Unauthorised Construction
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This article is written by Varun Sharma, pursuing a Diploma in Entrepreneurship Administration and Business Laws, from Lawsikho.com Here he discusses “How to Stop Unauthorised Construction on Public Lands in India”.

Introduction

The area under public lands in India is massive. Due to the unavailability of a comprehensive report on public lands, the exact monetary value is unknown. But fragmentary reports from different sources provide us with an idea. For eg, in Ahmedabad, Gujarat, 32% of the total land is with the Municipal Corporation of Ahmedabad. These lands serve as a major source of income for the government. For eg, around 13 hectares of land in the Bandra Kurla complex was leased out by the Metropolitan Mumbai Regional Development Authority (MMRDA) for roughly ten times its annual infrastructure budget at INR 5000 crores. But unauthorised construction on the public lands is creating huge losses for the government. Let us discuss how the problem of unauthorised construction can be reduced.

What is Public Land

A comprehensive definition of the term “Public Land” is not available anywhere. But all the land that is under the control of the Central Ministries, State governments and other local bodies or other authorities is considered to be public land.

The Government of India, its departments and organisations are the biggest landowners in the country. Land located in prime locations has been held by organisations such as the Major Port Trust, which holds 100.000 hectares of land; Airport Authority of India (AAI) which holds 20,400 hectares of land around airports. According to the Government Land Information System (GLIS), the Indian Railways owns about 43,000 hectares of land, most for any organisation on the GLIS. The Ministry of Defence, citing security concerns, has not completely declared its landholding. But it is deemed to have over 7,00,000 acres of land that are in the cantonment areas.

Forms of Laws Regulating Land in India

It is a well-known fact that India is the world’s 7th largest country in terms of geographical area. But, the laws that govern and regulate this massive landmass is not so common knowledge. Laws such as Transfer of Property Act 1882, Real Estate (Regulation and Easement) Act 2016, Registration Act 1908, Stamp Act 1899, Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013 etc. affect the use of land in India. But on a general level, these laws can be categorized as the following:

Laws relating to Zoning of Land

Under the Zoning laws, an area is demarcated by bringing out ordinances, which specifies the specific use of land in that area or block. It is a tool for regulating certain areas for a particular use. This creates a functional real-estate market. It can be used as a tool by the government to increase or slow down the development of certain areas.

In a Zoning ordinance, regulation specifications such as lot size, density or bulk, height, Floor Area Ratio (FAR) are mentioned. This allows the government to restrict incompatible lands being located in the vicinity of each other. A Zoning ordinance also specifies such permissions, which will be required, in case the permitted usage of land needs to be changed. For eg: If the owner wants to convert his residential property into commercial, he will be required to procure permission before doing so.

Laws relating to the Subdivision of Land

Under the Subdivision laws, information such as plot size, layouts, a process for using private land for public purposes and street improvements are included. The main difference between the Zoning laws and Subdivision laws is that the latter concerns itself with the use of land for the residential purpose for the major part. The Subdivision laws are a great tool for restricting the Suburbanisation near heavily populated towns.

Laws relating to Building Regulation

Building regulations as a term is self-explanatory. These are the laws that regulate the way a building is to be constructed. It prescribes the height limits, position, style of architecture etc. for a structure in a particular zone. It also prescribes different regulations for buildings built for different purposes. This helps the government agencies to differentiate between buildings on the basis of the purpose for which they are developed.

The laws on Building regulation also regulate the maintenance requirements of a building. This helps in preventing the deterioration of the real estate in the area.

Laws relating to Rent Control

The laws on Rent control were enacted to bring uniformity to the rent laws in different parts of the country. It has brought about a certain standard according to which the relationship between the landlord and the tenant is to be governed.

The Rent control laws are a great tool to bring under control the inappropriate demands of the landlords as well as protecting them from unsavoury tenants at the same time.

