National Green Tribunal
Bharat Kumar Jain vs Union Of India Through The Secretary ... on 11 September, 2020
Item No. 02(Bhopal Bench)
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(Through Video Conferencing)
Original Application No. 47/2016(THC)(CZ)
Bharat Kumar Jain & Anr. Applicant(s)
Versus
Union of India & Ors. Respondent(s)
Date of hearing: 11.09.2020
CORAM: HON'BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. SATYAWAN SINGH GARBYAL, EXPERT MEMBER
For Applicant(s) Mr. Naveen Ahuja, Advocate for Applicant
For Respondent(s) Mr. Om Shankar Shrivastav, Advocate
Mr. Saurabh Sahni, Advocate for State
ORDER
1. By filing the present petition, it is alleged by the applicant that due to rampant commercialisation and indiscriminate construction activity going on in the area is causing destruction of forest and the deterioration of environment due to unrestraint destruction of forest and there has been a perceptible change in the climate conditions of the area resulting in erratic rainfall in Mount Abu where no construction zone has been declared and directed by Hon'ble the Supreme Court as well as Notification dated 25.06.2009 has been issued by the Government of Rajasthan.
1
2. It is further alleged that the permissions for construction have been granted in the garb of carrying out repairs/renovations and permissions have also been granted to those offenders whose litigations, with regard to the ownership and/or issue of constructions are still pending.
3. It is further alleged that illegal constructions and encroachments are still continuing in the area without taking requisite permissions by the Monitoring Committee or due to inactiveness of the Municipal Corporation and the Local Administrative Authorities. There are allegations that :-
(i) Illegal constructions were demolished by the Municipal Corporation but again constructions have been raised.
(ii) There are certain constructions which are shown to have been demolished in black and white but in utter disregard to legal process are tangibly existing.
(iii) That the order passed in Writ Petition No. 202/1995 in T.N. Godaverman Thirumulpad Vs. Union of India (I.A. No. 757/2002) and orders passed by the Hon'ble Supreme Court of India in I.A. No. 972/2004 dated 19.04.2004 has not been strictly complied with.
(iv) The Notification dated 25.06.2009 issued by the Government of India declaring Mount Abu and the surrounding region as an eco-sensitive zone has not been complied with.
4. The application is pending since 2016 as a transfer case from Hon'ble the High Court and in spite of the repeated directions the authorities are not complying with the directions issued by Hon'ble the Supreme Court and also various provisions of the notification and ultimately when the Municipal Commissioner was called to report by personal appearance 2 and an affidavit has been filed on 07.09.2020 with the facts that during the period from 01.02.2020 to 31.08.2020 a total number of 18 encroachments have been identified by the Municipal Board(point no.11).
5. It is further reported that drive has been carried out to ensure that Mount Abut to be plastic free town and compliance of the Municipal Solid Waste Management Rules are being taken. But the Municipal Corporation has not submitted as to how the plastic free town be implemented and what is the method for disposal of plastic.
6. It is further not reported that as to how the Municipal Solid Waste is managed and what is the process of disposal of the solid waste. The status of untreated water/sewage water has not been reported.
7. The Mount Abu is one of the best tourist place in India and the beauty of Mount Abu does not only inspire the tourist but also it is one of the source of economy of the State. In spite of the various directions, the rules and provisions have not been implemented and proper reply is not being regularly submitted.
8. The Learned Counsel appearing for the MoEF & CC Mr. Om Shankar Shrivastav has submitted that it is the duty of the State to implement the Notification and the policy of the Master Plan.
9. The Learned Counsel appearing for the State short time to file the reply.
10. The Learned Counsel appearing for the Applicant has submitted that in spite of the notification and repeated directions of Hon'ble the Supreme Court and this Tribunal, the authorities at ground level, Municipal Corporation and the District Administration are silent spectators of 3 unauthorised constructions and, or permitting the illegal and unauthorised constructions for ulterior motives.
11. When the law protector becomes the law violators, how law will be protected. The basic principle of rule of law is to follow rule/ law and not to break or violate it. For the negligence of those to whom public duties have been entrusted can never be allowed to cause public mischief. Public servants if committing wrong in discharge of statutory functions and later on if it was found not be in accordance with law within the knowledge of the officer concerned then it cannot be said to be the work and duty within the definition of State Act.
