National Green Tribunal
Sanjay Gupta vs Ghaziabad Nagar Nigam on 27 January, 2022
Item No. 02 (Court No. 1)
BEFORE THE NATIONAL GREEN TRIBUNAL
SPECIAL BENCH
(By Video Conferencing)
Original Application No. 10/2022
Sanjay Gupta & Ors. Applicant(s)
Versus
Ghaziabad Nagar Nigam Respondent
Date of hearing: 27.01.2022
CORAM: HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE DR. NAGIN NANDA, EXPERT MEMBER
HON'BLE DR. AFROZ AHMAD, EXPERT MEMBER
Applicant: Mr. Ravi Prakash Mehrotra, Senior Advocate with Mr. Mukesh Verma and
Mr. Apoorv Srivastava, Advocates
ORDER
1. This application has been filed under Section 14, 15 and 20 of National Green Tribunal Act, 2010 (hereinafter referred to as 'NGT Act, 2010') making a complaint that the Resident's Welfare Association of a multi-storey developed residential colony namely; Olive County proposed to place the bust of a martyr who happened to be son of the President of a society of the aforesaid RWA in a park which is part of green belt and on the said request, Municipal Corporation, Ghaziabad has also passed a resolution and recommended the competent authority of Corporation to take further action in the matter. It is contended that a green belt cannot be allowed to be converted for a purpose unconnected with maintenance of green belt and particularly, installation of a statue in a public place is against the order passed by the Supreme Court in Petition(s) for Special 1 Leave to Appeal (C) No(s) 8519/2006, Union of India & Anr. v. State of Gujarat & Ors. Relevant extracts of the order of Supreme Court dated 18.01.2013 is as follows:
4. Until further orders, we direct that the status quo, as obtaining today, shall be maintained in all respects by all concerned with regard to the Triangle Island where statue of late Shri N. Sundaran Nadar has been permitted to be sanctioned. We further direct that henceforth, State Government shall not grant any permission for installation of any statue or construction of any structure in public roads, pavements, sideways and other public utility places. Obviously, this order shall not apply to installation of high mast lights, street lights or construction relating to electrification, traffic, toll or for development and beautification of the streets, highways, roads etc. and relating to public utility and facilities.
5. The above order shall also apply to all other states and union territories. The concerned Chief Secretary/Administrator shall ensure compliance of the above order."
2. However, learned counsel appearing for the applicant could not dispute that though such resolution was passed in February, 2021 but till date Corporation has not taken any further action in the matter and therefore, in our view, no cause of action has arisen to file this application and it is premature. Be that as it may, we also intent to place on record that a green belt cannot be used or converted for any purpose unconnected with maintenance of green belt.
3. In this regard, in Lal Bahadur v. State of UP & Others, (2018)15SCC407, change of master plan and converting green area into residential one was considered. The issue was, whether such conversion is conducive to protection of environment or not. In the master plan of 1995 of Lucknow, area in dispute was reserved as green belt. In master plan 2021, the same area, shown earlier as green belt, was converted as residential. This part of master plan 2021 was challenged before Lucknow bench of Allahabad High Court. Writ petition was 2 dismissed. The matter came in appeal before Supreme Court. Court held in para 12 of judgment that change of area from green belt to residential is in violation of Article 21, 48A and 51A (g) of the Constitution. Reliance was placed on Bangalore Medical Trust v B.S. Muddappa & Others, (1991)4SCC54, wherein Court had said that protection of environment, open spaces for recreation and fresh air, playground for children, promenade for the residents and other conveniences or amenities are matters of great public concern and a vital interest to be taken care of in a development scheme. Public interest in the reservation and preservation of open spaces for parks and playgrounds cannot be sacrificed by leasing or selling such sites to private persons for conversion to some other use. Court also relied on an American Supreme Court Judgment Agins vs. City of Tiburon, [447 us 255 (1980)], wherein Court said: '... it is in the public interest to avoid unnecessary conversion of open space land to strictly urban uses, thereby protecting against the resultant adverse impacts, such as ...... pollution, .... destruction of scenic beauty, disturbance of the ecology and the environment, hazards related geology, fire and flood, and other demonstrated consequences of urban sprawl'.
4. In para 15, Court said that, "This Court had clearly laid down that such spaces could not be changed from green belt to residential or commercial one. It is not permissible to the State Government to change the parks and playgrounds contrary to legislative intent having constitutional mandate, as that would be an abuse of statutory powers vested in the authorities. Court also observed, when master plan was prepared earlier and authorities found importance of such space, it was their bounden duty not to change its very purpose when they knew very well the importance of this place to be kept as open space. Court said, 3 "The importance of park is of universal recognition. It was against public interest, protection of the environment and such spaces reduce the ill effects of urbanisation, it was not permissible to change this area into urban area as the garden/ Greenbelt is essential for fresh air, thereby protecting against the resultant impacts of urbanization, such as pollution etc. The provision of the Act of 1973 and other enactments relating to environment could not be permitted to become statutory mockery by changing the purpose in the master plan from green belts to residential one. Authorities are enjoined with duty maintain them as such as per doctrine of public trust."
5. Further, Supreme Court on the issue of installation of a statue in a public place has also passed a restraint order and made it clear that the said order shall apply to all the States. Therefore, all the Authorities in the country are bound by the aforesaid order of Supreme Court and neither expected nor even otherwise can act in the teeth of such order of Supreme Court.
6. We therefore, hope and trust that Municipal Corporation, Ghaziabad would also not do something which is not permissible in law and contrary to law laid down by Supreme Court as referred to hereinabove.
With the aforesaid observations, we dispose of the Application.
Sudhir Agarwal, JM Dr. Nagin Nanda, EM Dr. Afroz Ahmad, EM January 27, 2022 Original Application No. 10/2022 AB 4