Is the CRDA legal-part 2

1. Caesar’s wife should be above suspicion:

To buttress the said arguments further (again under the provisions of the CRDA Act,2014)- Section 110: Use of development of land and buildings to be in conformity with plans of the Authority:

“After the coming into operation of the perspective Plan or Master Plan or infrastructure Plan or land pooling scheme or town planning scheme or any area development plan in an area, formulated under the provisions of this Act, no person or body shall use or permitted to use any land or carry out any development in that area unless the development is in conformity with such plans.”

Under the CRDA Act,2014, Section 152 refers to the Transitional Provisions which has been detailed out in the Fifth Schedule of the Act, viz., 5(2)- “Any Zonal Development plan prepared under the Andhra Pradesh Urban Areas (Development) Act,1975 for the total or part of the capital region and published by the Local Body or Urban Development Authority concerned and sanctioned by the Government before the commencement of the Act, shall continue to be in force unless prepared afresh and superseded or revised under the Act.”

The Zonal Development Plan for Tullur Zone was prepared and approved by the Government in 2008 duly following the process under the AP Urban Areas (Dev.) Act,1975. It is therefore, covered under the above Schedule of CRDA Act,2014. The area is predominantly earmarked as Agriculture use Zone and Conservation Use Zone respectively So how can the CRDA or Government violate this statutory Plan in force, unless it has made necessary modifications or effected Change of land use from Agriculture use to Residential Use? No such modification to the Zonal development Plans or Change of land use appears to have been effected by the Government

2. GOVERNMENT LAND POOLING SCHEME ARE VIOLATIVE OF STATUTORY DEVELOPEMNT

PLAN: Thus, the whole exercise and the action being taken by the CRDA and the State Government are volatile of the said Zonal Development Plans which are in force. Thus, the CRDA and State Government are therefore illegal and putting a curb on the agriculturists who want to lawfully undertake agriculture activities in their sites.

3. The CRDA Act,2014 enacted by the state Government of Andhra Pradesh in December,2014 is violative of the Constitution of India and is liable to be challenged in the Court of law, viz on the following legal grounds:

(a) CRDA Act violates the Food Security Act and the new Land Acquisition Act,2013: The location and siting of the new capital of A P as discerned from the CRDA Act under Section 2 (17) and subsequent Notifications issued by the Government are contrary and violates the provisions of the National Food Security Act,2014, which prohibits fertile agriculture areas being converted for non-agriculture purposes.

The area declared and notified for the capital city and Capital Region consists predominantly of very fertile agriculture lands.Likewise, the Right to Fair Compensation & Transparency in Land Acquisition ,R & R Act,2013 prohibits acquisition of fertile agriculture lands for development purposes like city, townships developments, etc. The provisions of the CRDA Act ,2014 and notifications are violative of the above-mentioned two Central legislations.

(b) CRDA Act,2014 cannot override the Central Act: Nowhere in the said CRDA Act,2014 provisions for seeking prior approval from the Environmental Clearance Authority is mentioned, neither for the Master Plans, Development Plans, Land Pooling Schemes, etc which are nothing but large scale development projects within the meaning of the provisions of the said Environment Protection Act,1986. The areas where the proposed New Capital is being located consist of predominantly fertile agriculture lands.

This would be violative of the Environment Protection Act,1986 provisions which mandates prior approval for any such intended development of vast areas of fertile agriculture lands for the capital which is ecologically destructive and dangerous. On the other hand, Section 155 (1) and 155 (4) of the CRDA Act gives overriding powers to the Authority including exemption from seeking approval from the Environmental Protection Act, which is a central legislation and environment being in the Central List, a State legislation cannot override the provisions of a Central List.

(c ) Hon’ble Orissa High Court Bench has questioned and quashed the locus standii of Development Authorities: The CRDA Act,2014 is draconian, authoritarian and against the Constitution of India provisions which does not recognize such Development Authority as legal entities after the Constitution Amendment Act,1992 came into force.

