Andhra HC (Pre-Telangana)
Sri Balaji Park Residents Welfare ... vs Vice-Chairman, Visakhapatnam Urban ... on 26 September, 2001
Equivalent citations: 2001(6)ALD325
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, C.J.
1. This writ petition by way of public interest litigation is filed by the President of Sri Balaji Park Residents Welfare Association, Sector-2, MVP Colony, Visakhapatnam for a writ or in the nature of a mandamus declaring the action of the 1st respondent - Visakhapatnam Urban Development Authority (VUDA) in dividing the vacant site in an extent of about Ac.0.85 cents in S.No.SP and 26P of Peda Waltair village situate in Sector -2 of MVP Colony, reserved for the community purpose, into small plots and selling the same in public auction as illegal arbitrary and for a consequential direction to the respondents to reserve the said site for the public purpose such as community centre or park and nursery in the interest of the residents of the colony.
Facts:
2. The 1st respondent in 1972 acquired land to an extent of 400 acres in the village of Muvvalavani Palem and published a lay out in the year 1978 calling applications from the public for allotment of house sites of various types viz., HIG, MIG, LIG, EWs for open plots as also for constructed houses. It has been noticed that the layout has got all the infrastructure such a roads, water supply, drainage including parks etc. On the northern side of the layout in Sector-2 in Survey No.5P and 26P of Peda Waltair village an extent of Ac.0.85 cents was shown as community centre. The said site is surrounded by houses and it is the only space left vacant for the use of the residents of the MVP colony. The cost of the said site was already realised from the allottees of the plots of Sector-2 for utilising the same for public purpose of the residents of the sector. As a measure of protecting the environment, number of green trees were planted and the trees have now grown up and are serving useful purpose of purifying the air in the locality. In the sale deeds of the surrounding plans it has been shown as nursery only and even in the Master Plan of MVP Colony Township dated 1-4-1985 it had been shown as such.
3. While things stood thus, the 1st respondent, divided the said vacant site into plots and without leaving any space for any public purpose and they were sold in a public auction notified by the 1st respondent on 19-5-2001. The representations made to the respondents have yielded no result and the respondents started cutting the grown up trees, which is detrimental to the environment of the locality.
4. In the counter filed by the 1st respondent, it is stated that though originally it was contemplated to acquire 420 acres of lands for the township, only 336 acres could be acquired. The entire plan of the project was for a comprehensive development of Township as a single unit but not sector-wise. The percentage of open spaces and community facilities has been kept at 15.47% as against the proposed percentage of 13-41% in the concept plan. The open spaces are not saleable and will be handed over to the local authority and the Municipal Corporation of Visakhapatnam has taken over all the open spaces. The community centre areas will be allotted to the institutions such as schools, colleges, hospitals, Kalyanamandapams on collecting necessary costs. Therefore, while allotment VUDA charges for the community centre from the institutions only. The residents of Sector-2 had paid only for their plots allotted and the charges for community centre have not been collected from the allottees.
5. It is further stated in the counter that that VUDA has to generate nearly Rs. 13.00 crores for non-remunerative projects such as roads, parks, afforestation, environment improvement programmes during the year 2000-2001 and to meet the expenditure the land in question along with other land in Sector-10 was carved out into plots and allotted in public auction to generate the resources as Government is not allocating funds for the above purpose. As the development started in the layout, there are changes in the layout in the location of community centres, which are meant for public purposes. The plotted area in Sector-V in an extent of Ac.2.00 acres located in a road junction was converted as community centre area and was-allotted to T.T. Devasthanam for construction of Kalyana Mandapam. Similarly the originally earmarked plotted area in Sector-1 in an extent of 900 Sq. yards was converted as community centre area and a Kalyanamandapam was constructed by VUDA. Since the original earmarked plotted area was converted as community centres and ample parking area, in view of their strategic locations for free flow of traffic, the remote and isolated area in question in Sector-2 was converted as plotted area and retained by VUDA. The Kalyanamandapams are also available for the use of residents of Sector-2 also.
6. A nursery was maintained temporarily and the said nursery was shifted to Town centre ten years back in an extent of Ac.3.00. Subsequently, Eucalyputs plantation was done by VUDA instead of leaving the land as vacant and also to protect it from encroachers. The land in question was fenced by VUDA and the residents of Sector-2 are not using it as park. It was also stated that two open spaces and one community centre in an Extent of Ac.1.61 cts in Sector-2 were handed over to the 2nd respondent on 3-6-1985 and they are being used by the residents as park, play field and primary school and they are being maintained by the 2nd respondent.
