Madhya Pradesh High Court
Yogendra Singh Tomar vs State Of Madhya Pradesh And Ors. on 22 November, 1996
Equivalent citations: AIR1997MP124, 1997(1)MPLJ419, AIR 1997 MADHYA PRADESH 124, (1997) 1 MPLJ 419 (1997) 2 LJR 674, (1997) 2 LJR 674
JUDGMENT Doabia, J.
1. All Indian Cities like . Jupiter are perpetually enveloped in thick dusty and gaseous substances. The movement of trucks buses, mini-buses, tempos and other vehicles using petrol, diesel mixed with kerosene emit fumes make a dull blue hue polluting the environmental surroundings. The intensity of this increases as the day advances and it is maximum by the time sun sets in. When seen in electric light, it gives an impression that one is surrounded by fog or mist depending upon the season. These gaseous substances to a naked eye would seem to consist of dust and smoke but on chemical analysis it would become apparent that it contains poisonous gases and other contents which would have disastrous effect and as a matter of fact, is having on the inhabitants living in these cities. These gaseous substances can be invisible carbon monoxide which is produced by petrol vehicles. Diesel operated vehicle produces carbon-dioxide which can be neutralised by green forests which forest cover is shrinking day by day. Clear blue sky is visible only for a few days after heavy rain pour. To add to the problems of an ordinary citizes, roads are full of pot holes. Survival kit is required to escape the ghastly fumes and murderous pot holes. The streets are narrow. In between the road and footpaths, there is an over-flowing drain which is an open breeding ground for mosquitoes. Citizens weaken by the poisionous gases fall easy prey to bacterial diseases. Not only this, the footpaths are covered by temporary and permanent encroachments. Open drains stinks. If one ventures to get into other crowded areas then one is reminded of the picture of Bombay (Mumbai) which was depicted by the then the Chief Justice of India, in Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC ISO wherein it was pointed out that 'those who have made pavements their homes exist in the midst of filth and squalor which has to be seen to be believed. Rabid dogs in search of stinking meat and cats in search of hungry rats keep them company. They cook and sleep where they case, for no conveniences are available to them. Their daughters come of age bathe under the nosy gaze of passers by, unmindful of the feminine sense of bashfulness.
2. It is the case of the petitioner who has moved this public interest litigation that already conjested locality is further sought to be conjested by converting open space into a shopping complex. The open space is a park in between two rows of buildings. It is the case of the petitioner that the Municipal Council, Ambah, District Morena (hereinafter referred to as Municipal Council) wanted to erect a statute in the memory of Maharana Pratap Singh. This is apparent from Annexure P/1. This permission was not granted by the State Government. Now the Municipal Council has initiated steps with a view to raise a shopping complex. Photographs of the area have been placed on the record. These are Annex-ures R/5 and R/6. A purusal of these photographs does indicate that open space on a street is sought to be converted into a shopping complex. This, according to the petitioner would lead to obliterating an open space and thus, ecological balance would be disturbed. The Municipal Council, however, submits that nothing of this sort is going to happen.
3. We are of the opinion that open space in this case should not be converted into shopping complex. In this regard it would be apt to remind the Municipal Council of its obligations to the citizens.
4. In Agins v. City of Tiburon, (1980) 447 (US) 255, the Supreme Court of the United States upheld a zoning ordinance which prohibited conversion of open space land thereby protecting against the resultant impacts such as pollution, destruction of scenic beauty, disturbance of the ecology and the environment, hazards related to geology, fire and flood and other demonstrated consequences or urban sprawl. Upholding the ordinance, the Court said:
"The State of California has determined that the development of local open space plans will discourage the "premature and unnecessary conversion of open-space land to urban uses." The specific zoning regulations at issue are exercises of the city's police power to protect the residents of Tiburon from the ill-effects of urbanisation. Such Governmental purposes long have been recognised as legitimate. The zoning ordinances benefit the appellants as well as the public by serving the city's interest in assuring careful and orderly development of residential property with provision for open space areas."
