JUDGMENT
S.B. Sinha, C.J.
1. Whether the first respondent herein can grant permission for construction of building in a park is the question involved in this application.
2. The first writ petition is the Co-operative Housing Society. It has purchased 24 acres 14 guntas of land on 23-10-1956. The said land belonged to one Mir Osman Ali Khan who sold it to Saleem Khan. The latter sold it to the first petitioner-society and whereafter plots were allotted to its members by it. The building plan submitted by the society for construction of the buildings was approved. There exists an approved lay out. As per the lay out an extent of 2500 square yards, which is
covered by roads on four sides, was set apart for park and the said land was handed over to the Municipal Corporation of Hyderabad, which assumed the possession thereof. The first respondent, however, instead of developing the area as a park leased out about 1800 square yards of the park site to the second respondent for construction of school therein by reason of a lease deed dated 31-12-1981. Some other encroachments has also been made in the said area. The petitioners, therefore, have filed the writ petition for the following reliefs:
“……to issue an appropriate writ, or
direction more particularly in the nature of writ of mandamus directing the 1st respondent to remove the encroachments and constructions made by the 2nd respondent in the area earmarked for park in the layout of the 1st petitioner society and direct the 1st respondent to develop the same into a park and pass such other order or orders as the Hon’ble Court may deem fit and proper in the circumstances of the case.”
3. The second respondent herein has filed a counter affidavit, inter alia, stating that earlier a writ petition had been filed, marked as Writ Petition No. 1040 of 1983, seeking the same relief and the same was dismissed by this Court holding that the Corporation has executed a lease deed in its favour on 31-12-1981 basing on No Objection Certificate of the Welfare Association of the colony and the school had already constructed a building. It has further been alleged that the petitioners herein are fighting litigations in relation to some other dispute.
4. The learned Counsel appearing on behalf of the petitioner would submit that having regard to the decision of the Apex Court in Bangalore Medical Trust v. B.S. Mudappa, , the
decision of this Court in Writ Petition No. 1040 of 1983 would not operate as res judicata. It was further submitted that the inter se dispute between the members of the society cannot be taken as a defence in this writ petition.
5. The learned Counsel appearing on behalf of the respondents, on the other hand, has drawn our attention to a Division Bench judgment of this Court in Writ Appeal No. 1185 of 1990 and the order dated 6-6-2000 in IA No. 570 of 1999 in OS No. 3270 of 1999.
6. This Court is not concerned with the said OS No. 3270 of 1999. So far as the judgment in Writ Appeal No. 1185 of 1990 is concerned, this Court held:
“The learned single Judge noticed that the Hyderabad Municipal Corporation had given permission on the basis of no-objection letter dated 28-1-1981 said to have been given by the Welfare Association of the colony. The Hyderabad Municipal Corporation executed a registered lease deed dated 31-12-1981 leasing out the plot for 20 years on a rental of Rs.35,000/-. The 2nd respondent had paid Rs.37,318/-towards betterment charges, plan fees, drainage charges, etc., and got permission for construction. The construction was commenced in August, 1982. The writ petition itself came to be filed on 18-2-1983. It appears that initially an injunction was granted restraining the 2nd respondent from making construction but subsequently the injunction was vacated by a learned Judge of this Court (Justice B.P. Jeevan Reddy as he then was), in 1983. The appellant preferred LPA against the said order and the same was also dismissed. Consequently the construction continued and the school has been established and has now been continuing for at least two years, if not more as admitted by the learned Counsel
for the appellants. We think that the learned single Judge was right in dismissing the writ petition, particularly in the context of the consent letter, which appears to have been, given by the Welfare Association. There are no grounds for interference with the order passed by the learned single Judge. The writ appeal is dismissed.”
7. It is not in dispute that the area in question has been set apart as park. The owners of the land had handed over possession of the said property to the first respondent herein for construction and maintenance of the area as a park.
