Chapter 5State Level Legal Framework – Comparative Analysis

5.1 Overview

Urban and regional planning legislation controls the planning and development activity in a State. Some states have comprehensive Town and Country Planning legislation which provides for urban planning and development from a regional perspective beyond the city limits and coordinated with the overall framework of economic development, priorities and resource availability. Some of these states are Goa, Gujarat, Himachal Pradesh, Karnataka, Kerala, Nagaland, Orissa, Punjab, Rajasthan, Tripura and Uttar Pradesh.

Town and Country Planning Organisation (TCPO) with the direction from MoUD conducted brainstorming session throughout the country during 2008 to 2010. Further, during the formulation of URDPFI Guidelines, various workshops were conducted in both the studies to share knowledge on urban development practices and development policies / strategies of respective States and recommendations / advice were provided to all the States. TCPO has analysed the status of T&C planning Acts of the States. An overview of the States in terms of implementation of T&C Planning Acts in their jurisdiction is given in table no.5.1. This table has been updated as per the latest information available as on 31st July 2013 from TCPO with respect to the cities who have prepared Statutory Master Plans.

Tabl e 5 . 1 : Com parison of Town and Cou ntry Pl an n i n g Acts & i m pl ementation across N ation

Tabl e 5 . 1 : Com parison of Town and Cou ntry Pl an n i n g Acts & i m pl ementation across N ation

Tabl e 5 . 1 : Com parison of Town and Cou ntry Pl an n i n g Acts & i m pl ementation across N ation

Tabl e 5 . 1 : Com parison of Town and Cou ntry Pl an n i n g Acts & i m pl ementation across N ation

Tabl e 5 . 1 : Com parison of Town and Cou ntry Pl an n i n g Acts & i m pl ementation across N ation

Sou rce: TCPO , MoU D 20 1 1

As reflected i n tab leabove , barri ng U T of La ksh adwee p , a l l States a nd U Ts of I nd ia have Town a nd Co u ntry Pla n n i ng Acts an d Departm ents . I t has bee n noti ced that al l th e n ew States i n cl u d i ng Ch h attisga rh , J harkhan d a n d Uttarakh and have thei r own Town and Cou ntry Pl a n n i n g Acts . H owever, th ese Acts are same as en acted by th ei r orig i na l State fro m where th ey were b ifu rcated .

Th e re are few States wh ich h ave en acted or are i n process to en act n ew laws with res pect to U rban Deve lop me nt an d Town Pl an n i n g . B i h ar h as en acted B i h ar U rban Pl an n i ng a nd Development Act, 20 1 2 .

Based o n the u n d ersta nd i n g from exi sti ng U D P F I g u id e l i n es , it is essenti al to ide ntify g aps an d best practices wh ich are ad opted by States with respect to U rban an d Reg io nal Deve lo pme nt . Com pariso n of som e of the States as case stud ies has been u n dertaken for th e revi ew T&C P Acts of co u ntry. Th e States h ave been chose n i n su ch a ma n ne r so that it covers a l m ost al l the reg i on , i . e . N orth , West, So uth a nd East, of th e co u ntry. M o reover, for revi ew p u rpose , vari ou s pa ram eters s uch as Reg i on al Develo pm ent, Lan d Acq u isitio n M ech an is m , affi rmation with 74th CAA, i nstituti on a l setu ps a re con sidered . Th ese States are :

N orth : H i macha l Pradesh

South : Tam i l N ad u a nd Ka rnataka

East : Bi har a nd M izora m

West: M a h arashtra and G uja rat

Tabl e 5 . 2 : Com parison of Town and Cou ntry Pl an n i n g Acts of seven States

3 1

Sou rce : Respective Acts

Various criteria are identified for making the comparisons ofT&CP Act of the States. It has been observed in the table above that there is no provision of constituting State level Planning Board or Committee in the States of Gujarat and Maharashtra. But in Bihar, the recently enacted Urban Planning and Development Act in 2012 gives provision to constitute Urban Planning and Development Board at State level. This Act also recommends constituting the Urban Arts and Heritage Commission in order to (a) preserve and conserve archaeological and historical sites, (b) restore and conserve urban design in planning area. Karnataka and Himachal Pradesh have provision of constituting the State Level Planning Boards; however functions of these boards are not specified in their respective T&CP Acts.

The State may notify Planning Area in consultation with Planning Boards. However, in many States such as Karnataka, Himachal Pradesh, Maharashtra and Gujarat, the State Government without any consultation with the Planning Boards can notify Planning or Development Area for the region. Tamil Nadu is the only State which elaborates the criteria for delineating the Planning Boundary whereas other States have not considered any such criteria in their respectiveActs.

