Rajasthan High Court - Jaipur
Citizens Of Bundi And Ors. vs Municipal Board, Bundi And Ors., Etc. on 31 August, 1987
Equivalent citations: AIR1988RAJ132, 1987(2)WLN948
JUDGMENT G.M. Lodha, J.
1. Peoples development through ensuring "environmental purity" public parks, chowks, chogans, play grounds wide streets, roads, squares, and public open spaces for community gardens, physical exercises, games, festivals, meetings, functions are to be safeguarded for perpetual public use and making them inalienable. Safeguards for them contained in constitutional mandates of Articles 47, 48 and 51 and Municipal, U.I.T. Panchayat and easementary laws, whether to be undermined and scrapped for commercial benefits of colonisers, housing societies and even Municipalities or state authorities, is the pivot of legal debate in this "public interest litigation".
2. These are three connected appeals Nos. 156/80, 171/80 and 206/80 in which the enlightened citizens of Bundi in widen public interest for protecting a public park area of the city of Bundi, have filed these suits. The Municipal Board started auctioning the plots out of the public park for construction of shops as a commercial proposition. The citizens felt that they are being deprived of the valuable amenities of public park where people gather for public meetings, social religious and political and entertainment, etc., since last several years.
3. The civil litigation resulted in a contest between the enlightened citizens, who claimed that the civil body should not auction this important, valuable and useful land of the public for commercialisation and pecuniary benefits. The Municipal Board on the contrary contested both factually and legally this proposition.
4. The finding of the lower court is that although meetings are held and land is used for play ground etc., but there is no easementary right.
5. The first appellate court held that there must be an easementary right by prescription and further the villagers' right can be curtailed or altered. It was also held that the plaintiffs are required to prove that they have been enjoying such rights since times immemorial without any obstruction and interruption and as of right without taking permission.
6. The first appellate court held that it is true that religious meetings and political meetings and entertainment programmes and games, etc., have been held in this Azad Park quite for some time, but mostly with the permission of the Municipal Board. The court then held that so far as games are concerned, the game of Gulli Danda or lavendar, etc., in the present age cannot be said to create a just and proper right, because they do not add to the beauty or progress of the city. It was then held that there are cabins on the road sides which are to be removed and as only l/30th part of the Azad Park would be utilised for it, it would not reduce the major dimensions of the Azad Park nor it would reduce the substantial user of the Azad Park for citizens. In view of the above, the first appellate court confirmed the finding of the trial court on the relevant issues. Both the lower courts have said that the plaintiffs have a right to file the suit.
7. During the pendency of the appeal some of the defendants have died and their legal representatives have not been brought on record. In this respect applications have been filed by the respondents on 30-10-1980. Mr. Sharma and Mr. Jain argued that the entire suit abates, but I am of the opinion that in a dispute of this nature the citizens have challenged the Municipal Board's interference in civic rights and the amenities, the suit as a whole can never abate. It should not be forgotten that we are in an era where the Supreme Court has repeatedly held that the doctrine of locus standi and further the old obsolete adversary system of litigation of lis between the panics have undergone radical changes. The new era horizons and dimensions of public litigation have been recently given still new dimensions by the Supreme Court in AIR 1987 SC 1086 (M. C. Mehta v. Union of India) where social action litigation for compensation has been held to be maintainable even without formal suits. In para 5 their Lordships have held that the earlier view of Bandhua Mukti Morcha in AIR 1984 SC 802alsorequires modification.
8. In Bandhua Mukti Morcha's case two Hon'ble Judges out of three held that letters addressed to individual justices should not be entertained, and even in public interest litigation, they must be addressed to the court or the Chief Justice and his companion Judges. This judgment was followed by this court in a Full Bench case Ganga Sahai v. Suraj Prasad reported in 1986 Rajasthan LR 550 : (AIR 1986 Raj 212) (Paras 17 & 17).
