PARTHA PRATIM GHOSH v. STATE OF WEST BENGAL, 2000 0 AIR(Cal) 84

 

2000 0 AIR(Cal) 84; 2000 1 CalLT 301; 1999 0 Supreme(Cal) 571;

 

 

 

High Court Of Calcutta

 

S. B. SINHA, M. H. S. ANSARI

 

PARTHA PRATIM GHOSH - Appellant

 

Versus

 

STATE OF WEST BENGAL - Respondent

 

W. P. 7654 (W) Of 1999

 

Decided On : 10/13/1999

 

 

 

 

 

REFERRED TO : Malik Brothers v. Narendra Dadhich, 1999 7 Supreme 332

 

M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu, 1999 5 JT 42

 

Kamalesh Manilal Mehta v. Amreli Municipality, AIR 1998 Guj 77

 

G. B. Mahajan v. Jalgaon Municipal Council, AIR 1991 SC 1153

 

Kasturi Lal Lakshmi Reddy v. State of J and K, AIR 1980 SC 1992

 

CONSTITUTION OF INDIA : Art.226

 

S. B. SINHA, J.

 

( 1 ) A petition in the nature of Public Interest Litigation has been filed praying, inter alia, for the following reliefs :-" (A) Writ in the nature of Mandamus commanding the respondents Serampore Municipality to forthwith restrain themselves from constructing any further the Supermarketat Gandhi Maidan, Serampore, Hooghly until further order. (b) Writ in the nature of Mandamus commanding the respondent Serampore Municipality to restrain themselves from using the said Gandhi Maidan for commercial purpose other than allowing the said Maidan to be used for children park and play ground in terms of the transfer deed executed long back in respect of the said Maidan. "

 

( 2 ) THE main grievance of the petitioners is that a public park is sought to be encroached upon and multi-storeyed building is being constructed.

 

( 3 ) THE basic facts are not in dispute.

 

( 4 ) THE land in question is known as Gandhi Maidan which previously belonged to the Railway Administration and was used as R. M. S. ground. The writ petitioners came to learn from the respondent Nos. 6 and 7 who are Councillors of Serampore Municipality that a super-market is being constructed, as a result whereof the greenery of the said Gandhi Maidan shall be destroyed and damaged. By reason of such construction the children would also be deprived of using the same as their play-ground and park.

 

( 5 ) IT has not been disputed that such a policy decision had been taken by the authorities of the Serampore Municipality and constructions are being raised by one S. S. Project Limited who

has also been added as a Respondent. The fact reveals that a proposal to the said effect was being mooted for a long time. It is also not in dispute that an advertisement had been issued in the Asian Age on or about 5-11-1998 asking for tenders for constructions of market complex; pursuant whereto, inter alia, the aforementioned S. S. Project Limited filed its tender and the same had been accepted.

( 6 ) THE respondents contend that the area in question had never been used as a Public Park but it has not been disputed that the children were using the same as a play-ground and meetings also used to be held therein. The respondent-Municipality contends that as illegal structures were raised by a number of hawkers whose number had been identified at 168. Encroachments caused to be made both inside or outside the ground and with a view to removing the said encroachment the aforementioned proposal had been mooted. In terms of the said project, according to the respondents, not only the Hawkers who had encroached upon the road and/or a portion of the plot but also other hawkers who are about 200 in number can be accommodated. It has not been disputed that whereas the Hawkers would be accommodated on concessional basis, it would be open to the developers to let out a large number of shops to the outsiders on their own terms.

 

( 7 ) IT also stands admitted that a major portion of the construction is already complete. The Court has appointed Sri Dipankar Dutta as a Special Officer. The said Special Officer has submitted a report to this Court. The learned Special Officer in his report, inter alia, stated :-"although it has been the stand of the Municipality before me that decision to construct the super market was taken with the view to rehabilitate the stall holders and to remove encroachments on public roads, the terms of the agreement dated February 15, 1999 as well as the documents being annexure 'b' hereto make it clear that in the guise of rehabilitation and removal of encroachment commercial transactions have been entered into by the Municipality with the added respondent to carve out distinct benefits in its favour and for giving effect to the same the vast open space which the Maidan provided has been sought to be sacrificed to a considerable extent. What would remain of the Maidan after construction of stalls on its three sides is anybody's guess. The details of the land area, area under construction, existing green area before construction, proposed green area after construction, etc. have been provided to me by the added respondent which are to the following effect :-a. Land area of Maidan : 72, 144. 70 sq. ft. (approx)b. Area under construction : (ground floor) : 32,679 sq. ft. (approx ). c. Existing green area before construction : 47,000 dq. ft. (approx ). d. Proposed green area after construction: 42,000 sq. ft. (approx ). I had ventured with my little knowledge of Arithmetic to calculate the proposed green area after construction of the stalls on all three sides of the Maidan on the basis of themeasurements given in the sanctioned building and site plans. There is indication of a proposed play ground for 7 aside in the building plan measuring 54 m x 27 m = 15,674 sq. ft. (approx ). The balance portion of the proposed green area, as per my rough calculation measures 15,916sq. ft. (approx ). The aforesaid figures add up to 31,590 sq. ft. (approx) which would result in reduction of pre-construction green area by about 16,000 sq. ft. (approx) assuming that existing green area prior to construction being 47,000 sq. ft. as calculated by the added respondent is correct. "

 

( 8 ) TWO objections to the said report had been filed by the Promoters. Applications for intervention had also been filed by the Hawkers which were allowed.

