Madhya Pradesh High Court
E-2,Rahawasi Sudhar Samiti vs The State Of Madhya Pradesh on 15 May, 2015
Bench: A. M. Khanwilkar, K.K. Trivedi
1
HIGH COURT OF MADHYA PRADESH : JABALPUR
WRIT PETITION No.12/2007
E-2 Rahawasi Sudhar Samiti, Bhopal & others
Vs.
The State of M.P. and others
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Coram :
Hon'ble Shri Justice A. M. Khanwilkar, Chief Justice
Hon'ble Shri Justice K.K. Trivedi, J.
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Whether approved for reporting ? - Yes/No.
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Smt. Shobha Menon, learned senior Counsel assisted by
Shri Rahul Choubey and Ms. Ankita Khare, learned Counsel
for the petitioners.
Shri Samdarshi Tiwari, learned Deputy Advocate
General for respondents No.1 and 3.
Shri Ajay Mishra, learned senior Counsel assisted by
Shri Gaurav Tiwari, learned Counsel for respondents No.2, 4
and 5.
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Reserved On : 06.05.2015
Date of Decision : 15.05.2015
JUDGMENT
[15 May, 2015] Per : K.K. Trivedi, J.
This petition under Article 226 of the Constitution of India filed as pro bono publico takes exceptions to the action taken by the respondents in diversion of the Campian Playground situated at E-2 Sector of Arera Colony, Bhopal, in converting the same to a mini stadium and also claims a relief of direction to demolish the illegal, unconstitutional work carried out on the said ground. A further relief is made seeking direction against the respondents to regulate the parking arrangements in Arera Colony, Bhopal, which has developed on account of 2 mass diversion of residential houses into commercial complex, financial and medical institutions.
2. The grounds set out by the Society, petitioner No.1 set up by the residents of the Arera Colony, and some of the residents of the said colony in the petition, are that the Society is constituted for the purpose of upliftment of the residents of the area and providing them certain necessary amenities. It is the case of the petitioners that there was a playground situated in the said area commonly known as Old Campian Playground in between Bus Stop No.7 and 10 in Sector E-2 of Arera Colony, which was being used by the residents, their children for morning and evening walk as also recreation activities like playing by the kids in the said ground. The said was the object of the playground as was mentioned in the master development plan proposed for the area commonly known as Bhopal Development Plan, 2005. In terms of the conditions mentioned in the said plan, a playground was to be remained open and available to the residents. It is the contention that a decision was taken by the authorities that the playground be transferred to respondent No.2 for the purpose of development of a mini cricket stadium. In furtherance to such a resolution, the construction work has been started, the gates have been put on the entrances of the playground and now the same is restricted to be used only as a stadium and is no more available to the residents to be used as playground. According to the petitioners, such an action is against the published development plan under the provisions of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973 (herein after referred to as 'Act'), therefore, the writ petition is filed seeking the aforesaid relief in public interest.
3. The respondents have filed their return. Respondents No.1 and 3 have contended in their return that proposal made for construction of a mini cricket stadium was not approved 3 and the communication in that respect has been sent on 23.11.2006. Since the land use is not changed as has been directed by the competent authority of the State, allegations made by the petitioners are not sustainable. However, keeping in view the fact that there is a requirement of outdoor games stadium, on a proposal made, an alternative site has been earmarked at village Gora Bishankhedi and, therefore, now the cause for filing of the present writ petition is not available to the petitioners and same is liable to be dismissed.
4. The respondent No.2, main contestant, has filed an exhaustive return taking certain preliminary objections regarding maintainability of the writ petition but essentially it has been pleaded that Arera Colony is the biggest residential colony of the capital city Bhopal, which is divided into 8 sectors having about 4000 dwelling houses. The playground earmarked is known as Old Campian Sports Ground situated between E-1, E-2, E-3 and E-4 Sectors. Earlier at the initial stage the area of the playground was approximately 5.5 acres. The said playground was under the control of General Administration Department of State of Madhya Pradesh, which was given for the maintenance to the Capital Project Administration. In the year 1992, decision was taken by the said Capital Project Administration to transfer the playground to the respondent No.2 for its maintenance, upkeep and other necessary requirements, in anticipation from the orders of the General Administration Department of Government of Madhya Pradesh. The possession of the said playground was handed over to respondent No.2 on 27.07.1992. Formal order of transfer was issued by the General Administration Department of Government of Madhya Pradesh on 28.11.1992. The possession of the playground is with the respondent No.2 right from the year 1992. As was specifically mentioned in the transfer order dated 28.11.1992 issued by the General Administration Department of Government of Madhya 4 Pradesh, the ground in question is to be used for sports activities and the same is not to be made available for any other use or purpose.