The role of Planning Board is significant forconstituting the Planning Authorities for Notified Planning Area. It has been observed that every State has its own hierarchy for constituting Planning authorities / Committees for the planning area. States ofTamil Nadu and Maharashtra have a provision to constitute the Regional Planning Authority, whereas in Gujarat, Area Development Authority and Urban Development Authorityare to be constituted for development of settlements. Though, the extent of Development Area is not defined in the Gujarat TP&UD Act which may create confusion in deciding the region’s boundary. The constitution of District Planning Committee (DPC) is almost left by every State except Mizoram. The Mizoram Urban and Regional Development Act, makes mandatory to constitute DPC and City or Town Planning Committee in accordance with 74^th CAA, however function and power of DPC are not specified. Mizoram Urban and Regional Development Act, have provision for constituting Local Authorities such as Village Councils and Municipalities to participate in planning process.

On the same line, Tamil Nadu, Karnataka and Maharashtra have also made a provision with respect to constitution of Metropolitan Development Authority.However this provision is limited to Chennai, Bangalore and Mumbai. All other Metropolitan cities in these States such as Pune, Nagpur and Mangalore etcetera have been ignored. It has been noticed that States such as Maharashtra and Himachal Pradesh have special provision to constitute Special Area Development/Planning Authority in order to develop Notified Area.

In order to prepare Plans at different levels, most of the States have provision for Development Plan or Master Plan which is to be developed for Notified Planning Area, whereas Tamil Nadu and Maharashtra have specific provision to formulate Regional Plans in identified region.

Town Planning or Development scheme is an important tool to develop land; every State has made provision to develop Planning/Development Scheme. Land acquisition is an important aspect for implementation of plans. States empowers Planning Authorities through T&CP Acts to acquire land, however mechanism for land acquisition vary amongst States. In every State, land acquisition is mentioned to be either as per Land Acquisition Act, 1894 or through agreement with the owner. Maharashtra and

Bihar have additional mechanism i.e. Town Planning Schemes and Transfer of Development Right to acquire land for development purposes.

In Maharashtra, Town Planning is a statutory function of all the Municipal Authorities even before the Constitution (74th) Amendment Act. In view of this, no separate provision was considered necessary by the State Government to amend the 1966 Act. This Act,amended up to 5th August 1992 was considered a comprehensive Act. The Act provided that the Development Plan prepared by Planning Authority shall indicate the manner of land use, allocation of land for various purposes, and prescribe the time period for steps in the plan preparation process with extended time if required.

The Maharashtra Regional and Town Planning (MRTP) Act has given emphasis on Regional Planning. It enables State Government to constitute Regional Planning Boards to prepare Regional Plans. The Act, however, does not have any provision to constitute MPC or DPC, thus it is not entirely compliant with 74^th CAA. It is, Bombay Metropolitan Region Development Authority Act which makes it mandatory to constitute MPC and elaborated the procedure to be followed by MPC in order to prepare Development Plans for Metropolitan Area.

The Special Planning Authority to be constituted by the States for certain Notified Areas. The Special Planning Authorities will have all the powers of a Planning Authority to acquire land for special purpose in Notified Areas. In Maharashtra, there is a special provision to constitute New Town Development Authority for the purpose of acquiring, developing and disposing of land in the area of a new town.

For implementation of the plan, compulsory acquisition of land is regarded as a pre-requisite under the Land Acquisition Act, 1984. In view of the exorbitant market rates of land to be paid for compensation, opposition to compulsory land acquisition by land owners, etcetera has compelled the authorities to explore collaborative approaches within the existing legal framework. As a result, the alternatives to compulsory land acquisition in the form of Transferable Development Rights (TDR) and Accommodation Reservation have been explored in Maharashtra.

However, in both these cases i.e. Accommodation Reservation and TDR, the Local Authority reserves its right to compulsorily acquire the land if the land owner does not come forward. Further, the Town Planning Scheme (TPS) as an alternative model for urban land development has been provided in the MRTP Act as one of the tools for implementing the proposals contained in the Development Plan and had been used most extensively in the State of Maharashtra.

The draft scheme is prepared by the Planning Authority and finalisation of development scheme is done by the Arbitrator/ Assistant Director of Town Planning and then it is submitted to the government for approval. However the procedure of TPS formulation and approval consumes lot of time and requires to be simplified.

In the State of Himachal Pradesh, The Himachal Pradesh Town and Country Planning Act, 1977 is in force. It is a comprehensive planning and development act and provides for the preparation of Regional Plans; Urban Area Plans, Zonal Plans, and prescribes controls on use and development of land. The legislation also provides for levy of development charges.

