Thursday 2 March 2023

Whether a person can claim that his construction is authorized as per deemed permission if his construction is on open space?

 Deemed permission to an application under section 44 of  MRTP Act can apply only to cases where permission is otherwise capable of sanctioned in law.

    The provision that the permission shall be deemed to have been granted within a period of 60 days from the date of receipt of the application if the Planning Authority does not communicate its decision whether to grant or refuse permission can apply only to cases where the permission is otherwise capable of being sanctioned in law. If an application cannot be sanctioned, it certainly cannot be said that it is capable of a deemed sanction. In the present case, it is clear that no permission for development could have been granted by the Planning Authority since the site in question was not buildable at all being reserved as an open space for extension of Maharajbagh.

 IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Public Interest Litigation No. 34 of 2010 & Writ Petition No. 125 of 2011

Decided On: 21.10.2011

The Court on its own motion and Ors. Vs.  The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

S.A. Bobde & M.N. Gilani, JJ.

Author: S.A. Bobde, J.

Citation : 2012 (1)MhLj 232

1. Rule returnable forthwith. Heard the learned Counsel for the parties finally by consent.


2. P.I.L. No. 34/10 initiated by the Court on its own motion and Writ Petition No. 125/11 filed by Dr. Punjabrao Deshmukh Krishi Vidyapeeth relate to the same construction on land bearing Khasra No. 83/4 of Mouza Lendra in the city of Nagpur and have been taken up together by the consent of parties for final disposal.


3. The PIL inter alia calls upon Dr. Punjabrao Deshmukh Krishi Vidyapeeth, Akola (hereinafter referred to as "the Agricultural University") to show-cause why the construction should not be declared illegal and why it should not be demolished. Writ Petition No. 125/11 is preferred by the Agricultural University praying that the orders passed by the Planning Authority rejecting the application made by the Agricultural University for permission to construct and directing the removal of the unauthorized construction and the order of the Government of Maharashtra rejecting the Agricultural University's appeal against the rejection of the building plan and seeking regularization of the construction be quashed and set aside.


4. The main issue in both these matters is whether the Agricultural University had any authority in law to make a construction on the agricultural fields in its possession reserved for the extension of the adjoining Maharajbagh Zoo in the development plan on its own and whether the same is permissible.


5. Somewhere near the middle of the city of Nagpur is located a large area of land occupied by the Maharajbagh Zoo. Adjoining it is the land in question which is a large agricultural field. This area has been in existence as an open space since a very long time. The agricultural fields have been in existence since times immemorial and are described in the Heritage List as ancient. These fields are included in the Heritage List for preservation of sites for historical and archaeological importance prepared under the Maharashtra Regional and Town Planning Act. These fields have always been attached to the Agricultural College run by the respondent Agricultural University, Nagpur and have been used by the College as a Laboratory for carrying out experiments in agriculture since as long as anyone remembers. The fields present a very beautiful sight and act as the lungs of the city. They are surrounded by busy roads and constructions on the southern and eastern side, by the area of the Agricultural College on the western side and the Maharajbagh Zoo towards the north. In the revenue records, these fields are given Khasra No. 83/4 and are shown as held by the respondent Punjabrao Deshmukh Krishi Vidyapeeth (hereinafter referred to as "the PKV") which is a University formed under a statute, i.e. Maharashtra Agricultural Universities Act, 1983. Sometime in the year 2007 the Agricultural University apparently started construction knowing fully well that this area is reserved for agricultural purposes.


6. This area known as the PKV fields in the Heritage List was reserved as an open space for extension of the Maharajbagh Zoo. PKV made an application through one Shri Bhushan Kotwal to the Planning Authority, Nagpur under the Maharashtra Regional & Town Planning Act, 1966 (hereinafter referred to as "the MRTP Act") for development of the site under Sections 44 & 45 of the Act. Strangely, an application was made for development of the site by construction of a farmers' Communication Centre and not for a research laboratory. The application mentions that the PKV seeks permission to make the construction on Khasra No. 79 and not Khasra No. 84, which is the Khasra number of the present site. Khasra No. 79 mentioned in the application is an adjoining area which is reserved for construction on which the PKV already constructed a 'Shetkari Bhawan'. The application dated 13.4.2007, therefore, does not mention Khasra No. 84 which has already been reserved for agricultural fields, but Khasra No. 79 on which construction is permissible. The application seeks permission to develop an area admeasuring 15,52,000 sq. meters.


