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Allahabad High Court · body

2010 DIGILAW 1536 (ALL)

Prakash Mishra v. University of Allahabad

2010-05-11

DILIP GUPTA

body2010
JUDGMENT Hindusatan Lever Factory and demolished the entire building and started constructing luxury flats of rupees 35—75 lacs in 700-800 number in the name of "Gulmohar Green Flats" and for providing sewer line facility to the Gulmohar Green Flats, the private building is trying to destroy the green belt by lying sewer line." 2. In paragraph 22 of the writ petition specific allegation of the petitioner is as follows : "22. That the respondent No. 6 has not obtained the permission of Nagar Nigam, Ghaziabad Development Authority, Ghaziabad and forest department for lying the sewer line in green belt." 3. Ultimately, it has been stated in paragraphs 50 and 51 of the writ petition that what is required to be done, as follows : "50. That Chapter X of the Code of Criminal Procedure, 1973 contains the head line of "maintenance of public order and tranquillity. The Chapter B deals with public nuisance and the Chapter C deals with urgent cases of nuisance or apprehended danger and it gives power to the District Magistrate or Sub-Divisional Magistrate or Executive Magistrate to pass conditional order for removal of the nuisance and it prescribes penalty under Section 188 of the Indian Penal Code in the case of the failure on the part of the person responsible for creating nuisance. 51. That the offence mentioned in Section 133 (c), (d) and (e) comes within the purview of the public nuisance created by the respondent No. 6 and he is liable to be prosecuted under this section also." 4. However, when the verbal submissions were advanced before us then it has been contended by the petitioner that sewerage line, which is going to be constructed, shall be disturbing the green belt. The petitioner has mainly relied upon an information provided by the Forest Department of the State being letter dated 29th March, 2010 supplied to one Manoj Kumar, Chamber No. 516, Civil Court, Ghaziabad. Last line of such information speaks, if translated, that 'for installing the sewerage line 15 plants were affected'. The petitioner has also annexed several photographs to establish his case. From the photographs it appears to us that the dug out area is a place between the road and so-called green belt. Last line of such information speaks, if translated, that 'for installing the sewerage line 15 plants were affected'. The petitioner has also annexed several photographs to establish his case. From the photographs it appears to us that the dug out area is a place between the road and so-called green belt. The photographs, annexed as Annexure-3 to the writ petition show a hole which is on the 'patari' (pavement) lying between the metalled road and the fence of the green belt. One of the photographs of Annexure 12 to the writ petition shows that the sewerage line has been installed by the roadside over and above and it has been clearly shown that the same has been done without disturbing the so-called green area. In any event, from the map, Annexure-2 to the writ petition, it appears that the area called as Gulmohar Colony situates in a place far from F Block. E Block and D Block of the society. The road is a 4 lane road. Greenery is there as shown in this map and thereafter service roads and only thereafter the colonies of the society are shown. Gulmohar Colony is shown in the map and it is situated at a crossing of two roads. 5. Against this background we have to consider the case of the petitioner as well as the State respondent at first. There is no justification to go into such question when the allegation in the writ petition is against a private party and not against the Ghaziabad Development Authority, Ghaziabad and in such circumstances the writ petition in the nature of public interest litigation is liable to be dismissed in limine, however, since we have called upon the Ghaziabad Development Authority, Ghaziabad and the State to make their respective submissions with regard to the substantive issue of the present days, i.e., ecological balance and for keeping the greenery in question for the protection of globe, we felt that it is necessary to hear other aspects of the matter. 6. Mr. V. B. Mishra, learned counsel appearing for Ghaziabad Development Authority, Ghaziabad, has submitted before us that no private party is supposed to make sewerage line. If it is required to be made, it is made by the Ghaziabad Development Authority. To that extent, he has obtained his instructions. 6. Mr. V. B. Mishra, learned counsel appearing for Ghaziabad Development Authority, Ghaziabad, has submitted before us that no private party is supposed to make sewerage line. If it is required to be made, it is made by the Ghaziabad Development Authority. To that extent, he has obtained his instructions. It is permissible to lay a sewerage line in the space lying in between the roadside area and so-called greenery and private premises, if any. There is no dearth of power on the part of Ghaziabad Development Authority, to do the needful at the instance, of a private party if it is called upto lay the sewerage. About 700-800 flats are being constructed in the private colony of respondent No. 6 and it genuinely and urgently requires sewerage connection. 