Bangalore Medical Trust v. B. S. Muddappa



Download 2.15 Mb.
Page27/54
Date09.11.2016
Size2.15 Mb.
1   ...   23   24   25   26   27   28   29   30   ...   54

13. The third question for consideration is whether by the impugned order, the State Government has permitted the establishment of a new Township and if so, whether it is not invalid for not following the mandatory procedure prescribed under the Land Revenue Act. The learned counsel for the petitioners submitted that an examination of the new proposal would unmistakably indicate that the Government has allowed the formation of a new township. They submitted that there were only two important differences between the old and the new proposals. They are:-

(1) Instead of there being more than 700 houses there would be only 270 houses and,



(2) Instead of there being an underground centralized sewerage system, there would be separate individual septic tanks with soil absorption system which according to the respondents has clearly avoided the hazard of pollution of the water in the river Arkavati by the discharge sewerage water. The learned counsel submitted that even the modified proposal was nothing but a new township, except that number of houses would be less, the fact remains even then the number of houses would be as many as 270. They also submitted once the new township is permitted the large number of construction workers and migrants should come and slums would come up and as necessity number of shops and services would come into existence and there would be heavy movement of trucks carrying building materials and all this would clearly mean an establishment of a new township and that the Government without disclosing this truth has passed the order, though in truth the Government Order permits the establishment of a new township. They maintained that it is illegal and invalid for not complying with the mandatory procedure prescribed under the Land Revenue Act.

14. The learned Counsel for respondents 1 and 2, however, contended that the new proposal would not bring into existence a new township but there would be only 270 individual country villas and each of the villas will be attached to the existing revenue village, on the land on which the villa comes into existence. Learned Counsel, however, agreed that if the modified plan also brings into existence a new township, the Government ought to have followed the procedure prescribed under the Land Revenue Act. They, however, maintained that new plan does not bring into existence a new township.


15. We shall now, in the first instance proceed to consider as to whether the new proposal brings into existence a new township or no such township comes into existence. In fact, it was the duty of the Government to apply its mind to this aspect of the matter and to state clearly as to whether the modified plan does or does not bring into existence a new township. The Government has failed to do so. In order to find out the truth, all that is necessary is to refer to the modified plan, and the letters addressed by the 4th respondent to the Government. As can be seen from the modified plan, it provides for formation of 270 plots and for construction of 270 country villas. Instead of there being an underground sewerage system as common to all the houses, there would be separate sewage disposal system for each house by way of construction of septic tanks according to the .specification of ISI. But the fact remains it would be a new township. Further, as according to the modified plan, 270 houses are to be constructed as rightly pointed out by the learned counsel for the petitioners. Servants quarters have to be constructed. Large number of construction workers would come in and they would put up sheds in the vicinity. In the circumstances, as of necessity shops, restaurants and other services would be opened. Therefore, the stand of the respondents 1 and 4 that no new township would come into existence is not true. In fact, in the letter dated 20-10-1990 at page. 320 of the Government records the 4th respondent has stated thus:-

Dear Sir,



Sub:- Formation of Township of DLF Universal Ltd. (DLF Arkavati Scheme Green Belt)

We have submitted the DLF Arkavati Green Valley Retreat Scheme as early as on 12th August 1985. The Government has fully examined the scheme as will be evident from the records and proceedings of the Government. This was in connection with the grant of conversion of agricultural area into non-agricultural i.e. for housing purpose. Thereafter, certain other suggestions were made, but the Government appears to have passed orders and they have not been communicated to us.


In this connection, we request the Government, as the matter is pending for the last several years, to kindly approve the scheme. We are prepared to abide by any conditions which the Government may deem fit to impose for approval of the Scheme and to see that there is no pollution of any kind. Our earlier letters and assurances contained therein, clearly prove the same.

Early orders are requested as we would be in position to submit the same to the Hon’ble High Court in the matter.

If necessary, we request that a personal hearing may kindly be given to us.

Again as on 20th May 1991 the 4th respondent in the letter addressed to the State Government (enclosure VS) stated thus :-

(d) Town Planning :- Our proposal submitted is in outline only, regarding the layout, roads and other facilities but with a firm commitment on 270 country villas being not exceeded. Therefore, any modifications to the layout, if found necessary may be permitted in consultation with the Town Planning Authorities.”

In the face of the contents of the modified plan and the above two letters, there is no merit in the submission made for the 1st and 4th respondents that no new township was being permitted.

We may also point out that the Special Duty Commissioner, whose opinion with reference to the modified proposal was sought for by the Government also clearly understood that it was also for the establishing of a new township. this is evident from the said letter in which he has described the subject matter.

