Bombay High Court
The Court On Its Own Motion vs Delhi- on 21 October, 2011
Bench: S.A. Bobde, M.N. Gilani
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
PUBLIC INTEREST LITIGATION NO. 34 OF 2010
& WRIT PETITION NO. 125 OF 2011.
(1) PUBLIC INTEREST LITIGATION NO. 34 OF 2010
The Court on its own motion ..... PETITIONER
....Versus....
1] The State of Maharashtra,
through its Secretary, Urban
Development Department,
Mantralaya, Mumbai-32,
2] The State of Maharashtra,
through its Secretary, Agricultural
Department, Mantralaya, Mumbai-32,
3] Dr. Panjabrao Deshmukh Krishi
Vidyapeeth, Akola, through its Vice
Chancellor, District Akola,
4] The Principal, Agricultural College,
Maharajbag, Nagpur,
5] Nagpur Municipal Corporation, through
its Municipal Commissioner, Civil Lines,
Nagpur,
6] Indian Council for Agricultural Research,
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through its Secretary, Krishi Bhawan,
New Delhi-110114,
7] Ministry of Environment and Forest,
through its Secretary, Paryavaran
Bhawan, CGO Complex, Lodhi Road,
New Delhi-110003,
8] The Collector, Nagpur,
9] National Environment Engineering
Research Institute, Nehru Marg, Nagpur,
through its Director,
10] Maharashtra Pollution Control Board,
th
6 floor, Udyog Bhawan, Near Sales
Tax Office, Civil Lines, Nagpur,
11] Shri Rajesh Tope, Minister of Higher
Education, Mantralaya, Mumbai,
12] Central Zoo Authority, Annexure-VI,
Bikaner House, Sahajahan Road, New
Delhi-110011. ...... RESPONDENTS.
Mr. K.H. Deshpande, Senior Counsel & Mr. D.V. Chauhan, Advocate
(Amicus Curiae) for petitioner,
Mrs. B.H. Dangre, Additional Government Pleader for respondent
nos.1, 2, 8 & 11,
Mr. M.M. Sudame, Advocate & Mr. S.J. Khandalkar, Advocate for
respondent nos.3 & 4,
Mr. S.K. Mishra, Advocate for respondent no. 5,
Mr. R.S. Sundaram, Advocate for respondent no.9,
Mr. S.M. Ukey, Advocate for respondent no.10.
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(2) WRIT PETITION NO. 125 OF 2011.
Dr. Punjabrao Deshmukh Krishi
Vidyapeeth, an University, constituted
under Maharashtra Agricultural Universities
Act, 1983, having its office at Krishinagar,
Akola, through the Associate Dean,
College of Agriculture, Maharajbagh,
Nagpur, Dr. Vandan Krishnarao Mohod,
aged about 55 years, R/o Priyadarshani
Colony, Near RTO Office, Amravati
Road, Nagpur. ig .... PETITIONER
....Versus....
1] The City of Nagpur Municipal Corporation,
incorporated under Section 7 of the City
of Nagpur Municipal Corporation Act,
1948, having its registered office at
Civil Lines, Nagpur,
2] The Municipal Commissioner,
Nagpur Municipal Corporation,
Civil Lines, Nagpur,
3] The Assistant Commissioner,
Dharampeth Zone No.II,
Nagpur Municipal Corporation,
Dharampeth, Nagpur,
4] The Assistant Director, Town Planning
Department, Nagpur Municipal
Corporation, First Floor, Bharat
Tower, Palm Road, Mahapalika
Marg, Civil Lines, Nagpur,
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5] The State of Maharashtra,
through the Principal Chief Secretary,
to the Government of Maharashtra,
Urban Development Department,
Mantralaya, Mumbai-400032, .... RESPONDENTS
Mr. M.M. Sudame, Advocate & Mr. S.J. Khandalkar, Advocate for
petitioner,
Mr. S.K. Mishra, Advocate for respondent no. 1,
Mrs. B.H. Dangre, Additional Government Pleader for respondent
nos. 4 & 5.
ig CORAM : S.A. BOBDE & M.N. GILANI, JJ.
DATED : OCTOBER 21, 2011.
JUDGMENT (PER S.A. BOBDE, J.)
1] Rule returnable forthwith. Heard the learned Counsel for
the parties finally by consent.
2] P.I.L. No. 34/10 initiated by the Court on its own motion
and Writ Petition No. 125/11 filed by Dr. Punjabrao Deshmukh Krishi
Vidyapeeth relate to the same construction on land bearing Khasra
No. 83/4 of Mouza Lendra in the city of Nagpur and have been taken
up together by the consent of parties for final disposal.
