CASES RELATED TO URBAN PROBLEMS

1. M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu, AIR 1999 SC 2468
(S.B. Muzumdar and D.P.Wadhwa)
Municipality Corporation Act- Section 114 Restriction on Construction of a Underground Shopping Complex in the Public Park

              Mr. Radhey Shyam and others filed these appeals before the Supreme Court against the judgement of a Division Bench of High Court, Allahabad. The High Court set asided and quashed the relevant resolution of Lucknow Nagar Mahapalika permitting the respondent, M. I. Builders Pvt. Ltd. to construct underground shopping complex in the Jhadewala Park in Lucknow.
               The counsels for the petitioners contended that the park is of historical importance. The park was acquired by the State Government in the year 1913 and was given to Mahapalika for the management. After the construction of underground shopping complex and parking it may still have the appearance of a park with grass grown and path laid but it has lost the ingredients of a park in as much as not plantation could be grown. Trees couldn't be planted and rather while making underground construction many trees have been cut. It was like a terrace park. They also argued that section 114 of the Municipality Corporation Act, impose an obligation on the part of Mahapalika to maintain public places, parks and plant trees to construct and maintain parking lots. By allowing the underground construction Mahapalika has violated the provision.

              The respondents submitted to the Court that park could be exploited for commercial purposes as the place is a commercial area.

               The Court after hearing to the both sides held that the whole structure to be dismantled and the park to be restored into original condition leaving a portion for construction for parking.

2. Forward Construction v. Prabhat Mandal (Regd.) Andheri, AIR 1986 SC 395 ( R.S.Pathak, O. Chinnappa Reddy and R.B. Misra )

Bombay Municipal Corporation Act Sec. 61 and 63

Construction of Bus Depot and commercial Accommodation in a Plot reserved only for a Bus Depot.

             In this case, a plot was reserved under the Development Plan for Bombay and Verified Andheri Town Planning Scheme, for a bus depot of Bombay Electricity Supply and Transport undertaking (BEST). However, the BEST decided not only construct the but also commercial accommodation. This was challenged before Bombay High Court by the Prabhat Mandal and got the stay order. Finally, the case came up before the Supreme Court after the judgement of the Division Bench of the Bombay High Court which dismissed the petition of the appellant. There were many issues before the Court. However the main issue was can the Corporation change the development scheme and permit BEST to construct commercial shops apart from bus depot which was purely earmarked bus depot.

            The Court observed that section 61 of the Bombay Municipal Corporation Act, enumerates the obligatory and discretionary duties of the Corporation. The Court observed that the Section 61(2) refers improvement of Greater Bombay. Section 63 (k) authorizes the Corporation to take any measures to promote public safety, health, convenience. The plot in question admittedly lies in a commercial one and if the facilities are given to the people of that locality providing for commercial offices these facilities would towards the improvement of Bombay. It cannot therefore be said that the transaction was outside the Bombay Corporation Act. The Court also observed that the purpose of the Corporation obviously was the best utilization of the available space. "If in a commercial zone the Corporation was able to make available accommodation for commercial purposes we do not see why such a venture cannot be one either for the purpose of promoting public safety, connivance or in the nature of facilities being made available as a part of the improvement of the city… If the Commercial activities are pinpointed a commercial zone and for that purpose the Municipal Corporation takes a step to provide accommodation for commercial purposes it cannot be said that the property of the Corporation was being acquired or held for the purposes other than the purposes of the Act".

           The Court held that in the present case the plot has used for bus depot combined with a commercial use to augment income of the Corporation for the public purpose. Hence, the Court dismissed the petition.

3.Sachidanand Pandey v. State of West Bengal , AIR 1987 SC 1109 (O. Chinnappa Reddy and V.Khalid JJ.)

Construction of a Five Star Hotel in the vicinity of Zoological Garden

The Secretary of the Union of Workmen of the Zoological Garden and the other life members of zoo filed an appeal against the decision of the High Court of Calcutta.