( 9 ) THE learned counsel for the petitioners as also the Councillors submitted that the Municipality being statutory functionary and local authority cannot take any decision which will be detrimental to maintenance of ecological balance and destroy a Public Park and a play ground.

( 10 ) ON the other hand, the learned counsels for the respondents including the Hawkers, viz. respondent-Municipality, the Promoter and the Hawkers represented by Sri Ashok Banerjee Sri Jayanta Mitra, Senior Advocate, Sri Anindya Mitra, former Additional Solicitor General respectively submitted that the project having been undertaken for a public cause, this Court should not interfere therewith. The respondents have utterly failed to show that they had taken any policy decision for the purpose of rehabilitation of the Hawkers. Apart from reference to a representation by some Hawkers the Municipality had failed to produce before us as regard any decision taken to rehabilitate the Hawker and the modalities thereof how and in what manner the Hawkers would be distributed the shop rooms, what would be the terms and conditions for allotment of the shops and what would be the terms and conditions in respect of the outsiders are all absent both in the minutes of meetings produced before us or in the advertisement. Particularly enough although in the advertisement merely tenderers were invited for the purpose of construction of a super market complex, the project has been turned into a joint venture allegedly on the ground that the Municipality had no fund to finance construction of such super market complex.

 

( 11 ) NOTHING has been brought on record to show how that was done and what were the terms and conditions therefor. Nothing has also been brought on records to show as to whether negotiations had been held between other tenderers as regard the said proposal. The conduct of the Municipality is suspect but the question which arises for consideration before us would be as to whether keeping in view the fact that structures had already been made and some of the Hawkers had already been rehabilitated would be proper for this Court to direct demolition of the structure.

 

( 12 ) BEFORE we proceed to consider the matter any further, we may place on record that although earlier the market complex was to be a five storeyed building, now the same would be confined to three storeyed only.

( 13 ) THERE cannot be any doubt whatsoever that the Municipal authorities are public trustees in respect of Public Parks and they have statutory duty to maintain the same in the same manner.

( 14 ) IN Malik Brothers v. Narendra Dadhich, reported in 1999 7 Supreme 332, it is stated :-"a Public Interest Litigation is usually entertained by a Court for the purpose of redressing public injury, enforcing public duty, protecting social rights and vindicating public interest. The real purpose of entertaining such application is the vindication of the rule of law, effective access to justice to the economically weaker class and meaningful realisation of the fundamental rights. The directions and commands issued by the Courts of law in a public interest litigation are for the betterment of the society at large and not for benefiting any individual. "

 

( 15 ) SEE also Kamalesh Manilal Mehta v. Amreli Municipality, reported in AIR 1998 Gujarat 77 and M. I. Builders Pvt. Ltd. v. Radhey Shyam Sahu reported in (1999) 5 JT (SC) 42. It is equally true that no Public Interest Litigation would be entertained for the benefit of a private individual as has been held in Malik Brothers v. Narendra Dadhich, reported in 1999 7 Supreme 332.

( 16 ) IN this case we are satisfied that the policy decision had not been taken in the manner in which it ought to be taken by alocal authority. We are also satisfied that there had been violation of the provision of the West Bengal Municipal Act in the matter of transfer of the land to the builders and others as no approval therefore had been obtained by the State Government. But the fact also remains that a bid had taken place. The Promoter had not only paid the earnest money but also had spent a huge amount. Many of the Hawkers had already been allotted the shops. However, it appears that in the deed of transfer made by the Union of India in favour of Municipal authorities, the land in question was described as 'danga' and not as a Park. However, it also appears that admittedly the same was used as a play-ground.

 

( 17 ) ACCORDING to the respondents, after the construction is completed some area would be available for widening road. Plans and photographs had been filed before this Court to show as to the condition of the road and the structures before the Project was undertaken and the condition thereof after the Hawkers have been rehabilitated. It, however, also stands admitted that while making such structure more than 2,000 sq. ft. had been encroached on Public Park.

( 18 ) ACCORDING to the respondents, the following chart would give an idea as regard the land in question :"1. Area of Maidan63,597. 6 sq. ft. (88. 33 K)2. Existing Green37,287 sq. ft. 3. Proposed Green34,412 sq. ft. 4. Coverage of Ground floor35, 373 sq. ft. 5. Area inside wall (1-3)29,185 sq. ft6. Area outside wall (4-3)6,188 sq. ft. 7. Area occupied by Hawkers9,915 sq. ft.

