Thursday, June 23, 2011

Views: M J Antony - Undoing fait accompli

Business Standard
M J Antony | 09-02-2011

One stratagem to ward off judicial intervention while bending rules is to confront the courts with a fait accompli. If a multi-storeyed building is raised quietly and swiftly, the authorities and the courts will find it difficult to order its demolition. The illegality is most often compounded with a fine. It is harder to get permission than to obtain a gentleman’s pardon.

Sometimes, the courts do strike back. In a few judgments delivered in recent weeks, the Supreme Court took drastic steps to correct the wrongs. In the case, Krishnadevi vs Bombay Environmental Action Group, the court faced a situation in which a bund was raised obstructing the flow of water threatening to damage the eco-sensitive mangroves in a Mumbai suburban district. The court passed detailed orders to restore status quo ante.

In another case, Jagpal Singh vs State of Punjab, the government regularised possession of common village land by unauthorised occupants. The court reversed it, observing that "we are of the opinion that such blatant illegalities must not be condoned. Even if they have built houses on the land they must be ordered to remove their constructions, and possession of the land in question must be handed back to the Gram Panchayat. Regularising such illegalities must not be permitted."

The court recalled two of its earlier judgments that restored the damage done by such illegalities. In the case, M I Builders vs Radhey Shyam (1999), the court ordered reconstruction of a park after demolition of a shopping complex constructed at the cost of over Rs 100 crore. In the case, Friends Colony Development Committee vs State of Orissa (2004), the court held that even where the law permits compounding of unsanctioned constructions, such compounding should be only by way of an exception.

There have been several other instances in which the court took a tough stand. It ordered the demolition of a building meant for tourists since it violated environmental laws in the case, Piedade Filomena vs State of Goa (2004). No building was permissible within 200 metres of the high-tide line. The Bombay High Court allowed the writ petitions and ordered the demolition of the construction. The owner appealed to the Supreme Court, which upheld the high court order.

The Supreme Court ordered time-bound demolition of fish tanks illegally set up by encroachers in the Godavari-Krishna river delta in the judgment, T N Godavarman vs Union of India (2006). Encroachers had blocked the free flow of water. Farmers whose lands were ruined by chemicals opposed the building of fish tanks. The Andhra High Court and the Supreme Court ordered protection of the region.

The Jammu and Kashmir High Court, in its judgment, Om Prakash vs Administrator (2001), dealt with unauthorised constructions in Jammu city. A builder raised a five-storey tower despite being told to stop the construction. Later, he was allowed to compound the act. However, the court directed that the building be demolished.

One ingenious argument, put forward very often in such cases, is that others had also built unauthorised structures earlier, and they were allowed to compound, without demolition. The high court said, "Mistakes committed by the authorities are not enforceable in the court to seek parity or similar treatment." The concept of equality is a positive, not a negative, concept. If an illegality is permitted in one instance, others cannot invoke the court's jurisdiction to permit them to commit the same illegality.

Sometimes the passage of time and long-winding litigative process help eclipse the irregularities and make a judicial remedy impractical. Such was the case of Joydeep Mukharjee vs State of West Bengal, decided by the Supreme Court last week. There were strong protests in 1985 against allotment of plots from the discretionary quota of the chief minister. He had allotted 276 plots from his quota of 290, starting a series of litigation in the Calcutta High Court and the Supreme Court.

In the last 25 years, a full-blown township has already come up. Therefore, the Supreme Court administered a coup de grace to the litigation, remarking that there should be some finality to it and dismissed the last remaining petition. The judiciary often faces such dilemma with one horn urging it to compound the illegality and the other urging demolition.

What perpetrates and perpetuates the wrong is the collusion between the authorities and the builders, the helplessness of those affected by the wrongs and the snail-pace of court proceedings. There is an initial fight over an injunction against the illegal act; but once it is over, the matter lies there for years. By then the ground situation changes so much that it is difficult to reverse the state of affairs.

Disclaimer: Any resemblance of the above cases to the the Adarsh Housing Society and Lavasa affairs, in which the Union environment ministry has offered to compound the irregularities, is purely coincidental.

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