5. It appears that this concept and necessity to keep ecological balance was very much apparent when the US Supreme Court in Samuel Berman v. Andrew Parker, (1954) 99 Law 27 Ed.: 348 US 26, expressed a view that any attempt to disturb this balance may suffocate the spirit by reducing the people who live there to the status of cattle. It was observed:
"They may indeed make living almost insufferable burden. They may also be an ugly sore a blight on the community which robs it of charm, which makes it a place from which men turn. The misery of housing may despoil a community as an open sewer may ruin a river.
... The concept of the public welfare is broad and inclusive... The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well balanced as well as carefully patrolled. In the present case, the congress and its authorised agencies have been determinations that take into account a wide variety of values."
6. As to what are the obligations of the municipal authorities in the matter of providing basic civil amenities to the citizens may also be noticed.
7. In Attorney General v. Corporation of Sunder Land, 1875-76 (2) Ch. D 634, the position of the municipal authorities with regard to public parks, gardens, squares and streets was put at par with a trustee, and it was held that the municipal authorities would be guilty of breach of trust in employing any part thereof for purposes other than those contemplated by those relevant statute. Still later in Maddison v. Alderson, (1883) 8 App 467: 52 LJ QB 737, it was observed that an excess of statutory power cannot be validated by acquiescence in or by the operation of estoppel. The Court would decline to interfere for the assistance of persons who seek its aid to relieve them against express statutory provision. It was further observed that the Court of equity would not permit the statute to be made an instrument of fraud.
8. What was said by the Chancery Court in the year 1875 was reiterated by the Supreme Court one hundred years later in K.R. Shenoy v. Udipi Municipality, AIR 1974 SC 2177. In the above case, the Municipality of Udipi had granted permission for construction of Cinema hall in a place which was preserved for residential purposes. This action of the Municipality was struck down by observing that the Municipal authorites are supposed to enforce a scheme and not to act in breach thereof. It would be apt to quote what was said by the Supreme Court at page 2181:--
"27 ... Where the Municipality acts in excess of the power conferred by the Act or abuses those powers then in those cases it is not exercising its jurisdiction irregularly or wrongly but it is usurping powers then in those cases it is not exercising its jurisdiction irregularly or wrongly but it is usurping powers which it does not possess. The right to build on his own land is a right incidental to the ownership of that land. Within the Municipality the exercise of that right has been regulated in the interest of the community residing within its limits of the Municipal Committee. If under pretence of any authority which the law does give to the Municipality it goes beyond the like of its authority and infringes or violates the rights of others, it becomes like all other of the Courts. If sanction is given to build by contravening bye-laws the jurisdiction of the Courts will be invoked on the ground that the approval by an authority of building plans which contravene the bye-laws made by that authority is illegal and inoperative."
8.A The Statutes in force in India and abroad reserving open spaces for parks and play grounds are the legislative attempt to eliminate the misery of disreputably housing condition caused by urbanisation. Crowded urban areas tend to spread disease, crime and immorality. Reservation of one space for parks and play ground is universally recognised as a legitimate exercise of statutory power rationally related to the protection of the residents of the locality from the ill-effects of urbanisation. Thus when in the case of Bangalore Medical Trust v. B.S. Muddappa, AIR 1991 SC 1902: (1991 AIR SCW 2082) an attempt made to convert a park into a Nursing Home it was nullified and it was specifically stated that protection of the environment or open spaces for recreation and fresh air, play grounds for children pomenade for the residents and other convenience or amenities are matters of great public concern and of vital interest to be taken care of in a development scheme. As a matter of fact, it would be proper to quote the observations made by Supreme Court in para 28. These read as under:
"28. Any reasonable legislative attempt bearing a rational relationship to a permissible state objective in economic and social planning will be respected by the Court. A duly approved scheme prepared in accordance with the provisions of the Act is a legitimate attempt on the part of the Government and the statutory authorities to ensure a quiet place free of dust and din where children can run about and the aged and the infirm can rest breathe fresh air and enjoy the beauty of nature. These provisions are meant to guarantee a quite and healthy atmosphere to suit family needs of persons of all stations. Any action which tends to defeat that object is invalid."
