Author : Ramanath Jha

Occasional PapersPublished on Jul 14, 2021 PDF Download
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The Enduring Problem of Illegal Constructions in India’s Cities

  • Ramanath Jha

    India’s rising urbanisation in recent years has triggered unbridled construction activities to meet the needs of the growing populations in these cities. Not all of these constructions abide by existing laws, however, leading to adverse consequences on governance systems, the environment, people’s health, transportation services, and overall citizen well-being. In extreme cases, illegal constructions have resulted in loss of lives and property. This paper calls for the rectification of policies, improved planning, stricter implementation of laws, and improvement of technology for governance.

Attribution:

Ramanath Jha, “The Enduring Problem of Illegal Constructions in India’s Cities,” ORF Occasional Paper No. 325, July 2021, Observer Research Foundation.

Introduction

The process of urbanisation entails expansion of existing urban settlements as well as the classification of rural areas as towns. Defining what is ‘rural’ and ‘urban’ is based on various parameters: rise in population and population density, larger revenue generation, attainment of greater economic significance in terms of GDP share, and a larger percentage of employment in non-agricultural activities.[1] Between 1901 and 2011, the number of India’s towns increased from 1,827[2] to 7,935.[3] The demographics of an urban settlement changes[4] primarily through multiplication of existing population, the merger of villages on its periphery, and migration from other settlements.[5]

As more people reside in towns and cities, either temporarily or permanently, the demand for enabling economic, physical, social, educational, health and recreational infrastructure also rises.[6] These include housing, employment and office space, markets, commercial centres, educational institutions, hospitals and healthcare centres, restaurants, cinemas, gardens, and playgrounds. Most of such services and infrastructure require multiple new constructions.[7]

All such activities in a city that involve construction are governed by zoning regulations and building by-laws, also called Development Control Regulations (DCRs). These are embedded in the city’s Development Plan (DP) or Master Plan—a dynamic long-term document whose reach is generally for 20 years and provides a conceptual layout for future development.[8] Among the DCRs’ prescriptions, zoning is a planning control tool for regulating the built environment.[9] The rules of zoning mandate the kinds of construction that could take place in that zone.

Single-use zoning would divide a town into areas in which only one kind of land use would be permitted.[10] For instance, a residential zone would permit housing to be built and a commercial zone would allow building for commercial activities, but not vice versa. Mixed-use zoning, on the other hand, would permit more than one use. For example, a certain percentage of land area in a mixed-use zone could be residential and some could be commercial. Modern urban planning principles promote mixed land use for its multiple advantages:[11] primarily, it reduces travel time, and makes essentials and other services more easily available. However, mixed-use zoning disallows non-compatible uses in the same zone as the very basis of zoning is to “segregate non-conforming users from one another.”[12]

The DCRs also regulate how much construction could be done on a plot of land.[13]  Such stipulations are outlined to manage concerns for the environment, as well as the health and safety of citizens. For example, there should be sufficient ventilation and lighting, and structures must be built in a manner that can allow easy access to fire services during emergencies. The DCRs thus place restrictions on the volume of construction on a plot of land, using the concept of FSI (floor space index) or FAR (floor area ratio).[a],[14] Building regulations are concerned about, among others, a balance between built and non-built environment, distance between buildings, and ease of movement.[15]

The DCRs also prescribe the manner in which a building would be constructed: they ensure that buildings are structurally sound, and that they have the basic services and facilities necessary to support the purpose for which they are erected. The regulations provide that these buildings be designed to safeguard the environment and natural resources so that they can be used by present and future generations. Development control is the most visible part of the land use planning process.[16]

DCRs further stipulate that no building can be occupied without the issuance of a completion certificate by the competent authority.[b],[17] Before the issuance of such a certificate, authorities seek a large number of documents and no objection certificates (NOCs), including a structural engineer’s letter and NOCs from the departments of fire, and garden and sewerage. The completion certificate would then lead to the issuance of an occupancy certificate.[18]

While the Master Plan and DCRs that regulate construction are city-specific or state-specific,[c] the Government of India has also put in place the National Building Code of India (NBC)[19] and the Urban and Regional Development Plans Formulation and Implementation (URDPFI) Guidelines.[20] The Code primarily consists of administrative regulations, development control rules and general building requirements; fire safety essentials; stipulations regarding materials, structural design and construction; building and plumbing services; approach to sustainability; and asset and facility management.[21] The URDPFI guidelines, meanwhile, are urban-centric and provide a framework for the preparation of development plans and an implementation process.[22]

Illegal Construction in Indian Cities: Scope and Consequences

There is no dearth of rules, by-laws, and statutory provisions that govern the conduct of construction activities in Indian cities. However, illegal construction continues to thrive. While such activities are nearly universal across all Indian cities, they are most rampant in megacities and metropolitan cities.[d] A primary reason is that in these large cities, the cost of land is steep,[23] and the huge demands for housing, office and commercial space far outstrip planning speed, product supply, and spatial availability at affordable rates.

Some of the violations are marginal—for example, making a few changes during actual construction and veering away from what was drawn in the building plan submitted to the local authority. The more extreme ones make substantial structural changes, introduce short-cuts, and economise on critical components of a sound structure. It is not unheard of that such activities have led to tragic consequences such as fires and the collapse of a building, leading to loss of human lives and property. For instance, in 2019, Delhi recorded 150 deaths due to fires—the city’s highest toll in five years.[24] 

Consequences of illegal constructions

Across different cities, there have been extraordinary examples of how regulations on construction are flouted in a brazen manner. In Kochi’s Maradu municipality in the state of Kerala, four residential houses were pulled down in August 2020 for gross violation of construction laws.[25] In a subsequent inspection, over 4,000 CRZ (Coastal Regulation Zone) violations were identified in the district.[26] In December 2019, in Chennai in the state of Tamil Nadu, the Madras High Court ordered that a sprawling bungalow on East Coast Road be pulled down for violating CRZ norms and building regulations.[27] In Maharashtra’s Alibaug, in 2019, the Collector, on instructions of the Bombay High Court, demolished 24 bungalows illegally built along the coast.[28] All these cases involved wealthy families.

