If You Can't Control Air Pollution, Don't Permit New Projects For 2 Weeks: Bombay High Court Pulls Up BMC

While coming down heavily on the Brihanmumbai Municipal Corporation (BMC) for its failure to take corrective measures for containing the rising levels of air pollution in the city of Mumbai and nearby areas, the Bombay High Court on Wednesday orally asked the civic body not to sanction new proposals of development in the city for at least two weeks as the civic body has failed to handle the worsening air pollution in the megacity.

A division bench of Chief Justice Shree Chandrashekhar and Justice Gautam Ankhad was informed that there are at least 125 development projects, which were sanctioned by the civic body over the years, which have a worth of more than Rs 1,000 crores.

"In a small city how can you sanction such projects? This is a small city not a large city... This is gone beyond your control so you cannot control it now... Now you should wait for two weeks because your civic body isn't manning anything properly," a visibly unimpressed Chief Justice, remarked orally.

Notably, the bench had in a hearing held on Tuesday (December 23) asked Bhushan Gagrani, the Commissioner of BMC to come up with some feasible solutions to the issue and remain present in the court on Wednesday morning.

BMC Has Done Nothing

When the matter was called out for hearing today (Wednesday) morning, senior counsel SU Kamdar appearing for the BMC submitted details of the AQI Monitoring Devices installed across Mumbai and claimed that the data indicates that the pollution levels have decreased since last year and at present the air quality in the city is 'average, moderate and satisfactory.'

The judges, however, noted that 1/3rd of the monitoring devices were either not working or had no data available. The judges then sought to know from the counsel if civic officials and the Commissioner visited any of the sites in the city, after the hearing held on Tuesday.

To this, Kamdar pointed out that 39 sites were visited. Taking exception to this, the Chief Justice questioned the counsel as to what were its remaining flying squads doing as the BMC presently has around 94 such squads and only 39 of them were on work on Tuesday.

"What were the remaining squads doing when only 39 of them visited the sites? Why do you have 94 squads then?" the Chief Justice questioned.

The CJ further sought to know why the BMC did not use GPS devices and button cameras for its flying squads so that their work could be monitored by the authorities ensuring that they actually visit sites and take action against violators and ensure compliance with the civic body's guidelines to mitigate air pollution.

"It is surprising... even traffic constables have GPS and button cameras... Why can't you have it? You can monitor the movement of your squad by using it... We think you are not doing anything at all... You aren't doing even bare minimum," CJ Chandrashekhar remarked.

The judges pulled up the BMC for failing to 'strengthen' its own team and bring in a proper mechanism to ensure that it enforces its own guidelines.

"You have to apply your mind and improve your work... You just cannot be saying that data shows pollution is decreasing every year... You are only turning a blind eye and doing nothing when it comes to compliance," Chief Justice Chandrashekhar said.

The judges emphasised on the need of constant monitoring of the various sites by the flying squads.

No Election Duty For Flying Squads

In the hearing, Kamdar pointed out that most of its staff, who are also members of the flying squad, have been requisitioned by the Election Commission in view of the forthcoming civic body elections.

Interjecting at this point, senior advocate Janak Dwarkadas appearing for one of the parties, submitted that 'right to life is subservient to election duty.'

Weighing in, senior advocate Darius Khambhata, who is also the Amicus Curaie in the case, questioned, "Who will vote if people die (due to pollution)."

Commissioner Summoned Again

Unsatisfied with the responses from Kamdar, the judges observed that he was unable to assist the court as he was not having 'proper instructions' and thus summoned Gagrani, the civic chief to remain present in the court with some possible solution for the time being, by 4 PM in the evening.

As ordered by the judges, Gagrani personally appeared before them in the second half of the hearing and handed out a two-page proposal for the next 15 days, as asked by the court.

The bench was 'satisfied' with the proposed plan which included frequent surprise visit by the flying squads, Assistant and Deputy Municipal Commissioners at each ward, increasing number of water tankers for 'deep cleaning' and other such measures to contain the worsening levels of air pollution.

However, the judges suggested that the civic body must consider introducing button cameras and GPS to monitor the movement of the flying squads. Further the bench suggested that the flying squad members must be strictly asked not to take along with them, their mobiles phones, whenever they visit any site.

"No one should know which squad will be visiting which site... No one should be carrying mobile phones it should be kept with the drivers or deposited in the department... Like in Delhi, constables aren't allowed to carry their mobile phones... This is a sensitive work, they shouldn't carry mobile phones..." the Chief Justice suggested.

When Khambata suggested the bench to make 'stop work notices' mandatory for all the construction sites, which are found to be breaching the BMC's guidelines, the CJ said, "No, no need of stop work notices. They (BMC) need to enhance monitoring for now. We will see that after vacations."

The judges indicated that they would pass a detailed order based on today's marathon hearing and make it available later in the day.

Health of Workers

During the hearing in the morning session, the bench sought to know from the Maharashtra Pollution Control Board (MPCB) the steps it proposed to take care of the health of workers at construction sites.

Senior Advocate Ashutosh Kumbhakoni for the MPCB, submitted that as per the Statute passed by the Parliament, some Boards are constituted which have to look after the safety of the workers.

However, the bench insisted on what the MPCB was doing for protecting the welfare of the workers.

"Why can't you make it a mandatory condition at the time of permitting development?" Justice Ankhad asked Kumbhakoni and also Kamdar.

In the second session of the hearing, Kumbhakoni apprised the bench of the fact that the MPCB has taken action against some RMC plants.

However, the bench said it will hear him post vacations.

Terminate Contracts of Developers

In the firs half of the hearing, the judges reminded the BMC of its "wide powers" to ensure strict compliance by developers to its guidelines for mitigating air pollution.

"You have wide powers, you must know how to exercise it... You have powers to terminate the contracts... Issuing stop work notices or show cause notices is not the solution... You can even consider terminating the contracts... You must apply your mind and exercise your powers," the Chief Justice told Kamdar.