Maharashtra HC Judgment on Illegal Constructions in Navi Mumbai

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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.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
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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
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

Vivek Velankar ...Petitioner
vs.
State of Maharashtra & Others ...Respondents

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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

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 enbloc
regularization of a very large number of illegal

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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 enbloc
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

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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
ThaneBelapur 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

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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

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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

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December 2015. Amendment Act introduces definition

of compounded structures in the form of subsection
5A 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 52A, 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

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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

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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. Subsections
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.

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“(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;”.
6...
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];
8...
9...
10...
11...
12...
13...
14...
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,]

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(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.
16...
17...
18...
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

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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) ,

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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

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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

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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,

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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

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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

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

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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,-

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;

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-

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;

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”

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

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

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

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.
of Water Supply Department officer of Planning Authority is required
wherever necessary.
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-

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

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

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

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 52A 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

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 52A 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.

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

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
goby 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

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

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

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

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

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 subsection 1
of section 53 will have to be harmoniously
construed. Anomaly can be removed by reading down
clause (a) of subsection 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

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 Cooperative
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
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 52A 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

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 enbloc 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

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

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 52A. 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

52A 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

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 52A 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

46
Compounded Structure Rules specifically provide

that the structures in ecosensitive 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 probono litigants. He submitted
that the amendment under challenge is itself made

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

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

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

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

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

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:

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

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

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

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)

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

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….’

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

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

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

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

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

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

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

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

67
SECTION 52A
47 We have quoted section 52A 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

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

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

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

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

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

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

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

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 B
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

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

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

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.

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

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

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,

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

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

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)

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

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

87
Jabalpur 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

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

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,
highways, parkways, railways, waterways, canals
and air ports, including their extension and
development ;

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

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

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 subsection (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;”

93
63 On comprehensive analysis of the MRTP Act, it
is clear that it does not permit any development
including erection or reerection 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

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

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:

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
BhiwandiNizampur 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 52A, we have

already set out its objects and reasons. In PIL

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 enbloc 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 Subsection (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 subsection (1) of section
52A applies only to the areas of Development Plan,
the provisions of section 52A 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 subsection (1) of
section 52A provides that upon request of the

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. Subsection
(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). Subsection (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 subsection (2) provides that
development or reconstruction is permissible in
compounded structures only as per the provisions

99
prevailing DCR. This provision is hardly relevant,
as compounding is permissible even if a structure
is contrary to DCR.
69 As noted earlier, subsection (1) of section

52A starts with the nonobstante 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 subsection (2) of
section 52A, 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 redevelopment 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

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 multistoried RCC
buildings. We must note that in subsection (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

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, semipublic 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

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.

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.

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

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 enbloc
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

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 subdivision 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.

107
74 Under subsection (3) of section 53 of the MRTP
Act, there is a provision under which a person to
whom a notice under subsection (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 subsection (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)

108
The Apex Court was dealing with the case of a
Planning Authority under the MRTP Act. An
application for regularization under subsection
(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 52A 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 52A has a sweeping
effect. Thus, section 52A 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

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

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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

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 nonobstante
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

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

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 113A was brought on the book
of the said Act of 1971. The Apex Court reproduced
section 113A 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),

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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 113A 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

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

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 113A 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

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 113C 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 113C 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 113A 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
113A as amended so far as it is applicable to the
39 2006 SCC Online Mad 733

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constructions made after 28th February 1999 and to

that extent section 113A 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

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

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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.

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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:

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“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,

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

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

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.

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.

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 subsection 3 of section 53 of the MRTP
Act. The said provision can be invoked when a
notice under subsection (1) of section 53 is
served upon the concerned person. When such
application is made under subsection (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 enbloc

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

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. Subsection (1) of
section 52A 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

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

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.

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 subsections 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 subsection 1
of section 52, even a reasonable time will not be
available to enable the concerned party to apply
for regularization under subsection 3 of section
53 as a notice can be given of 24 hours.
92 It is true that subsection 3 of section 53

132
permits application for compounding to be made

within the period specified in a notice under
subsection 1. In cases covered by clauses (a) and
(c) of subsection (1) of section 52, Clause (a)
of subsection (1) provides for giving a prior
notice of only 24 hours. We may note here that
clause (b) of subsection (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 subsection
(1). It is true that if immediately after expiry of
24 hours after service of notice under clause (a)
of subsection (1) of section 53, action of removal
is taken, even a reasonable opportunity to apply
for regularization under subsection (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 subsection (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 subsection
(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 subsections 1A of section 53
for violation of clauses (b) or (d) of subsection

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 subsection (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 52A. 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 subsection (1)
of section 52A, 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

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.

135
95 Hence, we dispose of the petition by passing

the following order:
(I) We hold that section 52A of the MRTP Act shall
be read down to mean that non obstante clause in
subsection (1) of section 52A 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

136
those who have been served with a notice under

clause (a) of subsection (1) of section 53 of the
MRTP Act to enable them to apply under subsection
(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 cooperation 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;

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

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.)

Maharashtra HC Judgment on Illegal Constructions in Navi Mumbai

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1

ssp pil80groupwithospil82 .doc

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Mr.Mr.A.Y.Sakhare, Senior Advocate a/w Mr.A.B.

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structures constructed in the State on or before

“If you fail to plan, you are planning to fail.”

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Development Corporation (for short “MIDC”) which

3 PIL Nos.138 of 2012 and 80 of 2013 have been

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5 For a part of Navi Mumbai, the Municipal

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7 The orders passed in the aforesaid two PILs

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December 2015. Amendment Act introduces definition

8 PIL No.80 of 2013 is filed by the petitioner

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who is an Advocate by profession. The subject

10 PIL No.29 of 2018 has been filed by the

11 PIL No.82 of 2017 has been filed by Janhit

12 As far as Writ Petition Nos.7167 and 4927 of

13 In PIL Nos.80 of 2013 and 138 of 2012, there

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Redressal Mechanism enabling the citizens to

RELEVANT STATUTORY PROVISIONS

14 Before we refer to the extensive submissions

“[(5A) “ compounded structure ” means an unauthorized structure, in

By the Amendment Act, sub-section 5A was substituted by the

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“(5A) “compounded structure” means any development of land in

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(c)(i) A Zilla Parishad constituted under the Maharashtra Zilla Parishads

“52. Penalty for unauthorized development or for use otherwise than

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shall, on conviction, [be punished with imprisonment for a term [which

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any building or works or carrying out of any building or other operations;

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requiring him to take necessary steps as specified in the notice.”

54. Power to stop unauthorized development -

55. Removal or discontinuance of unauthorized temporary

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shall be similarly removed or discontinued summarily without making

(2) The decision of the Planning Authority on the question of what is

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142. Sanction of prosecution – No prosecution for any offence

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“(5A) “compounded structure” means any development of land in respect of

3. In section 18 of principal Act, in sub-section (2B), after the words

4. After section 52 of the principal Act, the following section shall be

“52A. (1) Notwithstanding anything contained in this Act or any other

(2) On declaration of such development as compounded structure under

Provided that, no further development shall be permissible in any

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development or reconstruction of such structure shall be only as per the

5. In section 53 of the Principal Act, for sub-section (1), the following

3. In these rules,unless the context requires otherwise,-

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(a) “Act” means the Maharashtra

(c) “Compounded structure” means a structure defined as compounded structure