            There is Zoological Garden located in Allipore and is in the heart of Calcutta on either side Balvedere Road, and spread over forty nine acres on one side and eight acres on the other. The main zoo is in the forty nine acres of block land. There are some buildings and vacant land in the eight acres plot of land. This land is known as 'Belgumbari land'. The Government of West Begal in order to encourage tourism intended to establish Five Star Hotel in Calcutta. Taj Group and Indian Tourism Development Corporation came forward to the same. However, the Government entered a negotiation with Taj Group Hotel and proposed to give the four acres of land of the Biological Garden. The appellants challenged this transaction before the Court of law.

               The counsel for the appellant argued that the Begumabari land was statutorily vested in the Managing Committee of the Zoological Garden under Bengal Public Parks Act, 1904 and that Committee could not divested by the executive decision without proper procedure being followed. The land could not be leased out to the Taj Group of Hotels without inviting tenders from willing persons and without complying the requirements paragraphs 166 and 167 of the Land Manual. This decision was taken without considering the impact on the zoo and without consulting various interested authorities and institutions.

                The counsel for the respondent argued that the facilities available in the four acres of plot of land viz., burial ground for the animals, quarantine area, zoo hospital, post-mortem room, dumping ground for huge garbage and pathological laboratory were not displaced in turn were replaced and preserved by better facilities in the adjacent plot of land. This was not to disadvantage but to the advantage of the zoo and its inmates as the dumping and burial ground moved else where which keeps zoo hygienic. There was also any obstruction to the flight of visiting birds as the hotel was to be constructed at a distance of 700 feet from the lake and was to rise to maximum height of 75 feet, being medium rise and not a high rise building. There was no occasion for the Government to invite tenders since the establishments of Five Star hotel was something which could practically be undertaken by any one in that fashion.

                    The Apex Court after considering all facts and circumstances of the case rejected the claim of the appellants and held that the Government of West Bengal acted perfectly bonafide in granting the lease of Begumbari land to the Taj Group of Hotels for the construction of a Five Star Hotel in Calcutta. The Government has taken into all relevant considerations before contracting with the Taj Group Hotels. Its action was not against the interests of either zoological garden inmates or birds visiting the zoo. The financial interests of the State were also in no way sacrificed by not inviting tenders or holding a public auction. Finally the Apex Court dismissed the appeal.

4. Kamal Nagar Welfare Association v. Government of Andhra Pradesh AIR 2000 Andhra. Pra132 (G. Bikshapathy, J.) Constitution of India Art. 21, 300-A A.P. (Telengana Area) Land Revenue Act,

               Beautification of a River and Rights of people residing in River Bed Area

               The Welfare Association of the residents of Moosanagar and Kamalnagar filed the Writ Petition challenging the Government's Nandanvanam projects before the Single Judge of the Andhra Pradesh High Court as it affects their right to life.

               The counsel for petitioners contended that they belonged to weaker section and inhabitants of the said area since last four decades and eking out their livelihood in nearby places. The Government took a decision for the beautification of Moosi river bed area called Nadanavanam project and the petitioners were threatened with dispossession from the river bed area.

               They further argued that the project deprives their right to livelihood of number of people and violates Art. 21. The said project also offends Art. 300-A as they had perfect title to the property. It is also stated that the state is expected to protect the interest of weaker section of the society by providing shelter and necessary hygienic and unpolluted atmosphere. Thus, the State has also violated Articles 39 and 40 of the Constitution. They argued that it violates human rights especially right to shelter and alternative mechanism which sought to be given to the displaced persons is neither convenient nor suitable therefore the action of the government is illegal.

                The respondent stated that Nandavanam project was decided by the high level committee at the Government. It was finalized after thorough consultation among environmentalists, various government departments, legal experts, non-governmental organizations. The object of the project was to eliminate mosquito menace, diseases spreading due to highly polluted water flowing through the river and to provide health and good environment to the society. It was also decided to rehabilitate the persons who were affected by the project in a housing colony with the basic civil amenities. The door to door survey was undertaken to identify slum dwellers who are residing on the river bank. The respondents further argued even most of the slum dwellers welcomed the rehabilitation plan as they were living in a pathetic condition due to highly polluted water. The Government is not only allotting houses but also requirements of the community are being provided. . Even the Moosi river bed area was vested with the Government under section 24 of A.P. (Telengana Area) Land Revenue Act.

