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This article is written by Sukanya Mitra, pursuing Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from Lawsikho. The article has been edited by Prashant Baviskar (Associate, LawSikho) and Ruchika Mohapatra (Associate, LawSikho).

Introduction

The case of Preeti Singh vs. State of Madhya Pradesh and others, decided on 26.08.2021 involved the tussle between development and the environment. A Division Bench of the High Court of Madhya Pradesh declared a Municipality to be the trustee of open spaces and amenities designated for public use and enjoyment. Any use of these spaces and amenities contrary to the interests of the public would amount to a breach of trust. The article examines the case in light of the Doctrine of Public Trust.

Facts of the case

A community hall was being constructed on land designated for the public park of Indira Colony in Burhanpur, Madhya Pradesh. A writ petition was filed seeking directions to stop the construction. Further, the petitioner prayed for inquiry by the respondent-State into the illegalities done by the Mayor of Burhanpur, who was Respondent No. 5 in the petition. The petitioner placed on record some coloured photographs of the community hall under construction and alleged that said construction was illegal.

Issues

The issue was that the construction of the community hall on land for a public park was contrary to the provisions of the M.P. Municipalities Act, 1961.

Observations of the High Court

Relevant provisions of the M.P. Municipalities Act, 1961

  • Section 279: The Municipal Council may provide for amenities like open spaces, playgrounds, parks and swimming tanks, for the use of people. The Council can also frame bye-laws for regulating such amenities. The Council can also designate amenities for the exclusive use of women and children. The amenities can be provided for and maintained jointly by two or more local authorities.
  • Section 282: The State Government may reserve certain areas for any special purpose of public utility. The State Government can do so by publishing a notice in the official gazette, either on its own motion or on request by a Municipal Council. ‘Special purpose’ used in this context may be public parks, educational or medical institutions, markets, housing colonies, etc. Once the reservation has been notified, no construction can take place on such an area without the permission of the State Government. If any construction is done on a reserved area without the permission of the State Government, the Municipal Council may demolish such construction and recover the costs incurred for the demolition from the owner or occupier of the structure.

Referred judgments

TITLERATIO
Bangalore Medical Trust vs. B.S. Mudappa and others (1991) 4 SCC 54An appeal was made against the decision of the High Court of Karnataka setting aside the allotment of an open space reserved for a public park to a private medical trust for the construction of a hospital. The Supreme Court upheld the decision and observed that the allotment made by the Chief Minister was in breach of public trust; he was acting more like a person disposing of his private property and not discharging his duties and obligations for public welfare as the head of the State.
Intellectual Forum, Tirupathi vs. State of A.P. and others (2006) 3 SCC 549A Special Leave Petition was filed against the order of the High Court of Andhra Pradesh dismissing writ petitions challenging the alienation of land on which 2 ancient water tanks were situated for development and housing purposes. The Supreme Court held that the right to shelter and the fact that heavy monetary investment has been made in the projects does not outweigh environmental concerns. It has been established through a number of judgments by the Supreme Court that environmental protection and conservation is fundamental right and come under the purview of Article 21. The Court directed all construction to be stopped and the ancient tanks to be revived.
Municipal Corporation, Ludhiana and another vs. Balinder Bachan Singh (Dead) by LRS and others (2004) 5 SCC 182An appeal was filed against the judgment and order of the High Court of Punjab & Haryana, which upheld the decision of the Additional District & Sessions Judge that the respondents had ownership of the plot of land, which had been developed as a public park, and they were entitled to their prayer of injunction against the Municipal Corporation. The Supreme Court observed that green spaces were needed in localities to be the lungs for the residents. The Court noted that the respondents had themselves sold the plot of land, which were purchased with the understanding that the park will be provided for, at a high price. After taking advantage, the respondents could not be allowed to turn around and claim the park as their private property. The Court set aside the order of the High Court and reaffirmed the order of the Trial Court that the respondents were not owners of the land.
Padma vs. Hiralal Motilal Desarda and others (2002) 7 SCC 564An appeal was filed against the order of the High Court of Bombay in public interest litigation cancelling the bulk sale and allotment of developable land by a company incorporated by the State Government. The Supreme Court upheld the decision of the High Court and stated that the High Court rightly observed that open and green spaces are necessary not only for the use and enjoyment of people and to maintain the ecological balance but also to beautify the area.
Bombay Dyeing and Manufacturing Co. Ltd. vs. Bombay Environmental Action Group and others (2005) 5 SCC 61The Supreme Court was faced with the issue of whether harmony between environmental aspects and building regulations in the scheme floated by the Board of Industrial and Financial Reconstruction was possible. The Supreme Court observed that ecological factors need to be considered in town planning. The Court would normally lean in favour of environmental protection as it has been interpreted to be part of the fundamental right under Article 21. Public interest is relevant to the interpretation of the statute.
Yogendra Singh Tomar vs. State of M.P. and others AIR 1997 MP 124Public interest litigation was initiated against the proposed conversion of a public park into a shopping complex by the Municipal Council in a congested area. The Supreme Court observed that India, like the planet Jupiter, is thickly covered with toxic gases and dust. The Supreme Court held that open spaces such as parks and playgrounds were essential in protecting residents from the negative impacts of urbanization.