5. After taking over possession of the playground, respondent No.2 through the authorities could know that some of the members of the petitioner No.1 Society had illegally encroached a substantial portion of playground and have raised unauthorized construction of a temple. To restrain such further illegal activities of encroachment, it was decided to have a boundary wall all around the area of the playground. The boundary wall was thus erected to protect the playground from further encroachment. There was need of construction of an overhead water tank for maintaining water supply to the residents of the area and as no other land in the vicinity was available, on a demand made by Bhopal Municipal Corporation, on a part of the land of the playground, an overhead water tank was constructed. Thus, keeping in view the aforesaid, decision was rightly taken by the respondent No.2 to secure the available land area of the playground by construction of boundary wall.
6. Since the sports activities are to be held in the playground, necessary facilities to the sports persons like turf pitch, a changing room, toilet, small portion of building for housing the indoor activities, store and office were constructed. A makeshift shed is provided for the purposes of providing sitting and resting facility to the visitors and to the players. It is emphatically denied that any construction is made to convert the playground into a stadium. It is further contended in the return that since non-sport use was restricted, the residents of the area have started making applications and complaints in that respect and this is the sole reason for filing of the present so called Public Interest Litigation whereas there is no cause for raising any grievance 5 by the public at large as the public is still facilitated by providing sports facilities on the aforesaid playground. It is further contended that there is no restriction put by the respondent No.2 in the use of playground for the purpose of sports activities by the residents and even no fees is charged for the said purpose by the respondent No.2. It is further contended that when the order was issued by the respondent No.3 refusing to make a mini cricket stadium on the aforesaid playground, the order was passed by respondent No.2 on 15.11.2006 making amendment in the proposal specifically mentioning that the Old Campian Playground is to be used as a cricket playground and not as a stadium. It is, thus, contended that the petition is misconceived and deserves to be dismissed.
7. This Court on earlier occasion had directed the District Judge, Bhopal to submit a report in the matter of use of the playground. That report was submitted but since there were objections raised by the petitioners about the said report, with a common understanding a Court Commissioner was appointed, who has also given a report. With the report certain photographs have been submitted by the Court Commissioner. Though there are certain objections filed by the parties but the silent features of the report are to be taken note of. The said aspect would be dealt with at appropriate stage.
8. Heard learned Counsel for the parties at length and perused the record.
9. First of all it has to be tested whether the present petition at the behest of petitioner No.1 can be said to be a genuine Public Interest Litigation or it has to be filed to further private interest for certain claims, which otherwise would not be available to the persons like petitioners. The scope and 6 purpose of Public Interest Litigation has been considered by the Apex Court on several occasions. It is no longer necessary to mention that though the Apex Court has evolved the process of Public Interest Litigation on certain grounds but looking to the misuse of the said facility, has put certain norms to test a petition whether it is set up as a Public Interest Litigation or otherwise. While tracing the history of Public Interest Litigations in the Country, Hon'ble Apex Court noted that the Public Interest Litigation is an extremely important jurisdiction exercised by the Supreme Court and the High Courts. The Courts in a number of cases have given important directions and passed orders which have brought positive changes in the Country. The Courts' directions have immensely benefited marginalized sections of the society in a number of cases. It has also helped in protection and preservation of ecology, environment, forests, marine life, wildlife etc. The Court's directions to some extent have helped in maintaining probity and transparency in the public life. The Apex Court, while exercising its jurisdiction of judicial review, realized that a very large section of the Society, because of extreme poverty, ignorance, discrimination and illiteracy, had been denied justice from time immemorial and in fact, they have no access to justice. Predominantly, to provide access to justice to the poor, deprived, vulnerable, discriminated and marginalized sections of the Society, the Court has initiated, encouraged and propelled the Public Interest Litigation. The litigation is upshot and product of Apex Court's deep and intense urge to fulfill its bounden duty and Constitutional obligation. The Courts expanded the meaning of 'right to life' and 'liberty guaranteed under Article 21 of the Constitution'. The rule of 'locus-standi' was diluted and the traditional meaning of 'aggrieved person' was broadened to provide access to justice to a very large section of the Society which was otherwise not getting any benefit from the judicial system. The Apex Court has further observed 7 on certain occasions that, in very few cases, the Indians in large numbers are seeking remedies in Courts through collective proceedings, instead of being driven to an expensive plurality of litigations, is an affirmation of participative justice in democracy. The Court has further stated that the narrow concepts of 'cause of action', 'person aggrieved' and individual litigation are becoming obsolescent in some jurisdictions.
