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1987 DIGILAW 757 (ALL)

Cantonment Board v. Nagar Mahapalika, Meerut

1987-08-10

A.N.VERMA, S.D.AGRAWALA

body1987
JUDGMENT S.D. Agrawala, J. - Writ petition No. 7445 of 1987 has been filed by the Cantonment Board, Meerut while Writ Petition No. 2156 of 1987 has been filed by Harsh Kant Gupta and R.K. Sharma, both Advocates, practising in the Civil Courts at Meerut. Since common questions of fact and law are involved in both these petitions, they are being decided by a common judgment. 2. Both these petitions are in the nature of public interest litigation challenging the agreement of lease dated 26th Aug., 1986, executed by the Nagar Mahapalika, Meerut, and the Meerut Development Authority with M/s. Electra (India) Limited, Meerut. By means of this agreement of lease, the Meerut Development Authority wants to establish a commercial-cum-residential complex by covering the Abu Nala from Begum Bridge to eastern Kutchery Bridge in the city of Meerut. In fact, Abu Nala is a popular nala flowing through the city of Meerut. The present multipurpose project was devised for de-silting the nala, to increase the discharge capacity thereof, to prevent flooding of the nearby area, to cover the slab to a particular height so as to prevent the foul smell, to widen the two roads abutting the nala and thereafter construction of commercial and residential flats over the slab as well as for the construction of bridges, parks etc. for beautification of the city. The Cantonment Board, Meerut's case is that covering of the nala by the construction of the slabs, which are to be supported on the pillars built in the bed of the Abu Nala is bound to cause obstruction in the flow of the water of the Abu Nala. It is bound to result in over-flooding of the cantonment area and the consequent water-logging therein and the spread of disease, dirt and unhygenic conditions and consequent injury to the health of the residents therein, including the Army. It is the further case of the Board that the construction of the multi-storeyed complex is bound to affect the traffic on the Begum Bridge, which is already over crowded. Traffic jams are bound to occur thereupon and the road accidents are bound to happen now and then. 3. The petition of the Board was admitted by this Court on 13th April, 1987, and it was directed to be connected with writ petition No. 2156 of 1987. 4. Traffic jams are bound to occur thereupon and the road accidents are bound to happen now and then. 3. The petition of the Board was admitted by this Court on 13th April, 1987, and it was directed to be connected with writ petition No. 2156 of 1987. 4. The case of the petitioners in Writ No. 2156 of 1987 is similar to the case taken up by the Cantonment Board and it was also urged in this petition that the construction of the multi-storeyed complex will cause obstruction in the free flow of water resulting in flooding the area, as urged by the Board. 5. Learned counsel for both the parties in the above mentioned both the petitions agreed that the cases may be finally disposed of and, consequently, we heard the learned counsel for the parties in the petition filed by the Cantonment Board and also heard the learned counsel for the parties at the admission stage in the Petition No. 2156 of 1987. 6. Learned counsel for the petitioners in both the petitions have challenged the impugned lease deed and have raised the following contentions : 1. That the Nagar Mahapalika is the owner only of the surface and not the bed of the Abu Nala and, as such, the lease deed is wholly illegal. 2. That it is the duty of the Nagar Mahapalika a to maintain the Abu Nala and since by this lease deed, the power to maintain the Abu Nala has been delegated to Mts. Electra (India) Limited, the lease deed is wholly illegal. 3. That the lease deed requires registration and since it is not registered, it is void and illegal. 4. That covering the Abu Nala with the slabs and, thereafter, constructing the multi storeyed complex over the said slabs would result in restricting the free flow of water and, as such, there is a likelihood of the area being flooded, which is against public interest. 7. So far as the first submission of the learned counsel is concerned, the learned counsel has relied upon two decisions of the Hon'ble Supreme court. The first decision relied upon by the learned counsel is the Municipal Board, Manglaur v. Mahadeo Ji Maharaj, AIR 1965 SC 1147 . In that case, the Supreme Court remarked as under : "Such a public pathway vests in the municipality, but the municipality does not own the soil. The first decision relied upon by the learned counsel is the Municipal Board, Manglaur v. Mahadeo Ji Maharaj, AIR 1965 SC 1147 . In that case, the Supreme Court remarked as under : "Such a public pathway vests in the municipality, but the municipality does not own the soil. It has the exclusive right to manage and control the surface of the soil and so much of the soil below and of the space above the surface as is necessary to enable it to adequately maintain the street as a street. It has also a certain property in the soil of the street which would enable it as owner to bring a possessory action against trespassers." 