Keeping in mind the principles laid down by the Supreme Court in many cases for interpreting town planning laws, the Court observed that open spaces such as public parks are essential for residents in general and the children in particular to lead a healthy life. Hence, once a public park has been dedicated to residents, the Municipality holds it in trust on behalf of the public. Use of the public park for any other purpose by a body of the Municipality would be tantamount to breach of trust.

Public Trust Doctrine 

Though not explicitly stated, the Court invoked the Doctrine of Public Trust. The Doctrine states that certain resources, like air, seas, and forests, should be freely available and the Government is required to ensure access to the resources for public use. The Doctrine has two parts;

  1. Free access to resources: Natural resources are gifts of nature and should be accessible to everyone, irrespective of their status. 
  2. Government’s responsibility: The Government is responsible not only for ensuring resources are accessible to the public, but also for preventing private players from gaining ownership of these resources for commercial purposes. 

The Government is responsible for the effective management of public resources for the benefit of the public. Hence, the Government holds the resources as trustees. The public has the right to question the Government regarding the management of the resources.

The Public Trust Doctrine can be found in Article 48A and Article 51A of the Indian Constitution.

  • Article 48A is part of the Directive Principles of State Policy and mandates the State to make efforts to protect and improve the environment, and to safeguards forests and wildlife. 
  • Article 51A(g) imposes a duty on the citizens to protect and improve the natural environment, like forests, lakes and wildlife, and to have compassion for all living creatures.

As already discussed above, environmental protection and the right to clean air, clean water, etc have been interpreted to be a fundamental right under Article 21 by the Supreme Court.

The Public Trust Doctrine was first applied by the Supreme Court in the case of M.C. Mehta vs. Kamal Nath (1997). The Supreme Court had taken suo moto action based on a newspaper article. The article reported that a private company was expanding its hotel business and constructing a motel, called Span Club, on the banks of the river Beas. For this purpose, the company was trying to change the natural course of the river by using earthmovers and bulldozers. As a result, large parts of forests and the river bed itself were being destroyed. The land was leased to the private company by the State Government with prior approval of Kamal Nath, the then Minister of Environment and Forests. It was reported that Kamal Nath’s family had ‘direct links’ and ‘business interests’ in the private company. This was not the first time that the company had attempted to change the course of the river. The first time that the company had tried, they had caused massive flooding and destroyed Rs 105 crore worth of property.

The Supreme Court held that the Public Trust Doctrine was a principle of common law and is applicable in India. The State is a trustee and has a legal duty to protect natural resources. Resources for public use can not be converted into private ownership. By leasing the land, the State Government committed a breach of trust. The lease was canceled and the State Government was ordered to restore the natural conditions of the area. Further, the developer of the motel was directed to pay compensation in terms of restoration of the environment and removal of the pollutants caused by the construction. The motel was prohibited from discharging pollutants into the river.

Final Order

The Court disposed of the petition by directing that the community hall be demolished and all construction materials be removed within 2 months. It was further directed that the park maintained in land plots numbered 101, 102 and 103 in the Town and Country Planning map shall always be a park and cannot be used for any other purpose. The Municipal Corporation of Burhanpur was mandated to maintain the park and the Collector was mandated to ensure the order was complied with.

Conclusion

The current global debate on climate change has been triggered by the impact made by rapid industrialisation and urbanization. Environmental degradation is now obvious to every person, in the form of unseasonal rains, devastating floods, severe droughts, widespread forest fires, and toxic air pollution. The High Court of Madhya Pradesh made important observations regarding balancing development with the protection of the environment and ecology. The Court upheld the public’s interests in creating open spaces, public parks, playgrounds, etc for the public’s healthy life as well as for protecting and improving the environment.

References

  1. http://www.legalservicesindia.com/article/1429/Notion-of-Doctrine-of-Public-Trust-In-India.html
  2. http://mpurban.gov.in/Uploaded%20Document/act%20&%20rules/MunicipalCorporationACT1961%2023.pdf
  3. COI.pdf (legislative.gov.in)
  4. M.C. Mehta vs Kamal Nath & Ors on 13 December, 1996 (indiankanoon.org)

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