The CRDA Act, 2014 and the Capital Region Development Authority constituted under the said Act usurps the powers of the local bodies existing in the area and are functioning in the so-called Capital Region, and vesting it with the Development Authority which was questioned in the Orissa High Court in WP No. 22357 of 2011 and the High Court Bench vide its Judgment dated 27-3-2012 has quashed the status of the Development Authorities, their powers to undertake planning, giving development permissions and undertaking enforcement.

A Petition from that State Government is pending in the Supreme Court (Supreme Court Appeal No. 26071 of 2012 (Special Leave to Appeal) and the Hon’ble Supreme Court has not reversed the judgment. Simply put, planning is not the prerogative of parastatals like the Development Authority, but obligatory function of the local bodies or a Metropolitan Planning Committee under the Constitutional Amendment Act,1992. Therefore all such State legislations that empower parastatals like the CRDA are ultra vires of the Constitution of India.

(d) CRDA Act is not people’s representative and democratic and violative of the 73rd and 74th Constitutional Amendment Act,1992:

The Composition of the Authority under Section 4 (2) or for that matter, the Executive Committee under Section 6 of the CRDA Act does not have public representation nor representation from the local bodies (save for Chief Minister and the Minister for Municipal Administration- but they are more of government functionaries rather than public representatives of the Capital Region) .Therefore how can such an Authority plan, develop and regulate developments is questionable since local bodies which are democratically elected outfits are existing in the area and they are the rightful legal entities for undertaking the planning and development of the areas .

(e) CRDA usurping powers of local bodies: Besides the above mentioned powers of local bodies being usurped by the CRDA under the impugned Act, Section 3 (5) of the CRDA Act is contrary to the 73rd and 74th Constitutional Amendment Act,1992 Again in Section 135 of the CRDA Act confers ‘overriding powers over all local body laws or any other law. The intent and content of the CRDA Act is derogatory to the local body laws and more particularly, the A.P. District Planning Committee Act,2007, A.P.

Metropolitan Planning Committee Act,2007 and the 73rd and 74th Constitutional Amendment Act which have conferred constitutional status to the local bodies and has a Schedule in the Constitution which includes undertaking planning and development as their obligatory functions. Thus, the CRDA Act is unconstitutional since it nowhere involves the local bodies in the Planning and development, and instead it takes this function upon itself including the approval of the Master Plans, development plans, area development plans.

(f) CRDA cannot exercise powers of taxation: Section 26 of the CRDA Act,2014 deals with Power of taxation by the Authority – this again goes against the spirit of local self-governance and the power to levy taxes is the power of the local body and a non representative body like the Development Authority cannot exercise this power of taxation.

(g) CRDA cannot exercise urban transport powers: The Chapter VI on Unified Transport Authority is violative of Schedule XII of the Constitution of India. The matters of urban transportation is vested with the local bodies and in the Chapter there is no involvement of the local bodies. The Development Authority takes upon the this function upon itself which is unconstitutional.

(h) CRDA cannot undertake preparation of Capital Development Plans which is violative of Schedule XII of the Constitution: Similarly, the Chapter VII dealing with the Planning Process for the Capital region is violative of Schedule XII of the Constitution since the power of planning and preparation of plans is vested with the local bodies and the Metropolitan Planning Committee and not the Development Authority.

(i) CRDA cannot approve the statutory development plans for the area at its level: Section 39 of the CRDA Ac,2014 is absurd and against the planning process. Even supposing that the Development Authority is required to undertake the preparation of the various plans which have legal and financial connotations and implications – and as per this Section 39, the approving/sanctioning authority for all the plans is again the same Authority, whereas in the A P DPC Act,2007 and MPC Act,2007 it is the Government.

Thus there is not only a conflict with the above-mentioned two laws(mandated by the Constitution) in force, but also in the spirit and purpose of planning and preparing plans under the Constitution . The Development Authority is given both preparation and sanctioning powers of the various plans and also power to undertake modifications to the plans/change of land use powers which it can misuse or abuse since there is nobody to question it and being the final authority.

(j) CRDA cannot approve the plans of the local bodies: Section 40 (2) of the CRDA Act is again contrary to the 73rdand 74th Constitution Amendment law and violative of the Constitution which mandates the local body, the District Planning Committee and Metropolitan Planning Committee to consolidate all the plans to be prepared by the local bodies and submit the plans to the Government for approval. Instead, the CRDA Act,2014 wants to bypass this democratic planning process and it confers super powers to the Development Authority to sanction the plans prepared by the local body. This is against the Constitution of India.