8. The short question, which arises for consideration, is as to whether the first respondent had any authority to execute the deed of lease in favour of the second respondent?
9. The answer to the said question must be rendered in the negative. Right to clean environment is a part of the fundamental right under Article 21 of the Constitution of India. The land earmarked for park cannot be converted or changed into land for other purposes. If the Corporation had no jurisdiction to grant permission for construction of the building in a park, no amount of consent can validate the invalidity. The order of the Corporation was a nullity. The Corporation being a statutory authority must exercise its jurisdiction within the four corners of the statue. Any action taken beyond the power by Corporation shall be ultra vires.
10. In Bangalore Medical Trust (supra), it was held that a private nursing home could neither be considered to be an amenity nor it could be considered improvement over necessity like a public park and that the exercise of power in conversion of public park into private nursing home, therefore, was contrary to the purpose for which it is conferred under the statute.
11. In M.I. Builders Private Limited v. Radhey Shyam Sahu and others, , the Apex Court considered this question in great details and rejected the submission made on behalf of the appellant as regards the plea of estoppel by pleading against the respondent-Mahapalika, observing:
“That there could be estoppel by pleadings, reference was made to a decision of this Court in Union of India v. M/s. Indo-Afghan Agencies Limited [1968 (2) 336] approving the earlier decision of the Calcutta High Court in the Ganges Manufacturing Company v. Sourujmull and others [1880 ILR Calcutta 669 at 678]. Mr. Sorabjee said a party could not change its stand even it if was legally wrong in its earlier stand as otherwise it could be a negation of everything.
In the Ganges Manufacturing Company v. Sourujmull and others [(1880) 5 ILR Cal 669] a Division Bench of the Calcutta High Court held that “a man may be estopped not only from giving particular evidence, but from doing any act or relying upon any particular argument or contention, which the rules of equity and good conscience prevent him from using as against his opponent”.
In Union of India and others v. M/s. Indo-Afghan Agencies Limited [(1968) 2 SCR 336] in a certain scheme called the Export Promotion Scheme incentives were provided to the exporters for woolen goods. M/s. Indo-Afghan Agencies Limited Exported wollen goods to Afghanistan of FOB value of over Rs. 5 crores. The Deputy Director in the office of the Textile Commissioner, Bombay, issued to them an Import Entitlement Certificate for about Rs. 2 crores only. When the representations made to the Government for grant of import Entitlement Certificate for full FOB value,
it produced no response and writ petition under Article 226 of the Constitution was filed in the High Court. High Court allowed the writ petition. In the appeal filed by Union of India to this Court various contentions were raised. This Court said:–
“Under our jurisprudence the Government is not exempt from liability to carry out the representation made by it as to the future conduct and it cannot on some underlined and undisclosed ground of necessity or expediency fail to carry out the promise solemnly made by it, nor claim to be the judge of its own obligation to the citizen on an ex parte appraisement of the circumstances in which the obligation has arisen.”
And further:
“The defence of executive necessity was not relied upon in the present case in the affidavit filed on behalf of the Union of India. It was also not pleaded that the representation in the Scheme was subject to an implied term that the Union of India will not be bound to grant the import certificate for the full value of the goods exported if they deem it inexpedient to grant the certificate. We are unable to acceded to the contention that the executive necessity releases the Government from honouring its solemn promises relying on which citizens have acted to their detriment. Under our Constitution set up no person may be deprived of his right to liberty except in due course of and by authority of law: If a member of the executive seeks to deprive a citizen of his right or liberty otherwise than in exercise of power derived from the law -common or statute – the Courts will be competent to and indeed would be bound to protect the rights of the aggrieved citizen.”