3] The PIL inter alia calls upon Dr. Punjabrao Deshmukh
Krishi Vidyapeeth, Akola (hereinafter referred to as "the Agricultural
University") to show-cause why the construction should not be
declared illegal and why it should not be demolished. Writ Petition
No. 125/11 is preferred by the Agricultural University praying that the
orders passed by the Planning Authority rejecting the application
made by the Agricultural University for permission to construct and
directing the removal of the unauthorized construction and the order
of the Government of Maharashtra rejecting the Agricultural
University's appeal against the rejection of the building plan and
seeking regularization of the construction be quashed and set aside.
4] The main issue in both these matters is whether the
Agricultural University had any authority in law to make a construction
on the agricultural fields in its possession reserved for the extension
of the adjoining Maharajbagh Zoo in the development plan on its own
and whether the same is permissible.
5] Somewhere near the middle of the city of Nagpur is
located a large area of land occupied by the Maharajbagh Zoo.
Adjoining it is the land in question which is a large agricultural field.
This area has been in existence as an open space since a very long
time. The agricultural fields have been in existence since times
immemorial and are described in the Heritage List as ancient. These
fields are included in the Heritage List for preservation of sites for
historical and archaelogical importance prepared under the
Maharashtra Regional and Town Planning Act. These fields have
always been attached to the Agricultural College run by the
respondent Agricultural University, Nagpur and have been used by
the College as a Laboratory for carrying out experiments in
agriculture since as long as anyone remembers. The fields present a
very beautiful sight and act as the lungs of the city. They are
surrounded by busy roads and constructions on the southern and
eastern side, by the area of the Agricultural College on the western
side and the Maharajbagh Zoo towards the north. In the revenue
records, these fields are given Khasra No. 83/4 and are shown as
held by the respondent Punjabrao Deshmukh Krishi Vidyapeeth
(hereinafter referred to as "the PKV") which is a University formed
under a statute, i.e. Maharashtra Agricultural Universities Act, 1983.
Sometime in the year 2007 the Agricultural University apparently
started construction knowing fully well that this area is reserved for
agricultural purposes.
6] This area known as the PKV fields in the Heritage List was
reserved as an open space for extension of the Maharajbagh Zoo.
PKV made an application through one Shri Bhushan Kotwal to the
Planning Authority, Nagpur under the Maharashtra Regional & Town
Planning Act, 1966 (hereinafter referred to as "the MRTP Act") for
development of the site under Sections 44 & 45 of the Act. Strangely,
an application was made for development of the site by construction
of a farmers' Communication Centre and not for a research
laboratory. The application mentions that the PKV seeks permission
to make the construction on Khasra No. 79 and not Khasra No. 84,
which is the Khasra number of the present site. Khasra No. 79
mentioned in the application is an adjoining area which is reserved for
construction on which the PKV already constructed a 'Shetkari
Bhawan'. The application dated 13.4.2007, therefore, does not
mention Khasra No. 84 which has already been reserved for
agricultural fields, but Khasra No. 79 on which construction is
permissible. The application seeks permission to develop an area
admeasuring 15,52,000 sq. meters.
7] Without waiting for any sanction, the Agricultural University
commenced construction of the Farmers' Communication Centre over
an area of 2212 sq. meters. In addition, as of now the Agricultural
University has brought another structure admeasuring 1006 sq.
meters upto the plinth level on the same land. The Nagpur Municipal
Corporation (hereinafter referred to as "the Planning Authority")
issued a notice dated 25.5.2007 informing the Dean of the
Agricultural University that they have started unauthorized
construction over the PKV fields which are designated as Grade-I
sites meant for conservation as sites for historical and archaelogical
importance. By this notice, the Planning Authority called upon the
University to stop work without due permission. Surprisingly, instead
of complying with the notice, the Associate Dean wrote back a reply
letter dated 8.6.2007 stating that the Communication Centre is being
constructed for the convenience and benefits of farmers visiting
Nagpur in pursuance of a grant of Rs. Five Crores made available by
the then Union Minister for Agriculture and that it would be difficult to
explain to the Central Government if the grant given by the Union
Minister for Agriculture remains unutilised. The Agricultural University
feigned ignorance about the site being a Heritage site and asked the
Planning Authority to furnish a list of sites belonging to the University
which have been declared as Heritage sites. Peculiarly, there is no
reference whatsoever to any decision of any authority of the
University deciding to make a construction of this Communication
Centre and it may be noted that the learned Counsel for the
Agricultural University admitted that there is no direction by the Union
Minister for Agriculture that the construction should be made on this
very site.
