This supplements what Shyam Divan and Gautam Patel have written in their brilliant articles. I am afraid I do not have their writing talent but, for whatever it is worth, here goes.
Innumerable lawyers — counsel, solicitors and advocates on record — have appeared for Bombay Environmental Action Group over the last three decades. Along with H.M. Seervai, the first was Atul Setalvad. Atul first appeared for us in 1978 when we did not succeed. However, a shining contribution was made by him in 1982 in matters concerning Poona where, even though he was not appearing in the matter, he made an intervention before the High Court Bench. His intervention was critical in sparking off action by which the Poona Municipal Corporation revoked building permissions where FSI as high as 5 or even 6 had been sanctioned. This prevented concretisation of a million square feet in the congested heart of Poona.
In 1986, more than a decade and a half before the Right to Information Act, Atul suggested that we file a writ petition in the Bombay High Court asking for inspection of building plans in Poona Cantonment. He obtained orders, first from the High Court, and then from the Supreme Court, which directed that any person or social action group could inspect any building plans or permissions granted by any local authority, even within cantonment limits. These orders were deemed important enough to be published by the Ministry of Environment & Forests.
A very critical writ petition which Atul settled and argued for us was one which we had filed against unbridled construction by the navy in south Bombay. He contended that the MRTP Act overrode the provisions of the Government Buildings Act of 1899, on which the navy was relying. Our writ petition was admitted and a stay order obtained. A year later, the Defence Ministry accepted his contention and agreed to take prior planning permission for non operational buildings in Bombay. As a consequence, the first 65 entries in Bombay’s heritage list are military buildings, including many buildings in the naval dockyard, and the whole “Colaba Cantonment Precinct”, the main green and heritage lung of Bombay’s island city, has been designated a heritage precinct. Quite apart from Bombay, this would have applicability throughout India.
Perhaps Atul’s greatest contribution related to notifications issued under The Environment (Protection) Act 1986 (E.P. Act). His legal Opinion said that under Article 253 of the Constitution, Parliament has powers to enact legislation, even on subjects in the State list of the Constitution. His opinion was accepted by the Union Law Ministry who reversed their earlier strongly held stand. This made possible the declaration of Eco Sensitive Zones and other notifications under the E.P. Act. Mahableshwar, Panchgani, Matheran, Mount Abu, together with their surrounding areas, and also other places have directly benefited from this Opinion. More far reaching, of course, will be the action being taken by the Union Ministry of Environment & Forests for granting protection under the E.P. Act to large chunks of the Western Ghats.
In addition to the above, were the writ petitions which we filed in 1984 at the instance of Atul against the FSI fraud cases — the famous Pratibha, OM Chambers, Arihant and two other buildings. Atul was briefed by Dharmasukh Nanavati and assisted by Navroz Seervai, Zia Mody, Gautam Patel and others (whose names I can’t remember after a quarter of a century). The High Court issued stay orders. After the first stay order, Navroz Seervai said that I could become a millionaire overnight. I did not understand till he explained. Subsequently I asked Atul why he wanted me to be a petitioner, to which he replied that he wanted a name whom the courts could trust.
Eventually, nearly ten years later, the High Court passed demolition orders which were confirmed by the Supreme Court. The first demolition order was regarding the top two floors of OM Chambers, which also led to the China Garden restaurant having to shift. Before the demolition, there was much argument that demolition should not take place since it would involve wastage of scarce building resources, natural resources etc; the real reason was that the elite did not want to see one of their prime watering holes destroyed; some felt that their class was above the law. The China Garden owner told me he was a poor man. My answer always was (perhaps speaking as the son of a former Chief Justice), that the law must be upheld and, in my belligerent moments, I said that the flag must fly. I also said (without going into the merits) that hutments were being demolished by the tens of thousands. The hutment dwellers had come here in search of livelihoods whereas the developers were affluent and had deliberately committed frauds.
Subsequently, the Supreme Court ordered the demolition of the entire Arihant building. The next day, the Municipality punctured holes in the structure, making the building unusable. This was a great advertisement for our legal team and our work till, much later, the building was demolished.
I will never forget what happened after the Arihant demolition. At the Bombay Gymkhana (one of my favourite watering holes) , one of my sister’s friends told me that her liftman had been very happy with the demolition. I asked “Who is this (expletive deleted) liftman? What is his problem in life?” Her reply stunned me. The liftman had told her “Hamare to jhopdi roz tor rahe hain, yeh pehla baar amir log ko kiya hai” (Our hutments are being demolished daily, this is the first time that they have done this to the rich.). The lady added “Don’t think the message has not gone through.”
