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2002 DIGILAW 708 (PAT)

Binod Murari Mishra v. State Of Bihar

2002-07-05

R.N.PRASAD, RAVI S.DHAVAN

body2002
Judgment 1. This matter has been brought as a public interest litigation. The petitioner Sri Binod Murari Mishra states that he is an advocate of the Patna High Court and that he considers this matter to be a fit case to be decided by the High Court. 2. Between the statements made in the petition and the submissions on it there is a vast difference with contradictions. 3. The unfortunate part is when invited to submit on what exactly is wrong with the impugned order dated 13 June 2002 based on an order dated 13 May 1998, the submissions were a run away to make a negative criticism of the aspect that the Patna Regional Development Authority in the view of the order of the High Court dated 19 March 2002 does not have any authority to issue any orders as it is constituted otherwise than spelt out in the Constitution of India. 4. A city cannot be left rudderless without administration. There may have been a delay that certain self government bodies in Bihar have not fallen in line after the Constitution saw the amendments and insertion of Chapters IX & IXA, on Panchayats and Municipalities. It is acknowledged by the Additional Advocate General present in court that there is much which has to be done by the State of Bihar to conform to the Constitution of India and update or modify its legislation and make it compatible with the Chapters on Panchayats and Municipalities. 5. The court notices that there was an element of avoidance to come on merits of the very order which has been challenged. The submissions were to the effect that the Administrator of the Patna Regional Development Authority had no authority or business to pass an order restricting the high rise of the buildings upto 11 metres. What the petitioner is contending is that given the occasion a building may go beyond 11 metres also. The next contention was that sufficient open places are available within the urban agglomeration of Patna and there is no reason to restrict high rise buildings beyond 11 metres. Buildings just cannot be put anywhere wherever. These spaces are protected as conforming uses which cannot be violated. There are zoning laws which put a very heavy burden on an architect to respect urban planning concepts. Buildings just cannot be put anywhere wherever. These spaces are protected as conforming uses which cannot be violated. There are zoning laws which put a very heavy burden on an architect to respect urban planning concepts. The fundamentals of urban planning are no different for the local authority put in charge of planning. A quality of city life is guaranteed by the law and now by the Constitution. The petitioners argument, as made, is of indiscriminate builders who destroy a planned habitat. They do not live in it. They sell it. 6. Clearly, the contention of the petitioner is that of all the open spaces available in Patna, its urban agglomeration, should be cluttered with buildings over 11 metres height. The submission is resisted on the proposition that the Vice Chairman is no authority and if such an order had to be passed it could only be passed by the Board. The court gets an impression that the petitioner is not interested in the planning of Patna and there is some one behind the petitioner to make whatever is left, bad and ill-planned as it is, make it worse. An argument of builders mafia both within and without the Patna Regional Development Authority who has no respect for the constitutional obligation for a spatial integrated planned development. 7. The court gave an opportunity to learned counsel appearing for the petitioner to address the court on what exactly is wrong with the spirit of the order dated 13 May 1998. The counsel avoided the inquiry and the invitation of the court to submit on merits of the very order which has been challenged in the petition. 8. Assuming that the Vice Chairman of the Patna Regional Development Authority did not have the authority to issue the order either the one dated 13 May 1998 or the subsequent order dated 13 June 2002, on mere technicalities the court cannot venture to declare the order as ultra vires without going into the aspect of what the functions of a Vice Chairman are. The responsibilities upon him are to carry over the intention of the enactment notwithstanding that a content of local self government has yet to be injected into all functions which are municipal and civic. The obligations to plan and preserve the city in accordance with law is there whether he is the Vice-Chairman or the Board. 9. The responsibilities upon him are to carry over the intention of the enactment notwithstanding that a content of local self government has yet to be injected into all functions which are municipal and civic. The obligations to plan and preserve the city in accordance with law is there whether he is the Vice-Chairman or the Board. 