8] On 25.6.2007, the Planning Authority rejected the building
plan submitted by the respondent college on the ground that the
proposal contravened the provisions of Development Control
Regulations and the Development Plan of the city. The land was
stated as having been reserved for extension of the Maharajbagh and
under No Development Zone. It is also rejected on the ground that it
is a Heritage zone. Unperturbed by the rejection, the Agricultural
University continued the construction in defiance of the notice by the
Planning Authority. On 2.11.2007, the Planning Authority issued
another notice taking a stern view calling upon the Agricultural
University to stop the unauthorised construction failing which it would
launch a criminal prosecution. This also had no effect and the
Agricultural University wrote back reiterating the contents of the
earlier reply, this time stating that the 'Bhoomipujan' had been
performed by the then Chief Minister, Maharashtra and other
Ministers and that the Prime Minister has taken cognizance of the
farmers suicides in the region and has announced remedial
measures. Incidentally, it may be observed that the area where
farmers committed suicide is nowhere near Nagpur and the
construction seems to have no connection with it or the remedial
measures. Further, it was stated that it was necessary to provide for
accommodation of the farmers who visited Nagpur and, therefore, the
construction of the Communication Centre was absolutely necessary.
A copy of the reply is endorsed to several Ministers and M.L.As.,
officers of the office of the Corporation and the Corporators.
9] On 26.11.2007 the Agricultural University preferred an
appeal to the Minister of State for Urban Development, Government
of Maharashtra and according to the University, on 1.12.2007 the
then Minister of State for Urban Development in a meeting attended
by two M.L.As. instructed the Municipal Commissioner, Nagpur
Municipal Corporation, i.e. the Planning Authority that the site falls
within Grade-III Heritage List and, therefore, permission for
construction can be granted. A copy of this reply is also endorsed
amongst others to the Chairman of the Heritage Conservation
Committee, asking for permission to recommence the construction.
10] Soon, on 5.1.2008, upon noticing recommencement of
unauthorized construction, the Planning Authority reminded the
Associate Dean, Agricultural College, Nagpur of the earlier notice
under Section 54 of the MRTP Act and called upon the respondent
college to stop construction within 24 hours. Again on 18.3.2008, the
Planning Authority issued a letter to the respondent that the
construction was unauthorised. This time the college claimed in the
reply that the then Minister for Urban Development gave instructions
regarding submission of proposal by the college for permission to
construct and the college further claimed that since the proposal for
construction is already submitted, the construction activity has been
commenced in view of the instructions given by the said Minister.
11] On 21.2.2009, however, the Planning Authority took a
stern cognizance of the ongoing construction and expressed
dissatisfaction over the non-compliance of the earlier notice and
issued a notice under Section 53 of the MRTP Act for removal of the
unauthorised construction and threatened criminal prosecution. None
of this appears to have had any effect on the respondent college.
Eventually, on 9.11.2009, a Deputy Secretary to the Government
called upon the Secretary, Town Planning Department, Maharashtra
to attend the meeting to be chaired by His Excellency the Governor of
Maharashtra where one of the issues to be discussed was
construction of the unauthorized structure on the lands of the
respondent University. What transpired in the meeting is not placed
on record.
12] However, on 25.11.2009, the Planning Authority issued
another notice for demolishing the construction within a period of one
month. The Vice-Chancellor of the University wrote a letter dated
16.12.2009 and asked the Planning Authority to suspend further
action claiming that the open spaces belonging to it have been
deleted from the Heritage List and this time claiming that an appeal
had been filed before the then Minister for Urban Development, who
had in a meeting held on 1.12.2007 declared that permission can be
given for construction over this area and that in any case, the area in
question cannot be a Heritage site. The Planning Authority rejected
the request made by the Vice Chancellor for granting permission to
the construction by a letter dated 6.3.2010. Notwithstanding the
above, the agricultural college addressed a letter to the Mayor of
Nagpur informing her that the then Hon'ble Minister for Town
Planning gave oral directions to carry on with the construction and
that the construction has been proceeded on that basis and that
similar instructions were given by the then Agricultural Minister of the
State.
13] On 2.6.2010, the office of the Director, Town Planning
wrote a letter to the Commissioner, Nagpur Municipal Corporation,
referring to the demolition notice and stating that the Government has
stayed the demolition notice for a period of one month and called for
a report.
