* IN THE HIGH COURT OF DELHI AT NEW DELHI 18. + W.P.(C) 2744/2007 ALL INDIA CRIME PREVENTION SOCIETY ..... Petitioner Through: Mr. Sourabh Upadhyay, Adv. versus UOI & ORS. ..... Respondents Through: Mr. Rajiv Bansal, Adv. for DDA CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE NEERAJ KISHAN KAUL O R D E R % 05.05.2009 In X, Y block of Loha Mandi, Naraina, Delhi, an area has been reserved for public park. This public park was being maintained by MCD till 2005. It is seen from records that the park had large number of trees and plants and also a tubewell was constructed and certain funds were also spent from the local MLA’s fund. It appears that in 1975, Loha Mandi was shifted by the DDA from Motia Khan, Pahar Ganj to Naraina and plots were allotted to the shopkeepers of Motia Khan against the occupied premises. The plots to the traders were allotted in three blocks, namely, X, Y and Z blocks and certain sites had been earmarked in the site plan as parks which are meant to be green land for public purpose. It appears that a representation was made by the shopkeepers for allotment of plots in the area which has been reserved for the public park in question and the Director (CL), vide his letter dated 4.8.2000, categorically stated that the park land has been handed over to MCD for care and maintenance and further that there is no scheme for carving out plots in the park for the shopkeepers. WP(C) No. 2744/2007 Pg.1 2. In writ petition bearing CWP No. 1426/1992, an affidavit was filed on behalf of DDA, in which it was inter alia stated: “3. The contents of the corresponding para 3 are admitted to the extent that there are parks in the X Y, Z blocks of W.H.S. area of Naraina. The rest of the contents are denied for want of knowledge. The Zonal Development plans showing the parks annexed as annexure R-1 thereto. It is submitted that there are 4 parks in X, Y, Z blocks of W.H.S. area of Naraina which were (illegible) Horticulture…. at DDA and… 4. XXXX 5. XXXX 6. The contents of para 6 are admitted that the parks in lay out plan were developed for general public purpose. 7-10. XXXX 11. The contents of corresponding para 11 are admitted to the extent that there are parks in block as X, Y, Z as per lay out plan which were developed by D.D.A. and later on were handed over to MCD. The rest of contents needs no reply because parks are meant for public use only and are being maintained as such as for lay out plan (Annexure R- 1)” (emphasis supplied) 3. In this public interest litigation, the grievance of the petitioner is that the DDA has changed the land use without following the due procedure of law and without amendment in the Zonal Plan and has thus acted against the provisions of the Delhi Development Act, 1957. It is contended that in 2005, this land was taken back by the DDA from MCD and almost all trees numbering around 150 were cut and plots were carved out in the park area and allotted to the shopkeepers in total violation of the Zonal Plan. 4. On behalf of the DDA, it has been contended that the site was taken as site meant for park by mistake, although actually it was meant for parking and it was erroneously transferred to the Horticulture Department of the MCD. Since the use of the site in question is parking lot / industrial use in WP(C) No. 2744/2007 Pg.2 the layout plan, therefore, the Joint Director (Horticulture)-VIII / DDA was requested to take over the land in question from MCD and thereafter the plots have been allotted to the shopkeepers. It is pertinent to note that in para 3 of the counter affidavit, it has been stated by the DDA: “That the contents of para 3 of the writ petition to the extent of Trees and Plants along with existing Tubewell are not denied. It is also not denied that MCD/respondent No.3 was maintaining park earlier. However, it is submitted that ‘Park’ which was erroneously transferred to MCD/respondent No.3 for maintenance purpose by Horticulture Department of answering respondent, who misconstrued ‘P’ as “Park” instead of “Parking” in lay out plan, was physically taken over by the Horticulture department from MCD on 16.8.05. In reply to the present para preliminary submissions are reiterated.” (emphasis supplied) 5. In our opinion, the explanation sought to be given by the DDA is totally unacceptable. According to DDA, the letter “P” in the layout plan denote “Parking” and not “Park”. The argument is stated only to be rejected in as much as it is seen from the Zonal Plan that the legend for ‘Parking’ is the letter ‘P’ in a circle and not letter ‘P’. Moreover, there is no dispute that right throughout this time, the area was maintained as a public park. 6. Our attention was drawn to the decision of the Supreme Court in the case of Dr. G.N. Khajuria & Others v. DDA & Ors. (1995) 5 SCC 762, in which the land reserved for park in a residential colony was allotted by the DDA to respondent No.2 therein for running a nursery school. The Court ordered the construction raised pursuant to the illegal order of the DDA to be demolished and mandated that the land should be used as park. Following observations of the Court in this regard are pertinent: 8. We, therefore, hold that the land which was allotted to Respondent 2 was part of a park. We further hold that it was not open to the DDA to carve out any space meant for park for a nursery school. We are of the considered view that the allotment in favour of Respondent 2 was misuse of WP(C) No. 2744/2007 Pg.3 power, for reasons which need not be