(k) CRDA cannot undertake development schemes or land pooling schemes on its own: The CRDA Act,2014 is a bundle of contradictions , inconsistencies, and violates of the Indian Constitution provisions. On one hand the Act under Section 42 (3) mandates the local bodies for implementation of the plans (prepared and approved by the Development Authority).This includes development schemes (as per definition in Section 2 (15) of the CRDA Act which states development scheme is part and parcel of implementation of the development plan, while on the other hand it says the development schemes shall be implemented by itself under Section 43.

(l) Under the CRDA Act, the Authority/Government cannot take away lands of land owners and use it: Section 45 (1) dealing with content of the Land pooling Scheme is contradictory with the definition under Section 2(12) definition of ‘Land Pooling Scheme’. As per this definition there is no mention that the Authority or the development entity be allotted the extent of land out of the land pooling scheme in lieu of costs incurred in development of infrastructure, approval, preparation and implementation. It only says it has to set aside such area. Therefore the Government or for that mater the CRDA cannot take and use such lands. With this provisions, the whole Land Pooling exercise goes for a toss. This provisions is like the ‘Shylockian dilemma’ in Shakespeare’s Merchant of Venice!, viz., Portia’s argument that you can have your pound of flesh, but in the process not a drop of blood should fall…!

(m) Land owners have no say in relocation of developed land given to them: Section 54, 55 (2),and 56 (2) of the CRDA Act are contradictory with Section 52 and 2 (22) of the said Act. It gives the meaning and power to the Competent Authority (i.e. the Commissioner) to enforce the Land Pooling Schemes. Development Schemes (which include both Land Pooling Schemes and Town Planning Schemes) provisions in the CRDA Act, to say the least are draconian and authoritarian. The Commissioner identifies the area for land Pooling scheme, prepares the draft Land pooling Scheme and the owners have no final say in the relocation of the final reconstituted plots and the land taken away by the Development Authority or the developer entity.

(n) Who approves the Final Land Pooling Scheme under the CRDA Act? This is further corroborated by the fact that there is no provision in the Act as to who approves the Final land Pooling Scheme! It presumes and allows the Commissioner to notify the Final Land Pooling Scheme (without approval or sanction from anybody) and go ahead in implementation of the Scheme – which under Section 42(3) of the CRDA Act mandates the local body to do, which is therefore conflicting and contradictory.

This is bad in law. Again on the other hand, a very elaborate procedure and process is set in the Act w.r.t. Town Planning Scheme wherein starting from notification of the intent, preparation of draft Scheme to approval of the Final Scheme, sanction from the Government is mandatory, whereas the various development plans and Master Plans of which the town planning scheme is an essential part, do not require approval of the Government ! This is again bad in law.

(o) CRDA Act draconian in taking away a portion of developed land from owners: The provisions under Section 45 (1) of the Act, viz., allotting land to the Development Authority or development entity (which is over and above the mandatory areas for open spaces, roads, amenities and land for weaker sections, and land for Master plan capitalization works is authoritarian and does not exist in any such similar planning law in the country (example – HMDA Act,2008 w.r.t. land Pooling Scheme; the Gujarat Urban and town planning Act,1976 or the Maharashtra Regional & Town Planning Act,1966-dealing with Town Planning Schemes).Hence it is a losing proposing for the owner who is at the mercy of the Commissioner and is given only a small pittance as against the said provisions of other laws mentioned. This is bad in law.

(p) Land Pooling Scheme provisions a double whammy for the land owners: The Government is simply fooling the land owners! The Authority wants to inflict a double whammy on the owners- on one hand, taking away land from the owners in the Scheme and on the other hand, levying and collection of charges for development works and amenities, which is unjust. Similarly the Section of levying user charges, impact fees by the CRDA are unjustified.

