26.In our opinion, both on the question of depletion of water as also pollution aspect, it is unnecessary for us to pursue the matter as in our opinion, these are matters with reference to which the petitioners and others are entitled to put forward their views of and when Government proposes to establish a new Township and invites objection to such proposal as required under S. 6 of the Land Revenue Act. When such a proposal is published the public are entitled to oppose on any ground. Therefore, we do not consider it necessary to pronounce upon this contention.
27. As part of the fourth contention the lerned counsel for the petitioners submitted that:
(i) the magnitude of violation of law;
(ii) the nullifying of the order of this Court;
(iii) flouting of the law declared by this Court;
indulgence by the State Government in passing the impugned order coupled with the circumstance that all this has been done not for any public purpose, but only to benefit the 4th respondent in its commercial venture, and a few affluent individuals who alone would be in a position to purchase sites of note less than one acre in extent and construct villas, are sufficient to prove that the impugned order has been made on collateral consideration, namely, the influence brought to bear, on the Government by the 4th respondent. As we have come to the conclusion, that what the Government has done is wholly illegal and therefore the impugned order is liable to be set aside, which is the relief sought for in the petitions, we consider it unnecessary to decide as to why the Government had done so.
28. As regards the various conditiods imposed in the impugned Government Order calling upon the 4th respondent to impose those conditions in the documents by which the different plots would be sold to different individuals, the learned counsel submitted that those would be conditions which would be binding interprets and was not sufficient to protect the interest of the general public. The learned Counsel submitted that the only way of ensuring that public interest is not adversely affected; even if the township is brought into existence in such a locality was that the conditions should be statutorily imposed either under the Planning Act or under any other special law and unless such conditions are imposed by law, the conditions in the order or in the sale deeds between the 4th respondent and the purchasers, would be of no consequence. We see considerable force in the contention, but again it is unnecessary for us to examine the same in detail, for the reason, the impugned order is liable to be quashed on the first three contentions urged by the learned Counsel for the petitioners.
29. Sri Ashok Desai, learned counsel for the 4th respondent questioned the locus standi of the petitioners to challenge.the legality of the order of the Government in sq far as it relates of S. 95 of the Land Revenue Act. The learned counsel did not dispute that the petitioners being residents of the City of Bangalore are vitally interested in ensuring that water in Thippagondanahalli was neither depleted nor polluted and therefore they were entitled to question the legality of the order. But he submitted they could do so only on the ground of depletion or pollution, but, they had no right to challenge the legality of the order on other grounds. In support of this, the learned counsel relied on the Judgment of the Supreme Court in (S.N. Rao Vs. State of Maharashtra, AIR 1988 SC 712) in which the Supreme Court at paragraph 19 has said thus :-
“19. The above ground of challenge to the order of exemption granted to respondent have all been Considered by the High Court in its judgment disposing of the review applications. The petitioners have not challenged the judgment on review applications. The petitioners are only interested in seeing that sufficient area is kept reserved for a park or recreation ground for the benefit of the members of the public. They are not, in our opinion concerned with the question as to the legality or otherwise of the exemption granted by the Government to respondent-5 under the Urban Land Ceiling Act.”
Relying on the above observations the learned counsel for respondent-4 submitted that just as a member of the public has the locus standi for raising the question of environmental pollution but had no locus standi to challenge the exemption given to an individual from the provisions of the Urban Land Ceiling Act, petitioner cannot challenge the orders granting permission for the use of agricultural lands in question for constructing residential houses. He also relied on the Judgement of the Supreme Court in J.M. Desai Vs. Roshan Kumar, AIR 1976 SC 578 in support of the submission that the petitioners have no locus standi.
30. We find no merit in the objection. The ratio of the aforesaid decisions is not apposite. in this case. It is now well settled that water is one of the essential requirement for enjoyment of life and therefore covered by the fundamental right under Article 21. Any argument of that right gives a person cause of action as held by the Supreme Court in Subhash Kumar Vs. State of Bihar (1991) 1 SCC 598: (AIR 1991 Sc 420). When it is contended that the petitioners being the resident of the City of Bangalore are vitally interested in ensuring that the water at Thippagondanahalli Reservoir is neither depleted nor polluted and it is their case that the granting permission for formation of a Township nearby coupled with the grant of permission for conversion of agricultural land for construction of as many as 270 houses, would affect the .quality and quantity of water to the City of Bangalore, it cannot be said that the petitioners have no locus standi to challenge the legality of the impugned order on the ground of violation of Sections 6 and 95 of the Land Revenue Act. Further, the petitioners is also entitled to challenge the legality of the order, on the ground that the writ issued by this Court on the petition filed by the Water Board, which ensures to the benefit of the residents of Bangalore, has been sent at naught in the impugned order and thereby Rule of Law is sought to be destroyed. If by any Governmental decision, the magnitude of illegality committed is such as would endanger the faith of the people in Rule of Law, which is a basic structure of our Constitution, it gives a cause of action to a citizen of the State concerned to challenge the legality of such a decision before this Court under Article 226.........
