AI Drafter 
TaxTMI 
TaxTMI 
2005 (4) TMI 651
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....on of residential buildings? Do the citizens of Allahabad 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 i....
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....ith costs. 4. The respondents have, however, on merits stated that 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 ar....
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....red to house 1000 military personel. These averments have been made on the 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....
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....ensity of the population. Case of Respondents No. 7, 8 and 9 (Municipal Commissioner, Mukhva Nagar 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 f....
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....x for the Judges of the High Court on the North and further towards North-West by the Radio Station and Circuit House and the Bar Council of U.P. on North East 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 wh....
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.... this matter to apprise the Court of the ecological damage that would be caused if the construction were allowed to be raised. The petitioner submitted that the field of 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,....
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.... evolved which gives the right of locus standi to any member of the public acting bonafide and having sufficient interest in instituting an action for redressal of public wrong or public injury, but who is not a mere busybody or a meddlesome 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 vindi....
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....erest to restrain the respondents from the immense danger that would be caused if the construction was allowed on the land in question. The petitioner has complained that the open space of land exiting for years would vanish and that the lungs of the city would be choked 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 Constituti....
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....ect and improve both the man-made and the nature 1 environment." 29. Thus, in our view, an issue relating to the enforcement of the fundamental rights, and the Directive Principles, which is of public importance, is clearly involved in the present petition. An issue relating to the urbanization and the expansion 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 bee....
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.... (ii) Class "B" land which is not so required or reserved, but which is retained in the cantonment for the effective di charge of the duties of the Central Government in respect of military' administration: and (b) Land which is vested in the Board under Section 108 of the Act shall be called class "C" land. 5. Class "A" land- Class "A" land shall be divided by the Central Government, or such 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,....
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....nder the control of the same head of a department sanctioned by the Central Government. (vii) every alternation in classification of land sanctioned under rule 7." 12. The Military Estates Officer's Laud Revenue Register- The Military Estates Officer shall maintain a register, in the form prescribed in Schedule III, of all lands in Class "A" (2) and "B" (3) which are entrusted to his management and from which revenue is derivable. This register shall be known as the Military Estates Officer's Land Revenue Register, and shall be prepared annually 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 ....
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....nder Rule 3 of the 1937 Rules, the Military Estate Officer is required to prepare a General Land Register entering ell kind of land belonging to the Cantonment Board or military authorities. Rule 4 classifies the land of the Cantonment into three types, namely, Class-A, C!ass-B and Class-C land. Class-A land has been specified as a land which is required or reserved for specific military purposes. Rule 5 sub divides Class-A land into Class-A(1) and C lass-A(2) land. Class-A(1) land are such land which are actually used or occupied by the military authorities for various purposes as specified therein and includes military recreation grounds and bungalows 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....
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....was only required from the Central Government when the user of the land was being changed from Class-A land to Class-B land, but where the land was classified as Class A(1) land and was being used for another purpose which also came under the category of Class A(1) land, in that case, no previous sanction was required from the Central Government. In the present case, the land in question is described as 'old Polo Ground , which according to the respondents, comes under the category of "Military Recreation Ground". The said land is proposed to be used for the construction of a residential complex, which is also covered under Class A(1) as a 'bungalow' and 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 ....
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....tral Government to grant the requisite sanction. Be that as it may, it is clear that at the present moment, no prior sanction as required under the statutory rules was ever sought nor it had been given by the Central Government till date. Before starting the construction on the land in question, it was imperative and mandatory for the respondents to take previous sanction from the Central Government. 44. Rules 3, 14(3) and 14(5) of the Rules mentions the words "previous sanction of the Central Government". Rule 13 states that no alterations in the plans and schedules shall be made without the previous sanction of the Central Government. In our view, it is mandatory for the respondents to 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 claus....
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....er and the reasons for grant of such assert. The word "assent" would mean in the context as an expressed agreement of mind to what is proposed by the State. 15 The learned counsel Mr. Ravichandran has rightly pointed out the different meanings given to the word "assent" in various dictionaries, which are as under:- Corpus Juris Secundeen Assent(as a noun)- A passive act of concurrence; the act of the mind in admitting or agreeing to anything; the act of agreeing or consenting to accept some proposition; and, by context, "acceptance". It also has been defined is agreement or approval;.... "Assent" implies knowledge of some kind in the party assenting to that to which he assents; also permission on the part of the party assenting'......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)-....
