Allahabad High Court
Nagrik Sanghtan Sewa Samiti Thru' Secy. vs State Of U.P. & 3 Others on 24 March, 2015
Author: Manoj Kumar Gupta
Bench: Manoj Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Chief Justice's Court Case :- PUBLIC INTEREST LITIGATION (PIL) No. - 60792 of 2014 Petitioner :- Nagrik Sanghtan Sewa Samiti Thru' Secy. Respondents :- State Of U.P. & 3 Others Counsel for Petitioner :- S.P. Srivastava,Ashish Srivastava Counsel for Respondents :- C.S.C.,Anil Tiwari,Vivek Varma Hon'ble Dr. Dhananjaya Yeshwant Chandrachud, Chief Justice Hon'ble Manoj Kumar Gupta, J.
This proceeding in the public interest has been instituted by Nagrik Sanghtan Seva Samiti, an organization formed by the allottees of a residential scheme floated by the Kanpur Development Authority, Kanpur1. The petition relates to a public park, described as Park No 1426, situated in Zone-2, Ward No 48, in 'Y' Block of Kidwai Nagar, Kanpur. The residential scheme was developed by KDA and was handed over to the Nagar Mahapalika (now Nagar Nigam) in 1989 for the purpose of maintenance. However, by a letter dated 24 April 1989, KDA clarified to the Chief Engineer of the Nagar Nigam that the transfer of the residential colony for maintenance would be subject to the condition that the right over the vacant land would remain with KDA.
The grievance in the petition is that the park has been encroached upon illegally by various persons who started the work of truck and auto repairing and welding. Even a meat shop was situated thereon. On 20 June 2007, the competent authority in KDA informed the petitioners that the park had already been transferred to the Nagar Nigam on 24 April 1989 for maintenance and that the Nagar Nigam would have to be approached for removing the encroachments. On 29 June 2007, a letter was addressed by KDA to the Municipal Commissioner stating that the Nagar Nigam had, without permission of KDA, allowed the construction of shops in the public park and had sold the shops. The letter records that the land use under the scheme was a public park and, hence, the allotment of shops was contrary to the scheme. Several representations were addressed by the petitioners and finding no response, this Court was moved in the present proceedings.
On 12 January 2015, the Court was informed that the boundary wall of the park had collapsed and a tender had been issued by the Nagar Nigam for its reconstruction and for the restoration of the park. The Court was also informed that the Nagar Nigam had taken steps for the removal of encroachments from within the park. The Municipal Commissioner was directed to file an affidavit in response to the petition dealing also with the grievance that the shops have been unauthorisedly constructed and sold by the Nagar Nigam within the boundaries of the park. Accordingly, an affidavit has been filed by the Municipal Commissioner, in reply to the petition. The affidavit states that in 1988-89, an encroachment drive was carried out by the Nagar Nigam. A Committee was constituted to consider the grievance of the shopkeepers who were displaced in the course of the drive. A report was submitted by the Committee on 9 August 1991 which recommended allotment to the disabled shopkeepers. Pursuant thereto, 91 persons were allotted small plots of land within the boundaries of the park, of whom 48 took possession. The affidavit states that encroachments have been made in the park which was not in a proper condition but they have since been removed. Moreover, the Court was also apprised of the fact that tenders have been invited for the work of restoring the park. The Court was further apprised that the work of the boundary wall has already been completed. The work of restoration, it was stated, would be completed shortly.
The counter affidavit filed by the Municipal Commissioner contains a communication dated 10 March 2015 by the Executive Engineer to the incharge Horticulture Officer, Nagar Nigam, Kanpur which indicates the boundaries of the park, both before and after the allotment of the land to and the construction of shops by the allottees. Prior to the allotment of plots of land within the park, the area and boundaries of the park, as stated therein, was as follows:-
Northern side - 84.92 meters Eastern side - 84.92 meters Southern side - 53.47 meters Western side - 91.21 meters The Nagar Nigam allotted as many as 91 plots of whom 48 allottees have constructed shops on the land within the precincts of the park. As a result of this, the area of the park stands reduced as follows:
Northern side - 65.30 meters Eastern side - 51.40 meters Southern side - 47.30 meters Western side - 55.65 meters The manner in which a public park has been permitted to be utilized for the allotment of plots of land for commercial purposes is clearly contrary to law. The public park was part of a lay out of a residential scheme. The persons who were allotted plots of land in the residential scheme did so on the basis of a solemn representation that there was a public park in close proximity. Allowing the public park to be dissipated by constructing shops thereon and allowing encroachments to take place, seriously affects the rights of residents to a clean and healthy environment, besides resulting in serious prejudice to the valuation of the properties purchased by them. The right to a clean and healthy environment is part of the right to life under Article 21 of the Constitution. Public parks have to be preserved and utilized only for that purpose as recreational open spaces. Across the State, glaring instances have come before the Court that these green spaces are being progressively allowed to be utilized for extraneous purposes by unscrupulous local bodies and officials, such as the setting up of shopping malls and other commercial use. This is a clear breach of the statutory duty cast upon planning authorities under the Uttar Pradesh Urban Planning and Development Act, 1973. Land use of a public park cannot be altered in this manner. Statutory authorities cannot be permitted to convert the few remaining open spaces to commercial use. Any use other than as a recreational open space in the case of a public park would be illegal.
The matter, in our view, would have to be tackled at two levels. The first relates to short term measures for the restoration of the park. This would involve (i) the construction of the boundary wall; (ii) removal of encroachments; (iii) restoring the park to its pristine condition; and (iv) cancellation of allotments of those amongst 91 allottees who have, in any event, not made any construction.
The Court has been apprised of the fact that the construction of the boundary wall has been completed and that the work of removing encroachments has already been carried out. In the event that any further encroachments still exist within the park, they shall be removed after following due process of law, no later than within a period of one month from the receipt of a certified copy of this order. The Municipal Commissioner shall also personally ensure that allotments in the case of those persons who have not made any construction are duly cancelled. The Court has been assured by the learned Senior Counsel appearing on behalf of the Nagar Nigam that this exercise is also being completed, on legal advice. The work of restoration of the park for which tenders have been invited must also be carried out on a war-footing. The Municipal Commissioner is directed to constitute a Committee consisting of the residents of the area and to take the Committee into confidence in regard to the manner of carrying out work of restoring the park. A proper plan shall be prepared for carrying out the restoration of the park so that all amenities necessary for the proper use and enjoyment of the park are put into place. No construction, whatsoever, shall be permitted within the park.
As regards 48 allottees who had put up constructions, we are conscious of the fact that they are not parties in these proceedings. Action for the revocation of their allotments and for the allotment of alternate areas to such persons, if they are found to be eligible in accordance with the policy, rules and guidelines, shall be carried out by the Nagar Nigam by following due process of law. The Nagar Nigam shall follow due process of law and shall ensure that the shopkeepers are, subject to their being found eligible, duly rehabilitated and relocated elsewhere. This exercise shall be initiated within one month and shall be completed preferably within a period of six months from the receipt of a certified copy of this order. These directions shall be strictly complied with to ensure that the park is restored to a proper condition, to subserve the use for which the land has been earmarked.
The petition is, accordingly, disposed of. There shall be no order as to costs.
Order Date :- 24.3.2015 AHA (Dr D Y Chandrachud, CJ) (M K Gupta, J)