Date : 30th May, 2011
Her Excellency Governor of Gujarat,
Subject : Supplementary Appeal in support of the appeal dated 30-4-2011 preferred against passing of Gujarat Regularization of Unauthorized Developments Bill, 2011.
Respected Her Excellency,
With due respect, I beg to prefer this supplementary appeal following the main appeal preferred on 30th April, 2011 on the above subject. It is humbly submitted that it has been stated in the objectives of the Bill that such a Bill is necessitated for regularization of large scale unauthorized developments which have been carried across the State. The Bill itself establishes the fact that the State Urban Development Department and officers of its subordinate local-self government authorities holding responsibilities of urban development and constructions are corrupt.
Explaining the objectives and purpose of the Bill, Hon’ble Minister of Urban Development Mr.Nitin Patel has stated that there rapid increase of unplanned constructions in the State and such buildings constructed are not meeting with the prevalent building rules and bylaws. In urban areas of the State, large number of buildings are constructed without permission and owners of such buildings have been issued notices under provisions of the Bombay Provincial Municipal Corporation Act, 1949 and/or Gujarat Town Planning and Urban Development Act, 1976 for removing such unauthorized constructions, demolish or make alterations in such buildings, however, owners and occupiers of such buildings have failed to comply with such instructions and therefore, it has necessitated this Bill.
It is proved beyond reasonable doubt by this Bill that Hon’ble Urban Development Minister Mr.Nitin Patel has failed to discharge his duty and responsibilities of his department and his subordinate government officers i.e. Public Servants, have not taken any action towards implementation of those notices and have committed monetary corruption only. The objectives so explained for bringing this Bill are also absolutely incorrect. It is shameful that a Minister who is representative of public represents his case falsely publicly in the matter of enacting the Act. The Commissioner of Municipal Corporation is empowered under provisions of Bombay Provincial Municipal Corporation Act, 1949 to grant permission for construction and to demolish constructions carried out contrary to the permissions and rules and regulations. However, officers of Urban Development Department and other public servants of its subordinate officers have failed to discharge their duties. There are no sporadic instances of unauthorized constructions which have been carried out; there are large number of constructions being carried out for long time i.e. for last several years and same situation prevails even as on today, which proves corrupt practice and functioning of the State Government. Every citizen of the State is not concerned with provisions of the Bombay Provincial Municipal Corporation Act, 1949 and other statutes in his day to day life and therefore, instead of holding them responsible for unauthorized constructions carried out, the Minister should initiate action against officers and employees under his control and dismiss them from service under provisions of the Gujarat Civil Services Rules and the Prevention of Anticorruption Act. Instead, citizen of the State are being held responsible for unauthorized developments taken place in the State which goes to prove intentions of the State Government of supporting illegal activities.
Before brining this Bill, the State Government has not taken any step against any corrupt public servant and therefore, inspite of aware of all the facts, the Government allowed continuation of unauthorized developments and corruption and illegalities committed by the officers and other public servants are being concealed. The present State Government is a techno-savvy government and the office of the Minister is in constant touch, through internet, mobile and facsimile machines, with the Municipal Commissioners and other officers and therefore, the unauthorized developments which have taken place is outcome of gross negligence of the Hon’ble Minister only which nullifies the objects and purposes mentioned in the Bill.
The provisions of sections proposed in the Bill which are proposed to be implemented are solely framed with a view to benefit builders who have minted huge money by carrying out unauthorized developments which could not have been possible without aid and assistances of officers of the Urban Development Department and for their corruption.
It has not been made clear in the Bill as to for which period i.e. from which date to which date provisions made in the Bill would be effective and the unauthorized developments carried out till which date are proposed to be regularized and instead, dates for issuance of notice by the competent authority, dates of applications to be made and provisions for appeal in case of rejection of applications. Dates of publication of notification and publication of Bill vide notification are only clear and therefore, this is prescribed last date for regularization of illegal activities supported by this Act and not the final date.
As a result of this Bill brought by the Hon’ble Minister of Urban Development Mr.Nitin Patel, new unauthorized development works have commenced in every town of the State now. Therefore, it is also essential to ensure that this Bill does not have adverse impact on the court proceedings already initiated earlier since this Bill is aimed at authorizing any person/authority surpassing any judicial proceeding as may be required to be carried out by the judiciary, Collectors and Commissioners of the State, which is damaging the sovereignty of Indian constitutional authorities and is insult to the judicial system of the country.
As provided in this Section, the State Government may appoint any person as the Designated Authority.
The Bombay Provincial Municipal Corporation Act, 1949 is prevalent even as on today and though officers of Indian Administrative Service are appointed as Municipal Commissioners, unauthorized constructions have been carried out. Therefore, under this Act, anybody cannot be appointed and it is essential to clarify in the Bill for appointing officer equivalent to the Administrative cadre or of judicial cadre. Any other person can be considered to be any political person or any independent person as may be selected by the State Government. Provisions of this section read with section 6 of the Bill clearly gives room for a doubt that the State Government is aiming at corrupt practices in the matter of regularization of unauthorized development also.
This section provides for granting or rejecting application for regularization of any unauthorized development after conducting inquiry by the authority and keeping in view the rules and bylaws, which power is apt to be misused by anybody for corruption.
As per provision contained in this section, the unauthorized developments carried out on lands whichre not converted into non-agricultural use by going beyond the proceeding undertaken by the Collector in exercise of powers conferred upon him under the Bombay Tenancy and Agricultural Lands Act, 1948, by permitting such land for non-agricultural use. Said Tenancy Land is in force in the State of Gujarat and the authorities under said Act are District Collector and officers of Administrative Cadre are appointed. The State Government has not abolished this Act and therefore, this Tenancy Act cannot be violated or overlooked, which tantamount to criminal misuse of powers conferred on the Legislature.
