Case: MUNICIPAL CORP. OF GREATER MUMBAI &amp; ORS Vs. HIRAMAN SITARAM DEORUKHAR &amp; ORS

and no development contrary to plan can be permitted.8. The importance of open spaces for parks and play grounds is of universal recognition, and reservation for such places in development scheme is a legitimate exercise of statutory power, with the rationale of protection of the environment and of reducing ill effects of urbanisation. It is in the public interest to avoid unnecessary conversion of ‘open spaces land? to strictly urban uses, for gardens provide fresh air, thereby protecting against the resultant impacts of urbanization, such as pollution etc. Once such a scheme had been prepared in accordance with the provisions of the MRTP Act, by inaction legislative intent could not be permitted to become a statutory mockery. Government authorities and officers were bound to preserve it and to take all steps envisaged for protection.9. It could be legitimately expected of the authority to take timely steps in which they have failed. Their inaction tantamount to wrongful deprivation of open spaces/garden to public. This Court in Animal and Environment Legal Defence Fund v. Union of India & Ors. (1997) 3 SCC 549 has laid down that there is duty to preserve the ecology of the forest area. This Court has enunciated the doctrine of the public trust based on ancient theory of Roman Empire. Idea of this theory was that certain common property such as lands, waters and airs were held by the Government in trusteeship for smooth and unimpaired use of public. Air, sea, waters and the forests have such a great importance to the people that it would be wholly unjustified to make them a subject of private ownership. The American courts in recent cases expanded the concept of this doctrine. The doctrine enjoins upon the Government to protect the natural resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. The aforesaid concept laid down by this Court in M.C. Mehta v. Kamal Nath & Ors. (1997) 1 SCC 388 and this Court held that the State Government has committed patent breach of public trust by leasing the ecologically fragile land to the Motel management.10. This Court in Vellore Citizens Welfare Forum v. Union of India & Ors. AIR 1996 SC 2715 had laid down that protection of environment is one of the legal duties. While setting up the industries which is essential for the economic development but measures should be taken to reduce the risk for community by taking all necessary steps for protection of environment. In M.C. Mehta v. Union of India (1987) Supp. SCC 131, certain directions were issued by this Court regarding hazardous chemicals. Relying partly on Article 21, it was observed that life, public health and ecology are priority and cannot be lost sight of over employment and loss of revenue. This Court in Subhash Kumar v. State of Bihar & Ors. (1991) 1 SCC 598 has held that right to pollution-free air falls within Article 21. In M.C. Mehta v. Kamal Nath (2000) 6 SCC 213 , 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. Precautionary principle had been developed by this Court in M.C. Mehta v. Union of India & Ors. (1997) 3 SCC 715 which requires the State to anticipate, prevent and attack the causes of environmental degradation.11. This Court in Municipal Council, Ratlam v. Vardhichand & Ors. (1980) 4 SCC 162 has observed that the nature of judicial process is not purely adjudicatory function. Affirmative action to make the remedy effective is of the essence of the right which otherwise becomes fragile. This Court has laid down that once directive principles have found statutory recognition, the financial or such other disability cannot exonerate the authority from statutory liability. They cannot take the defence to defy their duties under the law by urging in self-defence a self-created bankruptcy or perverted expenditure budget.12. In the light of aforesaid principles, it is shocking in the instant case that in spite of prayer having been made on behalf of the Municipal Corporation, the State Government did not issue a declaration under Section 126 of the MRTP Act. Thus the provisions for open spaces in the statutory scheme were in effect made a statutory mockery. The authorities were bound to act with circumspection and to act timely to take steps to issue the requisite declaration as per development plan. They were well aware of the consequences. The inaction was impermissible in such an issue of great public importance, having constitutional imperative under Article 21 read with Article 48A and further it was in breach of fundamental duty imposed under Article 51A(g) to protect natural environment, and having the potential to lead to the derogation of the public interest. Such inaction is intolerable, and the area ought to be preserved for park only. More so, considering its situation that it is encircled by garden area, the court cannot be a moot spectator and permit statutory provisions to become a mockery by inaction or lethargy on the part of the unscrupulous authorities. No reason is coming forth as to why steps were not taken by the concerned authorities to act in the public interest, as per the statutory mandate, and as per development plan. The duty is cast upon the authorities to act as cestui que trust with respect to the public park. As a matter of fact, Authorities ought to have issued forthwith a requisite declaration and ought to have completed the proceedings. Be that as it may, since there is lapse of reservation, and the land is still required for public park, and since now the provisions of Right to Fare Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (in short the 2013 Act) have come into force, obviously the compensation has to be paid in accordance with the provisions contained in the said Act.

