IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD

THE HONOURBLE SRI JUSTICE V.V.S.ROA

BHAGYA NAGAR COLONY WELFARE ASSOCIATION

Versus

GOVERNMENT OF ANDHRA PRADESH, REP. BY ITS SECRETARY

W.P.NOS.5902 OF 2003 & 1354 OF 1998, Judgment dated 24th April 1003.

JUDGMENT

The land comprised in Survey Nos. 162, 163, 165 and 167 to 170 of Kukatpally was developed as Bhagyanagar Colony.  Lay out was approved by the Hdyerabad Urban Development Authority (HUDA) by its proceedings No.56/MP-II/HUDA/89, dated: 5.2.1990.  Multi-storeyed residential complexes/group housing were constructed and houses were allotted.  A portion of the land admeasuring 2,897 sq yards was earmarked as a park/open space.  As usually happens in all such layouts, the land earmarked as park/open space was not utilized for the purpose for which it has earmarked.

 In the year 1998, four welfare associations of Bhagyanagar Colony, namely, Bhagyanagar Residents Welfare Association (hereinafter called as "the first petitioner"), Bhagyanagar Colony Development Association, Bhagyanagar Colony Consumer Association and Bhagyanagar Mahila (another association) and the Forum for People's Thought, Bhagyanagar Colony filed Writ Petition being W.P.No.1354 of 1998.  They prayed to issue a Writ of Mandamus directing the respondents, namely, the Government of Andhra Pradesh, the District Collector, Ranga Reddy District, Municipal Commissioner, Kukatpally Municipality, Vice-Chairman, HUDA and Secretary of Sri Shirdi Sai Samaj, Bhagyanagar Colony to protect the park area in the colony. The Writ Petition was admitted on 27.2.1998.  The first petitioner again filed W.P.No.22218 of 2002 praying this Court to declare the proceedings of the District Collector, dated: 1.11.2002, as illegal and contrary to the provisions of the Andhra Pradesh Municipalities Act, 1965 ("the Act" for brevity).  They also sought a declaration that Resolution No.1206 dated: 29.8.2002 of Kukatpally Municipality is valid in the eye of law.  Be it noted that by the resolution dated: 29.8.2002, the Municipal Council resolved to keep the open area as a park and display board as such.  The District Collector ordered to remove illegal structures existing in the said area.  Be it also noted that the District Collector also considered the order passed by this Court in W.P.No.6524 of 2002 filed by the Senior Citizens Council praying for a Writ of Mandamus declaring the action of the Municipality in allowing third parties to construct structures in the park area, which was disposed of by this Court directing the Municipality to take appropriate action after considering the representation made by the petitioner therein.

 By an order dated: 8.11.2002, this Court disposed of W.P.No.22218 of 2002 observing as under:

 "The ultimate direction contained in the notice is only for removal of illegal structures.  The question whether any of the existing structures is being used as reading room and the same is suitable from the public point of view and whether the stage which is said to be in existence would sub-serve any public purpose are the matters which need to be considered by the appropriate authorities.  Further, even after the area is cleared of any illegal structures, the petitioners can certainly submit a representation to the respondents for providing those very amenities in an orderly and systematic manner, which in turn, will be for the benefit of the residents of the locality.

 Viewed from any angle, no exception can be taken to the impugned notice.  It is, however, directed that while taking further steps in pursuance of the impugned notice, the feasibility or otherwise of retaining any of the structures shall be considered.  It is further clarified that no individual shall be entitled to have any proprietary or preferential rights as regards the possession or maintenance of the said public property."

  At that stage, the Bhagyanagar Colony Welfare Association (hereinafter called as "the second petitioner") filed Writ Petition No.5902 of 2003 seeking a direction to the respondents, namely, Government of Andhra Pradesh in Municipal Administration Department, District Collector, Ranga Reddy District and Kukatpally Municipality, to remove all the constructions made in the park area and also declare the order passed by the District Collector as illegal. The District Collector in the said order observed as under:

 "  In compliance with the orders of the Hon'ble High Court of Andhra Pradesh that no exemption can be taken to impugned notice and directed that while taking further steps in pursuance to the impugned notice the feasibility or otherwise retaining to any of the structures shall be considered and also clarified that no individual shall be entitled to have any property or preferential rights as regard the possession or maintenance of public property under the suit.