7. Without waiting for any sanction, the Agricultural University commenced construction of the Farmers' Communication Centre over an area of 2212 sq. meters. In addition, as of now the Agricultural University has brought another structure admeasuring 1006 sq. meters upto the plinth level on the same land. The Nagpur Municipal Corporation (hereinafter referred to as "the Planning Authority") issued a notice dated 25.5.2007 informing the Dean of the Agricultural University that they have started unauthorized construction over the PKV fields which are designated as Grade-I sites meant for conservation as sites for historical and archaeological importance. By this notice, the Planning Authority called upon the University to stop work without due permission. Surprisingly, instead of complying with the notice, the Associate Dean wrote back a reply letter dated 8.6.2007 stating that the Communication Centre is being constructed for the convenience and benefits of farmers visiting Nagpur in pursuance of a grant of Rs. Five Crores made available by the then Union Minister for Agriculture and that it would be difficult to explain to the Central Government if the grant given by the Union Minister for Agriculture remains unutilised. The Agricultural University feigned ignorance about the site being a Heritage site and asked the Planning Authority to furnish a list of sites belonging to the University which have been declared as Heritage sites. Peculiarly, there is no reference whatsoever to any decision of any authority of the University deciding to make a construction of this Communication Centre and it may be noted that the learned Counsel for the Agricultural University admitted that there is no direction by the Union Minister for Agriculture that the construction should be made on this very site.


8. On 25.6.2007, the Planning Authority rejected the building plan submitted by the respondent college on the ground that the proposal contravened the provisions of Development Control Regulations and the Development Plan of the city. The land was stated as having been reserved for extension of the Maharajbagh and under No Development Zone. It is also rejected on the ground that it is a Heritage zone. Unperturbed by the rejection, the Agricultural University continued the construction in defiance of the notice by the Planning Authority. On 2.11.2007, the Planning Authority issued another notice taking a stern view calling upon the Agricultural University to stop the unauthorised construction failing which it would launch a criminal prosecution. This also had no effect and the Agricultural University wrote back reiterating the contents of the earlier reply, this time stating that the 'Bhoomipujan' had been performed by the then Chief Minister, Maharashtra and other Ministers and that the Prime Minister has taken cognizance of the farmers suicides in the region and has announced remedial measures. Incidentally, it may be observed that the area where farmers committed suicide is nowhere near Nagpur and the construction seems to have no connection with it or the remedial measures. Further, it was stated that it was necessary to provide for accommodation of the farmers who visited Nagpur and, therefore, the construction of the Communication Centre was absolutely necessary. A copy of the reply is endorsed to several Ministers and M.L.As., officers of the office of the Corporation and the Corporators.


9. On 26.11.2007 the Agricultural University preferred an appeal to the Minister of State for Urban Development, Government of Maharashtra and according to the University, on 1.12.2007 the then Minister of State for Urban Development in a meeting attended by two M.L.As. instructed the Municipal Commissioner, Nagpur Municipal Corporation, i.e. the Planning Authority that the site falls within Grade-III Heritage List and, therefore, permission for construction can be granted. A copy of this reply is also endorsed amongst others to the Chairman of the Heritage Conservation Committee, asking for permission to recommence the construction.


