Case BriefsSupreme Court

Supreme Court: Dealing with the authority of the “Monitoring Committee to seal the residential premises on the private land” particularly when they are not being used for the “commercial purpose”, the 3-judge bench of Arun Mishra, BR Gavai and Krishna Murari, JJ has held that the Monitoring Committee is not authorized to take action concerning the residential premises situated on the private land. If there is unauthorized construction or in case of deviation, the requisite provisions are under the Delhi Municipal Corporation Act, 1957 (DMC Act), such as sections 343, 345, 347(A), 347(B).

In the order reported in (2004) 6 SCC 588 in this case, this Court considered the question of regularization of illegal industrial activities in the context of a violation of Master Plan and industrial activities in residential non­-conforming areas of Delhi. Requisite directions were issued for closure or relocation of industrial units non­confirming with the ecological balance considering the right of a hygienic, clean and safe environment. The Monitoring Committee was appointed and empowered in 2006 by this Court to take action within the powers conferred vide judgment in M.C. Mehta v. Union of India, (2006) 3 SCC 399. The Monitoring Committee was authorized to take care of the unauthorized colonies, and the Special Task Force was directed to remove the encroachments from the public roads and public streets.

Considering the various orders passed by it from time to time, before the constitution of the Monitoring Committee, The Court found that it, at no point in time, has empowered the Monitoring Committee to take action with respect to residential premises not used for commercial purpose.

“No doubt about it that matter of encroachment is a matter of concern, but the Monitoring Committee can act within the four corners of powers conferred upon it and purpose for which the court appointed the Monitoring Committee. It cannot exceed its powers and take any action beyond its authorization by the court.”

Considering it’s order dated 7.9.2018 where the Court had specifically noted in the aforesaid paragraph that the Monitoring Committee is doing it’s best to remove the encroachments/ unauthorized constructions or misuse of the property, The Court said that but that the same relates to the encroachments on the public land and unauthorized colonies, and at no point of time this Court has authorized the Monitoring Committee to take action concerning residential premises which were standing on the private land and were not being misused.  The aforesaid observations are not with respect to the Committee’s authorization but have to be read in the context of the purpose for which the Monitoring Committee had been appointed.

“The power of the Monitoring Committee could not be said to be widened by the aforesaid observations made in the order. This Court specifically dealt with in several orders the questions relating to power and the purpose for which the Monitoring Committee had been appointed.”

When asked to give it’s considered opinion specifically as to whether at any point in time in the past, it sealed any residential premises, which were not misused for commercial purposes, the Monitoring Committee kept silent on this aspect and did not cite even a single such instance.

It further noticed that the power of sealing of property carries civil consequences. A person can be deprived of the property by following a procedure in accordance with law.  The Monitoring Committee is not authorized to take action concerning the residential premises situated on the private land. If there is unauthorized construction or in case of deviation, the requisite provisions are under the DMC Act, such as sections 343, 345, 347(A), 347(B).   The mode of action and adjudication under the Act is provided including appellate provisions and that of the Tribunal.

“It would not be appropriate to the Monitoring Committee to usurp statutory powers and act beyond authority conferred upon it by the Court.  The Monitoring Committee could not have sealed the residential premises, which were not misused for the commercial purpose, nor it could have directed the demolition of those residential properties.”

It noticed that when the Monitoring Committee is not empowered to take action, the incumbents could not have   been deprived of the due process of protection in accordance with law.  As against the action of the Monitoring Committee, no appeal lies elsewhere. Even High Court is not authorized to entertain any matter and scrutinize its action, such is the drastic step taken by this Court by  way of an exceptional measure in public interest, and it is confined to the misuse of residential property for commercial purpose and encroachments and unauthorized construction on the public land, roads.

“Article 300A of the Constitution provides that nobody can be deprived of the property and right of residence otherwise in the manner prescribed by law.  When the statute prescribes a mode, the property’s deprivation cannot be done in other modes since this Court did not authorize the Committee to take action in the matter. An action could have been taken in no other manner except in accordance with the procedure prescribed by law.”

[MC Mehta v. Union of India, 2020 SCC OnLine SC 648, decided on 14.08.2020]

Case BriefsCOVID 19High Courts

Calcutta High Court: A Division Bench of Thottathil B. Radhakrishnan, CJ and Dipankar Datta, J. issued interim directions for the administration of Andaman and Nicobar Islands with regard to contain the outbreak of Coronavirus in the Islands.

“COVID-19 has been wreaking havoc all over the country. It is indeed unfortunate that the virus has spread even to the Andaman Islands.”

Monitoring Committee was constituted pursuant to the hearing on 28-03-2020 with the purpose to make an overall assessment of all relevant factors including supply of essentials and availability of other support mechanisms for people stationed at the Islands with a direction submit report for the same.

Court has perused the above stated reports.

Further, petitioner has highlighted points of concern that require immediate attention by the administration for the benefit of islanders during the period of lockdown.

Additional Solicitor General appearing for the UT Administration that the situation in islands is under close monitoring by Ministry of Home Affairs as well as PMO and no stone would be left unturned to ensure that such situation does not go beyond control.

He added that,

Instructions to suit the peculiar needs of the islanders are being constantly issued together with supplies of essentials, medicines and health care equipments and officers at all levels posted in the islands, irrespective of status and position, have been engaged in activities to benefit the people they serve.

Monitoring Committee’s report was referred that suggested that ample stocks were there for the next 3 months.

ASG also suggested that petitioner may feel free to share what all is needed at the islands and efforts to bring the results would be taken by the administration.