14] On 21.7.2010 this Court acting on reports of violation of
law initiated suo motu proceedings against the respondents and
stayed the construction. Thereafter, apparently the respondent
University submitted a representation to the Planning Authority which
was rejected on 4.10.2010. On 24.11.2010 this Court permitted the
Appellate Authority to proceed and decide the appeal. The Appellate
Authority rejected the appeal of the Agricultural University by order
dated 15.12.2010. This order has been challenged by the
respondent college in the present Writ Petition, i.e. No. 125/11, which
has been clubbed with the present P.I.L.
15] Mr. K.H. Deshpande, the learned Amicus Curiae in PIL,
submitted that the construction in question is completely illegal being
in contravention of the Development Plan of the city of Nagpur where
the land in question is shown as a reserved for extension of
Maharajbagh and is meant to be preserved as an open space. It was
also submitted that the construction is wholly unauthorised and illegal
since it is being done on a land which is designated as a Grade-I
Heritage site, for which the entry in the list reads as follows :-
Sr. Heritage Name Precinc Location Ownership Usages
No. Zone t
99 Open P.K.V. P.K.V. Large Panjabrao Agricultural
spaces Fields Fields Tracts Krishi Experiments
Throughout Vidyapeeth
West
Nagpur
Description Date Classifica- Condition
tion
Agricultural Ancient ig Natural Good
tracts of (use) (scc)
alluvial soil
along the
streams of
Nag River
and
elsewhere
Grade Category
III Open space (Land's excluding the reservation's and
proposal's of D.P. of Nagpur Town and the land
required for the Energy park" proposal of N.M.C. at
village (Gadga).
It was further submitted that the construction by the respondent
Agricultural University and Agricultural College is wholly unauthorized
since it was commenced and proceeded with without obtaining any
permission from any authority. It was further pointed out that the
respondent college had brazenly proceeded to carry on the
construction in spite of notices to stop work issued by the Planning
Authority and the false plea that the construction had the sanction of
the then Union Minister and the then Agricultural Minister, whereas in
fact there is nothing on record to indicate that any of these Ministers
had passed any order permitting such construction.
16] Shri M.M. Sudame, the learned Counsel appearing for the
Agricultural University and the College, submitted that the grant of Rs.
Five Crores was announced by the then Union Minister for
construction of a Communication Centre and which would have
lapsed had the construction not been commenced. However, the
learned Counsel further submitted that the respondent Agricultural
College has to carry on the construction for the purposes of providing
accommodation to farmers, who visit Nagpur and that even though
the permission for construction has been rejected and the appeal
against such rejection has been dismissed, the Government should
be directed to consider the representation made by the Agricultural
College for regularization of this construction. According to the
learned Counsel who appears for the petitioner in Writ Petition No.
125/11 filed by the Agricultural University, the order rejecting the
appeal filed by the Agricultural College before the Government does
not consider the merits of the plea for regularization but merely
rejects the appeal on the ground of the conduct of the College and
the University in commencing and continuing construction without
obtaining permission.
17] Shri M.M. Sudame, learned Counsel for the Agricultural
University, submitted that the structure cannot be considered to be
unauthorized since there was a deemed sanction to the application
made by the Agricultural University before commencing construction
at Annexure 'A' of Writ Petition No. 125/10. According to Shri M.M.
Sudame, learned Counsel for the Agricultural University, the
application dated 13.4.2007, though no date is visible in the said
application, must be deemed to have been sanctioned under Section
45(5) of the MRTP Act which reads as follows :-
"S. 45. Grant or refusal of permission :-
(1) On receipt of an application under section 44 the
Planning Authority may, subject to the provisions of this
Act, by order in writing --
(i) grant the permission, unconditionally;
(ii) grant the permission, subject to such
general or special conditions as it may impose with the
previous approval of the State Government; or
ig (iii) refuse the permission,
(2) Any permission granted under sub-section (1) with
or without conditions shall be contained in a
commencement certificate in the prescribed form,
(3) Every order granting permission subject to
conditions, or refusing permission shall state the
grounds for imposing such conditions or for such
refusal,
(4) Every order under sub-section (1) shall be
communicated to the applicant in the manner
prescribed by registration,
(5) If the Planning Authority does not communicate its
decision whether to grant or refuse permission to the
applicant within sixty days from the date of receipt of his
application, or within sixty days from the date of receipt
of reply from the applicant in respect of any requisition
made by the Planning Authority, whichever is later, such
permission shall be deemed to have been granted to
the applicant on the date immediately following the date
of expiry of sixty days :
Provided that, the development proposal,
for which the permission was applied for, is strictly in
conformity with the requirement of all the relevant
Development Control Regulations framed under this Act
or bye-laws or regulations framed in this behalf under
any law for the time being in force and the same in no
way violates either the provisions of any draft or final
plan or proposals published by means of notice,
submitted for sanction under this Act:
Provided further that, any development
carried out in pursuance of such deemed permission
which is in contravention of the provisions of the first
proviso, shall be deemed to be an unauthorised
development for the purposes of sections 52 to 57,
(6) The Planning Authority shall, within one month
from the date of issue of commencement certificate,
forward duly authenticated copies of such certificate
and the sanctioned building or development plans to the
Collector concerned."