10. Soon, on 5.1.2008, upon noticing recommencement of unauthorized construction, the Planning Authority reminded the Associate Dean, Agricultural College, Nagpur of the earlier notice under Section 54 of the MRTP Act and called upon the respondent college to stop construction within 24 hours. Again on 18.3.2008, the Planning Authority issued a letter to the respondent that the construction was unauthorised. This time the college claimed in the reply that the then Minister for Urban Development gave instructions regarding submission of proposal by the college for permission to construct and the college further claimed that since the proposal for construction is already submitted, the construction activity has been commenced in view of the instructions given by the said Minister.


11. On 21.2.2009, however, the Planning Authority took a stern cognizance of the ongoing construction and expressed dissatisfaction over the non-compliance of the earlier notice and issued a notice under Section 53 of the MRTP Act for removal of the unauthorised construction and threatened criminal prosecution. None of this appears to have had any effect on the respondent college. Eventually, on 9.11.2009, a Deputy Secretary to the Government called upon the Secretary, Town Planning Department, Maharashtra to attend the meeting to be chaired by His Excellency the Governor of Maharashtra where one of the issues to be discussed was construction of the unauthorized structure on the lands of the respondent University. What transpired in the meeting is not placed on record.


12. However, on 25.11.2009, the Planning Authority issued another notice for demolishing the construction within a period of one month. The Vice-Chancellor of the University wrote a letter dated 16.12.2009 and asked the Planning Authority to suspend further action claiming that the open spaces belonging to it have been deleted from the Heritage List and this time claiming that an appeal had been filed before the then Minister for Urban Development, who had in a meeting held on 1.12.2007 declared that permission can be given for construction over this area and that in any case, the area in question cannot be a Heritage site. The Planning Authority rejected the request made by the Vice Chancellor for granting permission to the construction by a letter dated 6.3.2010. Notwithstanding the above, the agricultural college addressed a letter to the Mayor of Nagpur informing her that the then Hon'ble Minister for Town Planning gave oral directions to carry on with the construction and that the construction has been proceeded on that basis and that similar instructions were given by the then Agricultural Minister of the State.


13. On 2.6.2010, the office of the Director, Town Planning wrote a letter to the Commissioner, Nagpur Municipal Corporation, referring to the demolition notice and stating that the Government has stayed the demolition notice for a period of one month and called for a report.


14. On 21.7.2010 this Court acting on reports of violation of law initiated suo motu proceedings against the respondents and stayed the construction. Thereafter, apparently the respondent University submitted a representation to the Planning Authority which was rejected on 4.10.2010. On 24.11.2010 this Court permitted the Appellate Authority to proceed and decide the appeal. The Appellate Authority rejected the appeal of the Agricultural University by order dated 15.12.2010. This order has been challenged by the respondent college in the present Writ Petition, i.e. No. 125/11, which has been clubbed with the present P.I.L.


15. Mr. K.H. Deshpande, the learned Amicus Curiae in PIL, submitted that the construction in question is completely illegal being in contravention of the Development Plan of the city of Nagpur where the land in question is shown as a reserved for extension of Maharajbagh and is meant to be preserved as an open space. It was also submitted that the construction is wholly unauthorised and illegal since it is being done on a land which is designated as a Grade-I Heritage site, for which the entry in the list reads as follows :-


Sr. No.


Heritage Zone


Name


Precinct


Location


Ownership


Usages


99


Open spaces


P.K.V. Fields


P.K.V. Fields


Large Tracts Throughout West Nagpur


PanjabraoKrishiVidyapeeth


Agricultural Experiments


 


 


 


 


 


 


 


 


Description


Date


 


Classification


Condition


 


 


Agricultural tracts of alluvial soil along the streams of Nag River and elsewhere


Ancient


Natural (use) (scc)


Good


 


 


 


Grade


Category


 


 


 


 


 


III


Open space (Land's excluding the reservation's and proposal's of D.P. of Nagpur Town and the land required for the Energy park" proposal of N.M.C. at village (Gadga).


