Virender Kumar Vs. State of Himachal Pradesh and anr. - Court Judgment

Rajiv Sharma, J.

1. It is a pro bone publico litigation filed by the retired Principal. The petitioner has highlighted the acts of omission and commission of the respondents by permitting the construction of three storeyed parking lot in a Children Park. The petitioner has averred that the State had taken a decision to convert the graveyard into a park for children after the consent of the Muslim community in the year 1962. A sum of Rs. Two lakhs was incurred for the development of the children park. It was inaugurated by Shri Bhavan Sahay, the-then Lt. Governor of Himachal Pradesh on 26.10.1965. The petitioner has further averred that many unscrupulous persons have occupied the major portion of the Children Park and have built up shops and offices in violation of law. He had also filed Writ Petition (Civil) No. 605 of 2007 in the Hon'ble Supreme Court for similar relief as prayed for in this petition. He was permitted to withdraw this petition on 10.12.2007.

2. Mr. Virender Kumar who has appeared in person has vehemently argued that the decision of the respondents to construct three storeyed parking lot in the Children Park is against the provisions of the Town and Country Planning Act, 1977. He then contended that the State of Himachal Pradesh i.e. respondent No. 1 is the owner of the land and respondent No. 2 has been shown in possession of the same in the revenue records. He then contended that respondent No. 2 has not even sought the permission of the owner i.e. State before embarking upon the construction of the building.

3. The learned Advocate General has argued that the necessary sanction was accorded to the Municipal Council ex-post facto to raise the construction vide communication dated 6.1.2009.

4. Mr. Jagdish Thakur, Advocate appearing on behalf of respondent No. 2 has vehemently argued that the parking lot has been constructed on the land in question to facilitate the parking of the vehicles of the parents/wards of the children who visit the Children Park. He further contended that the State Government has issued the necessary sanction to raise the construction vide communication dated 6.1.2009.

5. We have heard the learned Counsel for the parties and have gone through the pleadings carefully.

6. The Children Park was visualized/conceptualized in the year 1962. A sum of Rs. Two lakhs was spent for the development of the Children Park. It was inaugurated on 26.10.1965. The total land of the Children Park is 5423 square meters. The parking complex/lot was being constructed in the bottom side portion of land comprising Khasra Nos. 357 and 358 measuring 268 square meters adjacent to khasra No. 356 as per copy of Missal Haquiat and copy of Jamabandi placed on record. The State of Himachal Pradesh is the owner of the land. In the column of possession, the name of the Municipal Council is mentioned.

7. The idea of constructing a parking lot in a Children Park from the very inception of respondent No. 2 was misconceived. Respondent No. 2 instead of improving the Children Park, which according to the petitioner has been encroached upon by the unscrupulous persons has decided to construct a multiple storey structure. The reasons assigned by the Municipal Council to construct multiple storeyed parking lot for facilitating the parents/wards of the children who visit the Children Park is not convincing. The Children Park should have been developed by providing necessary infrastructure and wherewithal to be used by the children alone. The submission of Mr. Jagdish Thakur that only the steep and rocky portion has been utilized for the construction of the parking lot cannot be accepted. The parking lot, prima facie, has been constructed for a purpose alien to Children Park. The impression has been given as per the pleadings that the parking lot was being constructed near Children Park. It is contrary to record. In fact, the parking lot has been constructed by respondent No. 2 on the land of the Children Park bearing Khasra Nos. 357 and 358.

8. The Municipal Council has been created under the Himachal Pradesh Municipal Council Act, 1994. Indeed, it is intriguing to note that it has decided to raise the construction without seeking mandatory permission from the Town and Country Planning Department. It has also not sought the permission of the State Government to utilize the land for raising construction. The construction has been started and three storeys have been raised and it was only after the Court has intervened, respondent No. 2 has moved application seeking permission to raise the construction. The ex-post facto building permission was granted on 6.1.2009. A bare perusal of this document reveals that the application submitted by respondent No. 2 was not dated. Respondent No. 2 being a statutory body should not have started the construction without the permission accorded by the competent authority. It is the duty cast upon respondent No. 2 to act in accordance with law. The Court disproves the manner in which respondent No. 2 has proceeded in utter haste to raise the construction of three storeys structure on a Children Park. The respondents have failed to point out any provision under which ex-post facto sanction could be granted in favour of respondent No. 2. It also raises question mark on the working of the Department of the Town and Country Planning. The building permissions have to be accorded in accordance with law. The construction raised by respondent No. 2 without building permission is unauthorized. It was necessary for the Town and Country Planning Department to take action against the persons who were responsible for raising construction instead of granting ex-post facto building permission under Section 39 of the Town and Country Planning Act, 1977.

