12. The ratio in Yogendra Pal v. Municipality relied on by Shri V.C. Mahajan renders little assistance to the respondents. In that case, this Court, while declaring Section 203 of the Haryana Municipality Act, 1973, as violative of Article 14 of the Constitution, has given effect to the judgment prospectively. The reasons given in the judgment are eloquent. The Municipalities in Punjab and Haryana States have acquired vast extents of land under different schemes and the lands stood vested in the Municipality and used the land for diverse purposes. The declaration would be rendered illegal unless the prospective operation was given. A chaos would ensue. To obviate such a catastrophe, this Court had made the operation of the declaration prospective. That is not the situation in this case. It is seen that as soon as the appellants have become aware of the grant made in favour of PSS, they filed the writ petition. Instead of awaiting the decision on merits, PSS proceeded with the construction in post-haste and expended the money on the construction. They have deliberately chosen to take a risk. Therefore, we do not think that it would be a case to validate the actions deliberately chosen, as a premium, in not granting the necessary relief. It was open to the PSS to await the decision and then proceed with the construction. Since the writ petition was pending, it was not open to them to proceed with the construction and then to plead equity in their favour. Under these circumstances, we will not be justified in upholding the action of the State government or the Municipality in allotting the land to PSS to the detriment of the people in the locality and in gross violation of the requirements of the Scheme. Any construction made by PSS should be pulled down and it must be brought back to the condition in which it existed prior to allotment. The Municipality is directed to pull down the construction within four weeks from today. They should place the report on the file of the Registry of the action taken in the matter.

11. Their Lordships have directed to pull down the construction raised on the municipal land in Virender Gaur case (supra).

12. The Apex Court in M.I. Builders Private Limited v. Radhey Shyam Sahu and Ors. : (1999) 6 SCC 464 [LQ/SC/1999/638] has laid down that the Court should order the demolition of such unauthorized construction even though the builder has invested considerable amount. Their Lordships have further held that this dictum is almost bordering rule of law. Their Lordships have highlighted the importance of parks and have held that it is the duty of the Municipal Corporation to maintain them under the public trust doctrine. Their Lordships have held as under:

50. Jhandewala Park, the park in question, has been in existence for a great number of years. It is situated in the heart of Aminabad, a bustling commercial-cum-residential locality in the city of Lucknow. The park is of historical importance. Because of the construction of underground shopping complex and parking it may still have the appearance of a park with grass grown and path laid but it has lost the ingredients of a park inasmuch as no plantation now can be grown. Trees cannot be planted and rather while making underground construction many trees have been cut. Now it is more like a terrace, park. Qualitatively it may still be a park but it is certainly a park of different nature. By construction of underground shopping complex irreversible changes have been made. It was submitted that the park was acquired by the State Government in the year 1913 and was given to the Mahapalika for its management. This has not been controverted. Under Section 114 of theit is the obligatory duty of the Mahapalika to maintain public places, parks and plant trees. By allowing underground construction Mahapalika has deprived itself of its obligatory duties to maintain the park which cannot be permitted. But then one of the obligatory functions of the Mahapalika under Section 114 is also to construct and maintain parking lots. To that extent some area of the park could be used for the purpose of constructing underground parking lot. But that can only be done after proper study has been made of the locality, including density of the population living in the area, the floating population and other certain relevant considerations. This study was never done. Mahapalika is the trustee for the proper management of the park. When true nature of the park, as it existed, is destroyed it would be violative of the doctrine of public trust as expounded by this Court in Span Resort Case : (1997) 1 SCC 388 [LQ/SC/1996/2186] . Public Trust doctrine is part of Indian Law. In that case the respondent who had constructed a motel located at the bank of river Beas interfered with the natural flow of the river. This Court said that the issue presented in that case illustrated the classic struggle between those members of the public who would preserve our rivers, forests, parks and open lands in their pristine purity and those charged with administrative responsibilities who, under the pressures of the changing needs of an increasingly complex society, find it necessary to encroach to some extent upon open lands heretofore considered inviolate to change.

51. In the treatise "Environmental Law and Policy : Nature, Law, and Society by Plater Abrams Goldfarb (American Casebook series 1992) under the Chapter on Fundamental Environmental Rights, in Section 1 (The Modern Rediscovery of the Public Trust Doctrine) it has been noticed that "long ago there developed in the law of the Roman Empire a legal theory known as the "Doctrine of the public trust". In America Public Trust doctrine was applied to public properties, such as shore-lands and parks. As to how doctrine works it was stated:

The scattered evidence, taken together, suggests that the idea of a public trusteeship rests upon three related principles. First, that certain interests - like the air and the sea - have such importance to the citizenry as a whole that it would be unwise to make them the subject of private ownership. Second, that they partake so much of the bounty of nature, rather than of individual enterprise, that they should be made freely available to the entire citizenry without regard to economic status. And, finally, that it is a principle purpose of government to promote the interests of the general public rather than to redistribute public goods from broad public uses to restricted private benefit...." with reference to a decision in Illinois Central Railroad Company v. Illinois (1892) 146 US 387, it was stated that "the Court articulated in that case the principle that has become the central substantive thought in public trust litigation. When a state holds a resource which is available for the free use of the general public, a Court will look with considerable skepticism upon any governmental conduct which is calculated either to reallocate the resource to more restricted uses or to subject public uses to the self-interest of private parties.

This public trust doctrine in our country, it would appear, has grown from Article 21 of the Constitution.