31. It was also contended by the learned Counsel for the respondents that the petitions have been presented with political motive. Elaborating his contention, the learned counsel stated that the petitioner in W.P. No. 2285/1992 and the first petitioner in W.P. No. 23470/1991 were Ministers in the previous regime, when the revised proposal was submitted and they had no objection for the proposal and now they were challenging just because the orders were passed by the present Government. The learned Counsel also submitted that the petitioner in W.P. No. 2285/1982 was also a member of the Sub-Committee constituted for the purpose of examining the revised proposal which had recommended in favour of the proposal and this establishes his lack of bona fides.........
33. After hearing the learned Counsel on both sides, on the point, we find that the allegation of want of bona fides or political move, against the petitioner in W.P. No. 2285/1 992 and the first petitioner in W.P. No. 23470/1991 is without any basis. Having regard to their long record of public service, there is nothing unusual, in their fighting for a cause of such great public importance concerning water, a basic need of the residents of the City. We are satisfied that these two petitioners as well as the other four petitioners have all approached this Court espousing the said public cause. In fact, the trouble taken by them in espousing such a public cause and exposing the arbitrary Governmental action of nullifying the writ issued by this Court, should be commended and not condemned ........
34. The next contention of the petitioners is based on Sections 79-A and 79-B of the Land Reforms Act. Section 79-A of the Act which came into force with effect from 1-3-1974, prohibited purchase of Agricultural Lands by those who were having non-agricultural income of more than Rs. 12000/- and if purchased such purchase shall be null and void and such land shall be forfeited to the Government.
35. The learned Counsel for the 2nd respondent submitted that the purchase by every one of the 42 persons of different bits of lands in question was prior to 1st March 1974, on which date Section 79-A came into force. Though this statement has been specifically made in the statement of objections, the petitioners are not in a position to state anything to the contrary. Therefore, we have to hold that there has been no violation of Section 79A of the Act.
36. The next submission of the learned Counsel for the petitioners was, purchases by Respondent 4, which were on dates subsequent to 1-3-1974 were void.
Section 79-B of the Act reads:
79-B. Prohibition of holding agricultural land by certain persons:
(1) With effect on and from the date of commencement of the Amendment Act, except as otherwise provided in this Act.
(a) no person other than a person cultivating and personally shall be entitled to hold land; and it shall not be lawful for; (i) an educational, religious or charitable institution or society or trust referred to in sub-section (7) of Section 63, capable of ho/ding property; (ii) a company; (iii) an association or other body of individuals not being a joint family, whether incorporated or not; or
(iv) a co-operative society other than a co-operative farm, to hold any land.
(2) Every such institution, society, trust, company, association, body or cooperative society -
(a) Which holds lands on the date of commencement of the Amendment Act and which is disentitled to hold lands under sub-section(1), shall, within ninety days from the said date, furnish to the Tahsildar within whose jurisdiction the greater part of such land is situated a declaration containing the particulars of such land and such other particulars as may be prescribed; and
(b) Which acquires such land after the said date shall also furnish a similar declaration within the prescribed period.
(3) The Tahsildar shall, on receipt of the declaration under sub-section(2) and after such enquiry as maybe prescribed particulars relating to such land to the Deputy Commissioner who shall, by notification declare that such land shall vest in the State Government free from all encumbrances and take possession thereof in the prescribed manner.”
Relying on the above Section learned Counsel submitted that the purchase of 414 acres of agricultural land by the 2nd respondent was void and the Revenue Officer ought to have taken steps for the forfeiture of the land to the Government in which event question of granting permission to the 2nd respondent does not arise.
37. Learned Counsel for the 2nd respondent per contra submitted that the 2nd respondent purchased the lands in question only after the Deputy Commissioner had accorded conversion for non-agricultural land and therefore the provisions of S.79-B of the Act was not attracted.
38. On fact, the petitioners have not disputed that the lands were purchased after the Special Deputy Commissioner had accorded permission under Section 95 of the Act and before the said orders were quashed by this Court. The learned Counsel for the petitioners, however, submitted once the order granting conversion for non-agricultural use was set aside, the status of the land became that of agricultural land even as on the date of purchase and therefore the revenue officers were bound to take action as provided in Section 79-B of the Act.
