Hon'ble Yogendra Kumar Sangal,J.
1. Writ petition under Article 226 of the Constitution of India has been preferred in public interest keeping in view the alleged permanent construction raised at the bank of river Gomti where a canal namely Ghazi-ud-Din Haider Canal meets. Ghazi-ud-Din Haider Canal (in short hereinafter referred as GHC) is a century old canal initially constructed for the irrigation purpose now it is one of the important drainage Canal flowing almost from the mid of the city flush out the water which includes rainy water from the city of Lucknow to river Gomti. An application has been filed by the State challenging the maintainability of writ petition, which has been rebutted by the respondents.
2. We have heard learned counsel for the petitioner Shri B.K.Singh and Shri S.C.Mishra learned Senior Counsel assisted by Shri D.K.Upadhayay learned Chief Standing counsel of the State. It shall be appropriate to give a brief account of controversy involved.
3. Since, almost three and four years the open space adjoining to bank of river Gomti and some other places of City has been point of litigation in number of writ petition. GHC meets river Gomti at the place situated between Barrage and the newly constructed 8 lane [2] bridge. In a Writ Petition No. 2102 MB 1997 by an order dated 23.5.2001 (Annexure-5) a Division Bench of this Court directed the government to prepare necessary project for construction of six lane road in parallel to GHC to ease out the traffic consumption of the city of Lucknow.
4. Later on by notification dated 16.10.2007 (Annexure-6) the State Government in contravention of order passed by this Court reduced the width road from 60 meters to 35 meters and converted the open space adjoining the GHC to the extent of 25 meters for commercial and residential use. The notification was impugned in a writ petition no. 4436 (MB) of 2006 and interim order was passed by a Division Bench of this Court. Before a Division Bench of this Court on 23.11.2009 a statement was made that no construction shall take place except with permission of court and whatever construction shall be done shall be in accordance to directive issued by NEERI.
5. Statement was given by Sri D.K. Upadhyaya, learned Chief Standing Counsel, before Division Bench of this Court that no agency of the State or Government department would raise construction on the land in question nor there is any proposal to do so in contravention of report of NEERI. The order dated 23.11.2009 passed in writ petition No. 4436 (MB) of 2003 is reproduced as under :
"Sri D.K. Upadhyaya, learned Chief Standing Counsel says that he has already filed an affidavit explaining as to what work has been started after receiving the report of NEERI and that no agency of the State or the Government department would raise any construction over the land in question nor there is any proposal to do so and only a retaining wall is being constructed as per the directions issued by the NEERI for solid waste management and no permanent or temporary constructions have been made nor shall be made.
[3] Sri Upadhyaya further says that this construction of retaining wall has been started in pursuance of the order passed by this Court on 17.9.09, which prohibited such development unless the report of NEERI was received.
Sri B.K. Singh, however, in response, submitted that while starting the construction of retaining wall, the respondents have not taken any opinion of any expert body.
Let objection be filed by the petitioner within three days after serving a copy upon the counsel for the State.
Let the matter be listed on 4.12.09 at 3:30 p.m. In view of the affidavit filed and the statement given by Sri D.K. Upadhyaya, that no construction activity would be taken, otherwise than permitted by the Court and as aforesaid stated by the learned counsel and that whatever work is to be done regarding laying down of retaining wall, the same shall be done strictly in accordance with the directives issued by the NEERI, which shall be reassessed and reconfirmed by the NEERI, if found necessary.
In view of the aforesaid statement, any development, work done, would be at the own risk of the respondents, which shall be subject to further orders of the Court."
6. On 4.12.2009, a Division Bench of this court observed that in case, any violation is done in contravention of the report of NEERI, it shall be brought to the notice of the Court. The notification with regard to change of land use was impugned in the writ petition No. 10478 of 2009, in which, the interim order was passed on 2.12.2009.
