(Gujarat Act No. 26 of 2011)
guj233
[Dated 12.10.2011.]
(First published, after having received the assent of the Governor, in the "Gujarat Government Gazette", on the 12th October, 2011).
An Act to regularise the unauthorised development in development areas in the State and for matters connected therewith or incidental thereto.
Whereas There Has Been Unauthorised Developments In The city of Ahmedabad and development areas in the State, on a large scale;
And Whereas such unauthorised developments are liable to be removed and pulled down;
And Whereas by removal and pulling down of such unauthorised developments, hardship to a large number of people is likely to be caused;
Now, Therefore, it is expedient to have a law to provide for regularisation of certain unauthorised developments.
It is hereby enacted in the Sixty-second Year of the Republic of India as follows:-
- Short title, extent and commencement.- (1) This Act may be called the Gujarat Regularisation of Unauthorised Development Act, 2011.
(2) It extends to whole of the State of Gujarat.
(3) It shall come into force on such date as the State Government may, by notification in theOfficial Gazette, appoint.
- Definitions.- (1) In this Act, unless the context otherwise requires, -
(a) "applicant" means an occupier or owner intending to make an application for regularisation of unauthorised development under section 5;
(b) "Bombay Act" means the Gujarat Provincial Municipal Corporations Act, 1949;
(c) "built-up area" means the area covered by a building on all floors including cantilevered or projection portion;
(d) "Commissioner" shall have the meaning assigned to it in clause (9) of section 2 of the Bombay Act;
(e) "designated authority" means the Commissioner or any other authority or person appointed as the designated authority under section 3;
(f) "development" shall have the meaning assigned to it in clause (viii) of section 2 of the Gujarat Act;
(g) "Gujarat Act" means the Gujarat Town Planning and Urban Development Act,1976;
(h) "GDCR" means the general development control regulations made under clause (m) of sub-section (2) of section 12 of the Gujarat Act;
(i) "Ground Coverage" means the total built-up area at the ground level;
(j) "land" means the land as defined in clause (xiii) of section 2 of the Gujarat Act;
(k) "occupier" means,-
(i) any person who for the time being is paying or is liable to pay to the owner the rent of the land or building in respect of which such rent is paid or is payable;
(ii) an owner living in or otherwise using his land or building;
(iii) a rent free tenant;
(iv) a licensee in occupation of any land or building;
(v) any person who is liable to pay to the owner damages or compensation for the use and occupation of any land or building;
(l) "owner" means in relation to any property, includes any person who is, for the time being receiving or entitled to receive, whether on his own account or on account of or on behalf of, or for the benefit of, any other person or as an agent, trustee, guardian, manager or receiver for any other person or for any religious or charitable institution, the rents or profits of the property; and also includes a mortgagee in possession thereof;
(m) "prescribed" means prescribed by rules made under this Act;
(n) "unauthorised development" means the development where, irrespective of ownership, no permission of a building or a part thereof is obtained from the authority competent to give such permission, or having obtained permission, the development is in contravention of the relevant law or of such permission.
(2) Words and expressions used in this Act but not defined shall have the meaning as assigned to them in the Gujarat Act and the rules made thereunder.
- Designated Authority.- (1) The State Government may appoint, by notification in theOfficial Gazette, the Commissioner as the Designated Authority for the area as specified in such notification.
(2) The State Government may also appoint, by notification in the Official Gazette, any other authority or person as the Designated Authority as it deems fit for the area specified in such notification.
- Public awareness.- The designated authority, as soon as may be, after the appointed date under sub-section (3) of section 1 shall cause the substance of the Act to be published for the information of the public in such manner as may be prescribed.
- Notice and application for unauthorised development.- (1) At any time prior to the 28th March, 2011 a notice issued to an owner or occupier or any order issued or decision taken under the relevant law requiring such owner or occupier to remove or pull down or alter unauthorised development carried out shall be deemed to have stood suspended unless and until such notice, order or decision stands revived under sub-section (2) of section 6 :
Provided that such provision shall not be applicable in case of development carried on land in respect of matters provided in subsection (1) of section 8.
