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TMI Blog2005 (4) TMI 651X X X X Extracts X X X X X X X X Extracts X X X X ..... llahabad have a fundamental right to free and healthy air in eco friendly surroundings for the full enjoyment of life as envisaged under Article 21 of the Constitution of India ? These are some of the questions of importance which have arisen for consideration during the course of the hearing of the petition. Case of the Petitioner. 2. The petitioner claims to be a citizen and a resident of a locality. of this historic city of Allahabad and has filed the present writ petition in the form of a Public Interest Litigation contending that the respondents are planning to construct residential buildings in the Polo Ground which had remained Vacant as an open land for the last hundred years. The petitioner alleged that this ground acted as the lungs for the citizens of Allahabad and if the residential buildings were allowed to be constructed on this land, the lungs would get choked. Not only this, the constructions Would disturb the ecology and create a serious imbalance to the environment of the city. The petitioner has contended, that the only open piece of land which is located more or less in the heart of the city would vanish if the construction was allowed to come up. The constructi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t as per the General Land Register (GLR) of the year 1941, the land in question had been described as 'Old Polo Ground' which comprises of 22.77 acres of open land and was categorized as 'A-1' Defence Land which was exclusively managed and controlled by the Army Authorities and was not governed by any of the provisions of the Cantonment Act. The scope and use of A-1 land was limited is contemplated under Rule 5(1) of the Cantonment Land Administration Rules 1937(hereinafter referred to as the Rules of 1937). Under the said Rules. A-1 land was exclusively managed and controlled by the Army Authorities, which in the present case, is the Sub-Area Commander of the station in question. The respondents submitted that the proposed construction for the residential quarters for the married Army Personnel, being an exclusive army matter, no public interest was involved which required adjudicate, from a Court of Law. The respondents further submitted that the proposed construction had been sanctioned by the Ministry of Defence and that the construction would not disturb the ecology or the environment of the area 5. In the supplementary counter affidavit, the respondents submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e basis of Annexure-1 to the supplementary counter affidavit, which is the land requirement sheet for Allahabad Station as per KLP, which we shall refer to it later at the appropriate stage. 6. The respondents further submitted that as per the guidelines issued vide Army Headquarters' letter dated 22.6.1993, the entire planning has to be done on A-1 defence land. The respondents further contended that the land in question known as old Polo Ground was transferred to the military authorities by the municipal authorities sometimes between the period 1916 and 1941. Case of Respondent No. 2 (Cantonment Board): 7. The Cantonment Board, respondent No. 2 in their counter affidavit has stated that the land in question is under the exclusive Management of the military authorities and that the Cantonment Board or the Municipal Authority has no concern with it. The military authority has the exclusive right to construct the residential , accommodation for its married military officers and that the petitioner has no locus standi to file the writ petition. Case of Respondent No. 5 (District Magistrate): 8. The District Magistrate, Allahabad appeared and also filed his own affidavit stating t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agar Adhikari and Divisional Town and Country Planner): 10. The Deputy Municipal Commissioner, Allahabad has filed an affidavit on behalf of respondent nos.7 and 8 stating therein that the old Polo Ground was beyond the territorial jurisdiction of the Nagar Nigam and that the provision? of U.P. Municipal Corporation Act 1959 was not applicable as the Polo Ground came in the Cantonment area. The affidavit further stated that if the residential quarters on Polo Ground are constructed, the ecological balance would be adversely affected and that the Cantonment area does not have any proper sewer system nor there is any adequate arrangement for the disposal of the garbage system. 11. Similar opinion was also expressed by the Divisional Town and Country' Planner, Allahabad, respondent No. 7. He, however, further stated, that in the event the construction was made on the land in question, such construction should be subject to the following conditions, namely, (i) 20 Meters wide green belt had to be ensured all around the residential complex. (ii) No approach road from C.S.P. Singh Road. (iii) The approach road must be from the opposite side of C.S.P. Singh Road. (iv) An alternative s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and on the West of old Polo Ground, by a road known as Hastings Road, now called Justice C.S.P. Singh Marg and also called Nyaya Marg. and which is maintained by the Public Works Department. Therefore, the old Polo Ground, an open piece of land measuring 22.77 acres, is, surrounded and collocated by civil areas. In fact, the new cantonment begins from old Polo Ground