Case Note & Summary
The proceedings arise from two Public Interest Litigations (PIL No. 80 of 2013 and PIL No. 138 of 2012) before the Bombay High Court. In an earlier order dated 28th-30th July 2015, the Court had, while dealing with issues of illegal constructions, directed that any fresh regularization policy formulated by the State Government would require the Court's leave before implementation. The State Government then sought such leave, but its first attempt was rejected by a detailed judgment dated 26th-27th April 2016 on the ground that the draft policy was arbitrary, irrational, and contrary to several decisions of the Supreme Court. Subsequently, the State Government tendered a revised draft policy vide affidavit dated 29th July 2016 and again applied for leave. The policy consists of three parts: the main policy for regularization in urban areas, proposals for amendments to the Maharashtra Regional and Town Planning Act, 1966 (MRTP Act) to prevent unauthorized constructions, and administrative measures for controlling unauthorized constructions. The Government invited responses from various Planning Authorities and filed an affidavit on 3rd March 2017 summarizing their suggestions and the Government's response. The Advocate General argued that the policy was not intended to override the MRTP Act or Development Control Regulations (DCR); rather, it sought to ensure that the wide discretionary powers of Municipal Commissioners and other authorities were exercised uniformly and non-arbitrarily. He emphasized that regularization on reserved lands or government lands could only proceed after the applicant obtained title or an NOC, and that the requirement of sufficient access road width was not diluted. He also highlighted the proposed amendments to strengthen demolition powers and deter illegal constructions. On the issue of judicial review, he contended that policy decisions are subject to limited scrutiny under Article 226 and that the Court should not interfere unless the policy is unconstitutional or violates express statutory provisions. He cited Esta Shakti Foundation v. Government of NCT of Delhi and Shivlal K. Purohit v. State of Gujarat. The Navi Mumbai Municipal Corporation (NMMC), through its Commissioner, filed objections stating that the MRTP Act already contained provisions for retention of unauthorized constructions under section 53, and that regularization should only be allowed if the construction complies with NMMC's DCR. It cautioned that regularizing unplanned structures, many built on CIDCO and MIDC land without title, would defeat decades of planned development and could lead to disasters during calamities. The Commissioner also pointed to violations like 200% breaches of open space and parking norms in gaothan areas and the unknown structural quality of unsupervised buildings. The text of the judgment breaks off while the court was discussing these submissions, so the final decision and ratio are not available.
Headnote
A) Constitutional Law - Judicial Review of Policy Decisions - Scope under Article 226 - Constitution of India, 1950, Article 226 - The Court was urged that the power of a writ court to interfere with a policy decision of the State Government is limited; a policy can be struck down only if it is unconstitutional or in express violation of a statute. The Advocate General relied on Esta Shakti Foundation v. Government of NCT of Delhi and Shivlal K. Purohit v. State of Gujarat to argue that the Court should not substitute its own view for a better policy. Held [as the judgment is interlocutory, the Court has not finally ruled on this point; the submissions were considered.] (Para 8) B) Municipal Law - Regularization of Unauthorized Constructions - Conformity with Statutory Framework - Maharashtra Regional and Town Planning Act, 1966, Sections 44, 46, 53 - The draft policy acknowledges that in case of conflict, the MRTP Act prevails. The Court considered whether the policy overrides statutory provisions requiring regularization only if the construction is in conformity with sanctioned Development Control Regulations. The Municipal Commissioner of Navi Mumbai objected that regularization of structures violating marginal open spaces, parking, and other DCR requirements would undermine planned development and public safety. Held [the Court is examining this issue; the final determination is not in the supplied text.] (Paras 5-10) C) Municipal Law - Unauthorized Constructions on Public Lands - Pre-requisite of Transfer/Allotment - The draft policy provides that applications for regularization of unauthorized constructions on lands vesting in Central/State Governments or public authorities will be entertained only after the applicant obtains an order of allotment or transfer of the land. The Court noted the submissions that without ownership, illegal constructions had been made on public properties. Held [the Court is considering whether this safeguard is adequate.] (Paras 7, 9-10) D) Municipal Law - Unauthorized Constructions - Objections of Planning Authorities - The Court considered the letter of objection dated 10th March 2017 from the Municipal Commissioner, Navi Mumbai, who highlighted that regularization of unplanned structures on narrow streets and reserved public amenity spaces would lead to serious issues of health, fire, and structural safety, especially in gaothan areas with 200% violations. The Court noted that these objections were before it while deciding the leave application. Held [the final view is not expressed in the available text.] (Paras 9-10)
Issue of Consideration
Whether the Court should grant leave to the State Government to implement its draft policy for regularization of unauthorized/illegal structures in existence as on 31st December 2015 across the State, in light of earlier orders and objections.
Law Points
- Judicial review of policy decisions under Article 226 is limited
- Regularization policy must conform to statutory provisions and development plans
- Unauthorized constructions on public lands require no objection certificate from land owning authority
- Objections of planning authorities about safety and planned development must be considered