39. There is considerable force in the submission. Obviously this must be the reason for securing an order from the Government that permission continues, so that the 2nd respondent could take the stand that Section 79B is not attracted. But as held earlier once the orders according permission for conversion were quashed, and it became final, it can no longer be contended that the lands were non-agricultural lands. Though the impugned order purports to continue the permission as held by us it is invalid, as Government has no power to nullify the order of this Court. However, we are of the view the order based on Section 79B, for forfeiting the lands to the Government is not germane to this petition.
40. To sum up, our conclusions are:-
(1) The impugned order is arbitrary and high handed, as by the impugned order, the Government has directed that the very orders of the Deputy Commissioner which were quashed by this Court shall continue.
(2) Even on the basis that by the impugned order the Government accorded fresh permission for conversion of 414 acres of land for non-agricultural use the same is without the authority of law as that power is conferred on the Deputy Commissioner under Section 95 of the Act.
(3) By the impugned order, in truth and in substance the Government has permitted the coming into existence a new village and as the mandatory procedure prescribed under Section 6 of the Land Revenue Act has not been followed, it is liable to be set aside.
41. At paragraph 18 of this order we have strongly deprecated the action of the Government in nuIlifyin the orders passed by this Court quashing the order of the Special Deputy Commissioner and we have said that this one ground is sufficient to allow the writ petition with exemplary costs. At paragraph 17 we have also pointed out the disastrous effect of the Government flouting the law declared by this Court to the effect that formation of a new Township after following the mandatory procedure prescribed under the Land Revenue Act was condition precedent for the exercise of the power under Section 95 of the Act. Ordinarily we do not award costs in Writ Petition. But these are extraordinary cases justifying the award of exemplary costs. There has been one such precedent. On an earlier occasion, when orders passed by a Division Bench of this Court were not nullified by the persons who failed before this Court by approaching Inams Abolition Deputy Commissioner praying for occupancy rights for the very lands which had been rejected, this Court imposed Rs. 10,000/- as exemplary costs. This order was confirmed by a Division Bench of this Court in Writ Appeal and Special Leave Petitions filed before the Supreme Court were rejected. What happened in that case is set out in the judgement of this Court in Dharmarayaswamy Tempbe Vs. Chinnathayappa, ILR (1990) Kant 4242 at p. 4258 para 3........
We are constrained to say that this is a much more glaring case because by the impugned order not only the order of this Court is nullified but also the law declared by this Court is flouted. Further, the aggravating circumstance in this case is the Government was moved to issue an order for the continuance of the permission granted in 1979-82 for residential use of the agricultural land in question, notwithstanding the order passed by this Court quashing them, not by any ignorant individual, but by the 4th respondent, a Company registered under the Companies Act and the order is passed by the Government and not by any Subordinate Officer. The result is the order of this Court is nullified by an executive order and thereby authority and dignity of this Court is undermined and the rule of law is defeated. Therefore, we are of the view that there is every justification to impose exemplary costs and imposed in those cases.
42. In the result, we make the following order:
(i) Writ Petition are allowed with exemplary costs of Rs. 10,000/- in each of the petitions payable to the petitioners by the State Government and the DLF Universal Ltd. in equal proportion.
(ii) The impugned order of the Government dated 29-6-1991 is set aside.
D. D. Vyas v. Ghaziabad Development Authority, Ghaziabad
AIR 1993 Allahabad 57
Om Prakash and M. Kantju, JJ.
Om Prakash, J.:- This writ petition is an apt example as to how the statutory object to secure preservation of environment and development of the residential colonies shown in the master plan, sought to be achieved by the State of Uttar Pradesh under the U.P. Urban Planning and Development Act, 1973 ('the Act' briefly) is defeated by the authorities, who lack dynamism, aestheticism and enthusiasm for development, though assigned the development duties.
2. The Act, and the preamble shows, was enacted to provide for the development of certain areas of Uttar Pradesh according to plan and for matters ancillary thereto. The growth in Uttar Pradesh before this enactment was quite haphazard and, therefore, the Government felt that in the developing areas of the State of Uttar Pradesh the problems of town planning and urban development need to be tackled resolutely. As existing local bodies and other authorities in spite of their best efforts were inadequate to cope with these problems to the desired extent, the State Government in order to bring about improvement in the hopeless situation considered it advisable that in such developing areas Development Authorities patterned on the Delhi Development Authority, which was then a model Authority, be established. This is how on the pattern of Delhi Development Authority, the Ghaziabad Development Authority (for short, 'the G.D.A.'), a statutory body, was set up under the Act, Section 7 of the Act, states that the object of the Authority shall be to promote and secure the development of the development area according to plan and for that purpose the Authority shall have the power to do all that what is necessary or expedient for a purpose of such development and for purpose incidental thereto. Section 8(1) of the Act says that the Authority shall, as soon as may be, prepare a master plan for the development area, Section 8(2)(a) mandates that the master plan shall define the various zones into which the development area may be divided for the purposes of development and indicate the manner in which the land in each zone is proposed to be used. Sub-section (3) of Section 8 states that the master plan may provide for any other matter which may be necessary for the proper development of the development area. Section 9(1) enjoins upon the authority to proceed with the preparation of a zonal development plan for each of the zones into which the development area may be divided simultaneously with the preparation of the master plan or at the earliest thereafter. Section 9(2) describes all that which a zonal development plan may contain. Every plan immediately after its preparation shall be submitted by the authority to the State Government for approval under Section 10(2) and the concerned Government may either approve that with or without modification or reject the same directing the authorities to prepare a fresh plan.