(2) Notwithstanding anything contained in the relevant law or in the order issued or the decision taken under the relevant law, directing removal, pulling down or alteration of unauthorised development, or discontinuance of any use of land or building, the designated authority shall either suo moto or otherwise, within six months from the commencement of this Act, or within such period as may be extended by the State Government by order in writing, serve on the owner or occupier a notice in the manner as may be prescribed and direct him to furnish such particulars and documents as the designated authority deem necessary:
Provided that any applicant who has been served with the notice under the relevant laws as provided in sub-section (1), or not may make an application in the manner as may be prescribed to the designated authority for regularisation of any unauthorised development within the period of six months from the commencement of this Act, or within such period as may be extended by the State Government by an order in writing :
Provided further that in case where more than one owner or occupiers are availing the facility of unauthorised development in part or whole, all such owners or occupiers shall make an application jointly to the designated authority :
Provided also that the designated authority may after making such inquiry as it thinks fit, if satisfied, allow the lesser number of owners or occupiers to make an application.
(3) The occupier or owner or, as the case may be, the occupiers or owners shall reply in response to the notice served on him or them under sub-section (2) within a period of one month of such notice and in such manner as may be prescribed.
- Grant or refusal to regularise unauthorised development.- (1) On receipt of the reply to the notice or the application made by the applicant under section 5, the designated authority shall, within a period of eighteen months or such period as may be extended by the State Government by an order in writing, scrutinize the same and after making such inquiry as it may deem fit, is of the opinion that the unauthorised development can be regularised, shall pass an order requiring the applicant to pay fees, if any, payable under the relevant laws and the fees payable under this Act for regularisation of unauthorised development.
(2) The applicant shall pay the fees as required under sub-section (1) within a period of one month from the date of the order, failing which the notice or order or decision as referred to in sub-section (1) of section 5, shall stand revived and in a case where no notice under the relevant law has been given as provided in sub-section (1) of section 5, the application shall stand refused.
(3) On payment of fees as provided under sub-section (2), the designated authority shall pass an order regularizing the unauthorised development, wholly or partly, with or without conditions, in the form and manner as may be prescribed.
(4) If, on scrutiny of the reply to the notice or the application of the applicant and after making such inquiry, as he deems fit, the designated authority is of the opinion that the unauthorised development cannot be regularised, it shall pass an order, within eighteen months of such reply to notice or application, refusing to regularise such unauthorised development, stating the grounds therefore, in the prescribed form and manner as may be prescribed.
- Fees for regularisation.- The State Government shall prescribe, by notification in theOfficial Gazette, the fees payable under this Act and mode of calculation thereof for regularisation of any unauthorised development in respect of the matters specified in sub-section (1) of section 10.
- Cricumstances in which unauthorised development shall not be regularised.- (1) An unauthorised development shall not be regularised in a case where unauthorised development is carried out on any of the following lands, namely:-
(a) land belonging to Government, local authority or statutory body;
(b) land acquired or allotted by the Government, local authority or statutory body for a specific purpose;
(c) land under alignment of roads indicated in development plan or a town planning scheme or under alignment of a public road;
(d) land designated or reserved under a development plan or a town planning scheme;
(e) lands till regularised as provided in section 9,
(f) water courses and water bodies like tank beds, river beds, natural drainage and such other places;
(g) areas earmarked for the purpose of obnoxious and hazardous industrial development
(2) An unauthorised development shall not be regularised if it is inconsistent with -
(a) fire safety measures under the relevant law, or
(b) structural stability requirements as per the G D C R:
Provided that subject to other provisions of this Act, on presentation of a certificate from the authority, as may be prescribed, with regard to the compliance of the provisions of clause (a) or (b) or both, as the case may be, the designated authority may regularise the unauthorised development.
