The Delhi High Court recently dealt with the precarious Delhi Master Plan 2021 and examined the legal position with regard to the Master Plan, in general, as well as the Master Plan 2021, as applicable to Delhi. Some excerpts of the Judgment are reproduced below;
37. The settled law as regards the sanctity of master plan norms as explained in several decisions of the Supreme Court and the High Courts may be noticed. In Dr. G.N. Khajuria v. Delhi Development Authority, AIR 1996 SC 253 the Supreme Court disapproved of the conversion of an area meant for a park for the use of a school. The Court on that occasion observed as under:“the land which was allotted to respondent No. 2 was part of a Park. We further hold that it was not open to the DDA to carve out any space meant for park of a nursery school. We are of the considered view that the allotment in favour of respondent No. 2 was misuse of power, for reasons which need not be adverted. It is, therefore, a fit case, according to us, where the allotment in favour of respondent No. 2 should be cancelled and we order accordingly. The fact that respondent No. 2 has put up some structure stated to be permanent by his counsel is not relevant, as the same has been done of a plot of land allotted to it in contravention of law. As to the submission that dislocation from the present site would cause difficulty to the tiny tots, we would observe that the same has been advanced only to get sympathy from the Court inasmuch as children, for whom the nursery school is meant, would travel to any other nearby place where such a school would be set up either by respondent No. 2 or by any other body.”38. The inviolability of the provisions of a statutory Master Plan was explained by the Supreme Court inBangalore Medical Trust v. B.S. Muddappa (1991) 4 SCC 54. It explained the legal position thus (SCC, p. 69):”The scheme is a statutory instrument which is administrative legislation involving a great deal of general law-making of universal application, and it is not, therefore, addressed to individual cases of persons and places. Alteration of the scheme must be for the purpose of improvement and better development of the City of Bangalore and adjoining areas and for general application for the benefit of the public at large. Any alteration of the scheme with a view to conferring a benefit on a particular person, and without regard to the general good of the public at large, is not an improvement contemplated by the section.”In the same decision it was further emphasized that a space earmarked for a particular purpose under the Master Plan cannot be used for any other. It was observed (SCC, p. 70, 75):“………once appropriated or applied or earmarked by formation of 'open spaces' or for building purposes or other development in accordance with a duly sanctioned scheme should not be used for any other purpose unless the scheme itself, which is statutory in character, is formally altered in the manner that the BDA as a body corporate is competent to alter. This section, of course, empowers the BDA to lease or sell or otherwise transfer any property. But that power has to be exercised consistently with the appropriation or application of land for formation of 'open spaces' or for building purposes or any other development scheme sanctioned by the Government. Property reserved for open space in a duly sanctioned scheme cannot be leased or sold away unless the scheme itself is duly altered. Any unauthorised deviation from the duly sanctioned scheme by sacrificing the public interest in the preservation and protection of the environment by means of open space for parks and play grounds and 'ventilation' will be contrary to the legislative intent, and an abuse of the statutory power vested in the authorities…..”“Protection of the environment, open spaces for recreation and fresh air, play grounds for children, promenade for the residents, and other conveniences or amenities are matters of great public concern and of vital interest to be taken care of in a development scheme. It is that public interest which is sought to be promoted by the Act by establishing the BDA. The public interest in the reservation and preservation of open spaces for parks and play grounds cannot be sacrificed by leasing or selling such sites to private persons for conversion to some other user. Any such act would be contrary to the legislative intent and inconsistent with the statutory requirements. Furthermore, it would be in direct conflict with the constitutional mandate to ensure that any State action is inspired by the basic values of individual freedom and dignity and addressed to the attainment of a quality of life which makes the guaranteed rights a reality for all the citizens."39. In Panchsheel Enclave Residents v. UOI, 2002 (6) AD (Delhi) 641 (DB) the court prohibited the carrying on of construction in the vicinity of ancient monuments Blocks A and A1 of Panchsheel Enclave which fell