Relevant portion of the letter of the Deputy Commissioner reads:- .......

From the contents of the letter, it is clear that the Deputy Commissioner also understood that the modified proposal was for establishing a new Town-ship and therefore he wanted the Government to take a decision as whether a new township should be established and if the Government approved sanctioned the revised proposal, then he would review the earlier orders of conversion. It is true that there was no question of the Deputy Commissioner reviewing the earlier orders of conversion as they were quashed by this Court, and that he could consider only fresh applications if made under S. 95 of the Act. Whatever that may be, the letter indicates that the Deputy Commissioner was clearly of the view that question as to whether permission for conversion of agricultural land for residential purpose would have to be considered by him, after the

Government gave sanction for the establishment of a new Township on the lines of the modified proposal. This view of the Deputy Commissioners in accordance with the provisions of the Land Revenue Act and the decision of this Court in the petition filed by the Water Board.

Therefore, on careful consideration of the material placed before us, we are of the view that the conclusion which is inevitable is that according to the modified plan also a new township would come into existence and that the plea of the 1st and the 4th respondents that according to the modified plan, there will be only 270 country villas on the land in question and it would not be a township, is more ingenuous than convincing, intended to circumvent the provisions of the Land Revenue Act, to which we will be making reference in the succeeding paragraph.

16. Now, we proceed to examine as to whether the Government could have passed the order in the manner in which it has done. The definition of the word ‘village’ is found in S. 2(38) of the Land Revenue Act. It reads:-

(38) “Village” means a local area which is recognised in the lend records as a village for purpose of revenue administration and includes a town or city and all the land comprised within the limits of a village, town or city.”

Sections 4, 5 and 6 of the Act which, inter alia, provides for division of the area of the State into villages and towns and the procedure for their alternation and for forming new village read :-

..........

As can be seen from these sections, the power to form a new village is vested in the State Government. Section 6 prescribes the mandatory procedure for declaring/forming a new village i.e. proposal should be published, objections should be invited and objections received to the proposal should be considered while taking a final decision. In the grounds though the petitioners have pleaded that the provisions of the Land Revenue Act were not complied with, Ss. 4, 5 and 6 are not relied upon. When the Sections were noticed at the time of hearing, the learned Counsel for the petitioners admitted that it was a lapse on his part in not specifically relying on these three Sections and in particular on Section 6. In the circumstances, we asked the learned Counsel for the respondents to make their submissions with reference to Section 6 of the Act. The learned Counsel could not and did not say that S. 6 would not be attracted even if by the impugned order a new village/township was being brought into existence. Their argument, however, was that the modified proposal would not amount to formation of a new township. As found by us earlier on the basis of the material on record, the Government by granting approval to the modified proposal has permitted the formation of New Township and therefore it is liable to be struck down, for not following the mandatory procedure prescribed under S. 6 of the Act.


17. (i) It is significant to note that the impugned order does not even purport to be a notification u/S. 5 of the Act and it does not say under what provision of law the order was made. The Government could not do so because there is no provision of law under which the Government could pass the impugned order.

(ii) Moreover, in the judgement rendered by the learned Judge on the Writ Petition filed by the Water Board, this Court had emphatically laid down that, establishing of a township after following the mandatory provisions of the Land Revenue Act, was a condition precedent for invoking S. 95 of the Act. Despite this clear law laid down by this Court to which the Government was also a party, the State Government has flouted the decision of this Court, and has passed the impugned order. It is a settled position in law that flouting the law declared by the High Court or the Supreme Court, is more injurious to rule of law, than even disobedience of a specified order by the person to whom It is directed. On this aspect, the Supreme Court in the case of Barada Kanta Mishra Vs. B. Dixit, AIR 1972 SC 2466 has observed as follows (at p. 2469 of AIR):


“...... Just as the disobedience to a specified order of the Court under-mines the authority and dignity of the Court in a particular case, similarly any deliberate and mala fide conduct of not following the law laid down in the previous decision undermines the constitutional authority and respect of the High Court. Indeed, while the former conduct has repercussions on an individual case and on limited number of persons, the later conduct has a much wider and more disastrous impact. It is calculated not only to undermine the constitutional authority and respect of the High Court generally, but is also likely to subvert the Rule of law and engender harassing uncertainty and confusion in the administration of law”


18. In the present case the government has done both. it has flouted the order made in the case to which it and the Special Deputy Commissioner, Bangalore were parties by directing that orders which were quashed shall continue. It has also flouted the law declared by this Court to the effect that establishment of a Township after following the mandatory provisions of the Land Revenue Act was a condition precedent for fhe exercise of power under S. 95 of the Act. It is the deliberate and arbitrary action which has pained us most.