7. It is alleged in the counter that Sri Atluri Satya Mohan Rao who filed the writ petition representing the petitioner association is acting as a proxy for the Corporator of 23rd Ward of MVP Colony Sri Appala Raju and the petition was filed only to protect the interest of the land grabbers wherein encroachments had taken placed in 1999 in the land in question. By an order-dated 8-3-1999, this Court dismissed WP No.14414 of 1999 filed by the land grabbers holding that the encroachments raised in the land in question were illegal. It was further stated that the land in question does not fall under open spaces where parks, play fields are to be established. The land was earlier earmarked as community centre for the purpose of establishment of schools, hospitals, community halls etc, Unlike open spaces, the community centres are saleable for public purpose. On a requisition made by TTD, an extent of Ac.2-00 which is 400 mts away from the subject land and which was initially earmarked as plotted area was allotted to TTD for construction of TTD Kalyanamandapaiti in 1985 at nominal rate of Rs.1/- per square yard for a public purpose and in exchange VUDA has retained the subject land which was earlier earmarked as community centre in the plan.
8. It was further alleged that the writ petition was filed with ulterior motives. Though the auctions had taken place on 10-6-2001 pursuant to the notification published in the newspapers on 19-5-2001, the writ petition was filed only on 6-8-2001 for gaining political mileage as a proxy for the Corporator.
Submissions:
9. The learned Counsel appearing on behalf of the petitioner would submit that a lay out plan which was approved by the 1st respondent herein, having regard to the provisions contained in Andhra Pradesh Urban Areas (Development) Act, 1975 (for short 'Act') which is applicable to the town by Visakhapatnam, could not have been amended. It was contended that an open space earmarked for community purpose could not have been directed to be used for another purpose nor the 1st respondent had any authority or jurisdiction to put the same in public auction or to cut the trees standing thereon. In support of the said contention, reliance has been placed on the decision in Automobile Technicians Assn. v. Jawahar Auto Nagar, Vijayawada, 1988 (2) ALT (NRC) 45.
10. The learned Counsel appearing on behalf of the respondents, on the other hand, would submit that the land in question was lying vacant for a long time. Land Grabbers, according to the learned Counsel encroached on the said land, which led to filing of a writ petition being WP No. 17441 of 1999 when the 1st respondent attempted to evict the encroachers. By order dated 8-3-1999, this Court dismissed the said writ petition whereafter encroachments were removed.
11. The community centre, which was covered by Hanumanthawaka Gedda, according to the learned Counsel, was bifurcated into two parts on the eastern and western side of the Gedda and the area on the eastern side of Gedda was retained by VUDA as plotable area. According to the learned Counsel, several community centres within the walkable distance from Sector-2 are available such as 1. TTD. Kalyanamandapam, 2. Community Hall-cum-Kalyana Mandampam constructed by VUDA, MVP Hospital, Cancer Hospital, Arts College, High School, RTC Bus stand, Commercial centers, Rythu Bazar, Girajan Community Hall constructed by VUDA, APSEB, Mahila College and Postal Department.
12. The learned Counsel would contend that in a situation of this nature, the property having been in the 1st respondent, it could deal therewith in any manner it likes. Reliance in this connection has been placed on the decision of this Court in Defence Colony Residents Welfare Association v. District Collector, R.R. District, 1998 (5) ALT 555.
Point for consideration:
13. The sole question, which arises for consideration in this writ petition, is as to whether the 1st respondent was within its jurisdiction in putting the land in question in public auction?
Statutory Provisions:
14. The A.P. Urban Areas (Development) Act, 1975 has been enacted to provide for the development of urban. areas in the State of Andhra Pradesh according to plan and for matters ancillary thereto. Sections 11 and 12 of the Act read thus:
11. Certain plans already prepared and sanctioned deemed to have been prepared and sanctioned under this Act :--(1) Any general town planning scheme under the Andhra Pradesh (Andhra Area), Town Planning Act, 1920, any development plan under the Hyderabad Municipal Corporation Act, 1955 or any Master plan under the A.P. Municipalities Act, 1965, already prepared and published by the local authority concerned and sanctioned by the Government before the commencement of this Act with respect to any area now forming part or whole of a development area under this Act, shall be deemed to be a Master Plan so prepared and published by the Authority and sanctioned by the Government subject to such alterations and modifications as may be considered necessary, under this Act.