More tragic are incidents where structures collapsed or caught fire, and led to deaths and displacement. In April 2013, a building under construction collapsed in Mumbra, a suburb of Thane, Maharashtra and killed 74 people,[29] all of them construction workers and their families. Investigators found that poor-quality material was being used for the building; the developer had not submitted any building plans nor sought approval. Officials complicit in the case were suspended and several arrests were made.[30]

On 21 September 2020, a 35-year-old, three-storey residential building in Bhiwandi, also in Thane, collapsed; more than a dozen people died and another two dozen were injured.[31] Investigators found that building regulations were compromised. The Bhiwandi-Nizampur Municipal Corporation, the urban local body (ULB) in charge of city governance, was aware of the building’s problems that had surfaced during the course of periodic municipal inspections and had served repeated notices to the owner. These went unheeded and the authorities went no further than serving written warnings. Following an enquiry, two civic officials responsible for the area were suspended and an offence was registered against the building owner.[32]

In Delhi the Supreme Court, taking cognisance of  the thousands of illegal structures being built across the capital, constituted a monitoring committee in March 2006.[33] The committee was tasked to identify unauthorised structures, look into the causes of the massive illegal building activities, and check in particular the misuse of residential properties in Delhi.[34] The municipal corporations of the capital sealed the illegal premises, and the Government of India followed up by appointing a Special Task Force with powers to direct local bodies and police to provide appropriate infrastructure to the residents of Delhi and curb illegal construction in the city.[35] Soon the committee and the task force came to loggerheads, each accusing the other of inaction.[36]

The Parliament took a different stand. In February 2021, it passed the National Capital Territory of Delhi Laws (Special Provisions) Second (Amendment) Bill,[37] providing protection to entities accused of conducting unlawful constructions, shielding them from penal action for three years. The Housing and Urban Affairs Minister, Hardeep Singh Puri, while introducing the Bill, stated that the intention was “to protect certain forms of encroachment and unauthorised development from punitive action, namely, demolition, sealing, displacement, etc.”[38]

Even government buildings and public infrastructure have been found to be violating construction guidelines. In January 2021, a fire erupted in the neonatal intensive care unit of the Bhandara district hospital in Maharashtra; 10 infants died. The probe panel reported the cause of accident to be a short-circuit.[39] They found that an amount of INR 1 crore had been sanctioned to construct an extension to the special newborn care units. The construction happened but no fire clearance was obtained, and the installation of electrical fittings was not supervised by an electrical engineer.[40]

On 31 March 2016, part of a flyover in Kolkata in West Bengal that was under construction collapsed, killing more than 50 people and injuring 85 others.[41] Another flyover collapsed in the same city in September 2018.[42] A report by the Indian Institute of Technology, tasked to investigate the incident, revealed the reasons – faulty design and wrong project execution.[43] In March 2019, a pedestrian overbridge connecting the Chhatrapati Shivaji Maharaj Terminus (CSMT) in Mumbai collapsed;[44] six people were killed and 30 others were injured. Less than a year earlier, in July 2018 another pedestrian overbridge in Andheri, a suburb of Mumbai, had also collapsed following heavy rains, killing two.[45]

Illegal constructions benefit the builders and other complicit individuals. A Delhi High Court Committee tasked to investigate unlawful constructions in the capital city concluded: “Illegal constructions cannot happen without connivance. Builder-official nexus … thrives in our cities by buying protection and insurance from the law enforcers. The builder, architect and the owner have a vested interest. Often, the purchaser is the most vulnerable.”[46] It was also observed that there was “no law that considers violation of building norms as a criminal offence. So, fixing criminal liability on the builder-architect-owner-official nexus is likely to have a deterrent effect on the construction of unauthorised buildings.”[47]

On a larger scale, such corrupt practices have a cascading effect on governance ecosystems and weaken the fabric of good societal behaviour.[48]

Environmental impacts

Illegal constructions have adverse environmental impacts. First, they lead to larger volumes of construction than the developmental regulations permit for healthy and safe living. More construction also contributes to the ‘heat island effect’—a phenomenon observed in cities, where high building density creates ‘islands’ of higher temperatures in comparison to outlying areas.[49] Some illegal constructions have also encroached on transportation networks, creating traffic bottlenecks.[50]

These unlawful constructions have proliferated on fragile lands such as unbuildable slopes and hills, in flood zones,[51] or lands encroached from water bodies such as creeks, river embankments, mangroves,[52] salt pan lands, public open spaces, and green spaces. Rivers, lakes, and ponds have either disappeared or have dried up in the process of being readied for residential or commercial construction. There are consequences for the families that occupy such lands as their lives are under constant threat of floods and landslides. The city, overall, is compromised in terms of water egress in case of heavy rains and floods. As global warming and climate change are posing a huge challenge in Indian cities, witnessed in the form of more frequent and severe urban floodings and rising heat events, illegal constructions only worsen the impacts of such events.

This is best illustrated in Mumbai. Large tracts of water bodies such as lakes and ponds, river banks and parts of mangroves, and natural nallas (drains) have been taken over either for construction of buildings or dumping debris.[53] Clogged culverts, encroached rivers, heavily silted drains and a non-functional storm water system have choked the normal city outlets for rainwater. This has resulted in virtually an annual deluge that leaves the city at a standstill for a few days at a time.[54]  This is true, however, of a large number of Indian cities: mega cities, state capitals, metropolitan cities and smaller cities have all been hit by extremely heavy downpours. Invariably, they have exceeded the capacity of cities and towns to drain this water out, resulting in massive waterlogging.