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....e; compliance Words & Phrases Judicial Dictionary-Mitra "Assent- Assent means agreeing to or recognizing a matter.. .etc. Wharton's Law Lexicon." "73. The assent of the President envisaged under Article 254(2) is neither an idle or empty formality, nor an automatic event, necessitated or to be given for the mere asking, in whatever form or manner and whether specific, vague, general or indefinite- in the terms sought for to claim that once sought and obtained as well as published, a curtain or veil is drawn, to preclude any probe or contention for consideration that what was sought and obtained was not really what should and ought to have been, to claim the protection envisaged under clause (2) in respect of a particular State law vis-a-vis or with reference to any particular or specified law on the same subject made by Parliament or an existing law, in force. The 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 matte....
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....cipal Commissioner, etc. and, in a given case, the views of the general public. Thus, the statement of the learned counsel for the respondents that the military authorities have now moved the Central Government for the grant of requisite sanction would, in our view, be an empty formality and would not remove the duty that was cast upon the Central Government under the aforesaid Rules. The statute must be construed in such a manner whereby the intent and object of the Act could be given effect to. A discretion to grant sanction conferred on the Central Government must be exercised in public interest and judiciously. Therefore, seeking previous sanction from the Central Government at this stage would serve no useful purpose. In our view-by seeking sanction from the Central Government at this stage cannot cure the initial defect. 49. In Ms. Shailija Shah v. Executive Committee, Bharat Varshya National Association 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 ....
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....The doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes." and further went on say- "Our legal system- based on English common law-includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is beneficiary of the sea-shore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership." 55. In M.I. Builders (P) Ltd. v. Shyam Sahu and Ors. 1999 (6) SCC 464, at page 518, the Supreme Court held "This Public Trust doctrine in our country, it would appear, has grown from Article 21 of the Constitution." 56. In M.C. Mehta v. Union of India and Ors., 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 ....
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....tory 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." and further held- "The statutes in force in India and abroad reserving open spaces for parks and play grounds are the legislative attempt to eliminate the misery of disreputable housing condition caused by urbanization. Crowded urban areas, tend to spread disease, crime and immorality." and in para 37, held "Public parks 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 ether 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 moder....
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....ar section of the Society during 'Raksha Bandhan' and person from other religions offer prayer every Thursday in the 'Mazaar' located inside the Polo Ground. Therefore, it cannot be said that the land was always used for military purposes. No doubt, the land was in the Cantonment limits for the last 60 years, but before that, it was with the municipal authorities and used as a Polo Ground. 63. 'Polo Ground' borders the Municipal and the Cantonment limits. Over the years, the town has grown. Instead of expanding, the town has grown from within consuming me open spaces of land wherever found. The Civil Lines area which boasted of bungalows enclosed by acres of lawns and gardens, are now covered by residential flats and commercial buildings. Small localities within the Civil Lines area have cropped up in the last two decades on account of the Government policy in converting the lease land into free hold land. Two decades of land exploitation by colonizers have resulted in the erosion of open spaces occupied previously by lawns and gardens which have now been converted into a congested area consisting of a concrete jungle. People are living like guinea pigs i....
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....as a green belt will vanish. Absence of green belts, open spaces, parks, etc, would create a health hazard and would have an adverse impact on the environment. 69. The learned counsel for the respondents submitted that more than 50% of the Polo Ground would be left open which will be developed as a park, therefore, the construction on a portion of the land would not have an adverse impact on the environment. The argument of the respondents, in our view, does not appeal to us. Today, if a duplex building is allowed to come up, it will have some kind of an impact on the density of the area. Tomorrow by the same reasoning, a high rise building would come up which will have a further impact on the density of the area. Therefore, it is not a question of using only a small portion of the land 1:1 question. The question is one of maintenance of the open piece of lend because of its environment necessity, which in our opinion is supreme. Permitting any construction would deprive further, the quality of life to the citizens of this city. 70. Chanakya in his "Neeti Shastra" said- i.e., an individual be sacrificed to save a 'family', a family be sacrificed to save a vil....
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...., namely, the views of the State Government, the Town Planner, Allahabad Development Authority, Nagar Nigam, the District Magistrate. Allahabad etc. and moreover when the land in question is collocated with the Civil Area and is in close vicinity of the High Court, Circuit House, etc. 74. Stoppage of construction would undoubtedly cause hardship to the military authorities, but it is a price that has to be paid for protecting and safeguarding the rights of the people to live in a "healthy environment with minimal disturbance of the ecological , balance. The Supreme Court has clearly held in Bangalore Medical Trust case [supra] that open spaces which has become the gift for the people cannot be sacrificed by converting it to some other use. Therefore, allowing the construction merely because it was administratively convenient for the military authorities, as an existing married accommodation already existed across the road, in our opinion, would be inviting congestion and consequently a health hazard. It has come on record that there is no sewer system in the Cantonment. If this is allowed, then, every development authority, municipalities and local bodies would be constructing b....