9. The Children Park has a purpose to achieve. It has been constructed to provide healthy atmosphere to the children living in and around Solan. The endeavour should have been made by respondents to improve already existing facilities instead of embarking on construction of parking lot and by styling it that it was for the welfare of the children. The role assigned to respondent No. 2 is to promote the interests of society at large.

10. Their Lordships of the Hon'ble Supreme Court in Bangalore Medical Trust v. B.S. Muddappa and Ors. : (1991) 4 SCC 54 have succinctly explained the importance of public parks. Their Lordships have also considered the judgments of U.S. Supreme Court. Their Lordships have held as under:

24. Protection of the environment, open spaces for recreation and fresh air, play grounds 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 play grounds 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 makes the guaranteed rights a reality for all the citizens*1.

*1. See Kharak Singh v. The State of U.P. : (1964) 1 SCR 332 : AIR 1963 SC 1295; Municipal Council, Ratlant v. Shri Vardhi. chand : (1981) 1 SCR 97 : AIR 1980 SC 1622; Francis Coralie Mullin v. The Administrator, Union Territory of Delhi : (1981) 2 SCR 516 : AIR 1981 SC 746; Olga Tellis v. Bombay Municipal Corporation : (1985) 3 SCC 545 : AIR l086 SC 180; State of Himachal Pradesh v. Umed Ram Sharma : AIR 1986 SC 847 and Vikram Deo Singh Tomar v. State of Bihar : AIR 1988 SC 1782.

25. Reservation of open spaces for parks and play grounds 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*2.

*2. See for e.g. : -Karnataka Town and Country Planning Act, 1961; Maharashtfa Regional and Town Planning Act, 1966; Bombay Town Planning Act, 1954; The Travancore Town and Country Planning Act, 1120; The Madras Towil Planning Act, 1920; and the Rules framed under these Statutes; Town & Country Planning Act, 1971 (England & Wales); Encyclopaedia Americana, Volume 22 page 240; Encyclopaedia of the Social Sciences, Volume XII at page 161; Town Improvement Trusts in India 1945 by Rai Sahib Om Prakash Aggrawala, p. 35 et. seq; 'Halsbury's Statutes, Fourth Edition, p. 17 et. seq. and Journal of Planning & Environment Law, 1973 p. 130 et. seq. See also: Penn Central Transportation Company v. City of New York (1978) 57 Law Ed 2d 631 438 US 104; Village of Belle Terre v. Bruce Boraas (1974) Law Ed 2d 797 : 416 US 1; Village of Euclid v. Ambler Realty Company (1926) 272 US 365; Halsey v. Esso Petroleum Co. Ltd. (1961) 1 WLR 683.

26. In Agins v. City of Tiburon (1980) 447 US 255, 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:.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*3...'

*3. See comments on this decision by Thomas J Schoenbaum, Environment Policy Law-1985p. 438 et.seq. See also summary and comments, (1980) 10 ELR 10125 et. seq.

27. 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 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 (1954) 99 Law Ed 27: 348 US 26:.They may also suffocate the spirit by reducing the people who live there to the status of cattle. They may indeed make living an 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 authorized agencies have made determinations that take into account a wide variety of values (Per Douglas, J.).

28. Any reasonable legislative attempt bearing a rational relationship to a permissible state objective in economic and social planning will be respected by the Courts. 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, breath fresh air and enjoy the beauty of nature. These provisions are meant to guarantee a quiet and healthy atmosphere to suit family needs of persons of all stations. Any action which tends to defeat that object is invalid. As stated by the U. S. Supreme Court in Village of :Belle Terre v. Bruce Boraas (1974) 39 Law Ed 2d 797 : 416 US 1:.The police power is not confined to elimation of filth, strench, and unhealth places. It is ample to lay out zones where family values, youth values, and the blessings of qyite seclusion and clean air make the area a sanctuary for people.See also Village of Euclid v. Ambler Realty Company (1926) 272 US 365. See the decision of the Andhra Pradesh High Court in T. Damodhar Rao v. The Special Officer, Municipal Corporation of Hyderabad : AIR 1987 Andh Pra 171.

36. 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.

Their Lordships of the Hon'ble Supreme Court have again highlighted the importance of open spaces in Virender Gaur and Ors. v. State of Haryana and Ors. : (1995) 2 SCC 577 as under:

11. It is seen that the 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. The buildings directed to be constructed necessarily affect the health and the environment adversely, sanitation and other effects on the residents in the locality. Therefore, the order passed by the government and the action taken pursuant thereto by the Municipality would clearly defeat the purpose of the scheme. Shri D.V. Sehgal, learned Senior Counsel, again contended that two decades have passed by and that, therefore, the Municipality is entitled to use the land for any purpose. We are unable to accept the self- destructive argument to put a premium on inaction. The land having been taken from the citizens 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. Equally acceptance of the argument of Shri V.C. Mahajan encourages pre-emptive action and conduct, deliberately chartered out to frustrate the proceedings and to make the result fait accompli. We are unable to accept the argument of fait accompli on the touchstone of prospective operation of our order.