 


 


 


 


It was further submitted that the construction by the respondent Agricultural University and Agricultural College is wholly unauthorized since it was commenced and proceeded with without obtaining any permission from any authority. It was further pointed out that the respondent college had brazenly proceeded to carry on the construction in spite of notices to stop work issued by the Planning Authority and the false plea that the construction had the sanction of the then Union Minister and the then Agricultural Minister, whereas in fact there is nothing on record to indicate that any of these Ministers had passed any order permitting such construction.


16. Shri M.M. Sudame, the learned Counsel appearing for the Agricultural University and the College, submitted that the grant of Rs. Five Crores was announced by the then Union Minister for construction of a Communication Centre and which would have lapsed had the construction not been commenced. However, the learned Counsel further submitted that the respondent Agricultural College has to carry on the construction for the purposes of providing accommodation to farmers, who visit Nagpur and that even though the permission for construction has been rejected and the appeal against such rejection has been dismissed, the Government should be directed to consider the representation made by the Agricultural College for regularization of this construction. According to the learned Counsel who appears for the petitioner in Writ Petition No. 125/11 filed by the Agricultural University, the order rejecting the appeal filed by the Agricultural College before the Government does not consider the merits of the plea for regularization but merely rejects the appeal on the ground of the conduct of the College and the University in commencing and continuing construction without obtaining permission.


17. Shri M.M. Sudame, learned Counsel for the Agricultural University, submitted that the structure cannot be considered to be unauthorized since there was a deemed sanction to the application made by the Agricultural University before commencing construction at Annexure 'A' of Writ Petition No. 125/10. According to Shri M.M. Sudame, learned Counsel for the Agricultural University, the application dated 13.4.2007, though no date is visible in the said application, must be deemed to have been sanctioned under Section 45(5) of the MRTP Act which reads as follows :-


S. 45. Grant or refusal of permission :-


(1) On receipt of an application under section 44 the Planning Authority may, subject to the provisions of this Act, by order in writing -


(i) grant the permission, unconditionally;


(ii) grant the permission, subject to such general or special conditions as it may impose with the previous approval of the State Government; or


(iii) refuse the permission,


(2) Any permission granted under sub-section (1) with or without conditions shall be contained in a commencement certificate in the prescribed form,


(3) Every order granting permission subject to conditions, or refusing permission shall state the grounds for imposing such conditions or for such refusal,


(4) Every order under sub-section (1) shall be communicated to the applicant in the manner prescribed by registration,


(5) If the Planning Authority does not communicate its decision whether to grant or refuse permission to the applicant within sixty days from the date of receipt of his application, or within sixty days from the date of receipt of reply from the applicant in respect of any requisition made by the Planning Authority, whichever is later, such permission shall be deemed to have been granted to the applicant on the date immediately following the date of expiry of sixty days :


Provided that, the development proposal, for which the permission was applied for, is strictly in conformity with the requirement of all the relevant Development Control Regulations framed under this Act or bye-laws or regulations framed in this behalf under any law for the time being in force and the same in no way violates either the provisions of any draft or final plan or proposals published by means of notice, submitted for sanction under this Act:


Provided further that, any development carried out in pursuance of such deemed permission which is in contravention of the provisions of the first proviso, shall be deemed to be an unauthorised development for the purposes of sections 52 to 57, (6) The Planning Authority shall, within one month from the date of issue of commencement certificate, forward duly authenticated copies of such certificate and the sanctioned building or development plans to the Collector concerned.


We see no merit in this contention. The provision that the permission shall be deemed to have been granted within a period of 60 days from the date of receipt of the application if the Planning Authority does not communicate its decision whether to grant or refuse permission can apply only to cases where the permission is otherwise capable of being sanctioned in law. If an application cannot be sanctioned, it certainly cannot be said that it is capable of a deemed sanction. In the present case, it is clear that no permission for development could have been granted by the Planning Authority since the site in question was not buildable at all being reserved as an open space for extension of Maharajbagh.