(q) CRDA cannot exercise development control or give development/building permissions: Section 110 dealing with ‘Application to the Authority for permission’ is in contradiction with the 73rd and 74th Constitutional Amendment Act and Constitution, Schedule XII of the Constitution, and also Section 42 (3) –whereby the powers in Schedule XII, vest with the local bodies and not the Authority. Therefore the Authority cannot exercise this power of giving permissions as well as enforcement. But what is happening? The CRDA has an army of more than 300 staff and Officers deployed exclusively for this purpose, while the local bodies are being marginalized!

(r) CRDA Act cannot usurp enforcement powers of local bodies: Again the provisions and powers under Section 114, 115 vest with the local bodies and not the Authority, as per the functions of the local bodies under Schedule XII of the Constitution. Similarly, the regulation of building activity vest with the local bodies in its respective jurisdiction, and therefore the Section on Building Tribunal on the actions of the Commissioner is ulta vires since as mentioned above, it vests with the local body. Similarly, section 142 is ultra vires, while Section 143, dealing with ‘Compounding of offences’ cannot be exercised by the Authority, which is the power of the local body that gives permission in its jurisdiction and since the Authority as stated above, can neither give permissions nor take up enforcement action.

(s) Status of VGTMUDA and existing Plans unclear: The 4th Schedule under the CRDA Act are violative of the provisions of Section 61 of the A P Urban Areas (Development) Act,1975 indicates the authoritarian intent of the Authority/Government - whereby due process in this regard has to be followed by the Government under the said A P Urban Areas (Development) Act,1975. The CRDA Act cannot presume/presuppose the VGTMUDA as ‘former authority’-even before dissolving the said VGTMUDA under the said Urban Areas Act.

(t) Power to levy fees and charges vest with local bodies only: The financial powers (to levy various fees and charges) under Section 119 to 123 is to be done by the respective local body within its jurisdiction and cannot be done or given to the Authority.

(u) Contrary provisions of Transferable Development rights in the CRDA Act: The provisions on ‘Transferable Development Rights’ (TDR) under Section 129 of the CRDA Act(which provides for taking the relative land value as per Registration Department records) are contradictory with the method of computation specified in Section 2 (41) of the Act (which provides for taking into consideration the Floor Space Index (FSI) of the plot or site)

(v) CRDA Act cannot override local body laws: Section 135 (4) (a) and (b) of the CRDA Act are violative of the provisions of Constitution of India which empowers the local body to do so. As inference this overriding powers vested with the Authority is ultra vires.

(w) CRDA cannot exercise peripheral control: Again Section 148 , viz., ‘peripheral area control by the Authority’ is bad in law in view of the Indian Constitution provisions and tantamount to taking away the power of the local bodies in the peripheral area and therefore ultra vires.

(x) CRDA Act violative of the Central Registration Act: Section 51 (viz. Registration Act,1908 exemption from payment of the registration charges is violative of the said Central Act since this construes loss to the public exchequer and therefore ultra vires.

(y) CRDA Act is violative of the Central RTI Act: Section 150 of the CRDA Act is violative of the Central Act (viz. Right to Information Act,2006) The Authority and all its dealings, actions, acts, etc come under the purview of the RTI Act. The plans prepared and notified are public documents and there cannot be intellectual property rights over these and the said Section 150 is therefore ultra vires.

(z) CRDA/Government cannot violate the Statutory Plans: Although the VGTM UDA has been dissolved, yet the Statutory Master Plan and the Zonal Development Plans continue to be in force. As the ZDP for Tullur Zone, the area of Tullur (V) is earmarked as Agriculture Use Zone, i.e., where in no residential activities or any such development activities are permissible as per the zoning regulations. Therefore the exercise being undertaken by the State Government is violative of the statutory Development Plans in force. The Land Pooling Scheme undertaken by the Government is therefore in violation of this Statutory Plan, and therefore should be quashed as illegal- since the Act does not permit any LPS that is contrary to the statutory plan.

Thus the said CRDA Act,2014 is ultra vires of the Constitution of India and against the functioning of the local bodies in the said Capital Region and liable to be quashed. But the environment is so surcharged that the Government and the polity are in no mood to listen to rationalities and reasons- with the result, the Government and the political party in power may have to pay a heavy price for their stubbornness and foolishness.

- Architect A.B.Reddy