We see no merit in this contention. The provision that the permission
shall be deemed to have been granted within a period of 60 days
from the date of receipt of the application if the Planning Authority
does not communicate its decision whether to grant or refuse
permission can apply only to cases where the permission is otherwise
capable of being sanctioned in law. If an application cannot be
sanctioned, it certainly cannot be said that it is capable of a deemed
sanction. In the present case, it is clear that no permission for
development could have been granted by the Planning Authority
since the site in question was not buildable at all being reserved as
an open space for extension of Maharajbagh.
18] It was also contended by Shri Sudame that the application
which was made by the Agricultural University was in fact an
application made by the Government and, therefore, it ought to have
been treated as an application for development undertaking on behalf
of the Government under Section 58 of the MRTP Act. Section 58
of the MRTP Act reads as follows :-
"S. 58. Development undertaken on behalf of
Government :
(1) When any Government intends to carry out
development of any land for the purpose of any of its
departments or offices or authorities, the officer in charge
thereof shall inform in writing the Planning Authority the
intention of Government to do so, giving full particulars
thereof, and accompanied by such documents and plans
as may be prescribed at least thirty days before
undertaking such development.
(2) Where a Planning Authority raises any objection to
the proposed development on the ground that the
development is not in conformity with the provisions either
of any Development Plan under preparation, or of any
building bye-laws in force for the time being, or for any
other material consideration, the officer shall --
(i) either make necessary modifications in the proposals
for development to meet the objections raised by, the
Planning Authority; or
(ii) submit the proposals for development together with
the objections raised by the Planning Authority to the State
Government for decision.
(3) the State Government, on receipt of the proposals for
development together with the objections of the Planning
Authority shall, in consultation with the Director of Town
Planning, either approve the proposals with or without
modifications or direct the officer to make such
modifications in the proposals as it considers necessary in
the circumstances.
(3A) The development proposal approved by the State
Government under sub-section (3) shall remain in force for
a period of one year from the date of grant of such
approval, and thereafter it shall lapse :
Provided that the officer in charge of the development
may apply under intimation to the Planning Authority, to
the State Government for extension of such period and
thereupon the State Government may extend such period
from year to year; but such extended period shall in no
case exceed three years :
Provided further that, such lapse shall not bar any
subsequent application by the officer in charge of the
development, for fresh approval to the development under
the preceding sub-sections.
(4) The provisions of sections 44, 45, and 47 shall not,
and section 46 shall, mutatis mutandis and section 48
shall, as modified by sub-section (3A), apply to
developments carried out under this section."
We do not see how Section 58 of the Act has any application to the
present case, particularly since the Dr. Punjabrao Deshmukh Krishi
Vidyapeeth, which is an Agricultural University which is established
and governed by the Maharashtra Agricultural Universities Act, 1983
cannot be considered as Government by any stretch of imagination.
Further, no sovereign function of the Government is attributable to the
Agricultural University.
19] We have considered the legality and propriety of the order
rejecting the appeal of the Agricultural University In Writ Petition No.
125/11. The Principal Secretary to the Government who heard the
appeal has taken note of the fact that the construction was contrary to
reservation and the construction which was commenced without any
authorization continued till this Court stayed it in June, 2010. The
Appellate Authority has come to the conclusion that the Planning
Authority has rightly rejected the permission which was sought
belatedly and the land was unbuildable since it was reserved for the
extension of Maharajbagh. The Appellate Authority has recorded a
clear finding of violation of Section 45 of the MRTP Act and held that
the structure needs to be demolished under Section 53 of the Act.
