The Author, Divyansh H Rathi is Managing Partner of Lexidem & Rathi: A Global Law Firm. He is practicing in Supreme Court and Delhi High Court.
Introduction
The Supreme Court of India has the power and duty to protect constitutional rights of the citizens of India. The role of Supreme Court becomes more than relevant when the authorities vested with the powers to book the violators of law are themselves hands in glove with the violator leaving the common citizen of the nation with no option to approach the Courts for protection of his/her fundamental rights.
One of major causes of global warming has been environmental degradation due to various forms of pollution from industries and metropolitan cities, reduction of forest land, unscrupulous and unchecked mining activities carried out by Mining Mafia. The mining activities are seen to be often carried out in violation of the law of land and in connivance with the corrupt officials of the Regulating Authority which has a negative impact on the environment. The mining activities bring extensive alteration in the natural tend profile of the area. Mining Pits and unattended dumps of overburdened left behind during the mining operations are the irreversible consequences of the mining operations and rock blasting, movement of heavy vehicles, movements and operations of mining equipment and machinery cause considerable pollution in the shape of noise and vibration. The ambient air in the mining area gets highly polluted by the dust generated by the blasting operations, vehicular movement, loading/unloading/transportation and the exhaust gases from equipment and machinery used in the mining operations.
The idea of Supreme Court to look into non-action of the authorities on illegal activities being carried and persistent efforts by the Apex Court to curb such activities led to decision to appoint Monitoring Committee to look into illegal mining near the tourists spots in Haryana in the year 2004. On the sidelines of such decision, Supreme Court again proceeded to bring in use the mechanism of Monitoring Committee to look into the illegal construction in National Capital Delhi in the year 2006. But has the unimpeachable idea of Apex Court-appointed Monitoring Committee which was appointed 13 years ago become obsolete?
Supreme Court Monitoring Committee: The Beginning
The Supreme Court of India first appointed the Monitoring Committee to look into the compliance of guidelines laid by the Hon’ble Apex Court to protect the environment and control pollution caused to illegal mining within the vicinity of two tourist resorts Badkal Lake and Surajkund in Haryana. The SC Bench in M.C. Mehta v. Union of India and Ors. 1996 Latest Caselaw 844 SC, AIR1997 SC 734 had issued series of directions amongst that it was necessary to stop mining activity within 2 kms. radius of the tourist resorts of Badkal Lake and Surajkund in Haryana.
Subsequently in the year 2004, Supreme Court in M.C. Mehta v. Union of India, 2004 Latest Caselaw 177 SC, MANU/SC/0247/2004 was gripped with the issue of whether the compliance of the conditions imposed by the Pollution Boards while granting no objection certificate for mining and also compliance of various statutory provisions and notifications as also obtaining of the requisite clearances and permissions from the concerned authorities before starting the mining operations was being undertaken.
SC Bench also considered the issue whether the mining activity deserves to be absolutely banned or permitted on compliance of stringent conditions and by monitoring it to prevent the environmental pollution.
Supreme Court Bench comprising of Justice YK Sabharwal and Justice HK Sema were of the view that to monitor the overall eco-restoration efforts in the Aravalli Hills and to provide technical support to the implementing organizations and also to monitor implementation of recommendations contained in reports referred herein, it is necessary to constitute a Monitoring Committee. The heads of the following departments would be members of the Monitoring Committee :
- Regional Officer of State Pollution Control Board.
- Forest Department
- District Administration
- Department of Mining & Geology
- Irrigation Department
- Regional Officer of CGWB
- Agriculture Department
- District industry Department.
- Chairman - CPCB.
Bench stated that Besides above, MOEF is directed to appoint an officer from Central Ground Water Board to be a member of the Monitoring Committee. The following persons as representatives of public shall also be members of the said Committee:
- Prof. Dilip Biswas, Ex Chairman, CPCB.
- Mr. Valmiki Thapar,
- Mr. Bhure Lal.
The MOEF would act as a nodal agency of the Monitoring Committee. The Secretary of MOEF is directed to appoint an officer not below the rank of a Joint Secretary in the Ministry for the said purpose.
The Monitoring Committee was directed to inspect the mines in question and file a report within a period of three months, inter alia, containing suggestions for recommencement of mining in individual cases, All concerned individuals and departments were directed to render full cooperation to the Monitoring Committee.