itself. Consequently, the old Polo Ground is collocated with the civilian areas, being on the border of the municipal and the Cantonment limits. Preliminary Objections: 14. The Union of India has raised a preliminary objection with regard to the maintainability of the writ petition and submitted that the petitioner had no locus standi to file the petition under the garb of a Public Interest Litigation. The learned counsel for the respondent submitted that a Public Interest Litigation could be filed only if it raised an issue of public importance, or raised an issue for the enforcement of a fundamental right of a large number of the members of the public which in the present case did not exist nor the petitioner had shown himself as a public representative nor had shown as to how he was interested in the land pertainin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Public Interest Litigation had expanded and was not confined to the welfare of the people who are weak and who were not in a position to knock on the doors of the Court. The learned counsel submitted, that where ecological and environmental issues have been raised and where the open expanse of land was acting as the lungs for the citizens of Allahabad for almost 100 years, the alleged construction on it definitely raised issues of public importance which would benefit the public at large and therefore, the writ petition was maintainable and that the petitioner had a locus standi to raise these questions of public importance. 16. We have heard Sri Yashwant Varma assisted by Ms. Rohma Hameed, the learned counsels for the petitioner, Sri S.K. Rai for the Union of India and the Military authorities, Sri S.M.A. Kazmi, Chief Standing Counsel, for the District Magistrate, Municipal Commissioner and Divisional Town and Country Planner, Sri A. Mishra for the Allahabad Development Authority and Sri Anand Mohan, in person, as the intervener. 17. Taking up the issue of maintainability of the writ petition and the locus standi of the petitioner in filing the present writ petition, it is well ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interloper; since the dominant object of PIL is to ensure observance of the provisions of the Constitution or the law which can be best achieved to advance the cause of community or disadvantaged groups and individuals or public interest by permitting any person, having no personal gain or private motivation or any other oblique consideration but acting bonafide and having sufficient interest in maintaining an action for judicial redress for public injury to put the judicial machinery in motion like actio popularis of Roman Law whereby any citizen could bring such an action in respect of public delict. 21. The Supreme Court in various decisions has held that a person, acting bonafide and having sufficient interest in the proceedings, would have a locus standi. The Supreme Court also cautioned to be extremely careful and ensure that a vexatious petition under the garb of a Public Interest Litigation was not brought before the Court for vindicating any personal grievance. The Supreme Court further held that the Courts should not allow a busybody or a meddlesome interloper to misuse the process of the Court for private gain. 22. The parameters of Public Interest Litigation have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hoked if the constructions were permitted on this land. 25. We have given our thoughtful consideration and, we find that every citizen has a right to breathe clean and pure air. Right to life is enshrined in Article 21 of the Constitution of India, and, as held by the Supreme Court in Subhash Kumar v. State of Bihar and Ors., A.I.R. 1991 SC 420. right to live is a fundamental right under Article 21 of the Constitution and it includes the right of enjoyment of the pollution free water and air for full enjoyment of life. 26. Article 48A of the Constitution of India enjoins that the State shall endeavor to protect and improve the environment. The right to breathe, thus inheres the Directive Principles of the State Policy. 27. Under Article 51A of the Constitution, it is the fundamental duty of every citizen to strive, protect and improve the natural environment. The object of Part-IV-A of the Constitution of India is that every citizen must feel that it is his duty to achieve the objects laid down under Article 51A and one such duty is to protect the nutural environment. 28. In Virender Gaur and Ors. v. State of Haryana and Ors., (1995) 2 SCC 5 77, the Supreme Court held- Article 48-A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pansion of the city and its effect on the ecology and the environment has been raised which concerns the residents of Allahabad. Therefore, the submission of the learned counsel for the respondents, that a Public Interest Litigation was only for the enforcement of the fundamental right of those people who were in a disadvantageous position and who were themselves not in a position to knock on the doors of justice, in our view, a hyper technical approach raised only to defeat the ends of justice and the objects enshrined in Part III and IV of the Constitution. It is now well settled by the Courts, that if there was a violation of the fundamental right or other legal right, a person or a class of person has a right to approach the Court for the enforcement of the fundamental right or to correct a legal injury. We have no material or circumstances to hold that this