[Urbanstudy] Public Consultation Must in Metro or any Infrastructure Project: Unprecedented decision of High Court of Karnataka

[Leo Saldanha ESG]

***PRESS RELEASE*

17 December 2010

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/



*Background:*


Environment Support Group and ors 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 at esgindia.org <mailto:esg at esgindia.org> Web: www.esgindia.org 
<http://www.esgindia.org/>

NOTE:  Copy of the judgment will be uploaded to the ESG Website shortly

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

*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 at esgindia.org <mailto:leo at esgindia.org>

Environment Support Group

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

Tel: 91-80-26713559-61

Email: esg at esgindia.org <mailto:esg at esgindia.org> Web: www.esgindia.org 
<http://www.esgindia.org/>

1 WP 13241/2009, accessible online at: 
http://www.esgindia.org/campaigns/metro/legal.html)

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