(2) Any detailed town-planning scheme under the A.P. (Andhra Area) Town Planning Act, 1920, any improvement scheme under the Hyderabad Municipal Corporation Act, 1955, or any town development plan under the Andhra Pradesh Municipalities Act, 1965 already prepared and published by the local authority concerned and sanctioned by the Government before the commencement of this Act, with respect to any area now forming part of a development area under this Act, shall be deemed to be a Zonal Development Plan, so prepared and published by the Authority and sanctioned by the Government, subject to such alterations and modifications as may be considered necessary under this Act.
(3) In respect of plans of the nature specified in sub-section (1) or subsection (2) which are at different stages or preparation or publication or pending sanction of the Government at the commencement of this Act, such plans shall be deemed to have been prepared, or published or submitted to Government as the case may be, under this Act, subject to such alterations as may be considered necessary under this Act.
12. Modification to plan :--(1) The Authority may make such modifications to the plan as it thinks fit, being modifications which, in its opinion, do not effect important alterations in the character of the plan and which do not relate to the extent of land uses or the standards of population density.
(2) The Government may suo motu or on a reference from the Authority make any modifications to the plan, whether such modifications are of the nature specified in sub-section (1) or otherwise.
(3) Before making any modifications to the plan, the Authority or, as the case may be, the Government shall publish a notice in such form and manner as may be prescribed inviting objections and suggestions from any person with respect to the proposed modifications before such date as may be specified in the notice and shall consider all objections and suggestions that may be received by the Authority or the Government.
(4) Every modification made under the provisions of this section shall be published in such manner as the Authority or the Government, as the case may be, may specify and the modifications shall come into operation either on the date of the publication or on such other date as the Authority or the Government may fix.
(5) When the Authority makes any modifications to the plan under subsection (1), it shall report to the Government the full particulars of such modifications within thirty days of the date on which such modifications come into operation.
(6) If any question arises whether the modifications proposed to be made by the Authority are modifications which effect important alterations in the character of the plan or whether they relate to the extent ot land-uses or the standards of population density, it shall be referred to the Government whose decision thereon shall be final.
(7) Any reference in any other Chapter, except this Chapter, to the Master Plan or the Zonal Development Plan shall be construed as a reference to the Master Plan or the Zonal Development Plan as modified under the provisions of this section.
15. Section 13 of the Act deals with declaration of development areas and development of land in those and other areas. Sub-sections (4), (5) and (7) which are relevant for the purpose reads thus:
(4) After the commencement of this Act, no development of land within the development area shall be undertaken or carried out by any person or body including any department of the Government, unless permission for such development has been obtained in writing from the Authority in accordance with the provisions of this Act.
(5) After the coming into operation of any of the plans in any area within the development area, no development shall be undertaken or carried out in that area unless such development is also in accordance with such plans.
(7) After the commencement of this Act, no development of land shall be undertaken or carried out by any person or body including any department of the Government in such area adjoining to or in the vicinity of the development area, as may be notified by the Government unless approval of or sanction for such development has been obtained in writing from the local authority concerned, in accordance with the provisions of relevant law relating thereto, including the law relating to town planning for the time being in force and the rules and regulations made thereunder.
Provided that the local authority concerned may, in consultation with the Authority, frame or suitably amend its regulations their application to such area adjoining to or in the vicinity of the development area.
57. Effect of other laws :--(1) Nothing in this Act shall affect the operation of the Andhra Pradesh Slum Improvement (Acquisition of Land) Act, 1956.
(2) Save as otherwise provided in subsection (6) of Section 42 or subsection (7) of Section 43 or subsection (1) of this section, the provisions of this Act and the rules and regulations made thereunder shall have effect, notwithstanding anything inconsistent therewith contained in any other law.
(3) Notwithstanding anything in any other law-
(a) when permission for development in respect of any land has been obtained under this Act, such development shall not be deemed to be unlawfully undertaken or carried out by reasons only of the fact that permission, approval or sanction required under such other law for such development has not been obtained.