Laws relating to Taxes

The municipal corporation levies taxes on the property. There is no comprehensive system which governs property tax in India. Different states and Union Territories charge different property tax as per the local laws.

One of the main benefits of using tax as a tool for regulating land use is the prevention of accumulation of large chunks of a property with few peoples in the society.

What is Unauthorised Construction

Before starting construction work on any property, there are various permits that are required to be obtained from the government, such as, Land Clearances, Zonal Clearances, Building Approval etc. You also need to show your title to the land on which the structure is to be built. A structure without proper clearances, or, a structure built in contravention of the prescribed norms, is not a legal structure. This process of constructing an illegal structure is called unauthorised construction. They are liable to be demolished by the government authorities. 

Forms of Unauthorised Construction

  1. Unauthorised Construction on Private Land

This happens, when the construction is done on land or property by the legal owner of the said land or property, but in contravention of any of the provisions of law. It could be unauthorised in instances such as:

  • The person doing the construction didn’t get the required permissions from the government.
  • The person doing the construction flouts the prescribed limits.
    For eg: A builder, who has permission to build a 4 storey building, builds two additional floors on top of the prescribed 4 stories. Here, he has exceeded the limits that were prescribed to him. The top two floors of the building would amount to unauthorised construction and will be illegal.
  • The person doing the construction does not follow the guidelines prescribed by the government for the building’s structure-type.
  1. Unauthorised Construction on Public Land

This happens, when the construction is being done on that land, the ownership of which does not belong with the person doing the construction, but lies with the government. This happens mainly due to the social factors that are prevalent in a country such as poverty, unemployment, large population etc.

Unauthorised Construction in India

The problem of housing is a major problem in India. The country has been fighting these issues since Independence. The housing has become unaffordable in urban centers for the majority of the population due to rising costs. A large chunk of our population is still below the poverty line. This results in a lot of unauthorised construction. Some people get involved in the practice of unauthorised construction to save money involved in meeting with different compliance requirements while others do it because of poverty, unemployment and other social constructs. This has led to a situation where unauthorised construction has acquired a monstrous proportion.

The Courts in India have repeatedly emphasised on the importance of planned development of cities in our country. They have always maintained a stern attitude towards unauthorised construction, terming it a ‘menace for our society’. The Courts have repeatedly given orders to demolish these unauthorised and illegal structures.

In K. Ramadas Shenoy v. Chief Officers, Town Municipal Council, the Supreme Court of India, commenting on the issue of unauthorised construction, said that unauthorised construction affects the right to the enjoyment of the property by persons residing in that area. The Court reiterated that the areas are planned according to the requirements of the residents. By carrying arbitrary acts of illegal constructions, this planning is undermined.

In Pratibha Coop. Housing Society Ltd v. State of Maharashtra, the Supreme Court said that constructing unauthorised structures never pays off. It is against the interest of the society, as they are in contravention of the rules and regulations that are made for the benefit of the society at large. The citizens are required to follow these rules for their own benefits.

In Friends Colony Development Committee v. State of Orissa, the Supreme Court commented on the dangers that are involved in violating the sanctioned building plans. The court said that the builders deviate from the sanctioned plans at the peril of the occupants of the premises constructed as well as other inhabitants of the city. The Court also mentioned the environment and ecological threats that are posed by such structures. The Court opined that the real losers in such cases are the unwary purchasers, who, in search of a roof over their head, have to face the consequences of demolition. The builder safely walks away after pocketing vast sums of money.

The Court again emphasised the importance of planned development. Stating the importance of Zoning and planning, the Court said that, though such activities are ‘highly complex’, but they are based on “scientific research, study and experience leading to the rationalisation of laws by way of legislative enactments and rules and regulations framed thereunder.”

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How to Stop Unauthorised Construction on Public Land in India

The most common misconception regarding unauthorised construction in India is, that the Police has the authority to put a stop to it. Since the Police are responsible for the law and order in general, it is normal to assume that they are the one who should be approached for curbing the menace of unauthorised construction. But it is far from the truth. The only authority the Police has in these matters is, to report the incidents to competent authorities and wait for their orders. Only on the receipt of such orders can the police take action against unauthorised construction.