8. On the basis of this decision, it has been argued that- the Nagar Mahapalika, Meerut, has no right in the soil of the Abu Nala, but has only a right to manage and control the surface of the soil. 9. The next decision on which reliance is placed is State of U.P. v. Ata Mohammad, AIR 1980 SC 1785 : 1980 All LJ 896. This case followed the case of the Municipal Board, Manglaur v. Mahadeo Ji Maharaj (supra). 10. Reliance in this connection is placed on para 45 of the petition filed by the Cantonment Board wherein it has been stated that the construction of the slabs over the Abu Nala is to be supported by the pillars built on the bed of the Abu Nala. In the counter affidavit of Arun Kumar Jain, who is the Executive Director of M/s. Electra (India) 'Limited, this averment has been categorically denied. There is no other evidence to establish that pillars are going to be constructed in the bed of the Abu Nala. In the absence of any material on the record to establish this fact, in our opinion, this contention raised by the learned counsel for the petitioners is wholly misconceived. 10A In regard to the second contention, in our opinion, the submission is also misconceived. In the lease deed dated 26th Aug., 1986, which has been impugned in the present writ petition, condition (c) is in the following terms : (C) That the III party undertakes and have agreed to maintain the actual area of the Abu Nala and would be responsible for its cleanliness and removal of silt etc. In the lease deed dated 26th Aug., 1986, which has been impugned in the present writ petition, condition (c) is in the following terms : (C) That the III party undertakes and have agreed to maintain the actual area of the Abu Nala and would be responsible for its cleanliness and removal of silt etc. during the development period of the area and after development work, it shall be maintained by the first party." 11. This clause clearly states that M/s. Electra (India) Limited is only responsible for the cleanliness and removal of the silt during the period when the development work is going on and not thereafter. After the development work is over, the duty has been cast on the Nagar Mahapalika to maintain the Abu Nala. It cannot, therefore, be said that the statutory duty cast upon the Nagar Mahapalika to maintain the Abu Nala has been, in any manner, transferred to M/s. Electra (India) Limited by virtue of the aforesaid lease deed. 12. in regard to the third contention raised by the learned counsel for the petitioners, in our opinion, this question is wholly irrelevant for the purpose of determining the present controversy in the present petition. Whether the lease deed requires registration or not is a matter between the parties to the said lease deed and, in our opinion the petitioners in both the petitions have no concern with this question. In the circumstances, it is not necessary to go into this question in detail. 13. The last question is, in fact, the main question which needs consideration in both the petitions. It is, in fact, this question, which is likely to affect the public at large and, as such, we will consider this question in detail hereinafter. 14. With regard to this contention, it is necessary to state that one Shesh Dutt Sharma had filed a Suit No. 854 of 1986, in the Court of Munsif, Meerut, under O.1, R.8, CPC and, in that suit, this very scheme was challenged. In the suit, an application was made for grant of an ad interim injunction restraining the defendants in the said suit, who are the respondents in the present petition, from cutting the trees standing over the public drain, known as Abu Nala and from raising any constructions thereon. The trial court rejected the application after considering the evidence on the record. The trial court rejected the application after considering the evidence on the record. Thereafter, an appeal was filed against the judgment of the trial court being First Appeal No. 322 of 1986, Shesh Dutta Sharma v. Arun Kumar Jain. The appellate court dismissed the appeal vide judgment dated 2nd Feb. 1987. Both the trial court as well as the appellate court recorded a categorical finding that the allegations made regarding emission of foul smell and the flooding of the area are altogether baseless and the proposed plan will, in no way, obstruct the discharge of water through the disputed drain. These orders passed by the trial court as well as the appellate court were challenged in Civil Misc. Writ No. 2042 of 1987 by Shesh Dutt Sharma. This petition was dismissed by the following order by Hon. Mr. Justice, V.K. Mehrotra on 27th Feb. 1987 : "On the facts before the court and in the state of pleading made by the plaintiff petitioner in the plaint as it stands, the courts below have chosen not to grant interim injunction of the motion prayed for by the petitioner. This order cannot be said to suffer from any error apparent on the face of record. It has been stated by Sri Radhey Shyam, appearing for the petitioner that an application to amend the plaint has been made by the petitioner in which the Municipal Board, Meerut, and the Development Authority, Meerut are also sought to be impleaded as defendants. This application (a copy of which has been filed as Annexure to the rejoinder affidavit dated February 20, 1987) will be considered by the trial court on its merits at an early date. The plaintiff would be free to move the trial court again for such interim protection as he is entitled to in law, after the necessary parties are before the court below impleaded. With these observations, I decline to interfere in the matter, particularly when in W. P. No. 2156 of 1987, this matter is engaging the attention of a Division Bench of this Court and an interim order restraining cutting of trees near the nala and filling out of the nala has been passed. The petition is dismissed." 