12. The Apex Court also rejected the argument of doctrine of administrative inconvenience. It traced the history of Jhandewala Park and held:
“Mahapalika is the trustee for the proper management of the park. When true nature of the park, as it existed, is destroyed it would be violative of the doctrine of public trust as expounded by this Court in Span Resort case , Public Trust doctrine is part of Indian law. In that case the respondent who had constructed a motel located at the bank of river Beas interfered with the natural flow of the river. This Court said that the issue presented in that case illustrated “the classic struggle between those members of the public who preserve our rivers, forests, parks and open lands in their pristine purity and those charged with administrative responsibilities who, under the pressures of the changing needs of an increasingly complex society, find it necessary to encroach to some extent upon open lands heretofore considered inviolate to change”.
In the treatise “Environmental Law and Policy : Nature, Law and Society” by Plater Abrams Goldfarb (American Casebook series – 1992) under the Chapter of Fundamental Environmental Rights, in Section 1 (the Modern Rediscovery of the Public Trust Doctrine) it has been noticed that “long ago there developed in the law of the Roman Empire a legal theory known as the ‘Doctrine of the public trust’.” In America Public Trust doctrine was applied to public properties, such as shore-lands and parks. As to how doctrine works it was stated: “The scattered evidence, taken together, suggests that the idea of a public trusteeship rests upon three related principles. First, that certain interests – like the air and the sea – have such important to the citizenry as a whole
that it would be unwise to make them the subject of private ownership. Second, that they partake so much of the bounty of nature, rather than of individual enterprise, that they should be made freely available to the entire citizenry without regards to economic status. And, finally, that it is a principle purpose of Government to promote the interests of the general public rather than to redistribute public goods from broad public uses to restricted private benefit……” With reference to a decision
in Illinois Central Railroad Company v. Illinois [146 U.S. 387 (1892)], it was stated that “the Court articulated in that case the principle that has become the central substantive thought in public rust litigation. When a state holds a resource which is available for the free use of the general public, a Court will look with considerable scepticism upon any Governmental conduct which is calculated either to reallocate the resource to more restricted uses or to subject public uses to the self-interest of private parties.” This public trust doctrine in our country, it would appear, has grown from Article 21 of the Constitution.”
It directed:
“1. Block 1, 2 and 4 of the underground shopping complex shall be dismantled and demolished and on these places park shall be restored to its original shape.
2. In Block 3 partition walls and if necessary columns in the upper basement shall be removed and this upper basement shall be converted into parking lot. Flooring should be laid at the lower basement level built to be used as parking lot. Ramp shall be constructed adjacent to Block 3 to go to upper and lower basement levels for the purpose of parking of vehicles. Further to make block 3 functional as a separate unit
walls shall be constructed between block 2 and block 3 and also block 3 and block 4.
3. Dismantling and demolishing of these structures in Blocks 1, 2 and 4 and putting Block 3 into operation for parking shall be done by the Mahapalika at its own cost. Necessary services like sanitation, electricity etc., in Block 3 shall be provided by the Mahapalika.
4. Mahapalika shall be responsible for maintaining the park and the Block 3 for parking purposes in proper and efficient manner.
5. M.I Builders Private Limited, the appellant, is diverted of any right, title or interest in the structure built by it under or over the park. It shall have no claim whatsoever against Mahapalika or against any other person or authority.”
13. The right of the first respondent to transfer its property is circumscribed by Section 148 of the Hyderabad Municipal Corporation Act, 1955, which is in pari materia with Section 37 of the Andhra Pradesh Municipalities Act, 1965. In NGOs. Colony Development Committee v. District Collector, Krishna, Machilipatnam, , one of us (V.V.S. Rao, J) relying on the decision in Bangalore Medical Trust (supra) having regard to the fact situation obtaining therein directed:
“Having regard to the peculiar facts and circumstances of the case, while recording the displeasure of this Court on the action taken by the revenue authorities in interfering with the Municipal property, the writ petitions are disposed of directing the Municipality without waiting for any proceedings by any of the revenue officials to take over the vacant land admeasuring 1254 sq. yards forthwith and develop the same into park for passive recreation of residents of NGOs
Colony and for general public of Machilipatnam Town. The petitioner in Writ Petition No. 6301 of 1994, namely, NGOs Colony Development Committee shall donate an amount of Rs. 25,000/-(rupee twenty five thousand only) within a period of six weeks from today to the Machilipatnam Municipality which shall realise the said amount only for the development of park in NGOs. Colony covered by lay out in TP No. 72 of 1953. The Municipality shall complete the project of development of the park in the land covered by TP No. 72 of 1953 within a period of six months from today.”