12. The ratio in Yogendra Pal v. Municipality relied on by Shri V.C. Mahajan renders little assistance to the respondents. In that case, this Court, while declaring Section 203 of the Haryana Municipality Act, 1973, as violative of Article 14 of the Constitution, has given effect to the judgment prospectively. The reasons given in the judgment are eloquent. The Municipalities in Punjab and Haryana States have acquired vast extents of land under different schemes and the lands stood vested in the Municipality and used the land for diverse purposes. The declaration would be rendered illegal unless the prospective operation was given. A chaos would ensue. To obviate such a catastrophe, this Court had made the operation of the declaration prospective. That is not the situation in this case. It is seen that as soon as the appellants have become aware of the grant made in favour of PSS, they filed the writ petition. Instead of awaiting the decision on merits, PSS proceeded with the construction in post-haste and expended the money on the construction. They have deliberately chosen to take a risk. Therefore, we do not think that it would be a case to validate the actions deliberately chosen, as a premium, in not granting the necessary relief. It was open to the PSS to await the decision and then proceed with the construction. Since the writ petition was pending, it was not open to them to proceed with the construction and then to plead equity in their favour. Under these circumstances, we will not be justified in upholding the action of the State government or the Municipality in allotting the land to PSS to the detriment of the people in the locality and in gross violation of the requirements of the Scheme. Any construction made by PSS should be pulled down and it must be brought back to the condition in which it existed prior to allotment. The Municipality is directed to pull down the construction within four weeks from today. They should place the report on the file of the Registry of the action taken in the matter.

11. Their Lordships have directed to pull down the construction raised on the municipal land in Virender Gaur case (supra).

12. The Apex Court in M.I. Builders Private Limited v. Radhey Shyam Sahu and Ors. : (1999) 6 SCC 464 has laid down that the Court should order the demolition of such unauthorized construction even though the builder has invested considerable amount. Their Lordships have further held that this dictum is almost bordering rule of law. Their Lordships have highlighted the importance of parks and have held that it is the duty of the Municipal Corporation to maintain them under the public trust doctrine. Their Lordships have held as under:

50. Jhandewala Park, the park in question, has been in existence for a great number of years. It is situated in the heart of Aminabad, a bustling commercial-cum-residential locality in the city of Lucknow. The park is of historical importance. Because of the construction of underground shopping complex and parking it may still have the appearance of a park with grass grown and path laid but it has lost the ingredients of a park inasmuch as no plantation now can be grown. Trees cannot be planted and rather while making underground construction many trees have been cut. Now it is more like a terrace, park. Qualitatively it may still be a park but it is certainly a park of different nature. By construction of underground shopping complex irreversible changes have been made. It was submitted that the park was acquired by the State Government in the year 1913 and was given to the Mahapalika for its management. This has not been controverted. Under Section 114 of the Act it is the obligatory duty of the Mahapalika to maintain public places, parks and plant trees. By allowing underground construction Mahapalika has deprived itself of its obligatory duties to maintain the park which cannot be permitted. But then one of the obligatory functions of the Mahapalika under Section 114 is also to construct and maintain parking lots. To that extent some area of the park could be used for the purpose of constructing underground parking lot. But that can only be done after proper study has been made of the locality, including density of the population living in the area, the floating population and other certain relevant considerations. This study was never done. 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 : (1997) 1 SCC 388. 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 their 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.

51. 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 importance 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 (1892) 146 US 387, 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 skepticism 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 of private parties.This public trust doctrine in our country, it would appear, has grown from Article 21 of the Constitution.

61. It cannot be said that the construction of the underground shopping complex is by the builder as an agent of the Mahapalika. Concept of agency is totally missing in the present case. Rather the deal is from principal to principal. Reference may be made to the decision of this Court in Akadasi Padhan's case : 1963 Supp (2) SCR 691 : AIR 1963 SC 1047 quoted above. When the 'development' is by the builder provisions of Section 14 of the Development Act would apply. There is no sanction of the building plan of the underground shopping complex by the LDA. Construction is, therefore, per se illegal. Even after the interim order of this Court allowing construction, plans were not got sanctioned from the LDA, which would be authority under the Development Act. Sanction of the building plan by the Mahapalika would, therefore, be meaningless. Even then, there were no sanctioned drawings. It has been pointed out that process of sanctioned appeared to be ad hoc and skeletal. When construction started LDA issued a show cause notice to the Mahapalika but then in view of the interim order made by this Court show cause notice was subsequently withdrawn. It was stated that against the order withdrawing the show cause a revision was filed by Mr. Amrit Puri, a writ petitioner to the State Government, which was stated to be still pending.