15. With these observations, I decline to interfere in the matter, particularly when in W. P. No. 2156 of 1987, this matter is engaging the attention of a Division Bench of this Court and an interim order restraining cutting of trees near the nala and filling out of the nala has been passed. The petition is dismissed." 15. From the above order, it is clear that this Court refused to interfere with the orders passed by the court below, but, in any case, an observation was made by this Court that the Court declined to interfere since the matter was engaging the attention of this Court in Civil Misc. Writ No. 2156 of 1987. In view of this observation, though the judgments I of the trial court as well as the appellate court in the suit filed by Shesh Dutt Sharma was affirmed by this Court, but, nevertheless, it is necessary for us to consider the question raised in this petition in public interest. 16. It may further be mentioned here that one Harbir Singh also filed a Writ Petition No. 924 of 1987 in this Court, challenging this very scheme. This petition, ultimately, was withdrawn by Harbir Singh and he did not press the same and, consequently, it was dismissed on 15th July, 1987. 17. We will consequently now consider the last submission made by learned counsel for the petitioner. In the petition filed by the Cantonment Board in Para 45 it has beer. stated that the covering of the Abu Nala by the construction of the slabs is bound to cause obstruction in the flow of the water of the nala. The consequent result of which would be the over-flooding of the Cantonment area and the water logging caused thereby shall spread disease, dirt and un-hygenic conditions affecting public health. Reliance in this connection has been placed on the resolution passed by the Civil Area Committee dated 16-12-1986 confirmed by the Cantonment Board resolution dated 8-1-1987, which has been attached as Annexure 4 to the petition. In this resolution, it has been stated that the construction of Electra complex at Begum bridge over Abu Nala will create serious obstruction in the free flow of Abu Nala in the entire Cantonment area, which will create serious flood problems in the whole Cantonment area. In this resolution, it has been stated that the construction of Electra complex at Begum bridge over Abu Nala will create serious obstruction in the free flow of Abu Nala in the entire Cantonment area, which will create serious flood problems in the whole Cantonment area. In the said resolution, it was further observed that in 1962-63 the Cantonment area was flooded by the Abu Nala because of the obstruction in the flow of the Abu Nala. In fact, it was because of this resolution passed by the Cantonment Board that has given rise to the present petition on behalf of the Cantonment Board. The only other evidence which has been filed to support this submission is the letter from the Superintending Engineer, attached as Annexure I to the petition, wherein it has been stated that the creation of any I obstruction in the Nala is very objectionable and it is bound to cause efflux of stream, which may cause flooding in the event of heavy rainfall in the Cantonment 4 meal and that the decision to make any obstruction should not be taken without the technical consent of the department of irrigation. 18. The averments in the petition as well as the two documents referred to above only state in general that if there is an obstruction in the flow of the Nala, it is likely to cause flood in the area, but no material has been placed in this petition to establish that the Scheme which is under challenge would cause obstruction in the flow of the Nala, which would result in flooding the area. 19. In Writ Petition No. 2156 of 1987 filed by Harsh Kant Gupta and another, the only averment in this Court made is in para 15 of the petition, wherein it has been stated that the complex shall cause obstruction in the flow of water and that the complex has been planned without the technical consent by respondent No. 5 in the petition, namely, the Irrigation Department. In para 17 of this petition, reliance has been placed on the resolution passed by the Civil Area Committee on 16th Dec. 1986, which has already been referred to above. No other material has been placed before this Court. 20. In para 17 of this petition, reliance has been placed on the resolution passed by the Civil Area Committee on 16th Dec. 1986, which has already been referred to above. No other material has been placed before this Court. 