Editor's note: This is the first of a four-part deep dive into the murky world of land legislation in Tamil Nadu, unauthorised constructions and how corruption is rampant in the sector with no government wanting to curb it. Will the courts at least do the needful?
On 9 September last year, the Madras High Court First Bench, comprising Chief Justice Sanjay Kishan Kaul and Justice R Mahadevan, passed orders on a PIL petition filed by advocate 'Elephant' G Rajendran, and imposed a blanket ban on registration of unapproved layouts and houses built on agricultural lands in Tamil Nadu.
Justifying the order the judges said, "This order becomes necessary to prevent further development of unauthorised layouts and conversion of agricultural areas for non-agricultural use in an unplanned manner, as also to save ecology and prevent flooding while simultaneously giving time to the government to come forth with necessary policy documents and legislative changes."
Following this, the ban was relaxed before it was reinstated again by the First Bench, headed this time by Chief Justice Indira Banerjee while hearing a petition by advocate VBR Menon. The Tamil Nadu government has now passed an interim order for regularisation of these unapproved layouts and buildings, although the court is yet to pronounce its final verdict.
The Government Order (GO) No 78 is a call for mercy. The Tamil Nadu Housing and Urban Development decided to issue this order along with GO 79 as a change of land use rules and an enumeration of regularisation fees for unapproved layouts to be registered before 3 November, 2017.
The GO puts together certain restrictions that have been imposed for regularisation.
"Unapproved layouts in water bodies, plots having no access to surrounding lands, government poramboke lands, and land situated below high tension lines are not eligible for regularisation."
Curiously. it contradicts itself when it says, "Plots regularised under the new rules shall be deemed to be regularised for residential usage irrespective of the land use zone in the concerned development plans."
"The government orders in themselves stand illegal and void because the court has not yet announced its verdict," says Menon, a petitioner in two PILs.
Let's turn our focus to Velachery, home to part of the IT corridor. Originally a wetland and lake, it has now been concretised and built upon. What happens to this rule when from the year 2000 to present, over 500 pattas have been registered by the government over a large portion of the Velachery lake?
A look at the pattas for which encumbrance certificates have been issued in the registrar department shows a minimum of eight plots on Velachery lake alone after 2015. From 2000-2015, the water bodies have been encroached upon systematically and almost 500 pattas have been registered in those areas.
Srivatsan, a part of the CMDA Monitoring Committee, has a cynical view of the government's regularisation plans.
"The way in which regularisation has gone on over the years, it has been repeatedly misused by the government to collect revenues. There are no new regularisation rules needed at all. The problem is in implementing existing laws and rules," he says.
Devasahayam, another member of the committee, said the plot layouts are often constructed on floodplains, which has completely violated the CMDA's Master plan. "Once you start regularisation, it never stops," says Devasahayam.
"Around 90 percent of the unapproved layouts and plots already stand. The market is saturated and probably 10 percent of the Chennai area is all that's left to maximise on for the real estate sector. What is the point of a blanket ban on unapproved layouts from here on, when most violations already exist and make the city flood prone," asks Menon.
Shyam Sunder, an advocate specialising in property laws, has extensively studied the new government orders and believes that it is clear eyewash.
A common and perilous misunderstanding lies in panchayat president approvals. According to the Tamil Nadu Town and Planning Act, panchayat presidents are responsible for passing on the layout permission documents to the Directorate of Town and Planning Commission (DTPC) for approval. The Directorate then scrutinises the application, visits the layout and once satisfied, signs and seals the document and sends it back to the person who wants to construct the plot.
But here's what really happens. Plot owners submit the application to the panchayat president, and the presidents seal and sign the approval themselves. The application, therefore, does not reach the DTPC at all and as a result, it is not scrutinised for possible violations. "The DTPC is absolutely complicit here. Why have they been completely silent?" says Sunder.
The panchayat presidents do not have an iota of power to accord these sanctions, but most of Chennai's unapproved plots have been allowed to grow in this fashion.
S Ravi, former dean of the School of Planning, Anna University has a reason for the pattas over the Velachery lake being granted by the government. "In the year 2008, the lake areas were transferred from the CMDA to the revenue department. The lakes then switched hands to the Housing Department because of certain governmental pressures. That is the result behind these pattas being sanctioned towards residential layouts, with 40 percent having no approvals," he says.
Ravi provides some insight into the government's lack of action on panchayat presidents. "Unlike the CMDA, the DTCP has no master plan. This, therefore, allows a plethora of violations without batting an eyelid. Further, local bodies are unofficially vested with the power of approving layouts because there is a severe dearth of staff in DTCP," he says.
So, what happens when a certain party is identified as the encroacher? Can the government take adequate action?
"The government can issue a notice, wait a month for the encroacher to respond. Three more notices are sent, and the encroacher will take the matter to court and file a writ. The writ grants him a stay order, which prevents the DTCP or CMDA from taking action. This stay can go on for decades," says Ravi.
Tara Murali of Citizens and Consumer Action Group says that advantage is usually taken of the topography and therefore, the party escapes from his role as encroacher. "Generally, the water bodies expand during the monsoon and contract during the dry weather. This seasonal occurrence may cause the lands during dry weather to be converted into agricultural lands. Now that the agricultural lands are converted into non-agricultural lands indiscriminately, people are free to build on them. The land record no longer identifies as a lake or river. This is why the floods, probably, had completely brought the area down," she says.
Rajendran has been a victim of Velachery’s dangerous planning. His independent house near the lake was one of the worst hit in the area and just like many people, he lost valuables in the house. However, he is glad he did not lose his life. "I know many people who've bribed their way into getting a lake view from their lavish houses," he says. Rajendran has been making his difference by way of protest of sewage water being unloaded in lakes. "Only 26 percent of the lake is left, and that's an exaggeration. The Chennai Corporation does a surface level cleaning every three months and is completely silent while we protest," he says.
Suresh, a lawyer from the People's Union of Civil Liberties, has been fighting for years over illegal constructions in the city. He offers an explanation of the trend that he feels has destroyed the city. "The aspirational middle class wants the lake view, the high rises. Developers love selling that, but the city cannot. Chennai has withstood a lot. But how much can it take?"
"We have a saying in the CMDA. ‘Gone is gone. What's left?'" asks Ravi.
Watch this space for part two, where we examine how the menace of bribery has wracked the realty sector in Tamil Nadu.
Updated Date: Aug 14, 2017 13:52 PM