(b) when permission for such development has not been obtained under this Act, such development shall not be deemed to lawfully undertaken or carried out by reason only of. the fact that permission, approval or sanction required under such other law for such development has been obtained.
16. In exercise of the powers conferred by clause (s) of sub-section (2) of Section 326 read with Section 185 of the Andhra Pradesh Municipalities Act, 1965 (Act 6 of 1965), the State by reason of G.O. Ms. No.62, Municipal Administration, dated 28-1-1970 has issued rules relating to the approval of layouts by Municipal Councils known as the Andhra Pradesh Municipalities (Layout) Rules, 1970. Section 184 of Municipalities Act casts an obligation on the owner to make a layout and to form a street or road when disposing of lands as building sites. Clause (b) of sub-section (2) casts an obligation on the owner to set apart in the layout adequate area of land on such a scale as may be prescribed for a play-ground, a park, an educational institution or for any other public purpose, before he utilises, sells, leases or otherwise disposes of such land or any portion thereof, as sites for construction of buildings. At this stage, we may quote Rule 10 of the Layout Rules.
10(1) The area of land required to be set apart under clause (b) of sub-section (2) of Section 184 shall not be less than 5% of the gross area covered by the layout with not more than 8 plots per gross hectare over and above this for the increase of every two plots per gross hectare, the open spaces to be provided shall increase by one more per cent. (Such open space shall, however, be limited to 10% a maximum irrespective of the size of plots when minimum, extent and width safety as per sub-rule (1) of Rule 9.
(2) In case the area, for which a layout is sought for, falls in a Master Plan or in a Town Planning Scheme and for which a draft scheme is already furnished by the Director of Town Planning or in a sanctioned Town Planning Scheme or Master Plan, if a portion of his land falls in the area earmarked in such plan for a common public purpose in the interest of general development of that locality, the owner of such land shall transfer such percentage of the area of layout as prescribed in sub-rule (1) free of cost to the Municipality. In other cases i.e., if the area so marked in the layout under reference are more than such percentage as prescribed in sub-rule (1), he shall also transfer the entire area so proposed to be reserved in the layout and he is entitled to receive compensation at the prevailing market rates from the Municipality for the part of liis sit which is in excess of the extent of land which he has to provide as per sub-rule (1).
(3) xx xx xx (4) The Municipality shall not use the lands so transferred for any purposes other than that for which it is so ' transferred or shall not utilise the amount for any other purpose other than the acquisition of the land for the purpose for which it is so transferred.
(5) The land to be set apart under clause (b) of sub-section (2) of Section 184 as required by sub-rules (1) and (3) in respect of the size of the layout not exceeding one hectare may be provided in the areas set apart from public purpose in the sanctioned General Town Planning Scheme (Master Plan) in the vicinity of the layout areas as may be decided by the Council with the approval of the Director of Town and Country Planning so as to secure larger extents of land for public purpose.
17. We may also notice Sections 13 and13-A of Andhra Pradesh Urban Areas (Development) Act which reads thus:
13. Modification to the Master Plan :--In the case Authority desires to make any modification in the Land Use Map or Master Plan under sub-section (1) of Section 12 of the Act, a public notice shall be issued in a prominent place in atleast three local (Telugu, Urdu and English) newspapers by the Authority.
(2) The Authority shall invite, in Form No.III appended to these rules objections and Suggastions to be given in Form No.IV appended to these rules from any person or local authority affected directly or indirectly with respect to the Master Plan land use map proposed to be modified.
(3) Soon after the objections and suggestions are received by the Authority, the Authority shall conduct local enquiries and other hearings, if necessary and given an opportunity to the person affected (whether directly or otherwise) to be held on a specified date or dates before the modifications are finally approved.
13-A. Modifications to the master plan by the Government :--(1) In case the Government desire to make any modification to the Master Plan under sub-section (2) of the Act, a notification shall after consultation with the authority be published in the Andhra Pradesh Gazette in such form as the Government may deem fit inviting objections and suggestions from any person or local authority affected directly or indirectly with respect to the Master Plan proposed to be modified giving fifteen days time for the receipt of such objections and suggestions.
(2) Soon after the objections and suggestions are received by the Government, the Government may, if necessary, have local enquiries conducted and give an opportunity to the persons affected to state their objections before the modifications are approved and published in the Andhra Pradesh Gazette.