                The Court after thorough examination of the arguments of the both the parties held that the Court cannot grant disapproval to a project which is aimed in the larger interest of the society at large to the cost of some inconvenience of the microscopic population. Law is a social engineering. It gets moulded to the situation in the interest of the society at large. Fundamental rights are not static and move wherever injustice caused and spread justice. But in the process, it is universal inevitability, there may arise some inconvenience to smaller segments of the society. This would not amount neither denying injustice not causing violence to fundamental rights under Art. 21. The Court also rejected the petitioner contention that it violated right to shelter as a human right as there is no such violation as the residents are being shifter to more healthier and congenial place with better facilities.

               The Court while rejecting the Writ Petition iissued certain directions for the expeditious and prompt implementation of the Nandavanam project.

5. D.D. Vyas v. Ghaziabad Development Authority, AIR 1993 All. 57 (Om Prakash and M. Katju, JJ.)
Constitution of India - 51A (g) and 51A (j).
U.P. Urban Planning and Development of Act, 1993- Sec.13

The Land Designated for the Public Park cannot be used for any other Purpose.

The petitioner approached the High Court to issue the Writ of Mandamus against the Ghaziabad Development Authority to stop the use of place which is meant for the public park for any other purpose. The State of Uttar Pradesh passed U.P. Urban Planning and Development of Act, 1993 enacted to provide certain areas of Uttar Pradesh according to the plan. For this Ghaziabad Development Authority (G.D.A) was set up under the Act. The G.D.A. prepared a plan for sector Raj Nagar, Ghaziabad which refers to proposed public buildings, residential houses and plots of land for citizens amenities and civic amenities including open spaces for public park namely Adu park.
                 The counsel for the petitioners argued that the G.D.A. had not taken any steps so far to develop the said public park. Moreover, the petitioner alleged that the respondents were marking time to carve out the plots on such open space dedicated for Public Park in the plan and alienate the same with a view to earning huge profits. The petitioner further argued that the G.D.A. cannot alter the plan duly approved by the State Government to the detriment of the public. The respondent could not keep the park undeveloped with an ulterior motive.

The counsel for the respondent argued that as the G.D.A. is empowered amend the plan under Section 13(b) of the said Act. So mandamus could not be granted.

                 The Court after hearing to the both sides held that the neither G.D.A. nor the State Government amend the plan in such a way so as to destroy in such a way so as to destroy its basic feature allowing conversion of open spaces meant for public parks. The Court also held that the executing plan will remain in incomplete unless an open space reserved for Public Park developed. Good parks expensively laid out are not only for aesthetic appreciation, but in fast developing towns having conglomeration of buildings but in the fast developing towns having conglomeration of building they are a necessity. The importance of public parks cannot be under estimated. The Court further observed that the respondent being a instrumentality of the State have failed to discharge the fundamental duties under Art. 51A (g) and 51A (j).

                  Hence, the Court issued the Writ of Mandamus and also gave certain directions for the development of Adu Park.

6. M/S Rajatha Enterprises v. S.K. Sharma, AIR 1989 SC 869 (Murali Mohan Dutt and T.K. Thommen, JJ.) Karnataka Municipal Corporation Act, 1976.

Construction of a School cum Shopping Complex and Demolition of some Floors due to violation of Town and Country Planning laws in relation to height zoning.

The appellant, Rajatha Enterprises filed this special leave petition against the decision of the High Court of Karnataka. The Rajatha Enterprises represented by a contractor K.V. Shivakumar. A lease was granted by Karnataka Government. The appellant undertook the construction of a shopping complex cum school on the basis of license granted by the Corporation of Bangalore. Mr. S.K. Sharma the petitioner questioned the legality of the license before the Karnataka High Court. He alleged the license violated the provisions of Karnataka Municipal Corporation Act, 1976. In the meanwhile Rajatha Enterprises denied allegations as stated in the show cause notice issued by the Commissioner of the Corporation. After the Commissioner made an order stating Rajatha Enterprises to proceed the constructions strictly in accordance with the sanctioned plan.
              The High Court quashed the order of the Commissioner. The appellants filed special leave petition filed before the Supreme Court. Meanwhile the Commissioner took the measurements of building and ordered to reduce the height of the building failing which the Corporation threatened to demolish the three upper floors of the building. The appellant was also directed to provide space for car parking. The Court asked to file interlocutory in the High Court to question the correctness of the order of the Commissioner. When the appellant approached the High Court, the Court set asided order of the Commissioner demolishing 4th and 5th floor of the building and confirmed the Commissioner order to demolish 6th floor as it deviated the license.

