Bangalore Medical Trust v. B. S. Muddappa

Niyamavedi v. State of Kerala


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Niyamavedi v. State of Kerala

AIR 1993 Kerala 262

O.P. Nos. 752 and 2865 of 1992-N and 9741 and 8905 of 1992-I, D/-16-3-1993

M.M. Pareed Pillay, J.

(A) Forest Conservation Act (69 of 1980), S. 2 - Biological park - Establishment of - Disputed area was highly degraded forest - Essential idea of project is conservation of flora and fauna of western ghats of Kerala and development area into model biological park - Fact that wildlife tourism was also one of objectives of Biological Park - Not sufficient to term whole scheme as intended to promote tourism to detriment of very existence of natural forest in region.

Forests - Establishment of biological park - Wildlife tourism one of the objective - Not sufficient to term whole scheme as intended to promote tourism.

Biological Park - One of objective and wildlife tourism - Scheme not in valid on that ground.

Ecology - Establishment of Biological Park - One of objective was wildlife tourism - Would not make it invalid.

(Paras 11, 12)

(B) Land Acquisition Act (1 of 1894), Ss. 4, 6 - Public purpose - Establishment of biological park in forests by Govt. - Acquisition of nearby land of petitioners for construction of administrative office and staff quarters - Was for public purpose - No colorable exercise of power - Acquisition proceedings cannot be quashed.

Constitution of India, Art. 14

(Para 22)

(C) Constitution of India, Art. 226 - Govt. policy - Interference - Establishment of biological park - Policy decision by State Govt. on consideration of opinion of experts and scientists - No infringement of any statute or constitutional provisions - No interference.

Biological Park - Establishment - Policy decision by Govt. - Not interference.

Forests - Establishment of Biological Park - Policy decision of Govt. - No interference.

(Paras 26, 27, 30)

P. A. Jacob v. The Superintendent of Police, Kottayam

AIR 1993 Kerala 1

O.P. No. 10459 of 1991 – T, D/27-7-1992

Chettur Sankaran Nair, J.

(A) Constitution of India, Art. 19(1)(a) – Freedom of speech – Does not include freedom to use loud speakers or sound amplifiers.

AIR 1963 Guj 259, Dissented from.

Use of loud speakers – Is not a fundamental right.

Freedom of speech – Does not include use of loud speakers.

The right to speech implies, the right to silence. It implies freedom, not to listen, and not to be forced to listen. The right comprehends freedom to be free from what one desires to be free from. Free speech is not to be treated as a promise to everyone with opinions and beliefs, to gather at any place and at any time and express their views in any manner. The right is subordinate to peace and order. A person can decline to read a publication, or switch off a radio or a television set. But, he cannot prevent the sound from a loud speaker reaching him. He could be forced to hear what, he wishes not, to hear. That will be an invasion of his right to be let alone, to hear what he wants to hear, or not to hear, what he does not wish to hear. One may put his mind or hearing to his own uses, but not that of another. No one has a right to trespass on the mind or ear of another and commit auricular or visual aggression. A loud speaker is a mechanical device, and it has no mind or thought process in it. Recognition of the right of speech or expression is recognition accorded to a human faculty. A right belongs to human personality, and not to a mechanical device. One may put his faculties to reasonable uses. But, he cannot put his machines to any use he likes. He cannot use his machines to injure others. Intervention with a machine, is not intervention with, or invasion of a human faculty or right. No mechanical device can be upgraded to a human faculty. A computer or a robot cannot be conceded the rights under Art. 19 (though they may be useful to man to express his faculties). No more, a loud speaker. The use of a loud speaker may be incidental to the exercise of the right. But, its use is not a matter of right, or part of the right.

(Paras 11, 12, 17, 22)

(B) Constitution of India, Art. 14 – Public meeting – Grant of permission to hold, with use of loud speakers – Cancellation, in absence of any valid ground – Is arbitrary.

Kerala Police Act (5 of 1961), Ss. 19, 23.

Criminal P.C. (2 of 1974), S. 133

By reason of Art 14, the State and its agencies cannot act arbitrarily. They must adhere to fair play in action. For instance, even when a person may not have a fundamental right to enter into a contract with the State, the State cannot act arbitrarily in the matter of awarding a contract. Likewise, in the matter of denying the use of a loud speaker, Police cannot act arbitrarily. All State action is amenable to Art. 14. If the authority charged with the power to regulate use of loud speakers under the Kerala Police Act, acts beyond the authority law confers upon him, his action is liable to be interdicted.

(Para 26)

Where Sub-Inspector of Police had granted permission to the petitioner to hold public meeting with use of loud speaker but withdrew the permission later, apprehending that holding of meeting with use of loud speaker would lead to law and order situation, the cancellation of the permission would be arbitrary in the absence of any valid ground. While petitioner had no fundamental right to use a loud speaker, he would be free to avail of the amenity of using a loud speaker in a reasonable manner.

(Para 27)

(C) Constitution of India, Art. 21 – Right to life – Public meeting – Use of loud speaker – Exposure of unwilling persons to dangerous and disastrous levels of noise – Amounts to infringement of right to life.

Right to life - Noise pollution – Exposure of unwilling persons to dangerous and disastrous levels of noise – Infringes right to life.

Compulsory exposure of unwilling persons to dangerous and disastrous levels of noise, would amount to a clear infringement of their constitutional guarantee of right to life under Art. 21. Right to life, comprehends right to a safe environment, including safe air quality, safe from noise.

(Para 24)

Apart from the right to be let alone, freedom from aural aggression – Art. 21 guarantees freedom from tormenting sounds. What is negatively the right to be let alone, is positively the right to be free from noise. Exposure to high noise, is a known risk and it is proved to cause bio-chemical changes in man, elevating levels of blood catecholamine, cholesterol, white cell counts and lymphocytes. Noise causes contraction of the flexor muscles of the limbs and the spine, and is reckoned as an environmental stress that could lead to non-specific health disorders. Exposure to high noise in every day life may contribute to eventual loss of hearing (socioacusis), and this in turn can affect speech communication. Vasoconstriction or vasodilation of blood vessels also is induced by high levels of noise during acute exposures (Rosecrans et al (1966). Complaints of nystagmus (rapid involuntary side to side movements), Vertigo (Dizziness) and balance problems have also been reported due to noise exposure.