Patna in Bihar, and Hyderabad in Telangana, are two cities that are particularly worth mentioning. In 2019, Patna was flooded by a combination of torrential rains and outdated sewage-and-storm water drainage system.[55] In 2020, two dozen people in Hyderabad died in floods that was a result of indiscriminate construction in water bodies, lakes and drains.[56]

Overall, as India’s cities are heightening in their density, rampant unlawful constructions are emerging as a significant factor in worsening the state of these urban spaces. Developers and individual owners have engaged in illegal practices, and city administrations have failed to implement regulations. The municipal authorities are partly to blame for not using their powers to stop and demolish such constructions.

At the same time, officials who have worked to implement the rules have faced threats of violence. For instance, in November 2018 in Ulhasnagar in Maharashtra, residents complained about the illegal construction of commercial shops. When the Joint Commissioner of the Ulhasnagar Municipal Corporation took cognisance of the complaint and attempted to demolish the constructions, he was assaulted by locals.[57]

The Failure of Laws and Regulations

In Delhi, there are two laws under which action could be taken against illegal construction activities: the Delhi Development (DDA) Act 1957[58] and the Delhi Municipal Corporation (DMC) Act 1957.[59] Sanction under Section 12 of the DDA Act is required for any construction work. The DDA has the power to stop any unauthorised development and, under Section 31A of the Act, to seal such premises. Similarly, the DMC Act prohibits construction without prior sanction of the competent authority. If such a construction has taken place without sanction, the DMC can stop work after due notice and hearing, and the building can be sealed. The DMC is empowered to demolish the structure after due process has been followed.

In Maharashtra, there are three key laws: the Maharashtra Regional and Town Planning Act, 1966 (MRTP);[60] the Mumbai Municipal Corporation Act, 1888[61] for Mumbai; and the Mumbai Provincial Municipal Corporation Act 1949[62] for the rest of the state. As in the case of Delhi laws, these Acts prohibit construction without prior permission from the authorities. Any person intending to erect a structure must give notice to the commissioner and submit building plans and details of construction. The authorities can stop unauthorised construction after following the processes laid down under these laws, which also specify penalties that include imprisonment and/or fine.[63]  Their provisions are replicated to a large degree across urban local bodies in the country. However, these laws have either not been fully used or are unable to stop the spate of illegal constructions in cities.

The problems are compounded by developments that fall outside the purview of current laws and which have an enormous bearing on planned cities. These include the growth of slums, the proliferation of small shops, street vending, and small housing constructions that do not fit within the four walls of zoning laws and development control rules. They have proved most difficult to tackle: their numbers are large; they involve the poor populations, and no political party in the country has been able to apply existing laws on these constructions. Above all, such constructions reveal the serious inadequacies in India’s urban policy. These, therefore, need innovative solutions.

The urban poor form a large group in cities, expanded by migrants who come to find livelihood. There are people in the city who see a business opportunity and take advantage of the situation arising out of the lack of rental housing and affordable housing for the urban poor and the migrating poor. In order to provide some kind of housing to them, “slum lords” surreptitiously promote the erection of shanties, or slums, to shelter the poor migrants.[64] These are built wholly illegally and without permission from the authorities, many times on unbuildable or hazardous land, such as near high-tension electrical lines, marshy lands, hill tops, or flood-prone areas. These are generally in violation of all zonal regulations. However, the mass of such structures is large and given their political significance as well as for humanitarian considerations, states have had to legislate the Slum Act and regularise these structures over a period of time. The proliferation of such slums is on account of the neglect of affordable housing in cities.

Crucial deficits in addressing illegal construction

Illegal constructions can be categorised under several groups. The most marginal of these is any construction that is not authorised by the competent authority but is otherwise fully compliant with the prevailing building by-laws.[65] This means that if permission had been sought and granted, the construction would have been valid and legal.

Any ULB should not have a problem with such structures as long as municipal taxes and fees and charges are paid. In such cases, the statute book is outdated and ought to be amended to allow legal activity to proceed with as much speed as possible. It is a common experience that proper building plans submitted to ULBs meet with bureaucratic red-tape before being granted a clear permission to construct. Delaying any such activity mainly for administrative approval is counter-productive. The policy correction would be that the municipal laws should state that an individual lodge their building plans with the municipality in accordance with the prevailing DCRs, duly certified as such by an architect, and then proceed with construction. These buildings will be inspected by municipal engineers, at stipulated stages of construction, and appropriate action would be taken based on the results of the inspection. If construction is in order, no penal action is required.

A second class of construction falls in the category of those buildings that were authorised but had marginal additionalities that fall outside the ambit of civic regulations. Such minor deviations are quite common as the need for them is noticed only during construction, sometimes on account of the peculiar shape of land plots. There was clearly no intent to stretch the regulations for demonstrable gain. These minor deviations could be regularised by the competent authority, generally through payment of an additional fee. The process is recognised in urban regulatory parlance as “compounding”.[66] Any ULB should find such structures acceptable as long as a compounding fee, municipal taxes and any other prescribed fees and charges are paid.

A third class of construction is of those buildings where authorisation was given by a competent authority, but was wrongly authorised in violation of the DCRs that govern construction.[67] Some minor errors could happen and could be taken care of through some penal charge or compounding. But if the violation is substantial and goes against the core benchmarks of construction and development regulations, resulting in unacceptable structural compromises, then the structure is a problem structure that will have to be dealt with. This may entail asking the owner to reinforce a section of the construction or to pull down part of the building and reconstruct as per stipulations, or else completely demolish the structure. In each case, a heavy fine ought to be levied for willful default. Additionally, the ULB officials who gave permission would have to be dealt with under disciplinary provisions and removed from the building permission department. If the permitted construction has components that are structurally dangerous and have been knowingly approved, then the authorities complicit in such construction would have to be criminally prosecuted and upon conviction will be dismissed from service. The building itself will have to be pulled down.