Supreme Court Monitoring Committee: Second Innings
Supreme Court has a constitutional duty to protect the fundamental rights of Indian citizens. What happens when violators and/or abettors of the violations are those, who have been entrusted by law with a duty to protect these rights? The task becomes difficult and also requires urgent intervention by court so that the rule of law is preserved and people may not lose faith in it finding violations at the hands of supposed implementers. The problem is not of the absence of law, but of its implementation.
After handling the issue of illegal mining with iron hand, the Supreme Court dealt with the issue of illegal construction in the National Capital of Delhi in M.C Mehta v. Union of India, 2006 Latest Caselaw 79 SC, MANU/SC/8028/2006.
Supreme Court dealt with the issue of large number of immovable properties throughout Delhi, flagrant violations of various laws including Municipal Laws, Master Plan and Environmental Laws. With a view to secure the implementation of laws and protect fundamental rights of the citizens, various orders were passed from time to time.
Considering such large-scale flagrant violations, Supreme Court had to prioritize as to which violations may be taken up first and appropriate directions in relation to it. In this view, at first instance, directions were issued in respect of shifting of hazardous and noxious industries out of Delhi. Directions were also issued for shifting of heavy and large industries as also some extensive industries. For shifting polluting industries had to be given top most priority. Later, directions were issued for shifting of other extensive industries considering the continued unauthorized use contrary to Master Plan and Zonal Plan, by those industries as well as some other industries continuing in residential/non- conforming areas.
Apex Court Bench was perturbed by the serious issue that on one hand repeated orders were being issued to ensure implementation of the laws while on the other hand, simultaneously, more and more violations were taking place.
SC Bench comprising of Justice YK Sabharwal, Justice B.N. Srikrishna and Justice R.V. Raveendran dealt with the question about the power of MCD and Delhi Development Authority (DDA) to direct demolition and/or sealing of the properties being misused by commercial activities being carried out from residential premises.
Supreme Court Bench stated that, “Rule of law is the essence of Democracy. It has to be preserved. Laws have to be enforced. The implementation and enforcement of law to stop blatant misuse cannot be delayed further so as to await the so called proposed survey by MCD. The suggestions would only result in further postponement of action against illegalities”.
Bench further added that, “we will issue further directions including constitution of a Monitoring Committee, if necessary”.
Apex Court eventually proceeded to appoint a Monitoring Committee vide order dated 24/03/2006 and stated that, “to ensure that sealing of offending premises in terms of the letter and spirit of this Court’s directions, it is necessary to appoint a monitoring committee instead of leaving any discretion with the officers of the MCD. Accordingly, we appoint a Monitoring Committee comprising of Mr. K.J. Rao, Former Advisor to Election Commissioner, Mr. Bhure Lal, Chairman, E.P.C.A. and Maj. Genl.(Retd.) Som Jhingan”.
Central Government v. Monitoring Committee
Centre thereafter proceeded to appoint a 13-member Special Task Force (STF) headed by the DDA vice-chairman and comprising representatives of civic bodies to remove encroachments and take effective steps to reclaim the land. The STF was formed by the Delhi Development Authority (DDA), which is under the Union Ministry of Housing and Urban Affairs. The STF was given wide powers to direct local bodies and police to provide appropriate infrastructure facilities to the residents of Delhi and curb illegal construction in the city.
Consequent to the appointment of the Special Task Force, the Monitoring Committee and the STF have been at loggerheads and making allegations against each other over inability to act on illegal construction in National Capital. Thereafter, with an aim to bring an end to the tussle, Centre approached the Supreme Court seeking winding up of the SC-Appointed Monitoring Committee.
Centre, in its intervention application, stated that the Monitoring Committee has outlived its purpose and the two committee format leads to duplication which therefore leads to confusion. The Centre is already fire-fighting several decision of the committee. Monitoring Committee recently faced criticism for failing to protect the interest of traders, who face action under sealing; and the latest order to seal all fitness centres, gyms, yoga and meditation centres, which came into operation after August 12, 2008.
Centre further stated in its application that the age of the three committee members, Former Advisor to the Election Commissioner K J Rao (77), EPCA Chairperson Bhure Lal (76) and Major General (Retd) Som Jhingan (86) as a factor and stressed that, “There is no justification to further burden the monitoring committee with the task entrusted to it as it is vehemently cumbersome for the members to physically inspect properties when required, and to actively participate when the issues are urgent and require immediate attention”.
Centre stated that the application states, adding that members, who rendered commendable services, have “reached an age at which it is not justifiable to burden them”.