(Para 23)

People United for Better Living in Calcutta v. State of West Bengal

AIR 1993 Calcutta 215

Matter No. 2851 of 1992, D/-24-9-1992

Umesh Chandra Banerjee, J.

(A) Constitution of India, Art. 226 – Environment and development – Court should strike balance, so that both co-exist.

Environment – Protection of – Court’s duty is to find balance between development program and environment.

Developing countries – Balance between environment and development – Court’s duty to find.

(B) Constitution of India, Art. 226 – Environment – Wetland – Importance of and part played in proper maintenance of environmental equilibrium – Reclamation of wetland – Injunction against granted in facts and circumstances of instant case.

Wetland – Importance in maintenance of environmental equilibrium and necessity to preserve Environment – Wetland – Importance of.

Salehbhai Mulla Mohmadali v. State of Gujarat

AIR 1993 Supreme Court 335 (From: Gujarat)

Civil Appeal No. 1865 of 1975, D/-25-10-1991

B.C. Ray and N.M. Kasliwal, JJ.

(A) Forest Act (16 of 1927), Ss. 4, 30 – Felling of trees – Permission – Sale of land by Jagirdars to Contractor – Merger of State – Declaration of Reserve Forest – Trees, on land were part of reserve forest as declared under Forest Rules of erstwhile State – No evidence to show that Jagirdars were cutting such trees – Jagirdars could not be said to have given better title to Contractor than they possess – Trees in question were teak and mahuda trees prohibited from being cut – Claim for cutting and removing trees by Contractor – Not sustainable.

(B) Constitution of India, Arts. 14, 133 – Discrimination – Plea of – Not taken in plaint nor any facts or material were placed on record during trial of suit or before High Court – Cannot be considered by Supreme Court for first time in appeal specially when defendants were not given any opportunity to meet the same.

Shaibya Shukla v. State of Uttar Pradesh

AIR 1993 Allahabad 171

Writ Petition No. 978 of 1991, D/-13-3-1992

S. Saghir Ahmad and H.N. Tilhari, JJ.

Constitution of India, Arts. 21, 47, 48, 37 and 51-A - Right to life - Auction of chemically treated soyabean, unfit for human consumption, for sale in general and not to particular individuals who deal in such chemically treated article – Auction offer to intended purchasers only on basis of higher bid by them – Tender notice as well as auction invalid been violative of Arts. 21, 47, 48, and 51-A of Constitution.

Right to life - Auction of chemically treated article, unfit for human consumption, for sale in general and not to particular individuals, who deal in such chemically treated article – violative of Arts. 21, 47 and 48 of Constitution.

Smt. Satyavani v. A.P. Pollution Control Board

AIR 1993 Andhra Pradesh 257

Writ Petition No. 13062 of 1992, D/-6-4-1993

Sivaraman Nair and Ms. S.V. Maruhti, JJ.

(A) Constitution of India, Arts. 19, 48A, 51A(g) – Scope – Establishment of meat processing unit – Grant of letters of intent and licence by Central Govt., State Govt. and Pollution Control Board after taking into account relevant considerations – Sentimental aversion of a group of persons regarding environment pollution cannot be only criterion to judge correctness of decisions affecting fundamental rights of others – Possible violation of Act – Not a ground for depriving fundamental rights of persons engaged in said business.

Food processing – Establishment of meat processing unit – Grant of licence – Possible violation of Act – Not a ground to deprive fundamental right of persons engaged in said business.

Environment – Pollution – Establishment of meat processing unit – Grant of licence – Possible violation of Act – Effect.

AIR 1958 SC 731, Foll.

(Paras 39, 40, 54)

(B) Constitution of India, Art. 226 – Public interest litigation – Establishment of meat processing unit – Petition against – Project can make significant contributions to national interest by providing employment and earning much needed foreign exchange as also providing staple food to those needy and poor – Petitioners, the powerful organizations, cannot resort to public interest litigation to vindicate sentimental objections to legitimate industrial activities.

Public interest litigation – Establishment of meat processing unit – Petition against by powerful organizations to vindicate sentimental objections – Not maintainable.

(Paras 63, 67)

(C) Penal Code (45 of 1860), S. 191 – Perjury – Writ Petition – Affidavit – False assertion by one of the petitioners that, earlier to instant petition neither any proceedings were initiated before Tribunal nor writ petition was filed for challenging action of authorities – May amount to perjury – High Court directed Registrar (Judicial) to file complaint against petitioner under S. 195, Cr. P.C.

Constitution of India, Art. 226.

Criminal P.C. (2 of 1974), S. 195.

(Paras 70)

Ambala Urban Estate Welfare Society v. Haryana Urban Development Authority

AIR 1994 Punjab & Haryana 288

Jawahar Lal Gupta, J.

0RDER:- The Ambala Urban Estates Welfare Society is the petitioner. It alleges that even though the respondent had promised that the Sector 7, Urban Estate, Ambala city shall be developed as a residential areas with all the modern amenities,’ it does not have even an underground sullage and storm water drainage system. According to the petitioner, the roads with big pot-holes are virtual death-traps. On account of lack of drainage and sewerage facilities, the cesspools which exist all around are a health hazard. The Haryana Urban Development Authority disputes this. It claims that the plot holders have already been given more than what was legitimately due to them. Is it so? A few facts as emanating from the pleadings of the parties may be briefly noticed.

