JUDGMENT
Ravi S. Dhavan, C.J.
1. There is no denial, and this is a matter on record, that but for orders of the High Gourt, Bihar would not have had elections in Institutions of self-Government identified in the Constitution of India under Chapters IX and IXA as the Panchayats and Municipalities. But, notwithstanding the aspect that elections have been held to the Panchayats in 2001 and the Municipalities during summer of this year, the entire geometry of the administration of the Panchayats and Municipalities is not in place.
2. Many aspects are still missing. For the last two years when this Court has been engaged with these matters with efforts to restore self Government to constitutionally identified institutions there seems to be a misunderstanding that City Corporations. Municipalities, Zila Parishads. Nagar Panchayats and Panchayats, arc still fiefs of the bureaucracy in administration. This is not so.
3. When the Constitution of India was amended by the 73rd and 74th amendments by insertion of Chapters on PANCHAYATS and MUNICIPALITIES a new concept of national planning was being spelt out. This is something which had not been seen before as most municipal enactments arc provincial and of pre independence era. The basic feature of planning at all levels, village to cities, is now so intended that there has to be an integrated infrastructure for development in all spheres of planning. The Constitution of India now puts an obligation on the State that it will co-ordinate planning in
reference to items mentioned in the Elev
enth and the Twelfth Schedules. Institution
of self Government, thus, are to join together
as a grid to carry out planning on the items
which are mentioned in these Schedules. In
the Eleventh Schedule, in the context of
Panchayats, there are 29 items. In Twelfth
Schedule, in context of municipalities, there
are 18 items. The Court is not repeating the
items which are mentioned in the two
Schedules.
4. No planning can take place unless funds and resources are available. Funds for planning are to be generated by these institutions of self Government from three sources; self governed initiative, the State and the federal Government. This pattern is given in the Constitution. Hitherto finances available from the federal Government were not being made available to Bihar because elections to institutions of self Government had not been held for more than two decades. After the Constitution had been amended, rule by civil servant administrators on superseded municipalities or Panchayats was meant to come to an end. The Constitution of India suffered a situation, as far as Bihar is concerned, that for one reason or the other elections to these self Government institutions was being avoided. The elections have now been held. But, planning now, the Constitution of India ordains a co-ordinated integrated spatial development in rural and urban areas.
5. The Court has been inquiring from the State Government as to when exactly it will position the Committees for District Planning Committees (or Metropolitan Planning Committee) so as to fall in line with the Constitution of India. The committee for District Planning is referred to in Article 243ZD. The Committee for metropolitan planning is referred to in Article 243ZE.
6. Whether it is ill-planned villages, badly planned muncipalities or metropolitan areas, further planning, resurrection and restoration of unplanned areas is an effort now identified as a constitutional obligation. Bad planning, abdicating concepts of planning affects environment and ecology. Concerned for the environment and ecology, and efforts to protect both, is also a constitutional obligation. This is emphasised sufficiently in Article 51A of the Constitution. Whether it is depleting water resources, polluted air, unhygienic villages or municipalities, all put together take a toll of nature. It is, thus, that the Constitution calls upon the Panchayats, Nagar Panchayats, Municipalities and the Metropolitan Corporations to join together and plan together with a concept on spatial planning, share the waters equitably amongst all so as to preserve it along with its natural resources, create an integrated development infrastructure and give due regard to environment and ecology. The effort is to make and have a better world for future generations is a concept which the Constitution recognises as inter-generation equity and an obligation on the present generation to leave a better world for the future generation.
7. Unfortunately, in Bihar and in some other States planning and concern for the environment and ecology is taken as a joke, Environmentalists who care for planning and ecology, and are concerned about the black hole over the North and South pole, the brown cloud hovering over the Asian continent affecting the weather cycle and the lives, of living creatures, are often labelled as crazy. These persons may be social activists, habitat planners, lawyers presenting causes, or Judges delivering opinions on these issues. Today nature warns on the impending ecological imbalance which affects the environment. The Constitution of India obliges every citizen to respect nature and further care for it by planning so as not to go against its grain.
