Himachal Pradesh High Court
Shri J.C. Joshi vs Municipal Corporation on 21 April, 2022
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
ON THE 21st DAY OF APRIL, 2022
BEFORE
.
HON'BLE MR. JUSTICE MOHAMMAD RAFIQ
CHIEF JUSTICE
&
HON'BLE MR. JUSTICE SANDEEP SHARMA
CIVIL MISC. PETITION NO. 15163 OF 2021 IN
CIVIL WRIT PETITION NO. 1487 OF 1995
Between:
SHRI J.C. JOSHI,
VICE-PRESIDENT,
NAGRIK SABHA, SANJAULI.
....PETITIONER
(NEMO)
AND
MUNICIPAL CORPORATION
THROUGH ITS COMMISSIONER,
SHIMLA
......RESPONDENT
(BY MR. NARESH K. GUPTA, ADVOCATE
FOR THE RESPONDENT)
(MR. MOHAN SHARMA, ADVOCATE
AS INTERVENER)
Whether approved for reporting?
This petition coming on for orders this day, Hon'ble Mr. Justice
Mohammad Rafiq, passed the following:
ORDER
This writ petition has been registered on the basis of a letter received from the Beopar Mandal, Sanjauli through its General Secretary, Satish Sood. It was complained therein that there used to exist five public toilets near Children's Park ::: Downloaded on - 25/04/2022 20:05:30 :::CIS 2 Sanjauli, which used to cater to the needs of the public at large for more than 25 years. These toilets were demolished by the Municipal Corporation Shimla and were promised to be .
restored within three months, but nothing has been done so far. Reference is made to the judgment passed by this Court in CWP No. 1437 of 1995, titled as Nagrik Sabha Sanjauli versus Municipal Corporation, Shimla dated 25.2.1996. It is contended that several complaints were made by the shopkeepers to restore the said public toilets and written application was also handed over to the Commissioner, Municipal Corporation, Shimla, dated 16.11.2021 and also a complaint on CM Helpline was also made bearing No. 604844, but no positive response has been received.
2. This court in the relied upon judgment dated 7.3.1996 in Nagrik Sabha Sanjauli (supra), passed the following order:
"After hearing the commissioners and the learned standing counsel for the Municipal Corporation, we direct as follows:
1) The old latrines shall be repaired and brought back to fit condition within 15 days from today and thereafter allowed to be used by the people of the area free of cost and thereafter the Municipal Corporation may handover the same to Sulabh International, for maintenance. After privatization, the passes shall be issued to the people of the area on payment of nominal charges and for outsiders the private party may charge that may be fixed. After the old latrines are repaired within 15 days, the new latrine block shall be completely demolished.::: Downloaded on - 25/04/2022 20:05:30 :::CIS 3
2) As per the assurance of the Commissioner, Municipal Corporation, the dry latrines in the area, shall be converted into water flush latrines within 15 days from today. No person, including tenants, shall put any .
kind of hindrance in the execution of the work for the conversion of the latrines.
3) We have also noted the assurance of the Commissioner, Municipal Corporation, Shimla that the Nullah passing through the locality will be repaired and maintain properly within six months from today.
4) As assured by the Commissioner, Municipal Corporation, Shimla, the Park shall be properly maintained for the convenience of the children and efforts shall be made to install new swings in the Park after covering the same. This shall be done within two months from today. A person shall be appointed on regular basis for up-keep of the Park and the persons of the locality shall contribute Rs.6000/- for first year only and this amount be paid within two months from today and thereafter the Municipal Corporation shall make necessary payment for up-keep of the Park as well as the person so employed, out of the Municipal Corporation's funds.
5) Dust-bins shall be provided at the appropriate places by the Municipal Corporation within one month from today and persons of the locality will throw garbage only in the dust-bins and for this purpose the President of the Nagrik Sabha, Sanjauli, shall educate the people of the locality and any person throwing garbage outside the Dust-bins shall be dealt with by the Municipal Corporation under the law.