2. In 1973, the Department of Urban Estates, Haryans gave out that it is “developing residential areas with all the modern amenities at Ambala.” It offered plots “for sale on full ownership basis.” Various persons who are the members of the petitioner Society applied for these plots. They were given letters of allotment during the years 1973 and 1974. They paid prices as mentioned in the advertisement. They were given possession of these plots in the year 1980-1981. Most of them have constructed houses on these plots. In spite of the fact that more than 2 decades have elapsed, the petitioners alleged that the respondents have not provided even basis facilities like “underground drainage for storm and sullage water with the necessary provision for the treatment and healthy disposal.......” As a result, the groundwater level has risen which has caused extensive damage to the buildings. Because of lack of drainage facilities, the area remains water-logged resulting in spread of malaria and jaundice etc. The petitioner also complaints that potable water is not available and various facilities, for which payment had been made by the plot holders, have not been provided. Further, it is alleged that the Haryana Urban Development Authority (hereinafter referred to as ‘the Authority’) to avoid honouring its obligations, passed an order on November 4, 1988 transferring the ownership of public roads, parks and sewerage etc. to the Municipal Committee, Ambala. Faced with this situation, the petitioner has approached this Court through the present writ petition. It challenges the order dated November 4, 1988 and prays that the ‘authority’ be directed to provide all the facilities.

3. In response to the notice of motion issued by the Court on May 31, 1989, the Haryana Urban Development Authority had filed a written statement on March 12, 1990. It was inter alia stated on its behalf that “there was no provision for underground storm water drainage in the approved rough estimate of Sector 7, Ambala” and that “the sullage water sewerage is being disposed of regularly and properly. There is no problem of over flowing or choking of sewer at present. The disposal machinery is working properly and smoothly.” It further stated that “there is no problem of drinking water and sufficient quantity of good quality potable water is being supplied daily to the residents of Urban Estates, Ambala City.” It was also stated that “the averments that locality remains water logged are (is) not correct and thus there is no question of becoming prone to any infectious disease for these reasons.” It was submitted that “the basis amenities as per provision in the approved rough cost estimate to exist.” On the basis, it was averred that the decision of the authority to transfer the ownership of roads etc. to the Municipal Committee was legal and valid.

4. The petitioner controverted the claim of the authority by filling a replication. Along with, the petitioner produced a copy of the letter dated April 15, 1988 written by the Deputy Commissioner, Ambala to the Chief Administrator of the respondent-authority and Director, Town and Country planning and Urban Estates, Haryana which clearly believed the assertions in the written statement and in which it was categorically stated that “accumulation of water is at present creating a problem of high water table and consequent damage to buildings.” The petitioner also produced the proceedings of a meeting held on January 10, 1990 under the chairmanship of the Administrator of the authority which shows that “the grass sown in these parks is destroyed due to collection of water in the rainy season owning to low level; “the water supply from Tube well No.3 was ‘brackish’; the roads needed to be repaired; without the storm water drainage, the sewerage system is also chocked during the rainy season; the conservation of land use of a plot measuring into a community hall was already under consideration; a pump station is also required in the Sector and that no provision had been made for disposal of the sullage water and that “at present the effluent is not discharged anywhere.”

5. After the filling of this affidavit, the motion Bench called upon the authority to “show what amenities have been provided for the existence of the locality.” Ultimately, vide order dated August 1, 1990, the Bench appointed Mr. D.D. Bansal, Advocate as the Local Commissioner to go to Sector 7 and “inspect the place in the presence of the parties of their authorised representatives and to report to the Court about the exact situation and the facilities provided for the proper drainage of storm and sewerage water”. The local Commissioner for had to submit his report by August 18, 1990. Along with it, he filed an inspection note given by Mr. T.S. Tuli, Consultant Civil Engineer. He also produced 25 photographs. In a nut shell, he found that “although Sewerage has been provided by the authorities but the same is not functioning properly and drainage of storm water has not at all been provided to the owners of houses in Sector 7, Urban State, Ambala as rain water was found standing on the roads of the locality.” On august 22, 1990, the Bench directed the chief Administrator, HUDA to take notice of the report of the Local Commissioner and report by September 3, 1990 as to what action had been taken to provide all possible civic amenities which a HUDA Colony should have.

6. In pursuance to these directions, Mr. Dhanpat Singh, Administrator, HUDA, submitted a report to the Court regarding the various remedial measures which were taken in pursuance to the report of the local Commissioner. It was mentioned that “a portable Diesel Engine Pumping Set has been arranged and is being utilised for pumping out the standing water collected during rains from the low-lying pickets of this sector viz. roads and parks. A gang of 10 labourers has been provided to drain out rain water from the roads manually where water cannot be pumped out by the diesel pumping set...” Standing water from the parks has been pumped out. Two to four feet width of roads beams on both sides have been cleared to allow free flow of surface water during rains. So, far as providing of storm sewer is concerned, it was mentioned that in the ‘cost calculation’ of the price of plots in sector 7, Urban Estate, Ambala City, the cost of providing underground storm water had not been included. Therefore, storm water is being drained out through road surface. The use of the water which has gone ‘brackish’ has been discontinued. In order to overcome the shortage of drinking water, alternative arrangement has been made through the State Public Health Department for the time being.