9. The Constitutional Bench of five judges in Mehta's case (AIR 1987 SC 1086) (supra) held as under :
"We do not think that it would be right to reject a letter addressed to an individual justice of the court merely on the ground that it is not addressed to the court or to the Chief Justice and his companion Judges. We must not forget that letters would ordinarily be addressed by poor and disadvantaged persons or by social action groups who may not know the proper form of address. They may know only a particular judge who comes from their State and they may therefore address the letters to him. If the court were to insist that the letters must be addressed to the court or to the Chief Justice and his companion judges, it would exclude from the judicial ken a large number of letters and in the result, deny access to justice to the deprived and vulnerable sections of the community. We are therefore of the view that even if a letter is addressed to an individual judge of the court, it should be entertained provided of course it is by or on behalf of a person in custody or on behalf of a woman or a child or a class of deprived or disadvantaged persons. We may point out that now there is no difficulty in entertaining letters addressed to individual justice of the Court, because this Court has a Public Interest Litigation Cell to which all letters addressed to the Court or to the individual justices are forwarded and the staff attached to this cell examines the letters and it is only after the scrutiny by the staff members attached to this Cell that the letters are placed before the Chief Justice and under his direction, they are listed before the court. We must, therefore, hold that letters addressed to individual justice of the court should not be rejected merely because they fail to conform to the preferred form of address, Nor should the court adopt a rigid stance that no letters will be entertained unless they are supported by an affidavit. If the Court were to insist on an affidavit as a condition of entertaining the letters, the entire object and purpose of epistolary jurisdiction would be frustrated because most of the poor and disadvantaged persons will then not be able to have easy access to the court and even the social action groups will find it difficult to approach the court. We may point out that the court has so far been entertaining letters without an affidavit and it is only in a few rare cases that it has been found that the allegations made in the letters were false. But that might happen also in cases where the jurisdiction of the Court is invoked in a regular way."
In this very judgment their Lordships observed in para 2 as under : --
"If this court is prepared to accept a letter complaining of violation of the fundamental right of an individual or a class of individuals who cannot approach the Court for justice, there is no reason why these applications for compensation which have been made for enforcement of the fundamental right of the persons affected by the oleum gas leak under Article 21 should not be entertained. The Court while dealing with an application for enforcement of a fundamental right must look at the substance and not the form. We cannot, therefore, sustain the preliminary objection raised by Mr. Diwan."
10. The judgment of M. C. Mehta's case (AIR 1987 SC 1086) (supra) thus not only expands the horizons and dimensions of the public interest litigation by entertaining third party's application for compensation without there being regular application for compensation by the bereaved families or injured persons or adversely affected persons; but further by opening the gates of the Supreme Court and other High Courts in entertaining letters addressed by disadvantaged, disabled, women and children, etc., to Judges in their individual names, poor, ignorant, downtrodden, sufferers of injustice have been allowed to enter "Temples of Justice" without formal dress, flowers, rituals and chanting of mantras.
11. Obviously to this extent the Full Bench judgment of this Court stands impliedly overruled and the Bandhua Majdoor Morcha's (AIR 1984 SC 802) judgment on this particular specific point watered down and modified.
12. That being so, so far as abatement question is concerned, it would affect only those particular defendants who died and whose legal heirs have not been brought on record and in whose favour allotments of land have been made and permission granted, but not the citizens civic right as a whole.
13. I, therefore, hold that the suit would not abate as a whole, but it would abate against the following persons who have expired and whose legal representatives have not been brought on record : --
1. Respondent 4, Amir Chand.
2. Respondent 18, Gopal Das.
3. Respondent 2, Kodan Mal.
4. Respondent 40, Gopal Lal.
5. Respondent 10, Chandan Mal.
6. Respondent 46, Bhanwarlal.
14. Now coming to the merits of the case.
15. Mr. N. L. Jain and Mr. G. G. Sharma assisted by Mr. S. K. Jain argued that a public park can only be declared under the provisions of Rajasthan Parks Act, 1956. According to them no notification has been issued for this Azad park as a public park and, therefore, though in common parlance it is known as a park which was earlier known as a Chogan park and later on Azad Park, but it is not a park within the meaning of this Act No. 21 of 1956.
