M J Antony: Clearing the civic mess

OUT OF COURT

In a series of recent decisions, the Supreme Court has taken tough action against illegal constructions.

It took more than five years of intense efforts on the part of the Supreme Court to prod the Delhi authorities to change fuel from petrol to CNG for public motor vehicles. Now the court is set on another marathon effort to bring some order into the urban chaos caused by commercialisation and illegal constructions in the national capital. In a lesser way, the court has been meeting similar challenges in other cities too.

In February this year, the court had passed detailed directions to stop commercialisation of residential areas in the metropolis. The authorities complied with it for some time, by demolishing illegal constructions and sealing commercial establishments which functioned in residential colonies. But soon Parliament brought in a law giving a one-year moratorium for the errant owners. This law was challenged in the Supreme Court, which observed that prima facie it was invalid. The court then partially stayed the law, giving time till September 15 to comply with its earlier orders. The further denouement of this virtual confrontation is still awaited.

The Supreme Court has tackled the problem of illegal constructions in some of its recent judgements. Its determination to deal with the issue is evident in some of them. In Seema Arshad vs Municipal Corporation, delivered in May this year, the court upheld the order of the Bombay High Court to demolish a number of illegal structures in Mumbai. The owners had obtained injunctions against it from the subordinate courts. But the appellate courts vacated them.

Regarding injunctions so easily granted by the lower courts against demolition of illegal buildings, the Supreme Court remarked: "Where the owners do not make out a prima facie case for grant of an injunction and the records clearly show that the structures are unauthorised, the court may not grant a temporary injunction merely on the ground of sympathy or hardship. To grant a temporary injunction, where the structure is clearly unauthorised and the final order passed by the commissioner after considering the entire material directing demolition is not shown to suffer from any infirmity, would be to encourage and perpetuate an illegality."

In an earlier leading judgement (MI Builders vs Radhey Shyam Sahu, 1996), the court had said in categorical terms: "Unauthorised construction, if it is illegal and cannot be compounded, has to be demolished. There is no way out. Judicial discretion cannot be guided by expediency. Courts are not free from statutory fetters. Justice is to be rendered in accordance with law. Judges are not entitled to exercise discretion wearing the robes of judicial discretion and pass orders based solely on their personal predilections and peculiar dispositions. Judicial discretion, wherever it is required to be exercised, has to be in accordance with law and set legal principles."

The Supreme Court started the year with a judgement dealing with unauthorised use of land allotted by the Bangalore Development Authority (S N Chandrashekar vs State of Karnataka). A house plot was turned into a vegetarian restaurant, against which the residents protested. The commissioner of the development authority had earlier warned that if the conversion was allowed, the volume of traffic would increase, causing parking problems and congestion. However, his objection did not prevail in the end. The residents moved the high court, where they lost. But the Supreme Court upheld their objection and asserted that the state government and the authority had committed "serious violation of the zonal regulations; it cannot be sustained."

Two judgements where the Supreme Court took to task chief ministers for interfering in such matters are significant. In Milk Producers Association vs State of Orissa, the chief minister announced a scheme to rehabilitate milk producers at a site earmarked for other purposes in the master plan. The court said: "The law prohibits maintenance of cow sheds or dairies in or around Bhubaneswar... In a 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."

Another chief minister was censured for meddling in civic planning in K K Bhalla vs State of MP. If directions regarding allotment of land, regularisation or conversion of land are to be issued by the state government to the Jabalpur Development Authority, it should be done by the cabinet and the minister concerned. "Such a direction could not have been issued at the instance of the chief minister," the Supreme Court emphasised.

Some of the court's pronouncements would guide them further in dealing with similar illegalities. The determination of the court in cleaning up the Delhi mess was clear when it observed several times during the hearings that the Delhi law was void. Last week, it declared that it was imposing only a partial stay for the moment. But there was no doubt following the proceedings which way the wind was blowing.