7. Then, after getting various adjournments for filling a detailed written statement, a short affidavit of Mr. Ranjit Singh, Administrator of the Authority which has not even been attested by an Oath Commissioner or anyone else, was filed. In this affidavit, it was inter alia averred that the respondents have carved out 68 plots in Sector 7 which is a low lying area. On sympathetic consideration of the representations, it was decided that alternative plots be allotted to the allottees of this plots in sector 9. The options were invited. Some of the allottees have given only conditional options. As a result, final result could not be taken. It was further averred that the estimate for providing storm water drainage in Sector 7 had been sanctions for Rs. 29.88 lacs. The calculations of amount to be recovered from the allottees were produced as annexure R.1. According to this document, it was found that every allottee was liable to pay Rs. 5.6 7 per square yard to the authority to enable it to provide the drainage facility. The petitioner filed an affidavit pointing out various discrepancies and to show that the respondent - authority had filed to carry out its obligations. The respondent-authority then filed an application under Section 151 to place the relevant facts on record “pertaining to expenses incurred......on the development of amenities in Sector 7.” An effort was made to show that while the plot-holders had paid an amount of Rs. 58 lacs only, the authority had incurred an expenditure of Rs. 117.95 lacks on the development, cost of roads etc. and the provision of public health and other facilities. Along with this application, an affidavit of the Executive Engineer was filed. It was also averred that “there was no understanding given or commitment made that all the facilities indicated in the estimates would be developed except the broad assurance that modern amenities will be provided for the township, which include provision of roads, electrification, water supply drainage etc. These have been provided by spending money far beyond the amount recovered from the plot-holders.” The petitioner filed an reply to this application by way of an affidavit of Mr. Ashok Kumar, the secretary of the Society. It pointed out that the expenditure incurred in connection with the provision of facilities for shopping centre could not be debited to the account of the plot-holders in the residential area and that the claim regarding the provision of facilities was wholly false and baseless. This was followed by an affidavit of the Executive Engineer, Mr. D.K. Soni. In this affidavit, it was inter alia averred that the authority had proposed the construction of storm water project for Sector 7 which “envisages open drains on internal roads and underground drains on main roads. If the necessary contribution as stated in the affidavit of Mr. Ranjit Singh, Administrator, Huda dated 18-9-1991 from the residential plot holders, Sector 7 is available, then the necessary works for the storm water drainage would be completed within one year thereafter.” It was further averred that “as regards the sewerage facilities necessary underground collecting system as envisaged at the time of original estimates has already been laid down. Unfortunately, because of the non-completion of the-Master Sewerage System for Ambala City, which was to be developed by the Municipal Committee but has not been developed to which the existing Sewerage system of Sector 7 was to be linked. Haryana Urban Development Authority has had to provide alternative arrangement for Sewerage system which includes construction of collecting tank and a pumping station to pump the sewerage water into an open Nala. Technically at this point if time, consideration the location of the Sector 7, there is no possible alternative because Sector 7, is surrounded on the south by Railway track and all other sides by a thick population where there are open drains...There is no technical way by which the disposal of this sewerage underground as in places like Chandigarh can be constructed in the surrounded (sic) area, to which it can be connected. Explanation regarding the financial aspect of the matter has also been given.

8. The petitioner has filed reply even to this affidavit. It has been inter alia averred that the authority had recovered the cost for provision underground storm water drainage at the time of sale of this plots. It did not provide the facility at the relevant time. The escalation in expenditure is only on account of the delay for which the plot-holders cannot be made to pay. Similarly with regard to the sewerage system, it has been averred that at the time of the planning of the Sector, there was no population in the nearby areas and if the authorities had taken adequate steps at the right time, no difficulty would have arisen. The figures as given on behalf of the Authority have also been disputed.

9. These are the pleadings of the parties.

10. Learned counsel for the parties have been heard. Mr. Ashok Agarwal, learned counsel for the petitioner has contended that the respondent-authority is under a statutory obligation to provide all facilities to the plot­-holders and that its action in not doing so is arbitrary and unfair. Learned counsel has made repeated reference to the statement showing calculation regarding the computation of sale price of the plots in Urban Estate, Ambala in support of his contention.

11. It is not clear from the various orders passed by different motion Benches as to how this document came on record. However, its authenticity has not been questioned by the counsel for the Authority. It is consequently taken on record as Mark ‘A’.

12. On the other hand, Mr. J.K. Sibal, learned counsel appearing for the respondent­-authority has submitted that all possible facilities have been adequately provided and that in the circumstances of the case, nothing more can be done. So far as respondent No. 2 viz. the State of Haryana is concerned, it has not even filed a written statement to controvert or answer the averments made by the petitioner.

13. Before considering the respective contentions of the parties, a few provisions relevant for the decision of this case may be noticed. The Legislature had originally promulgated the Punjab Urban Estates (Development and Regulation) Act, 1964. In exercise of the powers conferred under the Act, the rules called 'The Punjab Urban Estate (Sale of Sites) Rules, 1965 had been framed. These rules were adopted by the State of Haryana. Under these rules, the plots could be sold by auction' or 'allotment'. Further more, the sale price could be either 'fixed' or 'tentative'. In case, the price was tentative it could be revised if there was enhancement of compensation by the Court and additional price could be demanded.

14. The 1964 Act was repealed and replaced by the Haryana Urban Development Authority Act (Act No. 13 of 1977). S.58 (the Repeal and Saving provision) of the Act saved not only the acts done or actions taken under the old Act but also any “notification, order, scheme or rule made, granted or issued under” the 1964 Act "so far as it is not inconsistent with the provisions" of the 1977 Act. A few provisions of the 1977 Act deserve to be noticed:- ..........

16. A perusal of the above provisions shows that roads, water supply, sewerage, public works, tourist spots, open spaces, parks, landscaping and play fields besides such other conveniences as that State Government may be notification specify, are the amenities contemplated under the Act. Similarly, the Engineering operations include the providing of water supply, drainage and sewerage, etc. Further more, the provision for disposal of land has been made in S.15. Under S.58, the obligations and liabilities incurred by the State Government under the 1964 Act are deemed to have been incurred by the ‘Authority’. It is in the background of these provisions that the respective contentions raised by counsel for the parties have to be considered.

17. It deserves notice at the outset that in the advertisement issued by the Director, Urban Estates, Haryana in the year 1973, price ranging from Rs. 31/- per square yard to Rs. 35/­per square yard was fixed. It was inter alia provided that a person who paid the full price with the application “will be allowed a big concession in the price as well as the facility of choosing his own plot on the spot on the basis of ‘First come First Served’.” It was also stipulated that the Department was developing “residential areas with all the modern amenities at Ambala.” The application had to be submitted upto March 23, 1973. It was in pursuance to this representation made by the Government that the various persons had submitted their application and purchased the plots at the rates fixed by the Government. It is also established on the record that even though the allotment had been made in the years 1973 and 1974, the actual possession was handed over after a lapse of about 7 years, in the year 1980-81. The entire controversy in the present case centres around the question - What were the modern amenities' promised by the respondents and are the plot-holders liable to pay anything beyond the price which was demanded at the time of the allotment of the plots?

18. It is in this context that the reference of the learned counsel for the petitioner to the statement at Mark ‘A’ becomes relevant. This statement may be reproduced in extenso. It reads as under:­-

Statement showing calculation regarding the fixation of sale price of the plots or. Urban Estate, Ambala.... When this total cost is spread over the plot-table area of 54 acres, it gives the rate of sale price at Rs. 29.32 per sq. yard.”