petition had been filed for the vindication of any personal grudge or enmity of the petitioner with the respondents. In fact, we hold, that the petitioner had bonafidely approached this Court in larger interest and to safeguard the fundamental rights of the residents of the city. 30. If anything endangers or impairs the qua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority as they may empower in this behalf, into the following sub-classes namely- (i) Class A (1) land which is actually used or occupied by the Military Authorities, for the purposes of fortifications, barracks stores, arsenars aerodromes, bungalows for military officers which are the property of Government, parade grounds, military recreation grounds, rifle ranges, grass farms, dairy farms, bricks fields, soldiers and hospital gardens as provided for in paragraphs 419, 421 and 425 of Regulations for the Army in India and other official requirements of the Military Authorities. (ii) Class A (2) land which is not actually used or occupied by the Military Authorities, but to the use or occupation of which for any other purpose, except temporarily, there exist specific military objections. Explanation- For the purposes of this rule- (a) Specific military objections shall be deemed to exist to the use or occupation of land the reservation of which is declared to be desirable by the Central Government in the interest of the discipline, health or welfare of the military forces, or the safety or defence of the cantonment and its inhabitants; and (b) military recreation grounds means ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly with effect from 1st April, so as to show annual demand in the shape of rent from building sites, agricultural land and other land. 33. Chapter IV of the said Rules related to special Rules for Class-A land. Rules 13 and 14 of the said Rules are quoted hereunder: 13. Schedules of Class A Land -(1) The Military Estates Officer shall maintain plans and schedules of land in class A(1) and A(2) for each cantonment in which and is entrusted to his management. (2) No alteration in the plans and schedules shall be made without the sanction of the Central Government. 14. Special Rules for Class A Lanls - (1) The administrative control of Class A (1) Lard including the detection and prevention of encroachments thereon, shall vest in the Military Authorities for the time being in occupation of the land. The administrative control of Class a (2) land shall vest in the Central Government. (2) The Military Estates Officer shall conduct his management of Class A (1) Land (which shall include the development of the resources of the land, the disposal of usufruct and the planting and maintenance of trees) in consultation with and under the general supervision of the Officer commanding the Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for military officers. Rule 7 provides that no alteration in the classification of the land shall be made except by the Central Government. Rule 9 provides that Class A(1) land shall be managed by the military authorities except such area or classes of areas as may be declared by the Central Government from time to time. Rule 10 of the Rules provides for maintenance of the General Land Register and under Rule-13, the Military Estates Officer is required to maintain the plans and schedules of land in Class-A(1) and Class-A(2) land in each cantonment and that no alteration in the plans and the schedule could be made except with the sanction of the Central Government. Sub clause (3) of rule 14 provides that the land in Class-A(1)land shall not be used or occupied for any other purpose other than those stated in sub Rule (1) of Rule 5 without the previous sanction of the Central Government. Sub clause (5) of Rule 14 provides that no building shall be erected on Class-A land except with the previous sanction of the Central Government. 36. From a perusal of the aforesaid Rules, especially Rules 3, 5, 7, 10, sub clause (vi) and (vii) of Rule 10 read with Rule 13(2) and sub clause (3) and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, according to the respondents, previous sanction was not required for converting the military recreation ground into a residential complex. The contention of the respondent is that, bungalows' and 'military recreation grounds are both classified as Class-A(1) land and since the use of the land was being converted from a military recreation ground to a residential purpose, under the same category, no previous sanction was required to be taken from the Central Government. 39. On the other hand, the petitioner contended that in view of the aforesaid provisions of the Cantonment Land Administration Rules, previous sanction was required to be obtained from the Central Government. 40. In our view, from the a reading of the various provisions of the Cantonment Rules, 1937 and the notifications issued from time to time, it is clear, beyond a reasonable doubt, that previous sanction is required to be obtained before any building either permanent or temporary is erected on a Class-A land or any addition or alteration is made in the General Land Register, even though the usage of the land remained as Class-A(1) land. Previous sanction is required from the Central Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seek previous sanction from the Central Government before making any addition or alteration in Class-A land. Since, previous sanction was not obtained by the military authorities from the Central Government, the action of the respondents in proposing to raise the construction on the Polo Ground is wholly illegal. 