18. It was also contended by Shri Sudame that the application which was made by the Agricultural University was in fact an application made by the Government and, therefore, it ought to have been treated as an application for development undertaking on behalf of the Government under Section 58 of the MRTP Act. Section 58 of the MRTP Act reads as follows :-


S. 58. Development undertaken on behalf of Government :


(1) When any Government intends to carry out development of any land for the purpose of any of its departments or offices or authorities, the officer in charge thereof shall inform in writing the Planning Authority the intention of Government to do so, giving full particulars thereof, and accompanied by such documents and plans as may be prescribed at least thirty days before undertaking such development.


(2) Where a Planning Authority raises any objection to the proposed development on the ground that the development is not in conformity with the provisions either of any Development Plan under preparation, or of any building bye-laws in force for the time being, or for any other material consideration, the officer shall -


(i) either make necessary modifications in the proposals for development to meet the objections raised by, the Planning Authority; or


(ii) submit the proposals for development together with the objections raised by the Planning Authority to the State Government for decision.


(3) the State Government, on receipt of the proposals for development together with the objections of the Planning Authority shall, in consultation with the Director of Town Planning, either approve the proposals with or without modifications or direct the officer to make such modifications in the proposals as it considers necessary in the circumstances.


(3A) The development proposal approved by the State Government under sub-section (3) shall remain in force for a period of one year from the date of grant of such approval, and thereafter it shall lapse :


Provided that the officer in charge of the development may apply under intimation to the Planning Authority, to the State Government for extension of such period and thereupon the State Government may extend such period from year to year; but such extended period shall in no case exceed three years :


Provided further that, such lapse shall not bar any subsequent application by the officer in charge of the development, for fresh approval to the development under the preceding sub-sections.


(4) The provisions of sections 44, 45, and 47 shall not, and section 46 shall, mutatis mutandis and section 48 shall, as modified by sub-section (3A), apply to developments carried out under this section.


We do not see how Section 58 of the Act has any application to the present case, particularly since the Dr. Punjabrao Deshmukh Krishi Vidyapeeth, which is an Agricultural University which is established and governed by the Maharashtra Agricultural Universities Act, 1983 cannot be considered as Government by any stretch of imagination. Further, no sovereign function of the Government is attributable to the Agricultural University.


19. We have considered the legality and propriety of the order rejecting the appeal of the Agricultural University In Writ Petition No. 125/11. The Principal Secretary to the Government who heard the appeal has taken note of the fact that the construction was contrary to reservation and the construction which was commenced without any authorization continued till this Court stayed it in June, 2010. The Appellate Authority has come to the conclusion that the Planning Authority has rightly rejected the permission which was sought belatedly and the land was unbuildable since it was reserved for the extension of Maharajbagh. The Appellate Authority has recorded a clear finding of violation of Section 45 of the MRTP Act and held that the structure needs to be demolished under Section 53 of the Act. We find that since there is no dispute about the reservation of the site, the fact that no permission was sought, the fact that there is no change in reservation and that the construction was commenced and proceeded without any authorization, the impugned orders of the authority cannot be said to suffer from any error of law apparent on the face of the record. Similarly, the Appellate Authority has rightly rejected the plea of regularization on the ground that no regularization can be granted unless there is a modification of the reservation under Section 37 of the MRTP Act and the reservation is changed to permit regularization. The Appellate Authority has rightly held that any regularization in the circumstances of the case would give a wrong signal to all concerned and that the University which should set an example of probity has violated the law of the land and flouted the direction of the Competent Authority. The Appellate Authority has rightly invoked the dictum of the Father of the Nation that "the means should justify the end" with reference to the plea that the construction is being made for providing a facility for farmers. We see no reason to interfere with the order of the Appellate Authority.