61. It cannot be said that the construction of the underground shopping complex is by the builder as an agent of the Mahapalika. Concept of agency is totally missing in the present case. Rather the deal is from principal to principal. Reference may be made to the decision of this Court in Akadasi Padhans case : 1963 Supp (2) SCR 691 : AIR 1963 SC 1047 [LQ/SC/1962/410] quoted above. When the "development" is by the builder provisions of Section 14 of the Development Act would apply. There is no sanction of the building plan of the underground shopping complex by the LDA. Construction is, therefore, per se illegal. Even after the interim order of this Court allowing construction, plans were not got sanctioned from the LDA, which would be authority under the Development Act. Sanction of the building plan by the Mahapalika would, therefore, be meaningless. Even then, there were no sanctioned drawings. It has been pointed out that process of sanctioned appeared to be ad hoc and skeletal. When construction started LDA issued a show cause notice to the Mahapalika but then in view of the interim order made by this Court show cause notice was subsequently withdrawn. It was stated that against the order withdrawing the show cause a revision was filed by Mr. Amrit Puri, a writ petitioner to the State Government, which was stated to be still pending.

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 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 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 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. As will be seen in moulding the relief in the present case and allowing one of the blocks meant for parking to stand we have been guided by the obligatory duties of the Mahapalika to construct and maintain parking lots. 82. We direct as under:

1. Blocks 1, 2 and 4 of the underground shopping complex shall be dismantled and demolished and on these places park shall be restored to its original shape.

2. In Block 3 partition walls and if necessary columns in the upper basement shall be removed and this upper basement shall be converted into parking lot. Flooring should be laid at the lower basement level built to be used as parking lot. Ramp shall be constructed adjacent to Block 3 to go to upper and lower basement levels for the purpose of parking of vehicles. Further to make block 3 functional as a separate unit walls shall be constructed between block 2 and block 3 and also block 3 and block 4.

3. Dismantling and demolishing of these structures in Blocks 1, 2 and 4 and putting Block 3 into operation for parking shall be done by the Mahapalika at its own cost. Necessary services like sanitation, electricity etc. in Block 3 shall be provided by the Mahapalika.

4. Mahapalika shall be responsible for maintaining the park and the Block 3 for parking purposes in proper and efficient manner.

5. M.I. Builders Pvt. Ltd., the appellant, is divested of any right, title or interest in the structure built by it under or over the park. It shall have no claim whatsoever against Mahapalika or against any other person or authority.

6. Block 3 shall vest in Mahapalika free from all encumbrances. Licence of M.I. Builders to enter into the park and the structure built therein is cancelled of which possession is restored to the Mahapalika with immediate effect. No obstruction or hindrance shall be caused to the Mahapalika by any one in discharge of its functions as directed by this order.

7. Restoration of the park and operation of Block 3 for parking purposes shall be completed by Mahapalika within a period of 12 months from today and report filed in the registry of this Court.

13. What emerges from the above narrated facts is that respondent No. 2 has raised the construction of parking complex without any authority of law. The act of respondent-State to grant ex-post facto sanction Contrary to the Town and Country Planning Act, 1977 will not make the structure legal. It was not open to respondent No. 2 to construct a parking complex in a Children Park. The Children Parks are utmost important to provide healthy environment to the children. The parks should be maintained and their aesthetic beauty should always be preserved. The Council instead of improving the Children Park has raised the parking lot. The land of the Children Park has been utilized for diverse purposes by respondent No. 2. The grounds taken by the respondents to justify the construction of three storeyed parking complex are not tenable. It was expected from the Council i.e. respondent No. 2 to at least seek the permission of the State Government, who is the owner of the property before raising construction. Their Lordships of the Honble Supreme Court in Virender Gaur and M.I. Builders Private Limited (supra) cases have laid down that demolition is to be resorted where the construction has been raised unauthorizedly.

14. We have considered the matter very deeply and are of the considered view that since we are dealing with the matter pertaining to a Children Park, it will be harsh decision to direct the demolition of the existing structure and instead of that, the already raised construction can be utilized solely by the children in larger public interest. We, therefore, dispose of this writ petition with the following mandatory directions:

i) The Director, Language and Culture, Government of Himachal Pradesh is directed to provide a working Library for the Children in the first floor of the building in question to inculcate the habit of reading in the Children;

ii) The Director, Youth Services and Sports Himachal Pradesh is directed to use second floor for providing facilities of the games to the Children. These will include table tennis, Badminton, Carom board etc. according to the area;

iii) The third floor of the building in question shall be used only for the recreation purposes of the Children between the age group of one to twelve years. This can be used for social functions relating to children only;

iv) Respondent No. 1 is directed to take appropriate action against the officers/officials of respondent No. 2, who are instrumental in raising the unauthorized construction and also against the officers/officials of the Town and Country Planning Department, who are instrumental in granting the ex-post facto sanction to respondent No. 2 even on application which did not bear any date; and

v) Respondents No. 1 and 2 are directed not to permit the use of the parking complex raised over Khasra Nos. 357 and 358 for parking purposes. It shall be the duty of the Executive Officer of the Municipal Council to ensure the compliance of these directions;

15. The directions issued hereinabove shall be implemented by the authorities on or before the Children Day i.e. 14th November, 2009 in all respects. The copy of this judgment be sent to the Director, Language and Culture, Director, Youth Services and Sports and Director, Town and Country Planning, Government of Himachal Pradesh for compliance. Respondent No. 1 shall file the status report immediately after 14th November, 2009.

16. No costs.