7. The petitioner had filed the relevant part of the report prepared by the National Environment Engineering Institute, Council of [4] Scientific and Industrial Research [in short hereinafter referred as 'NEERI'] as Annexure No. 13 to the writ petition. The NEERI while considering developmental activities on the river bank Gomti observed that urban or commercial construction should not be allowed within 100 metres distance from the riverbed determined by high flood water land from environmental point of view. The relevant portion from the report of NEERI is as under :-
"Developmental Activity and Related Construction It was reported that a park and parking area are to be developed in the area near the river where the MSW is dumped. As such any urban or commercial construction should not be allowed on the river bed and within 100 m distance from the river bed appropriately determined by high flood water line, from environmental point of view. Hence, prior to commencement of any construction and developmental activity, all the concerned government organizations should ensure that the proposed constructions/ development will be beyond flood plane area and satisfy the necessary norms considering high flood line of the river in that area. In addition it is suggested that no commercial or residential activities should be allowed on such a reclaimed area."
8. The Government of India, Ministry of Home Affairs, National Disaster Management Committee had also constituted a committee and committee had prepared a report to regulate town planning. Relevant portion has been filed as Annexure No. 17 to the writ petition. The priority No. 3 relates to playground, wood land, gardens, green belts and recreational area. The committee observed that activities of priority No. 3 i.e. play ground, garden and park etc. can be located in area vulnerable to frequent floods.
9. Lucknow Master Plan 2021 has been prepared by statutory [5] body, copy of the relevant portion of the Lucknow Master Plan has been filed as Annexure No. 18 to the writ petition. With regard to natural calamities for the area in dispute the Lucknow Master Plan 2021 provides that raising of construction in the flood affected area may be disastrous in due course of time during flood. It has been further observed that the area adjoining Gomti barrage above 110.85 level may be used for urban rehabilitation but other area should be used for 3rd priority, provided in the Disasters Management Plan i.e. green belt, park, open space etc. It has been further observed in the Lucknow Master Plan that Lucknow Development Authority had raised illegal construction in contravention of Master Plan, which is not justifiable and may be fatal in due course of time. To reproduce relevant portion from the Lucknow Master Plan, 2021, which is as under :
"गोमती नदी लखनऊ नगर के लगभग मधय से (उतर-पिशचम से दिकण-पूवर) बहती ह।ै नदी के आस-पास के केत अपेकाकृत िनचले सतर के एव बाढगसत केत ह।ै नगरीय िवसतार के फलसवरप इन िनचले केतो मे भी नगर के िवकिसत केतो के नजदीक होने के कारण नगरीय िवकास की पवृित बढ रही ह।ै इन केतो मे यिद िवकास िकया जाता है तो एक ओर तो इन केतो मे िवकास एव िवकास के उपरानत रख रखाव की लागत अनय उपयुक केतो के अपेका काफी अिधक होगी तथा दस ू री ओर बाढ आने पर अतयिधक जन एव धन की हािन होने की सभावना सदव ै बनी रहेगी। यधिप बाध आिद के िनमारण से कुछ हद तक बाढ पर िनयतण िकया जा सकता है िकनतु यह इसका सथायी समाधान नही हो सकता ह।ै ..................
(ब) पाथिमकता -तृतीय तृतीय पाथिमकता के उपयोग िजनमे पाकर, कीडा सथल, जगल, बगीचे, हिरत पिटटया तथा खुले/मनोरजनातमक सथल है, को बाढ पभािवत केतो मे भी अनुमनय िकया जा सकता ह।ै उपरोक ससतुितयो के पिरपेकय मे लखनऊ नगर मे बाढ िनयतण िवभाग दारा दी गयी सूचनानुसार िपछले ५० वषर १९७१ मे ११२.४९ मीटर रहा है जबिक हनुमान सेतु सटेशन पर िपछले २५ वषो मे वषर १९७१ मे ११०.८५० मीटर व वषर १९८० मे [6] १०९.३०५ मीटर रहा ह।ै अतः गऊघाट के आस-पास के केतो मे ११०.८५ मीटर के सतर से ऊचे सतर वाले केतो को ही नगरीय उपयोग मे लाया जाना उिचत होगा। इन उिलिखत सतरो से िनमन सतर के केतो को तृतीय पाथिमकता वाले उपयोगो मे ही िलया जाना उिचत होगा चाहे उनहे महायोजना मे अनयत पसतािवत िकया गया हो।..............