We find that since there is no dispute about the reservation of the
site, the fact that no permission was sought, the fact that there is no
change in reservation and that the construction was commenced and
proceeded without any authorization, the impugned orders of the
authority cannot be said to suffer from any error of law apparent on
the face of the record. Similarly, the Appellate Authority has rightly
rejected the plea of regularization on the ground that no regularization
can be granted unless there is a modification of the reservation under
Section 37 of the MRTP Act and the reservation is changed to permit
regularization. The Appellate Authority has rightly held that any
regularization in the circumstances of the case would give a wrong
signal to all concerned and that the University which should set an
example of probity has violated the law of the land and flouted the
direction of the Competent Authority. The Appellate Authority has
rightly invoked the dictum of the Father of the Nation that "the means
should justify the end" with reference to the plea that the construction
is being made for providing a facility for farmers. We see no reason
to interfere with the order of the Appellate Authority.
20] Indeed, the acts of the respondent Agricultural University
and Agricultural College presents a sorry picture. As we have noted,
even the application made on its behalf is misleading and seeks
permission to develop a land on a wrong Khasra number, i.e. Khasra
No."79" only because the reservation on the Khasra number which is
mentioned permits construction. In fact, the land on which the
construction is made is Khasra No. 83/4 which is undisputedly
reserved for the extension to Maharajbagh and has an open space
and is, therefore, not buildable. The Agricultural University and its
officers not only acted in contravention of law but when directed by
the authorities to stop the illegal activity, acted in defiance relying on
non-existent and untenable claims that the Ministers in the
Government have permitted the construction. There is not a single
order by any Minister authorizing this construction. Also it cannot be
said that the then Union Agriculture Minister announced a grant of Rs.
Five Crores for construction of the Communication Centre at this site
or at any site where it is not permissible. The attempt by the
respondent Agricultural University and the authorities of the University
to show patronage to their ill-begotten project by the Ministers and
M.L.As. is unfortunate and appears to be a plea taken solely to cover
up their illegalities. Apart from the illegalities, it is unfortunate that
the Agricultural University ought to have considered destroying or
marginalizing a facility like a laboratory meant for research into
agriculture, though agricultural research is much needed and
diverting the land meant for that, for construction of Communication
Centre. The act is all the more unfortunate particularly because the
University has more than enough land elsewhere in Nagpur itself to
make such a Centre. The Agricultural University seems to be
oblivious of the need for open green areas in urban green spaces in
town and cities including Nagpur. A recent report on urban forests
and open green spaces in relation to some cities in Rajasthan states
as follows :-
"Many policy instruments and robust scientific evidence in
last two decades have emphasized the critical necessity
of green areas within urban social ecological systems to
ameliorate several problems of city-living. As this study
will demonstrate, benefits of urban green spaces are
wide-ranging including physical and psychological health,
social cohesion, climate change mitigation, pollution
abatement biodiversity conservation and provisioning of
the ecosystem goods and service to urban
inhabitants........."
This report emphasized the need for laying down standards of certain
area of green spaces per capita for reaching a balance between
carbon-dioxide and oxygen to meet the ecological balance of human
well-being. The learned Amicus Curiae has rightly relied on this
report and submitted that diversion of such large green urban spaces
to built-up areas should not be allowed in Nagpur also. We consider
it, therefore, appropriate to direct the respondent Planning Authority
to undertake a study and determine the optimum standard of open
space per capita as has been done for other cities, such as Jaipur,
etc. The study may be completed and a report shall be submitted to
this Court within a period of one year from today.
21] In this regard, it would be appropriate to refer to the
powerful case made out by a Red Indian Chief to the Great White
Chief in Washington reproduced by the Supreme Court in the case of
Shri Sachidanand Pandey and another .vs. The State of West
Bengal and others reported in AIR 1987 SC 1109, which reads as
follows :-
2. A hundred and thirty-two years ago, in 1854, 'the wise
Indian Chief of Seattle' replied to the offer of 'the great
White Chief in Washington' to buy their land. The reply is
profound. It is beautiful. It is timeless. It contains the
wisdom of the ages. It is the first ever and the most
understanding statement on environment. It is worth
quoting. To abridge it or to quote extracts from it is to
destroy its beauty. You cannot scratch a painting and not
diminish its beauty. We will quote the whole of it :
* "How can you buy or sell the sky, the warmth of the
land'! The idea is strange to us.
"If we do not own the freshness of the air and the sparkle
of the water, how can you buy them?
"Every part of the earth is sacred to my people. Every
shining pine needle, every sandy shore, every mist in the
dark woods, every clearing and humming insect is holy in
the memory and experience of my people. The sap
which courses through the trees carries the memories of
the red man.