19. A perusal of the above statement shows that while working out the cost of plots, the expenditure on the development of public health works like water supply, sewerage, construction of community buildings and electrification/street lighting etc. had been taken into consideration. After taking into consideration various items of expenditure, the sale price was fixed at Rs. 29.32 per square yard. In the advertisement, the sale price was shown to be ranging from Rs. 31/- to Rs. 35/- per square yard. A perusal of the document clearly shows that the respondents had fixed the price of the plots after taking into consideration the expenditure on various amenities. Have these been provided?

20. The first two-items of expenditure in the above-noted statement relate to the provision of roads, landscaping, levelling works, public health works like water supply and sewerage etc. It is the petitioner's claim that in spite of the cost having been included in the price of the plots, the facilities have not been provided.

21. In this behalf, the report of the local Commissioner deserves to be noticed. A perusal thereof shows that rain water was found to be standing almost everywhere. It further appears that at certain points, water had collected to an extent that even the foundation of a house (No. 374-P) was submerged. In case of certain six marla plots which had been allotted in the year 1973, the possession had not been delivered to the alottees and the area under the plots was “being used by the respondents-authority as Pond for the disposal of rain water.” The road between Plot Nos. 251 P-264 P and 265 P-278 P had been constructed but "the entire road was filled with bushes on both sides of the road despite the fact that the plots were sold in the year 1973, the land is being used as Pond for the disposal of rain water.” Similarly, the area of certain other plots is submerged in water. Still further it has been reported that there is a sewerage point in the middle of the road in front of House No. 427 P. This road had been dug up by the authority for the purpose of providing a channel for the rain water. Similarly, a sewerage point is available on the main road I front of House Nos. 985 P-995 P which had been used by the respondent-authority for disposal of rain water. It has been observed that people of the said locality came out of their houses and told him that this act of the respondent-authority was dangerous to the residents of the locality. It was also told that a child had fallen in the said pit and was saved with great difficulty. The Local Commissioner also reports that the open space (Park) near House No. 384 is filled with rain water arid lots of snakes were coming out of it. It further appears that one of the areas reserved for a park had been converted into a residence for the executive engineer. It further appears that even the site reserved for a school was found to be full of rain water and shrubs. The road was "in a dirty condition. In a nut shell, all open spaces were found to be full of water and shrubs leading to unhygienic conditions. This position is clearly borne out from the photographs as -also the inspection report given by Mr. Tuli.

22. The report of the Local Commissioner thus clearly belies the claim made on behalf of the respondent-authority in the written statement dated March 12, 1990. It is clear that there is accumulation of water on the roads, in parks and as a result, unhygienic conditions develop in the entire sector during rains. It is also clear from the report that the land wherein plots for construction of residential houses had been carved out, has developed into a pond where sullage is collected. It has not been shown that adequate arrangements for pumping out the water have been made. In such a situation, unhygienic conditions are bound to exist. The complaint of the petitioners is thus well-founded and the plea raised on behalf of the respondents cannot be accepted.

23. A perusal of the record of the case also shows that the cost of public health works for providing water supply and sewerage had been assessed at Rs. 30,07,000/-. Even the cost of constructing community buildings had been assessed at Rs. 8.00 lacs. Neither a proper functioning sewerage nor the community buildings have been provided. The respondents have thus failed to carry out their obligations towards the petitioners. Further more, on account of the faulty planning and execution of works, even the over-land drainage is not satisfactory. Similar is the position with regard to the parks. Instead of providing open spaces which may act as lungs and provide fresh air to the body of residents, these abound in snakes and threaten the very lives of residents. One of the open spaces has been converted into a residential area and a house for the Executive Engineer has been constructed thereon. These are the facts on the spot.

24. It is no doubt true that sale and purchase of land or plots are primarily matters of contract. An aggrieved party is normally relegated to its remedy before the civil Court. However, in a case where a statutory authority is constituted to serve public interest and the law enjoins upon it to provide amenities, the writ court would be failing in its duty if it relegates a party to the long drawn proceedings before a Civil Court. The importance of protection of the environment, open spaces for recreation and fresh air, play grounds for children, promenade for the residents and other conveniences or amenities in a development scheme has been emphasised by their Lordships of the Supreme Court in Bangalore Medical Trust Vs. B.S. Muddappa, Air 1991 SC 1902: (1991 AIR SCW 2082). Similarly, the right of “inhabitants of a local city.....whose park was converted into a nursing invoke equity jurisdiction of the High Court” was specifically upheld. It was observed that “in fact, public spirited citizens having faith in rule of law are rendering social and legal service by espousing cause of public nature. They cannot be ignored or overlooked on technical or conservative yardstick of the rule of locus standi or absence of personal loss of injury. Present day development of this branch of jurisprudence is towards free movement both in nature of litigation and approach of the courts. Residents of Locality seeking protection and maintenance of environment of their locality cannot be said to be busy bodies or interlopers. Even otherwise..... Violation of rule of law either by ignoring of affronting individual or action of the executive in disregard of the provisions of law raises substantial issue of accountability of those entrusted with responsibility of the administration. It furnishes enough cause of action either for individual or community in general to approach by way of writ petition and the shelter under cover of technicalities of locus standi nor they can be heard to plead for restraint in exercise of discretion as grave issues of public concern outweigh such consideration.” It was further observed as under at Page 1916 of AIR: ­

