Judgment:
ORDER
T.S. Doabia, J.
1. This order shall dispose of writ petition No. 1173 of 1988, (ii) Writ Petition No. 1183 of 1988, (iii) Writ Petition No. 988 of 1989, (iv) Writ Petition No. 164 of 1990, (v) Writ Petition No. 811 of 1988, (vi) Writ Petition No. 1205 of 1988.
2. The petitions at Sr. Nos. (i), (ii) and (iii)deal with lay out plan and whether this plan isbeing observed in letter and spirit. Petition atSr. No. (iv) deal with non-grant of prayermade in building application and petitions atSr. Nos. (v) and (vi) deal with building activity taken in pursuance of concept of deemedsanction. These petitions are being dealt withaccordingly. '
3. Writ Petition No. 1173 of 1988: --
This petition under Articles 226 and 227 of the Constitution of India has been preferred by Basant Vihar Grih Nirman Sahkari Sanstha, Maryadit, Gwalior. This is a society registered under the M.P. Co-operative Societies Act, 1960. With a view to develop certain area for residential buildings, a layout plan was submitted for approval to the Town and Country Planning Department. As per the petitioner society, the plan was approved and the lay out plan was sanctioned. Copy of this layout plan as sanctioned by the Joint Director, Town and Country Planning Department, Gwalior is said to be part of memorandum 2847 dated 4th of June, 1976: As per the petitioner society, sanction to this lay out plan was also to be granted by the Municipal Corporation, Gwalior also and even this sanction was granted. Copy of this has been placed on record as Annexure P/14. It appears that attention of the Collector was drawn to certain irregularities committed by the society in the matter of implementation of the scheme. An order dated 25th of June, 1988 came to be passed. By this the licence granted to the petitioner society was cancelled. It is this order which is being impugned. The above action has been taken under Section 24 of the M. P. Nagar Thatha Gram Nivesh Adhiniyam, 1973.
4. The learned counsel appearing for the petitioner has submitted that no opportunity was given to the society. He submits if spot inspection is done and measurements are taken at the site, it would be found that the lay out plan as sanctioned by the Town and Country Planning Department has not been deviated from in any manner. He also submits that there were some subsequent revisions made in the lay out plan and these are also required to be taken note of. According to him, the society is serious about seeing that the lay out plan as originally sanctioned and as later on legally amended is given effect to.
5. Intervention applications have been preferred by certain persons who claim to be allottees in this colony. They are represented by their learned counsel.
6. On behalf of these allottees it wasargued that any illegality in the matter of. implementation of the scheme cannot bepermitted to be continued. According to him,whatever amenity has been provided schemeto the citizens under the scheme should beretained and they cannot be deprived of theamenities which have been originally provided in the scheme.
He has also argued that there is a duty cast on the authorities to see that those amenities are available to the citizens and are not deleted in any manner.
7. The plea raised by the allottees be noticed: --
The residents of the locality are persons intimately, and vitally interested to see that any action destructive of the environment is set at naught. They cannot be deprived of the facilities reserved for them. While dealing with concept of locus standi in these cases the Supreme Court in Bangalore Medical Trust v. B.S. Muddappa, AIR 1991 SC 1902, in para 36 observed: --
'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 a head. 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 freer 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.
8. What was once a royal prerogative and symbol of aristocracy is an essential attribute of concept of equality to be enjoyed by all. As a matter of fact in Bangalore Medical Trust (supra) in para 37, it was said: --
'Public park as a place reserved for beauty and recreation was developed in 19th and 20th Century and is associated with growth of' the concept of equality and recognition of importance of common man. Earlier it was a prerogative of the aristocracy and the affluent either as a result of royal grant or as a place reserved for private pleasure. Free and healthy air in beautiful surroundings was privilege of few. But now it is a 'gift from people to themselves'. Its importance has multiplied with emphasis on environment and pollution. In modern planning and development it occupies an important place in social ecology.'
Thus, the interveners and allottees have a local standi to contend that open spaces be kept as they are.
9. The question as to the obligation of the authorities to see that open spaces are kept as provided in statutory scheme be examined. As a matter of fact this concept is of old origin arid was recognised, more than a century back. 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 thes relevant statute. Still later in Maddison v. Alderson, (1883) 8 App 467 : 52 LJQB 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 asistance 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.
10. 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 Ed 27 : 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 anugly 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 concent 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.
The U.S. Supreme Court in Village of Belle Terre v. Bruce Borass, (1974) 39 Law Ed 2d 797 : 416 US 1 opined that police power is not confined to elimination of 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.
11-12. Again in Agins v. City of Tiburon, (1980) 447 (US) 255, the Supreme Court of the United States upheld a zoning ordinance which provided conversion of open space land thereby protecting against the resultant impacts such as pollution, destruction of scenic beauty, disturbance of the ecology and the evironment, hazards related to geology, fire and flood and other demonstrated consequences of 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 letigimate. 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.'