महायोजना मे पसतािवत मनोरजनातमक (पाकर एव खुले सथल आिद) सथल भी इन अनािधकृत िनमारण/िवकास कायो से पितकूल रप से पभािवत हु ए ह।ै अनेक पसतािवत मनोरजनातमक सथलो पर तो भू-उपयोग के िवरद िवकास/िनमारण का कायर पिधकरण दारा ही कराया गया ह।ै उदाहरणाथर सीतापुर मागर पर पसतािवत सथल, िबजनौर मागर पर पसतािवत सथल एव गोमती बरै ाज के समीप सथल तथा िनजी वयिकयो दारा भी मनोरजनातमक सथलो के िवरद लगभग २०४ हे० केत मे अनािधकृत िनमारण िकये गये ह।ै ऎसे िवकास/िनमारण आिद समायोिजत िकये जाते है तो भिवषय मे पाकर एव खुले सथलो का सदव ै अभाव बना रहेगा अतः इस पवृित को कडाई से रोकने का पयास अपेिकत ह।ै पािधकरण दारा उपलबध करायी गयी सूचना के अनुसार नगर मे २४२ अनािधकृत कालोिनया है िजनकी सूची अनुलगक -५ मे दी गयी ह।ै "
10. The main thrust of the argument of petitioner's counsel is that entire construction raised at the bank of river Gomti and conclave of GHC is against the report of NEERI and Lucknow Master Plan 2021.
11. Petitioner's Counsel has relied upon the cases reported in Vishwanath Chaturvedi Vs. Union of India (UOI) and Ors. [JT 2007 (4) SC 144], A. Abdul Farook Vs. Municipal Council, Perambalur and Ors. [JT 2009 (10) SC 331], State of Uttaranchal Versus Balwant Singh Chaufal and others [(2010) 3 Supreme Court Cases 402], Indian Council for Environ-Legal Action Versus Union of India and others [(1996) 5 Supreme Court Cases 281],Guruvayoor Devaswom Managing Committee and another Versus C.K. Rajan and others [(2003) 7 Supreme Court Cases 546], M. C. Mehta Versus Kamal Nath and others [(1997) 1 Supreme Court Cases 388], Intllectuals [7] Forum, Tirupathi Versus State of U.P. and others [(2006) 3 Supreme Court Cases 549] and Ashok Lanka and another Versus Rishi Dixit and others [(2005) 5 Supreme Court Cases 598].
12. An impleadment application has also been moved, which is taken on record. Sri S.C. Mishra, learned Senior Counsel assisted by Sri D. K. Upadhyaya, had challenged the maintainability of writ petition submitting that it may be dismissed outright being not maintainable.
13. Learned Senior Counsel has relied upon the cases reported in Delhi Development Authority Versus Rajendra Singh and others [(2009) 8 Supreme Court Cases 582] and Narmada Bachao Andolan Versus Union of India and others [(2000) 10 Supreme Court Cases 664].
14. While rebutting the submission, it has been stated that the report of Disasters Management Committee, referred in Lucknow Master Plan, has got no bearing to stop the construction in question. It has been vehemently argued by learned Senior Counsel that the low line area between eight lane bridge and Gomti bridge has been filled up and level has been raised, hence, the place is not prone to flood. It has been further stated that Box Culvert to channelize the GHC shall not affect the flow of water from GHC rather it shall be useful to ease the situation of flood. It has also been stated that writ petition has been filed at belated stage. The construction of weir has got no concern with environmental matter. It has also been stated that the box culvert has been constructed to the extent of 80%. The culvert and weir have been constructed on the report submitted by I.I.T. Roorkee.