18. Before us the original lay out plan, which was prepared in the year, 1975 has been produced. Therein, the land in question had been shown as community centre. The said fact is not disputed. It is also not in dispute that in the year 1985, the said land was used as Nursery by VUDA. The extent of the area in dispute is only A.0.85 cents.
19. The entire lay out consists of 5430 plots. On modest estimation 20,000 to 30,000 people are residing therein.
20. It has not been disputed that on or about 3-6-1985 the said land had been handed over to respondent No.2 and the same was being maintained by it.
21. It also stands admitted that on the land in question encroachments had been made and there had been no planned use of the land.
22. A park provides for some lung space. It is well settled that community need hospitals, sports and recreational activities. Parks and wetlands are meant for maintaining the ecological balance. The park and the community centre in question were handed over to the 2nd respondent and it being a local authority was duty bound to maintain the same properly.
23. The Development Act envisages preparation of Master Plan in terms of the provisions of a statute. A Master Plan consists of various zones. In the master plan, the user of each zone is specified. The stages for development of each zone are also specified. Such master plans and zonal development plans are prepared for planned development. They are also prepared keeping in view the larger public interest. Air and ground water come within the purview of the doctrine of public trust. No person far less an authority, which is a creature of the statute, would be permitted to violate the provisions of the Act under which it had been created.
24. Section 12 of the Act empowers the authority to make modifications of the plan, which would not affect important alterations in the character of the plan. Such alterations must not relate to the extent of land uses or standards of population density. Such modifications thus which relates to the extent of land uses would not come within the purview of Section 12 of the Act. Chapter IV of the Act deals with development of lands. Section 13 deals with declaration of development areas and development of lands in those and other areas. Sub-sections (4), (5) and (7) of Section 13 of the Act clearly forbid any action which would be in derogation of such plans. The authority cannot do it itself which it forbids others. Section 57 of the Act provides for a non-obstante clause. The said provision also clearly says that if any action is taken in derogation of the provisions of the Master Plan and zonal development plan by any authority whatsoever, the same shall not be treated to be lawful Act.
25. In the aforementioned situation, the decisions of this Court may be noticed.
26. In Kalasagaram, Secunderabad Cultural Assn. v. State of A.P., 1997 (6) ALD 277, a learned single Judge of this Court held :
It is settled that the land reserved for public purpose namely, playground/park in the sanctioned lay-out cannot be allowed to be used for any other purposes including for any other public purpose. In such view of the matter, such lands reserved for playground/park etc., cannot be alienated by the Municipal Corporation in exercise of its purported power under Section 148 of the Act. The power under Section 148 to alienate movable or immovable property subject to the conditions mentioned therein is not available in respect of the lands, which are reserved for playgrounds, roads, parks etc., in the sanctioned layout. The land, which is reserved for such purpose cannot be said to be the land belonging to the Municipal Corporation and available for alienation within the meaning of Section 148 of the Act. No doubt, after the approval and sanction of lay-out such lands which are reserved for public purpose and on communal benefits shall stand vests in the Municipal Corporation but only for the utilisation by the Corporation for the purpose for which such land is reserved in the sanctioned layout. The land cannot be utilised for any of the purpose and at any rate it can never be alienated by way of lease, exchange of sale either by the Commissioner or by the Corporation as the case may be. In such view of the matter, the inescapable conclusion is that the respondent-Corporation could not have alienated the land in question in favour of the petitioner under the lease deed 17-7-1982. The decision is absolutely illegal, ultra vires and void.
27. However, another learned single Judge of this Court in Defence Colony Residents Welfare: Association v. Dist. Collector, R.R. District (supra) distinguished the decision in Kalasagaram and held:
The Layout Rules of 1920 framed under the Municipalities Act are silent as to how much of the extent of the land set apart under Section 184(2) be used for each of the various purposes contemplated under the said section. In the absence of any specific provision either under the Act or under the Rules made thereunder dealing with the subject, in my view, the Municipality has a wide discretion in utilising such land, subject to the condition that the utilisation contemplated by the Municipality must necessarily be within the scope of the public purposes contemplated under the two enactments referred to earlier, because what exactly is the requirement of the public in the context of the layout is a matter to be decided by the Municipality or such other competent authority designated by law and the intention of the maker of the lay-out, in my view, is irrelevant for the purpose of deciding the utilisation of the said land. The land when it is shown in the application seeking approval of the layout, as land set apart for the purposes mentioned under Section 184(2), it should be deemed to have been set apart for all the purposes contemplated under the said section. In the circumstances, the Municipality would be at liberty to utilise such land for any public purpose contemplated under the two enactments as indicated earlier. In my view, Section 184(2)(b) of the Municipalities Act when it contemplates the expression "any other public purpose" it takes within its sweep all the purposes mentioned in the Town Planning Act (Section 4(k)).