20. Indeed, the acts of the respondent Agricultural University and Agricultural College presents a sorry picture. As we have noted, even the application made on its behalf is misleading and seeks permission to develop a land on a wrong Khasra number, i.e. Khasra No."79" only because the reservation on the Khasra number which is mentioned permits construction. In fact, the land on which the construction is made is Khasra No. 83/4 which is undisputedly reserved for the extension to Maharajbagh and has an open space and is, therefore, not buildable. The Agricultural University and its officers not only acted in contravention of law but when directed by the authorities to stop the illegal activity, acted in defiance relying on non-existent and untenable claims that the Ministers in the Government have permitted the construction. There is not a single order by any Minister authorizing this construction. Also it cannot be said that the then Union Agriculture Minister announced a grant of Rs. Five Crores for construction of the Communication Centre at this site or at any site where it is not permissible. The attempt by the respondent Agricultural University and the authorities of the University to show patronage to their ill-begotten project by the Ministers and M.L.As. is unfortunate and appears to be a plea taken solely to cover up their illegalities. Apart from the illegalities, it is unfortunate that the Agricultural University ought to have considered destroying or marginalizing a facility like a laboratory meant for research into agriculture, though agricultural research is much needed and diverting the land meant for that, for construction of Communication Centre. The act is all the more unfortunate particularly because the University has more than enough land elsewhere in Nagpur itself to make such a Centre. The Agricultural University seems to be oblivious of the need for open green areas in urban green spaces in town and cities including Nagpur. A recent report on urban forests and open green spaces in relation to some cities in Rajasthan states as follows :-


Many policy instruments and robust scientific evidence in last two decades have emphasized the critical necessity of green areas within urban social ecological systems to ameliorate several problems of city-living. As this study will demonstrate, benefits of urban green spaces are wide-ranging including physical and psychological health, social cohesion, climate change mitigation, pollution abatement biodiversity conservation and provisioning of the ecosystem goods and service to urban inhabitants...

This report emphasized the need for laying down standards of certain area of green spaces per capita for reaching a balance between carbon-dioxide and oxygen to meet the ecological balance of human well-being. The learned Amicus Curiae has rightly relied on this report and submitted that diversion of such large green urban spaces to built-up areas should not be allowed in Nagpur also. We consider it, therefore, appropriate to direct the respondent Planning Authority to undertake a study and determine the optimum standard of open space per capita as has been done for other cities, such as Jaipur, etc. The study may be completed and a report shall be submitted to this Court within a period of one year from today.


21. In this regard, it would be appropriate to refer to the powerful case made out by a Red Indian Chief to the Great White Chief in Washington reproduced by the Supreme Court in the case of Shri Sachidanand Pandey and another.vs. The State of West Bengal and others reported in MANU/SC/0136/1987 : AIR 1987 SC 1109, which reads as follows :-


2. A hundred and thirty-two years ago, in 1854, 'the wise Indian Chief of Seattle' replied to the offer of 'the great White Chief in Washington' to buy their land. The reply is profound. It is beautiful. It is timeless. It contains the wisdom of the ages. It is the first ever and the most understanding statement on environment. It is worth quoting. To abridge it or to quote extracts from it is to destroy its beauty. You cannot scratch a painting and not diminish its beauty. We will quote the whole of it :


How can you buy or sell the sky, the warmth of the land'! The idea is strange to us.


If we do not own the freshness of the air and the sparkle of the water, how can you buy them?


Every part of the earth is sacred to my people. Every shining pine needle, every sandy shore, every mist in the dark woods, every clearing and humming insect is holy in the memory and experience of my people. The sap which courses through the trees carries the memories of the red man.


the white man's dead forget the country of their birth when they go to walk among the stars. Our dead never forget this beautiful earth, for it is the mother of the red man. We are part of the earth and it is part of us. The perfumed flowers are our sisters; the horse, the great eagle, these are our brothers. The rocky crests, the juices in the meadows, the body heat of the pony, and man - all belong to the same family.


So, when the Great Chief in Washington sends word and he wishes to buy our land, he asks much of us. The Great Chief sends word he will reserve us a place so that we can live comfortably to ourselves. He will be our father and we will be his children. So we will consider your offer to buy our land. But it will not be easy. For this land is sacred to us.


