Allahabad High Court
Sandeep Pandey And Another vs State Of U.P. And 4 Others on 12 September, 2014
Author: Dilip Gupta
Bench: Dilip Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD Chief Justice's Court AFR Case :- PUBLIC INTEREST LITIGATION (PIL) No. - 42083 of 2014 Petitioner :- Sandeep Pandey And Another Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Rahul Mishra Counsel for Respondent :- C.S.C, Km. Chhaya Gupta, Vivek Varma. Shashi Nanda, Senior Advocate assisted by Shivam Yadav. Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice Hon'ble Dilip Gupta,J.
The issue before the Court, in these proceedings which have been instituted in the public interest, relates to the validity of a decision of Kanpur Development Authority1 to construct an underground car parking area for 680 cars in the lower basement with a shopping complex of 150 shops in the upper basement in a portion of Phoolbagh park at Kanpur. Phoolbagh, which is also known as Ganesh Vidhyarthi Udyan consists, inter alia, of King Edward Memorial Hall (KEM Hall) which is managed by the Archaeological Survey of India because of its intrinsic heritage value and historical importance. The challenge is on the ground that the construction of an underground shopping complex and car parking in an area reserved for a park under the Master Plan is unlawful.
The project was approved at the 110th Board meeting of KDA which was held on 20 February 2014 and is stated to have been approved at the 280th Board meeting of the Kanpur Nagar Nigam. It is not in dispute that the area around Phoolbagh park is marked by heavy traffic congestion since a crowded market place is situated in close proximity of the park. Though in the counter affidavit, which has been filed by KDA, it has been stated that the area of Phoolbagh is 40 acres, the tender notice which was issued by KDA for expression of interest notes that Phoolbagh encompasses an area of about 18 acres.
The project envisages the construction of an underground multilevel car parking facility of between 7000 to 8000 sq. meters. The project envisages that a shopping complex of 150 shops would be constructed in the upper basement with a facility of providing for the parking of 680 cars in the lower basement, in addition to which, surface parking of 200 cars is to be provided. A terrace garden is envisaged over and around the central area where construction is to be carried out. An agreement has been entered into between KDA and a builder on 5 June 2014. Ramps are to be provided for entry into and exit from the park.
The crucial issue, which has to be addressed by the Court in these proceedings, is as to whether the construction of an underground shopping complex in an area which is reserved under the Master Plan as a park would violate the provisions of the Master Plan. At this stage, it does not appear that any survey or study was carried out before a decision was taken to provide an underground shopping complex of 150 shops, on the impact of a shopping complex on the existing state of traffic congestion in the area. The presence of 150 shops is liable to attract a large number of vehicles of persons who visit the shopping complex. Whether this situation would at all alleviate the problem of traffic congestion outside Phoolbagh is a moot point. In our view, it was necessary for KDA to have carried out a thorough study in regard to whether the construction of a shopping complex, albeit in the basement would resolve the basic issue of traffic congestion.
Green areas in all metropolitan cities are becoming a rarity and the city of Kanpur is no exception. The Master Plan which has been prepared under the U.P. Urban Planning and Development Act, 1973 has statutory force. Any use, development or construction must necessarily abide by the provisions of the Master Plan and the Zoning Regulations. Every Master Plan is put into place following a detailed statutory procedure. Once it is notified, it has binding force and effect. In the present case, there is nothing on the record to indicate that any study was carried out on the impact of the proposed shopping complex on the preservation of a historical park as a green area. The historical importance of Phoolbagh is not in dispute. The area has been associated with important facets of the freedom movement. This indeed is also stated in the counter affidavit which has been filed by KDA. Merely because the project has to be self-financed would furnish no justification for the State to deviate from the basic object and purpose of a reservation in the Master Plan and to permit the utilization of a recreational area for other purposes unrelated to the preservation of a park or recreation space.
The Supreme Court has in a line of authority, beginning with the decision in Bangalore Medical Trust v. B.S. Muddappa2 taken a serious view of the violation of urban planning norms resulting in a diversion of public parks and open spaces for alien purposes. In Bangalore Medical Trust, a nursing home was sought to be situated on a public park. Holding that this was impermissible, the Supreme Court observed as follows:
"(23). The scheme is meant for the reasonable accomplishment of the statutory object which is to promote the orderly development of the city of Bangalore and adjoining areas and to preserve open spaces by reserving public parks and playgrounds with a view to protecting the residents from the ill- effects of urbanisation. It was meant for the development of the city in a way that maximum space is provided for the benefit of the public at large for recreation, enjoyment, 'ventilation' and fresh air. This is clear from the Act itself as it originally stood. The amendments inserting Sections 16(1)(d), 38A and other provisions are clarificatory of this object. The very purpose of the BDA, as a statutory authority, is to promote the healthy growth and development of the city of Bangalore and the area adjacent thereto. The legislative intent has always been the promotion and enhancement of the quality of life by preservation of the character and desirable aesthetic features of the city. The subsequent amendments are not a deviation from or alteration of the original legislative intent, but only an elucidation or affirmation of the same.
(24).Protection of the environment, open spaces for recreation and fresh air, playgrounds for children, promenade for the residents, and other conveniences or amenities are matters of great public concern and of vital interest to be taken care of in a development scheme. It is that public interest which is sought to be promoted by the Act by establishing the BDA. The public interest in the reservation and preservation of open spaces for parks and playgrounds cannot be sacrificed by leasing or selling such sites to private persons for conversion to some other user. Any such act would be contrary to the legislative intent and inconsistent with the statutory requirements. Furthermore, it would be in direct conflict with the constitutional mandate to ensure that any State action is inspired by the basic values of individual freedom and dignity and addressed to the attainment of a quality of life which makes the guaranteed rights a reality for all the citizens".