13. What was sought to projected in the above cases was reiterated by the Supreme Court in K.R. Shenoy v. Udipi Municipality, AIR 1974 SC 2177 : 1974 SCO 813. In the above case, the Municipality of Udipi had granted permission for construction of Cinema hall in a place which was reserved for residential purposes. This action of the Municipality was struck down by observing that the Municipal authorities 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: --
27... Where the Municipality acts in excess of the powers 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 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 a bye-law 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.'
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 open spaces for parks and playground 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 1903 : 1991 AIR SCW 2082 an attempt made to convert a park into a Nursing Home was nullified and it was observed that open space provided in the city should be retained as such. It was specifically stated that protection of the environment or open spaces for recreation and fresh air, play grounds for Children promenade 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 the 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 duty 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.'
14. In view of the above factual position and the position of law noted above, the respondent are entitled to contend that scheme be implemented as it is. For this they have requisite locus standi to intervene in this petition. The parks and open spaces shall be kept as there are so shown in the lay out plan.
15. Shri R.D. Jain does not dispute the above situation. He however submits that there is no change in the lay out plan. He has made an offer that there should be spot inspection.
16. There can be no valid objection to the offer made by Shri R.D. Jain. As such, the respondent No. 2 would examine: --
(i) the original lay out as sanctioned by the Town and Country Planning Department;
(ii) the lay out plan as sanctioned by the Town and Country Planning Department and on the basis of which approval was given by the Municipal Corporation, Gwalior.
(iii) determine if any change or amendment was made in the lay out plan.
(iv) after tracing out the above plans, there would be spot inspection in the presence of the President of the society or any other person deputed by him. Representatives of the person who were allotted the plots be also associated. Shri N.P. Mittal has suggested the name of Shri K.M. Mudgal and Shri Ramji Sharma. They be also associated when the spot inspection done.
(v) the Representatives of the Corporation be also informed. Spot inspection would be done by giving prior notice,
After the spot inspection is done, the Collector would afford an opportunity of hearing to the petitioner society as also the persons who have been allowed to intervene and also to the Municipal Corporation, Gwalior. It is only after it is found that there is in fact a deviation from the lay out scheme, fresh order in accordance with the law would be passed.
17. If it is found there is any deviation the authorities would follow the law laid down by the Supreme Court in K.R. Shenoy Case (supra). (AIR 1974 SC 2177). The observation made in paras 28, 29, and 30, are relevant and be noticed: --
'An illegal construction of a cinema building materially affects the right to or enjoyment of the property by persons residing in the residential area. The Municipal Authorities owe a duty and obligation under the statute to see that the residential area is not spoilt by unauthorised construction. The scheme is for the benefit of the residents of the locality. The Municipality acts in aid of the scheme. The rights of the residents in the area are invaded by an illegal construction of a cinema building. It has to be remembered that a scheme in a residential area means planned orderliness in accordance with the requirements of the residents. If the scheme is nullified by arbitrary acts in excess and derogation of the powers of the Municipality the courts will quash orders passed by Municipalities in such cases.
'The Court enforces the performance of statutory duty by public bodies as obligation to rate prayers who have a legal right to demand compliance by a local authority with its duty to observe statutory rights alone. The scheme here is for the benefit of the public. There is special interest in the performance of the duty. All the residents in the area have their personal interest in the performance of the duty. The special and substantial interest of the residents in the area is injured by the illegal construction.
'The High Court was not correct in holding that though the impeached resolution sanctioning plan for conversion of building into a cinema was in violation of the Town Planning Scheme yet it could not be disturbed because the third respondent is likely to have spent money. An excess of statutory power cannot be validated by acquiescence in or by the operation of an estoppel. The Court declines to interfere for the assistance of persons who seek its aid to revision. Lord Selborne in Maddison v. Alderson, (1983) 8 App Cas 467: 52 LJ QB 737 said that courts of equity would not permit the statute to be made an instrument of fraud. The impeached resolution of the Munciapality has no legal foundation. The High Court was wrong in not quashing the resolution on the surmise that money might have been spent. Illegality is incurable.'
18-19. Thus, it is held:
(i) that open spaces are supposed to be preserved as they are shown in the lay out plans.
(ii) in case there is any deviation then remedial measures are required to be taken;
(iii) the Collector would determine if there is any deviation and take remedial measures. Writ petition No. 1173 of 1988 is disposed of accordingly.
WRIT PETITION NO. 1183 OF 1988.
The grievance of the petitioner in this petition is that permission to erect the buildingwas declined on the ground that the Registration of the society was cancelled. This matterhas been dealt with in W.P. No. 1173 of 88.Thus in this petition a direction was given tothe authorities to proceed further in accordance with law after determining the questionswhich are now to be gone into in writ petitionNo. 1173 of 1988. The Corporation wouldtake note of that decision and deal with thiscase accordingly.
WRIT PETITION NO. 988 OF 1989.