19. For the aforesaid reasons, we answer the third question also in favour of the petitioners. However, the glaring fact that the Government has thrown away the mandatory provisions of the Land Revenue Act including the orders of this Court, in which the mandatory requirements of the Law for establishing a new Township were expounded to the winds, raises an important question relating to the functioning of our Constitutional system viz. whither we are leading to?

20. We shall now consider the fourth and the fifth contentions urged by the learned counsel for the petitioners. Elaborating the fourth contention, the learned counsel for the petitioners submitted as follows:-

The injurious effect of the bringing into existence of the new township near Thippagundanahalli reservoir would be two fold; (1) depletion of water supply to the City of Bangalore as a consequence of the establishment of the 270 houses and the living of population of at least about 2000-3000 who have to depend for their water either on the Arkavati river or they have to draw water from the open or bore wells to be dug by them. As a consequence there will be depletion of water in the river. By drawing underground water from lower levels, the flow in the river gets adversely affected and there will be short supply of water to the reservoir. As far as this points concerned, they rely upon the statement filed by the Water Board in the earlier order the relevant portion of which is submitted in the Judgement in BWSSB Vs. Chandra (AIR 1989 Kant I atp. 4) of this Court. It reads:

.......The specific case of the Board/s that by reason of the establishment of a township on the Banks of the river Arkavathi close to T. G. Halli reservoir the water will be polluted and it will also be depleted as bore wells are proposed to be drilled in the area over which new township is proposed. Consequently the quality and quantity of water supply to Ban galore City will be adversely affected. The further case of the Board is that it is statutorily bound to supply water not only free from pollution but it is also bound to ensure sufficient supply of water to the residents of Ban galore; that in order to fulfill these statutory obligations, it is necessary for the Board to see that the source of water supply to T. G. Halli Reservoir is not affected in any manner that as the Arkavathi river is the main source of water to T. G. Halli Reservoir and as it/s going to be polluted by reason of establishment of a township on the Banks of Arkavathi river, the Board is adversely affected by the permission granted or deemed to have been granted to respondent-I in each one of these petitions.”

From the above paragraph, it is clear, the Water Board which is the statutory authority for supply of water to the City had taken the stand that the bringing into existence of a township in the locality results in depletion of water to the reservoir and consequently depletion of water supply to the City of Bangalore. In the statement of objections filed on behalf of the State and the 4th respondent no doubt the allegation is denied. But it should be pointed out that the Water Board who filed earlier writ petition and succeeded, is a party respondent to these petitions and it has not filed any statement of objection. The learned Counsel for the petitioners submitted that the Water Board has not given consent for even the new colony and actually they were opposed to it, but as a decision has been taken by the State Government at the highest level to accord permission for the new colony, the Board is feeling helpless and thereby keeping quiet without placing and facts before this Court.


21. Having regard to the stand taken by the Water Board in the earlier case, it appears to us, the silence of the Board in not filing the statement is more eloquent. Their silence means they accept the case put forward by the petitioner. As the Water Board is the authority who is in possession of all the correct facts and it is silent, we have to proceed on the basis that the plea of the petitioner that there is bound to be depletion of water supply to the City of Bangalore, as result of bringing into existence of the new township in the vicinity of Thippagondanahalli reserv is true. Further, it may be seen from the impugned order, the Government has not at all discussed the question raised by the Water Board i.e., that by the coming into existence of a new Township there would be depletion of water in the river and reservoir. In the circumstances, we have gone through the original records produced by the learned Advocate General. The records disclose that before taking decision a Committee was constituted by the Government under the Chairmanship of S. Hanumantha Rao to consider the feasibility of according permission to the modified plan. Before the Committee the Water Board has expressed its opinion, which is extracted in the report of the Committee. It reads:

The views of the BWS & SB and the DLF were also obtained at the meetings held. The main objection of BWS & SB to the proposed development were as follows:



(1) It would be humanly impossible to prevent the effluents from the septic tank after disposal on land for gardening, percolation in view of continuous application of effluents on the limited land at the disposal of the society.

(2) When a township is formed, it is likely that slums will come tip the vicinity of the Township which will also be a source of contamination. This cannot be prevented as necessary amenities are not provided by the Township to these slum dewilers.


(3) The growth of the Township cannot be restricted and the Sub division of the plots also cannot be prevented. These will naturally increase the effluents and the possibilities of polluting the River cannot be ruled out.

(4) The T. G. Halli Reservoir is one of the sources of water supply to Bangalore city covering a large population in the northern parts of the City and during acute scarcity condition of water supply any contamination of T.G. Halli Reseivoir would further worsen the city water supply.’