12. The action and unauthorised construction as alleged is not only disregard to the law but it is negation of the authority of the State by the public official doing the act and in accordance with their wishes. An action specifically punitive action does lie for doing what the legislature has authorized if it is done negligently carelessly and in violation of the law. Under our Constitution sovereignty vests in the people. Every limb of the constitutional machinery is obliged to be people oriented. No functionary in exercise of statutory power can claim immunity, except to the extent protected by the statute itself. Public authorities acting in violation of constitutional or statutory provisions oppressively are accountable for their behaviour before authorities created under the statute like the commission or the courts entrusted with responsibility of maintaining the rule of law. Each hierarchy in the Act is empowered to entertain a complaint by the consumer for value of the goods or services and compensation. Any act by any officer in violation of the rules is abuse of power, deliberate maladministration, and perhaps also other unlawful acts causing injury. The servants of the government are also the 4 servants of the people and the use of their power must always be subordinate to their duty of service. A public functionary if he acts maliciously or oppressively and the exercise of power results in harassment and agony then it is not an exercise of power but its abuse. No law provides protection against it. He who is responsible for it must suffer it. Compensation or damage as explained earlier may arise even when the officer discharges his duty mala-fidely and not in accordance with the guidelines, when it arises due to arbitrary or capricious behaviour then it loses its individual character and assumes social significance. Harassment of a common man by public authorities is socially abhorring and legally impermissible. It may harm him personally but the injury to society is far more grievous. Crime and corruption thrive and prosper in the society due to lack of public resistance. Nothing is more damaging than the feeling of helplessness. An ordinary citizen instead of complaining and fighting succumbs to the pressure of undesirable functioning in offices instead of standing against it. Therefore the award of compensation for harassment by public authorities not only compensates the individual, satisfies him personally but helps in curing social evil. It may result in improving the work culture and help in changing the outlook.
13. Statutory rules are required to be observed. It is settled law that when the action of the State or its instrumentalities is not as per the rules or regulations and supported by a statute, the Court must exercise its jurisdiction to declare such an act to be illegal and invalid.
In Sirsi Municipality Vs. Cecelia Kom Francis Tellis, AIR 1973 SC 855, the Supreme Court observed that "the ratio is that the rules or the regulations are binding on the authorities." 5
Similarly, a Constitution Bench of the Hon'ble Supreme Court in Sukhdev Singh & Ors. Vs. Bhagatram Sardar Singh Raghuvanshi & Anr., AIR 1975 SC 1331, has observed as under:-
"The statutory authorities cannot deviate from the conditions of service. Any deviation will be enforced by legal sanction of declaration by Courts to invalidate actions in violation of rules and regulations. The existence of rules and regulations under statute is to ensure regular conduct with a distinctive attitude to that conduct as a standard. The statutory regulations in the cases under consideration give the employees a statutory status and impose restrictions on the employer and the employee with no option to vary the conditions............In cases of statutory bodies there is no personal element whatsoever because of the impersonal character of statutory bodies..............the element of public employment or service and the support of statute require observance of rules and regulations. Failure to observe requirements by statutory bodies is enforced by courts by declaring (action) in violation of rules and regulations to be void. This Court has repeatedly observed that whenever a man's rights are affected by decision taken under statutory powers, the Court would presume the existence of a duty to observe the rules of natural justice and compliance with rules and regulations imposed by statute." (Emphasis added).
14. In view of the above, we are of the considered opinion that every statutory provision requires strict adherence, for the reason that the statute creates rights in favour of the citizens, and if any order is passed de hors the same, it cannot be held to be a valid order and cannot be enforced. As the statutory provision creates legal rights and obligations for individuals, the statutory authorities are under a legal obligation to give strict adherence to the same and cannot pass an order in contravention thereof, treating the same to be merely decoration pieces in his office.
15. The judicial process should never become an instrument to appreciation or abuse or a means in the process of the Court to subvert justice. The power vested in the Tribunal or in the Court will be exercised only in 6 furtherance of justice and not merely on the making out of a legal point, the interest of justice and public interest coalesce.
16. If any construction mentioned in the report was found to be illegal in violation of the regulatory rules and instrumentalities of the State officers and agents are not authorised to act in violation of the rules. The presence of unauthorised construction in spite of the directions, notification and statutory rules, within the knowledge of the officers which has been mentioned in the report is not permissible under rule of law. The officers are not immune from their illegal activities. Their immunity is only upto the extent when they are doing the work in accordance with the procedure established with the law or in accordance with the direction, rule and regulation of the State. In spite of the directions and repeated orders from Hon'ble the Apex Court of India, this Tribunal and the notification of the Government of India and regulations of the State, these illegal constructions were there within the knowledge and report of the officers and remedial actions have not been taken. This is a serious lapse on the part of the local administration for which this Tribunal cannot be mere silent spectator.
17. In light of the importance of the place and in light of the old pendency, we are of the view that the matter should be monitored and necessary directions in light of PAN-India Modalities be issued from the Principal Bench of this Tribunal. Accordingly, we request and direct the Registry to place the matter before Hon'ble the Chairperson for transferring this application to the Principal Bench of this Tribunal for disposal.
18. In the meantime, the respondents are directed to submit complete compliance and status.
7
19. List it on 21.09.2020 for hearing and for listing of hearing.
Justice Sheo Kumar Singh, JM Dr. S.S. Garbyal, EM JG Original Application No. 47/2016(THC)(CZ) 8