Noting that the Brihanmumbai Municipal Corporation (BMC), which was supposed to take active steps to prevent illegal constructions in Mumbai, had itself indulged in unauthorised construction by building a compound wall around the Kanjurmarg dumping ground in an ecologically fragile area, the Bombay High Court has observed that its action led to the degradation and destruction of the ecologically sensitive areas and the mangroves.
Pointing out that in such matters, the BMC was expected to set a good example, especially when it came to protection of ecologically sensitive areas, a bench of Chief Justices D H Waghela and M S Sonak gave orders to demolish the wall within two months.
“The BMC which is otherwise entrusted to ensure orderly development has to take active steps to prevent illegal and unauthorised constructions. Instead in the present case, the BMC has itself indulged in illegal and unauthorised constructions, thereby degrading and destroying ecologically sensitive areas and mangroves. Merely because it is a public body and through its contractor is undertaking the laudable enterprise of municipal solid waste management, the Municipal Corporation of Greater Mumbai (MCGM) cannot ignore the laws of the land which are equally binding upon them,” said Justice Sonak, pronouncing the order.
The BMC had contested an order passed by the National Green Tribunal, directing the civic body to demolish the compound wall around the 3,000-tonne bioreactor plant on the Kanjurmarg ground.
The High Court ruled that “to permit the BMC to seek regularisation or retention would virtually amount to rewarding it for its illegal and high-handed acts.”
Senior counsel appearing for the civic body, S U Kamdar, had argued that they were not private builders and therefore different standards should apply when it came to consideration for regularisation of unauthorised constructions in Coastal Regulation Zone areas and areas affected by mangroves.
The civic body has said the construction was carried out to protect the area from encroachments.
“The treatment of municipal solid waste is no doubt conceived in public interest. However, we cannot overlook the circumstance that the BMC has engaged a contractor to treat such municipal waste, who has been handed over the site free of charge. The contractor is operating the said project on commercial basis,” said the HC.
The court pointed out that the Supreme Court had repeatedly expressed the view that governments and statutory authorities should be model or ideal litigants and should not put forth false, frivolous, vexatious, technical (but unjust) contentions to obstruct the path of justice.
The High Court added, “The reluctance to take decisions or tendency to challenge all orders against them is not the policy of governments or statutory authorities but is attributable to some officers who are responsible for taking decisions or officers in charge of litigation.”
Their reluctance, according to the court, arises from an instinctive tendency to protect themselves against any future accusations of wrong decision-making or improper motives for any decision-making.
“Unless their insecurity and fear is addressed, officers will continue to pass on the responsibility of decision-making to courts and tribunals,” said the High Court.
The BMC was granted environment clearance by the Ministry of Environment and Forests for 65.96 ha only.
The civic body and its contractor, however, enclosed the area measuring 86 ha with a compound wall, despite the knowledge that the area beyond 65.96 ha was under the Coastal Regulation Zone notification as well as mangrove area.
“We are unable to accept (BMC’s) contention that there was no requirement of either applying for or obtaining any approval from the MoEF or any state agency in the matter of construction of a compound wall in areas classified as CRZ and areas affected by mangroves.” added the High Court.