16. Mr. Rastogi on the contrary submitted that this Act is meant for those parks which are guarded and maintained at the Government expense and not for those parks which are guarded and maintained by the local Government institutions like U.I.T. or Municipal Board or District Board or Panchayat, etc.
17. Now Sub-section (2) of Section 2 defines a park as under : --
"(2) 'Park' means any park or garden declared to be a public park under this Act as well as any Zoo within any public park so declared."
18. Section 3 provides the procedure how a public park is to be declared. Section 4 is for control and practice and function and duties of the Superintendent and Section 5 prohibits the acts which are not to be done. There are rules framed under it which are known as Rajasthan Public Parks Rules, 1959. There is a schedule attached to these rules, which shows that 30 parks have been declared as public parks and so far as Bundi is concerned, there is none.
19. The question which has been raised by Mr. N. L. Jain about the concept of a public park under the law limited to the above Act raises a very important question of law, because admittedly in Rajasthan there are hundreds of towns and villages which may run into thousands where small areas are left apart by the Local Self Government Institutions like the Municipal Board or District Board or U.I.T. or Housing Board or Panchayats for the purpose of providing fresh air, ensure hygienic conditions and open land for the recreation of the children for exercise, walking, community meetings and festivals, etc. Whether all such places left out or reserved by the Semi-Government institutions can be deprived from the status of a park from the public place and the land of that area can be sold at the whim, caprice or desire of a particular person who happens to be a Sarpanch or Chairman or an Executive Officer or a Secretary or Commissioner or other office bearer of that society, is certainly a matter which requires much more extensive and intensive legal debate. Therefore, I would like to consider the case as one of the public place, whether it is called a park or a Chogan or a street or a path or a way or a chowk or square. Public place or an area of land left over by the local authorities for the user of the community as a whole which may include any of the above activities normally cannot be liquidated by the authority concerned on the ground of allotment for houses or shops or Government Offices or commercial-purposes.
20. The object appears to be that whenever a city or town or a village develops and several persons start residing in that area, they require some space in between for collective use under contrast to individual occupation and for collective purpose like games or meetings or festivals and entertainments, etc.
21. It would be a dereliction of duty by the State if an interpretation is taken that only those public parks which are declared to be such in the schedule would be treated as public parks and in a State which is having a population of more than three crores that in so many cities, towns and villages the public parks declared are only 32 and that too only is confined to eight cities or towns, which means that in Rajasthan as a whole in this twentieth century, the urban improvement and development has resulted in curtailing, limiting and reducing public parks which were thousands and are thousands to only 30 and that too limited to 8 cities and towns. I would not adjudicate it because for all intents and purposes from whatever I am going to say hereafter it is avoidable and therefore should be avoided for some more serious legal debate and adjudication.
22. In my opinion, whether a place is a park or a chowk or a public square is not very material so long as under the provisions of either the Municipal Act or Panchayat Act or Easements Act or any other law a citizen either himself or on behalf of the people of that area can legitimately claim that the peaceful enjoyment of the amenities of the community as such hitherto enjoyed by them should not be interfered with by anyone including the local authority or the State. The provisions ensuring such peaceful enjoyment are common in various laws. The Municipal Law expressly prohibits sale of public lands or streets or public places, and I have held it to be so in the case reported in Kishna Devi v. Vishnu Mitra, AIR 1982 Raj 281.
23. In support of this view Mr. Rastogi has placed reliance upon Section 92 of the Municipal Act, and Articles 47, 48 and 51A of the Constitution, and the various decisions. The relevant extracts are as follows : --
1. (1987) 1 Rajasthan LR 334 : (AIR 1988 Raj 2), L. K. Koolwal v. State of Rajasthan.