There were countless other matters in which Atul appeared for us including CRZ, Poona Cantonment, Dahanu and so on. A crucial matter was that of the dereservation of 285 plots, where though our petition was dismissed, the Appellate Bench admitted our appeal and issued a stay order. Incidentally, as a result Sharad Pawar almost lost his job and I almost lost mine — but Tatas stood firm.
Atul’s critical contribution to Bombay Environmental Action Group was in establishing our locus. The first Writ Petition filed by us in 1978 regarding the fertiliser plant at Thal Vaishet had to be in the names of farmers and fishermen living in the area. However, all subsequent Writ Petitions and other legal action have been in our name and concern places as diverse as Bombay, Poona, Matheran, Mahabaleshwar, Panchgani, Alibag, Secunderabad, Vidarbha and so on, in addition to national issues.
Counsel who appeared for us have been skilled in the nuances of the law and how to use it for the benefit of environment and heritage. However they are, by and large, not too keen in helping draft legislation. Atul’s services to environment and heritage were not just in the matters in which he appeared for us but the legislation he helped us to draft. His advice was critical when we suggested amendments to the Maharashtra Regional & Town Planning Act 1966 (MRTP Act) which were accepted by Maharashtra Government and incorporated into the Act in 1994. This had a longer term impact, since on that basis, I drafted more far reaching amendments to the Punjab Regional And Town Planning And Development Act, 1995 which were incorporated into that Act in 2005.
I have mentioned some of Atul’s contributions in my first book “Heritage and Environment — An Indian Diary.” In my forthcoming books on Cantonments and Hill Stations, I have mentioned some of his other contributions. All this however only covers only a part of his environmental work.
Apart from Atul’s legal scholarship, was the fact that he always refused to argue any point in which he did not believe and his unwillingness to deviate from the truth. Once the other side made an incorrect statement in Court. When I asked him “Why not fight fire with fire”, he flung the brief at me and I had to beat a hasty retreat.
There have innumerable lawyers who have appeared for us and very often some of them have appeared against us, occasionally criticising us severely. As a layperson, I don’t understand how a lawyer can argue for destruction of the environment and heritage particularly of places like Bombay where we all live, and also places like Mahabaleshwar, Panchgani, Matheran and Poona which they profess to love. Do they sleep peacefully when they succeed? I know full well that lawyers say that every person is entitled to legal representation. The answer to that is well known. How is that the concern for justice extends mainly to those with fat wallets and only in a few cases to petitions in the public interest or to those with thin wallets or none at all?
A counsel who regularly appeared against us in matters relating to Mahabaleshwar and Panchgani kept saying that he was a lawyer with a green heart. Atul’s heart was really green and he never appeared against us. After he started appearing for Bombay Environmental Action Group, I believe that he never appeared for builders.
I remember that he was given a lucrative brief by one of India’s top industrial groups whom we had sued. They hinted that Atul would get additional lucrative briefs if he did not appear for us. He told them, in effect, to *@#$! it.
Atul led by example and inspired a number of his juniors to appear in public interest matters. The relationship with his juniors was such that when I once offered to pay for a personal matter, I was told that if I said that, I should take the papers back.
Atul’s chamber was not just a place of law but also a place for intellectual discussion and fun. My personal relations with Atul were of the happiest and we would tease each other. Once Gautam Patel had arranged a counsel for us in one of our matters. I did know the counsel at all, and I was hesitant about calling him in the early mornings. Navroz Seervai asked me, “You can handle a tiger like Atul, how come you are worrying about him?”
Atul’s interests extended far beyond the law. We shared a common interest in military history and I still have with me the biography of General Alanbrooke which he gave me. (Before any purist military historian objects, I have deliberately referred to Alanbrooke as a “General” since I consider ranks like Field Marshal to be affectations).
On a more personal note, I asked Atul for a note on my father which he was good enough to give and he further added that he could quell a court room with a flicker of his eyes.
I could write a whole book on what Atul did for the environment. It is a thousand pities that he did not write his autobiography, as I often pressed him to do.
If we had more lawyers with Atul Setalvad’s integrity, public commitment and scholarship, India would be a different country.
From a very sorrowing and extremely grateful client who will always remember him,
Shyam H. K. Chainani
Bombay Environmental Action Group
P.S. Gautam is wrong in only one respect namely that in the early days I never carried a jhola, without which I rarely stir now. The jhola is not a political statement but a convenient and light receptable for books and papers which may otherwise get lost. It has been to the heart of the “establishment” in Bombay, Delhi and overseas.