28. Having regard to the purposive construction that must be rendered in relation to the relevant provisions of the Act and the Rules, we are of the opinion that the decision in Defence Colony Residents Welfare Association's case is not correct. On the other hand, we agree with the view taken by the learned single Judge in Kalasagaram. In this connection, we may notice that the Apex Court in M.C. Mehta v. Union of India, and M.C. Mehta v. Union of India, and M.C. Metha v. Union of India, , has also taken a similar view.
29. In this view of the matter, we are of the opinion that the action taken by the respondent-Corporation must be held to be a nullity being ultra vires the provisions of the Act and the Layout Rules, 1970 as it has exceeded its jurisdiction. Sub-rule (4) of Rule 10 of the Layout Rules, 1970 clearly provides that the authority shall not use the lands transferred and set apart under clause (b) of sub-section (2) of Section 184 of the A.P. Municipalities Act, 1965 for any purpose other than for which it was so transferred. The necessity of providing a park by way of lung space need not be over-emphasised in view of the series of decision of the Apex Court and also this Court.
30. In Bangalore Medical Trust v. B.S, Mudappa, , it was held that a private nursing home could neither be considered to be an amenity nor it could be considered improvement over necessity like a public park and that the exercise of power in conversion of public park into private nursing home, therefore, was contrary to the purpose for which it was conferred under the statute.
31. Yet again in M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu and others, , the Apex Court held:
"That there could be estoppel by pleadings, reference was made to a decision of this Court in Union of India v. M/s. Indo-Afghan Agencies Ltd., 1968 (2) SCR 366, approving the earlier decision of the Calcutta High Court in the Ganges Manufacturing Co. v. Sounijmull and others [1880 ILR Calcutta 669 at 678]. Mr. Sorabjee said a party could not change its stand even if it was legally wrong in its earlier stand as otherwise it could be a negation of everything.
In the Ganges Manufacturing Co. v. Soitrujmuli and others, [(1880) 5 ILR Cal. 669] a Division Bench of the Calcutta High Court held that " a man may be estopped not only from giving particular evidence, but from doing any act or relying upon any particular argument or contention, which the rules of equity and good conscience prevent him from using as against his opponent".
In Union of India and others v. Ms. Indo-Afghan Agencies Ltd. in a certain scheme called the Export Promotion Scheme incentives were provided to the exporters for woollen goods. M/s. Indo-Afghan Agencies Ltd. Exported woollen goods to Afghanistan of FOB value of over Rs.5 crores. The Deputy Director in the office of the Textile Commissioner, Bombay, issued to them an Import Entitlement Certificate for about Rs.2 crores only. When the representations made to the Government for grant of import Entitlement Certificate for full FOB value, it produced no response and writ petition under Article 226 of the Constitution was filed in the High Court. High Court allowed the writ petition. In the appeal filed by Union of India to this Court various contentions were raised. This Court said:-
"Under our jurisprudence the Government is not exempt from liability to carry out the representation made by it as to the future conduct and it cannot on some underfined and undisclosed ground of necessity or expediency fail to carry out the promise solemnly made by it, nor claim to be the judge of its own obligation to the citizen on an ex parte appraisement of the circumstances in which the obligation has arisen".
And further :
"The defence of executive necessity was not relied upon in the present case in the affidavit filed on behalf of the Union of India. It was also not pleaded that the representation in the scheme was subject to an implied term that the Union of India will not be bound to grant the import certificate for the full value of the goods exported if they deem it inexpedient to grant the certificate. We are unable to acceded to the contention that the executive necessity releases the Government from honouring its solemn promises relying on which citizens have acted to their detriment. Under our constitutional set up no person may be deprived of his right to liberty except in due course of and by authority of law: if a member of the executive seeks to deprive a citizen of his right or liberty otherwise then in exercise of power derived from the law- common or statute-the Courts will be competent to and indeed would be bound to protect the rights of the aggrieved citizen".
