 filed seeking direction to the respondent authorities to take action against all unauthorized development / construction made in the State of Chhattisgarh in time bound manner, in interest of justice.){kind=link}
The Chhattisgarh High Court dismissed a Public Interest Litigation (PIL) filed seeking direction to the respondent authorities to take action against all unauthorized development / construction made in the State of Chhattisgarh in time bound manner, in interest of justice.
Prateek Sharma, counsel for the petitioner submits that the State Legislature has framed the Chhattisgarh Nagar Tatha Gram Nivesh Adhiniyam, 1973 with the following object:
“An Act to make provisions for planning and development and use of land, to make better provision for the preparation of development plans and zoning plans with a view to ensuring town planning schemes are made in a proper manner and their execution is made effective, to constitute Town and Country Planning Authority for proper implementation of Town and Country development plan, to provide the development and administration of special areas through Special Areas Development Authority, to make provision for the compulsory acquisition of land required for the purpose of the development plans and for purposes connected with the matters aforesaid.”
Sharma further submit that in the year 2002 Chhattisgarh Anadhikrit Vikas Ka Niyamitikaran Adhiniyam, 2002 was framed by the Legislature of State and implemented from 26.04.2002 with the following object:
“An act to regularize the unauthorized development in the planning area in the State of Chhattisgarh by using certain powers specified therein, because the authority to exercise, perform and discharge the duties interested to them within the specified duration of time.”
It is further submitted by Sharma that vide Gazette notification dated 14.07.2022, the Act of 2002 was amended and provisions were inserted in Section 6 of the Act of 2002 as Section 6(4). By newly added Section 6(4)(b)(i), it is prescribed that if unauthorized development is made upon the land reserved for parking, then the same can be regularized by payment of penalty amount. Similarly in newly added Section 64(4)(b)(ii) and (iii), it is prescribed that if the unauthorized development is made before or after 01.01.2011 with approved building permission / development permission and continuous property tax is paid and parking is not provided as per Rules 1984 or Town Planning Scheme then the same can be regularized by payment of additional penalty prescribed therein and in newly added Section 6(4)(b)(iv) the computation of parking area which can be regularized is prescribed and newly added Section 6(4)(c) it is prescribed that the non profit social institutions will be imposed with penalty of only 50% of the proposed penalty and in newly added Section 6(4)(d) it is prescribed that if width of road is not available as per Rule 39 of Rules 1984, then in the present circumstances of the place, if public interest is not affected in any way, then the same can be regularized.
Further Section 7(1)(3) has been omitted, whereby it was prescribed that the land has been allotted by the Government, local authority or Statutory Body for a specific purpose, other than the one for which development has been done. The above was restricted from regularization. He also submits that in furtherance of the above amendment another amendment is made in the Act of 2002 by way of Gazette notification dated 08.08.2022, whereby in Rule 4(1) sub-rule (4) parking and sub-rule (5) width of approached road is inserted and in Rule 4 sub-rule (3) is added mentioning therein that the land has been allotted by the Government / Local Body / Constitutional Body for a specific purpose or on lease, but the development is done other than the purpose for which the land was allotted or lease out then the same can be regularized, if any public interest is not affected.
Sharma next submits that the repeated implementation of regularization of unauthorized construction / development is promoting wrongdoers and punished law obedient persons and also making the provisions of the Act of 1973 and Rules 1984, only for meager financial income of the State, which can not compensate the loss created by the regularization. He also submits that it is evident that deliberately no action was taken against the unauthorized construction / development by the concern authorities in the entire State of Chhattisgarh, whereas according to provisions of the Act of 1973, Rules 1984, Municipalities Act, Concerned Authority are bound to inspect and take action from the stage of initiation of any construction / development and required to take action if found any deviation from the sanctioned / approved plan. But, due to implementation of impugned provisions the parking policy of the State will be affected which will lead to public nuisance, adversely affect the environment, create noise pollution, increase crime, thus, deprive the residents of Chhattisgarh from better and dignified life thereby violate their fundamental right enshrined upon them by Article 21 of the Constitution of India.