20. In the counter affidavit filed on behalf of M/s. Electra (India) Ltd. respondent No. 3 in the petition of the Cantonment Board, in para 7, it has been stated that under the proposed scheme, the area of Nala will be made pucca and it will he cleaned up to bottom and the capacity will be increased by deepening and widening of Nala to ensure free flow of water. It has been further accepted in this Counter affidavit that the respondent No. 3 shall maintain the Nala and ensure free flow of water and as such, the apprehension on behalf of the petitioners in without any foundation. In para 31, replying to para 45 of the petition, the respondent No. 3 had denied the allegations in para 45 and it has been specifically stated that the proposed scheme was designed by the experts especially taking care not to obstruct the free flow of Nala. The Nala shall be deepened and its surface -will be raised high so that it can accumulate more water and remove any apprehension of flooding the Nala. It has, consequently, been stated that the apprehensions of the "Cantonment Board are wholly baseless and imaginary. 21. In this counter affidavit, it has also been stated that one Shesh Dutt Sharma had filed a suit in a representative capacity in the court below. Courts below after examining evidence on record, had categorically held that the Scheme would not cause any obstruction in the free flow of the Nala and as such, the apprehension of flood being caused in the area was without any foundation. A counter affidavit has been filed in the petition of Harsh Kumar Gupta by the Meerut Development Authority. It is sworn by Sri Girish Saran Sharma. In this counter affidavit, the facts in detail have been enumerated leading to the promulgation of the Scheme in question. A counter affidavit has been filed in the petition of Harsh Kumar Gupta by the Meerut Development Authority. It is sworn by Sri Girish Saran Sharma. In this counter affidavit, the facts in detail have been enumerated leading to the promulgation of the Scheme in question. In pars 11, it has been stated that this multipurpose project has been devised for de-silting the Nala, increase the discharge capacity thereof, preventing flood of the nearby areas, cover the same with the slabs at a particular height, so as to prevent the spread of foul smell and of course, for the purpose of widening the two roads and construction of commercial and residential flats over the slabs as well as for construction of bridges, parks, parking ground etc. for the beautification of the city. In para 14 of this counter affidavit, it has been specifically stated that the entire scheme was sent to the State Government and the State Government has granted its approval by letter dated 31st July, 1986. In para 15, it has been stated that before granting the scheme, the State Government through its letter dated 28th June, 1986, had asked clarification on certain points and in reply whereof, the Administrator Nagar Mahapalika, Meerut had sent further details through his letter dated 30th June, 1986, which has been attached as Annexure C. A. 2 to this counter affidavit. We have perused this Annexure C. A. 2 which has been written by the Administrator of the Meerut Development Authority, From this letter, it is clear that the technical aspect of the scheme had been considered by the Meerut Development Authority in detail and the Meerut Development Authority was fully aware of the fact that they have to consider the scheme in the light of the fact as to whether the covering of the Nala would affect the flowing capacity of the said Nala. In this letter of 30th June, 1986, the Administrator has specifically written to the State Government, the English translation of which is as follows : "2. The nala would be covered in such a manner so that it will not affect the flowing capacity of the nala. 3. While covering the nala, the lessee will have to make all such provisions as would facilitate the maintenance of the nala, the, branch nalas joining it and the sewer with ease. 4. The nala would be covered in such a manner so that it will not affect the flowing capacity of the nala. 3. While covering the nala, the lessee will have to make all such provisions as would facilitate the maintenance of the nala, the, branch nalas joining it and the sewer with ease. 4. The Meerut Development Authority will have complete control over the architectural, structural and environmental aspects during the implementation of the Scheme." In this letter, it has been further stated that this scheme was studied by a high powered committee which apart from the officials of the Meerut Development Authority and the Nagar Mahapalika, Meerut, consisted of Dr. Prem Kishen, Head of the Deptt. of Civil Engineering. Roorkee University and Pt. R.K. Sahu, Head of the Architectural Department of the University of Roorkee and had recommended the scheme after studying the technical and the financial aspect of the same. It was further stated that the recommendations received from the committee were then forwarded by the Vice- Chairman/Administrator of the Meerut Development Authority to the Commissioner, Meerut Division, Meerut. The Commissioner, Meerut Division, Meerut directed the scheme 'to, be placed before the Meerut Development Authority. The recommendation of the committee was considered in the meeting of, the Meerut Development Authority and was accepted with the condition that at the time of the implementation of the scheme, the authority shall include one hydraulic expert and Executive Engineer of the U.P. Jai Nigam. 