Another category is of buildings that were neither authorised nor have abided by the laws and regulations governing construction. These, for instance, could be built in violation of the zonal regulations,[68] including being located in an environmentally fragile zone such as mangroves or salt pan lands. Similarly, an industrial structure in a residential zone would be impermissible, and so is construction on a plot of land reserved for a different purpose such as for a public open space. These fit the category of structures that will have to be pulled down. Additionally, the builder of the property would have to be visited with heavy penalties and criminal prosecution.

A significant category of illegal construction is where building plans were submitted to the local authority. On scrutiny, they were found in order and satisfied all stipulations of the development control regulations. However, during construction, compromises were made with the quality of material; structural requirements were overlooked and other shortcuts were adopted with a view to cut costs or gain undue space advantages. These practices have consequences on proper ventilation, hygiene and health, or go even further and put lives of those who would live in the buildings at risk. These fit the category of structures that are dangerous and deserve to be dealt with in proportion to the seriousness of the offence. In extreme cases, the buildings would have to be demolished and the developers criminally prosecuted.

It is clear that in the present state of affairs, the building inspection departments in the ULBs, and the police, are unable to keep watch over unlawful construction activities. There may be complaints within ULBs and the police about shortage of personnel. However, it can be safely presumed that additional personnel will serve little purpose in terms of having stricter watch over unlawful construction and will only result in additional burden for the states and the financially fragile ULBs. A better recourse would be to allow citizens to lodge complaints online, through a web portal that will be transparent.  The ULB would have to consider these complaints and declare, after inspection, which one of them were false and what action is contemplated on others. They will have to update the website with a periodic action taken report (ATR).

Moreover, the method of field visits to detect unlawful construction has become archaic and inefficient in terms of time, cost, and workforce. Using image-processing techniques for automatic detection is one of the optimum methods which can be used in monitoring illegal construction.[69] Some state governments are already moving in that direction. In 2015, for instance, the Delhi government “decided to use remote sensing for tracking and mapping illegal constructions and encroachments in the Capital.” [70]

On the other side, to promote ease of business and ease of living, more freedom to undertake work will have to be given to developers. A developer who wishes to undertake a construction knows what they are supposed to do. The city has a development plan and building control regulations that spell out what can be constructed, where it can be constructed, and what kind of construction can be undertaken. The Fire Code prescribes the provisions to be made for fire safety. The excise and police laws state how and where a bar can be established. The owner could hire the services of an architect, employ a contractor, and fire personnel and other service providers. Each department, therefore, needs to have only a small team to follow up on inspection. They could also play an advisory role in assisting owners to clear doubts about their plans, if they so desire. The civic web site should enable the owner, as mentioned earlier, to notify the authorities of their intention to put up a construction, lodge their building plan with an architect’s certification, and notify the beginning of construction. The entire system of submissions and approvals needs to move towards e-approvals in a time-bound fashion.

In the event of an incident or a disaster, the trail of accountability is clear: it rests with the owner and architect, who should face punishment unless they can establish that they were not at fault. The onus would rest on them. This will bring multiple benefits: red-tape would be hurdled; doing business would pick up speed since several years taken in the permission cycle need not be wasted; corruption would cease; and business could be done honestly. In the process, ULBs would save money spent on a large body of heavily underperforming inspection personnel.

The municipal laws that regulate construction also need to be reviewed. The entire process of serving notice, awaiting reply, and finally taking action needs to be hastened in view of the delinquent owner’s penchant to get their unlawful construction completed with speed.  Additionally, the punishment should match the degree of violation, including heavy costs, criminal prosecution, and the harshest penalty on the statute book in case of the construction collapsing or catching fire, and causing death or bodily harm. For instance, in the case of Delhi, the Committee formed by the Delhi High Court observed that local laws provided no criminal liability on the perpetrators of such constructions. As a consequence, the law has had little deterrent effect.[71]

The types of unlawful construction mentioned above are primarily done out of greed. However, another class is out of livelihood necessity.

Affordable Housing as a Response

The immediate step is to set the policy right. Two areas need urgent attention: rental housing, and affordable housing for the urban poor. In Indian cities, rental housing is a vital need for many sections of people, but particularly for the poor. For low-income groups such as daily wage earners, rental housing is the first option that they seek. The lack of affordable rental housing has left no option for a large migrating poor population but to find refuge in slums. Governments have to begin by scrapping the rent laws as they stand. In 2015, the Ministry of Urban Development, Government of India drafted a National Urban Rental Housing Policy (NURHP).[72] In 2019 a Model Tenancy Act was passed.[73] Both recommend a legal framework that seeks to balance the interests of the landlord and the tenant. The proposed model laws can be adopted by the states.

Furthermore, both central and state governments are required to play a role in the provision of affordable housing. Their primary role is in the area of overall planning, regulation, incentivising and provision of land for affordable housing. Appropriate incentives and subsidies would have to be crafted to promote universal housing. In view of the high cost of urban land, affordability for the weaker sections may mean that the cost of land is taken out of the urban housing equation. Since Government and parastatals have large tracts of land in their possession, suitable public land out of these parcels should be held for the purpose of housing the poor as a first priority. A statement to this effect has already been postulated in the Housing Policy documents of the Government of India,[74] recommending the use of public land as a priority for affordable housing. This ought to get translated on the ground.

It should be possible to improve housing availability through land use zoning and zoning through a varied FSI regime for cost regulation, as higher FSI reduces the cost per unit. Additionally, sufficient supply of serviced land is a precondition to availability. Zoning of land in a manner that exacerbates scarcity would have to be avoided. The first step is to demarcate sufficient land as “residential” in the Master Plan.[75] Second, lands in cities zoned as agricultural or No Development Zone (other than Natural Area) when there is housing scarcity is not acceptable. Such zoning could only be favoured from the point of view of development that moves from the centre to the periphery to allow planned infrastructure to reach areas thrown open to development. Third, excessive reservation of private land for public purposes that the ULB/parastatal is not in a position to acquire on account of high land costs should be scrupulously avoided,[76] as it ends up freezing development on those lands and encourages the owner to engage in illegal development.