(Outside wall)8. Area available for widening road after the construction (7-6)3,272 sq. ft.

 

( 19 ) IT further appears that for the aforementioned purpose a High Power Committee was constituted and in a meeting held on 5-12-98, 22 proposals were made by the Chairman and one of the Councillors had also put certain resolution before it. A resolution had been taken to have talks with the Hawkers.

( 20 ) IN a Public Interest Litigation the interest of the Public should be upper-most in the mind of the Court although a portion of the vacant ground would be put to use by making construction. It would not be proper for this Court to direct demolition of such structure without considering the greater public need. Maintenance of ecological balance and greenery is a must but with that the need of future development of the area cannot also be brushed aside. Maintenance of ecological balance and the development must co-exist; whereas development has to be made keeping in view the maintenance of greenery and ecological balance but the Court cannot adopt a rigid attitude in such matters and all the cases.

 

( 21 ) IN M. I. Builders Pvt. Ltd. (supra), it has been held :-"high Court in its impugned judgment has not doubted the capacity of M. I. Builders to undertake the project but then that is not the issue. The question is why it was not necessary to invite tenders for the project of such a high costs. Why it was thought that it was only the M. I. Builders in the country who could undertake the job? Why project report was not obtained to know the cost of the project? Why could it not be thought that there could be any other person who could undertake the job at a lesser cost and in equally competent manner? Public interest has certainly been given a go by. There was some undercurrent flowing to award the contract to M. I. Builders. High Court said 'lest we are taken amiss we wish to make it clear that we do not doubt either the bona fides of the authorities or the competence of the respondents M/s. M. I. Builders to enter into the impugned agreement but we are of the view. . . 'the competence of M/s. M. I. Builders to undertake the

project is not doubted when now it is seen that proper construction has been made but before taking decision to award the contract to it nobody knew its credentials. No attempt made whatsoever to consider if there was any other person more competent for the job or if of equal competence could offer better terms. In these circumstances, dictum contained in the case of Kasturi Lal Lakshmi Reddy v. State of J. and K. (1980) 4 SCC 1 : (AIR 1989 SC 1992) becomes inapplicable. No advantage can be drawn by the builder from the decision of this Court in G. B. Mahajan's case (1991) 1 JT (SC) 605 : (AIR 1991 SC 1153) as here the whole process of awarding contract to M. I. Builders has been gone through in an unabashed manner and in flagrant violation of law with the sole purpose of conferring benefit on it. All said and done we fail to understand the certificate given by the High Court about the bona fides of the authorities in awarding the contract to M/s. M. I. Builders. The officers of the Mahapalika, who were impleaded as respondents by name, did not file any replies to contradict the allegations made against them. Rather it appears that it was a fit case where High Court should have directed an inquiry to be made as to how the project came to be awarded to M. I. Builders including the conduct of the lawyers. 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 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 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 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. As will be seen in moulding the relief in the present case and allowing one of the blocks meant for parking to stand we have been guided by the obligatory duties of the Mahapalika to construct and maintain parking lots. "

 

( 22 ) IN the case before the Apex Court construction was made by the developer at his own risk by obtaining an interim order in that term. The Park in question was an old and famous park. Breaches to the law had been committed by the Mahapalika with impugnity. Even no tender was invited. It is not a case as was the case of M. I. Builders where a park was being converted into a terrace park.

 

( 23 ) HAVING regard to the facts and circumstances of this case and keeping in view the fact that the land in question had never been recorded as a park either in the Municipal record of rights or otherwise, we are of the opinion, in this case no major violation of the provision of West Bengal Municipal Act has been made inasmuch as in the litigation the State has also supported the Municipality and, thus, would be deemed to have granted its approval as regard the transfer of the land in question.

 

( 24 ) HOWEVER, no construction could be made upon encroachment of the Public Park even in relation thereto the Municipality under the Building Rules could not have granted such sanction. Thus, any construction if any, made in violation of the Building Rules framed under the provision of

West Bengal Municipal Act must be demolished. The respondents-Municipality must, however, adopt a policy decision as regard allotment of the shops to the hawkers who had built their shops in and around the Park as also the hawkers who had built structures near the Railway Station. The Municipal authorities and the builders must also arrive at a fresh settlment as regards availability of the public convenience and the power of the promoter who grants settlement to the outsiders. In future the Municipality shall not make any other construction keeping in view its own policy decision and shall see to it that the area in question, as referred to hereinbefore, is maintained as a Park and/or play-ground and the same should not be used for any other purpose whatsoever.

 

( 25 ) THE writ petition is disposed of with the aforementioned observation and direction. In the facts and circumstances of this case there will be no order as to costs.

( 26 ) I agree. Order accordingly.