1997 Supreme(Raj) 1337
RAJASTHAN HIGH COURT
M.P Singh, Dr.B.S.Chauhan, JJ.
Surendra Singh And Ors. - Appellant
Versus
State Of Rajasthan And Ors. - Respondent
D.B. Civil Special Appeal No. 2 of 1992.
Decided On : 2-09-1997
For the Appellant:Dinesh Maheshwari, Advocate.
For the Respondent:Murlidhar Purohit, Senior Advocate with Anand Purohit, Advocates.
For the Urban Improvement Trust:Dalpat Singh Shisodiya, Senior Advocate with Sandeep Bhandawat, Advocates.
The UIT cannot change the use of 'open space' designated in a sanctioned scheme after its execution, as it violates the Rajasthan Urban Improvement Trust Act, 1959, and constitutional provisions on environmental protection.
Headnote:
RAJASTHAN URBAN IMPROVEMENT TRUST ACT, 1959 - SECTION 29, 40 - OPEN SPACE - CHANGE OF USE - LEGALITY - ENVIRONMENTAL PROTECTION - CONSTITUTIONAL PROVISIONS.
Fact of the Case:
Appellants challenged the UIT's decision to sell land designated as 'open space' to the State Bank of Bikaner & Jaipur, claiming it violated the Rajasthan Urban Improvement Trust Act, 1959, and constitutional provisions on environmental protection.
Finding of the Court:
The court held that the UIT acted illegally in transferring the land to the Bank, violating the Act, Rules, and constitutional provisions on environmental protection. The sale deed was declared void and ineffective.
Issues: 1. Whether the UIT had the authority to change the use of 'open space' designated in a sanctioned scheme. 2. Whether the sale of 'open space' to the Bank violated the Rajasthan Urban Improvement Trust Act, 1959, and constitutional provisions on environmental protection.
Ratio Decidendi: 1. Section 40 of the Act empowers the UIT to alter a scheme before its execution, but the instant scheme had already been executed, and the 'open space' was left as such. 2. The Act and Rules contemplate leaving certain areas as 'open' for the benefit of residents, and the UIT's action violated this purpose and the constitutional duty to protect the environment.
Final Decision: The court allowed the appeal, set aside the order of the Single Judge, and directed the UIT to refund the sale consideration to the Bank or allot alternative land within two months.
JUDGMENT
1. - Appellants filed the writ petition praying for a direction to the respondents, restraining them from changing the use of land reserved as 'open space marked by letters ABCD and EFGH in the plan and that the sale made by the Urban Improvement. Trust (In short, "UIT) in favour of State Bank of Bikaner & Jaipur (In short, the Bank') on 4.12.1989 be declared null and void.
2. The UIT, Bikaner is a body cooperate incorporated under the provisions of Rajasthan Urban Improvement Trust Act, 1959 (referred to as 'the Act). It is empowered to frame schemes for residential purposes. Schemes are sanctioned by the State Government. Thereafter it is implemented.
3. Framing of scheme is controlled by the provisions of Section 29 of the Act. The relevant portion runs as follows:
"29. Schemes; matters to be provided therein:--(1) The Trust shall, on the orders of the State Government or on its own initiative or on a representation made by the Municipal Board and subject to availability of financial resources, frame schemes for the improvement of the urban area for which the Trust is constituted.
(2) such schemes may provide for all or any of the following matters, namely:
(a)... ... ...
(b)... ... ...
(c)... ... .....
(d)... ... .:...
(e)... ... ...
(f)... .... ...
(g).. ... ...
(h)... ... ...
(i) the forming of open spaces for the benefit of the area comprised in the scheme or any adjoining area;
(j)... .... ...
(k)... .... ....
(u).... .... ...
4. The UIT, exercising the power under Section 29(2) (i) framed the scheme known as Sadulganj Scheme. It was duly approved by the Government. According to the Scheme, a plan was prepared. In the plan, four 'open spaces' were provided towards the eastern and western side of 'panch sati circle. The plan made provisions for a large number of shops shown in the circle itself. Some space including the two shown by letters ABCD and EFGH had been specifically left as 'open' for the beneficial enjoyment of the inhabitants occupying the residential plots and the shops shown therein. Except these two 'open spaces' other similarly situate open lands have already been developed into parks.
5. All appellants are the residents of plot No. 1 to 10, which are situate towards the southern side of the disputed 'open lands' marked as ABCD and EFGH. These 'open spaces' protect the hygienic environment of the locality. The proposed construction by the Bank may affect the same apart from creating other practical difficulties in the area.
6. The case set up by the appellant was not accepted by the learned Single Judge resulting in dismissal of the writ petition. Thus this special appeal.
7. Section 29(2) of the Act specifically provides that a scheme prepared by the UIT should provide for forming of 'open spaces' for the benefit of the area comprised in the scheme or any adjoining area. The Act thus contemplates of leaving certain area as 'open' for the better use by the persons occupying the residential houses near that area. The purpose of keeping the 'open spaces' was that it can be used as playground, recreation purpose and to maintain the ecological balances.
8. If spaces left as 'open' are utilised for raising buildings, it is bound to cause hygienic pollution affecting the general health of residents of the locality, 'Open space' shown in the Scheme cannot be put to a different use. If it is done, it will not only be violative of the Act and the Rules framed thereunder, but also would violate the constitutional provisions.
9. The 42nd amendment 1976 was brought in the Constitution of India by which Article 48A was introduced for protection of environment. It provides:
"the State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country."
10. Though, this Article puts a constitutional duty upon the State but it becomes the duty of every citizen also to protect and improve the environment.
11. Similarly, Article 51A was introduced in the Constitution. According to Clause (g)
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