73. The High Court has directed dismantling of the whole project and for restoration of the park to its original condition. This Court in numerous decisions has held that no consideration should be shown to the builder or any other person where construction is unauthorised. This dicta is now almost bordering rule of law. Stress was laid by the appellant and the prospective allottees of the shops to exercise judicial discretion in moulding the relief. Such discretion cannot be exercised which encourages illegality or perpetuates an illegality. Unauthorised construction, if it is illegal and cannot be compounded, has to be demolished. There is no way out. Judicial discretion cannot be guided by expediency. Courts are not free from statutory fetters. Justice is to be rendered in accordance with law. Judges are not entitled to exercise discretion wearing robes of judicial discretion and pass orders based solely on their personal predilections and peculiar dispositions. Judicial discretion wherever it is required to be exercised has to be in accordance with law and set legal principles. As will be seen in moulding the relief in the present case and allowing one of the blocks meant for parking to stand we have been guided by the obligatory duties of the Mahapalika to construct and maintain parking lots. 82. We direct as under:

1. Blocks 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 Mahapalika at its own cost. Necessary services like sanitation, electricity etc. in Block 3 shall be provided by the Mahapalika.

4. Mahapalika 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 Mahapalika or against any other person or authority.

6. Block 3 shall vest in Mahapalika free from all encumbrances. Licence of M.I. Builders to enter into the park and the structure built therein is cancelled of which possession is restored to the Mahapalika with immediate effect. No obstruction or hindrance shall be caused to the Mahapalika by any one in discharge of its functions as directed by this order.

7. Restoration of the park and operation of Block 3 for parking purposes shall be completed by Mahapalika within a period of 12 months from today and report filed in the registry of this Court.

13. What emerges from the above narrated facts is that respondent No. 2 has raised the construction of parking complex without any authority of law. The act of respondent-State to grant ex-post facto sanction Contrary to the Town and Country Planning Act, 1977 will not make the structure legal. It was not open to respondent No. 2 to construct a parking complex in a Children Park. The Children Parks are utmost important to provide healthy environment to the children. The parks should be maintained and their aesthetic beauty should always be preserved. The Council instead of improving the Children Park has raised the parking lot. The land of the Children Park has been utilized for diverse purposes by respondent No. 2. The grounds taken by the respondents to justify the construction of three storeyed parking complex are not tenable. It was expected from the Council i.e. respondent No. 2 to at least seek the permission of the State Government, who is the owner of the property before raising construction. Their Lordships of the Hon'ble Supreme Court in Virender Gaur and M.I. Builders Private Limited (supra) cases have laid down that demolition is to be resorted where the construction has been raised unauthorizedly.

14. We have considered the matter very deeply and are of the considered view that since we are dealing with the matter pertaining to a Children Park, it will be harsh decision to direct the demolition of the existing structure and instead of that, the already raised construction can be utilized solely by the children in larger public interest. We, therefore, dispose of this writ petition with the following mandatory directions:

i) The Director, Language and Culture, Government of Himachal Pradesh is directed to provide a working Library for the Children in the first floor of the building in question to inculcate the habit of reading in the Children;

ii) The Director, Youth Services and Sports Himachal Pradesh is directed to use second floor for providing facilities of the games to the Children. These will include table tennis, Badminton, Carom board etc. according to the area;

iii) The third floor of the building in question shall be used only for the recreation purposes of the Children between the age group of one to twelve years. This can be used for social functions relating to children only;

iv) Respondent No. 1 is directed to take appropriate action against the officers/officials of respondent No. 2, who are instrumental in raising the unauthorized construction and also against the officers/officials of the Town and Country Planning Department, who are instrumental in granting the ex-post facto sanction to respondent No. 2 even on application which did not bear any date; and

v) Respondents No. 1 and 2 are directed not to permit the use of the parking complex raised over Khasra Nos. 357 and 358 for parking purposes. It shall be the duty of the Executive Officer of the Municipal Council to ensure the compliance of these directions;

15. The directions issued hereinabove shall be implemented by the authorities on or before the Children Day i.e. 14th November, 2009 in all respects. The copy of this judgment be sent to the Director, Language and Culture, Director, Youth Services and Sports and Director, Town and Country Planning, Government of Himachal Pradesh for compliance. Respondent No. 1 shall file the status report immediately after 14th November, 2009.

16. No costs.