As India urbanises, housing would continue to be in great demand in cities. One would have to use all available instruments – public land, capital subsidies, infrastructure facilitation, FSI incentives—to achieve steep targets. While the largest possible pool of land within city limits is forced into the housing market, peri-urban lands need to be similarly planned and held for release as populations expand or prices rise. Institutional mechanisms need to be in place for such planning. Low-cost housing technologies[77] can substantially bring costs down and must be encouraged.[78] These steps will marginalise rather than centralise illegal constructions which the ULB can then prevent through proper policing. Given the scale of the problem, any policing effort without policy reform will stand defeated.

The other side of informal housing structures in cities are those erected for informal enterprise.  These are small shops that we see invariably in all cities, along roads or footpaths.[79] These are generally on spaces that are either designed to be left open or are meant for pedestrians, for loading and unloading goods, and for picking up and dropping off commuters. A further class of informal enterprise comprises street-hawking. These fall within the Street Vending Act, 2014,[80] which made hawking a legal activity. It enjoins upon cities to provide proper hawking spaces, factoring in a maximum of 2.5 percent of a city’s population as street vendors.[81] Beyond the stipulated numbers allowed by the Vending Committee, hawkers and the space they occupy are unauthorised.

At present, however, most informal enterprises are pushed into violating land-use restrictions. As a consequence, they get treated as unlawful construction. It is axiomatic that street vending must become a planned activity written into the urban planning and operational statutes.[82] The gargantuan struggle in cities to balance vending, pedestrian and vehicular mobility, and hygiene will be alleviated once the status of vending is raised to a planned activity. That would leave a small number of cases that could be dealt with through application of laws on construction activities.

A further planning issue that needs to be highlighted is the overload of human density beyond the carrying capacity of cities.[83] Population addition demands space for every incoming individual, and many of these demands require construction. These comprise, as cited earlier, housing, work place, road space, schools, hospitals, and recreation venues. Furthermore, the city must make arrangements for more water, more sanitation, disposal of more waste and such other activities that each individual generates. However, the environment also demands the provision of open lands. These adversarial demands can be satisfied only if the two are balanced—this requires a cap on the human footprint.[84] Urban literature in the Western countries have been arguing for greater density in cities. This is on account of very low densities that the western cities face, raising issues of economic sustainability.[85] Indian cities are at the other end of the spectrum, where such arguments get reversed: India’s six biggest cities figure among the 25 densest cities in the world.[86]

India needs to articulate a policy that would disincentivise demographic density beyond a limit based on the tripod of economic, environmental, and social sustainability. A sizeable programme at the same time would have to be initiated that incentivises the growth of other cities that possess the potential of standing up as countermagnets to the larger and denser cities for sustainable urbanisation. Unlawful construction becomes more manageable as the load of rural to urban migration and the internal urban growth get absorbed into many more cities. The question of livelihood, largely answered by mainstreaming them in the planning process, would only leave unlawful constructions that are the outcome of greed rather than necessity. Together, plugging the policy gaps, tightening laws, and imparting robustness to governance would enable cities to address unlawful constructions with greater success.

Conclusion

This paper has demonstrated the complexities of the problem of unlawful constructions that take place in Indian cities, aided by relentless urbanisation.  While some categories of constructions are on account of greed and profiteering, there are others that are driven by human need and survival. The former categories have to be dealt with utilising deterrent laws and heavy enforcement; the latter require changes in national, state and city policies that would allow the poor to affordably access space for housing and enterprise. In this, governments may seek partnership with the private sector.

The pivotal role, however, is for the governments themselves to play, in terms of policy, land provision, and financial resources. ULBs need to look into their developmental permission processes that are convoluted and time-consuming, and move these to prompt online approvals. The inspection methodology must embrace the latest technologies such as remote sensing and artificial intelligence. At the same time, densification of cities beyond a point will have to be stopped by steps to decentralise the process of urbanisation.

About the Author

Ramanath Jha is Distinguished Fellow at ORF, Mumbai.

Endnotes

[a] FSI (Floor Space Index) or FAR (Floor Area Ratio) is a measure of how much one can build on a plot of land.  The idea is to use this tool to control building density in an area rather than population density, and can be expressed as the “ratio of total built area on all floors to total plot area”.

[b] A completion certificate is a legal document that is awarded, after the inspection of a building, certifying that it has been constructed according to the approved building plan and that it meets all the prescribed safety standards set by the local development authority or municipal corporation.

[c] Urban development is a state subject under the Constitution of India.

[d] ‘Megacities’ are defined by the UN as cities with population above 10 million. Examples are Tokyo, Delhi, and Mumbai. The Indian Constitution defines ‘Metropolitan Area’ as an area having a population of 10 lakhs. Examples are Surat, Jaipur and Patna.