6) Sweeper(s) for keeping the roads, streets small passages park, public latrines and nullah clean ::: Downloaded on - 25/04/2022 20:05:30 :::CIS 4 shall be deputed by the Municipal Corporation, Shimla, regularly. "
3. It is brought to the notice of this Court that toilets in .
question were earlier adjacent but outside the children's park and now the respondent- Municipal Corporation is proposing to remove the said toilets and construct new toilets inside the park area. When the matter was listed before this Court on 5.3.2022, learned counsel appearing for the Municipal Corporation, Shimla submitted that the work of construction of public toilets in children's park, Sanjauli is likely to be completed within a short period of time. He sought time to file specific affidavit in this regard. On 23.3.2022, learned counsel for the respondent-Municipal Corporation submitted that the location of the toilets has been changed on public demand and that the toilets now are being relocated in that area only, but on the same level, where the children's park is situated.
He further submitted that he shall file compliance affidavit within two weeks.
4. Thereafter, when the matter was taken up on 13.4.2022, the court was informed that tenders have been floated for the construction of the children's park and the toilets. It was further submitted that the compliance affidavit in this regard would be filed during the course of the day. So far as, no such compliance affidavit has been filed.
::: Downloaded on - 25/04/2022 20:05:30 :::CIS 55. We have carefully examined the photographs enclosed with the letter petition, which apparently show that an attempt is being made by the respondent to bring the public .
toilets, which were earlier outside the children's park, now within the area of children's park. It is not made clear that what use of land, which was earlier occupied by the public toilets, would be made but, in any case, the complete picture and position of the children's park was not given by the respondent Corporation to this Court on earlier dates.
6. In fact in the judgment passed by this Court in Nagrik Sabha Sanjauli (supra) direction issued by the Court was that toilets shall be repaired and brought back to fit condition within 15 days from that date and thereafter would be allowed to be used by the people of the area, free of cost and thereafter, the Municipal Corporation, Shimla shall handover the same to Sulabh International for maintenance. After privatization, passes shall be issued to the people of the area on payment of nominal charges and for residents, private party may charge that may be fixed. An assurance was given by the learned counsel appearing for the Corporation that the dry latrines shall be converted into water flush latrines within 15 days and Nullah passing through that area shall be repaired and maintained properly within six months.
Assurance was also given on behalf of the Municipal Corporation, Shimla that the children's park shall be properly ::: Downloaded on - 25/04/2022 20:05:30 :::CIS 6 maintained for the convenience of the children and efforts shall be made to install new swings in the park after covering the same. It was proposed to employ a hand on regular basis .
for upkeep of the park and a contribution of Rs.6000/- for the first year was proposed to be collected from persons of the locality, which was thereafter to be borne by the Corporation itself. Further it was proposed that the dust bins will be installed in the park in order to avoid throwing of litter in the open. Besides this, it was also proposed that a sweeper shall be engaged for overall cleanliness of the roads, streets small passages, park, toilets and nullah by the Corporation.
7. The Supreme Court has dealt with the issue of importance of Public Parks and their preservation in the case of Bangalore Medical Trust Vs. B.S. Muddappa and others reported in (1991) 4 SCC 54 which judgment still holds field.
Observations made by the Supreme Court, in our considered view, are of great relevance even in the present times, as would be seen from Para 24 and 36, which read as under:-
"24. Protection of the environment, open spaces for recreation and fresh air, play grounds 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 play grounds cannot be sacrificed by ::: Downloaded on - 25/04/2022 20:05:30 :::CIS 7 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.
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36. Public park as a place reserved for beauty and recreation was developed in 19th and 20th century and is associated with growth of the concept of equality and recognition of importance of common man. Earlier it was a prerogative of the aristocracy and the affluent either as a result of royal grant or as a place reserved for private pleasure. 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 essentially a commercial venture, a profit oriented industry. Service may be its motto 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 blueprint without reserving space for it. Emphasis on open air and greenery has multiplied and the city or town panning or development Acts of different States require even private house owners to lease open ::: Downloaded on - 25/04/2022 20:05:30 :::CIS 8 space in front and back for lawn and fresh air. In 1984 the B.D. Act itself provided for reservation of not less than 15 per cent of the total area of the layout in a development scheme for public parks and .
playgrounds the sale and disposition of which is prohibited under Section 38-A of the Act. Absence of open space and public park, in present day when urbanization 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 park into a private nursing home social welfare was being promoted was being oblivious of true character of the two and their utility."