This shining water which moves in the streams and rivers is not just water but the blood of our ancestors. If we sell you land, you must remember that it is sacred, and you must teach your children that it is sacred and that each ghostly reflection in the clear water of the lakes tells of events and memories in the life of my people. The water's murmur is the voice of my father's father.


The rivers are our brothers, they quench our thirst. The rivers carry our canoes, and feed our children. If we sell you our land you must remember, and teach your children, that the rivers are our brothers, and yours and you must henceforth give the kindness you would give any brother.


We know that the white man does not understand our ways. One portion of, land is the same to him as the next, for he is a stranger who comes in the night and takes from the land whatever he needs. The earth is not his brother but his enemy, and when he has conquered it, he moves on. He leaves his fathers' graves behind, and he does not care.


He kidnaps the earth from his children. His father's grave and his children's birthright are forgotten .He treats his mother, the earth, and his brother, the sky, as things to be bought, plundered, sold like sheep or bright beads. His appetite will devour the earth and leave behind only a desert.


I do not know. Our ways are different from your ways. The sight of your cities pains the eyes of the red man. But perhaps it is because the red man is a savage and does not understand.


There is no quiet place in the white man's cities. No place to hear the unfurling of leaves in spring or the rustle of an insect's wings. But perhaps it is because I am a savage and do not understand. The clatter only seems to insult the ears. And what is there in life if a man cannot hear the lonely cry of the whippoorwill or the arguments of the frogs around a pond at night? I am a red man and do not understand. The Indian prefers the soft sound of the wind darting over the face of a pond, and the smell of the wind itself, cleansed by a mid-day rain, or scented with the pinon pine.


The air is precious to the red man, for all things share the same breath -- the beast, the tree, the man, they all share the same breath. The white man does not seem to notice the air he breathes. Like a man lying for many days, he is numb to the stench. But if we sell you our land, you must remember that the air is precious to us, that the air shares its spirit with all the life it supports. The wind that gave our grandfather his first breath also receives the last sigh. And if we sell you our land, you must keep it apart and sacred as a place where even the white man can go to taste the wind that is sweetened by the meadow's flowers.


So we will consider your offer to buy our land. If we decide to accept, I will make one condition. The white man must treat the beasts of this land as his brothers.


I am a savage and I do not understand any other way. I have seen a thousand rotting buffaloes on the prairie, left by the white man who shot them from a passing train. I am a savage and I do not understand how the smoking iron horse can be more important than the buffalo that we kill only to stay alive.


What is man without the beasts? If all the beasts were gone, man would die from a great loneliness of spirit. For whatever happens to the beasts soon happens to man. All things are connected.


You must teach your children that the ground beneath their feet is the ashes of our grandfathers. So that they will respect the land. Tell your children that the earth is rich with the lives of our kin. Teach your children what we have taught our children, that the earth is our mother. Whatever befalls the earth befalls the sons of the earth. If man spit upon the ground, they spit upon themselves.


This we know : The earth does not belong to man; man belongs to the earth. This we know : All things are connected like the blood which unites one family. All things are connected.


Whatever befalls the earth befalls the sons of the earth. Man did not weave the web of life: he is merely a strand in it. Whatever he does to the web he does to himself.


Even the white man, whose God walks and talks with him as friend to friend. cannot be exempt from the common destiny. We may be brothers after all. We shall see. One thing we know, which the white man may one day discover - our God is the same God. You may think now that you own Him as you wish to own our land; but you cannot. He is the God of man, and His compassion is equal for the red man and the white. This earth is precious to Him, and to harm the earth is to heap contempt on its Creator. The white too shall pass; perhaps sooner than all other tribes. Contaminate your bed and you will one night suffocate in your own waste. "But in your perishing you will shine brightly, fired by the strength of the God who brought you this land and for some special purpose gave you dominion over this land and over the red man. That destiny is a mystery to us, for we do not understand when the wild buffalo are all slaughtered, the wild horses are tamed, the secret corners of the forest heavy with scent of many men and the view of the ripe hills blotted by talking wires. Where is the thicket ? Gone. Where is the eagle ? Gone. The end of living and the beginning of survival.


