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Problem Solving

Under the Subject of Skill Development-I

Submitted By

Shubhangi Ghule

LL.M 2st Year Sem III

Id No.462189

Under the Guidance of

Dr. Ragini Jangam

Submitted to

LL.M Department

Yashwantrao Chavan Law College Parvati, Pune

Ay 2019-2020

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Issues:

Construction of unauthorized buildings and encroachment has become a major problem


in towns and cities of most developing countries. Despite numerous efforts at local levels to
address this problem, its existence and effects keep on rising in various Metropolis,
Municipalities.

There are many issues are raised due to the unauthorised construction and
encroachment near the rivers area and flood zones. There are so many factors are responsible
for the same. There are two parts of issues.

First is the why the unauthorised construction and encroachment is came into force and
in second part the consequences of the unauthorised construction and unauthorised construction
and the consequences of the same. Following are the issues:

1. Small rivers are dying due to the encroachment of urbanization and dumping of
garbage.

2. The problem of unauthorised construction and encroachment is raised due to the large
population and pressure on land and make demand of land in India.

3. The illegal dumping of household and commercial waste will always be a problem.

4. Due to the over population the builders and promoters construct the building near rivers
by not sanctioned the plan and construct unauthorised construction and encroached the
government lands.

5. The first important problem due to the unauthorised construction and encroachment is
the when flash floods came in India so many peoples died due to the flash floods.

6. The vehicles of the peoples was lost due to the flash floods.

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7. Houses of the peoples lost and damages due to the heavy rainfall.

8. In future if encroachment is not stopped and the dump material is not removed within
the blue line, a heavy disaster is likely to happen, river may change its direction of flow
which would lead to heavy losses of property and living habitats.

Law Points:

Many States in India have clear Development Control Rules that prohibit construction
within a specified distance from any water body. There is, however, no clear rule
being followed in Tamil Nadu. The law states that if an applicant proposes to locate
any plot for a building within 15m from the boundary of the channel/ water course
and water body like Kulam, Kuttai, Eri, Tank, etc., a no-objection (NOC) certificate
from the commissioner/executive officer/executive authority of the local body has to
be obtained. The DCR of CMDA do not specify the extend of prohibition. It’s clearly
specifed in other States. The Directorate of Tamil Nadu Town and Country Planning
Department (DTCP) follows only the DCR specified by the CMDA. Rule 7 of the
Tamil Nadu Municipalities Building Rules, 1972, states that even if the building is
located within 15 metres of any tank, reservoir, water-course, river, fresh water
channel or well, it should carry out necessary measures to prevent contamination of
any drainage from the building passing into the water body.

The recent order of the Madras High Court banning registration of plots and houses
in unapproved housing layouts as well as conversion of agricultural land for non
agricultural use in an unplanned manner across the State of Tamil Nadu is aimed at
saving the ecology and minimising flooding of rivers.

Written rules prohibiting construction near water bodies in other States in India

Andhra Pradesh and Telangana (GONo.168 dated 09.04.2012)

a) 100m from the boundary of the river outside the municipal corporation /
municipality / nagara panchayat limits and 50m within their limits. The boundary of
the river shall be as fixed and certified by the irrigation department and revenue
department.

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b) 30m from the FTL boundary of lakes / tanks / kuntas of area 10Ha and above

c) 9m from the FTL boundary of lakes / tanks / kuntas of area less than 10Ha / shikam
lands

d) 9m from the defined boundary of canal, vagu, nala, storm water drain of width
more than 10m

e) 2m from the defined boundary of canal, vagu, nala, storm water drain of width up
to 10m

Assam

River and notified bodies : 15 m. Pond or other notified bodies : 10 m

Madhya Pradesh

30m from Rivers or lakes/ponds/reservoirs or nala/canal or flood affected areas

Chhattisgarh

100m from Mahanadi Canal is a green belt and no construction is allowed

Bihar

No Construction or re-construction of any building shall be allowed within a strip of


land of 200 m or such other higher distance as may be prescribed from time to time
by the State Government from the outer boundary of the river of Ganges (as
prescribed by the irrigation department) shall be permitted (except for repair and
renovation of heritage buildings) and in the case of other rivers, no construction or
re-construction of any building shall be allowed within a strip of land of 100 meters.

Karnataka

A buffer of 45 m is assumed all along the flow of the river on both banks, which shall
be treated as a no-development zone.

a) No building/ development activity shall be allowed in the bed of water bodies like
nala, and in the Full Tank Level (FTL) of any lake, pond etc.,

b) As per the Judgement of the National Green Tribunal, Principal Bench, New Delhi
in O.A.No.222 of 2014, no construction activity is allowed in Karnataka in
buffer/green zone .

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i) In case of lakes, 75 meters from the periphery of water body to be maintained as a
green belt and buffer zone for all existing water bodies ie lakes/wetlands.

ii) 50 m from the edge of the primary Rajkulewas

iii) 35 m from the edge of the secondary Rajkulewas

iv) 25 m from the edge of the tertiary Rajkulewas

Maharashtra

If the site is within a distance of 9 m from the edge of water mark of a minor
watercourse (like nallah) and 15 m from the edge of water mark of a major water
course (like river) shown in the development plan or village/city survey map or
otherwise.

1. Maharashtra Regional and Town Planning Act, 1966


Section 52:
Penalty for unauthorised 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 shall, on
conviction, 2 [be punished with imprisonment for a term 3 [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.

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(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 4 [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.

