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Above: Illegal colonies have proliferated with impunity in MP (an aerial view of Bhopal)/Photo: Wikimedia

The MP High Court has struck down a decision of the previous BJP regime to legalise over 4,800 colonies in return for votes and thus dealt a body blow to the builder-politician nexus

By Rakesh Dixit in Bhopal

Regularising illegal housing colonies before assembly elections has been a recurring populist feature in Madhya Pradesh since 1998. Former Chief Minister Digvijaya Singh started the pre-poll bonanza for unscrupulous colonisers and residents of illegal colonies. His BJP successor, Shivraj Singh Chouhan, carried forward the dubious legacy with greater zeal in three successive assembly elections.

Twenty-one years later, the Madhya Pradesh High Court detected that the regularisation of these colonies was not only illegal but also beyond the remit of the state government. On June 3, the Gwalior bench of the MP High Court struck down the decision of the previous BJP regime to legalise over 4,800 colonies, declaring Rule 15A framed by it to facilitate the decision as “ultra vires” (done beyond its legal power). This has dealt a massive blow to the builder-politician-bureaucrat nexus which had hugely benefitted from the government’s decisions to regularise illegal colonies.

Madhya Pradesh has a large pool of free land unlike more developed states such as Maharashtra, Haryana and Karnataka. A powerful builder lobby in collusion with ruling party politicians and unscrupulous bureaucrats has been gobbling up land without fulfilling the required norms for constructing colonies. Illegal colonies have proliferated with impunity over the decades. The colonisers are confident that come elections, they will get their illegal colonies regularised by greasing palms. Significantly, the decision for regularisation comes before an assembly election when the ruling party needs huge funds to bankroll its expensive campaign.

The nexus has thrived at the expense of the government exchequer. Colonisers offer potential buyers flats/houses at cheaper rates in illegal colonies with the tacit understanding that in due course, they will be regularised. Once this is done, the Urban Development department takes up their maintenance and development work. Thus, the builders manage to escape their responsibility of developing colonies as per the rules.

On May 8, 2018, Chouhan had initiated the process of legalisation of illegal colonies in Gwalior and, since then, around 4,800 colonies from all over the state have been legalised. Doubtful about the legality of his move, he had reasoned in a talk with officials: “Rules, regulations and law are all only valid if they are for public welfare.”

However, a petition was filed by advocate Umesh Kumar Bohre from Gwalior, who reportedly said: “The government had no power to frame rules for legalisation of illegal colonies.” Subsequently, a division bench comprising Justices Sanjay Yadav and Vivek Agarwal gave its judgment. Bohre alleged in his petition that Chouhan’s decision to legalise illegal colonies fetched the ruling party a whopping Rs 25,000 crore.

The bench agreed with his contention that Rule 15A of the Madhya Pradesh Nagar Palika (Registration of Coloniser, Terms and Conditions) Rules, 1998, had no constitutional and legal validity. “It is beyond the competence of the state government to frame Rule 15(A) of Madhya Pradesh Nagar Palika (Registration of Coloniser, Terms and Conditions) Rules, 1998, having the effect contrary to the object stipulated under Section 292E of the Madhya Pradesh Municipal Corporation Act, 1956, or Section 339E of the Madhya Pradesh Municipalities Act, 1961.”

The Court observed that the power to frame rules regarding management of the land of illegal colonisation is drawn from Section 292-E of the Madhya Pradesh Municipal Corporation Act of 1956 and Section 339-E of Madhya Pradesh Municipalities Act, 1961. The Act empowers the commissioner in the case of a municipal corporation and a competent authority in the case of a municipality to take over the management of such lands and take steps accordingly. But the petitioner said the Act does not “empower the state government, a delegatee of the state legislature, to frame rules such as Rule 15A, which aims at curing the illegality in the hands of those who committed the illegality”.

The Court said: “Evidently, by incorporating Rule 15A in the 1998 rules, a new right is created in favour of illegal colonisers/colonies which being contrary to the stipulations contained under Section 292E of 1956 Act and 339E of 1961 Act cannot be upheld…. Consequently, Rule 15A of 1998 Rules is hereby declared to be ultra vires.” The Court also ruled that “on declaration of Rule 15A of 1998 Rules as ultra vires, the substantive provision of the Act, all actions taken thereon are declared illegal”.

As a corollary to the order, the Court ruled that the commissioner, Municipal Corporation and the competent authority of respective municipalities are directed to initiate action under the provisions of the Acts mentioned above. The order implies that the state government will have to invoke powers under Rule 292 (e) to initiate action against the colonisers who constructed illegal colonies and the government officials who gave them the requisite permission.

The superintendent engineer, Urban Development Department, LS Baghel, who was a key figure in implementing the regularisation scheme for illegal colonies in 2017-18, said: “It’s the state government which will take a final decision on whether to go in appeal against the order or accept it.” However, the present Kamal Nath government has welcomed it.

The state Congress media cell coordinator, Narendra Saluja, said the verdict would help rein in the builder mafia in the state. BJP state spokesman Rajnish Jain, on the other hand, decried the High Court order, saying it will compound the troubles of families living in the colonies that have been declared illegal. None of these colonies will now be able to get any benefits from the municipal corporations such as street lights, drinking water, etc. In fact, the High Court order has rendered all colonies regularised since 1998 illegal. The number of such colonies could well exceed 10,000 as they have been regularised on four occasions since 1998. Chouhan invoked the rule three times before the assembly elections in 2007, 2013 and 2018.

Manoj Singh Meek, secretary, Confederation of Real Estate Association of India, MP chapter, pointed out if the government continues to regularise illegal colonies against a minimal fee, who would purchase houses in a legal colony?

Addressing a workshop related to regularisation of illegal colonies in 2018, Chouhan directed officials to complete the process by August 15. “We will remove this tag of ‘illegal colonies’ and regularise them. We will give people an opportunity to live with their head held high. However, attention also needs to be paid that no other illegal colonies sprout up after this process is over,” he had said. It was decided that the Urban Development department would legalise the colonies by charging 20 percent development charges for repairing sewage lines and road and water supply. The department contributed about 80 percent of the share. Funds like development fee, collected from the colony, were utilised for its own development.

According to an estimate, nearly 2.5 lakh people benefitted from this move. With the High Court verdict, their future is now in jeopardy.

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