One of reasons cited for disbanding the Monitoring Committee was a charge of Rs 1 lakh is imposed for submitting an appeal to deseal a property. A large number of people whose premises have been sealed belong to the lower-middle class and do not have the capacity to pay the amount. Centre further added in its application that the due to this the properties cannot remain lying sealed in perpetuity and opportunity has to be given to the affected people to take corrective measures and make them compliant as per the law. This is not happening as many people are not able to approach the monitoring committee due to high financial implications involved, resulting in wastage of resources and denying livelihood to a sizable population of Delhi which is willing to comply with the law by paying requisite charges.
Application also states that STF members are appointed on the basis of posts held by them, and not in an individual capacity as in the case of the monitoring committee. This lends more credence to this body and also ensures that no individual continues to be a member of the STF in perpetuity, the Centre states in the application.
While opposing the Centre’s petition, the Amicus Curiae stated that, “the government is trying to hand over the task to the same authorities that failed to carry out their statutory and constitutional duty and which compelled the court to step in”.
Supreme Court bench comprising of Justice Arun Mishra and Justice Deepak Gupta stated that, "Our Monitoring Committee will not, but your STF will go. Your petition is against the dignity of this court, and it is derogatory to file against this petition against the Committee. And the basic fundamental for the betterment of Delhi is being ignored, as it appears nobody thinks of Delhi.
Apex Court observed that, “Two authorities were quarrelling, there seems to be something wrong with Delhi and pointed out that even the Centre and Delhi government are fighting on administration of the capital. Is this the way to serve the people and to make Delhi a better place to live? Centre, NCT government and other authorities, including these committees, are fighting with each other and no one is thinking about Delhi. It is shocking”.
Not only the Central Government, but the Trader Association has also rallied seeking disbandment as the monitoring committee has set its own rules completely paralyzing the existing structure comprising of DDA and Municipal Corporations. They have further stressed that Monitoring Committee has not giving permission to de-seal commercial shops that were sealed in the past two years.
One of the pertinent reasons underlying the call for disbanding the SC-appointed Monitoring Committee by the Central Government and Traders has been the age of the Committee Members. The three members of the Monitoring Committee are above 75 years, while retirement age in a government is 60 years and the retirement age of a Supreme Court judges is 65 years. Also the Committee members having been holding their posts continuously since past 13 years without any new appointment and neither any fresh appointment to the Committee is foreseeable in near future as no retirement age has been prescribed by the Supreme Court.
Another critical reason which shows high headedness and autocratic operation of Monitoring Committee is that for filing an appeal in Supreme Court against the order passed by the Monitoring Committee, the aggrieved party has to make a deposit Rs 1 Lakh, which in many cases act as deterrent to file representation leading to properties lying sealed in perpetuity, which eventually to loss of livelihood and earning.
All the appeals from the order passed by the Monitoring Committee are heard by Supreme Court exclusively. Apex Court has clearly stated that no Court or Appellate Tribunal has the authority to hear any appeal against the order passed by the Monitoring Committee. There have been many occasions when Delhi High Court has expressed its anguish due to its ‘hands being tied’ due to the exclusivity of the Supreme Court to hear the appeals against Monitoring Committee’s decisions.
Conclusion:
The reason herein stated above by the Central Government and the Traders Association opposing the continuance of Monitoring Committee are very relevant as it has been more than a decade since the members of Monitoring Committee were appointed and there seems to be no foreseeable changes in future as well. All the Constitutional Post under Constitution of India like Prime Minister and President of India have the term of 5 years while the Supreme Court judges have retirement age of 65 years. So the question arises how can the Monitoring Committee be so infallible and irreplaceable that no member term or replacement criteria has been laid down by the Supreme Court and it has been continuing as it is since 13 years.
Although the thought of the Supreme Court may have been of welfare of the State and Citizens of the National Capital but at the same time even if such high ideas are to be respected, the ad-hoc mechanisms like Monitoring Committee which has no prior experience in the field of Civil Engineering, Architecture etc should be assisted by the paraphernalia of experts to assess the structures of the buildings and legal team to recommend the appropriate action rather than blanket sealing instructions which are passed by the Monitoring Committee in many cases. Such directions cause hardship to the property owners which has been many cases where the violations can be complied with by payment of necessary charges or minor alterations in the structure of the property.
Rather than creating animosity and making the abolishment of the Monitoring Committee and ego issue between the Central Government and Supreme Court, both of them should work together constructively to establish a system of checks and balances. The existing paraphernalia of Delhi Development Authority and Municipal Corporations should be strengthened with involvement of appropriate experts of the field and strict guidelines of anti-corruption and integrity should be implemented. Such expert members should have definite term of appointment so that they are not infallible and are answerable for their actions.
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