"the white man's dead forget the country of their birth
when they go to walk among the stars. Our dead never
forget this beautiful earth, for it is the mother of the red
man. We are part of the earth and it is part of us. The
perfumed flowers are our sisters; the horse, the great
eagle, these are our brothers. The rocky crests, the
juices in the meadows, the body heat of the pony, and
man - all belong to the same family.
"So, when the Great Chief in Washington sends word
and he wishes to buy our land, he asks much of us. The
Great Chief sends word he will reserve us a place so that
we can live comfortably to ourselves. He will be our
father and we will be his children. So we will consider
your offer to buy our land. But it will not be easy. For this
land is sacred to us.
"This shining water which moves in the streams and
rivers is not just water but the blood of our ancestors. If
we sell you land, you must remember that it is sacred,
and you must teach your children that it is sacred and
that each ghostly reflection in the clear water of the lakes
tells of events and memories in the life of my people. The
water's murmur is the voice of my father's father.
"The rivers are our brothers, they quench our thirst. The
rivers carry our canoes, and feed our children. If we sell
you our land you must remember, and teach your
children, that the rivers are our brothers, and yours and
you must henceforth give the kindness you would give
any brother.
"We know that the white man does not understand our
ways. One portion of, land is the same to him as the
next, for he is a stranger who comes in the night and
takes from the land whatever he needs. The earth is not
his brother but his enemy, and when he has conquered
it, he moves on. He leaves his fathers' graves behind,
and he does not care.
"He kidnaps the earth from his children. His father's
grave and his children's birthright are forgotton. He treats
his mother, the earth, and his brother, the sky, as things
to be bought, plundered, sold like sheep or bright beads.
His appetite will devour the earth and leave behind only
a desert.
"I do not know. Our ways are different from your ways.
The sight of your cities pains the eyes of the red man.
But perhaps it is because the red man is a savage and
does not understand.
"There is no quiet place in the white man's cities. No
place to hear the unfurling of leaves in spring or the
rustle of an insect's wings. But perhaps it is because I
am a savage and do not understand. The clatter only
seems to insult the ears. And what is there in life if a man
cannot hear the lonely cry of the whippoorwill or the
arguments of the frogs around a pond at night? I am a
red man and do not understand. The Indian prefers the
soft sound of the wind darting over the face of a pond,
and the smell of the wind itself, cleansed by a mid-day
rain, or scented with the pinon pine.
The air is precious to the red man, for all things share the
same breath -- the beast, the tree, the man, they all
share the same breath. The white man does not seem to
notice the air he breathes. Like a man lying for many
days, he is numb to the stench. But if we sell you our
land, you must remember that the air is precious to us,
that the air shares its spirit with all the life it supports.
The wind that gave our grandfather his first breath also
receives the last sigh. And if we sell you our land, you
must keep it apart and sacred as a place where even the
white man can go to taste the wind that is sweetened by
the meadow's flowers.
"So we will consider your offer to buy our land. If we
decide to accept, I will make one condition. The white
man must treat the beasts of this land as his brothers.
"I am a savage and I do not understand any other way. I
have seen a thousand rotting buffaloes on the prairie, left
by the white man who shot them from a passing train. I
am a savage and I do not understand how the smoking
iron horse can be more important than the buffalo that
we kill only to stay alive.
"What is man without the beasts? If all the beasts were
gone, man would die from a great loneliness of spirit. For
whatever happens to the beasts soon happens to man.
All things are connected.
"You must teach your children that the ground beneath
their feet is the ashes of our grandfathers. So that they
will respect the land. Tell your children that the earth is
rich with the lives of our kin. Teach your children what we
have taught our children, that the earth is our mother.
Whatever befalls the earth befalls the sons of the earth.
If man spit upon the ground, they spit upon themselves.
"This we know : The earth does not belong to man; man
belongs to the earth. This we know : All things are
connected like the blood which unites one family. All
things are connected.
"Whatever befalls the earth befalls the sons of the earth.
Man did not weave the web of life: he is merely a strand
in it. Whatever he does to the web he does to himself.
"Even the white man, whose God walks and talks with
him as friend to friend. cannot be exempt from the
common destiny. We may be brothers after all. We shall
see. One thing we know, which the white man may one
day discover - our God is the same God. You may think
now that you own Him as you wish to own our land; but
you cannot. He is the God of man, and His compassion
is equal for the red man and the white. This earth is
precious to Him, and to harm the earth is to heap
contempt on its Creator. The white too shall pass;
perhaps sooner than all other tribes. Contaminate your
bed and you will one night suffocate in your own waste.