15. During the course of argument, attention of this Court has been invited towards photographs of construction, which has been filed as Annexure 29 to the writ petition, made at the bank of river Gomti and GHC. It has been stated that it is a open pavilion having width and [8] length of 25/16 meter and shall be cultural center in the green belt area.
16. Present writ petition covers two fields of construction raised over GHC and bank of river Gomti. First relates to permanent construction in the form of pavilion and other building of western bank of river Gomti. The other relates to construction of culvert, weir etc. which according to respondents' counsel is to ease and improve the drainage system.
17. Merely because, the area of land has been filled up at the juncture of GHC and river Gomti prima facie it does not appear that it shall not be flood affected zone in terms of Lucknow Master Plan, 2021 and the report of NEERI. Even if, the level of the small piece of land as riverbed is raised, during rainy season, the flood water in the absence of space at the river bank for accumulation may move towards city area. This aspect of the matter requires to be considered by experts of the field.
18. Defending the construction, it has been stated by the respondents' counsel that the provisions contained in Lucknow Master Plan 2021, report of NEERI and report of Disasters Management Committee loses their relevance. Prima facie, submission seems to be not correct. In case, State or its instrumentalities were of the view that Lucknow Master Plan 2021 loses its efficacy and it is not a flood affected zone, then fresh report should have been obtained from NEERI, Disaster Management Committee and experts of the field but seems to has not been done. Construction raised at least in the form of pavilion or in other building at the meeting point of river Gomti and GHC prima facie, seems to be violative of Lucknow Master Plan 2021, hence controversy seems to call for adjudication under Article 226 of the Constitution of India as Public Interest Litigation. A thing should be done in the manner provided in the Act, Statute, Rules, Regulations and statutory provision and not otherwise. The State is [9] no exception to this principle. In M.C. Mehta (supra), their Lordship of Hon'ble Supreme Court had shown deep concern to preserve and protect the riverbed to maintain ecological balance. Hon'ble Supreme Court also observed that the natural resources and open space should not be converted into private ownership or commercial use. To quote relevant portion from the judgment of M.C.Mehta (supra) as under :
"The aesthetic use and the pristine glory of the natural resources, the environment and the ecosystem of our country cannot be permitted to be eroded for private, commercial or any other use unless the courts find it necessary, in good faith, for the public good and in public interest to encroach upon the said resources."
19. The U.P. Parks and Play grounds and open spaces (Preservation and Regulation) Act, 1975 ensure the protection of open spaces notified under the Master Plan or law time being enforced.
20. A Division Bench of this Court reported in 1993 Allahabad 57 D.D. Vyas Versus Gaziabad Development Authority had ruled that open spaces preserve as public utility land cannot be converted for commercial or private use.
21. Hon'ble Supreme Court in a case reported in AIR 1991 SC 1902 : Banglore Medical Trust Versus B.S. Muddappa observed that it is the fundamental right of citizen to enjoy quality of life, fresh air and fresh water. Protection of environment, open spaces for recreation and fresh air and play ground is in public interest and must be maintained.
22. In a Judgment reported in JT 2007 (11) SCC 138,City and Industrial Development Corporation of Maharashtra & Anr Vs. Ekta Mahila Mandal & Anr. Hon'ble Supreme Court had set-aside the judgment of High Court, where High Court had validated the [10] construction of school in an open space in residential area. Change of land used for construction of school could not found favour by the Supreme Court.
23. Hon'ble Supreme Court in a recent case reported in 2009 (8) SCC 582 :DDA Versus Rajendra Singh had relied upon the report of NEERI while setting aside the order of High Court, appointing fresh committee. To reproduce relevant portion from the judgement of Rajendra Singh (supra), which is as under:-
"43. In view of the literal meaning and in the light of the clarification by NEERI in their affidavit dated 29.1.2008, the site in question is neither a "flood plain" nor a "riverbed", hence contrary arguments of the writ petitioners before the High Court and in this Court and the ultimate conclusion of the Divison Bench for appointment of a fresh committee cannot be sustained."