9. As the petitioner avoided the critical analysis of the order the court is examining the matter. The order of 29.9.1998 (Annexure-3) first makes a recital that certain area of Patna have inadequate infrastructure in terms of roads, sewerage, water supply, drainage etc., and the capacity of the existing infrastructure has reached a saturation point in these areas and the civic authorities are not in a position to bear the additional load of constructions of high rise buildings. The order further mentions that during the rainy season inhabitants face acute problem of water logging, shortage of drinking water supply and electricity. 10. Unfortunately, for the petitioner and co-incidenty for the court, today, as this petition is being considered, Patna has received the first onslaught of monsoon and over the weekend most areas have been inundated, roads have been submerged, water has entered the house of the citizens of Patna and city life is half down and paralyzed. The newspapers of Patna are agog with reports on the front page that the city administration and the civic services have collapsed. This is exactly what the Vice-Chairman of 1998 had foreseen after having adjudged the situation of the past. Today, it is four years after the order. 11. Apprehending that areas of Patna have reached a saturation point and it may not be possible to cater the civic amenities, such matters even engage the attention of the Supreme Court on what has happened in parts of New Delhi where constructions of even an additional floor is not being permitted because one set of accommodation added to a building is going to put an additional pressure on a municipal body to provide further and increased civic amenities. This the petitioner is not prepared to contemplate. 12. In the orders which the petitioner desires the High Court to destroy are mentioned the areas where high rise buildings are not to be constructed. The court is not repeating the localities which have been mentioned as this is an assessment. This the petitioner is not prepared to contemplate. 12. In the orders which the petitioner desires the High Court to destroy are mentioned the areas where high rise buildings are not to be constructed. The court is not repeating the localities which have been mentioned as this is an assessment. Prima facie it is for a municipal authority to see that the demographic density in a particular area does not reach a saturation point and not beyond the capacity of a civic authority to provide essential services. This is what urban planning is all about. 13. The theme of the order of the Vice Chairman is decongestion. (She), the Vice Chairman, in 1998 was thinking correctly and the court cannot say that the Vice-Chairman (Mrs. Mirdula Sinha) had committed any illegality in preventing further constructions. Her successor may not have that strictness she had. The collapse of civic amenities in Patna city is there for anyone who wants to see it. And this area is outside the VIP area where the Governor, the Chief Minister, the Ministers, the Senior Civil Servants and the High Court Judges live. 14. The reality across the spaces of Patna, have made it an unplanned urban scrawl. Its green spaces have disappeared and are replaced with concrete jungle. The public streets are chocked with traffic. Its sidewalks and pavements have been occupied and traffic, human, animal and vehicular by sufferance trample over strewn garbage which intermingles with overflowing drains. The one which existed have been built upon by those who violate the discipline of municipal building laws. 15. The issue is not how much more a builder may yet construct in Patna. All spaces have been occupied. The media virtually thumps the news reading citizen of Patna with the spate of unauthorised constructions. There are no takers, even the authorities, to prevent the law violaters who violate conforming uses of land space which otherwise is to be protected as open spaces. But such phenomenon in reality happen, but in collusion with those who permit it to happen and the violaters who do it. 16. Counsel for the petitioner desires to know from the court where will the people of Patna be housed. The answer is very simple. But such phenomenon in reality happen, but in collusion with those who permit it to happen and the violaters who do it. 16. Counsel for the petitioner desires to know from the court where will the people of Patna be housed. The answer is very simple. Every body cannot be adjusted in the same locality and neither can every open space be occupied by changing the land use of every open space that may exist in Patna. Another zone will have to be planned with zoning laws, which apparently were conveniently ignored in the core area. 17. The court reminded the petitioner that there is a concept which is known as inter generation equity and it partakes the nature of fundamental duties under the Constitution. For it is the obligation of the present generation to leave a better world whether a village or an urban habitat for the next generation. A better place than is available at present for a future generation. This is inter generation equity, a concept recognised by the Supreme Court in matters of environment and ecology. A planned urban area is part of it. It appears that this was a petition perhaps backed by a person who wanted to build more and preserving Patna and make it a better habitat perhaps was certainly not his theme or principle. 18. This was a misplaced petition misutilising the forum of public interest litigation. 19. Dismissed.