8. In this regard, now that the Institutions of local self Government are in position, the concern of the Court is that no plan can go forward unless the District Planning Committees are effectively working. For more than one year, the Court has been inquiring from the State Government as to when it will position the District Planning Committees so that the planning of subjects entered in the Eleventh and the Twelfth Schedules goes forward as a Constitutional obligation. The Court has not received any serious answer nor any confidence has been given to the Court that there is any serious attempt to place these Committee into position so that work on planning makes a headway without any further delay. Already Bihar has received an answer from the federal Government, its planning Commission and the Finance Commission, that it will not have federal funds until institutions of self Governments are working. Elections have taken place, but are these Institutions, effectively working to execute the plans referred to in the Schedules to the Constitution ? The answer is no. How will the plans be chalked out and executed without the District Planning Committee ? In this void a violation of the Constitution is taking place.
9. The Court is now not prepared to accept an answer from the State Government to procrastinate a situation that the matter is being considered and a proposal has been sent to the law advisors and thereafter it will be sent to the Cabinet to put the District Planning Committees in position. It has been nine years since the Constitution was amended. One aspect needs to be remembered by the State Government that institutions meant to function under the Constitution of India were to be put in place without any delay when the amendments were brought into the Constitution. Otherwise, the Constitution of India is suffering a situation of mediocrity and disinterest in the State Government in taking its own time to comply with the Constitutional mandate. Undoubtedly, this was to be an effort by the legislature. But, once the Constitution of India has been amended then in a parliamentary democracy those who run the Government must not delay nor abdicate responsibilities to put all working institutions mentioned in the Constitution in place and ensure that they are working to their full Intent and purpose. This was the obligation of the State Government to go to the legislature so as to provide by law to make the District Planning Committee functional. The High Court, also functioning by and under the Constitution, cannot visualise a situation that the Constitution will be made to suffer until the State Government wakes up to the situation and makes these institutions operative. It is not the job of the High Court to legislate as this is truly a function of the Government in power to intiate and for the legislature to legislate. But the High Court will also not permit the situation to belittle embarrass and compromise the mandate of the Constitution. In this context, nine. years was enough time for the State Government to fall in line with the Constitution of India.
10. In the circumstances, now that the self Government Institutions have been restored and are being run by elected representatives, and the latter are entitled to participate in the planning of their areas as required by the Constitution. While the Government may take its own time to frame its legislation in whichever style it may as an interim measure, this Court will ensure that the District Planning Committee are put into position without any further delay. The law, in context, did refer, to placing the District Planning Committee in position, for instance, in the Bihar and Orissa Municipal Act, 1922 an amendment was made in 1995 by insertion of Section 51B to provide for a committee for District Planning. Likewise, in Patna Municipal Corporation Act, 1951, Section 41B was inserted also in 1955 to provide for such a Committee. Both these amendments to the two enactments took place as a consequence of the 73rd and 74th amendment to the Constitution. The two insertions are reproduced :
“The Bihar and Orissa Municipal Act, 1922.
51B. Committee for District Planning (1) There shall be a District Planning Committee to consolidated the plans prepared by the Panchayats, the Municipal Corporation, Municipal Council and Nagar Panchayat in the district and to prepare a draft development plan for the district as a whole.
(2) The provisions of Section 134 of the Bihar Panchayat Raj Act, 1993 (Bihar Act, 19, 1993) shall apply in respect of composition, functions, election of Chairperson, duties etc. of the District Planning Committee.”
Patna Municipal Corporation Act, 1951.
41-B. Committee for District Planning (a) There shall be a District Planning Committee to consolidate the plan prepared by the panchayats and the Municipal Corporation, Municipal Council or Nagar Panchayat in the District and, to prepare a draft development plan for the district as a whole.
(b) The provisions of Section 134 of the Bihar Panchayat Raj Act, 1993 shall apply in respect of composition, functions election of Chairperson, duties, etc. of the District Planning Committee.”
11. It is to be noticed that the two enactments made a short shrift of the Constitution and referred to the District Planning Committee as has been provided un-
der Section 134 of the Bihar Panchayat Raj Act, 1993: It would have been appropriate as an exercise in excellence, more so when the amendments to the respective enactments were taking place as a sequel to the amendments to the Constitution, to have clearly spelled out in each enactment, the details on how, to constitute the District Planning Committee instead of making cross references to another enactment. Leaving grey and doubtful areas and reserving power to be specified subsequently by the State Government, on how to place and structure these Committees is an antithesis to the requirement of the Constitution that the “Legislature of a State may, by law, make provision with respect to (a) the composition of the District Planning Committees; (b) the manner in which the seats in such Committees shall be filled.”* Instituting the District Planning Committees was conveniently avoided as the Act avoided providing details and referred to yet another enactment. This avoidence to a constitutional obligation for nine years is disrespect to the Constitution of India.
