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Regularisation Of Unauthorised Constructions

By - Pooja Sirnapelly on January 9, 2023

On the 20th of December, shortly after the commencement of yet another term of the BJP government the “The Gujarat Regularisation of Unauthorized Development Bill 2022” was tabled. As per Statista the degree of Urbanisation from 2011 to 2021 is increasing at a rapid pace of 35.39%. Consequently, this has led to the creation of a myriad of buildings and constructions sans permission rendering them illegal in nature. The first recourse that would ordinarily strike one’s mind would be to carry out a large-scale evaluation and issue orders and directions with proper notice to bring about corrective action. However, alteration or elimination of such buildings and constructions is bound to create legal implications such as unwarranted “commercial hardships” to both builders and the hoi polloi. Interestingly, this is not a novel step as the Gujarat Government had enacted similar legislations in 2001 and 2011 and recently the Kerala Government has announced that it is also set to bring in a bill in the upcoming assembly session from December 5th, 2022 pertaining to regularisation of unauthorised constructions made before November 2019. 

This is a win-win situation for both the State and the Beneficiaries as the revenue generated by the penalty paid is directly credited to the State’s respective fund and at the time grants livelihood to numerous individuals which is in furtherance of the fundamental right to shelter which makes it the State’s onus to provide the same as given in Rajesh Yadav v State of UP. A simple example of this would be the recent initiative by the Union Cabinet’s proposal to grant ownership rights to persons living in unauthorised colonies in Delhi which was found to benefit approximately 40 lakh persons with respect to livelihood prospects.  

The primary question that arises is what kind of buildings and constructions can be regularised? It would create havoc and act as bail to builders if all such constructions and buildings were regularised. Hence, those illegalities pertaining to margins, height, change of use, covered projections, parking, sanitary facilities, common plots and build-up areas can be regularised subject to a fee such as an “impact fee” which would be utilised for infrastructure enhancement. Further, it is necessary to ensure that those unauthorised constructions in areas that are under the Government’s ownership or duly allotted to the Government for specific purposes must not be regularised as that would be meddling with town planning activities and prospective projects for public good and infrastructure development. Additionally, it is also necessary that the fee charged should be of a substantial amount in order to deter unauthorised construction activities in the future. For example, when Kerala held a mass regulation drive in 2018 the penalty charges were 3 lakh per car parking slot that a mall lacks and it is necessary that this time the penalty charges must be equal or substantially higher than the amount fixed in 2018 in order to make the impact it is aiming for.  

In context to the implementing authority for such bills and actions, it is the respective State Authority that must take charge. The simple reason being that Real Estate Laws and related rules are governed by both State-specific laws and Federal laws. As per the Constitution of India “Land” falls under the State list and hence related orders and bills would come within the ambit of the State in question. This can be seen in the Gujarat bill as well where it is clearly stated that the Municipal Commissioner, CEO of the Development Authority, or the Chief Officer of the Municipality can be appointed as the designated authority.  

Lastly, it is reiterated that the ultimate vision should be to significantly reduce unauthorised development and achieve the targets pertaining to sustainable development whilst being mindful of the character that the city in question aims to be. Another possible solution could be to undertake developmental activities in underdeveloped urban areas to make them more habitable instead of regularisation of unauthorised constructions despite it presently having its own benefits. But in no situation should this be deemed as a pardonable activity on part of builders and should be limited to circumstances when it becomes a necessity.


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