Akrama-Sakrama: Regularisation of Illegal Constructions

April 18, 2016

A rapid growth in urban populations has led to a growing and increasingly unsustainable demand for housing in cities. In several cases, governments have resorted to regularisation of illegal constructions. The Karnataka government re-introduced such a scheme by making statutory amendments in 2015 whereby owners of illegal constructions could get them regularised on payment of a fee. This scheme will have disastrous consequences for town-planning and development across the state.


These regularisation attempts are in direct conflict with the constitutional duties of Municipal Corporations to implement town-planning and urban development schemes under Article 243W of the constitution and the 12th Schedule. Under Article 243W Municipal Corporations are delegated the powers for creating land-use and development plans and regulations for cities. Illegal and unauthorised structures violate development plans formulated by the Corporations, and thus regularisation is in violation of their Constitutional mandates. Courts have come down heavily on schemes for regularisation and held them to be unlawful. In M. C. Mehta and Pratibha Housing, the Supreme Court held that regularisation of building and land use violations would amount to a violation of the right to a clean, healthy and planned environment which is part of the right to life under Art. 21 of the constitution. It noted that Municipal Corporations have a responsibility towards town-planning u/a 243W and the 12th Schedule, and legitimizing illegal constructions defeats the entire purpose of town-planning. The Court further held that illegal constructions pose a grave risk to the environment, health, and safety of the residents and are contrary to public interest. The Supreme Court in M. C. Mehta categorically rejected the Government’s argument that the demolition of these structures was not possible since most of them are residential and hence regularisation would be the only practical option. In Esha Ekta, the Court made scathing observations about builders violating town-planning regulations and the impetus that regularisation schemes provide to such violations.


Regularisation schemes allow builders to get away with blatantly violating regulations. They dis-incentivize builders from following the law. Regularisation provisions create an environment of intentional violation of the law and harm the ordered development of urban areas. This has grave consequences for citizens of these areas as they are exposed to the environmental and health risks associated with uncontrolled construction activities, including vanishing open spaces which are vital to a healthy society.


The legislative amendments introduced in Karnataka runs exactly these risks. The amendments allow for regularisation of constructions that are up to 50% in excess of the approved FAR and setback norms and also allows for regularisation of an unauthorized change in land use as well. The regularisation scheme is no solution to the problem of illegal constructions and will only foster more of them, as errant officers who allowed illegal constructions to carry on are not being held responsible. There is no justification for such regularisation schemes, especially in light of recent Supreme Court decisions and allowing such regularisation would only pave the way to more illegalities which would lead to a disaster in urban planning.