22. In Para 26 of this counter affidavit, a further averment has been made that the, scheme was scrutinised from all angles by the Chief Town and Country Planner, who approved the same through its report dated 17th May, 1986 and it was only thereafter that the State Government had accorded its approval. In the rejoinder affidavit of Harsh Kant Gupta filed in reply to this counter affidavit of Girish Saran Sharma, the averments made in para 15 of the counter affidavit have not been replied. From the facts stated above, it is apparent that the Nagar Mahapalika, Meerut, the Meerut Development Authority as well as the State Government were fully alive to this question as to whether the implementation of the scheme was likely to cause obstruction in the free flow of water of the Nala. The entire scheme has been already examined by the experts mentioned above. The entire scheme has been already examined by the experts mentioned above. On the facts on record, consequently, it is not possible to accept the submission of the petitioners that the scheme, as it stood at present, would in any manner affect the free flow of water in the Abu Nala, which would flood the cantonment area and other areas of Meerut City. 23. At present only a lease deed has been executed in favour of Electra (India) Ltd. The actual plan and designs have not yet been forwarded for sanction. In the circumstance, at present we do not find any ground for interference in the scheme framed by the Nagar Mahapalika, Meerut and Meerut Development Authority, in respect of which an agreement of lease has been entered into with M/s Electra (India) Ltd. 24. The Meerut Development Authority has been constituted under S. 4 of the U.P. Urban Planning and Development Act, 1973 (hereinafter referred to as the Act). This is a high powered body consisting of experts. The constitution of the Authority is mentioned in S. 4 sub-cl. (3) of the Act, which is as follows : "(3) The Authority in respect of a development area which includes the whole or any part of a city as defined in the Uttar Pradesh Nagar Mahapalika Adhiniyam, 1959, shall consist of the following members namely (a) a Chairman to be appointed by the State Government. (b) a Vice-Chairman to be appointed by the State Government. (c) the Secretary to the State Government, incharge of the Department of Housing. ex- offisio. (d) the Secretary of the State Government. incharge of the Department of Finance, ex- officio: (e) the Chief Town and Country Planner, Uttar Pradesh, ex-officio, (f) the Managing Director of the Jal Nigam, Supply and Sewerage Act, 1975, ex-officio, (g) the Mukhya Nagar Adhikari. (c) the Secretary to the State Government, incharge of the Department of Housing. ex- offisio. (d) the Secretary of the State Government. incharge of the Department of Finance, ex- officio: (e) the Chief Town and Country Planner, Uttar Pradesh, ex-officio, (f) the Managing Director of the Jal Nigam, Supply and Sewerage Act, 1975, ex-officio, (g) the Mukhya Nagar Adhikari. ex- officio, (h) the District Magistrate of every district any part of which is included in the development area, ex-officio, (i) four members to be elected by Sabhasads of the Nagar Mahapalika for the said city from amongst themselves, Provided that any such member shall cease to hold office as such as soon as he ceases to be Sabhasad of the Nagar Mahapalika, (j) such other members not exceeding three as may be nominated by the State Government." Section 41 of the Act gives power to the State Government to control the Authority and it further empowers the State Government to issue directions from time to time, which the Authority is bound to carry out. Sub-sec. (3) of S. 41 of the Act provides that the State Government may, at any time, either on its own motion or on application made to it in this behalf, call for the records of any case disposed of or order passed by the Authority or the Chairman for the purpose of satisfying itself as to the legality or propriety of any order passed or direction issued. The powers of the State Government are very wide. The State Government can also examine the propriety of any order or direction issued by the Authority. As and when plans and designs in respect of the scheme in question is sanctioned by the Authority, it is always open to aggrieved person to approach the State Government for necessary direction in relation thereto. If the plan sanctioned by the Authority is likely to cause obstruction in the free flow of water of the Nala, which would result in the flooding of the area, it is open to any person to bring this fact to the notice of the State Government to enable the State Government to examine this matter in detail. 25. If the plan sanctioned by the Authority is likely to cause obstruction in the free flow of water of the Nala, which would result in the flooding of the area, it is open to any person to bring this fact to the notice of the State Government to enable the State Government to examine this matter in detail. 25. It is needless to emphasise that if there is genuine apprehension that the plan in question is likely to cause an obstruction in the free flow of water resulting in floods in the area, it is matter affecting public health and public interest demands that if such objection is raised by any person, the State Government shall consider the said question in the proper perspective. 26. In view of the above, the submissions raised by learned counsel for the petitioners, in our opinion, are not substantiated and as such, no interference is called for under Article 226 of the Constitution of India. 27. The petitions are accordingly dismissed. Parties are directed to bear their own costs in both the petitions.