2. AIR 4986 SC 180, Olga Tellis v. Bombay Municipal Corporation.
3. AIR 1968 SC 418, Municipalities Talodo v. The Charity Commissioner, Bombay.
4. AIR 1980 SC 1622, Municipal Council, Ratlam v. Verdhichand.
5. AIR 1984 NOC 137 (Him Pra), Yogenderlal Sharma v. Municipal Corporation, Shimla.
24. My following observations may be noticed in Kishna Devi v. Vishnu Mitra, AIR 1982 Raj 281, paras 13, 15 and 16 of which read as under : --
"I am in agreement with the submission of Shri Panwar that when civil Courts are required to deal with the alleged encroachment on public streets, sanitary lanes, public roads, public parks, or public chowks, which are always left open by the city planning authorities in order to ensure property hygienic conditions about the light, air, sanitation then the civil Courts should insist on enforcement of such public rights in which the people, as a whole are very much concerned and affected. In those cases, individual rights should yield to public rights and individual interested litigations should be treated as subsidiary and secondary and in a given case yield to the public interest. In my view, this is solemn duties of the civil Court to protect public rights and to come down heavily against the efforts sometimes even the public authorities, who, on account of ulterior motives or vested interests or ignorance or corruption, alienate the public health and public hygiene and public sanitation to vested interests of individuals who purchase them on the strength of coins."
(15) "It is also a matter of regret and concern that even when the Urban Improvement Trust has directed 5Ft. space at least, to be kept open, yet the first appellate Court has refused the injunction as a whole."
(16) "As I am convinced that the first appellate Court has failed to consider material documents consisting of Urban Improvement Trust's sub-division plan and affidavits of the parties and the orders of Urban Improvement Trust and the provisions of the Municipal Act regarding public streets. I am of the opinion that the impugned order should beset aside and the first appellate Court should be directed to reconsider the entire matter again the dispose of the appeal afresh after hearing the parties. The first appellate Court would be at liberty to inspect the site in order to ascertain allegations of existence of a wall of Ramola Mohalla, which is in contradictions to a public lane. In such matters of civil rights of people in the civil Courts should not shirk responsibility of inspecting the site in order to appreciate the documents and affidavits and to impart the effective, prompt and ready justice, which can inspire confidence amongst the litigants and the people as a whole. All said and done the administration of justice and judiciary which has been assigned this sacred task should inspire confidence in people as a whole for whom it exists in the net analysis of our federal Constitution, judiciary exists for the people and not vice versa.
The State is to protect and safeguard public health and environments as per the Constitution of India : --
Article 47 reads as under : --
"Duty of the State to raise the level nutrition and the standard of living and to improve public health. The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health."
II Article 48A "Protection and improvement of environment and safeguarding of forests and wild life. The State shall endeavour to protect and improve the invironment and to safeguard the forests and wild life of the country?
III Article 51 : "Fundamental duties -- It shall be the duty of every citizen of India--"
"(g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion, for living creatures:
(i) to safeguard public property and to adjure violence"
The M. Board is trustee of such public property, as per the provisions of Rajasthan Municipalities Act, 1959, which reads as under : --
Section 3(24) : "Public Place" means a space, not being private property which is open to the use or enjoyment of the public whether such space is vested in the board or not;
Section 3(26) : "Public Street' means any street"
Section 3(32): " 'Street' means any road-bridge, foot-way lane, square court, alley or passage accessible, whether permanently or temporarily, to the public or any portion ,of the public, whether a thoroughfare or not, and includes on either side--
Section 92(2) "Power to acquire and hold property--(1) Every board may acquire and hold property both movable and immovable whether within or without the limits of the municipalities."
(2) All property of the nature hereinafter in this section specified and not being specially reserved by the State Government shall vest in and belong to the board, and shall together with all other property of whatsoever nature or kind not being specially reserved by the State Government, which may become vested in the board, be under its direction, management and control and shall be held and applied by it as trustee subject to the provisions and for the purposes of this Act, that is to say--
"All public city or town walls, gates, markets, slaughter-houses, nature, night soil, deposits and public buildings of every description, which have been constructed or are maintained by our municipal fund;
(e) such Government lands within a municipality as the State Government may by general or special order vest in the municipal board;
(f) all public streets and the pavements, stones and other materials thereof, and also all trees erections, materials, implements and things provided for such streets; and
(g) all Government buildings and all private lands building transferred to it by gift or otherwise.