Under the Act, the Planning Areas are constituted and the Director of Town Planning is entrusted with the task of preparation of Development Plan which will be followed by Sectoral Plans in consultation with the Local Authorities concerned. The Interim Development Plan is submitted to the State Government who notifies approved Interim Development Plan in the official gazette and the Local Authorities are required to follow the plan. The Act also contains provision for the constitution of Town and Country Development Authorities for preparation of Town Development Schemes.

The act has provision for the preparation of Regional Plan and Development Plan, which will be prepared by the Director, Town and Country Planning of the state. The content of Regional Plan and Development Plan have been provided in the Act and a brief methodology to formulate the plans is given. The final approval of the plan is to be provided by the State.

The Town and Country Development Authority may, at any time, declare its intention to prepare a Town Development Scheme.State has power to give directions to frame/modify or revoke the schemes.

The Act has provision to review the plans at any time after a Regional/Development Plan has come into operation.The State can undertake the review and evaluation of the plan, however the minimum time frame has not been provided by which the Plan is to be revised or reviewed.

Provisions to declare any area as Special Area which is to be notified by State are given in the Act.The Plan for such areas will be controlled and regulated by Special Development Authority (SDA). SDA will prepare the Development Plans for such areas and implement it. Other than special areas, Town and Country Planning Authorities in the State will prepare and implement the plan.

The Tamil Nadu Town and Country Planning Act, 1971 is currently in force in the State. The legislation was brought in after repealing the Town Planning Act, 1920. It is a comprehensive piece of legislation and contains provisions for the preparation of Regional, Metropolitan, Master Plan, New Town and Detailed Development Plans. Besides, the Act envisages the constitution of Regional, Local and New Town Planning Authorities and a Town and Country Planning Board at the apex empowered with implementation powers.

The Town and Country Planning Act, 1971 has been amended so as to have separate provision for the constitution of Madras Metropolitan Development Authority and preparation and implementation of Master Plan for the Madras Metropolitan Planning Area.

The scheme of the Act is that the planning process starts with decentralisation of Regional Planning Area and Local Planning Area under section 10 of the Act which is notified in the gazette, defining the limits of the area. After this, the Town and Country Planning Authority are constituted in consultation with the Director of Town Planning for performing the function of preparing a Regional/Master Plan and detailed Development Plan. Once the Plan is prepared and submitted to the government, State governmentcan give its consent to the Planning Authority to the publication of a notice of the preparation of plan with or without modification.

In case of Tamil Nadu, the Town Planning Scheme (TPS) of Maharashtra or Gujarat has been redesignated as Detailed Development Plans under the Act. These can be prepared on any land located in the Planning Area.

The Tamil Nadu Town and Country Planning Act, 1971, has laid down the procedure for plan preparation and approval but, unfortunately, there is no time frame within which the planning process should be completed.

Gujarat has a fairly good and robust legislative framework for urban planning as compared to other States in India. The Gujarat Town Planning and Urban Development Act (GTPUDA) was enacted in 1976 by the State Government. The Act stems from early 20th century planning law devised by the British to improve and manage Indian cities. It also has been amended from time to time to keep pace with the changing requirements.

The Act mandates the delineation of a “Development Area” around a city or a town for planning purposes. It encompasses a much larger area around the city or town that is likely to see development. This ensures and allows for better planning and for guiding development in the area. A village is the basic spatial unit and every development area is an agglomeration of numerous villages, or may also include portions of villages.

The GTPUDA also mandates the creation of a Special Planning Authority—the Urban/Area Development Authority (UDA/ADA)—which is charged with the task of undertaking planning within the delineated Development Area.

Urban planning in Gujarat is a two-step process and is prescribed in the Act and its Rules. The first step is to prepare a “Development Plan” for the entire city or development area. The second step is to prepare “Town Planning Schemes” (TPSs) for smaller portions of the development area for which the Development Plan is prepared.

The Act does not have provision for Regional Planning. Though it says development area however it has not elaborated extent and criteria for declaration of such area.The preparation of Area Plan is done by Area development Authority. Whereas Development Plan for urban areas is done by Urban Development

Authority. The Development Plan is revised every 10 years and is updated in the interim whenever a need arises to respond to the changing context.

The planning process also includes limited public participation. After a Draft Development Plan is prepared by the Development Authority it is published and kept open for public inspection for a period of two months and objections and suggestions are invited. Each objection and suggestion is responded to and, if required, the DP is modified. It is published again to invite further objections and suggestions. These are again taken into account and the plan is modified. It is then sent to the State Government of Gujarat for approval and oversight. The State Government may suggest modifications, keeping the overall public good in view if required, before approving the Development Plan.