10. In the case of State of Uttaranchal vs. Balwant Singh Chaufal, (2010) 3 SCC 402, following principles have been enunciated by the Apex Court for testing whether a real Public Interest Litigation has been brought to the Court or the same is filed for extraneous consideration :
"(1) The courts must encourage genuine and bona fide PIL and effectively discourage and curb the PIL filed for extraneous considerations.
(2) Instead of every individual judge devising his own procedure for dealing with the public interest litigation, it would be appropriate for each High Court to properly formulate rules for encouraging the genuine PIL and discouraging the PIL filed with oblique motives.
(3) The courts should prima facie verify the credentials of the petitioner before entertaining a P.I.L. (4) The court should be prima facie satisfied regarding the correctness of the contents of the petition before entertaining a PIL.
(5) The court should be fully satisfied that substantial public interest is involved before entertaining the petition.
(6) The court should ensure that the petition which involves larger public interest, gravity and urgency must be given priority over other petitions. (7) The courts before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public harm or public injury. The court should also ensure that there is no personal gain, private motive or oblique motive behind filing the public interest litigation.
(8) The court should also ensure that the petitions filed by busybodies for extraneous and ulterior motives 8 must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions and the petitions filed for extraneous considerations."
11. Keeping these principles in mind, it is seen that the petitioners while referring to the development plan, have referred to conditions prescribed in the said plan in part. For example, the petitioners have annexed a part of the plan where the playground and outdoor games stadium have been defined in paragraphs 037 and 038, which particular clauses read thus :
"037 Play Ground - A premise used for outdoor games. It may have on it landscaping, parking facilities, public toilet etc. 038 Outdoor Games Stadium - A premise for outdoor games with pavilion building and stadium structure and spectators seating including related facilities for players.
12. In the context of aforesaid provisions, while denying the allegations made by the petitioners, it is specifically pleaded by the respondent No.2 that incomplete document has been filed by the petitioners. Whereas, the complete document if examined, it would be clear as day light that incomplete document has been filed and pressed home by the petitioners to show as if serious illegality is committed by the respondents, more particularly by the respondent No.2 in converting playground into a stadium. On the other hand, a complete Master Plan is made as per regulations and there are specific provisions for classification of areas and the land use. It is not open to change the land use if no permission is granted by the competent Authority. It is pointed out by the learned Counsel for respondent No.2 that Chapter-IV of Regulation contains the Development Regulation and it is the statutory duty of the respondents to maintain such development norms.
13. It is necessary to look into Regulations to find out 9 whether there is any violation of those norms or not. The jurisdiction, scope and application of Development Regulations is prescribed in Clause 4.3, which reads thus :
"4.3. The development regulations prescribed in this chapter shall be applicable within the Planning Area delineated by the State Govt. U/s 13(2) of the M.P. Nagar Tatha Gram Nivesh Adhiniyam, 1973 vide notification No.F-1 37/86/XXXII/Bhopal, dated 22-9-93. Norms and regulations which are not specified in this chapter, in such matters the provisions those contained in Madhya Pradesh Bhoomi Vikas Niyam, 1984 shall be applicable."
