Tuesday, October 29, 2013

When nature plays arbiter

M J Antony, Business Standard
July 16, 2013

Mountains and buildings have been tumbling down this season, raining deaths in thousands. Environmentalists have we-told-you-so explanations, religious oracles have their own take on it and the law speaks of the doctrine of "Act of God", though God has little to do with this man-made legal fiction. But one thing is sure, flouting laws and regulations have much to do with these calamities.

The courts have frequently dealt with unauthorised constructions built by rapacious contractors with little regard to architecture or civil engineering. Hotel industries have diverted rivers, tourism projects have come up mid-river and within coastal regulation zones. Residential colonies thrive where old maps show rivers in blue lines.

One such judgment delivered last week by the Supreme Court reviewed the problem once again before ordering the demolition of a restaurant on the Periyar river in Kerala (Association for Environment Protection vs State of Kerala). Usually the courts appear to hesitate to send bulldozers to a completed structure. The tendency of the authorities and the courts is to accept the fait accompli and regularise the violation by compounding it with a fine. But there are rare exceptions.

In this case, there were government orders that prohibited the structure on the river bed, famous for holding Shivratri. Those regulations were bypassed by the Department of Tourism. It did not refer the issue to the environment committee fearing an adverse order. The Supreme Court remarked that "the subterfuge employed by the district promotion council and the Department of Tourism has certainly resulted in violation of the fundamental right to life guaranteed to the people of the area under Article 21 of the Constitution." The high court was also blamed for allowing the structure in a cryptic order.

Normally, the court invokes the fundamental rights of citizens to clean air and water in such environment cases. However, in this case, the court took a detour and invoked the doctrine of public trust. This principle has come into prominence recently in the judgments referring to oil, gas and coal blocks, air waves and spectrum. The doctrine enjoins upon the government "to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial exploitation to satisfy the greed of a few." Even if there is no legislation to cover a specific situation, the court has held that the executive acting under the doctrine of public trust cannot abdicate the natural resources and convert them into private ownership, or for commercial use. This judgment thus emphasises further the rights of the citizens and the corresponding duty of the government.

This accent on public trust is important for future projects. Last year, in another demolition order, the Supreme Court painted a grim picture of planned development. In Dipak Kumar vs Kolkata Municipal Corporation, the court stated that "the common man feels cheated when he finds that those making illegal and unauthorised constructions are supported by people entrusted with the duty of preparing and executing master plans. Reports of demolition of hutments belonging to poor and disadvantaged sections of society frequently appear in the media but one seldom gets to read about demolition of illegally/unauthorisedly constructed multi-storeyed structure raised by economically affluent people...The failure of the state apparatus to take prompt action to demolish such illegal constructions convinced the citizens that planning laws are enforced only against the poor and all compromises are made by the state machinery when it is required to deal with those who have money power or unholy nexus with power corridors."

In another case, Jagpal Singh vs State of Punjab, the government regularised possession of common village land by encroachers. 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." In the case, M I Builders vs Radhey Shyam, the court ordered the reconstruction of a park after demolition of a shopping complex. 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. The court ordered the demolition of a tourism complex since it violated coastal regulations.

These are some cases that travelled up to the Supreme Court. Many illegalities are compounded or explained away by subordinate courts that have the power to order demolition. The offenders have deep pockets and do not hesitate to flex muscles in various ways. They also gamble with repeated appeals, expecting luck at some stage of the legal pyramid. But nature does not wait for court decisions. Impatient, it dons the cap of the arbitrator and wreaks revenge.

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