(3) Notwithstanding anything contained in clause (a) of sub-section (2), the designated authority may for the purpose of regularisation of unauthorised development, direct the applicant for making of provisions in the unauthorised development as follows, namely: -
(a) In the case of buildings with 100 per cent. built-up area with no space for water storage tank and installation of fire pumps and no provision of alternate means of escape or no provision for fixed fire-fighting installations, the designated authority may, in consultation with the Chief Fire Officer of the municipal corporation, area development authority or, as the case may be, the urban development authority direct the applicant to provide such fire safety measures as may be specified in the direction within a period of three months from the date of such direction.
(b) In the case of buildings where no space is available within the complex in which they are situated for the construction of underground water storage tanks and installation of fire pumps but adequate means of escapes are available, the designated authority may direct the applicant to provide common underground water storage tank and fire pumps in such complex at suitable location within a period of three months from the date of direction.
(4) Any unauthorised development carried out or an order issued or decision taken for the matters specified in sub-section (2) of section 5, on or after the 28th March, 2011 shall not be regularized.
- Regularisation of lands for which sanction of Collector is not taken.- Notwithstanding anything contained in section 84C of the Gujarat Tenancy and Agricultural Lands Act, 1948 and in section 122 of the Gujarat Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act, 1958, the lands for which the previous sanction of the Collector under sections 43 and 57 respectively of the said Acts was required but has not been taken and unauthorised development has been carried out on such lands then so far as the regularisation of the transaction of such land is concerned, the same shall be regularised in accordance with the scheme that may be framed by the State Government in the Revenue Department.
- Circumstances in which unauthorised development may be regularised.- (1) The designated authority may regularise any unauthorised development in respect of the following matters, namely:-
(i) Ground Coverage,
(ii) Built up area,
(iii) Height of building,
(iv) Change of use,
(v) Common plot, and
(vi) Parking, subject to the condition that the occupier or owner shall provide parking as per GDCR in unauthorised development and where it is not so feasible, in a place owned or occupied by himself or more than one applicant, within such distance not exceeding five hundred meters from the unauthorised development as directed by the designated authority within a period of six months from such direction. However, in the event of non-compliance of the aforesaid directions for any reason, the Designated Authority shall refer matter to the Committee as may be constituted by the State Government by rules and such committee after making such inquiry as it deems fit, will suggest suitable options which shall be taken into consideration by the Designated Authority for the purpose of implementation;
(vii) Sanitary facility, subject to the condition that the designated authority is satisfied that the sanitary facility provided is adequate;
(viii) such other matters which the State Government may, prescribe.
(2) The designated authority shall not regularise unauthorised development in respect of the following matters, namely:-
(a) having such floor space index which the State Government may prescribe;
(b) projections beyond the plot boundary;
(c) the change of use which in the opinion may cause danger to health or lead to health hazard;
(d) falling under the alignment of means of water supply, drainage, sewerage, supply of electricity or gas or of any other public utility service; and
(e) such unauthorised development which the State Government may, prescribe.
- Consequences of regularisation.- (1) On regularisation of such unauthorised development under section 6, 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 unauthorised development, shall stand abated.
(2) Any decision under this Act shall not deemed to have decided the ownership of the unauthorised development.
- Appeal.- (1) Any person aggrieved by the order or decision of the designated authority under section 6 may within sixty days from the date of the receipt of the order prefer an appeal to an Appellate Officer, who shall be a person who has held the office of a Judge of District Court for a period not less than three years or a Secretary to the Government of Gujarat, and appointed in this behalf by the State Government.
(2) The State Government may appoint as many Appellate Officers as it may deem fit for different areas or part thereof :
Provided that, the Appellate Officer may entertain the appeal after the expiry of the said period of sixty days if he is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.
(3) On receipt of an appeal under sub-section (1) along with a fee of rupees one hundred, the appellate officer may, after giving the appellant an opportunity of being heard, pass an order confirming, modifying or cancelling the order appealed against as expeditiously as possible.
(4) The decision of the Appellate Officer under sub-section (2) shall be final and shall not be questioned in any court of law.
(5) No appeal under this section by an aggrieved applicant shall be entertained by the Appellate Officer unless an amount equivalent to the 50% of the fees payable under this Act is deposited with the designated authority:
Provided that where in the opinion of the Appellate Officer amount to be deposited by the appellant is likely to cause undue hardship to him, the Appellate Officer may in his discretion unconditionally or subject to such conditions as he may think fit to impose, dispense with a part of the amount to be deposited so however that the part of amount so dispensed with shall not exceed fifty per cent. of the amount required to be deposited.