 In view of the above it is ordered that the open space existing in Sy.No.168 of Kukatpally village be vested with the Municipality only.  The structures which has been built be retained as reading room for the benefit of all others, but the ownership would vest with municipality only, but under the supervision of Bhagyanagar Residents' Welfare Association."

  When W.P.No.5902 of 2003 was listed before me for a preliminary hearing, having regard to the earlier orders passed by this Court as well as the law declared by the Supreme Court in relation to the maintenance of parks and open places having environmental impact, I directed the learned Standing Counsel for Municipality to disclose the stand of the Municipality in the matter. At that stage, the first petitioner filed an application being WPMP No.8808 of 2003 seeking impleadment in W.P.No.5902 of 2003.  It was brought to my notice that W.P.No.1354 of 1998 filed by five associations is pending and, therefore, the Office was directed to post both the matters together.

 The matter was heard during the course of this week as well as last week.  Learned counsel for the second petitioner, (petitioner in W.P.No.5902 of 2003), Sri V.S.R.Anjaneyulu, placed reliance on the judgment of a Division Bench of this Court in Co-operative Housing Society, Saleemnagar Limited v. MCH1 in support of his contention that the land earmarked in approved lay out for park/open space cannot be converted into any other purpose including religious purpose.  Therefore, he submits that notwithstanding the observations made by the Municipal Council in the resolutions, all the structures should be removed from the park area.

 The learned counsel for the petitioners in W.P.No.1354 of 2003, Mr. P.S.P. Suresh Kumar, submits that by the time the said writ petition was filed on 31.12.1997, in an area of 300 sq. yards in park portion, Sri Sai Baba Temple was constructed by Sri Shirdi Sai Samaj, i.e., the 6th respondent in W.P.No. 1354 of 1998.  He submits that as the temple is serving spiritual needs of the residents of Bhagyanagar Colony, the same may be allowed and all other semi permanent and temporary structures, may be removed.

The learned Standing Counsel for the Municipality has placed before me two resolutions passed by the Municipal Council on 1.9.2002 and 28.2.2003.  He submits that the Kukatpally Municipality is ready to develop the area as a park and that an amount of Rs.5,00,000/- (Rupees five lakhs only) has already been earmarked in the budget.

 There is near unanimity among all the counsel with reference to law that land earmarked for a park/open space cannot be converted into any other purpose.  The strong opposition comes from Sri Shiv Shankar Choudhary, the learned counsel for the first petitioner, M/s Bhagyanagar Residents Welfare Association, at present, represented by its General Secretary, C.Srinivas Das. The learned counsel has placed before me large number of photographs and various plans to show that apart from the temple there are other structures contends that all the residents of the colony visit the temple more often than not.  He also submits that a portion of the area is being used as play ground which would also sub-serves public purpose.  He, therefore, contends that no area is available for developing the park.

 The only question that arises for consideration is whether the area admeasuring 2897 sq. yards in the approved lay out of Bhagyanagar colony can be permitted to be utilized for other purposes than for the purpose of park and open space?

 It is not denied by all the counsel that the area in question was earmarked for a park/open space.   It is not denied that atleast to an extent of 1250 sq. yards of land is available for development of the park.  Therefore, there cannot be any dispute or objection for developing an extent of 1250 sq. yards into a park for the benefit and use of the people of Bhagyanagar Colony as well as others. The controversy is whether the area admeasuring about 1,647 sq.yards has to be resumed and reclaimed by demolishing and removing the structures which are ex facie illegal having regard to the provisions of Andhra Pradesh Municipalities Act, 1965 and HUDA Lay-out Rules, 1982.

 It is now well settled that having regard to the provisions of Article 48-A of the Constitution of India, the State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.  After Article 48-A was introduced by the Constitution (42nd Amendment) Act, 1976, there has been sudden spurt of litigation by well meaning social activists to protect quality of life in urban areas and a movement for protecting parks and ground areas is on increase.  Indeed, it augurs well for the community at large.