Public Park as a place reserved for beauty and recreation was developed in 19th and 20th Century and is associated with growth of the concept of equality and recognition of importance of common man. Earlier, it was a prerogative of the aristocracy and the affluent either as a result of royal grant or as a place reserved for private pleasure. Free and healthy air in beautiful surroundings was privilege of few. But now, it is a, ‘gift’ from people to themselves. Its importance has multiplied with emphasis on environment and pollution. In modern planning and development it occupies an important place in social ecology. A private nursing home on the other hand is essentially a commercial venture, a profit oriented industry. Service may be its moto but eaming is the objective. Its utility may not be undermined but a park is a necessity not a mere amenity. A private nursing home cannot be a substitute for a public park. No town planner would prepare a blue’ print without reserving space for it. Emphasis on open air and greenery has multiplied and the city or town planning or development acts of different States require even private house ­owners to leave open space in front and back for lawn and fresh air. In 1984 the BF Act itself provided for reservation of not less than fifteen per cent of the total area of the lay out in a development scheme for public parks and play grounds the sale and disposition of which is prohibited under Section 38A of the Act. Absence of open space and public park, in present day when urbanisation is on increase, rural exodus is on large scale and congested areas are coming up rapidly, may give rise to health hazard. May be that it may be taken care of by a nursing home. But it is axiomatic that prevention is better than cure. What is lost by removal of a park cannot be gained by establishment of a nursing home. To say, therefore, that by conversion of a site reserved for low lying park into a private nursing home social welfare was being promoted was being oblivious of true character of the two and their utility.”

25. Still further in Subhash Kumar Vs. State of Bihar AIR 1991 SC 420: (1991 AIR SCW 121), “the right of enjoyment of pollution free water and air for full enjoyment of life” has been held to be included in Article 21 of the Constitution. It has been held that “if anything endangers or impairs that quality of life in derogation of laws, a citizen has right to have recourse to Article 32 of the Constitution for removing the pollution of water or air which may be detrimental to the quality of life.

26. In view of the above, it is clear that in a case like the present one, where the residents of the locality have approached this court for compelling the respondent-authority to honour its promise of providing modern amenities, the court cannot deny the relief to the citizens on the basis of any technical objection. This is all the more so as it has been clearly established on the record that the authority has failed to provide proper roads, ‘sewerage, community buildings, parks and hygienic conditions. These can hardly be considered to be modern amenities. These are basic for the life and health of the residents of the locality.

27. In the present case, respondents had promised the prospective buyers that modern amenities (sic) ‘amenity’ inter alia includes “road, drainage, sewerage, open spaces, parks, land­scaping and play-fields”. There was thus an obligation to provide all these amenities. Still further, under Section 15, the authority is competent to dispose of the land without carrying out any development or after such development as it thinks fit. The Statute defines ‘development’ to include ‘Engineering Operations’. This expression has been defined in Section 2(j) to include “laying out of means of access to a road or the laying out of means of water supply, drainage sewerage or.....” In the present case, though the plots were transferred in the year 1973, the respondents did not hand over possession for about seven or more years thereafter. Apparently, this time was spent in the development of the area. It is also clear that before fixing the price of the plots, the cost of carrying out of kinds of development works has been worked out and taken into account. The allottees of the plots have paid more than the assessed price and yet they have not been provided most of the amenities which were not only promised but are basic in any civilised society which guarantees rights to life as a fundamental right.

28. The Haryana Urban Development Authority was established “for undertaking urban development”. Its inaction in spite of repeated requests from the residents of Sector 7 and failure to provide the promised amenities is not only arbitrary but even wholly illegal. The Authority has failed to carry out its obligations under the Act. It has turned a deaf ear to the loud cries of the residents and shut its eyes to the needs of its customers. In this situation, the Authority may well earn the dubious distinction of being dubbed as the ‘Haryana urban Destruction Authority.’

29. It also deserves mention that under Section 30 of the Act, the State Government has been provided with effective control over the Authority. It can issue directions, modify the orders and depute officers to inspect or examine the office of the Authority or its development works and take action on the reports submitted to it. It has thus the power to remedy any injustice. In the present case, the State Government has failed to carry out its functions under Section 30 of the Act. Even when the matter was brought before this Court, the State has maintained a studied silence. It has not even filed a reply to the writ petition. One can only lament this indifference on the part of the State.

30. After taking all the facts into consideration, it appears that the respondent Authority has not provided the amenities contemplated under the Act. In particular, it has failed to provide the basic amenities like (i) Drainage; (ii) Sewerage; (iii) Adequate potable water; and (iv) parks. All these have resulted in pollution of environment. It must, therefore, provide all these. amenities within one year from the date of the receipt of this order so that the ‘right to life’ as guaranteed under the Constitution does not become illusory.

31. Before parting with the judgement, it may be mentioned that the plea raised on behalf - of the respondent-authority that the plot-holders are liable to contribute towards the construction of open and internal drains at the rate of Rs. 5.67 per square yard is untenable. Initially, the expenditure on account of development cost of public health works which includes sewerage as also towards the building and roads works which include levelling etc. was included in the price of the plots. This having been paid, there was no provision for raising any further demand. The price was not tentative. It was full and final. This having been paid, the respondents are bound to provide all the promised amenities.

32. Accordingly, it is held that the respondents are bound to provide all the facilities as mentioned above and till this is done, they cannot be permitted to transfer the ownership of roads, parks and sewerage etc. to the Municipal Committee. Accordingly, the order at annexure P-4 is quashed. The respondents are directed to provide the requisite facilities within one year from the date of receipt of a copy of this order. The petitioner shall also be entitled to its costs which are assessed at Rs. 2000/­

Order accordingly.

Law Society of India v. Fertilizers and Chemicals Travancore Ltd.

AIR 1994 Kerala 308

O. P. No. 4635/1989 B, D/-14-2-1994

Varghese Kalliath and K.J. Joseph, JJ.

(A) Evidence Act (1872), S. 45 – Expert opinion – Court not bound to follow it blindly – Expert cannot act as a judge or jury – Final decision is to be made by judge.

(B) Constitution of India, Arts. 21, 51(g) – Right to life – Includes right to environment adequate for human health and well being – Hazardous industry – High potency danger to human life in vicinity involved due to Ammonia Storage Tank – Its decommissioning ordered.

Hazardous industry – Safety of human life is important.

Pollution – Hazardous industry.

Environment – Adequate for human health – Right to – Is included in right to life.

State of Kerala v. Joseph Antony

(1994) 1 Supreme Court Cases 301

P.B. Sawant and R.M. Sahai, JJ.