8. Under challenge before the Supreme Court in Bangalore Medical Trust (supra) was the judgment of Division Bench of the Karnataka High Court by which the decision of the Bangalore Development Authority in converting the site of a public park into a nursing home and then allotting the same to Bangalore Medical Trust, was set aside. The Supreme Court while upholding the judgment of the High Court in Para 48 of the judgment held as under:
"48. Much was attempted to be made out of exercise of discretion in converting a site reserved for amenity as a civic amenity. Discretion is an effective tool in administration. But wrong notions about it ::: Downloaded on - 25/04/2022 20:05:30 :::CIS 9 results in ill- conceived consequences. In law it provides an option to the authority concerned to adopt one or the other alternative. But a better, proper and legal exercise of discretion is one where .
the authority examines the fact, is aware of law and then decides objectively and rationally what serves the interest better. When a statute either provides guidance or rules or regulations are framed for exercise of discretion then the action should be in accordance with it. Even where statutes are silent and only power is conferred to act in one or the other manner, the Authority cannot act whimsically or arbitrarily. It should be guided by reasonableness and fairness. The legislature never intends its authorities to abuse the law or use it unfairly. When legislature enacted Sub-section (4) it unequivocally declared its intention of making any alteration in the scheme by the Authority, that is, BDA and not the State Government. It further permitted interference with the scheme sanctioned by it only if it appeared to be improvement. The facts, therefore, that were to be found by the Authority were that the conversion of public park into private nursing home would be an improvement in the scheme. Neither the Authority nor the State Government undertook any such exercise. Power of conversion or alteration in scheme was taken for granted. Amenity was defined in Section 2(b) of the Act to include road, street, lighting, drainage, public works and such other conveniences as the government may, by notification, specify to be an amenity for the purpose of this Act. The Division Bench found that before any other facility could be considered amenity it was necessary for State Government to issue a ::: Downloaded on - 25/04/2022 20:05:30 :::CIS 10 notification. And since no notification was issued including private nursing home as amenity it could not be deemed to be included in it. That apart the definition indicates that the convenience or facility .
should have had public characteristic. Even if it is assumed that the definition of amenity being inclusive it should be given a wider meaning so as to include hospital added in Clause 2 (bb) as a civic amenity with effect from 1984 a private nursing home unlike a hospital run by government or local authority did not satisfy that characteristic which was necessary in the absence of which it could not be held to be amenity or civic amenity. In any case a private nursing home could not be considered to be an improvement in the scheme and, therefore, the power under Section 19(4) could not have been exercised."
9. Section 333 of the H.P. Municipal Corporation Act, 1994 provides for preparation of improvement scheme, which inter alia, among other things, in sub-section (1)(i) stipulates that improvement scheme may provide for provisions of Urban amenities and facilities, such as parks, gardens and playgrounds. The law enunciated by the Supreme Court in the Bangalore Medical Trust(supra) when applied to the facts of the present case, we are clear in our mind that the land left as open space for being used as children park can be used only as such Park and could not be used for construction of a public toilets in it to permanently change its character.
::: Downloaded on - 25/04/2022 20:05:30 :::CIS 1110. It is trite that the environmental factors should weigh heavily with all the local bodies as also with the Courts while construing a town planning statute. While therefore exercising .
any powers, such authority should ensure that its outcome does not have the effect of marginalizing the ecological considerations. Reservation of the open spaces for parks and play grounds is universally recognized legitimate exercise of statutory powers rationally related to the protection of the residents of the locality from the ill effects of urbanization. The Supreme Court in Bangalore Medical Trust(supra) in this regard rightly stated that "statutes in force in India and abroad reserving open spaces for parks and playgrounds are the legislative attempts to eliminate the misery of disreputable housing condition caused by urbanization.
Crowded urban areas tend to spread disease, crime and immorality." It is harmonious development with environment that has given rise to the concept of urban development.