In the same case, the Supreme Court reiterated the warning in following terms which has not only not lost its relevance but has assumed greater importance in recent years due to natural disasters said to be induced by human intervention :-


...In the last century, a great German materialist philosopher warned mankind : "Let us not, however, flatter ourselves over much on account of our human victories over nature. For each such victory nature takes its revenge on us. Each victory, it is true, in the first place brings about the results we expected, but in the second and third places it has quite different, unforeseen effects which only too often cancel the first.

22. As regards the fate of the offending structure, Mr. K.H. Deshpande, learned Senior Counsel (Amicus Curiae) for petitioner in PIL, relied on the following observations of the Supreme Court in the case of M.I. Builders Pvt. Ltd..vs. Radhey Shyam Sahu and others reported in MANU/SC/0999/1999 : (1999) 6 SCC 464 where the Supreme Court observed in paragraph no.73 as follows :-


73. The High Court has directed dismantling of the whole project and for restoration of the park to its original condition. This Court in numerous decisions has held that no consideration should be shown to the builder or any other person where construction is unauthorised. This dicta is now almost bordering the rule of law. Stress was laid by the appellant and the prospective allottees of the shops to exercise judicial discretion in moulding the relief. Such a discretion cannot be exercised which encourages illegality or perpetuates an illegality. Unauthorised construction, if it is illegal and cannot be compounded, has to be demolished. There is no way out. Judicial discretion cannot be guided by expediency. Courts are not free from statutory fetters. Justice is to be rendered in accordance with law. Judges are not entitled to exercise discretion wearing the robes of judicial discretion and pass orders based solely on their personal predilections and peculiar dispositions. Judicial discretion wherever it is required to be exercised has to be in accordance with law and set legal principles.

23. Shri M.M. Sudame, learned Counsel for the Agricultural University, relied on the decision of the Supreme Court in Corporation of Calcutta.vs. Mulchand Agarwala reported in MANU/SC/0033/1955 : AIR 1956 SC 110 where the Supreme Court declined to permit the demolition of the building which has been constructed. The facts and circumstances of the case are entirely different from the present case. In any case, there was no question of a construction made in contravention of a developed plan validly made under the Town Planning Act there.


24. In the result, Writ Petition No. 125/11 is liable to be dismissed and is accordingly dismissed.


C.A.W. No. 1286/11 for direction to the Government to consider representation for regularisation is also dismissed.


The impugned notice for demolition dated 25.11.2009 is upheld as valid. The Planning Authority is accordingly directed to carry out the demolition of the Communication Centre and the adjacent structure upto the plinth level and any other structure which may be found on the land in question, i.e. Khasra No. 83/4 within a period of one month from today. The Agricultural University, i.e. Dr. Punjabrao Deshmukh Krishi Vidyapeeth is directed to restore the user of Khasra No. 83/4 to its original use without any further delay.


The Vice-Chancellor of University is directed to hold an enquiry into whether the application for development was duly made after proper authorization of the authority empowered to make such an application and whether a decision was taken by the appropriate authority to divert the land from its use as a Laboratory to a Communication Centre in accordance with law and statutes governing such decisions of the University. The enquiry shall fix the responsibility on those responsible for the said acts and an appropriate action shall be ordered against those responsible. A report in this regard may be submitted to this Court within a period of one year from today.


We further direct the respondent Planning Authority to undertake a study and determine the optimum standard of open space per capita as has been done for other cities, such as Jaipur, etc. The study may be completed and a report shall be submitted to this Court within a period of one year from today.


Rule is made absolute in the P.I.L. in above terms.


We are grateful to the learned Amicus Curiae Shri K.H. Deshpande & Shri D.V. Chauhan for the able assistance rendered by them in the present matter.


The Court on its own motion and Ors. vs. The State of Maharashtra and Ors. (21.10.2011 - BOMHC) : MANU/MH/1344/2011

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