Section 98 : "Duties of boards-It shall be the duly of every board to make reasonable provision for the following matters within the municipality under its authority namely ; --
(c) Clearing public streets, places and sewers and a spaces, not being private property which are open to the enjoyment of the public whether such spaces are vested in the board or not, removing noxious vegetation and obtaining all public nuisances;
(g) removing obstructions and projections in public streets or places and in spaces, not being private property which are open to the enjoyment of the pubic, whether such spaces are vested in the board or belong to the State Government".
Section 101 "Secondary powers of expenditure of Boards at their discretion provide out of the municipal property and fund, either wholly or partly, for--
(b) constructing, establishing, maintaining, or contributing to the maintenance of public parks, gardens", libraries, museums, reading rooms, radio receiving stations, lunatic asylums, halls, officers, dharamshalas, rest houses, encamping grounds and other public buildings and places :
The U. I. Trust also is required to protect public streets, Chowks etc. as per Rajasthan Urban Improvement Act, Section 42, which reads as under : --
"Transfer to Trust, for purposes of scheme of building or land vested in Municipal Board : Whether any building, or any street, square or other land or any part thereof which is vested in Municipal Board, is required for executing any scheme, the Trust shall give notice accordingly to the Chairman of such Board, and such building street, square land or part shall thereupon vest in the Trust subject in the case of any building, to the payment to the said Board of such sum as may be required to compensate it for actual loss resulting from the transfer thereof to the Trust.
Section 43 :
(1) The State Government may, by notification in the Official Gazette and upon such terms and conditions as may be agreed upon between it and the Trust, place at the disposal of the Trust all or any improved and unimproved lands in the urban area for which the Trust has been constituted and which may be vested in the State (known and hereinafter referred to as Nazul lands) for the purposes of improvement in accordance with a scheme framed and sanctioned under this Act.
Section 44. Transfer of private street or square to trust for purposes of scheme --(1) Whenever any street or square or part thereof which is not vested in the Municipal Board is required for executing any scheme, the Trust shall cause to be affixed in a conspicuous place in or near such street, square or part, a notice signed by the Chairman.
Section 45; Provision of drain or water work to replace another situated on land vested in the Trust under Section 42 or Section 43 or Section 44 - (1) When any building or any street, square or other land, or any part thereof has vested in the Trust under Section 42 or Section 43, Section 44 no drain or water work therein shall vest in the Trust until another drain or waterwork as the case may be if required has been provided by the Trust, to the satisfaction of the Municipal Board in place of the form or drain or waterwork.
Section 50 : Vesting in Municipal Board of street laid out or altered and open spaces provided by the Trust under scheme--(1) whenever the Municipal Board is satisfied.
The following have also protected public rights in public land, Chowk, park etc. AIR 1983 (NOC) 56 (Kant) p. 28.
Head Note B "Karnataka Municipal Corporation Act, 1976 (14 of 1977) Sections 174, 175 and 176 -- Land granted by Government to Corporation for public garden or public park. Lease of land by Corporation in favour of another person for purpose of construction of theatre for exhibition or dramas. Lease is illegal."
AIR 1984 NOC 137 (Him Pra) p. 63.
Head Note B. "Himachal Pradesh Municipal Corporatin Act (9 of 1980) Section 252 -Powers of State Government -- Government cannot order use of municipal property for purpose other than for which it was meant. Held directions of Government empowering Commissioner to allow use of ladies Park for public meetings, melas, exhibitions etc, are liable to be set aside."
Head Note A ''Constitution of India, Article 226 Locus standi petition by resident of Simla for direction to Simla Municipal Corporation to perform its statutory functions. Held, petition is maintainable since no other alternative remedy can be adequate and efficacious."
