Public Consultation Must in Planning and Building Metro or any Infrastructure Project. Unprecedented Decision by High Court of Karnataka holds Officials directly accountable for any lapse.

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Background:

Environment Support Group and others had challenged the construction of the southern reach of Bangalore Metro as being in gross violation of the Karnataka Town and Country Planning Act and other statutes in a Public Interest Litigation (WP 13241/2009, accessible online at: http://www.esgindia.org/campaigns/metro/legal.html). This was associated with widespread protests over the highly illegal development of the Southern Reach of the “Namma Metro” project that fundamentally violated the Comprehensive Development Plan of Bangalore and in the process destroyed many parks and public spaces, and neighbourhoods.

The protests and the Petition highlighted how the Metro authorities callously disregarded sanctity of public commons, especially portions of Lalbagh and the boulevards along K. R. Road and Nanda Road as they destructively tore through the city's fabric with an ill-thought Metro line. A majore issue of law that was raised in the PIL was the highly questionable decision of the Government of Karnataka authorising the sale of the portion of Lalbagh as an industrial site acquired for Metro station under the KIADB Act. A Government Order authorised the Deputy Commissioner of Bangalore to sell the Lalbagh land from Horticulture Dept. to Bangalore Metro at a market price. Thus making this world famous and historical living heritage of the city a tradable commodity – a shocking precedent.

Comprehensive arguments on the Petition by all parties were heard by the High Court and the matter was reserved for judgement in June 2009 by a Division Bench of the High Court headed by Justice Mr. Gopalagowda. However, with his elevation as Chief Justice of the Orissa High Court, the judgement was not delivered and the matter had to be reheard. In the meantime, the Metro authorities bulldozed their way with the Southern reach of the Metro, even extending it illegally, unmindful of the serious and irreversible consequences involved.

The ruling:

Diposing the Petition on 16^th November 2010, a Division Bench of the Karnataka High Court constituted by Chief Justice Mr. J. S. Khehar and Justice Mr. A. S. Bopanna observed that the “factual controvery brought out through the … writ petitions” have been “rendered infructuous”, given the substantial development of the Phase I of the Southern Reach of the Metro. However, the Court took full cognisance of the submission made by the Petitioners that “if a direction is issued to the State Government, as also, the Bangalore Development Authority to ensure that in future, in case they desire to change the land use, as has been depicted in the master plan, the competent authority shall follow the procedural mandate depicted in Section 14-A of the Karnataka Town and Country Planning Act, 1961 And likewise in case of making a town planning scheme, the State Government, as also the Bangalore Development Authority shall comply with the procedure contained in Sections 29, 30, 31, 32 and 34 of the Karnataka Town and Country Planning Act, 1961”.

Thereafter, the Court observed that “Mr. Basavaraj Kareddy, learned Prl. Government Advocate, who represented the State and Mr. K. Krishna, learned counsel, who on our asking accepts notice on behalf of the Bangalore Development Authority, agree, that the provisions referred to hereinabove, shall be complied with, without any deviation whatsoever”. Based on this submission by the Counsels representing the Karnataka Government, the Court in a clear message to all urban planning and infrastructure development authorities in particular, and the Executive in general, warned that “(n)eedless to mention, that in case of violation of direction issued by this Court, based on statement made to this Court, the concerned officer/official shall be held responsible, for his having disobeyed the order passed by this Court, as also, the prescribed mandate of law”.

Implications of the Judgement to Bangalore Metro and other infrastructure projects:

Such an order is unprecedented in the annals of jurisprudence of the Karnataka Judiciary as it is for the first time that the Karnataka Town and Country Planning Act and its progressive provisions mandating public participation in urban planning and infrastructure development have been fleshed out and made determinant to any urban planning effort and infrastructure development in Bangalore and other cities of Karnataka. This path breaking ruling will also serve persuasive in securing similar relief in other States where Metro and other mega infrastructure projects are being implemented, or proposed, in gross violation of land use planning laws. The judgement has enormous consequences to the further development of the Bangalore Metro (or any other infrastructure project or town and country planning scheme).