Again, the Supreme Court observed as follows:
"(37). ...Free and healthy air in beautiful surroundings was privilege of few. But now it is a, `gift from people to themselves'. Its importance has multiplied with emphasis on environment and pollution. In modern planning and development it occupies an important place in social ecology. A private nursing home on the other hand is essentiality a commercial venture, a profit oriented industry. Service may be its moto but earning is the objective. Its utility may not be undermined but a park is a necessity not a mere amenity. A private nursing home cannot be a substitute for a public park. No town planner would prepare a blue print without reserving space for it. Emphasis on open air and greenery has multiplied and the city or town planning or development acts of different States require even private house-owners to leave open space in front and back for lawn and fresh air. In 1984 the BD Act itself provided for reservation of not less than fifteen per cent of the total area of the lay out in a development scheme for public parks and playgrounds the sale and disposition of which is prohibited under Section 38A of the Act. Absence of open space and public park, in present day when urbanisation is on increase, rural exodus is on large scale and congested areas are coming up rapidly, may give rise to health hazard. May be that it may be taken care of by a nursing home. But it is axiomatic that prevention is better than cure. What is lost by removal of a park cannot be gained by establishment of a nursing home. To say, therefore, that by conversion of a site reserved for low lying into a private nursing home social welfare was being promoted was being oblivious of true character of the two and their utility."
A similar view was taken in another decision of the Supreme Court in G.N. Khajuria v. Delhi Development Authority3. While holding that the diversion of a space meant for a park into a nursery school is impermissible, the Supreme Court observed as follows:
"(8). We, therefore, hold that the land which was allotted to respondent No.2 was part of a park. We further hold that it was not open to the DDA to carve out any space meant for park for a nursery school. We are of the considered view that the allotment in favour of respondent No.2 was misuse of power, for reasons which need not be adverted. It is, therefore, a fit case, according to us, where the allotment in favour of respondent No.2 should be cancelled and we order accordingly. The fact that respondent No.2. has put up up some structure stated to be permanent by his counsel is not relevant, as the same has been done on a plot of land allotted to it in contravention of law. As to the submission that dislocation from the present site would cause difficulty to the tiny tots, we would observe that the same has been advanced only to get sympathy from the Court inasmuch as children, for whom the nursery school is meant, would travel to any other nearby place where such a school would be set up either by respondent No.2 or by any other body."
In M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu4 a decision had been taken by the Lucknow Nagar Mahapalika, permitting a builder to construct an underground shopping complex in the Jhandewala Park situated in Aminabad market, Lucknow. A learned Single Judge of this Court held the decision to be unlawful and a mandamus was issued to the Lucknow Nagar Mahapalika to restore back the park to its original position. While considering the matter, the Supreme Court observed as follows:
"51. 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 the Act it 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). 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".
The Supreme Court further held that the Master Plan had been prepared under the U.P. Urban Planning and Development Act, 1973, which was applicable to the city of Lucknow and merely because Aminabad was a commercial area that would not justify the use of a park for commercial purposes. In fact, it was held that the Master Plan could not have envisaged Jhandewala Park being used as a site for commercial purposes, considering the density and congestion in the area.
The submission is that only an area ad-measuring 1.5 acres of the park would be utilized for an underground shopping complex. The fact that "only" 1.5 acres of the total area of the park is to be utilized for the construction of a shopping complex together with an appurtenant car parking facility cannot, in our view, legalise the project. Conceivably, a Master Plan may permit making available a parking facility for the purpose of the visitors to a park or recreation space and this would be an amenity associated with the use of the park itself. But in no circumstances, can a recreational area be converted into shopping complex, whether below or above ground. In M.I. Builders (supra), the Supreme Court held that a terrace garden above an underground shopping complex is no substitute to a park. An area reserved in the Master Plan as a park must be used as a park. The Court cannot countenance devious attempts by public bodies to usurp the dwindling green areas that remain. Above all, the project in question, allowing as many as 150 shops in the basement, was conceived without a due and proper application of mind to the impact on congestion and density of population in an already over crowded area. In this view of the matter, we are of the view that it would not be appropriate to allow the historical park situated in the city of Kanpur and associated with important events of the freedom struggle, to be frittered away.
Learned counsel appearing on behalf of the petitioners has, in fact, pointed out that progressively the park, which originally had an area of 40 acres, has been allowed to be occupied by the building of the Jal Sansthan and for housing a School for the differently abled.
Insofar as the School for the differently abled, the building of the Jal Sansthan and the other constructions which have already been made are concerned, we grant liberty to the petitioner, as prayed before the Court, to move the Court in separate proceedings with a full disclosure of facts, so as to enable the Court to deal with those aspects independently.
We, accordingly, hold that the decision of KDA to construct an underground shopping complex and car park in the area of Phoolbagh is legally impermissible and is contrary to the provisions of the Master Plan prepared under the U.P. Urban Planning and Development Act, 1973. It would be open to KDA to conduct a fresh survey on the likely need for a car parking facility in the area and after a due and proper enquiry and survey, to conceive of a project involving the provision of a parking facility as an amenity appurtenant to the park. We clarify that the present order shall not stand in the way of the Authority in taking necessary measures for beautification and maintenance of Phoolbagh as a park without disturbing its integral feature as a recreational open space.
The petition is, accordingly, disposed of. There shall be no order as to costs.
Order Date :- 12.9.2014 RKK/-
(Dilip Gupta, J) (Dr. D.Y. Chandrachud, CJ)