The use zones are divided in 39 zones which are classified in 9 categories namely, Residential, Commercial, Industrial, Public and Semi Public, Recreational, Transportation, Agriculture and Water Bodies. The area in question is undisputably Residential and there are restrictions to plan or to construct certain structures within the said area, as use of land for certain purposes is prohibited under Clause 4.59 of plan which reads thus :
Use Premises which are not permitted in the Use Zones RD, C3, C4, 11 & 12 4.59 Outdoor Games Stadium, Indoor Games Stadium, Shooting Range, Zoological Garden, Bird Sanctuary, Botanical Garden, Planetarium, Picnic Hut, Extractive Industry, Motel, Drive-in-Cinema, International Conference Centre, Reformatory, District Battalion Office, Forensic Science Laboratory, Jail Burial Ground, Cremation Ground, Cemetery, Electric Crematorium, Dairy Farm, Poultry Farm, Piggery."
The land use permitted for certain purposes is prescribed in Clause 4.60 of plan, which reads thus :
"Permission of Use premises in Low Density Use Zone Residential 4.60 Residential Plot/Plotted Housing @ 10 DUS/Hect.
Hostel, Bus Stop, Pickup station, Health Centre, Nursing Home, Pre primary, Primary School, Secondary, Higher Secondary School (For rural area), Religious premises, Dharamshala, Night 10 Shelter, Weekly Market/Voluntary Health Services, Vocational Training Centre, Research and Development Centre, Technical Training Centre, Museum, Exhibition Centre and Art Gallery, Open Air Theater, Community Hall/Cultural and Information Centre, Social and Cultural Institute, Orphanages, Yoga Kendra, Meditation, Spiritual and Religious Plant, Nursery, Milk Booth."
14. It was necessary on the part of the petitioners to indicate how the construction as made, whether it is restricted under paragraph 4.59 and resulting in conversion of a playground into an outdoor games stadium. This has not been specifically mentioned. The only allegation which has been made is that without the sanction of the competent authority under the Act, the land use is being changed. It is not even mentioned that construction in the playground is to the extent that it would fall within Clause 4.59 of the Development Plan. What is alleged is that such construction is not permissible in the residential area. A bald statement has been made in the writ petition, mainly in paragraph 5.16, that a permanent outdoor cricket stadium is being constructed against the sanction of the authorities and in violation of the Act, which is causing hindrance of use of land as playground by the residents of the area and such an act is said to be violative of Article 14 and 21 of the Constitution of India. The nature of construction has not been described so as to bring it within the meaning of an outdoor stadium. On the other hand, the documents placed on record by the respondents indicate that they have no intention to construct any outdoor stadium. Rather, the photographs annexed with the return reveal that the playground is simply protected by erection of the boundary wall and more than 95% area of the playground is open for the sports activities. That assertion of the respondent has not been controverted, though rejoinder and additional rejoinder have been filed by the petitioners.
15. Even otherwise the report of the Court Commissioner 11 and the photographs placed with the said report, indicate that the playground has not been converted into a stadium. If nominal part of the land (upto 5%) has been used for providing certain amenities to the sports persons, it cannot be said that the use of the playground is changed. Even otherwise, because of the amendment made by respondent No.2 in the proposal, it is amply clear that the playground is still intact and being used for the purposes of sports activities only. In view of the aforesaid, we have no hesitation in holding that the present petition is not a genuine Public Interest Litigation.
16. We place on record the statement made by learned senior Counsel appearing for respondent No.2 that for providing essential amenities, an investment of Rs.1.64 crores has been made out of the public exchequer. We also place on record the statement made on affidavit by the Officer-in- Charge of respondent No.2 vide affidavit dated 22.07.2012 that the playground is still made available for sports activities and that there is no restriction put by the respondent No.2 for the use of the said playground for the sports activities. Thus, the plea raised by the petitioners cannot be accepted.
17. However, we place on record our concern and issue direction to respondent No.2 to maintain the status of the land as Playground only and only for sports activities and not to allow any other activities thereat. We also direct the authorities to ensure that playground is made available to the public at large only for sports activities, free of charge.
18. The writ petition is disposed of accordingly.
(A.M. Khanwilkar) (K.K. Trivedi)
Chief Justice Judge
Skc