Case: Lal Bahadur Vs. State of Uttar Pradesh and Ors

the jurisdiction of this Court Under Article 32 must approach this Court for the vindication of the fundamental rights of affected persons and not for the purpose of vindication of his personal grudge or enmity. It is duty of this Court to discourage such petitions and to ensure that the course of justice is not obstructed or polluted by unscrupulous litigants by invoking the extraordinary jurisdiction of this Court for personal matters under the garb of the public interest litigation, see Bandhua Mukti Morcha v. Union of India (1984) 2 SCR 67 : AIR 1984 SC 802 ; Sachindanand Pandey v. State of W.B. (1987) 2 SCC 295 : AIR 1987 SC 1109 ; Ramsharan Autyanuprasi v. Union of India (1989) 1 Supp SCC 251 : AIR 1989 SC 549 and Chhetriya Pardushan Mukti Sangharsh Samiti v. State of U.P. (1990) 4 SCC 449 : AIR 1990 SC 2060 . (Emphasis supplied) 20. In M.C. Mehta v. Kamal Nath (2000) 6 SCC 213 : AIR 2000 SC 1997 , it was held that any disturbance to the basic environment, air or water, and soil which are necessary for life, would be hazardous to life within the meaning of Article 21 of the Constitution. In such cases polluter pay principle can also be invoked to restore the environment and to control it. It held: 8. Apart from the above statutes and the rules made thereunder, Article 48-A of the Constitution provides that the State shall endeavour to protect and improve the environment and to safeguard the forests and wild-life of the country. One of the fundamental duties of every citizen as set out in Article 51-A(g) is to protect and improve the natural environment, including forests, lakes, rivers and wildlife and to have compassion for living creatures. These two articles have to be considered in the light of Article 21 of the Constitution which provides that no person shall be deprived of his life and liberty except in accordance with the procedure established by law. Any disturbance of the basic environment elements, namely air, water and soil, which are necessary for life, would be hazardous to life within the meaning of Article 21 of the Constitution. 9. In the matter of enforcement of rights Under Article 21 of the Constitution, this Court, besides enforcing the provisions of the Acts referred to above, has also given effect to fundamental rights Under Articles 14 and 21 of the Constitution and has held that if those rights are violated by disturbing the environment, it can award damages not only for the restoration of the ecological balance, but also for the victims who have suffered due to that disturbance. In order to protect life, in order to protect environment and in order to protect air, water and soil from pollution, this Court, through its various judgments has given effect to the rights available, to the citizens and persons alike, Under Article 21 of the Constitution. The judgment for removal of hazardous and obnoxious industries from the residential areas, the directions for closure of certain hazardous industries, the directions for closure of slaughterhouse and its relocation, the various directions issued for the protection of the Ridge area in Delhi, the directions for setting up effluent treatment plants to the industries located in Delhi, the directions to tanneries etc., are all judgments which seek to protect the environment. 10. In the matter of enforcement of fundamental rights Under Article 21, under public law domain, the Court, in exercise of its powers Under Article 32 of the Constitution, has awarded damages against those who have been responsible for disturbing the ecological balance either by running the industries or any other activity which has the effect of causing pollution in the environment. The Court while awarding damages also enforces the POLLUTER-PAYS PRINCIPLE which is widely accepted as a means of paying for the cost of pollution and control. To put in other words, the wrongdoer, the polluter, is under an obligation to make good the damage caused to the environment. 21. In M.C. Mehta v. Union of India and Ors. (1997) 3 SCC 715 , it was held to be duty of the State to anticipate, prevent and attack the causes of environmental degradation. Considering the Articles 21 and 48-A and also the fundamental duty it has been observed by the concerned officials, it was incumbent upon them to protect such spaces. Residential use of such area would have been contrary to the public interest as such not tolerable. The court held: 9. This Court in Rural Litigation and Entitlement Kendra v. State of U.P. 1986 Supp SCC 517 (sic) : AIR 1987 SC 359 held as under: The consequence of this order made by us would be that the lessee of limestone quarries would be thrown out of business. This would undoubtedly cause hardship to them, but it is a price that has to be paid for protecting and safeguarding the right of the people to live in a healthy environment with minimal disturbance of ecological balance and without avoidable hazard to them, to their cattle, homes and agriculture and undue affectation of air, water and environment. 22. In our opinion, the submission raised by the learned Counsel for the Appellant is meritorious that the area should be preserved for green belt as done at present and the provisions made in the master plan 2021 for its conversion into residential area has to be quashed. Unhesitatingly, we agree with the same. 23. As we have held that exercise of conversion was not legal one that will have some impact on the validity of the notification Under Section 4 and dispensation of enquiry to be held Under Section 5-A but in the instant case we find that since the first prayer of the Appellant had been allowed, the area has been ultimately reserved and utilized for the purpose of green belt only and as permitted by this Court park had been developed and it shall be maintained as such.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]It is not in dispute that the area had been reserved for green belt in 1995 Master Plan. We find that it was absolutely unwarranted exercise of power on the part of the Respondents to change the area from green belt to residential one in Master Plan 2021. Learned Senior Counsel is right that some invisible hand was behind the change that is why the Respondents acted in tandem and the notification Under Section 4 of the Act had been issued on the same very day on which the Master Plan had been finalised by the State Government. Even before the master plan was notified in the Gazette 09-04-2005, under the Act of 1973, the notification had been issued Under Section 4 of the Act on 31.03.2005. We wholly agree with the submission of the learned Counsel on behalf of the Appellant that change of the area from green belt to residential was, in fact, in flagrant violation of the provisions contained in Articles 21 and 48-A and also 51-A(g) of the Constitution.12. Law is well-settled in this regard. In Bangalore Medical Trust v. B.S. Muddappa and Ors. (1991) 4 SCC 54   : AIR 1991 SC 1902  , this Court had considered the question whether area reserved for a public park