              Against this order the appellant filed special leave before Supreme Court and S.K. Sharma also challenged as it set asided the order of the Commissioner demolishing 4th and 5th floors of the building. The appellant counsel submitted before the Court that the actual area which appellant utilized for the construction. In challenging Floor Area Ratio (FAR) in respect of 3 to 6; the Corporation failed to exclude the common passages comprising 1260 sq. ft. in each floor. Zonal Regulations of 1972 provide the areas covered by the stair case, lift rooms, and water tanks etc. should be excluded. When the floor area is computed will be negligible excess comparing determination by the authorities.
               The Court after hearing the both parties come to conclusion that there is neither justice nor equity in authorizing the demolition. The Court set asided the order to the High Court as there was no evidence to show to S.K. Sharma that the appellants were committing dishonesty or fraud or negligence.

8. Calcutta Youth Front. V. State of West Bengal AIR 1988 SC 436 (A.P.Sen and B.C.Roy,JJ.)

Calcutta Municipal Corporation Act, 1980

Construction of basement Market under Public Park

                A non-governmental organization called Calcutta Youth Front filed this special leave petition against the order of a Division Bench of the High Court of Calcutta, which upheld the judgment of Single Judge of the same Court and dismissed the petition of the appellants. The appellant initially filed a writ petition before a Single Judge and challenged the legality by the Calcutta Municipal Corporation of the Subsoil of Satyanarayana Park to the respondent, M/s Happy home and Hotels Pvt. Ltd. for a period of 30 years for the implementation of the scheme that is construction of a two storied, air-conditioned underground basement market and parking place on the manifold ground. The appellant alleged that the construction would affect the ecological balance because the park was situated in a densely populated area, Burrabazar the Metropolitan City of Calcutta as the construction would affect traffic in or about said area leading to further ecological imbalance. Moreover the Corporation had no authority to grant the license. However, the Single Judge of the Calcutta High Court rejected the contentions of the petitioner and held the said grant of license would not destroy the intrinsic character as park and the implementation of the development scheme by the Corporation was a bona fide exercise of its statutory powers.

               The Judge observed "the contention of ecological imbalance is wholly on an erroneous assumption. It is not fact that there will be no park as such park would be there and all other amenities which a modern park enjoins would be provided for. It is to be recorded that the park for a decade is in a deplorable state and excepting there being some tall trees, there was no maintenance of the park as park by the Corporation of Authorities". A Division Bench agreed with decision of the Single Judge and dismissed the appeal.
                 When matter came up before the Supreme Court, the Court held that the High Court was right in holding the implementation of the development scheme would fall within ambit of the Calcutta Municipal Corporation Act. The scheme was to relocate and re-develop the park as a public park as a place for the public recreation. The Supreme Court dismissed the appeal.

9. Nizam v. Jaipur Development Authority AIR 1994 Raj.87 (N.C. Tibrewal, J.)

Urban Improvement Trust Act, 1974
Urban Areas (Sub-Division, Reconstruction and Improvement of Plots) Rules, 1975
Section 74 read with section 73-A

              Open Space under Development Plan cannot be given to Private Person to open a School.