According to MC report:

  • Stock of essentials are presently available and expected to be available in next couple of days.
  • Overcrowding on the streets of Port Blair would be frustrate the administration attempts to contain the outbreak of COVID-19.
  • Reiterated need for providing essentials to public by home delivery.
  • People with minor illness are receiving medical advice on phone and with major health issues are being allowed access to hospital.
  • Administration is fully geared up to combat any crisis situation

Efforts and initiatives of the administration, in these trying times, need to be appreciated instead of picking bits and pieces of faults/remissness, here and there, in working out the relief programmes and highlighting the same for condemnation.

Court stated that,

“…each one of us, whether it be the executive, the judiciary or the civil society, have to work hand in hand to avert any further disaster, which might spell doom for the islands.”

Although, the administration seems to be conscious of what is required having regard to the ground realities, we feel inclined to make certain interim directions as follows:

(a)‘social distancing’ is non­-negotiable till April 14, 2020 and the administration shall see to it that there is no slip in regard to compliance with such norms;

(b)  the administration shall continue its endeavour to provide home delivery of essentials and medicines

(c)  in areas where such home delivery is not possible, shops may be allowed to be opened for a few hours for restricted functioning;

(d)  supply of drinking water should be ensured in all localities

(e)  access of LPG to households should be ensured commensurate with the supplies at hand;

(f)  transportation of perishables and local produce from the nearby islands

(g)  collection of milk and milk produce by employing adequate hands and vehicles from places near to Port Blair ought to be made operational;

(h) helicopter and shipping services should be utilized only for essential services, which would also include transportation on medical ground;

(i) personal protective equipment (PPE), masks, alcohol based sanitizers, disinfecting chemicals and all such substances required by the healthcare professionals, who are at the forefront of battling the outbreak, must be provided

(j)  proper hygienic conditions in the hospitals, nursing homes, clinics, health centres, etc. have to be ensured at any cost, lest the medical and para­medical staff fall prey to the virus;

(k)  the concern expressed by a member of the staff of the hospital (Annex. 4 to Mr Kabir’s report) must be looked into seriously and remedial action taken, for, if suspects are not appropriately tested to avoid creating panic, the healthcare workers would be exposed to the dangers of the virus which is not at all desirable;

(l)  senior citizens being most vulnerable to the attack of the virus, their other ailments, need to be checked and kept under control

(m) administration shall take special care to ensure that there is no spread of the virus amongst the vulnerable local indigenous communities

(n)  local authorities may not ignore the need to clear waste and garbage, for, as and when they pile up,

(o)  measures to sanitize public areas such as bus terminals, jetties, shops (opened to provide essential supplies) as well as petrol pumps, should be undertaken at such regular intervals as the administration deems appropriate;

(p)  banks and financial institutions may be kept open, albeit with restricted access, to facilitate transactions of emergent nature;

(q)  authorities concerned shall be directed by the administration to ensure uninterrupted internet connectivity

(r)  consignments dispatched through ships from any country having history of virus infection shall not be unloaded on any part of the islands unless such unloading has already commenced and in such a case, it is for the administration to decide, in its discretion, whether such unloading should be continued or not;

(s) stress and strain of police personnel on duty notwithstanding, we expect a humane approach from them while dealing with members of the public who are compelled to stray out for procuring essentials for dear life despite the lockdown without staying at home at all times but this may not be seen to dampen the spirits of those honest and sincere police personnel who are compelled to use the stick, being left with no other alternative, to maintain law and order in these difficult times;

(t) administration shall take due care of the hundreds of migrant workers at Port Blair and elsewhere by accommodating them in temporary shelter homes and by making provisions for their basic needs,

(u) Central Government shall extend its fullest cooperation and assistance to the administration to prevent any loss of life in the islands, either due to the disease or starvation, and also ensure that all essential supplies are made available to the people

Bench further constituted monitoring sub­committees to report to the Court on similar lines as per the requirement of the order dated March 28, 2020 as well as the directions contained in this order.

Matter to be listed on 08-04-2020. [Court on its own motion: In Re Relief and services at the Andaman and Nicobar Islands, 2020 SCC OnLine Cal 695, decided on 01-04-2020]

Case BriefsCOVID 19High Courts

Calcutta High Court: A Division Bench of Thottathil B. Radhakrishnan, CJ. and Dipankar Datta, J. invoked the extraordinary jurisdiction with regard to a matter relating to grim state of affairs in the Union Territory of Andaman and Nicobar Islands.

“Access to justice is multifaceted assistance to the people. It is not confined to mere access to courts. It spreads out and trickles down multifarious inalienable necessities for human existence and environment management. Provisions to support cohesive and comprehensive deliverance of matters connected with life is among the guarantees, including fundamental rights, in the Constitution.”

Court directed Union of India and UT of Andaman and Nicobar Islands through Chief Secretary to respond immediately.

Court also stated that having regard to the exigencies of circumstances proceedings of this case will continue utilising WhatsApp, e-conferencing, e-mails, etc. as modes of communication and judicial management for the time being.

Bench added that,

It would appear that there are orders issued by the administration for smooth distribution of essential commodities and medicines to the island. However, what is happening on the ground is the real question.

In view of the above, a Monitoring Committee is to be constituted headed by the District Judge, with the Judicial Secretary, the Superintendent of Police, South Andamans and the President of the Bar Association, Port Blair, as members.

Committee is directed to make an overall assessment of all relevant factors including supply of essential commodities and essential articles, medicines, fuel and availability of other support mechanisms for the people of Andaman and Nicobar Islands.

The case will be considered by the Court on 31-03-2020. [In Re : COVID 19 – Relief and services at the Andaman and Nicobar Islands,    2020 SCC OnLine Cal 694 , decided on 28-03-2020]