in an area declared as a green belt. In EC Pocket Maya Enclave Residents Welfare Association v. Delhi Development Authority (decision dated 28.8.2006 in WP (C) Nos. 10546-51/2006) the residents of EA, EB and EC Blocks of Maya Enclave complained that part of an area meant for a park had been allotted to the third respondent, IGL, for the purpose of constructing a "CNG mega bus filling station". This Court held:“The DDA seems to have proceeded on the assumption that the Zonal Plans having been changed, there was no need to inquire further, and the area could be allotted for use of a mega gas filling station. While the need to have such a station cannot be doubted, the balancing of relevant considerations, such as the developed nature of the park, the substantial amounts expended to maintain it, every year, its use by residents all these years, security and safety concerns on account of the populace and structures, including residences and educational institution in its vicinity, and the likely impact of such a gas station on the persons living or using the area, had to be necessarily balanced, particularly in the light of the Central Government's directive not to use any developed park for setting up a petrol pump.” “The decision to allot the land for use by IGL as petrol pump, cannot be sustained.”40. In Vivek Srivastava v.Union of India, 2005 (3) AWC 2897 the petitioners contended that the respondents were planning to construct residential buildings in the "Polo Ground" which had remained an open land for the last hundred years. The petitioner alleged that the polo ground acted as the lungs for the citizens of Allahabad and if the residential buildings were allowed to be constructed thereon, the “lungs” would get choked. Further, the constructions would disturb the ecology and create a serious imbalance in the environment of the city. Accepting these contentions, the Allahabad High Court held: “the land in question known as 'Old Polo Ground' measuring approximately 22.77 acres of land, should not be used for the residential construction for the married accommodation project for the married officers of the Army.” Consequently, a writ of mandamus was issued to the respondents, restraining them from making any construction on the Polo ground and maintain it as an open piece of land. In D.D. Vyas v. Ghaziabad Development Authority, Ghaziabad, AIR 1993 All 57 the grievance of the petitioners, who belonged to a locality where the Adu Park was situated, was that though the said area was earmarked for being developed as a public park, the G.D.A. had taken no steps to develop it as a public park. Further the respondents were seeking to carve out plots in such open space in the plan and sell them for huge profits. The attempt by the G.D.A. to alter the plan for that purpose was challenged. Accepting the petition, the High Court held: “Neither the Authority nor can the State Government amend the plan in such a way so as to destroy its basic feature allowing the conversion of open spaces meant for public parks.”
41. The Andhra Pradesh High Court has consistently held that attempts at changing the use of green areas to commercial and other purposes in the layout plans would be impermissible in law. In Sri Ramakrishna Educational Society v. Chairman, Nandyal Municipality, 2006 (3) ALD 242, it was held by the High Court of Andhra Pradesh that an area earmarked as playground in the layout plan could be used by the residents of Nandyal Town for the purpose of children's games and sports, for a walking track, growing tree clusters or as a common meeting place. It was held that “once the layout was approved considering the playground is part of the common area, the same cannot be converted into a business/commercial area by allowing a Rythu Bazar. Such conversion is impermissible in law.” InBhagya Nagar Colony Welfare Association v. Government of A.P., 2003 (4) ALD 74 multi-storeyed residential complexes/group housing were constructed and houses were allotted in a portion of the land admeasuring 2,897 sq. yards which had been earmarked as a park/open space. It was held by the High Court of Andhra Pradesh that the “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 layout approved by the Hyderabad Urban Development Authority, whatever be the amount spent on such structures, forthwith.” The court however made an exception for a temple. It said: “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.” In Co-operative Housing Society, Saleemnagar Limited v. Municipal Corporation of Hyderabad and others, 2001 (5) ALD 663 the first respondent had, instead of developing the area as a park, leased out about 1800 square yards of the park site to the second respondent for construction of school. Some other encroachments were also made in the said area. The first respondent was directed to take appropriate steps for removal of the encroachments in accordance with law and restore the park to its original position.