Section 53. Power to require removal of unauthorised development:-


(1) Where any 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, 5
[****] serve on the owner a notice requiring him, within such period, being not less
than one month, as may be specified, therein after the service or 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 prescribed 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), 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.

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(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 the 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 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, 6
[be punished with imprisonment for a term 7 [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.

Section 54. Power to stop unauthorised 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

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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 1 [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 non-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.

Section 55. Removal or discontinuance of unauthorised temporary development


summarily:-
(1) Notwithstanding anything hereinbefore contained in this Chapter, where any person
has carried out any development of a temporary nature unauthorisedly 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, unauthorisedly 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, 2 [or authorise 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 unauthorisedly made again, 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.

2. National Green Tribunal

Section 14. Tribunal to settle disputes. –

1. The Tribunal shall have the jurisdiction over all civil cases where a substantial
question relating to environment (including enforcement of any legal right relating to

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environment), is involved and such question arises out of the implementation of the
enactments specified in Schedule I.

2. The Tribunal shall hear the disputes arising from the questions referred to in sub-
section (1) and settle such disputes and pass order thereon.

3. No application for adjudication of dispute under this section shall be entertained by


the Tribunal unless it is made within a period of six months from the date on which the
cause of action for such dispute first arose:

Provided that the Tribunal may, if it is satisfied that the applicant was prevented by sufficient
cause from filing the application within the said period, allow it to be filed within a further
period not exceeding sixty days.

Section 15. Relief, compensation and restitution. –

1. The Tribunal may, by an order, provide,-

a. relief and compensation to the victims of pollution and other environmental


damage arising under the enactments specified in the Schedule I (including accident
occurring while handling any hazardous substance);

b. for restitution of property damaged;

c. for restitution of the environment for such area or areas, as the Tribunal may think
fit.

2. The relief and compensation and restitution of property and environment referred to
in clauses (a), (b) and (c) of sub-section (1) shall be in addition to the relief paid or
payable under the Public Liability Insurance Act, 1991.

3. No application for grant of any compensation or relief or restitution of property or


environment under this section shall be entertained by the Tribunal unless it is made
within a period of five years from the date on which the cause for such compensation
or relief first arose:

Provided that the Tribunal may, if it is satisfied that the applicant was prevented by sufficient
cause from filing the application within the said period, allow it to be filed within a further
period not exceeding sixty days.

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4. The Tribunal may, having regard to the damage to public health, property and
environment, divide the compensation or relief payable under separate heads specified
in Schedule II so as to provide compensation or relief to the claimants and for restitution
of the damaged property or environment, as it may think fit.

5. Every claimant of the compensation or relief under this Act shall intimate to the
Tribunal about the application filed to, or, as the case may be, compensation or relief
received from, any other court or authority.

RERA-

Implementation Machinery: There are so many implementation authorities implement the


abovementioned laws relating to the unauthorised construction and encroachment.

1. Pune Municipal Corporation:


2. Planning Authority
3. PMRAD
4. Encroachment Department
The role of monitoring and evaluation in project planning, in relation to the upgrading
of unauthorized housing areas.
The role of monitoring and evaluation in the planning process with reference to urban
development projects, especially those concerned with the upgrading of unauthorized
housing areas. Monitoring, it is suggested, may be separated from evaluation, which
may itself be subdivided into ongoing or formative and ex post or summative
evaluation, and definitions of these terms are offered. Potential audiences for
monitoring and evaluation research are identified and their interests discussed.
Monitoring and evaluation requirements in relation to upgrading projects are then
analysed in more detail, in terms of organizational requirements, methodology, and the
utilization of findings.

Encroachment department is an independent department of Pune Municipal Corporation which


is under control of additional municipal commissioner (Estate). There are 15 Encroachment
Departmental offices in fifteen Ward offices which report to the main Encroachment
department located in PMC main building, Shivaji Nagar.

Objectives :-

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 To make sure, that citizens will not face any inconvenience due to illegal construction&
unauthorized hawkers on roads/ footpath and near river areas.

 To declare ‘Hawking Zones’ & ‘Non-Hawking Zones’ & rehabilitate the hawkers from
‘Non-Hawking Zones’ to ‘Hawking Zones’.

 To make Pune City free from Traffic congestion caused by unauthorized hawkers.

 To remove illegal encroachment and unauthorized hawkers on Footpath, Roads and


Streets.

International Aspect:

There are same problems in USA, Canada Japan in respect of unauthorized construction and
encroachment in near rivers and flood zones.

Public Participation:

There is a two views of public participation in issue of unauthorized construction and


encroachment in near rivers and flood zones. The positive views of peoples and negative views
of peoples. The some of the NGO’s played a wider role in participating the said issues. The
some of the social workers helps when heavy rainfall problem arise in the city. They helps to
peoples by way of providing food, cloths, money ,etc. In rural areas when heavy rainfall is
came due to the unauthorized construction and encroachment in near rivers and flood zones the
public at large help to the animals, children’s and aged persons . But some negative approaches
will be there.

Proposed Solution:

1. The implementation authorities needs to make new laws and regulations relating to
unauthorized construction and encroachment in near rivers and flood zones.
2. The awareness spread regarding what are the consequences of the unauthorized
construction and encroachment in near rivers and flood zones.
3. Heavy penalties may be imposed so the peoples, builders, promoter, etc not constructed
the unauthorised construction and encroachment near river.

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4. Role of local authorities at the time of sanctioning the plan and taken permissions which
land are not legally permissible to construct the land.
5. Government should take strong initiative to protect the eye sore of river encroachment
and make a rule of chain to protect these rivers and sustainable socio-environmental
development.

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