Rajasthan Panchayat Act equally protects public land : --
Section 2(7) 'Public land; or 'Common Land' means land which is not in exclusive possession and use of any individual but is used by the inhabitants of a Panchayat Circle commonly".
Section 2(8) 'Public Street means any road, street, bridge, lane, square, Court, alley or passage which the public has a right to pass along and includes the drains or gutters on either side and the land up to the defined boundary of any abutting property notwithstanding the projection over such land of any verandah or other super structure".
Section 88. "Panchyat property--(1) Subject to such reservation as may from time to time be made by the State Government all property of the nature hereinafter in this sub-section specified shall vest in and belong to a Panchayat, that is to say : --
(i) all common lands lying within the pavement, stones & other materials thereof and all trees, erctions materials and implements provided therefor
(iii) all public gates, markets, buildings, tanks reservoirs wells, bridges, culverts, tunnels, gutters, water works, water courses, lamps and lamp posts which have been constructed or provided for, or are maintained out of the Panchayat fund;
(v) all Government buildings and all private buildings and lands transferred to the Panchayat by gift or otherwise; and
(iv) all Government lands lying within the abadi area of the Panchayat Circle."
Section 88 Sub-section (3).
"All properties mentioned in Sub-sections (1) and (2) shall be under the direction, management and control of the Panchayat and shall be held by it as trustee for the purposes of this Act."
The Apex Courts have always protected public rights in public places. AIR 1980 SC 1622 Head Note.
"Where there existed a public nuisance in a locality due to open drains, heaps of dirt, pits and public excretion by humans for want of lavatories and consequential breeding of mosquitoes, the Court could require the Municipality under Section 133 of the Cr. P.C. and in view of Section 123 of the Municipalities Act to abate the nuisance by taking affirmative act on a time-bound basis. When such order was given, the Municipality could not take the plea that notwithstanding the public nuisance financial inability validly exonerated it from statutory liability, 1980 Jab LJ 135 Affirmed".
Para 2, Section 123. Duties of Council--(1) In addition to the duties imposed upon it by or under this Act or any other enactment for the time being in force, it shall be the duty of a council to undertake and make reasonable and adequate provision for the following matters within the limits of the Municipality namely."
Para 9. "All power is at trust that we are accountable for its exercise that from the people, and for the people, allsprings, and all must exist." (1) Discretion becomes a duty when the beficiary brings home the circumstances for its being exercised."
Para 12 "The statutory setting being thus plain, the municipality cannot extricate itself from its responsibility. Its plea is not that the facts are wrong but that the law is not right because the municipal funds being insufficient it cannot carry out the duties under Section 123 of the Act. This 'alibi' made us issue notice to the State which is now represented by counsel, Shri Gambhir before us. The plea of the municipality that notwithstanding the public nuisance financial inability validly exonerates it from statutory liability has no judicial basis. The Criminal Procedure Code operates against statutory bodies and others regardless of the cash in their coffers, even as human rights under Part III of the Constitution have to he respected by the State regardless of budgetary provision. Likewise, Section 123, of the Act has no saving clause when the municipal council is penniless. Otherwise, a profligate statutory body or pachydermic-governmental agency may legally defy duties under the law by urging in self defence a self-created bankruptcy or perverted expenditure budget. That cannot be".
Para 15 "Public nuisance, because of pollutants being discharged by big factories to the detriment of the poorer sections, is a challenge to the social justice component of the rule of law. Likewise, the grievous failure of local authorities to provide the basic amenity of public conveniences drives the miserable slum-dwellers to ease in the streets, on the sly for a time, and openly thereafter, because under Nature's pressure, bashfulness becomes a luxury and dignity a difficult art. A responsible municipal council constituted for the precise purpose of preserving public health and providing better finances cannot run away from its principal duty by pleading financial inability. Decency and dignity are non-negotiable facets of human rights and are a first charge on local self governing bodies. Similarly, providing drainage system not pompous and attractive, but in working condition and sufficient to meet the needs of the people cannot be evaded if the municipality is to justify its existence. A bare study of the statutory provisions makes this position clear".