9. The U.S. Supreme Court in Village Belle Terre v. Bruce Borass, (1974) 39 Law 2d 797 : 416 US 1 opined that police power is not confined to eliminate filth, stench and unhealthy places. It equally comes into play when lay out zones are proposed which are essential for family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people.
10. From the decisions referred to above, it becomes apparent that;
(i) the municipal authorities are supposed to act as trustees and should see to it that the property which vests in it is used for the benefit of the residents of the city it governs; and
(ii) if open spaces are sought to be used in a way which would result in pollution, destruction of scenic beauty or disturbance of the ecology, then the Courts would step in and would remind the municipal authorities of their obligations.
11. From the aforementioned judicial precedents it becomes apparent that the municipal authorities are supposed to act as trustees and should see to it that open spaces should not be converted into shopping complexes. In fact, open spaces are lungs of the city. If these lungs are not there, then the citizens of the city can have no better life. Something may be said regarding locus standi also. In this regard, there can be no dispute with the proposition that this is a public interest litigation. This aspect be examined in detail.
12. In Sidebothem, Re, Ex-parte Sidebo tham, (1880) 14 Ch D 458, Lord Justice James, was of the view that a man was not a "person aggrieved unless he himself had, suffered particular loss in that he had' been injuriously affected in his money or property rights." He was not 'aggrieved' simply because he had a grievance." This concept underwent a change when in R. v. Thames Magistrates' Court, (1957) 5 LGR 129, a matter came before Lord Denning and Lord Justice Parker. This was a case about a pitch in a street market in Bermondsey. The magistrates had awarded the pitch to a seller of jellied eels. But a newspaper seller thought that he ought to have had the pitch. He had no legal right to the pitch. In the above case, the view expressed was that he had a locus standi and the order passed by the magistrate was set aside. The old tendency to limit litigation vis-a-vis right of persons who had a particular grievance of their own has undergone a remarkable change in the recent times. This question was considered in R. v. Commissioner of Police of the Metropolis, ex parte Blackburn, (1968) 2 QB 118, following observations were made by the Queen Bench :
"A question may be raised as to the machinery by which he could be compelled to do his duty. On principle, it seems to be that once a duty exists, there should be means of enforcing it. This duty can be enforced, I think, either by action at the suit of the Attorney-General or by the prerogative writ of mandamus...."
13. Lord Denning in his book 'The Discipline of Law' has expressed an opinion as under:
"Now here 1 must ask all of you to note that those were all cases where an ordinary citizen sought one of the prerogative remedies -- of certiorari, mandamus, or prohibition. These are available against Government departments or any person or body set up by statutory authority affecting the rights of individuals. And 1 have shown, I hope, that any responsible citizen has a sufficient interest -- such as to entitle him to be heard -- if he complains that the law is not being enforced as it should."
14. The position of law in this country is no different. The Supreme Court of India in number of decisions has expressed an opinion that locus standi to approach a Court does exist when injury is likely to be caused to the public at large. These decisions of the Supreme Court of India finds mentioned in the decisions reported as Subhash Kumar v. State of Bihar, AIR 1991 SC 420 : (1991 AIR SCW 121). These are as under :
(i) Bandha Mukti Morcha v. Union of India, AIR 1984 SC 802 : 1984 Lab 1C 560;
(ii) Sachidanand Pandey v. State of West Bengal, AIR 1987 SC 1109;
(iii) Ramsharan Autyanuprasi v. Union of India, (1989) Supp 117 SCC 251 (sic);
(iv) Chhetriya Pardushan Mukti Sangharsh Samiti v. State of U.P., (1990) 4 SCC 449: AIR 1990 SC 2060.