Bangalore Metro has been largely developed in blatant disregard of the public consultation requirements as laid down in the KTCP Act. While much of the 43 kms. long Phase I of the Metro has been built (or in various stages of in-completion), and the situation as far as this phase is a fait accompli, the subsequent phases of the Metro will have to fully conform with this decision of the High Court. Metro authorities cannot bulldoze their way through neighbourhoods in violation of the KTCP Act, merely on the justification that the project is in the public interest. Every directly and indirectly affected person who in the past has had to go through the arduous struggle of pleading with authorities, can now demand such mega-projects are developed only in strict accordance with law, else the officials involved will be hauled up for Contempt of Court.

Leo F. Saldanha                                                                                 Sunil Dutt Yadav

Coordinator                                                                                         Advocate

Environment Support Group

1572, 36^th Cross, Ring Road, Banashankari II Stage, Bangalore 560070. INDIA

Tel: 91-80-26713559-61

Email: esg@esgindia.org Web: www.esgindia.org

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Implications of the Karnataka High Court direction in WP 13241/2009 (PIL of Environment Support Group and ors. vs. Bangalore Metro and ors.¹) for the implementation of the Karnataka Town and Country Planning Act

The Karnataka Town and Country Planning Act (KTCP Act) is amongst the most progressive legislations enacted in the post-independent period. Reflecting the thinking prevalent at the time of its enactment, the objective of the law is “regulation of planned growth of land use and development and for the making and execution of town planning schemes in the State”.

Concerned about the wholistic development of the State without disparities, our Legislators in 1961 thought it fit to include in the Preamble to the Act the following:

“Physical planning has to precede economic planning as otherwise cities, towns and villages of our country will grow to unmanageable sizes without proper planning resulting in unhealthy surroundings. Physical planning with co-ordinated effort on a large scale is necessary if the people are to live in a better, healthier and happier environment. The proposed (law) is expected to solve the Town Planning problems.” (emphasis added)

The Act elaborates the specific objectives as follows:

“(i) to create conditions favourable for planning and replanning of the urban and rural areas in the [State of Karnataka], with a view to providing full civic and social amenities for the people in the State,

(ii) to stop uncontrolled development of land due to land speculation and profiteering in land,

(iii) to preserve and improve existing recreational facilities and other amenities contributing towards balanced use of land; and

(iv) to direct the future growth of populated areas in the State, with a view to ensuring desirable standards of environmental health and hygiene, and creating facilities for the orderly growth of industry and commerce, thereby promoting generally standards of living in the State.” (emphasis added)

Subsequent to the enactment of this law, particularly during the Emergency period, the progressive results that could have been achieved for the benefit of society by implementing this law faithfully were derailed by the creation of a para-statal, bureaucratic and publicly unaccountable Bangalore Development Authority (BDA) in 1976. This was at a time when there was no internal democracy due to imposition of Emergency. The BDA, thereafter, became a terrible model for subordinating the due role of public and elected representatives to participate in planning and development. Very soon many similar authorities that were accountable to none but the Government in power were created: Bangalore Metropolitan Regional Development Authority, Bangalore Mysore Infrastructure Corridor Area Planning Authority, Bangalore International Airport Area Planning Authority, to name a few. Needless to state, the mandate to consult the public in urban planning and development, as detailed in the KTCP Act, has rarely been followed by any of these agencies. The result has been reckless urbanisation and infrastructure development, almost always undemocratically, fuelling a phenomenal increase in corruption based on transactions relating to land use and land development.

A serious effort to check this menace was made by enacting the Constitutional 74^th Amendment (Nagarpalika) Act in 1992. This law significantly introduced the need for establishment of representative and transparent Metropolitan/District Planning Committees with a mandate to develop 5 year plans relating to land use, natural resource management, social and economic development and environmental protection. State Governments, however, have systematically sidestepped this Constitutional mandate. This has resulted in land use planning and urban and infrastructure developments becoming subjective to machinations of powerful and corrupt lobbies. The public interest, thereof, has been completely ignored.

