In the Supreme Court of India 24th November 1994. Civil Appeal No: 9151 of 1994 Bench: K. Ramaswamy and N.G Venkatachala. Petitioner: Virendra Gaur and Ors. Respondent: State of Haryana and Ors. Counsel for Petitioner: Sr. Adv. Jitendra Sharma and Adv. Manoj Swarup. Counsel for Respondent: Sr. Adv V.C. Mahajan, Sr. Advs. S.M Sarin and P.N Puri, Sr. Adv. D.V. Sehgal, Advs M.K. Dua, Shirin Jain and Indu Malhotra.
The court in this case has denied construction on land which is intended for public use. This case held that the right of people to a healthy environment also comes under the purview of Article 21. It held that any construction is done with the need to contravene such right will be struck down.
Constitution and statutory provisions discussed: Article 14, 21, 47, 48-A, and 51-A (g) of the Constitution. Section 61, 64, 66, 203, 250 of the Haryana Municipal Act, 1973. Principle 1 of the Stockholm Declaration of 1972.
The Municipal Committee of District Kurukshetra in Haryana had framed Town Planning Scheme No.5 which was sanctioned by the Government of Haryana. The first appellant owned a small portion of land in the scheme. The appellant had surrendered 25% of her land to the Municipality as a requisite to allow her building to be constructed. The said land was vested in the Municipality by Section 61 of the Haryana Municipal Act, 1973. The same land, in the scheme, was a subject matter of the lease for 99 years which was made in favor of PSS (Punjab Samaj Sabha) and was marked for open spaces. The Government allotted the land to PSS upon payment on April 18th, 1991. It obtained sanction for construction of Dharmashala on December 18th, 1992. The construction began in July 1992 and on becoming aware of such construction the appellant filed a writ petition seeking for an ad-interim injunction. The High Court denied relief and dismissed the petition. Aggrieved by this, this matter is brought to the Supreme Court by way of Special Leave.
- Does the Government have jurisdiction to use a land marked as an open-space for construction?
- Can the timelapse of 20 years in not using the open land for public purpose serve as a valid ground for the Government under Section 250 of the Act to use the land vested by the Municipality for charitable purpose?
- Does the use of land for construction deprive the citizens of environmental and recreational benefits?
- Can the Government lease out land to private trust like PSS?
Arguments of the appellants:
- The appellants contended that the purpose of the scheme was to reserve land for open spaces for better sanitation, environment, and recreational use of the residents. The Government does not have the power to lease out the land to PSS at its will.
- It was contended that though the purpose of such land was to create a Dharmashala intended for public use, the Government had no right to direct the municipality to permit such usage of land. Such actions of the government defeat the purpose of the scheme which clearly states that such lands would be reserved for open spaces.
- It was contended that if the construction is allowed it would deprive the citizens of its environment and recreational benefits. It was concluded that the government has acted in excess of its power under Section 250 of the Act.
Arguments of the respondents:
- The respondents contended that the scheme mentions various guidelines where land belonging to the municipality can be used for public purposes. The grant of such land to the PSS for the construction of Dharmashala was for charitable purposes and hence, in accordance with the provisions of the Act.
- The respondents contended that the government had the power to assign the land for public policies which is also mentioned in the scheme. The clause in the scheme to keep such land an ‘open land is not permanent in nature.
- It was contended that as more than 20 years had elapsed since the enactment of the scheme and the land not being put up for public use, the Government has power under Section 250 to use such land for charitable purposes.
- Thus, the respondents contended that the government was acting in perfect accordance with the law. It was concluded that since more than 7 Lakhs was already spent by the PSS on the construction of the building it would be imprudent to interfere at this stage.
The court held that the government did not have the proper authority to take such a decision. It stated that the sanction of land by the municipality for various uses is against the scheme and violative of law and constitution.
The court emphasized the need to preserve the environment with the help of Principle 1 of the Stockholm Declaration of 1972. It was held that the right to have a living atmosphere suitable for human existence comes within the scope of the right to life. The affirmative declaration in Principle 1 encourages the municipal states to tackle environmental problems in the broadest human context and not just as trivial problems to conserve nature for its own benefit.
The court also mentioned 48-A and 51-A (g) to highlight the need to safeguard the environment and forests of the country. Article 47 imposes a duty on the state to improve public health. Taking into account the above provisions the court stated that the word ‘environment’ is of the broad spectrum which brings within its ambit “hygienic atmosphere and ecological balance”. The state is bound in its duty to forge policies to maintain ecological balance. Article 21 in its ambit would also include protection and preservation of the environment, sanitation, and ecological balance free from pollution. Any act which can cause any form of environmental pollution be it air or water would amount to a violation of Article 21. There is a constitutional imperative on the states and municipalities to take adequate measures to promote and preserve both man-made and natural environments.
The court stated that Section 203 enjoins the Municipality to frame schemes providing for environmental and sanitary amenities and to preserve and protect parks, open lands, sanitation, roads, sewage, etc. to maintain ecological balance. The lands vested in section 61 (c) of the Act should be used for the above-mentioned purposes. The court disagreed with the appellant’s view that the land being unused for a span of more than 20 years would divest it from the municipality and vest it to them.
The court stated that Section 66 gives Municipality power to transfer lands vested into the government but it is subject to provisions of Section 64 of the Act. Section 250 of the Act confers general power to the government to issue directions to any committee for carrying out purposes of the Act but it should only be used to further the goals stated in the given scheme. The land vested or reserved under the scheme cannot be directed to be used for any other public purposes unless there is grave compelling demand to issue such directions.
Thus, the court held that the Government has no power to lease out land to PSS and hence, the grant of the lease in favor of PSS is without authority of law and jurisdiction.
The court referred to the case of Bangalore Medical Trust v. B.S. Muddappa to explain whether landmarked for open spaces can be used for public purposes. In the above case, the court held that ‘the preservation of open spaces for parks and playgrounds are universally recognized as a legitimate exercise of statutory power rationally related to the protection of the residents of the locality from the ill-effects of urbanization.’ The ratio of this case was applied by the court and it stated that in the given case open lands vested in the municipality were meant for public amenities to the residents to maintain ecology, sanitation, recreational, play-ground, and ventilation purposes. The construction of a building would affect all these things and have ill effects on the residents. Hence, such an order passed by the government and the action of the municipality would go against the order of the scheme.
The court differed from the respondents and stated that though two decades have passed, any land taken from the citizens for a public purpose is required to be used for the protection and preservation of hygienic conditions for the residents.
The court further stated that PSS had proceeded with the construction despite having knowledge of a writ petition filed by the appellants being pending. Instead of awaiting the decision on merits, PSS continued with their construction and expended money on it. It can be said that it was a deliberate risk undertaken by the respondents and the court wouldn’t validate such actions. Under these circumstances the court refused to justify the actions of the government or municipality to allot land to PSS. The court held that such allotment was detrimental to people in the locality and in gross violation of the scheme.
The court thus concluded that 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. It directed the municipality to pull down the construction within four weeks. Thus, the appeal was granted and the writ petition was ordered as prayed for.
The court through this judgement has upheld the need to preserve open-spaces, building, etc. for the use of public. It has ascertained that no construction can be done if it hinders with public use or poses as an environmental threat. It also emphasized on the need for preservation of environment and equated the right to a healthy environment to the status of fundamental right under Article 21.