45. In Nandkishore Ganesh Joshi v. Commissioner, Municipal Corporation of Kalyan and Dombivali and Ors. (2005) 1 UPLBEC 144, the Supreme Court while construing the provision of clause (c) of Section 73 of the Mumbai Provincial Municipal Corporation Act, 1949, held that although the Commissioner was entitled to execute the contract on behalf of the Corporation but a statutory embargo was placed upon him by Clause (c) of Section 73 of the Act which required that before executing a contract, the Commissioner was required to seek previous approval of the Standing Committee. The Supreme Court further held- It is, thus, not a case where an action taken by a statutory authority requires approval which may be granted at a later stage. The approval of the Standing Committee, a bare perusal of clause (c) would show, is required to be granted before any contract is entered into. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;......As used in some statutes, however, the term has been held to require affirmative, positive action on the part of the party assenting. It has been said that the term indicates the meeting of the minds of the contracting parties, and that the word is applicable only to conduct before or at the time of the doing of an act and hence does not include an approval after the commission of an act...... Assent (as a verb)- The verb implies affirmative action of some sort as distinguished from mere silence and inaction; and has been defined as meaning to accept, agree to, or consent, to accord, agree, concede, or yield; to express an agreement of the mind to what is alleged or proposed; to express one's agreement, acquiescence, or concurrence, also to admit a thing as true; to approve, ratify, or conform; and sometimes to authorise or empower. Shorter Oxford Dictionary Assent- The concurrence of the will, compliance with a desire. 2. Official, judicial, or formal sanction; the action or instrument that signifies such sanction ME. 3. Accori. 4. Opinion . 5. Agreement with a statement, or matter of opinion; mental acceptance. Bouvier's Law Dictionary Assent- Approval of somethi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... repugnancy envisaged under clause (1) or enabled under clause (2) to get excepted from under the protective coverage of the assent obtained from the President, is such that there is a legislation or legislative provision(s), covering and operating on the same field or identical subject matter made by both the Union and the State, both of them being competent to enact in respect of the same subject matter or legislative field, but the legislation by Parliament has come to occupy the entire field. Necessarily, in the quasi-federal structure adopted for the nation, predominance is given to the law made by Parliament and in such circumstances only the State Law which secured the assent of the President under clause (2) of Article 254 comes to be protected, subject of course to the powers of Parliament under the proviso to the said clause. Therefore, the President has to be apprised of the reasons at least as to why his assent is being sought, the need or necessity and the justification of otherwise for claiming predominance for the State Law concerned. This itself would postulate an obligation, inherent in the scheme underlying as well as the very purpose and object of seeking the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ociation and Anr. 1995 ALR 88, this Court held- We may point out that expression prior approval and approval connotes different situation, where a statute uses the term prior approval anything done without the prior approval, is nullity. However, where a statutes employs expression approval, in such cases subsequent rectification can make the act valid. 50. Similar view was expressed by this Court in A.S.H.P. Association and Ors. v. Deputy Director of Education and Ors. 1977 ALJ 341. 51. The aforesaid principles of law squarely applied to the facts and circumstances of the present case. It is, therefore, clear that if previous sanction is not obtained in the first place, the said defect cannot be removed afterwards by seeking post facto sanction from the Central Government Second Question: 52. The time has come when the public has a right to retain certain lands in their natural state. There is a need to protect the environment and its ecology. The environment is finite. Human needs and activity are infinite. Because of limitations, the environment imposes certain constraints on the activities of human beings and therefore, imposes certain restrictions on human freedom. Urbanisatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2004(6) SCC 588 at 615, the Supreme Court held- In the present case, the land cannot be permitted to be used contrary to the stipulated user except by amendment of the master plan after due observance of the provisions of the Act and the Rules. Non-taking of action by the Government amounts to indirectly permitting the unauthorized use, which amounts to the amendment of the master plan without following due procedure. 