"But in your perishing you will shine brightly, fired by the
strength of the God who brought you this land and for
some special purpose gave you dominion over this land
and over the red man. That destiny is a mystery to us, for
we do not understand when the wild buffalo are all
slaughtered, the wild horses are tamed, the secret
corners of the forest heavy with scent of many men and
the view of the ripe hills blotted by talking wires. Where is
the thicket ? Gone. Where is the eagle ? Gone. The end
of living and the beginning of survival."
In the same case, the Supreme Court reiterated the warning in
following terms which has not only not lost its relevance but has
assumed greater importance in recent years due to natural disasters
said to be induced by human intervention :-
"......In the last century, a great German materialist
philosopher warned mankind : "Let us not, however,
flatter ourselves over much on account of our human
victories over nature. For each such victory nature takes
its revenge on us. Each victory, it is true, in the first place
brings about the results we expected, but in the second
and third places it has quite different, unforeseen effects
which only too often cancel the first."
22] As regards the fate of the offending structure, Mr. K.H.
Deshpande, learned Senior Counsel (Amicus Curiae) for petitioner in
PIL, relied on the following observations of the Supreme Court in the
case of M.I. Builders Pvt. Ltd. .vs. Radhey Shyam Sahu and
others reported in (1999) 6 SCC 464 where the Supreme Court
observed in paragraph no.73 as follows :-
"73. The High Court has directed dismantling of the
whole project and for restoration of the park to its original
condition. This Court in numerous decisions has held
that no consideration should be shown to the builder or
any other person where construction is unauthorised.
This dicta is now almost bordering the rule of law.
Stress was laid by the appellant and the prospective
allottees of the shops to exercise judicial discretion in
moulding the relief. Such a discretion cannot be
exercised which encourages illegality or perpetuates an
illegality. Unauthorised construction, if it is illegal and
cannot be compounded, has to be demolished. There is
no way out. Judicial discretion cannot be guided by
expediency. Courts are not free from statutory fetters.
Justice is to be rendered in accordance with law.
Judges are not entitled to exercise discretion wearing
the robes of judicial discretion and pass orders based
solely on their personal predilections and peculiar
dispositions. Judicial discretion wherever it is required to
be exercised has to be in accordance with law and set
legal principles."
23] Shri M.M. Sudame, learned Counsel for the Agricultural
University, relied on the decision of the Supreme Court in
Corporation of Calcutta .vs. Mulchand Agarwala reported in AIR
1956 SC 110 where the Supreme Court declined to permit the
demolition of the building which has been constructed. The facts and
circumstances of the case are entirely different from the present case.
In any case, there was no question of a construction made in
contravention of a developed plan validly made under the Town
Planning Act there.
24] In the result, Writ Petition No. 125/11 is liable to be
dismissed and is accordingly dismissed.
C.A.W. No. 1286/11 for direction to the Government to
consider representation for regularisation is also dismissed.
The impugned notice for demolition dated 25.11.2009 is
upheld as valid. The Planning Authority is accordingly directed to
carry out the demolition of the Communication Centre and the
adjacent structure upto the plinth level and any other structure which
may be found on the land in question, i.e. Khasra No. 83/4 within a
period of one month from today. The Agricultural University, i.e. Dr.
Punjabrao Deshmukh Krishi Vidyapeeth is directed to restore the user
of Khasra No. 83/4 to its original use without any further delay.
The Vice-Chancellor of University is directed to hold an
enquiry into whether the application for development was duly made
after proper authorization of the authority empowered to make such
an application and whether a decision was taken by the appropriate
authority to divert the land from its use as a Laboratory to a
Communication Centre in accordance with law and statutes
governing such decisions of the University. The enquiry shall fix the
responsibility on those responsible for the said acts and an
appropriate action shall be ordered against those responsible. A
report in this regard may be submitted to this Court within a period of
one year from today.
We further direct the respondent Planning Authority to
undertake a study and determine the optimum standard of open
space per capita as has been done for other cities, such as Jaipur,
etc. The study may be completed and a report shall be submitted to
this Court within a period of one year from today.
Rule is made absolute in the P.I.L. in above terms.
We are grateful to the learned Amici Curiae Shri K.H.
Deshpande & Shri D.V. Chauhan for the able assistance rendered by
them in the present matter.
JUDGE.
ig JUDGE.
J.
