M J Antony: Quoting the rulebook amid urban chaos

OUT OF COURT

The judiciary seems to be in no mood to condone violations of town planning laws

Several high courts are at present trying to enforce master plans for metropolitan cities strictly, creating tension in Delhi, Mumbai and Chennai. Other urban centres are also affected by this trend, though they do not get the same publicity through the media. In this context, the judgement of the Supreme Court delivered last week concerning Jabalpur is noteworthy (K K Bhalla vs State of Madhya Pradesh). The court laid down certain principles to be followed in allotment of land, regularisation, conversion of land and other topics hotly debated in the media and legislatures. These matters usually involve public policy, local politics, commercial interests and all-pervading corruption.

It all started as usual through a public interest litigation moved by an individual, complaining of violation of the relevant town planning rules by the state government. It was alleged that allotments were made on a pick-and-choose basis, without public notice, procedures were not followed, industrial units were allowed in commercial areas, the master plan was violated and the rebates given were in utter violation of the statutory provisions. The state government and the allottees, on the other hand, maintained that the transaction was in terms of a policy decision of the state.

An argument that is commonly raised by victims of the demolition squads was put forward in this case too, and it is educative to learn the approach of the judiciary on this point. The argument is that others have also benefited by such illegality and, therefore, if you catch me, you must catch them too, or all of them should be treated in the same way. The court stated that equality under Article 14 of the Constitution is a positive concept. It is meant to benefit those who are unfairly discriminated; it is not intended to distribute the fruits of illegality equally. Allottees in this case complained that people similarly situated have been given land at concessional rates and, therefore, all of them should be treated equally. The judgement said: "It is well-settled that the equality clause contained in Article 14 of the Constitution cannot be invoked for perpetrating an illegality."

In every case of urban development controversy, one of the main points of discord is the authority which has the power to sanction construction. Usually, there is a development authority created by legislation which looks after the planning and allotment of sites. Then there are municipal authorities and assorted civic bodies dealing with infrastructure and public utilities. Above all, there is the state government, which arrogates to itself greater powers in the name of public policy and public good. The judiciary has to decide where the power lies, in a specific situation. The Jabalpur case was also not free from the need for this exercise.

It appears that the allotments in this case were made at the instance of the chief minister of the state. The Supreme Court severely criticised this decision. "If a direction was to be issued by the state to the Jabalpur Development Authority, it was necessary to be done on a proper application of mind by the Cabinet, the minister concerned or by an authority who is empowered in that behalf in terms of the rules of executive business framed under Article 166 of the Constitution," the judgement said, and added, "such a direction could not have been issued at the instance of the chief minister or at the instance of any other officer alone, unless it is shown that they had such authority in terms of the rules of executive business."

Further chastising the government, the court categorically stated that the state had no power to issue a general direction. It could not interfere with the day to day functioning of the development authority. In this case, the concerned ministry which had some jurisdiction to issue directions was the ministry of housing and environment. The direction, however, did not come from it. Moreover, the court pointed out that the power of the state in this field is "extremely limited". Even when the state interferes in the day to day functioning of the development authority in the name of a "general policy decision", it must follow the provisions of the law.

The judgement made a few more points which should enlighten the authorities dealing with town planning and development. The purpose of allotments may be good, but if they are contrary to the rules, they are void. The purpose for which the allotments were made would be wholly irrelevant if it contravenes the mandatory provisions of the law and the rules made under it.

The Supreme Court recalled one of its several recent decisions on urban chaos (Friends Colony Development Committee vs State of Orissa) which conceded that zoning and planning did result in hardships to individual property owners. "But for this reason alone, the regulations cannot be termed as arbitrary or unreasonable. Private interest stands subordinate to public good," the court said in that judgement. All these judgements indicate that the courts are not going to be lenient towards the violators of the town planning rules.