14. In H.G.N. Samity v. Chief Secretary, 2000 (1) CIIN 28, a question arose as to whether the Municipality could sanction for construction of a community hall within a park. In that case also the construction of the building was completed. One of us speaking for the Division Bench of the Calcutta High Court, relying on M.I. Builders Private Limited v. Radhey Shyam Sahu (supra) stated the law thus:
“How the State Government had allotted a portion of the Park in deviation of its policy decision in the name of building of Community Hall is a matter of great surprise that there are several statutes governing the field is not in dispute. A lay out plan has to be made under the provision of the West Bengal Town and Country (Planning and Development) Act, 1979. The Calcutta Metropolitan Development Authority has issued handbook laying down the procedure and guidelines for environmental clearance. Although the same is meant for certain purposes, viz., industrial projects, the same is a pointer to show that the State had been also eager to maintain the greenery and the ecological balance. Therefore, we fail to understand as to how the State could allot the lands in
question within a park which is contrary to the representation made by it to the residents particularly in view of the fact that excess premiums had been charged for those who had opted for settlement of land near the park or green verges.
It is also surprising as to how the Bidhan Nagar Municipality also sanctioned the building plan within a park. The said action, in our opinion, was not commensurate with the professed policy decision of the State and the Municipality. The aspect of the matter has recently been considered in M.I. Builders Private Limited v. Radhey Shyam Sahu and others wherein it has been held that the Municipality is a Public Trustee in respect of parks.”
15. Referring to clauses (a) and (1) of sub-section (3) of Section 63 West Bengal Municipal Act, 1993, it was held:
“The obligatory functions leave no manner of doubt that park being a property having vested in the Municipality, has the duty to maintain and develop the same. It, of course, has a discretionary duty, inter alia, to construct and maintain a Community Hall but the same cannot be done at the cost of ecology and greenery. The Sate, as noticed hereinbefore, has a duty to look after the environment, safety and improvement. Such functions can only be transferred in terms of Section 65 of the Act but the same has not been done. It was in this situation the Municipality could not have sanction any building plan inside the Park. The respondents have constructed their buildings at their own risk during pendency of the writ petition. They therefore, cannot take any benefit thereof and, thus, there is no difficulty in directing demolition of those buildings and a further direction that the parks should be restored to
their original position. It is directed accordingly.”
To the same effect is the decision of the Madras High Court in, 2000 (1) MLJ 41.
16. The principles of res judicata will have no application in relation to maintenance of ecology or enforcement of a fundamental right. The decision of this Court, therefore, would not operate as resjudicata, particularly as the res judicata is merely a procedural provision. The said decision cannot also be a precedent in the matter.
17. Yet again in Smt. C. Uma Devi v. Government of Andhra Pradesh, Unreported judgment dated 21-6-2001 in WP No. 4598 of 2000, this Division Bench having taken into consideration the provisions of the Hyderabad Municipal Corporation Act directed the third respondent-Corporation therein not to dump the garbage in the park in question or any other park and further directed the A.P. Pollution Control Board to monitor the maintenance of the said park on regular basis.
18. In the instant case, admittedly, the deed of lease executed in favour of the second respondent herein is up to December, 9, 2001. Having regard to the facts and circumstances of this case, we direct that the said lease shall not be renewed any further. The first respondent herein shall also take appropriate steps for removal of the encroachments in accordance with law and restore the park to its original position. It is further directed to maintain the park.
19. With the aforementioned directions, this writ petition is disposed of. No order as to costs.