57. In Virendra Gaur and Ors. v. State of Haryana and Ors. (1995) 2 SCC, 577 at 580, the Supreme Court held- Environment is a polycentric and multifaceted problem affecting the human existence. Environmental pollution causes bodily disabilities, leading to non-functioning of the vital organs of the body. Noise and pollution are two of the greatest offenders; the latter affects air, water, natural growth and health of the people. Environmental pollution affects thereby, the health of general public and further held that the Municipality is enjoined to- .....frame the Scheme providing environmental and sanitary amenities and obtain sanction from the competent authority to provide, preserve and protect parks, open lands, sanitation, roads, sewage, etc. to maintain ecolog ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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.... '.....Emphasis on open air and greenery has multiplied and the city or town planning or development acts of different States require even private house-owners to leave open space in front and back for lawn and fresh air... .... Absence of open space and public park, in present day when urbanization is on increase, rural exodus is on large scale and congested areas are coming up rapidly may given rise to health hazard. 60. The maintenance of the open piece of land because of its historical importance and environmental necessity is oy itself a public buildings would not only congest the area but would be prejudicial to the public purpose. By allowing the construction, the residents of the area as well as other citizens of the city would be deprived of the quality of life which they are entitled to under the Constitution. The decision to construct residential buildings on the Polo Ground, in our opinion, is unfair and arbitrary and not in public interest. The military authorities have not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consisting of a concrete jungle. People are living like guinea pigs in congested areas with no sewer system, inadequate drainage system resulting in water logging during the mansoon. No arrangement of safe water supply has been taken into consideration. The authorities have turned a blind eye on air and noise pollution, caused by the vehicular traffic. All these has definitely resulted in a change in the environment and consequently in the ecology. 64. Polo Ground is one of the few open spaces left in the city and in our opinion, the petitioner was right in suggesting that if the constructions are allowed, the open space which was available for the last 100 years would-be lost forever. In our view, Polo Ground was available to the citizens of Allahabad for the last 100 years initially to play Polo and, later on, for a variety of functions. Polo Ground has caned out its name in history. Why should the use of this land be changed today ? There is no reason why the said land should not remain as an open piece of land for the next 100 years. If this land has serviced the citizens by providing for an open space, clean and pure air and beautiful surroundings for the last 10 decades, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a family be sacrificed to save a village/city and a city be sacrificed to save a State. 71. Therefore, we are of the view, that the respondents, i.e., the military authorities could go ahead with their 'MAP' project on an alternative site which exist in the cantonment area. 72. In any case, the respondents have a lot of open land in the Cantonment. The petitioner in the supplementary affidavit has categorically stated that the respondents have huge expanse of open land near the Sadar Bazar, land at Teliarganj on Stanley Road between Mumfordganj and Rasoolabad (Old Cantt.) and in and around the Mela area. Judicial notice can also be taken of the fact that large tracts of open land exist in the old and new Cantonment of Allahabad. In reply to the aforesaid, the respondents in their counter affidavit have not pleaded nor proved that Polo Ground was the only land available to them for the implementation of the project in question. In fact, according to the respondents, as per the Key Location Plan, the project had to be planned on A-1 land, and since this land in question was adjacent to the existing married accommodation, therefore, it was administratively convenient to the mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be constructing buildings next to the existing buildings because of administrative convenience. In our view, this is not a correct approach for modern planning and expansion of the city. If the city has to grow, it should grow from outside, its municipal limits should be increased. Similar is with the cantonment. If there is shortage of space, the military authority should acquire land outside the town limits, but should not consume the existing spaces inside the city. The respondents have themselves admitted that as per the key location plan (KLP), there is a shortage of land by 1761.957 acres. If this is correct, there is no reason why the respondent should be permitted to increase the shortage of land by increasing the density of the area. 75. Before parting, we would like to add that in order to maintain an ecological balance and protecting human rights, the time has come when every city should be equipped with a disaster management plan. The Supreme Court in N.D. Jayal and Anr. v. Union of India and Ors., (2004) 9 SCC 362 at 393 held- Disaster management means all aspects of planning, coordinating and implementing all measures which are necessary or desirable to prevent, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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