In this petition, the only argument which has been raised by the learned counsel for the petitioner is that the respondents 1 to 3 should see to it that the respondent society No. 4 keeps its activities within the lay out plan as sanctioned by the Town and Country Planning Department. This proposition has been dealt with while dealing with Writ Petition No. 1173 of 1988 open spaces are to be rationed as they are. To this legal proposition, there is no dispute. If the respondents are not disputing this proposition of law; then only dispute which remains is as to what is the lay out plan. This question is going to be decided afresh in view of the decision given in Writ Petition No. 1173 of 1988. In this view of the matter, it is not necessary to say anything further in the matter.
Whatever be the out come of the fresh order to be passed in W.P. No. 1173 of 1988, that would govern this writ also.
WRIT PETITION NO. 164 OF 1990.
The grievance of the petitioner in this petition is that he applied for sanction of building application but this has neither been declined nor granted. As such a direction is given to the Municipal Corporation to look into the grievance of the petitioner and take a decision one way or the other within a period of two months after decision is taken by the Collector in Writ Petition No. 1173 of 1988.
WRIT PETITION NO. 811 OF 1988 AND WRIT PETITION NO. 1205 OF 1988.
In the above two writ petitions, the petitioners have raised constructions in pursuance of deemed sanction. It is the case of the petitioners that they submitted their building applications and as the requisite sanction was not granted within the stipulated period, they proceeded to erect the buidlings.
20. The concept of deemed sanction does not visualise that the building can be erected in contravention of the building bye-law or in contravention of statutory schemes. As a matter of fact where express sanction was granted contrary to law the Supreme Court ordered demolition of the building in K.R. Shenoy's case. The case has been referred to while dealing with W.P. No. 1173 of 1988. Thus deemed sanction cannot be placed at a pedestal higher than express sanction. As such, the Corporation would look into this aspect of the matter and in case it is found that the buildings have been raised as her the bye-laws applicable to construction activity i.e. with regard to dimensions of the rooms, height of the buildings numbers of stories, etc. etc. then step be not taken to demolish the buildings. In case, the breach is such which is compoundable then steps be taken for compounding the same. Such is the view expressed by a Bench of Lahore High Court in Administrator Corporation of Lahore v. Mangal Sen, AIR 1945 Lah 151.
'It appears to me that the case in AIR 1940 Lah 185 cuts down that discretion which the Section clearly gives to the Municipal Committee. In that csae it was held that it is true that power is vested in the committee to require the demolition of the building which is erected without the necessary sanction, but this power is vested in the committee to meet extreme cases of defiance or cases in which encroachments are made on municipal lands or rules framed by the committee on hygienic or sanitary grounds are flagrantly ingored. It was further held that where this was not the case and the only infringement of the law was a disregard of the provisions requiring every person not to erect any building without the sanction of the committee, the law provided an alternative remedy and that was to penalise the offender in such sum as the committee might deem reasonable, With great respect to the learned Judge who decided this case I would point out that the law does not provide an alternative remedy except at the instance of the committee itself. The committee may elect to accept compensation but the decision rests with it and it alone. There is nothing in the Section to suggest that the discretion given to the committee can be exercised by any one else, not even a Court of law. The committee is the sole judge of how it should act and if it accepts compensation, it is the sole judge of what it should accept. There is nothing in the Section itself which gives the Court a right to do what the committee is empowered to do. It is clear from the Section that if the committee desires that the building should be demolished, it can call upon the owner to do so and the Section places no restrictions upon the committee's right. There is nothing in the Section to suggest that demolition should only be ordered in flagrant or very serious cases. It can be ordered in any case in which the committee thinks proper. To hold that demolition could only be ordered in serious cases and that in less serious cases compensation should be paid is to read something into the Section which is not there. It is for the committee in every case to decide whether a breach is flagrant or otherwise or whether it is serious or comparatively trival and the law leaves it to the committee to enforce what the committee thinks is the proper penalty.'
It was concluded as under: --
'In my judgment, this Court cannot substitute itself for the committee and decide whether or not a demoltion order should be made or whether compensation should be demanded. That is entirely for the committee.'
21. Thus, the Corporation would examine as to whether the breach is such which can be compounded or not. Demolition of building is an ultimate sanction and is to be resorted to in rarest of rare case. Violation which were are 'technical in nature' should be compounded. Such is the view expressed by the Supreme Court of India in Raghubir Singh and Chatter Singh v. Union Territory of Chandigarh, AIR 1993 SC 1943 : 1993 AIR SCW 2251.
22. Thus
(i) In Writ Petition Nos. 1173 of 1988, 1183 of 1988 and 988 of 1989, a direction is given to make spot inspection and find out if there is any variation in the same. If there is some variation then the same is to be rectified.
(ii) In Writ Petition No. 164 of 1.990 building application shall be processed in accordance with law.
(iii) In Writ Petition No: 811 of 1988 and 1205: of 1988, the Corporation would take steps to compound the violation in the light o what has been stated above.
23. No costs.