Para 24" We are sure that the State Government will make available by way of loans or grants sufficient financial aid to the Ratlam Municipality to enable it to fulfil its obligations under this order. The State will realise that Article 47 makes it a paramount principle of governance that steps are taken for the improvement of public health as amongst its primary duties. "The municipality also will slim its budget on low priority items and elitist projects to use the sayings on sanitation and public health. It is not our intention that the ward which has woken up to its rights alone need be afforded these elementary facilities. We expect all the wards to be benefited without litigation. The pressure of the judicial process, expensive and dilatory, is neither necessary nor desirable if responsible bodies are responsive to duties. Cappelletti holds good for Indian when he observes : --
"Our judicial system has been aptly described as follows ; --
Admirable though it may be, (it) is at once slow and costly. It is a finished product of great beauty, but entails an immense sacrifice of time, money and talent.
This beautiful system is frequently a luxury, it tends to give a high quality of justice only when, for one reason or another, parties can surmount the substantial barriers which it erects to most people and to many types of claims. Why drive common people to public interest action ? Where Directive Principles have found statutory expression in Do's and Dont's the Court will not sit idly by and allow municipal government to become a statutory mockery. The law will relentlessly be enforced and the plea of poor finance will be poor alibi when people in misery cry for justice. The dynamics of the judicial process has a new enforcement dimension not merely through some of the provisions of the Criminal Procedure Code (as here), but also through activated tort consciousness. The officers in charge and even the elected representatives will have face the penalty of the law if what the Constitution and follow up legislation direct them to do are defied or denied wrongfully. The wages of violation is punishment, corporate and personal."
AIR 1972 Raj 103 Head Note A : "all the property of the nature specified in Section 51 vests in the Municipality and is under its control on the specific condition that it shall be held and applied by it for the purposes of the Act. It is not open to the Municipality to convert a part of a public highway into a bazaar.
The Board can discontinue or close permanently any public street under Section 113 (b) but that can only be done for the purpose of the Act. So also Board may grant permission to occupy any part of a street temporarily under Section 114 but that too only for the purposes specified in that section and not for setting up a stall When the Act does not empower the Municipality to let out portions of public highway for putting up stalls for carrying on business, ..no bye-laws could BE FRAMED UNDER Section 129 authorising the Municipality to do so."
Para 7 : "The argument is that as public highway vests in the Municipality and as power has been given under Section 113 (b) to the Municipality to discontinue or close permanently any public street. It was open to it to let out a part of the public highway to the stall holders. This contention was repelled by the learned single-Judge and rightly so in our opinion. All the property of the nature specified in Section 51 vests in the Municipality and is under its control on the specific condition that it shall be held and supplied by it for the purposes of the Act. It is not open to the Municipality to convert a part of a public highway into a bazaar.
Para 12 : "There was slight change in the language of the provision vesting certain properties in Municipality. 'Under Section 48(2) these properties vest in and belong to the Municipality and be under its direction, management and control. But it has been made clear that these properties shall beheld and applied by it as trustee subject to the provisions and for the purposes of the Act. The addition of the words and belong to did not make any difference to the power of the Municipality which it had under Section 51 of the Bikaner Municipal Act. In the Rajasthan Town Municipalities Act it was made clear that the properties are held by the Board as trustee and are to be applied by it for purposes of the Act. The Rajasthan Town Municipalities Act, 1951 was replaced by the Rajasthan Municipalities Act, 1959, the corresponding provisions are contained in Sections 92(2) (f), 161 and 163. The language of these sections is the same as the language of the corresponding sections of the Rajasthan Town Municipalities Act, 1951."
Para 13 : "We may mention here that it was not the case of the Municipality that part of the public streets on which the stalls stand were not required for the purpose of the streets and were therefore, let out on Tehbazari. No resolution of the Ganganagar Municipality was produced embodying such a decision in respect of either of the two public streets."