32. The Apex Court also rejected the argument of doctrine of administrative inconvenience. It traced the history of Jhandewala Park and held:
"Mahapalika is the trustee for the proper management of the park. When true nature of the park, as it existed, is destroyed it would be violative of the doctrine of public trust as expounded by this Court in Span Resort case , Public Trust doctrine is part of Indian law. In that case the respondent who had constructed a motel located at the bank of river Beas interfered with the natural flow of the river. This Court said that the issue presented in that case illustrated "the classic struggle between those members of the public who would preserve our rivers, forests, parks and open lands in thejr pristine purity and those charged with administrative responsibilities who, under the pressures of the changing needs of an increasingly complex society, find it necessary to encroach to some extent upon open lands heretofore considered inviolate to change".
In the treatise "Environmental Law and Policy: Nature. Law and Society" by Plater Abrams Goldfarb (American Casebook series- 1992) under the Chapter on Fundamental Environmental Rights, in Section 1 (The Modern Rediscovery of the Public Trust Doctrine) it has been noticed that "long ago there developed in the law of the Roman Empire a legal theory known as the 'Doctrine of the Public Trust'." In America Public Trust doctrine was applied to public properties, such as shore-lands and parks. As to how doctrine works it was stated: "The scattered evidence, taken together, suggests that the idea of a public trusteeship rests upon three related principles. First, that certain interests-like the air and the sea- have such important to the citizenry as a whole that it would be unwise to make them the subject of private ownership. Second, that they partake so much of the bounty of nature, rather than of individual enterprise, that they should be made freely available to the entire citizenry without regard to economic status, And, finally, that it is a principle purpose of Government to promote the interests of the general public rather than to redistribute public goods from broad public uses to restricted private benefit...." With reference to a decision in Illinois Central Railroad Company v. Illinois [146 US 387 (1892)], it was stated that "the Court articulated in that case the principle that has become the central substantive thought in public trust litigation. When a state holds a resource which is available for the free use of the general public, a Court will look with considerable scepticism upon any Governmental conduct which is calculated either to reallocate the resource to more restricted uses or to subject public uses to the self-interest ofprivate parties". This public trust doctrine in our country, it would appear, has grown from Article 21 of the Constitution".
It directed:
"1. Block 1,2 and 4 of the underground shopping complex shall be dismantled and demolished and on these places park shall be restored to its original shape.
2. In Block 3 partition walls and if necessary columns in the upper basement shall be removed and this upper basement shall be converted into parking lot. Flooring should be laid at the lower basement level built to be used as parking lot. Ramp shall be constructed adjacent to Block 3 to go to upper and lower basement levels for the purpose of parking of vehicles. Further to make block 3 functional as a separate unit walls shall be constructed between block 2 and block 3 and also block 3 and block 4.
3. Dismantling and demolishing of these structures in Blocks 1, 2 and 4 and putting Block 3 into operation for parking shall be done by the Mahapaiika at its own cost. Necessary services like sanitation, electricity etc., in Block 3 shall be provided by the Mahapaiika.
4. Mahapaiika shall be responsible for maintaining the park and the Block 3 for parking purposes in proper and efficient manner.
5. M.I. Builders Pvt. Ltd., the appellant, is divested of any right, title or interest in the structure built by it under or over the park. It shall have no claim whatsoever against Mahapaiika or against any other person or authority".
33. This aspect of the matter has been . considered by one of us (V.V.S. Rao, J.) in NGOs Colony Development Committee v. District Collector, Krishna, Machilipatnam, 2000 (1)ALD 55.
34. Yet again in HGN Samity v. Chief Secretary, 2000 (1) CHN 28, a Division Bench of the Calcutta High Court stated the law thus:
"How the State Government had allotted a portion of the park in deviation of its policy decision in the name of building of Community Hall is a matter of great surprise that there are several statutes governing the field is not in dispute. A lay-out plan has to be made under the provision of the West Bengal Town and Country (Planning and Development) Act, 1979. The Calcutta Metropolitan Development Authority has issued handbook laying down the procedure and guidelines for environmental clearance. Although the same is meant for certain purposes, viz., industrial projects, the same is a pointer to show that the State had been also eager to maintain the greenery and the ecological balance. Therefore, we fail to understand as to how the State could allot the lands in question within a park which is contrary to the representation made by it to the residents particularly in view of the fact that excess premiums had been charged for those who had opted for settlement of land near the park or green verges.
