Part VI : Controversial tenure of the former civic chief Iqbal Singh Chahal : A review of accusations and their consequences

X : @vivekbhavsar

In the ongoing series titled “The Controversial Tenure of the former Civic Chief Iqbal Singh Chahal: A review of accusations and their consequences,” I explore the debated actions and decisions taken by Shri Iqbal Singh Chahal while serving as the Municipal Commissioner of the BMC.

This series aims to uncover instances of Misuse of Power and dereliction of duty,  by this senior IAS officer, who is accused of exceeding his authority by granting approvals beyond his powers and the scope of the DCPR 2034, allegedly to favour specific developers.

In this article, I concentrate on the fourth question I addressed to Shri Iqbal Singh Chahal, analysing his response and evaluating its relevance and suitability. Here is the Fourth question, his answer, and my analysis alongside the facts.

My Question to Shri Iqbal Singh Chahal:

4. On 4 November 2018, Hon’ble Justice Shri Abhay Oka and Justice A. K. Menon ruled that Section 52-A of the MRTP Act does not allow for the compounding of unauthorised developments that contradict development plans and regulations. In view of this ruling, did you seek a legal opinion before proceeding with the regularisation of unauthorised developments with significant FSI violations? Why was no opinion or approval from the UDD obtained?

Reply received from Shri Iqbal Singh Chahal to my above Question:–

4) Section 52(A) added by Govt in 2017 was regarding compounding of unauthorised development by charging fees that violates the development plan and development control regulations. Whereas, the issue dealt in circular was only to the extent of charging penalty for regularisation of elevations STRICTLY WITHIN DEVELOPMENT PLAN AND REGULATIONS. On the contrary, there are various orders passed by HC and SC by which liberties have been granted to apply for regularisation of unauthorised construction.

The ruling by Hon’ble Justice Shri Abhay Oka and Justice A. K. Menon serves as a critical reminder of the legal boundaries established by Section 52-A of the MRTP Act, stressing the importance of compliance with development plans and regulations. The decision highlights the significant legal risks associated with proceeding with the regularisation of unauthorised developments that involve substantial FSI violations.

In light of these implications, it is essential to address why a formal legal opinion was not sought before undertaking such regularisations. Additionally, what factors contributed to the decision not to obtain an opinion or approval from the Urban Development Department ? These questions are vital in understanding the decision-making process and ensuring accountability and Shri Iqbal Singh Chahal conveniently avoided to reply these queries.

Moreover, it is noteworthy that Shri Iqbal Singh Chahal did not respond to the queries mentioned. This lack of response raises further concerns about transparency and due diligence in handling these matters. How does the administration plan to address these unresolved queries and ensure better communication and adherence to legal protocols in the future?

It appears that Shri Iqbal Singh Chahal has approved the regularisation of buildings that received their Occupation Certificate before the COVID-19 pandemic. However, isn’t it intriguing that he not only granted approvals but also decided to waive the penalties unlawfully, i.e., without following due legal process and overstepping his authority. While waiving the penalty, Shri Chahal cited the COVID-19 pandemic as the reason, in doing so (though it was not proposed by the Chief Engineer, DP), he not only kept the Municipal House and the entire BMC in the dark but also did not obtain the necessary government approval for waiving the penalty. This penalty was applicable for the regularisation of converting elevation features and using free FSI into habitable areas. One can’t help but wonder why such leniency was shown.

The Hon’ble Justice Shri A. S. Oka by referring various orders passed by the Apex Court stated in his order stated that, “Payment of development charges by itself, therefore, did not lead to exoneration from the consequence of commission of an offence or regularisation of unauthorised constructions.”

In his response, Shri Iqbal Singh Chahal mentioned, “Contrary to this, there have been several orders by the High Court and Supreme Court allowing the possibility to apply for regularisation of unauthorised constructions.” However, various rulings by the Apex Court have expressed serious concerns and called for strict actions against unauthorised or illegal development. In the case of Shanti Sports Club and Another vs. Union of India and Others, the Apex Court in paragraph 75 held:

“75. Unfortunately, despite repeated judgments by this Court and the High Courts, the builders and other affluent people engaged in the construction activities, who have, over the years shown scant respect for regulatory mechanism envisaged in the municipal and other similar laws, as also the master plans, zonal development plans, sanctioned plans, etc., have received encouragement and support from the State apparatus. As and when the Courts have passed orders or the officers of local and other bodies have taken action for ensuring rigorous compliance with laws relating to planned development of the cities and urban areas and issued directions for demolition of the illegal/unauthorised constructions, those in power have come forward to protect the wrongdoers either by issuing administrative orders or enacting laws for regularisation of illegal and unauthorised constructions in the name of compassion and hardship. Such actions have done irreparable harm to the concept of planned development of the cities and urban areas. It is high time that the executive and political apparatus of the State take serious view of the menace of illegal and unauthorised constructions and stop their support to the lobbies of affluent class of builders and others, else even the rural areas of the country will soon witness similar chaotic conditions.”

