M J Antony: Stemming the urban crawl

OUT OF COURT

Recent Supreme Court judgements favour strict adherence to town planning regulations.

The normal response of a city resident when illegal constructions or violations of master plans take place in the neighbourhood is to shut one's eyes and blame the authorities later for allowing the transgressions. Very few resident welfare associations take steps to stop the wrongs in the beginning. The reaction of the residents in Bangalore, including the ladies' association of Jayanagar locality, was different. They fought the menace up to the Supreme Court and won, though they had lost in the high court. Therefore, the judgement of the Supreme Court in S N Chandrashekar vs State of Karnataka is a wake-up call for citizens in other metros now debating illegal constructions.

In this case, the Bangalore Development Authority allotted houses to various people in a residential area. One of the allottees sold his house to a person who turned it into a vegetarian restaurant. The neighbours objected to it and made representations to the authorities, in vain. Their writ petition in the high court was dismissed. The high court pointed out that the development authority had permitted the conversion "in public interest" and this person could not be discriminated against when others in the city have been allowed to change the use of the property.

On appeal, the Supreme Court took a more beneficial view. It asserted that the planning authority had no power to permit the change of land use from the Outline Development Plan and regulations under it. The change must also conform to the zoning regulations. The order of sanction given by the authority did not disclose any reason for the change. The judgement commented: "Such change was not occasioned owing to topographical, cartographic or other errors or omissions; what was the circumstance necessitating such change has not been spelt out in the order; we do not know what was the public interest involved in directing such change of land use."

The commissioner of the development authority had earlier warned that if the site was converted to one used for commercial purposes, the volume of traffic may increase causing parking problem and traffic congestion. However, at the last moment, his objections did not prevail. The Supreme Court's conclusions were clear: "The State of Karnataka and the Bangalore Development Authority having committed serious violation of the zoning regulations, we are of the opinion that the same cannot be sustained."

Yet another judgement of the Supreme Court delivered last fortnight reinforced the theme, in the context of Bhubaneswar (Milk Producers Association vs State of Orissa). The chief minister announced a scheme to rehabilitate the milk producers who supply about 10,000 litres of milk to the city. They were encroachers and their trade was not very hygienic either. It was later found that the site where the chief minister promised to rehabilitate them was within the master plan and they could not be settled there. This change of stand started a legal battle. The high court ordered their eviction anyway. The gowallas moved the Supreme Court, in vain.

The judgement said: "Several steps have been undertaken for attracting more tourists. The law prohibits maintenance of cowsheds or dairies in or around Bhubhaneswar...In civic society, town planning indisputably plays an important role. Unauthorised occupation by encroachers in areas which are meant for planned development goes a long way in thwarting the goals sought to be achieved by such town planning."

A review of important judgements of the Supreme Court in the past two years shows a definite trend in favour of strict implementation of the town planning laws. In Friends Colony Development Committee vs State of Orissa (2004), the Supreme Court conceded that zoning and planning did result in hardship to property owners. But for this reason alone, the controlling regulations cannot be termed as arbitrary or unreasonable. "Private interest stands subordinated to public good," the court asserted.

In N D Jayal vs Union of India, delivered in the same year, the court said that both the right to environment and the right to development are fundamental rights. Therefore, the concept of "sustainable development" must be treated as an integral part of right to life guaranteed in Article 21 of the Constitution.

Sometimes, government leaders make promises to the people about the land use and its alterations. However, in the Milk Producers' case, the Supreme Court emphasised that "even an executive action on the part of the state must give way to the statutory scheme." Therefore, the declaration of the politicians is not the last word on this subject. The overall trend in these judgements is in favour of strict adherence to the town plans.

If your neighbour commits a wrong and gets away with it, can you also violate the regulations? The Supreme Court said in another judgement last week: "Two wrongs do not make one right. A party cannot claim that since something wrong has been done in another case, a direction should be given for doing another wrong." This remark in the context of Indore Development Authority answers a question raised by many whose illegal constructions have gone under the bulldozer.