SAWANT, J.: - The dispute in the present case is essentially between the fishermen in the State of Kerala who use traditional fishing crafts such as catamarans, country crafts and canoes which are manually operated traditional nets and those who use mechanised crafts which mechanically separate sophisticated nets like purse seine, ring seine, pelagic trawl and mid-water trawl gears for fishing in the territorial waters of the State. ......

10. In the present case, we are mainly concerned with the provisions of sub-section (2)(a), (b) and (c) of the said section. In exercise of the powers conferred by Section 4, the Government issued two notifications on November 29, 1980. By one of the notifications, the specified area was defined as the territorial waters of the State while by the other notification (i) fishing by mechanised vessels was prohibited in the territorial waters except for small specified zones, (ii) use of gears like purse seine, ring seine, pelagic trawl and mid-water trawls was prohibited fishing, by way of exemption, in parts of the prohibited area. These notifications were challenged by the operators of the mechanised vessels using purse seine by writ petitions, in the High Court and they were struck down by the High Court in Babu Joseph Vs. State of Kerala on the ground that they represented an arbitrary exercise of power under the Act and imposed restrictions on the fundamental rights of the writ petitioners. The Court, however, upheld the validity of the Act which was also challenged in the petition. ........

12. These notifications again came to be challenged before the High Court by the users of purse seine boats and nets, and the High Court by the decision under appeal held that the material on record did not justify the impugned notifications, insofar as they totally prohibited the use of purse seine nets beyond 10 kms from the base line from which the breadth of the territorial sea is measured. The High Court, therefore, declared unenforceable the said notifications so far as they imposed a ban on the use of purse seine net beyond the said 10 kms as being unreasonable restriction on the fundamental right guaranteed under Article 19(1)(g) of the Constitution. The High Court also held that they could be enforced only within the limit of the said 10 kms. Accordingly, the High Court allowed the writ petition to the extent that the notifications operated beyond 10 kms in the territorial waters of the State.

13. It is against this order that the present two appeals are filed – one, i.e., C.A. No. 3531 of 1986, by State of Kerala and the other, i.e., C.A. No. 3532 of 1986 by the original 3rd respondent who is the President of the Kerala Swathanthra Matsya Thozhilai Federation representing the fishermen using the traditional fishing crafts. The grievance of appellants in both the appeals is the same. It is contended that the High Court erred in law in holding that the restriction placed on the users of purse seine boats and nets by the said notifications was unreasonable and, therefore, violative of their fundamental right guaranteed by Article 19(1)(g). It is contended that the High Court has also erred in holding that the old material which was before the High Court when it decided the earlier writ petition, viz., Babu Joseph Vs. State of Kerala could not be taken into consideration by the State Government while issuing the present notifications. The High Court, it is contended, as further erred in its view that no new material was before the State Government while it issued that said notifications sand since the new notifications are based on the same material on which the earlier notifications were based which were struck down by it in Babu Joseph case the present notifications were also liable to be struck down on the very said ground..........

30. We are thus more than satisfied that the High Court was not justified in confirming the operation of the said notification only to 10 kms from the base coastal line. In the circumstances, we set aside the impugned decision of the High Court and hold that the two impugned notifications dated November 30, 1984 are valid and operative throughout the territorial waters of the State. The appeals are allowed accordingly with cost.

Consumer Education and Research Centre v. Union of India

AIR 1995 Supreme Court 922

Writ Petition (Civil) No. 206 of 1986, D/-27-1-1995

A. M. Ahmadi, C.J.I., Madan Mohan Janchhi and K. Ramasw Amy, JJ.

(A) Constitution of India, Pre. Arts. 38, 21 - Social Justice - A device to ensure life to be meaningful and livable with human dignity - State obliged to provide to workmen facilities to reach minimum standard of health, economic security and civilized living.

Social Justice - Is a mean to ensure life to be meaningful and liveable.

The preamble and Article 38 of the Constitution of India - the supreme law, envisions social justice as its arch to ensure life to be meaningful and livable with human dignity. The constitution commands justice, liberty, equality and fraternity as supreme values to usher in the egalitarian social, economic and political democracy. Social justice, equality and dignity of person are corner stones of social democracy. The concept 'social justice' which the Constitution of India engrafted, consists of diverse principles essential for the orderly growth and development of personality of every citizen. "Social justice" is thus an integral part of "justice" in generic sense. Justice is the genus, of which social justice is one of its species. Social justice is a dynamic device to mitigate the sufferings of the poor, weak, Dalits, Tribals and deprived sections of the society and to elevate them to the level of equality to live a life with dignity of person. Social justice is not a simple or single idea of a society but is an essential part of complex of social change to relieve the poor etc. from handicaps, penury to ward off distress, and to make their life livable, for greater good of the society at large. In other words, the aim of social justice is to attain substantial degree of social, economic and political equality which is the legitimate expectations. Social security, just and humane conditions of work and leisure to workman are part of this meaningful right to life and to achieve self-expression of his personality and to enjoy the life with dignity, the State should provide facilities and opportunities to them to reach at least minimum standard of health, economic security and civilized living while sharing according to the capacity, social and cultural heritage.

(Para 20)

The constitutional concern of social justice as an elastic continuous process is to accord justice to all sections of the society by providing facilities and opportunities to remove handicaps and disabilities with which the poor etc. are languishing to secure dignity of their person. The Constitution, therefore, mandates the State of accord justice to all members of the society in all facets of human activity. The concept of social justice imbeds equality to flavour and enliven practical content of 'life'. Social justice and equality are complementary to each other so that both should maintain their vitality. Rule of law, therefore, is a potent instrument of social justice to bring about equality in results.

(Para 21)

(B) Constitution of India, Art. 21 - Right to life - Expression 'life' - Does not connote mere animal existence or continued drudgery through life - Includes right to livelihood, better standard of life, hygienic conditions in work place and leisure - Expanded connotation of life would mean tradition and cultural heritage of the persons concerned.

Workman - Hygienic conditions in work place and leisure - Are his fundamental rights -Right to life - Includes hygienic conditions in work place and leisure to workman.

