FACTS
Petitioner Yashwant Anna Bhoir, a 60-year-old agriculturist from Sonivali Village, Badlapur (W.), District Thane, had to approach the Bombay High Court under Article 226 of the Constitution of India since the petitioner had raised complaints to the concerned municipal authorities several times but no action was taken. The petition was filed against large-scale residential project Trishul Golden Ville, while it was constructed and developed by respondent no.5 – A Plus Lifespace, which was then converted into a co-operative housing society called respondent no.6. The petition alleged that the occupants of the residential complex were discharging untreated sewage and wastewater directly onto the adjacent agricultural land of the petitioner and ruining the agricultural land, denying the petitioner to use the agricultural land. The septic tanks constructed by the builder were inaccessible and insufficient for the needs of over 400 families living within the residential housing project. As a result, the untreated and/or poorly treated waste ruined the agricultural land’s fertility and was even being discharged into the Ulhas River causing significant pollution and damage to public health. The petitioner contended that the KBMC had issued an occupation certificate for the builder, despite the patent shortcomings indicating gross negligence. The petitioner sought various reliefs including: the cancellation of the occupation certificate, the appointment of appropriate processes to take action against the municipal officers who were negligent and granted the occupation certificate; Rs. 10 lakh in damages; and the immediately available remedial measures to stop the sewage discharged.
ISSUES
- Was the occupation certificate issued to the developer and the society by KBMC valid at the time, given that there was no working municipal sewerage system?
- Did the developer and society create actionable nuisance and environmental damage in affecting the applicant’s property and the ecology?
- Did KBMC and its officers breach any statutory obligations under the jurisdiction’s town planning law, environmental law, or the Constitution of India?
- Is the applicant entitled to damages or compensation for the loss of use of their agricultural land?
- Is it necessary to issue wider directions to remedy the systemic issues in enforcement of town planning law in KBMC’s jurisdiction?
LEGAL PROVISIONS
- Constitution of India: Articles 14, 21, and 300A.
- Water (Prevention and Control of Pollution) Act, 1974.
- Environment Protection Act, 1986.
- Urban Development Control and Promotion Regulations (UDCPR).
ARGUMENTS
PETITIONER
The petitioner argued that KBMC acted with willful ignorance of constitutional rights, namely Articles 14, 21 and 300A of the Constitution. The petitioner contended that the septic tanks put in place by the Developer were inadequate and as a result, the Developer released raw sewage into the farmland. He explained that this discharge not just poisoned his farm land for farming, but caused an environmental disaster when it was released to the Ulhas River, creating major public health and environmental issues. The petitioner maintained the issuance of occupation certificates to properties without the necessary infrastructure was arbitrary and illegal, and he was requesting the immediate revocation of the occupation certificates, disciplinary action against the employees and damages against the developers.
RESPONDENT
In contrast, the respondents attempted to justify their conduct. The developer said that KBMC had already commenced sewerage construction and that the septic tanks provided were a temporary solution that would be adequate for the time being. KBMC also acknowledged the lack of adequacy of sanitation infrastructure, while there are ongoing projects through central and state government schemes as evidence of long-term thinking. The society tried to insinuate itself as a victimization of municipal inefficiency by asserting that it had no autonomous control over civic facilities and that KBMC is equally reliant on providing appropriate infrastructure.
ANALYSIS
In its assessment, the Court highlighted that the matter involved significant deficiencies in municipal governance and urban planning in KBMC. It was incredulous that multi-story buildings were allowed to be built without a working sewerage system in place, with expert evidence demonstrating that the septic tanks were poorly made, insufficient for over 400 families, and did allow sewage to overflow onto the petitioner’s property and into the Ulhas River. The Court criticized the KBMC in allowing the use of occupation certificates without sewerage facilities, as this was a serious violation of statutory and constitutional law.
The Court determined that raw sewage was a serious risk to public health, soil, and groundwater, meaning the petitioner’s rights to property under Article 300A and citizen rights to a clean environment under Article 21 were violated. It noted that the developer could not evade responsibility by blaming municipal bodies for the issue, noting the Supreme Court case of Supertech, stating that construction could not take place without civic and environmental conformity to issue a certificate of occupancy. It takes note that the non-availability of a centralized sewerage system is a systemic failure affecting lakhs of residents and consequently considered it an urban planning crisis writ large. Lastly, regarding the public trust doctrine it mentioned that there could be an award of exemplary damages to hold the developer responsible and to avoid such instances in the future.
JUDGEMENT
In its judgment, the Court ordered KBMC and the developer to cease sewage discharge onto the property of the petitioner immediately and to take remedial action. It ordered an inquiry into how the occupation certificate was granted in the first place and specified that liability would rest with the negligent municipal authorities. The developer and the society were ordered to provide appropriate sewerage arrangements, as well the Maharashtra Pollution Control Board was ordered to ensure that sewage was not being dumped untreated into the Ulhas River. The Court also made long-term directions that the State Government and KBMC should expedite the sewerage projects currently underway, and that no further permission for building would be granted until there is sanitation infrastructure. There was also a possibility of exemplary damages and an indication from the Court that the developer may have to compensate the petitioner and possibly the wider community for the nuisance and damage to the environment.
CONCLUSION
In conclusion, the court ruling acts as a rallying cry for the right to human rights to a healthy, hygienic, and ecologically safe environment, reminding us that development that fails to comply with urban planning is merely ‘destruction.’ The Bombay High Court did not simply address the grievance of the individual petitioner. The court took stock of KBMC’s greater failure to secure the health, hygiene, and environmental rights of the citizens it serves. The court made it clear the right of all citizens to transactional freedom from pollution, and made it clear that councils, like KBMC, must take an oversight role in monitoring the health and welfare of the municipality. This began to paint a picture in which councils as trustees of the public good have a priority responsibility of ensuring civic amenities, like sanitation, over the interests of private commerce. The ruling also made it abundantly clear that private developers have obligations of their own that they cannot pass to others or local authorities, and that unlawful and unsustainable development is an abdication of councils’ responsibilities to protect the interests of its citizens while simultaneously foreshadowing legislative failure and the failure of councils not abdicating their responsibility to protect both the environment and the interests of its citizens.
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Written by- Anwesha Anant
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