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

Explanation:
1[ds]5. The Municipal Corporation had filed a Map (Annexure P-4) which indicates that the area marked with the green color is reserved for the purpose of the garden, whereas the area marked with red cross marks in the green color portion is disputed portion which is encircled by the other area reserved for the garden. The land under appeal is 3090 Sq. yard, whereas the total area reserved for the garden, is 90,500 Sq. yard. The area in question had been reserved for garden and it appears that Municipal Corporation had taken the steps which were in their hands in order to preserve the area as such. However, there was a failure on the part of the State Authorities to act timely and to issue a declaration under Section 6 of the Land Acquisition Act as required under the provisions contained in Section 126 of the MRTP Act6. It cannot be disputed that reservation made under Section 127 of the MRTP Act stands lapsed. At the same time area had been reserved for the garden.It could not have been permitted to lapse due to inexplicable reasons7. This court has laid down that public interest requires some areas to be preserved by means of open spaces of parks and play grounds, and that there cannot be any change or action contrary to legislative intent, as that would be an abuse of statutory powers vested in the authorities. Once the area had been reserved, authorities are bound to take steps to preserve it in that method and manner only. These spaces are meant for the common man, and there is a duty cast upon the authorities to preserve such spaces. Such matters are of great public concern and vital interest to be taken care of in the development scheme. The public interest requires not only reservation but also preservation of such parks and open spaces. In our opinion, such spaces cannot be permitted, by an action or inaction or otherwise, to be converted for some other purpose, and no development contrary to plan can be permitted8. The importance of open spaces for parks and play grounds is of universal recognition, and reservation for such places in development scheme is a legitimate exercise of statutory power, with the rationale of protection of the environment and of reducing ill effects of urbanisation. It is in the public interest to avoid unnecessary conversion of ‘open spaces land? to strictly urban uses, for gardens provide fresh air, thereby protecting against the resultant impacts of urbanization, such as pollution etc. Once such a scheme had been prepared in accordance with the provisions of the MRTP Act, by inaction legislative intent could not be permitted to become a statutory mockery. Government authorities and officers were bound to preserve it and to take all steps envisaged for protection9. It could be legitimately expected of the authority to take timely steps in which they have failed. Their inaction tantamount to wrongful deprivation of open spaces/garden to public. This Court in Animal and Environment Legal Defence Fund v. Union of India & Ors. (1997) 3 SCC 549     has laid down that there is duty to preserve the ecology of the forest area. This Court has enunciated the doctrine of the public trust based on ancient theory of Roman Empire. Idea of this theory was that certain common property such as lands, waters and airs were held by the Government in trusteeship for smooth and unimpaired use of public. Air, sea, waters and the forests have such a great importance to the people that it would be wholly unjustified to make them a subject of private ownership. The American courts in recent cases expanded the concept of this doctrine. The doctrine enjoins upon the Government to protect the natural resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. The aforesaid concept laid down by this Court in M.C. Mehta v. Kamal Nath & Ors. (1997) 1 SCC 388     and this Court held that the State Government has committed patent breach of public trust by leasing the ecologically fragile land to the Motel management12. In the light of aforesaid principles, it is shocking in the instant case that in spite of prayer having been made on behalf of the Municipal Corporation, the State Government did not issue a declaration under Section 126 of the MRTP Act. Thus the provisions for open spaces in the statutory scheme were in effect made a statutory mockery. The authorities were bound to act with circumspection and to act timely to take steps to issue the requisite declaration as per development plan. They were well aware of the consequences. The inaction was impermissible in such an issue of great public importance, having constitutional imperative under Article 21 read with Article 48A and further it was in breach of fundamental duty imposed under Article 51A(g) to protect natural environment, and having the potential to lead to the derogation of the public interest. Such inaction is intolerable, and the area ought to be preserved for park only. More so, considering its situation that it is encircled by garden area, the court cannot be a moot spectator and permit statutory provisions to become a mockery by inaction or lethargy on the part of the unscrupulous authorities. No reason is coming forth as to why steps were not taken by the concerned authorities to act in the public interest, as per the statutory mandate, and as per development plan. The duty is cast upon the authorities to act as cestui que trust with respect to the public park. As a matter of fact, Authorities ought to have issued forthwith a requisite declaration and ought to have completed the proceedings. Be that as it may, since there is lapse of reservation, and the land is still required for public park, and since now the provisions of Right to Fare Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (in short the 2013 Act) have come into force, obviously the compensation has to be paid in accordance with the provisions contained in the said Act.