[1] The Constitution (Seventy-fourth Amendment) Act 1992, Art 243Q (2)

[2] The Indian Census 1901

[3] The Indian Census 2011

[4] Kadambari Shah, Vaidehi Tandel, Harshita Agrawal, “Why India has the fastest-growing cities”, Mint, January 27, 2020, https://www.livemint.com/news/india/why-india-has-the-fastest-growing-cities-11580053066942.html

[5] Shamindra Nath Roy, Kanhu Charan Pradhan, “Predicting the Future of Census Towns”, Economic & Political Weekly, December 15, 2018, https://cprindia.org/sites/default/files/Census%20Towns%20PDF.pdf

[6] Anthony Albanese, “Population growth needs more infrastructure investment”, The Fifth Estate, December 18, 2018, https://thefifthestate.com.au/columns/spinifex/population-growth-need-more-infrastructure-investment/

[7] The Economic Times, “Types of buildings as categorised by government and how infrastructure development can shape India’s future”, June 28, 2019, https://economictimes.indiatimes.com/small-biz/productline/building-materials/types-of-buildings-as-categorised-by-government-and-how-infrastructure-development-can-shape-indias-future/articleshow/69925116.cms

[8] The World Bank, “Master Planning”, https://urban-regeneration.worldbank.org/node/51#:~:text=A%20master%20plan%20is%20a,guide%20future%20growth%20and%20development.&text=A%20master%20plan%20includes%20analysis,community%20facilities%2C%20and%20land%20use.

[9] The World Bank, “Zoning and Land Use Planning”, https://urban-regeneration.worldbank.org/node/39

[10] Merriam Webster, “Euclidean zoning”, https://www.merriam-webster.com/legal/Euclidean%20zoning

[11] University of Delaware, “Mixed-Use Development, Planning for Complete Communities”, https://www.completecommunitiesde.org/planning/landuse/mixed-use-development/

[12] J G Keskar, “The Basics of Town Planning”, All India Institute of Local Self-Government, 1998

[13] Dhruv Mathur, “What are Development Control Regulations?”, 99acres.com, https://www.99acres.com/articles/what-are-development-control-regulations.html

[14] Jyoti Chandiramani, Ramanath Jha, “FSI as a City Planning Instrument”, Perspectives in Urban Development, Symbiosis International University, Capital Publishing Company, 2012

[15] Jyoti Chandiramani, Ramanath Jha, “FSI as a City Planning Instrument”, Perspectives in Urban Development

[16] Town and Country Planning Organisation, Ministry of Urban Development, “Model Building Bye-Laws, 2016, http://mohua.gov.in/upload/uploadfiles/files/MBBL.pdf

[17] Housing.com, “Real estate basics: What is a Completion Certificate?”, https://housing.com/news/real-estate-basics-completion-certificate/#:~:text=A%20completion%20certificate%20is%20a,development%20authority%20or%20municipal%20corporation.

[18] Anirudh Singh Chauhan, “Importance of Occupancy Certificate and Completion Certificate”, 99 acres.com, https://www.99acres.com/articles/importance-of-an-occupancy-certificate-oc-and-completion-certificate-cc.html

[19] National Building Code of India, Bureau of Indian Standards, http://mptownplan.nic.in/act%20&%20Rules/NationalBuilding%20Code%20Part-IV%20(Fire%20Safety).pdf

[20] Urban And Regional Development Plans Formulation and Implementation Guidelines (January 2015), Government of India, Ministry of Urban Development, Town and Country Planning Organisation, http://mohua.gov.in/upload/uploadfiles/files/URDPFI%20Guidelines%20Vol%20I.pdf

[21] National Building Code, https://india.ul.com/download-resources/national-building-code/#:~:text=The%20National%20Building%20Code%20of,construction%20activities%20across%20the%20country.

[22] National Institute if Urban Affairs, “Urban and Regional Development Plans Formulation and Implementation (UDRPFI) Guidelines”, Ministry of Urban Development, Government of India, https://smartnet.niua.org/content/d19f4f87-aaa1-4e9a-9651-534cb28ddd3c#:~:text=Urban%20and%20Regional%20Development%20Plans%20Formulation%20and%20Implemntation%20process.

[23] Md. Jahangir Alam, “Rapid urbanization and changing land values in mega cities: implications for housing development projects in Dhaka, Bangladesh”, Bandung: Journal of the Global South, April 17, 2018, https://bandungjournal.springeropen.com/articles/10.1186/s40728-018-0046-0

[24] Shiv Sunny, “Delhi’s record of 150 deaths due to fires in 2019 is city’s highest toll in five years”, Hindustan Times, October 3, 2020, https://www.hindustantimes.com/delhi-news/delhi-s-record-of-150-deaths-due-to-fires-in-2019-is-city-s-highest-toll-in-five-years/story-wsPwK1IpV6Ss1p9Fs5gesN.html

[25] Nidhi Adlakha, “The Politics of construction: on violating building bylaws and land use rules”, The Hindu, January 31, 2020, https://www.thehindu.com/opinion/columns/on-violating-building-bylaws-and-land-use-rules/article30701658.ece

[26] Nidhi Adlakha, “The Politics of construction: on violating building bylaws and land use rules”

[27] Nidhi Adlakha, “The Politics of construction: on violating building bylaws and land use rules”

[28] The Free Press Journal, “Illegal bungalows in Alibaug: HC asks Collector to demolish 24 structures, November 12, 2019, https://www.freepressjournal.in/mumbai/illegal-bungalows-in-alibaug-hc-asks-collector-to-demolish-24-structures

[29] India Today, “Mumbra building collapse: Deputy Municipal Commissioner arrested”, April 25, 2013, https://www.indiatoday.in/india/west/story/mumbra-building-collapse-deputy-municipal-commissioner-arrested-159992-2013-04-25

[30] India TV, “Thane building collapse: two more arrested”, April 9, 2013, https://www.indiatvnews.com/news/india/thane-building-collapse-two-more-arrested-21671.html

[31] Times of India, “Maharashtra: 16 killed in Bhiwandi building collapse; 21 injured”, September 21, 2020, https://timesofindia.indiatimes.com/city/thane/maharashtra-12-killed-in-bhiwandi-building-collapse-20-rescued/articleshow/78226206.cms

[32] The Hindu, “Bhiwandi building collapse: death toll rises to 20”, September 22, 2020, https://www.thehindu.com/news/cities/mumbai/bhiwandi-building-collapse-toll-update/article32665396.ece

[33]Divyansh S Rathi, “SC-Appointed Monitoring Committee on illegal Construction in Delhi: Has it outlived its purpose?”, Latest Laws.com, April 6, 2020, https://www.latestlaws.com/articles/sc-appointed-monitoring-committee-on-illegal-construction-in-delhi-has-it-outlived-its-purpose-by-divyansh-h-rathi/

[34] Divyansh S Rathi, “SC-Appointed Monitoring Committee on illegal Construction in Delhi: Has it outlived its purpose?”

