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Unauthorized construction: loopholes in law cause for concern
Source : The Hindu Property Plus Published On : 2009-01-17 City : Chennai

Effective enforcement along with strict rules will alone help, writes

A.Srinivasan

The issue of unauthorized construction continues to be a case for concern for Chennai. The planning authorities often complain that the town planning Acts are slack and with loop holes. In spite of issuing stop work or demolition notices, unauthorized construction could continue. Recently, taking a leaf out of the Delhi experience, significant amendments were made to the Tamil Nadu Town and Country Planning Act (T&CP Act) to achieve just this. The local authorities are now empowered to lock and seal unauthorized buildings. The amendments have also removed the time limit to take action on such buildings. Will this curb unauthorized construction in Chennai?

The story of an unauthorized construction ironically begins with an application for building permission. The builder after getting the permission adds another floor and extends the size without the mandated open space, parking and fire safety measures. When the building does not comply with the norms, the officers responsible are expected to issue a notice to either remove the unauthorized portions or stop the unauthorized construction. About 30 days time is usually given for this. But when notices are issued, the owner or builder rushes to file an appeal or legally challenge it. Till “a final determination” of such appeals is made, the demolition notice will not take effect. As a result, construction at site could continue. Some have even ensured that they do not receive any notices for their unauthorized construction. There are also cases where no application for building approval was made, but construction was completed. Apart from this, in the past, the government had used its powers and exempted many buildings from norms.

 
Amendment

 Some of the weak links in the earlier Act have now been removed. The owners or builders of unauthorized buildings cannot continue with construction under the guise that their appeal is pending. They need to stop construction, discontinue its use and remove the unauthorized portions. Even those who are occupying such buildings be served with the notice. The new amendments make it clear that “the authorities may take action to discontinue the use of such land or building by locking and sealing the premises”. This can be done, the Act states, “irrespective of pending of any application or any litigation before a court”. The amendments also state that “no injunction shall be granted by any court against the notices served by the planning authority”.

However, there is an appeal provision in the amended Act. Through this, the owners or builders who have received notices for locking and sealing can appeal to the government for review.

The senior officials at the CMDA clarify that these amendments will not be applicable to the unauthorized buildings built before July 27, 2007 because they are protected by the ordinance issued by the Government of Tamil Nadu. Enforcement

However, there is an appeal provision in the amended Act. Through this, the owners or builders who have received notices for locking and sealing can appeal to the government for review.

The senior officials at the CMDA clarify that these amendments will not be applicable to the unauthorized buildings built before July 27, 2007 because they are protected by the ordinance issued by the Government of Tamil Nadu.

Enforcement.

Amending the Act alone may not help. Equally important are the issues of compliance and enforcement.

Neither the ordinance nor the regularization schemes so far have reduced the number of unauthorized constructions. Regularization of unauthorized buildings is usually done with an undertaking that it will be a onetime affair and it will be followed by a strict enforcement. But the planning officials admit that unauthorized constructions still continue.

A survey done by the CMDA in 2008, after the ordinance (2007) was passed revealed that of the 4,739 buildings inspected within the Chennai Metropolitan Area (CMA) 3,588 buildings were issued stop work notices.

Of the 15,245 demolition notices issued between 1986 and 2006, only 148 were actually demolished. While the number of applications received for regularization between 1999 and 2002 was 32,594.

Poor enforcement of building rules is not limited to remote areas of the city; even prominent areas such as T.Nagar have escaped scrutiny. The CMDAhas stated that they are ill equipped to effect proper enforcement. The entire 1,189 sq.m of the CMA is looked after by only 36 personnel. Two more officers were added to the enforcement cell only recently.

The Officials in the CMDA state that Chennai Corporation is better equipped to effectively enforce building rules. The Chennai corporation officials on their part point that the CMDA should take care of the buildings for which they have issued approvals. One of the suggestions doing the round is that an independent body be appointed to take care of enforcement of building rules.

Whatever be the final form the enforcement authority may take, but it is critical that action be taken against the non-complying ones. Frequent condoning of unauthorized constructions by the State has been only counter-productive and detrimental to the city.

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