In Virender Gaur v. State of Haryana2, Government of Haryana permitted the Municipality in Haryana to lease out open space to Punjab Samaj Sabha (PSS) for construction of Dharmashala.  PSS was required to pay the lease amount to the Municipality. The land, which was ordered to be demised to PSS, was meant as a public amenity to the residents of the locality to maintain ecology, sanitation, recreation, play ground and ventilation purposes.  Though the land stood vested in the Municipality, the Government ordered the grant of lease for purpose of construction of Dharmashala.  Residents of the locality approached the Punjab and Haryana High Court challenging the order of the Government unsuccessfully. On High Court declining to interfere, the respondents carried the matter to the Supreme Court.  For the lessee, it was contended that under the Municipalities Act, it was permissible for the Municipality to lease out the land for charitable purpose, and, therefore, leasing out of open space in the lay out is within the powers of the Municipality.  The Supreme Court after referring to the Stockholm Declaration on Human Environment, 1972 and Article 48-A, while quashing the orders issued by the Government and ordering to pull down all the constructions made by Punjab Samaj Sabha and also directing the filing of the report by the Municipality, observed thus:

 " The word 'environment' is of broad spectrum which brings within its ambit "hygienic atmosphere and ecological balance".  It is, therefore, not only the duty of the State but also the duty of every citizen to maintain hygienic environment.  The State, in particular, has duty in that behalf and to shed its extravagant unbridled sovereign power and to forge in its policy to maintain ecological balance and hygienic environment.  Article 21 protects right to life as a fundamental right.  Enjoyment of life and its attainment including their right to life with human dignity encompasses within its ambit, the protection and preservation of environment, ecological balance free from pollution of air and water, sanitation without which life cannot be enjoyed.  Any contra acts or actions would cause environmental pollution.  Environmental, ecological, air, water, pollution, etc. should be regarded as amounting to violation of Article 21.  Therefore, hygienic environment is an integral facet of right to healthy life and it would be impossible to live with human dignity without a humane and healthy environment.  Environmental protection, therefore, has now become a matter of grave concern for human existence.  Promoting environmental protection implies maintenance of the environment as a whole comprising the man-made and the natural environment.  Therefore, there is a constitutional imperative on the State Government and the municipalities, not only to ensure and safeguard proper environment but also an imperative duty to take adequate measures to promote, protect and improve both the man-made and the natural environment."

      (Emphasis supplied).

The Supreme Court while referring to Bangalore Medical Trust v. B.S.Muddappa ((1991) 4 SCC 54) and made the following observation:

 "The land having been taken from the citizens for a public purpose, the Municipality is required to use the land for the protection or preservation of hygienic conditions of the local residents in particular and the people in general and not for any other purpose.  Equally, acceptance of the argument of Shri V.C.Mahajan encourages pre-emptive action and conduct, deliberately chartered out to frustrate the proceedings and to make the result fait accompli.  We are unable to accept the argument of fait accompli on the touchstone of prospective operation of our order."

 In M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu3, Lucknow Nagar Mahapalika constructed underground shopping complex in a historic park known as Jhandewala Park situated at Aminabad Market, Lucknow.  The same was challenged before the Lucknow Bench of Allahabad High Court, which held that the decision of Lucknow Municipality is illegal, arbitrary and unconstitutional. As M.I. Builders Pvt. Limited, which was entrusted with the work of construction of shopping complex had completed part of construction, it sought Special Leave and preferred Civil Appeal before the Supreme Court.  The Supreme Court affirmed the view of Lucknow Bench of Allahabad High Court and also directed to dismantle and demolish all the constructions made in the public park and also restore the place as a park to its original shape.  The apex Court observed as under:

 " ...... As said earlier, High Court rightly exercised its power of judicial review in the present case.  It has examined the manner in which the decision was made by the Mahapalika. Second principle laid in Tata Cellular's case (1994) 6 SCC 631: (1994 AIR SCW 3344: AIR 1996 SC 11) applies in all respects.  High Court held that the maintenance of the park because of its historical importance and environmental necessity was in itself a public purpose and, therefore, the construction of an underground market in the garb of decongesting the area was wholly contrary and prejudicial to the public purpose.  By allowing the construction Mahapalika had deprived its residents as also others of the quality of life to which they were entitled to under the Constitution and the Act.  The agreement smacks of arbitrariness, unfairness and favouritism.  The agreement was opposed to public policy. It was not in public interest. Whole process of law was subverted to benefit the builder.  We agree with the findings and conclusions of the High Court."     (Emphasis supplied).