[35] Divyansh S Rathi, “SC-Appointed Monitoring Committee on illegal Construction in Delhi: Has it outlived its purpose?”

[36] Divyansh S Rathi, “SC-Appointed Monitoring Committee on illegal Construction in Delhi: Has it outlived its purpose?”

[37] The National Capital Territory of Delhi Laws (Special Provisions) Second Amendment Bill, 2021, https://prsindia.org/billtrack/the-national-capital-territory-of-delhi-laws-special-provisions-second-amendment-bill-2021

[38] The Hindu, “Government brings Bill to replace Ordinance facilitating regularization of unauthorised colonies in Delhi”, February 8, 2021, https://www.thehindu.com/news/cities/Delhi/government-brings-bill-to-replace-ordinance-facilitating-regularisation-of-unauthorised-colonies-in-delhi/article33782873.ece

[39] Vivek Deshpande, “Bhandara hospital fire: Probe panel says short-circuit cause of fire, blames officials”, The Indian Express, May 19, 2021, https://indianexpress.com/article/india/bhandara-hospital-fire-probe-panel-says-short-circuit-cause-of-fire-blames-officials-7153486/

[40] Tabassum Barnagarwala, ”Bhandara hospital fire: Probe votes for engineers over PWD for hospitals’ upkeep”, January 21, 2021, https://indianexpress.com/article/cities/mumbai/bhandara-hospital-fire-probe-votes-for-engineers-over-pwd-for-hospitals-upkeep-7155130/

[41] India Today, “Kolkata flyer collapse: 21 dead, 85 injured says Mamata Banerjee”, March 31, 2018, https://www.indiatoday.in/india/story/under-construction-bridge-collapses-in-north-kolkata-many-feared-dead-315627-2016-03-31

[42] Michael Safi, “Kolkata bridge collapse kills one man and leaves dozens injured”, The Guardian, September 4, 2018, https://www.theguardian.com/world/2018/sep/04/kolkata-bridge-collapse-leaves-dozens-injured

[43] Financial Express, “Kolkata Flyover Collapse: IIT report reveals reasons”, August 11, 2016, https://www.financialexpress.com/india-news/kolkata-flyover-collapse-iit-report-reveals-reasons/344174/

[44] The Times of India, “6 killed in Mumbai bridge collapse, cops book BMC and railway officials for negligence”, March 15, 2019, https://timesofindia.indiatimes.com/city/mumbai/6-killed-in-mumbai-bridge-collapse-cops-book-bmc-and-railway-officials-for-negligence/articleshow/68418054.cms

[45] Sumitra Debroy, “Andheri bridge collapse: One more person succumbs to injuries”, The Times of India, July 29, 2018, https://timesofindia.indiatimes.com/city/mumbai/mumbais-andheri-bridge-collapse-claims-second-life/articleshow/65189919.cms

[46] Kangkan Acharyya, “Delhi’s illegal constructions: Criminal provisions are badly needed to curb menace, AAP’s silence is surprising”, Firstpost, January 18, 2018, https://www.firstpost.com/india/delhis-illegal-constructions-criminal-provisions-are-badly-needed-to-curb-menace-aaps-silence-is-surprising-4308543.html

[47] Kangkan Acharyya, “Delhi’s illegal constructions: Criminal provisions are badly needed to curb menace, AAP’s silence is surprising”

[48] Mica Jovanovic, “Environmental Impactof Illegal Cnsructon, Poor Planning and Design in Western Balkans”, Global Journal of Engineering Sciences, November 6, 2019, https://irispublishers.com/gjes/fulltext/environmental-impact-of-illegal-construction-poor-planning-and-design-in-western-balkans.ID.000572.php

[49] Ramanath Jha, “Extreme Heat Events in India’s Cities: A Framework for Adaptive Action Plans”, January 22, 2021, https://www.orfonline.org/research/extreme-heat-events-in-indias-cities/

[50] The New Indian Express, “HC orders removal of illegal constructions on streets, footpaths”, August 7, 2020, https://www.newindianexpress.com/cities/kochi/2020/aug/07/hc-orders-removal-of-illegal-constructions-on-streets-footpaths-2180144.html

[51] Numerical, “Illegal construction in the floodplains of Hindon River”, September 2018, https://numerical.co.in/numerons/collection/5ee95698d015c4e80e6c05b2

[52] Priyanka Sahoo, “Maharashtra: Mangrove cell removes 450 illegal establishments on salt pan lands”, Hindustan Times, February 10, 2021, https://www.hindustantimes.com/cities/mumbai-news/maharashtra-mangrove-cell-removes-450-illegal-establishments-on-salt-pan-lands-101612931941280.html

[53] India Environmental Portal, “Mumbai marooned: An Enquiry into Mumbai Floods 2005”, 2005, http://www.indiaenvironmentportal.org.in/files/Mumbai-Marooned.pdf

[54] Ramanath Jha, “Mumbai’s annual tryst with deluge”, ORF Expert Speak, July 12, 2019, https://www.orfonline.org/expert-speak/mumbais-annual-tryst-deluge-52983/

[55] Alok Gupta, “Patna deluge was not caused by climate change alone. Government ineptness was also to blame”, Scroll.in, October 10, 2019, https://scroll.in/article/939798/patna-deluge-wasnt-caused-by-climate-change-alone-government-ineptness-was-to-blame-as-well

