, he will submit reports on current status of the buildings on or before 31st March 2019. After considering the reports, the Court will consider of discharging the Court Receiver;
(IX) For considering the said reports, PIL Nos.80 of 2013 and 138 of 2012 shall be listed for directions on Friday 5th April 2019;
(X) Rule is made partly absolute on above terms in all PIls. However, as directed by earlier order, Writ Petitions will remain pending;
(X) All pending Civil Applications and Notices of Motion in the PILs if any, stand disposed of.
. At this stage, the learned senior counsel appearing along with learned Government Pleader and the learned senior counsel appearing for the petitioners in Writ Petition Nos.4927 of 2017 and::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:31:00 ::: 138 7167 of 2017 pray for stay of operation of the judgment. By this judgment, we have not struck down section 52A of the MRTP Act but we have read it down. However, certain rules under the Compounded Structure Rules have been struck down.
. In view of the fact that we have not stuck down section 52A but only read it down, no case is made out for grant of stay. The prayer for stay is rejected.
(A.K.MENON,J.) (A.S.OKA,J.)::: Uploaded on – 03/11/2018 ::: Downloaded on – 04/11/2018 01:31:00 :::

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