               In this case two writ petitions were heard together as they relate to subject-matter and common questions of law and facts. The first petition is a PIL, filed by the residents of New-Lite housing Co-operative Society and second one by Moderan Educational and Cultural Society. The State of Rajasthan framed Rajasthan Urban Areas (Sub-Division, Reconstruction and Improvement of Plots) Rules, 1975 under Section 74 read with section 73-A of the Urban Improvement Trust Act. The Rules provides a complete procedure permission for sub-division, reconstruction and improvement of plots by a person, societies etc. New Lite Housing Co-operative Society Ltd. applied for sub-division of plots under the Rules in the year 1976. The Scheme was approved with some modifications by the Jaipur Development Authority (JDA). The approved plan reserved for a school and open space were earmarked. The Principal of Modern School also applied for the allotment for the Site for the school and JDA took a decision allot an open site for the school. When the residents of locality approached the concerned Minister and who is also Chairman of JDA for construction of a community hall and a swimming pool etc. He cancelled the proposed allotment site in favour of the school. The school filed the writ petition before the High Court and got the stay order.
             The Court appointed amicus curie for the residents of the locality. He contended that the site could not allotted by JDA to a private person for a school as the site was reserved as an open space in the approved plan and it was intended to be used by the public for the public purpose. He also pleaded that the JDA was malafide and acted illegally without jurisdiction as the sale of the land deprives the residents of the locality from its benefits. He also brought to the knowledge of the Court that a site for school was already reserved in the approved plan where a public school is functioning.

             The counsel for the Modern School argued that the allotment of the site to the school was an administrative action and not malafide one. The JDA has discretion to choose the use of a site for a school or for a park. The school also serves a public purpose. Moreover, the space has been described as 'facility area' and school is undoubtedly is a facility and action of the JDA cannot be subjected under judicial scrutiny.
              The Court held that the JDA had no authority to allot, sale lease or otherwise transfer a site of open space reserved in the approved plan under the Rules of 1975, to a private person or a body. It is also held that the use of an open space cannot be changed or diverted for any other use by the Authority even the establishment of a school or any other facility. Therefore, the action of the respondent- JDA in allotting of a site reserved for a open space in favour of a school is against the legislative intent to safeguard healthy, safety and general welfare of the people of the locality and held illegal and void.

                The Court also directions to the JDA to prepare a list of such open spaces used for the public for the approved schemes after conducting a proper survey.

10. T. Damodar Rao v. Special Officer Municipal Corporation, Hyderabad, AIR 1987 Andhra. Pra. 171 (P.A. Chaudhary, J.)
Hyderabad Municipal Corporation Act, 1955- Sec.112.
Construction of Residential Houses for LIC and I.T. Department in the Land demarked for the Public Park.

                   The residents and rate payers of the Hyderabad Municipal Corporation who are living around the demarked area for the development of a park challenged the action of the Municipality allowing Life Insurance Corporation of India (LIC) and Income Tax Department (I.T. Department) to construct residential houses in the area demarked for the for the park before the Andhra Pradesh High Court. They prayed the Court to direct the Municipal Corporation to develop the entire area as Public Park according to the development plan. Long prior to the issuance of the development plan, the Government had planned for the creation of much larger park covering 200 aces of land. However, it dropped the plan and declared its intention to acquire only acres 99.19 cents for the purpose of the park. Actually the area was acres 101.19 cents. The said area is part of the land which is meant for the development of a recreational park. Subsequently out of acres151.55 cents 37 acres of land was acquired for the purpose of enabling LIC to build houses. A small portion of 37 acres of land was sold to Income Tax Department by the LIC. Out of acres 101.19 cents the Municipal Corporation has developed an area of 50 acres as a park. However, it allowed LIC build a few residential houses in its area of 37 acres and Income Tax department also wanted to build houses in allotted area.

                   The petitioners challenged this before High Court Andhra Pradesh and complained that the balance abut 51 acres of land out 151.5 cents as shown in the development plan ought not allowed to used by the LIC and I.T. Department. The Counsels for the petitioners argued that the section 112 of the Hyderabad Municipal Corporation Act, 1955 imposes a mandatory duty on the Corporation to make adequate provision for public parks, gardens play grounds etc.

                 The Court after hearing to the both the parties observed that the parties observed that "the LIC and I. T. Department have been well within their legal powers as owners of their properties to build residential houses. But that the ownership right is curtailed in the development plan. The Development plan is forbidden any user of that land except as recreational zone. The common law use and enjoyment of the ownership rights subject to requirements of the development plan.

                 The Court also observed that the declarations regarding demarcations of the Land user contained in a development published under statutory authority are statutorily enforceable. Those declarations impose legal obligations on the land owners and public authorities. The Court observed that the use of above area by the LIC and I.T. Department is illegal and contrary to law. The Court issued mandamus forbidding respondents from raising any structures.