Ultimately the view expressed by the Supreme Court of India in Subhas Kumar's case (supra) was that if anything endangers or impairs the quality of life in derogation of laws, a litigation under the label of public interest litigation would be maintainable, The only note of caution that was struck by the Supreme Court of India was that the Court should see to it that whatsoever is sought to be enforced in writ jurisdiction is not vindication of some personal grudge or enmity. Apart from this, there is a direct authority dealing with this aspect of the matter reported as Bangalore Medical Trust v. B.S. Muddappa, AIR 1991 SC 1902 : (I991 AIR SCW 2082) in para 36 observed at page 1915; of AIR:
"Locus standi to approach by way of writ petition and refusal to grant relief in equity jurisdiction are two different aspects may be with same result. One relates to maintainability of the petition and other to exercise of discretion. Law on the former has marched much ahead. Many milestones have been covered. The restricted meaning of aggrieved person and narrow outlook of specific injury has yielded in favour of broad and wide construction in wake of public interest litigation. Even in private challenge to executive or administrative action having extensive fall out the dividing line between personal injury or loss and injury of a public nature is fast vanishing. Law has veered round from genuine grievance against order affecting prejudicially to sufficient interest in the matter. The rise in exercise of power by the executive and comparative decline in proper and effective administrative guidance is forcing citizens to espouse challenges with public interest flavour, it is too late in the day, therefore, to claim that petition filed by inhabitants of a locality whose park was converted into a nursing home had no cause to invoke equity jurisdiction of the High Court. In fact public spirited citizens having faith in rule of law are rendering great social and legal service by espousing cause of public nature. They cannot be ignored or overlooked on technical or conservative yardstick of the rule of locus standi or absence of personal loss or injury. Present day development of this branch of jurisprudence is towards free movement both in nature of litigation and approach of the Courts. Residents of locality seeking protection and maintenance of environment of their locality cannot be said to be busy bodies or interlopers. Even otherwise physical or personal or economic injury may give rise to civil or criminal action but violation of rule of law either by ignoring or affronting individual or action of the executive in disregard of the provisions of law raises substantial issue of accountability of those entrusted with responsibility of the administration. It furnishes enough cause of action either for individual or community in general to approach by way of writ petition and the authorities cannot be permitted to seek shelter under cover of technicalities of locus standi nor they can be heard to plead for restraint in exercise of discretion as grave issues of public concern outweigh such considerations."
15. An argument has been raised by the learned counsel for the Municipal Council. This argument is that the construction in question has been raised upto plinth level. This would not come to rescue of the Municipal Council. As a matter of fact, the Supreme Court of India in the case reported as K.R. Shenoy v. Udipi Municipality, AIR 1974 SC 2177, directed the demolition of a building when it was raised in breach of law. In the present case, the building has come up to plinth level only. The above argument, thus would, be of no avail to the Municipal Council. As indicated above, the shopping complex is being raised at a place where earlier permission was declined to install statue of Maharana Pratap. A perusal of the photographs placed on the record indicates that this place is in between two streets. Once the building is fully erected, it would lead to congestion in the area. There is no provision for parking. Facility for toilet has not been provided. More the number of vehicles coming in the area, more would be the pollution. This would directly affect the health of the citizens who are living in this area or who come to this area for business purposes. It would have been apt for the Municipal Council to develop some other site so that building activity in that particular area could be taken up. The Municipal Council should accordingly take steps and set up residential and non-residential areas and shopping complex should be provided only in non-residential areas. There should be facility for parking. Requisite toilet facilities should also be provided.
16. We are, accordingly, of the opinion that the resolution passed by the Municipal Council by which open space in between two streets is sought to be converted into a shopping complex is not in consonance with the judicial pronouncement noticed above. The resolution is bad in law and is quashed. This petition is disposed of in the manner indicated above. There would be no order as to costs.