Was Demolition of Twins Environment Friendly | Supertech Ltd. v. Emerald Court Owner Resident Welfare Assn.: A case comment

What was termed as a historic win for the homebuyers, did cause a devastating impact on India's capital environment, air quality index, and health and well-being of the people. Though the demolition of the superstructure is believed to set a precedent for the illegal construction that the nation may witness in the future, the failure of judiciary in addressing the aftermath consequences of such drives has alarmed various environmental activists and NGOs about the severe consequences of such demolitions, where no cognizance of rising temperatures, carbon footprint is taken.

The Supreme Court¹ in one of its historic judgments, upheld a Division Bench judgment of the Allahabad High Court² dated 11-4-2014, where it was directed by the High Court to demolish “Apex” and “Ceyane”, which were constructed by Supertech Limited (hereinafter “the developer”), by flouting various norms, regulations, and directions³ issued by the New Okhla Industrial Development Authority (hereinafter “NOIDA”).

The Supreme Court, conforming with the judgment of the High Court⁴ ruled that the twin towers, were unsafe to dwell, as the developer had failed to comply with:

(a) bare minimum standards required for such construction projects;

(b) misrepresentation to the Resident Welfare Association (hereinafter “RWA”) that the construction plan was duly sanctioned by the authorities; and

(c) collusion between NOIDA and developer gave a freehand to the latter to propose numerous revision plans which unjustifiably increased the height of the twin towers, without taking into account the exigencies. Hence, the Supreme Court deeming it fit and appropriate and in the interests of homebuyers, dismissed the appeal preferred by the developer.

In the famous Maradu demolitions⁵, a similar stand was taken by the Supreme Court, where authorities without giving due recognition to the “vulnerable status of the wetland and the region” which was earmarked as no development zone, allowed the construction activities to continue, and only upon the intervention of the court, that the biological importance of the region was highlighted, and the structures were ordered to be demolished.

The moot point that remains unanswered by judiciary while passing such types of orders is the absence of any guidelines to protect the environment and its constituting elements from the hazardous and ill-effects of pollutants which remain in the air, and subsequently settle down in the water bodies. It is reported that the demolition of twins produced around 80,000 tonnes of construction waste in the form of debris and rubble, and an enormous amount of toxics, in the form of pollutants, smoke, dust particles, etc. were released in the air. Though, the Construction and Demolition Waste Management Rules, 2016⁶ (hereinafter “the Rules”), could come as an aid in addressing the aftermath consequences, yet the Rules are insufficient in themselves. For instance, the Rules only focus on treatment, management, and segregation of construction wastes, without emphasising on how the demolition works shall be carried out, what procedures have to be followed to ensure that the severe consequences as a result of razing buildings, etc. are avoided. Similarly, the Rules fail in prescribing a code of conduct, guidelines, policy procedures, etc. and leave it entirely upon the ministries concerned.⁷ On a similar footing is placed the Safety and Health in Construction Convention, 1988⁸, where Article 24 provides for recourse to the national laws and regulations in the event demolitions have to be carried out. However, the Convention does not lay down any specific guidelines and measures that need to be explicitly taken care of while carrying out such activities, thereby, giving the departments concerned discretionary powers and authority to determine the manner, and mechanism for razing down buildings.

India witnesses the wrath of climate change every year, and the judicial approach towards addressing it is not driven by environmentally conscientiousness. Therefore, there is a dire need to devise some alternative procedures as not in every case, there can be a recourse to such demolition drives, in the event of violations of bye-laws, Town Planning Act, and other statutes. For example, in Citizens Forum for Mangalore Development v. State of Karnataka⁹, the constitutional validity of the amendments made to the Karnataka Town and Country Planning (Amendment) Act, 2004¹⁰, and Karnataka Municipal Corporations Act, 1976¹¹, to regularise the unauthorised constructions in the urban areas, on the payment of penalty, was tested by the Karnataka High Court. The Court while upholding the amendments, ruled that the menace of unregulated and unauthorised construction was not peculiar to the State and is a prevalent problem of other States and Union Territories as well. In addressing the question, whether an order should be passed to demolish and raze down such constructions, the Court ruled that considering their magnitude, it shall not be feasible and in the interests of environment justice to pass such an order, owing to the national waste that shall be produced. The order of the court is landmark as it is one of a kind where the Bench deemed it appropriate to address the concerns of already depleting environment with needed care and caution.

Considering the aftermath environmental impact of demolition of twins, other alternatives must have been explored and taken cognizance of by the judiciary. For instance, declaration of the premises unfit for accommodation, levy of huge penalty along with prosecution of the officials and bureaucrats involved, phase-wise demolition of the structure, etc. could have served the dual purpose, firstly, setting a precedence for the future construction projects being carried on with the collusion, and secondly, serving the environment justice without tampering with the health of the people living in the adjacent areas/regions. The Supreme Court in Goel Ganga Developers India (P) Ltd. v. Union of India¹², devised a mechanism as an alternative to demolition in the event the developer flouts the terms of the sanctioned plan, and/or does any act which requires fresh environment clearances. In such instances, the Court ruled that in addition to levying penalties, the developer could be made liable to pay damages by applying the principles of carbon footprint.

Though a plethora of judgments have attempted to lay down guidelines to achieve the objectives enshrined in the Environment (Protection) Act, 1986¹³, however, the existing judicial framework is a bit hesitant to adopt a proactive approach in addressing them due to the idea of development, which inevitably has an overriding effect.