adverted. It is, therefore, a fit case, according to us, where the allotment in favour of Respondent 2 should be cancelled and we order accordingly. The fact that Respondent 2 has put up some structure stated to be permanent by his counsel is not relevant, as the same has been done on a plot of land allotted to it in contravention of law. As to the submission that dislocation from the present site would cause difficulty to the tiny tots, we would observe that the same has been advanced only to get sympathy from the Court inasmuch as children, for whom the nursery school is meant, would travel to any other nearby place where such a school would be set up either by Respondent 2 or by any other body. 9. XXXX 10. Before parting, we have an observation to make. The same is that a feeling is gathering ground that where unauthorised constructions are demolished on the force of the order of courts, the illegality is not taken care of fully inasmuch as the officers of the statutory body who had allowed the unauthorised construction to be made or make illegal allotments go scot free. This should not, however, have happened for two reasons. First, it is the illegal action/order of the officer which lies at the root of the unlawful act of the citizen concerned, because of which the officer is more to be blamed than the recipient of the illegal benefit. It is thus imperative, according to us, that while undoing the mischief which would require the demolition of the unauthorised construction, the delinquent officer has also to be punished in accordance with law. This, however, seldom happens. Secondly, to take care of the injustice completely, the officer who had misused his power has also to be properly punished. Otherwise, what happens is that the officer, who made the hay when the sun shined, retains the hay, which tempts other to do the same. This really gives fillip to the commission of tainted acts, whereas the aim should be opposite.” 7. In the case of Intellectuals Forum v. State of A.P. (2006) 3 SCC 549, the Supreme Court has explained the public trust doctrine in the following terms: “75. The doctrine, in its present form, was incorporated as a part of Indian law by this Court in M.C. Mehta v. Kamal Nath and also in M.I. Builders v. Radhey Shyam Sahu. In M.C. Mehta, Kuldip Singh J., writing for the majority held: (SCC p.413, para 34) “34. Our legal system…includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by WP(C) No. 2744/2007 Pg.4 nature meant for public use and enjoyment. ... The State as a trustee is under a legal duty to protect the natural resources.” 76. The Supreme Court of California, in National Audubon Society v. Superior Court of Alpine Country also known as Mono Lake case summed up the substance of the doctrine. The Court said: “Thus the public trust is more than an affirmation of State power to use public property for public purposes. It is an affirmation of the duty of the State to protect the people's common heritage of streams, lakes, marshlands and tidelands., surrendering the right only in those rare cases when the abandonment of the right is consistent with the purposes of the trust.” This is an articulation of the doctrine from the angle of the affirmative duties of the State with regard to public trust. Formulated from a negatory angle, the doctrine does not exactly prohibit the alienation of the property held as a public trust. However, when the State holds a resource that is freely available for the use of the public, it provides for a high degree of judicial scrutiny on any action of the Government, no matter how consistent with the existing legislations, that attempts to restrict such free use. To properly scrutinize such actions of the Government, the courts must make a distinction between the Government's general obligation to act for the public benefit, and the special, more demanding obligation which it may have as a trustee of certain public resources [Joseph L. Sax "The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention", Michigan Law Review, Vol.68, No.3 (Jan.1970) pp. 471- 566)]. According to Prof. Sax, whose article on this subject is considered to be an authority, three types of restrictions on governmental authority are often thought to be imposed by the public trust doctrine [ibid]: 1. the property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public; 2. the property may not be sold, even for fair cash equivalent; 3. the property must be maintained for particular types of use (i) either traditional uses, or (ii) some uses particular to that form of resources.” 8. In the instant case, all along the DDA maintained that the area was reserved as a public park and it was actually developed as a public park and WP(C) No. 2744/2007 Pg.5 this was mentioned in the letters dated 25.9.2006 and 4.8.2000 (Pg.22 and 37 of the compilation). In our opinion, the DDA was under an obligation to maintain the area as a public park and the action of the DDA in allotting the area to the shopkeepers is clearly in violation of the provisions of the Delhi Development Authority Act, 1957 and the Zonal Plan. 9. In the result, we allow this petition and direct the DDA to shift the shopkeepers from the park area to some other place and to restore the park to its original position within a period of six months. After restoration, the park will be handed over to the Horticulture Department of the MCD for the purpose of maintenance. CHIEF JUSTICE NEERAJ KISHAN KAUL, J MAY 05, 2009 pk WP(C) No. 2744/2007 Pg.6