can be converted for other purposes. The State Government by the subsequent order had allotted the area reserved for public parks to a Medical Trust, for the purposes of constructing a hospital. This Court has laid down the importance of open spaces and public parks in the said case and held that said spaces are a gift from people to themselves. It observed that:23. The scheme is meant for the reasonable accomplishment of the statutory object which is to promote the orderly development of the City of Bangalore and adjoining areas and to preserve open spaces by reserving public parks and playgrounds with a view to protecting the residents from the ill-effects of urbanisation. It is meant for the development of the city in a way that maximum space is provided for the benefit of the public at large for recreation, enjoyment, ventilation and fresh air. This is clear from the Act itself as it originally stood. The amendments inserting Sections 16(1)(d), 38A and other provisions are clarificatory of this object. The very purpose of the BDA as a statutory authority is to promote the healthy growth and development of the City of Bangalore and the area adjacent thereto. The legislative intent has always been the promotion and enhancement of the quality of life by the preservation of the character and desirable aesthetic features of the city. The subsequent amendments are not a deviation from or alteration of the original legislative intent, but only an elucidation or affirmation of the same.24. Protection of the environment, open spaces for recreation and fresh air, playgrounds for children, promenade for the residents and other conveniences or amenities are matters of great public concern and of vital interest to be taken care of in a development scheme. It is that public interest which is sought to be promoted by the Act by establishing the BDA. The public interest in the reservation and preservation of open spaces for parks and playgrounds cannot be sacrificed by leasing or selling such sites to private persons for conversion to some other user. Any such act would be contrary to the legislative intent and inconsistent with the statutory requirements. Furthermore, it would be in direct conflict with the constitutional mandate to ensure that any State action is inspired by the basic values of individual freedom and dignity and addressed to the attainment of a quality of life which makes the guaranteed rights a reality for all the citizens.25. Reservation of open spaces for parks and playgrounds is universally recognised as a legitimate exercise of statutory power rationally related to the protection of the residents of the locality from the ill effects of urbanisation.26. In Agins v. City of Tiburon 447 us 255 (1980), 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 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 citys 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 public by serving the citys interest in assuring careful and orderly development of residential property with provision for open-space areas.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. A private nursing home, on the other hand, is essentiality a commercial venture, a profit-oriented industry. Service may be its morn but earning is the objective. Its utility may not be undermined but a park is a necessity, not a mere amenity. A private nursing home cannot be a substitute for a public park. No town planner would prepare a blueprint without reserving space for it. 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. In 1984 the BD Act itself provided for reservation of not less than fifteen percent of the total area of the layout in a development scheme for public parks and playgrounds the sale and disposition of which is prohibited Under Section 38-A of the Act. Absence of open space and public park, in present day when urbanisation is on increase, rural exodus is on large scale and congested areas are coming up rapidly, may given rise to health hazard. Maybe that it may be taken care of by a nursing home. But it is axiomatic that prevention is better than cure. What is lost by removal of a park cannot be gained by establishment of a nursing home? To say, therefore, that by conversion of a site reserved for low-lying into a private nursing home social welfare was being promoted was being oblivious of true character of the two and their utility.(Emphasis supplied)13. This Court had clearly laid down that such spaces could not be changed from green belt to residential or commercial one. It is not permissible to the State Government to change the parks and playgrounds contrary to legislative intent having constitutional mandate, as that would be an abuse of statutory powers vested in the authorities. No doubt, in the instant case, the legislative process had been undertaken. The Master Plan had been prepared under the Act of 1973. Ultimately, the Respondents have realized the importance of such spaces. It was, therefore, their bounden duty not to change its very purpose when they knew very well that this is a low-lying area and this area is otherwise thickly populated and provides an outlet for water to prevent flood like situation. In fact, the flood like situation occurred in the area in question. This Court has permitted the protection by raising Bandh.14. We have seen the photographs that are placed on record by the learned Counsel for the Respondents. Its a beautiful park that has come up inter alia in the area in question having lake and a large number of trees. Though park has been beautifully developed the very action of change of purpose was wholly uncalled for. The importance of park is of universal recognition. It was against public interest, protection of the environment and such spaces reduce the ill effects of urbanisation, it was not permissible to change this area into urban area as the garden/Greenbelt is essential for fresh air, thereby protecting against the resultant impacts of urbanization, such as pollution etc. The provision of the Act of 1973 and other enactments relating to environment could not be permitted to become statutory mockery by changing the purpose in the master plan from green belts to residential one. Authorities are enjoined with duty maintain them as such as per doctrine of public trust.22. In our opinion, the submission raised by the learned Counsel for the Appellant is meritorious that the area should be preserved for green belt as done at present and the provisions made in the master plan 2021 for its conversion into residential area has to be quashed. Unhesitatingly, we agree with the same.23. As we have held that exercise of conversion was not legal one that will have some impact on the validity of the notification Under Section 4 and dispensation of enquiry to be held Under Section 5-A but in the instant case we find that since the first prayer of the Appellant had been allowed, the area has been ultimately reserved and utilized for the purpose of green belt only and as permitted by this Court park had been developed and it shall be maintained as such.