Important Point - Regularizing illegal structures erected on the public properties by suggesting that the persons who have erected illegal structures can get the land transferred in their name from public authorities is violative of Article 14 of the Constitution of India.

A.S. OKA, J.

1. The submissions of the learned Advocate General and the other parties to the petition including the applicant in Civil Application No. 80 of 2016 and the applicant in Civil Application No. 54 of 2016 were heard on the earlier date. The prayer made by the learned Advocate General was for grant of leave to the State Government to implement the policy of regularization of unauthorized/illegal structures in existence as on 31st December 2015 in the entire State. Clause (xx) of paragraph 40 of the Order dated 28th, 29th and 30th July 2015 passed in these PILs reads thus:

"(xx) We make it clear that this order will not affect the existing Policies of regularization of illegal structures. This order will not prevent the State Government from formulating a fresh policy of regularization of a class of illegal structures within the jurisdiction of three Authorities. However, the policy if formulated, shall not be acted upon without the leave of this Court. Before initiating the process of formulation of such policy, the State Government is bound to consider the law laid down by this Court in this order as regards the legality of such policy."

2. Now, leave is sought of this Court in terms of the said clause for grant of approval to the draft policy annexed to the affidavit of Shri Avinash B. Patil dated 29th July 2016 filed on behalf of the State Government.

3. We may note at this stage that a similar application was made on behalf of the State Government in April 2016. By a detailed Judgment and Order dated 26th and 27th April 2016, the said application was rejected by holding that the draft policy which was tendered on record was arbitrary and/or irrational and it was also contrary to the several decisions of the Apex Court referred in the said order.

4. We must note here that after the draft policy was tendered on record along with the said affidavit dated 29th July 2017, the State Government called for the responses from the various Planning Authorities in the State. The State had invited various Planning Authorities to submit their suggestions. There is an affidavit dated 3rd March 2017 filed by Shri Sanjay Balkrishna Saoji, the Deputy Secretary of the Urban Development Department in which suggestions of the Planning Authorities have been set out and the response of the State Government on the said suggestions is also set out.

5. The learned Advocate General has taken us through the policy of regularization proposed to be implemented by the State Government which is annexed to the affidavit of Shri Avinash B. Patil dated 29th July 2016. By the same affidavit, leave of this Court is sought to implement the said policy. Exhibit-1 is the copy of the said policy. There are three parts of the Exhibit1. The first part of the policy is described as “the Policy for Regularization of Unauthorized Construction in Urban Areas.” Annexure A contains salient features of the Draft policy in the matter of regularization of the unauthorized structures. Annexure B contains proposals for amendment to the Maharashtra Regional and Town Planning Act, 1966 (for short 'MRTP Act') for preventing unauthorized constructions. Annexure C contains the administrative measures proposed for controlling unauthorized constructions.

6. The learned Advocate General invited our attention to the clause 5 of the Policy (for short 'Draft Policy') for Regularization of Unauthorized Constructions in Urban Areas. He would urge that in the event there being a conflict between the draft Policy and the provisions of the MRTP Act and any other laws or Rules and Regulations, the provisions of MRTP Act will prevail. His submission is that object of the policy is not to do something which is contrary to the law and Regulations but the object is to ensure that the structures which are not in conflict with the law are regularized. He submitted that in case of some of the local authorities, there are Development Control Regulations (for short “DCR”) framed which are