On the other hand, Chandresh Shrivastava, Additional Advocate General, appearing for respondents State submits that the present writ petition deserves to be dismissed on the count that the petitioner per se, does not have any right to challenge the constitutional validity of the impugned provisions of the Act of 2002 and Rules, 2002 which has been framed, while exercising the power conferred under law. He further submits that the vires of any rules / legislation is checked on the ground of constitutionality and not on the ground of personal discomfort. The vires of any Act can be challenged only on the following grounds:
“I. That, when the rule maker lacks the legislative competence.
II. That, when it is made in excess of the power conferred by the enabling of Parent Act.
III. That, when delegated legislation is conflict with the enabling of Parent Act.
IV. When whole legislation or part of it is against the provisions of Constitution of India or any other law prevailing / existing on the field.”
However, none of the above-mentioned grounds have been pleaded by the petitioner to maintain the challenge.
It is further submitted by Shrivastava that there is no dispute with regard to the legislative competence or any jurisdictional challenge in the instant petition. The bone of contention of the petitioner revolves around the fact that they are in a disadvantageous position with respect to the provisions of the Act of 2002 and Rules, 2002 under challenge. It is a settled position of law that a statutory rule / legislation can only be challenged on the limited grounds permissible under the law. He also submits that even as per the entire pleadings and submissions of the petitioner, it nowhere reflects that there is any vested right which has been violated by the impugned constitutional validity of the impugned provisions of the Act of 2002 and Rules, 2002. The policy / Rules / Act / directives could be challenged or said to be illegal only on the ground that the same is unreasonable and results in inconvenience to the public in general. No such case is being made out in the present petition by the petitioner. The petitioner has completely failed to show as to how the impugned Act of the 2002 and Rules, 2002 is unreasonable. Merely because the criteria does not suit any entity it cannot be said to be ultra vires.
Shrivastava also submits that there are many reasons in the interest of public at large to enact the aforesaid Act of 2002 and the Rules, 2002 by publishing the aforesaid notifications which are under challenge in this writ petition which is primarily due to increase in the process of urbanization in the State of Chhattisgarh, the economic business activities have increased on a large scale in the major cities of the State of Chhattisgarh as well. Due to this reason, the arrival of people in these urban places in search of employment has increased the use of land for residential, commercial and other purposes. This has given impetus to unauthorized developments in these urban areas contrary to the provisions of the Chhattisgarh Nagar Tatha Gram Nivesh Adhiniyam, 1973, the Chhattisgarh Municipal Corporation Act, 1956 and the Chhattisgarh Municipalities Act, 1961, developments works have been done in the urban areas of the State of Chhattisgarh, either without permission or on a layout other than the permission granted. Thus, these developments are cognizable as unauthorized developments and it has become a statutory requirement to remove or demolish or make necessary modifications in the structures. He further submits that from the administrative points of view, it is not possible to remove or demolish such unauthorized developments in the public interest, because on the one hand, the citizens will have to face many difficulties and on the other hand, the national wealth developed in this way will also be damaged. Therefore, to solve the problems arising out of this situation, it has become extremely necessary that the respondent-State should make statutory provisions to regularize such unauthorized structures, as a result, the only option before the respondent-State is to lay down a statutory system for regularization of structures developed in this way before a stipulated date.
Having considered the rival submissions of the counsel for the parties and gone through the record, the Division Bench of Chief Justice Ramesh Sinha and Justice Rajani Dubey held that it is the duty of the Court to ensure that there is no personal gain, private motive and oblique notice behind filing of PIL. In order to preserve the purity and sanctity of the PIL, the Courts must encourage genuine and bonafide PIL and effectively discourage and curb the PIL filed for extraneous considerations.
The Courts should, prima facie, verify the credentials of the petitioner before entertaining a PIL. It is also well-settled that the Courts, before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public harm or public injury. The Courts should ensure the jurisdiction in public interest is invoked for genuine purposes by persons who have bona fide credentials and who do not seek to espouse or pursue any extraneous object. Otherwise, the jurisdiction in public interest can become a source of misuse by private persons seeking to pursue their own vested interests.
Considering the submissions made by the counsel for the parties, the Bench did not find any locus of the petitioner in this matter as the petitioner failed to show any incidence in which public interest has been violated because of the aforesaid Act of 2002 and the Rules, 2002. Thus, the instant writ petition styled as public interest litigation filed by the petitioner is a vague petition.
The Court was not satisfied that this is a genuine petition filed in public interest so as to invoke the jurisdiction in the public interest under Article 226 of the Constitution.