3. In exercise of such powers, the G.D.A. prepared a plan of sector Raj Nagar, Ghaziabad, a copy of which is placed on record as annexure “1” to the writ petition. The said plan refers to proposed public buildings, residential houses and plots of land for the citizens amenities and civic amenities, open spaces including an open space, namely, Adu Park, earmarked for public park, a small plan of which is annexed to the writ petition as annexure “1-A”.
4. The short grievance of the petitioners, who belong to the same locality where the open space, namely, Adu Park, as situated in Raj Nagar section, is that though the said area was earmarked for being developed as a public park, but the G.D.A. has taken no steps so far whatsoever to develop the same as a public park. Not only that, the contention of the petitioners is that the respondents are marking time to carve out plots on such open space dedicated for public park in the plan and alienate the same with a view to earning huge profits. It is averred that the G.D.A. cannot alter the plan, duly approved by the State Government, to the detriment of public at large. Once the open space, namely, Adu Park, in Raj Nagar sector is dedicated for public park, the petitioners contend that the respondents cannot keep Adu Park undeveloped for unduly long period with the sinister motive to convert that either wholly or partially into plots of land for being sold at exorbitant rates later depriving the public of the benefit of a park, for which the open space was earmarked. It is contended that the petitioners approached the respondents several times requesting them to expedite development of the area, namely, Adu Park, but their efforts failed. Apprehending that the respondents would never develop Adu Park as a park for the benefit of the public since their goal is to carve out plots and transfer them with profit earning motive, the hapless petitioners have approached this Court by means of this petition praying:
(i) that the respondents be restrained from using the open space, namely, Adu Park, earmarked for the purpose of a public park under the master plan in any other manner except the park for the benefit of the general public;
(ii) that the respondents be restrained from plotting any portion of the Adu Park or alienating the same in any manner whatsoever;
(iii) that the respondents be directed to produce the lay out/blue prints, if any prepared, for developing the Adu Park as park or any other record relating to development activities contemplated/ undertaken by them for developing the Adu Park as park; and
(iv) that a writ in the nature of mandamus be issued directing the respondents to complete the entire development process of the Adu Park to make it as a park within a reasonable time.
5. By order dated 16-9-1991, Sri Shitla Prasad, Counsel for the respondents, was given one month's time, as prayed by him, to file counter-affidavit clearly stating as to what steps the respondent have taken for the development of Adu Park as per the master plan lay out. No counter-affidavit has been filed, though five months have gone. The case was listed for hearing on 18-2-1992. Sri Shitla Prasad then prayed that the case be taken up the next following day for his arguments, which he wanted to make after seeking instructions from the respondents. Sri Shitla Prasad then argued the matter on 19-2-1992, though no counter-affidavit was filed.
6. No counter-affidavit having been filed, the averments of the petitioners that the open space, namely, Adu Park, as shown in the plans (Annexures “1” and “1-A” to the petition) was earmarked for development of a public park, that no steps whatsoever have been taken so far by the respondents to develop the said area as a park for the benefit of general public and that the said plan (Annexure “1” to the petition) was duly approved by the State Government under Section10(2) of the Act, remain uncontroverted.
7. In the course of his argument Sri Shitla Prasad, learned counsel for the respondents, could not assail the fact that the open space, namely, Adu Park as shown in the plan (Annexure “1” to the petition), was earmarked for a public park. Also he did not assert that any steps for development of the said area were ever contemplated or undertaken by the respondents and that any lay out/blue print was ever prepared by the respondents in connection with the development of the Adu Park as a park. His only submission is that the G.D.A. is empowered to amend the master plan or zonal development plan under Section13(1) of the Act, 1973, and therefore, no mandamus, as prayed by the petitioners that the respondents be directed to complete the development process of Adu Park within a reasonable time can issue, as the respondents are at liberty to amend the plan and to use the open space, namely, the Adu Park, initially earmarked for a public park in the plan, for any other purpose. We will take up this submission later.