12. The enactment where the details of the District Planning Committee is identified Section 134 of the Bihar Panchayat Raj Act, 1993. This section is reproduced :
The Bihar Panchayat Raj Act, 1993.
134. District Planning Committee (1) The Government shall constitute in every district a District Planning Committee to consolidate the plans prepared by the Zila Parishad, Panchayat Samitis, Gram Panchayats. Nagar Panchayats, Municipal Councils and Municipal Corporations in the district and to prepare a draft development plan for the district as a whole.
(2) The District Planning Committee shall consist of :–
(a) members of the Lok Sabha who represent the whole or part of the district ;
(b) The members of the Rajya Sabha who are registered as electors in the district;
(c) Adhyaksha of the Zila Parishad;
(d) Mayor or the President of the Municipal Corporation or the Municipal Council respectively, having Jurisdiction over the head quarters of the District;
(e) Such numbers of persons not less than four fifth of the total number of members of the Committee as may be specified by the Government, elected in the prescribed manner from amongst the members of the Zila Parishad, Nagar Panchayats and Councillors of the Municipal Corporation and the Municipal Councils in the district, in proportion to the ratio between the population of the of the rural areas and of the urban areas in the district.
(3) All the members of the State Legislative Assembly whose constituencies lie within the district, the members of the State Legislative Council who are registered as electors in the district and the Deputy Commissioner/District Magistrate and the Chairman of the District Co-operative Bank/ Land Development Bank shall be permanent invitees of the Committee.
(4) The Chief Executive Officer shall be the Secretary of the Committee.
(5) The Adhyaksha of the Zila Parishad shall be the Chairman of the District Planning, Committee.
(6) The District Planning Committee shall consolidate the plans prepared by the Zila Parishad, Panchayat Samitis, Gram Panchayats, Nagar Panchayats, Municipal Councils and the Municipal Corporations in the district and prepare a draft development plan for the district as a whole.
(7) Every district Planning Committee shall in preparing the draft development.
(a) have regard to,
(i) the matters of common interest between the Zila Parishad, Panchayat Samitis, Gram Panchayats, Nagar Panchayats, Municipal Corporations and Municipal Councils in the district including Local Planning, sharing of water and other physical and natural resource, the integrated development of infrastructure and environmental conservation;
(ii) the extent and type of available resources whether financial or otherwise.
(b) Consult such institutions and organisations as the Government may by order specify.
(8) The Chairman of every District Planning Committee shall forward the development plan, as recommended by such Com-
mittee to the Government.”
13. As the State Government has been immune so far to install the District Planning Committee and make them functional, it does give an impression to the Court that there is no sense of urgency notwithstanding that the Constitution desired that these Committees function one year after the amendments took effect in 1993.
14. In the meantime. Bihar, is being denied finances and grants by the Planning Commission and the Finance Commission. This is affecting future plans and the people of Bihar. At this time of the year, financial estimates are considered by State and the Central Government for budgeting allocation of funds. In the absence of planning discipline of which the Government of the State does not seem to be concerned, Bihar will lose out on federal funding to institutions of local self Government. The High Court is concerned that Bihar will be a continuous loser of funds for planning for allocation to institutions, of self Government, The Court is now making ad hoc arrangement to fill the void rendered by State Government in avoiding to make constitutionally mandated institutions functional. The State would be free to replace these ad hoc arrangements as and when it makes a suitable legislation.
15. The Court has to do nothing except to require the State Government to put the Ex-officio members as are referred to in Sub-clauses (a), (b), (c), and (d) in Sub-section (2) of Section 134 of the Bihar Panchayat Raj Act, 1993 to be identified in reference to each District Planning Committee of the district concerned, and put these ex officio members in position. Sub-section (3) is also a pattern by which the Ex-officio members can easily be identified by the State Government itself in the district concerned. Sub-sections 4 and 5 only refer as to who would be the Secretary and the Chairman of the Committee. In this regard, also the High Court has to spell out nothing as the enactment speaks for itself, and these persons should find their positions on the District Planning Committee. All this should have been done nine years ago or within its close proximity. A writ of mandamus issues to the State of Bihar to fill the void and fall in line with the intention of Section 134, aforesaid, as pointed out.
