Document Fragment View

Matching Fragments

xxx xxx xxx The plea that educational facility serves better public purpose than an open space which is ultimately converted into a dumping space for rubbish is wholly misconceived. It is no doubt true that by a legal fiction created by the operation of the Rules, a site reserved for an open space is vested in the Development Authority but this vesting is intended by the reason that the use of such site is meant for the public in general and it cannot be put in private hands by reason of its dedication to the general public. The Development Authority cannot change its use and its user is limited for the purpose for which it was reserved under the approved scheme. The scheme of sub-division of plots has a statutory object to promote the ordinary development in the city in a planned manner and to preserve open space/spaces for public park, garden, lawn, playground for children etc. with a view to protect the residents from the ill effects of urbanisation. The Authority is under an obligation to act according to the approved scheme/plan. The Development and Planning are primarily for the benefit of the public and a statutory authority is under an obligation to perform its duty in accordance with the provisions of the Act and the Rules. Therefore, the plea that by vesting of an open space in the Trust by operation of law, the open space meant for park, garden or lawn etc. can be transferred by the Authority to private hands for different use which may be for a school even would not be tenable. It is no doubt true that educational facility also serves an important purpose of society but the provisions of the Rules of 1975 make a marked distinction in relation to open space/spaces and the sites left for educational facility. In the former case, it has a statutory dedication to the general public but it is not so in the latter case. The site reserved for educational institution is transferable to a private person or body for the specific purpose for which the area was reserved and its ownership also vests in the developer, but the same is not applicable in the case of open spaces which are intended to be used by the public. Sites reserved for open space in the sanctioned scheme/plan cannot be leased or sold away unless the scheme is duly altered.
24. Protection of the environment, open spaces for recreation and fresh air, playgrounds for children, promenade for the residents, and other conveniences or amenities are matters of great public concern and of vital interest to be taken care of in a development scheme. It is that public interest which is sought to be promoted by the Act by establishing the BDA. The 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 user. Any such act would be contrary to the legislative intent and inconsistent with the statutory requirements. Furthermore, it would be in direct conflict with the constitutional mandate to ensure that any State action is inspired by the basic values of individual freedom and dignity and addressed to the attainment of a quality of life which make the guaranteed rights a reality for all the citizens.
25. Reservation of open spaces for parks and playgrounds 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.
26. In Agins v. City of Tiburon, the Supreme Court of the United States upheld a zoning ordinance which provided...it is in the public interest to avoid unnecessary conversion of open space land to strictly urban uses, 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 of urban sprawl. Upholding the ordinance, the Court said: (US pp.261-62) ...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 urbanization. Such governmental purposes long have been recognized 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.

27. The statutes in force in India and abroad reserving open spaces for parks and playgrounds are the legislative attempt to eliminate the misery of disreputable housing condition caused by urbanisation. Crowded urban areas tend to spread disease, crime and immorality. As stated by the U.S. Supreme Court in Samuel Berman v. Andrew Parker: L Ed pp.37-38: US pp.32-33.