24. In the present case, admittedly, no fresh report has been obtained from NEERI or Disaster Management Committee, Master Plan of Lucknow has also not been changed.
25. Land use may be changed under Section 13 of The Uttar Pradesh Urban Planning and Development Act, 1973 ( in short hereinafter referred as the Act) which deals with the plan development of cities.
Section 13 (1) of the Act empowers the government to change their land use but it may be done without changing the character of original plan.
26. Section 16 of the Act provides that no construction shall be raised otherwise that in conformity with the master plan.
For convenience, Section 13 and 16 of the Act are reproduced [11] as under:-
"Amendment of the Master Plan and the Zonal Development Plan
13. Amendment of Plan.-
(1) The Authority may make any amendments in the master plan or the zonal development plan as it thinks fit, being amendments which, in its opinion do not effect important alteration in the character of the plan and which do not relate to the extent of land uses or the standards of population density.
(2) The State Government may make amendments in the master plan or the zonal development plan whether such amendments are of the nature specified in Sub-section (1) or otherwise.
(3) Before making any amendments in the plan, the Authority, or as the case may be, the State Government shall publish a notice in at least one newspaper having circulation in the development area inviting objections and suggestions from any person with respect to the proposed amendments before such date as may be specified in the notice and shall consider all objections and suggestions that may be received by the Authority or the State Government.
(4) Every amendment made under this section shall be published in such manner as the Authority or the State Government, as the case may be, may specify, and the amendments shall come into operation either 3n the date of the first publication or on such, other date as the Authority or the State Government, as the case, may be, may fix.
(5) When the Authority makes any amendments in the [12] plan under Sub-section (1) it shall report to the State Government the full particulars of such amendments within thirty days of the date c)n which such amendments come into operations.
(6) If any question arises whether the amendments proposed to be made by the authority are amendments which effect important alterations In the character of the plan or whether they relate to the extent of land-uses or, the standards of population density, it shall be referred to the State Government whose decision, thereon shall be final.
(7 Any reference in any other Chapter, except Chapter III, to the master plan or the zonal Development plan shall be construed as a reference to the master plan or the zonal development plan as amended under this section.
"16. Uses of land and buildings in contravention of plans.-
After the coming into operation of any of the plans in a zone no person shall use or permit to be used any land or building in that zone otherwise that in conformity with such plan :
Provided that it shall be lawful to continue to use, upon such terms and conditions as may be prescribed by bye- laws made in that behalf, any land or building for the purposes and to the extent for and to which it is being used upon the date on which such plan comes into force."
27. Construction in contravention of master plan is punishable under the Act under Section 26(1), which is for convenience reproduced as under:-
"26. Penalties.-
(1) Any person who whether at his own instance or at the [13] instance of any other person or any body (including a department of Government) undertakes or carries out development of any land, in contravention of the Master Plan or Zonal Development Plan or without the permission, approval or sanction referred to in Section 14 or in contravention of any condition subject to which such permission approval or sanction has been granted shall be punishable with fine which may extend to [Fifty thousand] rupees, and in the case of a continuing offence, with further fine which may extend to 2[Two thousand five hundred] rupees for every day during which such offence continues after conviction for the first commission of the offence."
28. Thus, prima facie, government does not have got unfettered power to change a land use. The master plan prepared under the Act has got statutory force and in view of provisions contained in Section 16 of the Act (supra) no construction may be raised in contravention of master plan.
29. Accordingly, submission of learned Senior Counsel Shri S.C.Mishra defending the State action prima facie seems to be not sustainable since construction seems to has been done in violation of Lucknow Master Plan 2021 and report of NEERI.
