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Judgment
S. Jagadeesan, J.—The writ petition has been filed for the issuance of a writ of mandamus directing respondents 1 and 2 to take appropriate action against the third respondent not to change or alter the character of the land as contemplated under the Master Plan. The petitioners are the residents of Corporation Colony, Rangarajapuram, Chennai. They have constructed the houses in an approved lay out. The second respondent has given the permission to the third respondent for establishing a kerosene bunk in the place earmarked for a public park as per the approved lay out or the Master Plan. Hence, the writ petition has been filed.
2.The first respondent filed a counter affidavit wherein it is stated that an extent of 58 acres and 1296 sq. ft. in T.S.Nol/1 part of block 49 of Puliyur village is the private land of the Corporation as per the Revenue Records. Out of the said area an extent of 3150 sq. ft was given as a lease to the third respondent for a period of three years for erecting the kerosene bunk. The said decision was approved by the Council in their resolution dated 13.3.1999 and thereafter, the third respondent was permitted to start the work. Since it is the private property of the first respondent, the first respondent has got every right to lease out the same. The place is not notified as park. Hence, the petitioners have no locus standi to challenge the decision of the first respondent.
3.The third respondent has filed a counter affidavit explaining the commencement of the work and the need to have the kerosene bunk in the said place and also the expenses incurred by them. Apart from that, it is also pointed out that an extent of 4 to 5 grounds had already been utilised for the construction of the building for noon meal scheme and Aavin milk vending booths. When such activities are being permitted in the said disputed place, the petitioners, now, cannot have any objection for the erection of the kerosene bunk. Hence, the writ petition has to be dismissed,
The second respondent did not file any counter. However, the second respondent produced an approved layout and admitted that as per the approved lay out, the place under dispute is earmarked for the public park.
5.The counsel for the respective parties contended and reiterated what are stated in the affidavit and the counter affidavit.
The issue to be decided by this Court is as to whether the first respondent has got any authority to lease out the land to the third respondent for the erection of the kerosene bunk.
From the above extracted contentions of the parties, it is clear that the first respondent had leased out the property to the third respondent for Aavin Booth. From the Master Plan produce by the second respondent, and also from the admission of the learned counsel for the second respondent, it is clear that the disputed place forms part of an approved lay out. As per the Master Plan and the approved lay out, the disputed place is earmarked as a Public Park. When once the place is earmarked as a Park in the approved layout, either the promoter or the Government authorities are expected to maintain the lands for the purpose for which it was earmarked. Hence, there cannot be any dispute that the area earmarked for a particular purpose cannot be utilised for other purpose, especially when it is for the public convenience and public use.
In fact, the Supreme Court had an occasion to deal with such an issue in the case of Bangalore Medical Trust v B.S. Muddappa (AIR 1991 SC 1902). There, the Apex Court considered the provisions of the Bangalore Development Act and ultimately held that the permission granted by the authorities to construct a hospital in the place earmarked for a Public Park is illegal.
One aspect of the matter is to consider the legality of the action of respondents 1 and 2 relating to the provisions of law. The other aspect of it is as to whether the action of the first respondent would affect or interfere with the existing rights of the inhabitants of the locality. When admittedly, the public park is held to be an amenity or civic amenity to the residents of the locality, and the development authorities compel the promoter to earmark the specified place for such purpose, the Government officials themselves have to comply with those provisions, while undertaking the development work by submitting the Development Plan, and such of those civic amenities cannot be taken away by the administrative action of the executives.
The third respondent, who is the lessee to erect the kerosene bunk, contended that when already the buildings for the Noon meal scheme as well as well as Aavin milk booths are located, it cannot be said that the erection of the kerosene bunk is not in the interests of the public at large. Providing of kerosene to the downtrodden is also a public civic amenity and as such, the same cannot be objected. So long as the use of the land is for a public purpose, the same should be permitted.
This Court carefully considered the above contentions raised on behalf of the third respondent Co-operative society. If such contentions are to be accepted, there cannot be any dispute that in future, the remaining land also may be taken away by the first respondent for some other purpose, which instantly may be of civic amenity or public amenity. In that case, the place earmarked for the public purpose such as public park, which is essential, considering the air pollution of the present days, will be totally lost for the other purposes. In such a situation, the decision of the Planning Authority to have the places earmarked for public purpose on the health ground of the residents of the locality, especially considering the air pollution of today will be totally disregarded.
In yet another judgment, the Supreme Court in the case of M.I. Builders Pvt. Ltd. v Radhey Shyam Sahu (1999 VI SCC 464) held as follows:-
"By allowing underground construction the Mahapalika has deprived itself of its obligatory duties to maintain the park which cannot be permitted. But then one of the obligatory functions of the Mahapalika u/s 114 is also to construct and maintain parking lots. To that extent some area of the park could be used for the purpose of constructing an underground parking lot. But that can only be done after proper study has been made of the locality including density of population living in the area, the floating population and other certain relevant considerations. This study was never done. The Mahapalika is the trustee for the proper management of the park. When the true nature of the park, as it existed, is destroyed it would be violative of the doctrine of public trust as expounded by this Court in Span Resort Case (M.C. Mehta vs. Kamal Nath 1997 I SCC 388)Public trust doctrine is part of Indian law. In that case the respondent who had constructed a hotel located at the bank of River Beas interfered with the natural flow of the river. This Court said (at SCC p 413 para 35) that the issue presented in that case illustrated.
"the classic struggle between those members of the public who would preserve our rivers, forests, parks and open lands in their pristine purity and those charged with administrative responsibilities who, under the pressures of the changing needs of an increasingly complex society, find it necessary to encroach to some extent upon open lands heretofore considered inviolate to change."
In the treatise Environmental law and Policy, Nature, Law and Policy. Nature, Law and Society by Plater Abrahams Goldfarb (American Casebook Series, 1992 under the chapter on Fundamental Environmental Rights, in Section 1 (The Modern Rediscovery of the Public Trust Doctrine) it has been noticed that "long ago there developed in the law of the Roman Empire a legal theory known as the "doctrine of the public trust". In America public trust doctrine was applied to public properties, such as shore lands and parks. As to how that doctrine works it was stated.
"The scattered evidence, taken together, suggests that the idea of a public trusteeship rests upon three related principles. First, that certain interests like the air and the sea have such importance to the citizenry as a whole that it would be unwise to make them the subject of private ownership. Second, that they partake so much of the bounty of nature, rather than of individual enterprise, that they should be made freely available to the entire citizenry without regard to economic status. And finally, that it is the principal purpose of a Government to promote the interests of the general public rather than to redistribute public goods from broad public uses to restricted private benefit"
With reference to a decision in Illinois Central Railroad Co., Vs. Illinois (146 US 387- 37 L Ed 1018) 1892. It was stated that "the court articulated in the case the principle that has become the central substantive thought in public interest litigation. "When a state holds a resource which is available for the free use of the general public, a court will look with considerable skepticism upon any governmental conduct which is calculated either to reallocate the resource to more restricted uses or to subject public uses to the self-interest of private parties".
Thus by allowing construction of underground shopping complex in the park the Mahapalika has violated not only section 114 of the Act but also the public trust doctrine"
From the above well laid principles, it is clear that the places earmarked for the park and the other purpose of civic amenity cannot be taken away for any other purpose, even assuming that such purposes may be of public use.
Following the said principles, this Court is of the view that the action of the first respondent in leasing out portion of the public park to the third respondent to have the kerosene bunk cannot be sustained. Hence, the writ petition is allowed. No costs. Consequently, the above W.M.Ps are dismissed as unnecessary.