This opinion was given in June, 1986 as the report was prepared in June, 1986 (found at p. 87 of the records). Thus it may be seen even with reference to the modified proposal the Board expressed against according permission. The Committee however made the following recommendation:



(1) “Finally, after detailed deliberations on the issues mentioned above, the recommendations of the committee are as follows:-

(2) That the development on the southern side in plots of not less than I acre restricting the total number of plots to 139 Nos. with the stipulation that each plot shall not have more than one house may be considered.

(3) The appropriate authorities may insist on correctly designed septic tanks followed by anaerobic contract filters and dispersion system like soak pits, absorption trenches and got corn plied with.

(4) Open shallow test wells of 3 to 4 Nos. may be constructed immediately adjoining the proposed development of monitor the leachings from underground sources to observe the quality of the ground water.


(5) That the proposed development should consist of only the number of plots as per para 1 and should not include any further development in future.

(6) The northern development of houses is not favoured by the committee on account of the terrain and the location lay-out as now proposed and any decision to be taken on the development on the northern side may be deferred till the development on the southern side completed and closely observed.

(7) On the question of sub division of the plots at a later stage and any development that may take place consequently, other statutory authorities may look into and appropriate action may be taken, as this is strictly beyond the terms of reference to this committee.”

But the fact remains the Water Board opposed the grant of permission and its specific stand was that there would be depletion of water is not contradicted in the report and the committee considered only from the pollution point of view, as it was constituted only to consider the pollution aspect.


22. Again after the judgement of the learned Judge, Chairman of the Water Board addressed a letter to the Secretary to Government, Urban Development Department on 1-6-87. In the first paragraph of the letter the chairman mid as follows:

“The Thippagondanahally reservoir constructed across the River Arkaathi was supplying drinking water to rho city of Ban galore till the implementation of the Cauvery Water Supply Scheme in the year 1975. Even now, this reservoir is supplying water to the 40% of the area, as the supply from the River Cauvery is wholly inadequate to meet the City needs. This reservoir was constructed and commissioned in the year 1983 and it is under the control of the Bangalore Water Supply & Sewerage Board from the year 1964 after formation of the Board. Though the lake, and the appertain thereto, all the pipelines come under the control of the Board, the catchment area is beyond its control.”


23. Thereafter, the Chairman referred to the plans of the Society for formation of township and the filing of the W.P. by the Board and the decision given by this Court in the W.P. The Chairman concluded the letter as follows

..............



Thus t may be seen, the Water Board, the Statutory Authority constituted under an Act of legislative for securing water supply to the city was totally against any township or conversion of land in the Iocal Further, it was of the view that up to a distance of 5 miles (8 kilometres) from the foreshore of Thippagondanahalli reservoir no township should be permitted. But the impugned order permits Township at a distance of two Kilometres. Therefore, we find considerable force in the contention of the petitioners that no permission should have been accorded to the 2nd respondent to form a new townshjp on the 414 acres of land in question, consisting of 270 country villas, which would serve private interests and which carries with it considerable risk to public interest as depletion of drinking water supply of the City would certainly occur, whatever be its extent.

24. As far as the pollution aspect is concerned, respondents 1 to 3 pointed out that number of houses were drastically reduced from 700 to 270 and further the earlier plan of having a centralised underground sewerage system has been given up and separate septic tanks have been provided for to each of the houses, in accordance with the ISI, standard, and therefore there would be no chance of any pollution of water in the river. Further, the 4th respondent has plans to plant trees and convert the area into a green belt, which would improve the environment and rainfall. They also pointed out that the Pollution Control Board has after due consideration given clearance imposing stringent conditions which have been incorporated in the impugned order.


25. The material placed before us indicate that the Government has applied its mind to the water pollution aspect and’ has imposed conditions to ensure protection against pollution. Learned counsel for the petitioner, however, submitted that the decision on the pollution aspect was arbitrary and not on a thorough study of all aspects relating to pollution. On this point, learned counsel for the petitioner submitted that the Cabinet Sub-Committee constituted for the purpose had decided on 8-7-1987 to refer the matter to National Environmental Engineering Research Institute, Nagpur (NEERI) for its opinion but it was given up and it secured the consent of the State Pollution Control Board and passed the impugned order. Learned Counsel for the 1st and 4th respondents submitted that the Director and Scientist of NEERI visited T.G. Halli in July, August, 1988, and thereafter as by letter 22-8- 1988 they wanted 18 months to study and Rs. 20 lakhs for that purpose and they wanted to inake a study at all other sources of water supply to the City, taking their opinion was considered impracticable and unnecessary.




Share with your friends:
1   ...   23   24   25   26   27   28   29   30   ...   54


The database is protected by copyright ©hestories.info 2019
send message

    Main page