30. It is settled law that authorities have to discharge their obligation under the doctrine of guided power not in a fanciful and arbitrary manner vide AIR 1952 SC 75 State of West Bengal Vs. Anwar Ali; 1974 Vol. 4 SCC 3 E.P. Royappa Vs. State of Tamil Nadu; 2006 (8) SCC 212 M. Nagraj Vs. Union of India and AIR 1978 SC 597, Maneka Gandhi Vs. Union of India.
31. It is settled law that citizens have legitimate expectation to avail benefit of facilities in view of plan development under the master plan [14] vide 2004 (1) SCC 663, Howrah Muncipal Corporation and others Vs. Ganges Rope Co. Ltd. and others.
32. There is no denial that whatever construction has been done at the river bank and meeting point of river Gomti that GHC has been done in violation of report of NEERI, disaster plan and Lucknow Master Plan. Such action on the part of State prima facie seems to be violative of statutory provisions and may be environmental hazard in due course of time. Since, constructions are raised in violation of report of NEERI, Disaster Management Committee as well as Lucknow Master Plan, which is punishable under Section 26 of the Act, it shall be failure on the part of higher judiciary if it does not intervene while discharging its constitutional obligation.
33. Keeping in view the public importance involve and being violative of report of experts and statutory provisions it is a fit case where under extraordinary remedy of Article 226 of the Constitution of India this court may interfere.
34. In view of the above, following question cropped up for adjudication :
(I) Whether State or its instrumentalities have right to raise construction in violation of Master Plan, report of experts (in the present case NEERI) as well as report of Disastrous Management Committee ?
(ii) Whether construction raised in violation of Lucknow Master Plan and a report of NEERI and Disaster Management Committee may be demolished and authorities responsible for taking such decision may be held responsible to pay cost incurred by public exchequer and face appropriate action in accordance with law ?
(iii) Whether construction raised reducing the length and width of [15] GHC regulating draining system of the city of Lucknow may be restored ?
35. In view of above, writ petition seems to be maintainable and is admitted for hearing.
36. Impleadment application is allowed.
Amendment be carried out forthwith.
Let notices be issued to newly added parties i.e. respondents No. 5 to 8.
37. Keeping in view the facts and circumstances of the case, following order is passed and ad interim mandamus is issued :-
(i) Accordingly, let counter affidavit be filed within six weeks, rejoinder affidavit within two weeks.
List immediately thereafter for peremptorily hearing.
(ii) National Disaster Management Division, Government of India is directed to constitute a Committee consisting its member and person from NEERI and other environmental experts to make an inspection of GHC and bank of river Gomti and submit a report as to whether construction raised shall be fatal to ecological balance, environment and may in due course of time create a situation to cause flood in the adjoining area/city of Lucknow. The Committee shall also make survey of GHC and submit its report as to whether construction raised may be fatal to ecology and environment in due course of time and may damage inhabitants of city during rainy season. Committee shall direct to submit a report expeditiously and preferably within a period of two months. It shall be open to the members of the committee to include other experts of the field having experience for preservation and protection of riverbed, canals, drainage system. State and its instrumentalities shall provide necessary assistance to the committee so constituted. It shall be open to the State authorities and experts of the field to give suggestions and [16] submit their opinion to the committee which shall be looked into while recording finding.
Learned Chief Standing Counsel as well as learned Assistant Solicitor General of India shall inform all concern.
(iii). Keeping in view the fact that 80% of construction of culvert and weir has been raised and it being relates to flow of water from GHC, respondents may proceed with the construction but it shall be subject to further orders passed by this Court taking into account the report of the committee. However, respondents are restrained to proceed further with construction of any permanent structure within 100 meters from the riverbed of Gomti and GHC which has got no concern with the alleged channelization of GHC.
38. Let a copy of this order be sent to Chief Secretary, Government of U.P., Lucknow, Secretary, Government of India dealing with disaster management and to Assistant Solicitor General of the India, Lucknow Shri I.H.Farooqui. Let all authorities be informed accordingly.
[Justice Devi Prasad Singh] [Justice Y. K. Sanghal] 18.6.2010 Madhu