The predicament faced by the persons who deal with builders and promoters, was noticed by the Apex C Court in Friends Colony Development Committee vs. State of Orissa [2004 (8) SCC 733] in a different context while dealing with town planning laws :

“Builders violate with impunity the sanctioned building plans and indulge deviations much to the prejudice of the planned development of the city and at the peril of the occupants of the premises constructed or of the inhabitants of the city at large. Serious threat is posed to ecology and environment and, at the same time, the infrastructure consisting of water supply, sewerage and traffic movement facilities suffer unbearable burden and are often thrown out of gear. Unwary purchasers in search of roof over their heads and purchasing flats/apartments from builders, find themselves having fallen prey and become victims to the design of unscrupulous builders. The builder conveniently walks away having pocketed the money leaving behind the unfortunate occupants to face the music in the event of unauthorised constructions being detected or exposed and threatened with demolition.”

“Though the local authorities have the staff consisting of engineers and inspectors whose duty is to keep a watch on building activities and to promptly stop the illegal constructions or deviations coming up, they often fail in discharging their duty. Either they don’t act or do not act promptly or do connive at such activities apparently for illegitimate considerations. (Does Mr. Chahal’s decision to regularise unauthorised constructions and the financial decisions benefiting developers align with the Hon’ble Supreme Court’s this observation?) If such activities are to stop, some stringent actions are required to be taken by ruthlessly demolishing the illegal constructions and non-compoundable deviations. The unwary purchasers who shall be the sufferers must be adequately compensated by the builder. The arms of the law must stretch to catch hold of such unscrupulous builders. At the same time in order to secure vigilant performance of duties, responsibility should be fixed on the officials whose duty was to prevent unauthorised construction, but who failed in doing so either by negligence or connivance.”

The Supreme Court has time and time again expressed its serious concern over unauthorised and indiscriminate constructions in cities and big towns. In fact, the Supreme Court has cautioned against liberal use of the power of regularisation and retention of unauthorised works and buildings. The Supreme Court has warned that authorities must take into account considerations of public safety and health, protection of environment and ill-effects of unregulated and uncontrolled construction in cities and towns.

Therefore, it cannot be said that every unauthorised construction can be permitted to be regularised by loading of TDR’s or by condoning or relaxing the restrictions relating to FSI, open space, set backs, height of the building, etc. In 33 2010 (2) Mh.L.J. 759 individual cases and by applying the standards and rules strictly and rigorously, the authorities must take an informed decision bearing in mind the building regulations, restrictions and conditions therein. The retention of unauthorised works and constructions should not result in wholesale condonation and relaxation or exemption from the Building Rules and Bye-laws or else there will be chaos and break down of the rule of law.

A discretionary power must be exercised having regard to the larger public interest, however during the tenure of Shri Iqbal Singh Chahal as the Municipal Commissioner of the BMC, it is evidently observed that the discretionary powers have been used to protect the interest of the the builders and other affluent people engaged in the construction activities.

In Consumer Action Group v. State of T.N. [(2000) 7 SCC 425] this Court held: (SCC p. 443, para 30)

“While exercising such a power the authority has to keep in mind the purpose and the policy of the Act and while granting relief has to equate the resultant effect of such a grant on both viz. the public and the individual. So long as it does not materially affect the public cause, the grant would be to eliminate individual hardship which would be within the permissible limit of the exercise of power. But where it erodes the public safety, public convenience, public health etc. the exercise of power could not be for the furtherance of the purpose of the Act. Minor abrasion here and there to eliminate greater hardship, may in a given case, be justified but in no case affecting the public at large. So every time the Government exercises its power it has to examine and balance this before exercising such a power. Even otherwise, every individual right including fundamental right is within reasonable limit but if it makes inroads into public rights leading to public inconveniences it has to be curtailed to that extent. So no exemption should be granted affecting the public at large. Various development rules and restrictions under it are made to ward off possible public inconvenience and safety. Thus, whenever any power is to be exercised, the Government must keep in mind, whether such a grant would recoil on the public or not and to what extent. If it does then exemption is to be refused. If the effect is marginal compared to the hardship of an individual that may be considered for granting.”

In the case of Dipak Kumar Mukherjee vs Kolkata Municipal Corporation (supra), in paragraph In paragraph 8, the Apex Court held thus:

“8. What needs to be emphasised is that illegal and unauthorised constructions of buildings and other structures not only violate the municipal laws and the concept of planned development of the particular area but also affect various fundamental and constitutional rights of other persons. The common man feels cheated when he finds that those making illegal and unauthorised constructions are supported by the people entrusted with the duty of preparing and executing master plan/development plan/zonal plan. The reports of demolition of hutments and jhuggi jhopris belonging to the poor and disadvantaged section of the society frequently appear in the print media but one seldom gets to read about demolition of illegally/unauthorisedly constructed multi-storeyed structures raised by economically affluent people. The failure of the State apparatus to take prompt action to demolish such illegal constructions has convinced the citizens that planning laws are enforced only against poor and all compromises are made by the State machinery when it is required to deal with those who have money power or unholy nexus with the power corridors.