16. Apparently, what is taking time and the State Government is dragging its feet is on Sub-clause (e) of Sub-section (2) of Section 134. As long as elections to institutions to self Government had not taken place, elected representatives of the Panchayats. Nagar Panchayats, Municipalities, Corporations had not even been born. Now that the elections have taken place, there is no excuse available to the State Government to avoid the elected representatives of the these institutions of self Government informing part of the District Planning Committee.
17. It appears to the Court that the State Government has not reflected upon the guidelines which have been framed in 1996 by the Government of India, Ministry of Urban Affairs and Employment, and contained in a publication called Urban Development Plans Formulation and Implementation Guidelines. This publication has a sequel in Volume 2A, which refers to Model Urban and Regional Planning and Development Law. The subject to district planning is mentioned in Chapter IV. What is relevant is that the District Planning Committee has been given a personality as a body corporate with a perpetual succession and a common seal and subject to such restrictions and qualifications imposed by or under the Act or the law. These publications are only guidelines which were meant to be taken into consideration by the States of the nation. Since this publication was available with effect from 1996, even thereafter the State Government in Bihar permitted six years to lapse without putting the District Planning Committees in position. The question of their functioning as of date has not arisen.
18. The Court has already expressed its concern that unless full intent is given to the institutions of self Government which the Panchayats and the Municipalities are. there will be complications and impediments in the way of the State of Bihar to receive federal funding. Some one will have to take the blame of all these years as to why the State of Bihar lost out on federal funds. The Court cannot be answer this question. This is a question to be answered in politics. But, at least, now those who run the administration of Bihar should wake up and shake themselves and fall in line with the obligations set upon them by the Constitution of India, in this regard. The High Court cannot be a mute spectator to watch the situation and see disrespect to the Constitution
of India.
19. Thus, having filled up the ex officio position on the District Planning Committee, the only aspect which remains is to give representation to the elected persons from the Panchayats and the Municipalities. The functioning of the two in so far as the District Planning Committee is concerned, is coordinated and integrated. The anxiety of the Court is that these committees must go into operation without any delay.
20. In the circumstances, all that the State has to do is to ensure that a District Planning Committee in every district is operational forthwith. For this purpose (unless it is a Committee for metropolitan planning) let 4/5th of the total number of members of such a Committee be elected by and amongst the elected members of the Panchayats at the district level and of the Municipalities in the district. The ratio between those who represent the rural areas and the urban areas will be in proportion to the ratio between the population of these areas. (Article 243 ZD).
21. The State Counsel present at the Bar gave the Court to understand that a draft scheme for carrying out this election process is almost ready. Be that as it may, the Court is not spelling out this mechanism and leaving it to the State Government to put into execution whatever formula it may have formulated provided that the representation from the elected members will not be less than 4/5th. The ex officio members of the Committee will be in addition.
22. Another aspect which the Court notices and has not been provided in either of the enactments is the emphasis laid by the Constitution on habitat planning. In matters of planning, which basically is about habitat, is the absence of a Chief Town and Country Planner. It is this expert who will coordinate and integrate planning on the concept of coordinated Integrated spatial planning. Unfortunately, the State of Bihar does not even have a Chief Town and Country Planner. This aspect, the Court has reflected in another case CWJC No. 2328 of 2002.
23. In the circumstances, while the District Planning Committee will come into operation the State of Bihar can ill-afford not to have a Chief Town and Country Planner, who will be an ex-officio member of alt the District Committees. When the entire directorate under a Chief Town and Planner has been set up, then, the latter may send his nominee not below a certain rank to be a member at the District Planning Committee. The District Planning Committees should be in full operation before the present month is out. I Any suggestion which has been given by the High Court in this order is only for the purpose that the Constitution of India should not see embarassment in being bypassed which has been done for the last nine years and the intention of the High Court is to put the District Planning Committees in position. The suggestions made by the High Court are an ad hoc arrangement. Now it will be entirely upon the State Government to replace the suggestions of the High Court by an appropriate legislation whenever it desires to do so.
24. The purpose of this order was that the void must not be suffered by the people of Bihar nor the Constitution of India should be belittled only because the State Government would not rise to the occasion to make the Panchayats and the Municipalities fully operational.
25. Mr. S. A. Hussain. S.C. 6, states he will endeavour that the guidance given by the High Court in this order may be put into implementation during this month and requests that this matter may be put up on 7 Oct. 2002, when he will report to the Court.
26. As desired by learned State Counsel
(S.C. 6), put up on Oct. 7, 2002 in the supplementary list.