25. In the present case, the Municipal Board also in the reply, though in a guarded manner, indirectly accepted that the land which is now being called as Azad Park was earlier being called as Chogan and further from 1944 onwards it was given the nomenclature of a Chogan park by the State and now that Chogan park is called by them as Azad Park. All the above extracted laws and case laws, principles clearly show that a public chowk land, square, Chogan or park for public use, cannot be sold by Municipality for augmenting revenue or commercial purposes, as has been done in the instant case.
26. Now let us look at the admissions. Para 3 reads as under : --
( Editor: The vernacular matter printed hereunder has been omitted).
27. Then again in para 4, the following admissions have been made by the Municipal Board:
( Editor: The vernacular matter printed hereunder has been omitted).
28. If we read the above admissions of the Municipal Board along with the statement of Advocate Shri Ramchand Saxena of Bundi, it would be clear that he is residing in Bundi, from 1933 and since then he has been observing this park for the use of public purposes for religious functions and meetings etc. Even Yagyas are performed in addition to these functions and meetings. The Municipal Board itself has constructed a stage for this purpose. Kabadi is played in addition to Gulli Danda etc. and he has himself played it. He is 51 years of age and has been observing it since his childhood. It has been open Maidan without boundary known as Chogan Maidan and then construction of a boundary around it and calling it as Azad Park.
29. As I have mentioned earlier, whether we call it Chogan, square or maidan or a park is not very material from the point of view of the present case, as they are different forms and manifestations of the basic concept of public use, public utility and public place for public purposes. The mere fact that for holding public meetings political parties obtain permission from the Municipal Board and cannot in any way minimise or diminish its general customary user for public purposes which are multi-purpose and many-fold, some of which are admitted above.
30. The suit was filed somewhere in 1973, and we have got specific evidence of its public use in thirties specifically and much earlier generally. Even the Municipal Board itself has not come out with the case of the place being used for any other purpose or earmarked for any purpose. The very fact that the compound wall was constructed by the Municipal Board with a stage and the statute of the late Prime Minister Mr. Nehru has has been unveiled there corroborates that people of Bundi in general without any caste, creed, or religion, use it customarily as public place and the Chogan name or Azad Park name are consistent with this purpose.
31. However, in spite of the above findings, I would not like to disturb the constructions which have been made and the allotments which have already been made before the injunction was granted by this Court. In order to enhance social justice, I would not like to disturb the allotments made by the competent authorities and the constructions made so far, so that those persons who have been allotted land and have paid the amount should not be left high and dry. This is more so because, as rightly pointed out by the Municipal Board, these allotments have been made for the purpose of reducing congestion on the road which the persons having, which were impediment in the traffic also and were spoiling the plan development of Bundi City.
32. Mr. N. D. Jain appearing for the Municipal Board also submitted very frankly and fairly that except implementing the scheme of the shoping centres which have already been provided in the map or site plan duly approved by the town planner, the Municipal Board would not like to disturb this Azad Park in any way detrimental to the people or to be used. I am glad that a very fair and reasonable proposition has been put, and I have no hesitation in accepting it in the interest of all concerned including the petitioners, because after all they are interested in development of Bundi City and further adding to its beauty and development.
33. 1 have, therefore, got no hesitation in accepting all the three appeals and holding that the area known as Chogan or Azad Park, the last being latest nomenclature of which is in dispute is a public place in which the people of Bundi in general have been exercising the customary rights of recreation, entertainments, games, meetings and public functions. These rights would not in any manner be infringed by the respondents in future except to the extent of the marketing complex which has been provided by the municipality and which has been approved by the Government in the year 1973 as per the site plan produced in the Court below. No further interference of any kind would be made by the respondents including the municipal board or other functionaries and a permanent injunction prayed for in the nature is granted against the respondents.
34. The parties would bear their own costs throughout. As mentioned above, the suit is dismissed, so far as the defendants-respondents No. 4 Amir Chand, No. 18 Gopal Das, No. 2 Kodanmal, No. 40 Gopal Lal, No. 10 Chandanlal, and No. 46 Bhanwarlal are concerned as having been abated on account of their death.