The Bombay high court on Wednesday said it will consider passing a direction that the entire record of every construction project is made available on the citizens’ portal of the BMC website.
The court said it “will need to revisit the law on several aspects once and for all”. It listed issues they propose to address, including whether illegality in construction can be regularised.
“Every scrap of paper, every single document will be uploaded,” said Justices Gautam Patel and Gauri Godse while hearing a petition regarding Daulat House, a six-storey building at Bandra (W) where a developer unauthorisedly chipped two RCC columns in the basement affecting its stability.
Among the issues, first is whether it is the requirement of the BMC as the public authority and planning authority under the Maharashtra Regional and Town Planning Act, in view of the provisions of the Right to Information Act and the Evidence Act, “to ensure that its entire record relating to every construction project is publicly available on the citizens’ portal of the MCGM website”.
Is it possible to leave notices of various kinds, including stop-work, open and unattended without formally closing them. “Whether notice, once issued, requires independent application of mind and recording of subjective satisfaction of an authorised officer that the notice is deemed to be closed on inaction or on obtaining a report,” they noted in the order. The judges said Daulat House is an example of an open notice that is problematic not only to the co-owner and its occupants, but even the developer because it will not receive an occupation certificate. They mentioned that the stop-work notice was not uploaded to the citizens’ portal until September 8, 2022.
The judges will also consider whether an illegality in construction can be regularised, with an eye on the norms laid down by the Supreme Court in a series of judgments. “An illegality is something that is illegal ab initio (from the beginning),” remarked Justice Patel. The judges said if something is not within development control regulations or development plan, “you (BMC) and even the municipal commissioner cannot exercise discretion to regularise it”.
“You in the MCGM have adopted this policy, contrary to every principle and canon of law, that an illegality can be regularised. This so-called ease of doing business policy!” scoffed Justice Patel, after the BMC’s advocate said the developer’s amended plans were sanctioned as part of its ease of doing business policy.