On regularization of unauthorized development under provisions of this Section, all court cases or other proceedings filed by the appropriate authority or the occupant or the owner or otherwise and pending in any court in so far as they relate to such unauthorized development, shall stand abated.
Large number of litigations are pending before various courts in the State since the Commissioners and Deputy Commissioners, Executive Engineers and Overseers subordinate to the Urban Development Department have not discharged their duties. No action have been taken by conducting inquiry within 3 to 5 months on the applications made to the Commissioners and ultimately, the applicant has to institute civil suits in respective court for justice and the State Government also give reply to the applicant stating “the case is court matter and hence no action can be taken”. This is modus operandi of Urban Development Department of the Government for their corruption practices and therefore, provision of this section is contrary to the principle of natural justice.
If unauthorized constructions carried out are regularized under provision of this Section, in cases of the parties against whose unauthorized constructions legal actions are initiated, it is sole responsibility of the State Government to compensate them for the entire loss of time and money they suffered for defending such actions. As unauthorized developments are carried out to meet requirements of residential and commercial space by the citizens, when Designated Authority regularize those developments, it would be contrary to the principle of natural justice and human rights to abate legal proceedings initiated by the occupants for regularization of such developments, without compensating them with the loss of time and money expended by such applicants on litigations.
As per provision of this section, any previous proceeding against unauthorized constructions shall be considered to have been abated. Likewise, those constructions which have already been demolished by the same authorities shall have to be regularized and it is duty of the State Government to reconstruct and/or repair those constructions which have been demolished or to compensate occupants of such demolished constructions by way of awarding monetary compensation as per prevalent market rates. The gist of this section and all other sections makes is clear that the widespread corruption is being legalized by way of this Act which is gross misuse of legislative powers enshrined on the legislature by the Constitution of India.
This section also does not make it clear as to whether notices already issued under Bombay Provincial Municipal Corporation Act, 1949 shall be implemented or the said Act itself will be put to hold.
Provisions of this Section does not make it clear as to how and where the fund worth crores of rupees collected towards penalty of unauthorized development, shall be utilized.
At present occupants of residential and commercial premises are facing severe problem of parking and margin due to unauthorized developments. In entire State in every town and cities, vehicles are being parked on both sides of roads which causes great hardship to paddlers and transportation and therefore, the State Government has not made it clear as to whether this fund will be utilized for purchasing open space for creating parking space and thus this fund will be utilized for public purpose by acquiring properties to solve traffic problems. The Designated Authorities are not empowered to make arrangements for parking places. Therefore, it is necessary to clarify about utilization of fund so collected by the Government as per provision of this Section. If unauthorized development is, as claimed, need of public, public parking and open space for paddlers is also need of rest of people of the State.
Provisions of section 11 are strengthened by this Section and regularization of unauthorized development under this Act shall be without prejudice to any civil or the criminal liability to which an applicant may be subject to under any law for the time being in force. This is evident of policy of the State Government to encourage unauthorized activities. Provision of this section is in contempt of majesty of law and judicial system of the country. It is disrespect to the judiciary and Hon’ble Court which have tried number of cases in respect of unauthorized developments in the past. If sections 11 and 15 both read together, this Bill is clearly conveying disrespect and disregard for the judiciary and Hon’ble Magistrates who have spent hundreds thousands of hours for trying cases of unauthorized developments. It is contempt of the courts.
In this section, provision is made for overriding effect notwithstanding anything contained in any other law for the time being in force, in so far as the regularization of unauthorized development is concerned.
The laws enacted by His Excellency President of India and Government of India are still prevalent and in effect which the State Government appears to have forgotten. The words couched in this section, “notwithstanding anything contained in any other law for the time being in force, in so far as the regularization of unauthorized development is concerned” also need to be corrected.
It is apparent that this section provides for conferring powers automatically for overriding any other law which may be detrimental to implementation of this provision.
After the validity period of Regularization of Unauthorised Developments Act, 2001 was over, the Akshay Mehta Inquiry Commission has submitted a review report before the State Government which is requested to taken into reading and consideration as a part of this Appeal so far as this Bill is concerned. In spite of best efforts, I am unable to obtain copy of the said Report and therefore, it is humbly requested to Your Excellency to kindly take into consideration such other reports also which are concerning this Bill.
Therefore, it is my humble appeal as citizen of Gujarat, in the public interest and to nurture values of democracy and respect for the Constitution of India that….
Provisions of Sections 11, 13, 15 and 18 of the Bill may be reviewed and this Bill may be returned back to the Legislative Assembly for detailed discussion thereon and amending the same so as to see that there shall not be contempt of courts and its proceedings.
APPEAL FOR PROTECTION OF PERSON :
The appellant herein has preferred appeals and initiated proceedings challenging intentions of the State Government through its Urban Development Department to regularize unauthorized developments in the State and for ensuring respect of judiciary of the State and Constitution of India which has frightened the Government of Gujarat and those who have intentionally carried out unauthorized constructions and therefore, the appellant apprehends threat to his life. Inquiries in respect of bogus encounters by State police departments are being carried out at present against the State Government by the Central Bureau of Investigation. Further, one of the citizen of the State has also been shot dead just in front of Hon’ble High Court of Gujarat who was an activist and litigating Public Interest Litigations. Therefore, taking into consideration all such incidents, I apprehend threat on my life and my application for license to hold fire arm for self-defense is also not being granted by the Government. Therefore, I hereby appeal and request for providing adequate protection to me and my family members since there are all possibilities of my assassination at any point of time.
Date 30-05-2011 Raj Chandrakantbhai Prajapati
Gandhinagar. House No.1252/2, Sector 6-D,