[56] Rahul V Pisharody, “Explained: why the 2,800 lakes in Hyderabad could not prevent a flood this year”, The Indian Express, October 28, 2020, https://indianexpress.com/article/explained/explained-hyderabad-floods-2020-lakes-6821184/

[57] Mid.day, “UlhasnagarMunicipal Corporation joint commissioner gets beaten up”, November 21, 2018, https://www.mid-day.com/mumbai/mumbai-news/article/Mumbai-GLC-confessions-page-removed-after-principal-warns-of-action-19993168?infinite-scroll=1

[58] The Delhi Development Act, 1957, https://legislative.gov.in/sites/default/files/A1957-61.pdf

[59] The Delhi Municipal Corporation Act 1957, https://www.mha.gov.in/sites/default/files/DMC-Act-1957_0.pdf

[60] The Maharashtra Regional and Town Planning Act 1966, https://mmrda.maharashtra.gov.in/documents/10180/6868243/MRTP+act+1966+Modified+upto+26+th+nov+2015.pdf/d87e0cb2-1674-406a-af50-87e36471509d?version=1.0

[61] The Mumbai Municipal Corporation Act, 1988, http://www.bareactslive.com/MAH/MH167.HTM

[62] The Bombay Provincial Municipal Corporation Act, 1949, http://www.bareactslive.com/Guj/GUJ159.HTM

[63] S Nangnure, “Mitigating Unauthorized Development through Planning Interventions – Legal Framework”, November 8, 2020, https://www.youtube.com/results?search_query=Mitigating+Unauthorised+Development+through+Planning+Intervention

[64] UN-Habitat, “The Challenge of slums: Global Report on Human Settlements 2013”, https://www.un.org/ruleoflaw/files/Challenge%20of%20Slums.pdf

[65] Institute of Town Planners India, “Mitigating Unauthorised Development through Planning Intervention”, November 8, 2020

[66] J G Keskar, “The Basics of Town Planning”, All India Institute of Local Self-Government, 1998

[67] Institute of Town Planners India, “Mitigating Unauthorised Development through Planning Intervention”, November 8, 2020

[68] ONmanorama, “CRZ violation: 1,800 structures across Kerala face demolition”, September 25, 2019, https://www.onmanorama.com/news/kerala/2019/09/25/maradu-flat-demolition-power-water-gas-suppy-to-be-cut-off.html

[69] N. Khalili Moghadam, M. R. Delavar and P. Hanachee, “Automatic Urban illegal Building Detection Using Multi-Temporal Satellite Images And Geospatial Information Systems”, School of Surveying and Geospatial Eng., College of Engineering, University of Tehran, 23-25 November, 2015, https://d-nb.info/1143760239/34

[70] Mohammed Iqbal, “Remote sensing technology to check illegal constructions”, The Hindu, May 21, 2015, https://www.thehindu.com/news/cities/Delhi/remote-sensing-technology-to-check-illegal-constructions/article7229373.ece

[71] Kangkan Acharyya, “Delhi’s illegal constructions: Criminal provisions are badly needed to curb menace, AAP’s silence is surprising”

[72] Ministry of Housing and Urban Development, Government of India, “National Urban Rental Housing Policy (Draft), October 2015, http://mohua.gov.in/upload/uploadfiles/files/National_Urban_Rental_Housing_Policy_Draft_2015.pdf

[73] Ministry of Housing and Urban Development, Government of India, “The Draft Model Tenancy Act”, http://mohua.gov.in/cms/TheDraftModalTenancyAct.php#:~:text=The%20Draft%20Model%20Tenancy%20Act&text

[74] Pradhan Mantri Aawas Yojana (Urban), Ministry of Housing and Urban Affairs, 2015, https://pmaymis.gov.in/

[75] S Nangnure, “Mitigating Unauthorized Development through Planning Interventions – Legal Framework”

[76] S Nangnure, “Mitigating Unauthorized Development through Planning Interventions – Legal Framework”

[77] HUDCO, “Building Technology”, https://hudco.org//Site/FormTemplete/frmTemp1PLargeTC1C_P.aspx?MnId=47&ParentID=23

[78] The Hindu, “HUDCO to fund low-cost housing, infra projects”, January 21, 2016, https://www.thehindu.com/business/Industry/hudco-to-fund-lowcost-housing-infra-projects/article4290812.ece

[79] Muskan Gupta, “Street Shopping in India in 2021: 12 Places to Satisfy the Penny Pincher Inside!”, Travel Triangle, https://traveltriangle.com/blog/street-shopping-in-india/

[80] The Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014, https://legislative.gov.in/sites/default/files/A2014-7.pdf

[81] The Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014, Chapter VI

[82] Deden Rukmana, “Urban Planning and the Informal Sector in Developing Countries”, Planetizen, May 7, 2007, https://www.planetizen.com/node/24329

[83] Urban Futures, “Demographic planning for cities”, 8 September 2020, https://www.orfonline.org/expert-speak/demographic-planning-cities/

[84] Joey Gardiner, “How can we live like this? The Limits of Urban Density”, The Possible, July 2017, https://www.the-possible.com/living-hyperdensity-solution-growing-population/

[85] Edward L. Glaeser, “Demand for Density?:The Functions of the City in the 21st Century”, Brookings, June 1, 2000, https://www.brookings.edu/articles/demand-for-density-the-functions-of-the-city-in-the-21st-century/

[86] Elzy Kolb, “75,000 people per square mile? These are the most densely populated cities in the world”, USA Today, July 11, 2019,  https://www.usatoday.com/story/news/world/2019/07/11/the-50-most-densely-populated-cities-in-the-world/39664259/.

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Ramanath Jha

Ramanath Jha

Dr. Ramanath Jha is Distinguished Fellow at Observer Research Foundation, Mumbai. He works on urbanisation — urban sustainability, urban governance and urban planning. Dr. Jha belongs ...

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