Right to life - Includes traditional and cultural heritage of a person.

(Para 24)

(C) Constitution of India, Arts. 21, 39 (e), 41, 43, 48A - Right to life - Ensures to workman right to health and medical care - All employers are enjoined to take all actions to promote health, strength and vigour of workman during employment and leisure and health even after retirement.

Right of life - Ensures to workman health and medical care.

Workman - Has right to health and medical care - Both during and after service.

Right to health, medical aid to protect the health and vigour to a worker while in service or post retirement is a fundamental right under Article 21, read with Articles 39 (e), 41, 43, 48A and all related Articles and fundamental human rights to make the life of the workman meaningful and purposeful with dignity of person.

(Para 27)

The right to health to a worker is an integral fate of meaningful right to life to have not only a meaningful existence but also robust health and vigour without which worker would lead life of misery. Lack of health denudes his livelihood. Compelling economic necessity to work in an industry exposed to health hazards due to indigence to bread-winning to himself and his dependants, should not be at the cost of the health and vigour of the workman. Facilities and opportunities, as enjoined in Article 38, should be provided to protect the health of the workman. Provision for medical test and treatment invigorates the health of the worker for higher production or efficient service. Continued treatment, while in service or after retirement is a moral, legal and constitutional concomitant duty of the employer and the State. Therefore, it must be held that the right to health and medical care is a fundamental right under Art. 21 read with Article 39 (e), 41 and 43 of the Constitution and make the life of the workman meaningful and purposeful with dignity of person. Right to life includes protection of the health and strength of the worker is a minimum requirement to enable a person to live with human dignity. The State, be it Union or State Government or an industry, public or private, is enjoined to take all such action which will promote health, strength and vigour of the workman during the period of employment and leisure and health even after retirement as basic essentials to live the life with health and happiness. The health and strength of the worker is an integral facet of right to life. Denial thereof denudes the workman the finer facets of life violating Art. 21. The right to human dignity, development of personality, social protection, right to rest and leisure are fundamental human rights to a workman assured by the Charter of Human Rights, in the Preamble and Arts. 38 and 39 of the Constitution. Facilities for medical care and health against sickness ensure stable manpower for economic development and would generate devotion to duty and dedication to give the workers best physically as well as mentally in production of goods or services. Health of the worker enables him to enjoy the fruit of his labour, keeping him physically fit and mentally alert for leading a successful life, economically, socially and culturally. Medical facilities to protect the health of the workers are, therefore, the fundamental and human rights to the workmen.

(Para 26)

In an appropriate case, the Court would give appropriate directions to the employer, be it the State or its undertaking private employer to make the right to life meaningful; to prevent pollution of work place; protection of the environment; protection of the health of the workman or to preserve free and unpolluted water for the safety and health of the people. The authorities or even private persons or industry are bound by the directions issued by the Supreme Court under Article 32 and Article 142 of the Constitution.

(Para 30)

(D) Constitution of India, Arts. 21, 226, 32 - Fundamental rights - Enforcement and protection - Remedy of award of compensation available under Arts. 226, 32 - Defence of sovereign immunity - Not applicable.

In public law claim for compensation is a remedy available under Article 32 or 226 for the enforcement and protection of fundamental and human rights. The defence of sovereign immunity is inapplicable and alien to the concept of guarantee of fundamental rights. There is no question of defence being available for constitutional remedy. It is a practical and inexpensive mode of redress available for the contravention made by the State, its servants, instrumentalities, a company or a person in the purported exercise of their powers and enforcement of the rights claimed either under the statutes or licence issued under the statute or for the enforcement of any right or duty under the constitution of the law.

1983 (3) SCR 508; (1993) 2 SCC 746, Foll.

(Para 31)

(E) Constitution of India, Art. 21 - Occupational diseases - Employer is vicariously liable to pay damages - Workman affected by asbestosis - Death after cessation of employment - Employer liable to pay liquidated damages.

Factories Act (63 of 1948) S. 89, Sch. 1

The employer is vicariously liable to pay damages in case of occupational diseases, here in this case asbestosis. The Employees State Insurance Act and the Workmen's Compensation Act provide for payment of mandatory compensation for the injury or death caused to the workman while in employment. The Act does not provide for payment of compensation after cessation of employment, it therefore becomes, necessary to protect such persons from the respective dates of cessation of their employment. Liquidated damages by way of compensation are accepted principles of compensation. The respective asbestos factories or companies shall be bound to compensate the workmen for the health hazards which are the cause for the disease with which the workmen are suffering from or had suffered pending the writ petitions. Therefore, the factory or establishment shall be responsible to pay liquidated damages to the concerned workmen.

(Paras 31, 32)

(F) Factories Act (63 of 1948), S. 112, 113 - Model Rule 123A - Asbestos industry - Bound by Rules regarding "safety in the use of asbestos" issued by International Labour Organisation.

(Para 32)

(G) Constitution of India, Art. 32 - Asbestos industries - Control of occupational health hazard and diseases to workman - Various directions in that regard issued.

Factories Act (63 of 1948), S. 89.

All the asbestos industries are directed (1) To maintain and keep maintaining the health record of every worker up to a minimum period of 40 years from the beginning of the employment or 15 years after retirement or cessation of the employment whichever is later; (2) The Membrane Filter test, to detect asbestos fibre should be adopted by all the factories or establishments as per with the Metalliferrous Mines Regulations, 1961; and Vienna Convention and Rules issued thereunder; (3) All the factories whether covered by the Employees State Insurance Act or Workmen's Compensation Act or otherwise are directed to compulsorily insure health coverage to every worker; (4) The Union and the State Governments are directed to review the standards of permissible exposure limit value of fiber/cc in tune with the international standards reducing the permissible content as prayed in the writ petition referred to at the beginning. The review shall be continued after every 10 years and also as and when the I.L.O. gives directions in this behalf consistent with its recommendations or any conventions; (5) The Union and all the State Governments are directed to consider inclusion of such of those small scale factory or factories or industries to protect health hazards of the worker engaged in the manufacture of asbestos or its ancillary products.

(Para 33)

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