Post-Parastatals, questionable roles of BATF and ABIDE in defining our futures:

Over the past decade however, Karnataka Government has found the time to initiate unaccountable planning interventions through the creation of unconstitutional bodies such as Bangalore Agenda Task Force (BATF) and Agenda for Bengaluru Infrastructure and Development Task Force (ABIDE). Members to these elite bodies are appointed by the Chief Minister and not surprisingly more often than not included people from his coterie. Again unsurprisingly, the visions and plans developed by these folks has largely reflected the demands of the upper classes of society based on their rather limited and skewed understanding of the complex processes of urbanisation.

The result has been an endless stream of experimentation, more recently promoted by the peculiar emergence of Advisors and Strategic Urban Advisors. This has resulted in Governments coming up with its own slew of mega-projects to serve their political legacies, often playing to the demands of influential lobbies. Statutory public participation provisions of the KTCP Act have been given a quiet burial in the process. It is in this despairing scenario that the current decision of the High Court comes in as a major relief to the wide public.

How the High Court decision affects implementation of the KTCP Act and the future of our settlements:

This order shatters a popular myth that KTCP Act does not apply to mega projects like the Metro, road widening, construction of elevated express-ways, development of airports, and the like. Attacking that status quo ante attitude prevalent in public authorities, the order holds officials connected to land use planning accountable for not enforcing various provisions of the Act. To ensure there is no confusion or misinterpretation (deliberate or otherwise) of the import of its order, the Court has issued the order on the basis of agreement to comply with the law “without any deviation whatsoever” at the serious risk of facing Contempt action.

The KTCP Act mandates the involvement of the public, especially affected public, at various stages of planning and implementation of development plans. The Act requires that town and country planning authorities (such as the BDA) consult the public during the intent to make a plan, formulating a plan, and finalising a plan to begin with. Once the assent of the State has been obtained for the Plan, should there be any need to amend the land use plan the Act requires that the procedure to be adopted must consult the public once more.

Often implementing agencies consider the Comprehensive Development Plan as the final word on development of projects. But this is not the position in law. The KTCP Act in fact requires that for the implementation of the Plan, a Scheme has to be developed providing a variety of details and maps, again in consultation with the public at the various stages of its development: Intent to formulate a Scheme, Formulation of the Scheme and Finalisation of the Scheme. Rarely, if ever, have these provisions been implemented in Karnataka or any other State.

Significant to note is the fact that four decades before the enactment of the Right to Information Act (2005), the KTCP Act required that public authorities must actively disseminate detailed maps and other connected information to the public. The Act in fact makes public participation fundamental to decision making, be it in the development of a layout, road-widening, park development, change of land use, Metro constuction, airport development, industrial development or any other item of urban planning and infrastructure development that comes under the purview of the Act.

Renewing the journey to correct the imbalance and undemocratic nature of urban and infrastructure development:

The absolute lack of implementation of the provisions of the KTCP Act has reduced our cities and towns to chaotic human habitations where the Fundamental Right to Live in reasonable comfort, security and in a clean environment has been seriously compromised by neglect by authorities to basic tenets of public involvement in planning and development. The High Court order makes a substantial intervention to correct this malaise of our societies.

In any city where mega projects are being built or proposed to be built, they are largely undertaken without any statutory public involvement in planning and development of mega projects. This has created havoc in the lives of hundreds of directly affected communities Decisions are undertaken in-transparently on the basis of consultation with the Cabinet and senior bureaucracy, commonly to suit the benefits of vested lobbies. Thousands of crores of rupees are invested in such projects, causing variety of disturbances to our society and the environment, and rarely, if ever, are elected bodies and the public consulted on such matters.

This High Court direction is a significant step forward in stemming this rot and its benefit is directly proportional to its active use by the wide public. The order directly affects the functioning of all planning and development authorities in Karnataka, and will have highly persuasive value in seeking similar relief in other States. While it is truly unfortunate that we have reached a stage in our society where Courts have to act on the basis of PILs merely to ensure faithful implementation of the law, the fact that such directions are issued revitalises our faith in the Rule of Law.

Leo F. Saldanha

leo@esgindia.org

Environment Support Group

1572, 36^th Cross, Ring Road, Banashankari II Stage, Bangalore 560070. INDIA

Tel: 91-80-26713559-61

Email: esg@esgindia.org Web: www.esgindia.org