FROM THE TELEGRAPH OF 22 NOVEMBER 2006
Venerable
vandalism
I believe that
the Supreme Court has made a grievous error in its judgment on the sealing of nonconforming
properties in Delhi. My view is not about the Supreme Court, which I hold in
regard. On the whole, it is a valuable protector of the people against the
depredations of the government, although in the case of sealings the roles have
been reversed. Nor is my view about its interpretation of the law, which I
would rather not contest. It is not impossible for me to judge it. But my
judgment would carry no weight. For good reasons or bad, lawyers have a
monopoly of interpretation of law; even the jury system, which gives laymen a
role in the administration of justice, was done away with soon after
independence. And amongst lawyers, the Supreme Court is the final arbiter of
the law. To contest its legal acumen would require a mastery of law that only a
Ram Jethmalani would have; and without such authority, it would be futile to
criticize the Supreme Court’s judgment on legal grounds.
My case is that
the law, which the Supreme Court has interpreted expertly and applied strictly,
is fatally flawed and should never have been taken seriously. This type of law
is the basis of town planning, not only in Delhi but in Britain and in other
countries of the common law tradition. It gives a government body – usually a
local authority – the power to acquire land compulsorily, to sell or lease it,
and to specify its uses even after it has been sold. Not all local authorities
do, but the Delhi one wrote up a land use plan decades ago. The plan laid out a
map of Delhi as it was to be built – of plots of various sizes abutting on
roads of varying widths. The use of the plots – residential, commercial or
industrial – was specified. Decades later, the actual use to which the plots
are being put differs from what the plan said it should be. Since the law gives
the Municipal Corporation of Delhi undisputable power to determine land use,
subject to the Master Plan, any use not conforming to the Plan is termed
illegal. The punishment for that illegal act, also presumably laid down in some
law, is “sealing”: an official of the Corporation can lock up nonconforming
premises, melt a bit of lacquer, apply it to the lock, and place the
Corporation’s stamp on it. Anyone breaking that seal would be considered guilty
of breaking in and can be locked up for the crime.
How did the
Corporation decide decades ago which building should be used for what purpose?
It engaged experts to make the Plan. How did the experts decide? They had rules
of thumb about how many shops would be required per resident, what wholesale
markets the retailers would need, how much traffic a certain population would
generate, and so on. They designed a city that would conform to these rules of
thumb, and which they thought would look good, grand, distinguished.
Now the actual
land use pattern is found to be very different from the pattern the experts
projected on the basis of their thumb rules. The conclusion the Supreme Court
has drawn from this discrepancy is that those shopkeepers and workshop owners
quietly, mala fide, put premises to uses not authorized by the Master Plan. For
this mean, dastardly crime, the Supreme Court is now punishing them.
In doing so,
however, the Supreme Court has avoided two questions. First, surely the
Corporation was not just supposed to make a Master Plan and then go to sleep.
It was actually supposed to implement it – to lay out the roads, to give out
the plots, and to police the use to which they were being put. How did half a
million criminals hoodwink it and put the properties to unauthorized uses? If
the Supreme Court had asked that question, it would have been forced to the
answer, that hordes of employees of the Municipal Corporation enriched
themselves by allowing owners and tenants to put premises to nonconforming uses
and taking bribes for it. There were two sets of conspiring criminals –
Corporation employees and nonconforming property users. The Supreme Court let
one set off, and punished the other. In fact, it asked one set of criminals to
punish the other. The two groups were in collusion – which is why the Supreme
Court found it so hard to make the criminal Corporation act against the
criminal nonconformists. But it sternly reminded one set of criminals of the
law they were supposed to enforce and had blithely, profitably flouted.
The other
question the Supreme Court refused to face was: why did the actual land use
pattern differ so much from what the planners had laid down? If it had, it
would have been driven to the answer that the economic activities that emerged
in Delhi required a very different pattern. It may be that the rules of thumb
of the planners were wrong; it may be that technological changes, such as
residents’ acquisition of vehicles, made those rules of thumb obsolete; it may
be that Delhi came to play a bigger role in the national economy than the
planners had envisaged. For whatever reason, the Master Plan was obsolete
almost as soon as it was put on paper, and land use patterns took a life of
their own.
Whose fault was
that? Surely not that of someone who started making potato chips in his
backyard because a neighbouring store wanted to sell them, or of someone who
found a good market for bumpers because Delhiites were always bumping one
another’s cars. Surely it was the fault of the planners; they were supposed to
forecast the future, but the future turned out to be very different from what
they thought. If the Supreme Court was in a mood to punish someone, it is the
planners it should have summoned and locked up. But it could not do so because that
no law authorized it to do so; the government has not even thought of making
the formulation of wrong plans a punishable offence. After all, the experts
were only responding to the government’s request for a plan. If it had told
them that they could go to jail for going wrong, they would never have made a
plan for it.
Although the
vagaries of the law ensure that they cannot be punished, the planners went
completely wrong, and it is the consequences of their error, perpetuated by the
Supreme Court, that the people of Delhi are suffering. I would only say this in
the end: only the Supreme Court can correct its own mistake, and it must do so
on its own because not even the government will have the courage to beseech it
to do so. And the correct course would be to adapt the Master Plan to the
situation on the ground, and insofar as nonconforming users are relocated, to
compensate them handsomely for the inconvenience imposed on them by the government.
And – for goodness’ sake, do not call back those experts to modify their Master
Plan. Ask someone more intelligent, flexible and clairvoyant.