(6) The Appellate Officer shall receive, such monthly salary and such other facilities and allowances from such authority as the State Government may determine from time to time.
(7) The provisions of sub-sections (2) to (5) shall not apply in a case where the appeal is not preferred by the occupier or owner.
- Constitution of Infrastructure Development Fund.- Subject to the rules made under this Act, all amounts received under this Act shall be credited to a fund which shall be called the "Infrastructure Development Fund" which shall be held by the Designated Authority in trust for the purposes of augmentation, improvement or creation of an infrastructure facility.
- Protection of action taken in good faith.- (1) No suit, prosecution or other legal proceedings shall lie against any officer or authority for anything which is in good faith done or intended to be done in pursuance of this Act or any rules made thereunder.
(2) No suit or other legal proceedings shall lie against the State Government or any officer or authority for any damage caused or likely to the caused by anything which is in good faith done or intended to be done in pursuance of this Act or any rules made thereunder.
- Removal of doubt.- For the removal of doubt, it is hereby declared that regularisation of unauthorised 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.
- Power of State Government to give directions.- (1) The State Government may issue, from time to time, direction to the designated authority as it may deem fit for giving effect to the provisions of this Act and it shall be the duty of the designated authority to comply with such directions.
(2) If any dispute arises with respect to the exercise of powers and discharge of functions by the designated authority under this Act, the same shall be referred to the State Government and the decision of the State Government thereon shall be final.
(3) Notwithstanding anything contained in the Bombay Act or the Gujarat Act, the State Government may from time to time issue such directions as it may deem fit, to the Commissioner or the appropriat authority with a view to prevent the unauthorised development.
- Power to make rules.- (1) The State Government may, by notification in the Official Gazette, and subject to the condition of previous publication, make rules for carrying out the purposes of this Act:
Provided that if the State Government is satisfied that circumstances exist which render it necessary to take immediate action, it may dispense with the previous publication of any rule to be made under this Act.
(2) In particular and without prejudice to the generality of the foregoing provisions, such rules may provide for all or any of the following matters, namely :-
(i) the manner of publication of the substance of the Act for public awareness under section 4;
(ii) the form of notice to be served on the owner or occupier and the form of application to regularise unauthorised development and manner thereof under sub-section (2) of section 5;
(iii) the manner for giving reply in response to the notice under sub-section (3) of section 5;
(iv) the form of order to regularise unauthorised development and the manner under sub-section (3) of section 6;
(v) the form of order refusing to regularise unauthorised development and the manner under sub-section (4) of section 6;
(vi) the rates of fees payable mode of calculation of fees under section 7;
(vii) such other matter under clause (viii) of sub-section (1) of section 10 for regularisation of unauthorised development.
(viii) such other matters which shall not be regularised specified in clause (e) of sub-section (2) of section 10;
(ix) constitution of the Committee under clause (vi) of sub-section (1) of section 10;
(3) All rules made under this section shall be laid for not less than thirty days before the State Legislature as soon as may be they are made, and shall be subject to rescission by the State Legislature or to such modification as the State Legislature may make, during the session in which they are so laid or the session immediately following.
(4) Any rescission or modification so made by the State Legislature shall be published in theOfficial Gazette, and shall thereupon take effect.
- Act to have overriding effect.- The provisions of this Act shall have overriding effect notwithstanding anything contained in any other law for the time being in force, in so far as the regularisation of unauthorised development is concerned.
- Repeal and savings.- (1) The Gujarat Regularisation of Unauthorised Development Act, 2001 (Gujarat 23 of 2001) is hereby repealed.
(2) Notwithstanding such repeal, all notices and directions issued under the repealed Act shall be deemed to have been issued under the provisions of this Act and all proceedings pending before the designated authority including appeals pending before the Appellate Officer shall be decided in accordance with the provisions of this Act.