Complaining to Civic Bodies

The Civic bodies, such as the Delhi Municipal Corporation (DMC) in Delhi and the Brihanmumbai Municipal Corporation (BMC) in Mumbai, are the government agencies which are responsible for the planning, maintenance as well as the effective running of the cities. A certificate of permission from these civic bodies is required before starting the construction of any structure. The onus of stopping the unauthorised construction also belongs to these civic bodies. It is their duty to make sure that the laws are complied with. If a certain structure is being constructed or the permission to construct a structure is sought, which is in contravention of law, the civic authorities are under obligation to refuse permission in such cases.

The Supreme Court of India, in Friends Colony Development Committee v. State of Orissa, commented on the responsibilities of these civic authorities and showed its displeasure over how the menace of unauthorised construction is handled by these organisations. The Court also chided the local authorities who have inspectors and engineers working in these organisations. The Court said that it is the duty of these builders and engineers to keep an eye on the building activities and take prompt actions where illegal construction is going on. The Court said that either they do not take action on time or they themselves connive with the defaulting builders for illegitimate considerations.

Different municipalities across the country are governed by their own different laws and bye-laws. For eg: the DMC is governed by the Delhi Municipal Corporation Act, 1957, the BMC is governed by Mumbai Municipal Corporations Act, 1888. The sections concerning the unauthorised construction in Delhi are Sections 344, 347 and 349 respectively. In Mumbai, the sections dealing with the unauthorised construction are Sections 351, 354, 347, and 381 of the abovementioned acts.

If someone, including the Police, has information regarding any unauthorised construction, they are supposed to contact designated officers of their concerned municipality and ask them to take steps against the person carrying out illegal construction.
To stop the unauthorised construction, the concerned Municipal Corporation is notified. The corporation will then send a notice to the person carrying on such construction asking him to reply, within the stipulated time, about the complaint of unauthorised construction made against him. If no reply is given by the person, then the municipal corporation takes further steps to demolish the structure. For details on how to report and get the illegal property sealed in Delhi, click here.

Filing Suit in the Court

More often than not, the complaints made to the civic bodies go unheard. The reasons for this can be unaccountability, lack of empathy towards duty or the rampant corruption that is prevalent in these civic bodies. The number of unauthorised structures that have been demolished and the emphatic reiteration of the need to continue the sealing drive in Delhi is just one example of how negligent the municipal corporation is towards the work they are doing. In such an environment, it becomes impossible for a citizen to get relief from the civic authorities. That’s where the Indian Courts step in.

The Judiciary in India is the most respected pillar of our Constitution. It has come to the aid of the citizens time and again and has been a point of comfort against all that is wrong with Indian society today. As discussed above, the Courts in India have always maintained that no structure in contravention of law shall be permitted to stand and must be demolished. It has even asked the governments to stop regularising the unauthorised construction in the area.

The Public Premises (Eviction of Unauthorised Occupants) Act, 1971

The Public Premises (Eviction of Unauthorised Occupants) Act, 1971 deals with the eviction of the occupants from public premises. The article has provisions under which a person can file a suit for the eviction, demolition or seal unauthorised construction.

Sections 5A, 5B, and 5C of the Act deals with stopping of the unauthorised construction of structures by the estate officer. Section 5 of this act further talks about the eviction of unauthorised occupants living/occupying in these structures. The Act further deals with the property left on such premises and the costs that the occupier is liable to pay for incidental damages.

Conclusion

The Indian economy is growing at a fast pace. In order to cope with the demand of the sprawling population, it is required that the planned blueprint be followed to the last letter. The abomination of unauthorised construction can be a threat to the development of our society in the long run. It is the need of the hour that unauthorised construction not just be stopped, but such existing structures be removed as well.


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