Appropriate authority canmake one or more TPS for the respective development area. TPS may be made in respect of any land which is in the course of development,likely to be used for building purposes and already built upon.The Public Planning Authorities/Development Agencies acquire large areas of land under the Land Acquisition Act of 1894 or by agreement. Then a Master Plan of the area is prepared, laying out the roads, plots for social amenities, and plots for sale. Roads and infrastructure are then built, using government funds or loans. Serviced plots are then sold for urban uses at market rates, which are most often much higher than the rate at which land is acquired.

The Karnataka Town and Country Planning (KTCP) Act provides for the regulation of planned growth of land use and development, for the making and execution of Town Planning Schemes, in the State of Karnataka, which came into force in 1965. The Act mandates constitution of State Planning Board, which consult and direct the Local Planning Authorities after notifying the Planning Area. The detailed functions of State Planning Board have not been elaborated.

In Karnataka, the KTCP Act does not have any provision to constitute Metropolitan Planning Authority, however a separate Act i.e. Bangalore Metropolitan Regional Authority Act, 1985 has been established for Bangalore Metropolitan Area.

Emphasis has been given on preparation of Master Plan, the contents for the same have been elaborated, however the concept of Regional Planning has completely ignored in KTCP Act. After notifying the Planning Area by State in consultation with Board, the Planning Authority is to prepare Outline Development Plan, prior to the preparation of Master Plan. As soon as the Master Plan is approved by the State, the Planning Authority prepares the TPS for the implementation of Plan. The Planning Authority may prepare one or more TPS for the area within its jurisdiction. A TPS may be made in accordance with the provisions of KTCP Act in respect of any land which is in course of development, or likely to be used for building purposes, or already built upon.

There is a provision for revision of Master Plan at least once in every ten years from the date on which the Master Plan came into force.

The KTCP act has laid down the procedure to acquire land for Master Plan and Schemes for public purposes. The Planning Authority may acquire any land designated in a Master Plan for a specified purpose or for public purpose by agreement or under the Land Acquisition Act, 1894.

Bihar Urban Planning and Development (BUPD) Act, 2012 was enacted to make provision for promotion of planned growth and development of urban areas and such rural areas having potential of urbanization and regulation thereof including land use. The act empowers the State of Bihar to constitute Bihar Urban Planning and Development Board to perform certain functions which mainly includes to guide, (a) direct and assist the Planning Authority; (b) to advise on the delineation of the Planning Area(s) and direct the preparation of Development Plan; (c) undertake, assist and advise on the coordination of planning and implementation of physical development programmes; (d) direct the preparations of one or more Regional Development Plan, Regional Transportation Plans, Town Development Plans and (e) direct the preparations of one or more Regional Natural Resources and Environmental Conservation Plans.

TheBoard is empowered to constitute one or more committees under BUPD Act, to assist Board in exercising its powers, discharging its duties or performing its functions. This Act also empowers the State to constitute Urban Arts and Heritage Commission in order to preserve and conserve archaeological and historical sites, restore and conserve urban design in Planning Area.

The Act has given provision to prepare Development Plan for Metropolitan area by Metropolitan Planning Committee (MPC), and the criteria for constitution of MPC will be in accordance with Article 243ZE of the Constitution of India; however such criteria have not been discussed in detail.The power and function of Planning Authorities as well as MPC has been elaborated.

The contents and scope of Development Plan and Metropolitan Development Plan have been elaborated in the Act. Regional Planning aspects have been addressed however specific content to Regional Plans have not been discussed in the Act.

After the receipt of the Development Plan, together with the report of the Committee, the Government may either approve the Development Plan, with or without modifications, or may return the Development Plan to the Planning Authority to modify the plan or to prepare a fresh plan in accordance with such directions as the Government may issue in this behalf. Immediately after the Development Plan has been approved by the Government, the Planning Authority shall publish a public notice in the Official Gazette and in a local newspaper, of the approval of the Development. The Development Plan shall come into operation from the date of publication.

The Planning Authority may invite Area Development Schemes from developers.An Area Development Scheme may be made in respect of any land which is in the process of development, or likely to be used for any development including building purposes, or already built upon.

Any land required, reserved or designated in any Development Plan and Area development Scheme can be for a public purpose by Way of TDR or Accommodation Reservation or purchase of land by way of negotiated settlement or under the Land Acquisition Act, 1894. The act has also given the provision to create and maintain a land bank, in which all lands acquired, allotted, purchased and obtained, will be monitored and maintained and position reviewed periodically by respective Planning Authorities.