Second policy to be scrapped in a year: Bombay HC rejects draft regularisation policy again, calls it ‘illegal’

“The draft regularisation policies contrary to Maharashtra Regional Town Planning (MRTP) Act and Development Control Regulations… We decline to grant leave to state government for implementing the policy,” said Justice A S Oka.

A division Bench of Justice A S Oka and Justice Anuja Prabhudessai was hearing a public interest litigation pertaining to the illegal construction in Digha, Navi Mumbai in which the government had submitted its policy and had sought leave from court to implement it. The policy, which has to be applicable throughout the state, seeks to regularise all illegal structures built prior to December 31, 2015.

The court had earlier rejected the proposed regularisation policy of April 26, 2016, terming it arbitrary. Thereafter, the government had come out with another policy in July 2016.

The court while referring to the argument of the petitioners on the need for an impact study before allowing regularisation, further added, “such regularisation offends development control regulations and will destroy the concept of town planning for which MRTP has been implemented.”

Pointing to a clause which allows regularisation of illegal structures on public land by transfer of such property to the applicant’s name, the court held that “regularsing such illegal structures on public property by suggesting transfer of land is in violation of fundamental rights.”

Giving the example of Navi Mumbai Municipal Corporation, the Bench said the planning authorities had acquired such land after paying hefty compensation and regularising illegal construction on such land was a waste of public money.

The policy submitted by the court also included amendments in the MRTP Act necessary for preventing illegal construction. “It cannot be that only if court approves this policy will the state take legislative measures to control illegal construction,” the Bench pointed out, adding the state did not need the court’s nod for implementing such measures.

On the issue of the cut-off date provided in the policy, the High Court said, “In matters of policy courts cannot go into reasoning for framing the policy. But in the present case, the government has not come out with a reason for the cut-off date.”

Giving several examples of the rampant illegal construction, the court pointed to the data collected under the Right to Information Act which stated that there were 333 illegal structures constructed in Navi Mumbai till 2015.

Arguing for the government, Advocate General Rohit Deo had said that the policy was in compliance of DC norms and MRTP Act and nothing in violation of these laid down provisions would be regularised.

The court, however, gave several examples of how the clauses of the policy were contrary to the rules and regulations. But pointed to several illegalities which could still be regularised within the existing framework of law.

In terms of already existing regularisation policies for slums and illegal construction in Mumbai, the High Court held that their orders would not affect such existing policies.