It is also surprising as to how the Bidhan Nagar Municipality also sanctioned the building plan within a park. The said action, in our opinion, was not commensurate with the professed policy decision of the State and the Municipality. The aspect of the matter has recently been considered in M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu and others, , wherein it has been held that the Municipality is a Public Trustee in respect of parks".
35. Referring to clauses (a) and (1) of sub-section (3) of Section 63 West Bengal Municipal Act, 1993, it was held:
"The obligatory functions leave no manner of doubt that park being a property having vested in the Municipality, has the duty to maintain the develop the same. It, of course, has a discretionary duty, inter alia, to construct and maintain a Community Hall but the same cannot be done at the cost of ecology and greenery. The State, as noticed hereinbefore, has a duty to look after the environment, safety and improvement. Such functions can only be transferred in terms of Section 65 of the Act but the same has not been done. It was in this situation the Municipality could not have sanction any building plan inside the park. The respondents have constructed their buildings at their own risk during pendency of the writ petition. They, therefore, cannot take any benefit thereof and, thus, there is no difficulty in directing demolition of those buildings and a further direction that the parks should be restored to their original position. It is directed accordingly".
36. We may also refer to the decision of the Apex Court in Virender Gaur v. State of Haryana, . That was a case where the Government of Haryana framed a Town Planning Scheme. One of the appellants therein surrendered certain extent of land for the purpose of the scheme in favour of the Municipality, which was a condition for sanction to construct her building. Under the scheme the land vested in the Municipality was earmarked for open spaces. But the said land was however granted on lease by the Government in favour of Punjab Samaj Sabha for construction of a Dhannasala. Considering the provisions of Haryana Municipal Act, 1973 and the right of the citizens to hygienic environment protection, the Apex Court held that when a land is earmarked for a public purpose, the Municipality is required to use the land for the protection or preservation of hygienic conditions of the local residents in particular and the people in general and not for any other purpose. It was observed :
..... there is a constitutional imperative on the State Government and the Municipalities, not only to ensure and safeguard proper environment but also an imperative duty to take adequate measures to promote, protect and improve both the man-made and the natural environment.
37. Rejecting the contention of the appellants therein for non-user of open land by the Municipality for more than two decades, the land stood divested from the Municipality and vested in them, the Apex Court observed:
Yet the Municipality has to use the land for the purpose envisaged in the scheme read with those found in Section 61 unless unavoidable compelling purpose require change of user. Take a case where in the zonal plant certain land is marked out and reserved for park or recreational purpose. It cannot be acquired or allotted for building purpose though housing is a public purpose.
38. It was also observed that open lands vested in the Municipality were meant for the public amenity to the residents of the locality to maintain ecology, sanitation, recreation, playground and ventilation purposes,
39. This aspect of the matter has also been considered by this Bench in C. Uma Devi v. Government of Andhra Pradesh.
40. We may further notice that construction of a Kalyanamandapam by the TTD cannot by itself be equated with a community centre inasmuch as Kalyanamandapam can be used only by members of one community and not by the public in general irrespective of caste, creed, religion or class. In this view of the matter and in view of the statutory provisions and the rules make thereunder as indicated hereinbefore, the contention that VUDA has retained the land in question in exchange of a plotted area allotted to TTD for construction of Kalyanamandapam does not merit any consideration.
41. We are, therefore, of the opinion that the action taken by the respondent-authority in dividing the vacant site in question into small plots and selling the same in a public auction must be held to be illegal and contrary to the statutory provisions and the rules made thereunder as also the public policy. Accordingly, a mandamus will issue as prayed for.
42. The respondents must take all necessary and consequential actions pursuant to the declaration. But, we may observe that the interest of justice will be subserved if those who had been allotted plots are allotted land at some other place which is meant for residential purpose either in the colony or at any place near the colony and in the event the same is not possible, the amount realised from them shall be refunded with simple interest at 9% p.a.
43. The respondent-authority are hereby directed to maintain the land in question for the purpose for which the same has been provided for in the Master Plan.
44. The writ petition is allowed accordingly. There shall be no order as to costs.