42. In Mittakola Venkata Rama Rao v. Sarpanch, Grampanchayath, 1998 (6) ALD 343 it was held: “The Gram Panchayat cannot convert a part of the public park into a commercial complex and such construction would definitely have the effect of polluting the environment and ecology of the park and the town.” The park had been in existence for more than 70 years and also had a historical importance, which had “to be preserved not only by the Gram Panchayat, but by every citizen of Mahaboobabad and in fact they should be proud of such a park and if necessary it is their duty to develop the park into a beautiful park, so that the people of the area, including the children may go and relax during their off time.” In P. Venkateswarlu v. Govt. of Andhra Pradesh, 2001 (6) ALD 533 the action of respondents 1 to 4 in permitting respondents 5 to 8 to construct a multi-storeyed commercial complex in an open space reserved for park, according to sanctioned layout, was held to be illegal. It was observed:“The Court while considering such a matter is not concerned with the consequences particularly where it concerns ecology. A park provides for some lung space. It is well settled that the community requires certain lung space and may also use open space for sports and other recreational activities. Parks or wetlands are also necessary for the purpose of maintaining ecological balance. The doctrine of public trust applies in relation to park wherefor the open space is earmarked for the purpose of park, and it becomes the statutory duty of the local authorities and other statutory bodies to maintain the same. The authorities of the Board have no right to do away therewith unless the Master Plan is modified in terms of the provisions of Section 12 of the 1975 Act read with Rules 13 and 13-A of the 1977 Rules. The Development Act, as noticed hereinbefore, envisages preparation of a Master Plan, which consists of various zones-the user of such zone is specified therein. Stages of development are also specified. A planned development is contemplated under the Master Plan and Zonal Development Plans. While doing so, larger public interest must be kept in view. A creature of a statute therefore cannot be permitted to violate the provisions of the Act whereunder it was created."43. In Harijan Layout Sudhar Samiti v. The State of Maharashtra (1997) 99 Bom LR 434 the Bombay High Court held that the action of the respondents in Nagpur converting areas earmarked for green belt/open space for housing purposes and allotting it to the respondent No. 8was not permissible. It was observed that: “neither the Development Authority nor the State Government can amend the plan, in such a way, so as to destroy its basic feature, allowing the conversion of open space meant for public parks.” It was further observed: “Undisputedly, the City of Nagpur is one of the crowded city where the resident do not get anything but atmosphere polluted by smoke and fumes emitted by endless vehicle traffics. Besides this, the pollution is being caused by 'Koradi Thermal Powers house'. Hence, the importance of public parks, plantations and creation places cannot be under estimated. The Public Park is a gift of modern civilisation and is a significant factor, in the improvement of quality of life. It is, thus, clear that the action of the respondents.1 to 7, being inconsistent with and contrary to the legislative intent to safeguard the health, safety and general welfare of the people of the locality, the orders smack colourable exercise of powers and are opposed to the statutory scheme. Thus, it is a fit case, to issue writ of mandamus as prayed by the petitioners.”
44. In Modern Educational and Cultural Society v. Nizam, RLW 2007 (4) Raj 3214 the allotment of an open space reserved as per approved scheme under Rajasthan Urban Areas (Sub-Division, Reconstruction and Improvement of Plots) Rules, 1975 by the Jaipur Development Authority to a private person/body for a school was held by the Single Judge to be illegal. The Division Bench in Nizam v. Jaipur Development Authority, AIR 1994 Raj 87 affirmed this and held: “The action of JDA in making allotment of the site in question in favour of Modern School to establish a school is invalid and without jurisdiction, being contrary to the legislative intent to safeguard healthy, safety and general welfare the people of the locality. It was also opposed to the statutory Scheme/ Plan.” In Rajasthan Housing Board Shopping Centre Vikas Samiti v. State of Rajasthan, RLW 2006 (1) Raj 588 the grievance was that the respondents were permitting vegetable vendors to construct shops in Park-A in Shastri Nagar, Jaipur. The Court held: “There is no dispute the park-A was a facility area and further the Housing Board has not revised the scheme under Sections 29, 30 and 32 of the Housing Board provisions which was published in Gazette. The alleged allotment/permission is also contrary to the scheme as well as the provisions of the Housing Board and later on transfer of maintenance to the Municipal Corporation will also not give any right to the Municipal Corporation to issue the allotment order or grant permission to construct the platform.“ The action of the respondents was held to be illegal.
45. In President, Kanan Vihar Development Societyv. State of Orissa, 2008 (II) OLR 677 the Orissa High Court observed: “In case a particular area has been earmarked to be left as open space for public park in order to achieve the environmental equilibrium, it should not be altered by any means by any authority unless there were compelling circumstances and the procedure prescribed by law has to be followed for the same.”
46. For an instance of courts not permitting an underground water treatment plant in a park, reference may be made to the decision of the Court of Appeals of New York in Friends of Van Cortlandt Park v. City of New York 95 N.Y.2D 623, 630. The court was informed that the public would be deprived of the use of the park for five years during which the water treatment plant would be constructed and thereafter the park would be restored. That court held that prior legislative approval of the change in user was mandatory even if the proposal was that the park would ultimately be restored. Referring to the decision in Williams v. Gallatin 229 NY 248 the Court of appeals invoked the “public trust” and said: “Though the water treatment plant plainly serves an important public purpose – indeed eve the State Attorney General believes it should be built at the site selected – our law is well settled: dedicated parks in New York are impressed with a public trust for the benefit of the people of the State. Their „use for other than park purposes, either for a period of years or permanently, requires the direct and specific approval of the State legislature, plainly conferred‟.” Our Supreme Court too has reiterated the public trust doctrine as forming part of the environmental jurisprudence in this country (See generally M.C.Mehta v. Kamal Nath (1997) 1 SCC 388).