7. However, we have called upon the State to explain the position. 8. Mr. M. S. Pipersenia, learned Additional Chief Standing Counsel, has contended before us that almost on every day so much writ petitions are coming in respect of causing nuisance, in which the Courts are passing orders to consider the cause under Section 133, Cr. P.C., which is the submission of the petitioner itself in its paragraphs 50 and 51. In such cases, the Court normally passes such type of order which is as follows : "This writ petition has been filed in the form of a public interest litigation based on an order of the learned single Judge passed on 7.10.2009, saying that since a general order has been passed by the learned single Judge in connection with the encroachment of public utility services, i.e., road etc., therefore, this writ petition has been filed before this Court, otherwise the writ petitioner would have taken the course of action as per Section 133 of the Code of Criminal Procedure, 1973. According to us, the order of the learned single Judge has no binding effect upon the Division Bench and even if it has some persuasive value, the same cannot override the statutory provision made available for the affected parties under Section 133 of the Code of Criminal Procedure, 1973. Therefore, we cannot pass any order in favour of the writ petitioner in this public interest litigation. Hence, the same is dismissed, however, without imposing any costs." 9. Therefore, we cannot pass any order in favour of the writ petitioner in this public interest litigation. Hence, the same is dismissed, however, without imposing any costs." 9. However, irrespective of the question of maintainability and other issues, when learned Additional Chief Standing Counsel was called upon to explain the letter of the Forest Department dated 29th March, 2010, he stated that at whose instance the information has been received and what is the relation between the person and the petitioner, is not known to them and the only silver lining, if any, in favour of the petitioner is that information given is in respect of 15 plants only and not in respect of any tree. However, even assuming that such type of activities seem to be faulty in nature, though not at all in view of the own case of the petitioner but by virtue of a judgment of the Supreme Court in Goa Foundation, Goa v. Diksha Holdings Pvt. Ltd. and others, AIR 2001 SC 184 , in which it has been held that "there should be a proper balance between the protection of environment and development process. The society shall have to prosper, but not at the cost of environment and in the similar vein, the environment shall have to be protected but not at the cost of the development of the society — there shall have to be both development and proper environment and as such, a balance has to be found out and administrative actions ought to proceed in accordance therewith and not de hors the same." 10. If such case is taken into account in the factual premises of the present one, it is to be established by the petitioner that an ecological balance has been disturbed by digging out the holes and putting underground sewerage in the area, as has been indicated by the petitioner. 11. Relying upon two decisions of the Supreme Court in Ghaziabad Development Authority v. Delhi Auto and General Finance Pvt. Ltd. and others, (1994) 2 UPLBEC 1373 and M. I. Builders Pvt. Ltd. v. Radhey Shyam Sahu and others, (1999) 6 SCC 464 : 1999 (3) AWC 2508 (SC), learned counsel appearing for the petitioner wanted to distinguish the submissions of the learned standing counsel. But we find that the facts and circumstances of those cases are not similar to the case in hand. But we find that the facts and circumstances of those cases are not similar to the case in hand. Here the question is that a development work has already taken place by a private colonizer and 700-800 inhabitants have either entered or likely to enter in such premises. The supply of water, sewerage and other essential services ought to be made available to them by the development authority or by the Corporation in the appropriate cases. This is one of the same. It is not shown anywhere in the writ petition how the road-side digging is affecting the greenery. In case it is affected, it is for the authorities to plant the same in the number as proposed in Section 7 of the U. P. Protection of Trees Act, 1976. 12. Therefore, we do not find any reason to interfere with the work. Hence, no affirmative order either on the point of maintainability or merit could be passed in favour of the petitioner. 13. Hence, the writ petition in the form of public interest litigation is dismissed, however, without imposing any cost. However, passing of this order in no way will affect the interest of the people of the locality if it is genuine in nature and for the same, all the authorities unitedly will take care to make a balance in between the development and the maintenance of the greenery. Ashok Srivastava, J.—I agree.