 In Co-operative Housing Society, Saleemnagar Limited v. MCH (1 supra), a Division Bench of this Court, to which I was a Member, considered the question whether construction of a school building in the area earmarked for park at the behest of the Hyderabad Municipal Corporation is justified.  The building permission granted by the Municipal Corporation of Hyderabad to a minority educational institution for construction of building was subject matter of the writ petition before the Division Bench.  This Court referred to Bangalore Medical Trust v. B.S.Muddappa (supra), M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu ( 3 supra) and also a judgment delivered by me in NGOs Colony Development Committee v. District Collector, Krishna, Machilipatnam4  and categorically laid down as under:

 "  The answer to the said question must be rendered in the negative.  Right to clean environment is a part of the fundamental right under Article 21 of the Constitution of India.  The land earmarked for park cannot be converted or changed into land for other purposes.  If the Corporation had no jurisdiction to grant permission for construction of the building in a park, no amount of consent can validate the invalidity. The order of the Corporation was a nullity.  The Corporation being a statutory authority must exercise its jurisdiction within the four corners of the statute.  Any action taken beyond the power by Corporation shall be ultra vires.

 Therefore, it is a settled law of the land, nay, it is axiomatic that when once a lay out is approved showing an open space meant for a park or for a recreational purpose, under no circumstance, no public authority, be it the Government, the District Collector or the Municipal body, is entitled to utilize the land for any other purpose.  This is especially so, when the land is earmarked as a green space/park meant for the user of the people of the locality.  It appears, Municipality allowed free hand to all and sundry to raise structures and the temple.  As all the learned counsel appearing for various contesting parties admit that an extent of only 300 sq. yards is occupied by Sri Shirdi Sai Temple and there is no objection among the colony people, the same can be allowed.  In so far as other temporary structures like reading room and other huts are concerned, they are unauthorized and they were constructed without the permission and they should be removed.  I may hasten to add that even if the Municipality has permitted such constructions, all such permissions are contrary to law laid down by the Supreme Court.    Rule of Law requires that they should be ignored, as they are void. Void order cannot be allowed to stand as observed by the Supreme Court in Virender Gaur v. State of Haryana (2 supra) and M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu (3 supra).

The power of judicial review also extends to protecting the larger interests of the people and when it comes to ensuing constitutional governance by Rule of Law, equities have no place.  Whatever be the cost of the construction, they should be removed and dismantled.  As observed by the Supreme Court in paragraph 80 of the judgment in M.I.Builders Pvt. Ltd. v. Radhey Shyam Sahu (3 supra), the construction in a park area would be prejudicial to the public purpose.  In my considered opinion, notwithstanding the fact that the Shirdi Sai Temple has come up, the same would not totally sub-serve public purpose of all people, especially, in these days of growing pollution and fast degrading quality of life.

Therefore, for the above reasons, these two writ petitions are disposed of with the following observations and directions:

 (i) Notwithstanding any order passed by any Civil Court and the Government of Andhra Pradesh or District Collector, the Kukatpally Municipality shall immediately take action for demolishing and dismantling all structures, which have come up in the open area admeasuring 2897 sq. yards in the lay out approved by the Hyderabad Urban Development Authority, whatever be the amount spent on such structures, forthwith. The Municipality may take police help if necessary.  It is made clear that all the Associations espousing the cause and public interest of the residents are before this Court and no further notice is necessary to anybody;

 (ii) The actual area occupied by Shirdi Sai Baba temple shall be excluded and other structures, be it, temporary or permanent, shall also be dismantled and removed forthwith. The area of about 2,597 sq. yards after excluding 300 sq. yards occupied by the temple shall be developed as a park and compliance report shall be filed in this Court, within a period of three months by the learned Standing Counsel for the Municipality;

 (iii) It is not denied that an amount of Rs.5,00,000/- has already been sanctioned.  Further, the learned counsel for Bagyanagar Colony Welfare Association, Sri V.S.R.Anjaneyulu, submits that the members of the Association will be depositing an amount of Rs.50,000/- with the Municipality within a period of one month from the date of the receipt of a copy of this order, and the same is recorded;

 (iv) The Municipality shall commence the work of park forthwith without waiting for the petitioner to deposit the amount of Rs.50,000/-; and

(v) As and when the Municipality requests, the Superintendent of Police shall send a contingent of police for removing the illegal constructions.

No costs.