(emphasis added) In paragraph no. 29, the Apex Court held thus:

“29. It must be remembered that while preparing master plans/zonal plans, the Planning Authority takes into consideration the prospectus of future development and accordingly provides for basic amenities like water and electricity lines, drainage, sewerage, etc. Unauthorised construction of buildings not only destroys the concept of planned development which is beneficial to the public but also places unbearable burden on the basic amenities and facilities provided by the public authorities. At times, construction of such buildings becomes hazardous for the public and creates traffic congestion. Therefore, it is imperative for the public authorities concerned not only to demolish such construction but also impose adequate penalty on the wrongdoer.”

Dereliction of Duty and Wilful Misuse / Abuse of Power to benefit Private Entities

While in the reply given by Shri Iqbal Singh Chahal, he spoke about the various orders passed by HC and SC by which liberties have been granted to apply for regularisation of unauthorised construction, but before making the above statement it seems he might have forgot the provisions of the MRTP Act 1966 under Sections 52 to and Section 142

In conclusion, the issue of regularisation of unauthorised construction beyond the provisions of the Development Control Regulation has emerged as a critical concern for urban planning and citizen welfare. The Supreme Court has set forth substantial directives regarding the permissible frameworks under which unauthorised developments may be evaluated. Sections 52 and Section 53 of the MRTP Act 1966 outline a clear procedure for taking action against unauthorised constructions, emphasising both prevention and punishment for violations.

The Court has articulated a nuanced understanding of discretionary powers possessed by planning authorities. It highlights that while there may be scenarios where unauthorised developments could be allowed for retention, such decisions ought not to be liberally granted as a refuge for violators. Instead, the exercise of discretion must be aligned with the overarching interests of public safety, environmental protection, and adherence to lawful planning practices. The regularisation of any unauthorised construction should not merely serve as a means to monetise deviations, such as through the payment of premiums or infrastructural charges, but must also actively consider the broader implications of such relaxations on community living and infrastructural integrity.

In this context, the Supreme Court has repeatedly cautioned against the normalisation of unauthorised constructions, pointing out that individual property interests must be weighed against public welfare. The balance between individual rights and communal responsibilities is paramount; hence any regularisation must be conditional upon rigorous scrutiny of the extent of irregularities, potential adverse effects on larger urban planning goals, and the principle of maintaining the rule of law.

Furthermore, the repeated observations by the Apex Court regarding the growing discretion shown by planning authorities to accommodate construction-related violations signal a pressing need for accountability. The emphasis must remain on deterrence rather than permit an implicit endorsement of non-compliance through systematic regularisation. Hence, a clear distinction must be maintained between genuine cases of misunderstanding or insignificant deviations and blatant violations intended for profit, primarily from professional builders or commercially motivated developers.

In essence, the obligation of ensuring lawful urban development rests heavily on the planning authorities, which should act not as facilitators for violators but as guardians of the statutory frameworks designed for the greater good of society. This ensures that while the desire for urban expansion and development is upheld, it does not come at the cost of safety, habitability, or the erosion of the foundational principles of equitable and sustainable urban growth as enshrined in legislative mandates. Thus, moving forward, it is crucial that all stakeholders remain cognisant of their roles in fostering compliance and supporting lawful development practices that benefit the community at large.

It appears that Shri Iqbal Singh Chahal may have strategically avoided enforcing the relevant provisions of the MRTP Act 1966 concerning actions against unauthorised developments. It seems that, favouring the interests of private entities, he opted to regularise the illegal conversion of elevation features and free of FSI into habitable areas. Additionally, he illegally waived the penalty applicable for this regularisation by overstepping his authority and violating the provisions of the Maharashtra Shasan Karyaniyamavali. The reasons behind these actions remain unclear and raise important questions regarding accountability and transparency.

The question remains unanswered : WHY WERE DECISIONS SUCH AS ILLEGALLY WAIVING OFF PENALTIES, GRANTING APPROVALS FOR THE REGULARISATION OF CONVERTING FREE FSI INTO HABITABLE AREAS DESPITE HON’BLE COURT’S DIRECTIVES TO RESTORE THE BUILDING ACCORDING TO THE OC PLAN-TAKEN BY SHRI IQBAL SINGH CHAHAL? THESE ACTIONS SEEMED TO ONLY BENEFIT AND FAVOUR PRIVATE ENTITIES INSTEAD OF FULFILLING HIS OBLIGATORY DUTIES IN ACCORDANCE WITH THE PROVISIONS OF THE MRTP ACT 1966 AND DEVELOPMENT CONTROL REGULATIONS.

WHY?