Urban development is a process in which though the benefits of development may be derived but efforts should always be made to stay immune from its ill effects.
11. The Supreme Court in Intellectual Forum, Tirupathi Vs. State of A.P. and others reported in (2006) 3 SCC 549has succinctly summarized the law in this behalf as under:-
"84. The world has reached a level of growth in the 21st century as never before envisaged. While the crisis of economic growth is still on, the key question which often ::: Downloaded on - 25/04/2022 20:05:30 :::CIS 12 arises and the courts are asked to adjudicate upon is whether economic growth can supersede the concern for environmental protection and whether sustainable development which can be achieved only by way of .
protecting the environment and conserving the natural resources for the benefit of humanity and future generations could be ignored in the garb of economic growth or compelling human necessity. The growth and development process are terms without any content, without an inking as to the substance of their end results. This inevitably leads us to the conception of growth and development which sustains from one generation to the next in order to secure "our common future". In pursuit of development, focus has to be on sustainability of development and policies towards that end have to be earnestly formulated and sincerely observed. As Prof. Weiss puts it, "conservation, however, always takes a back seat in times of economic stress." It is now an accepted social principle that all human beings have a fundamental light to a healthy environment, commensurate with their well being, coupled with a corresponding duty of ensuring that resources are conserved and preserved in such a way that present as well as the future generations are aware of them equally."
12. In Municipal Corporation, Ludhiana and another Vs. Balinder Bachan Singh (dead) by LRS and others reported in (2004) 5 SCC 182,the dispute was regarding open spaces earmarked for developing the parks used by the inhabitants of the locality. The scheme was approved by the Municipal Corporation under the Punjab Municipal Act, 1911. When the ::: Downloaded on - 25/04/2022 20:05:30 :::CIS 13 scheme had been approved and duly developed and the open space was being used by the inhabitants, the respondent filed a suit claiming the said land, which was dismissed. Appeal .
there against was allowed by the first appellate Court. The Municipal Corporation went in appeal to the Supreme Court against that judgment. The Supreme Court again in Para 18 of the judgment held as under:
"18 .........Rajinder Kaur and the plaintiff respondents could not have sold the land without getting the Scheme sanctioned as plots. It is well known and judicial notice can be taken of the fact that residential plots sell at a much higher price than the agricultural land. To sell the land as plots, a part of the land has to be left to provide for common purposes such as roads, community centre, schools and parks. Having taken advantage of selling the plots in a developed colony and charging a higher price, which were purchased by the inhabitants with the understanding that civil amenities including the park were well-provided-for, the plaintiff respondents cannot be permitted to turn around to claim the land left in the Scheme for being used as a park as their personal property."
13. In Padma Vs. Hiralal Motilal Desarda and others reported in (2002) 7 SCC 564, the Supreme Court while explaining the paramount consideration/ utilization of the land reserved in future in accordance with the requirement of the later times, criticized the approach of the City and Industrial Development Corporation, Maharashtra and held that it was supposed to ::: Downloaded on - 25/04/2022 20:05:30 :::CIS 14 carry out its activities "on no profit no loss basis". While upholding the order of the High Court, it was held that the decision to dispose of the land in bulk cannot be said to have .
been taken in public interest and High Court rightly observed in the judgment that "local residents and children must have place enough to be used as parks, gardens and for entertainment which not only act as lungs and ventilators for the suffocating growth of pollution but also add luster and beauty to the township, the utility of such piece of land acting as a buffer for maintaining ecological balance and environmental demand needs no emphasis". In fact, the Supreme Court while explaining the concept of town planning had made certain pertinent observations in Paras 31 and 32 of the report which we are tempted to incorporate hereunder for the purpose of guidance:
"31. Laws dealing with development planning are indispensable to sanitation and healthy urbanisation. Development planning comprehensively takes care of statutory, manual, administrative and land-use laws hand in hand with architectural creativity. In the words of a well known architect, development planning is the DNA of urbanization - the genetic code that determines what will get built. A development plan is essential to the aesthetics of urban society. American Jurisprudence, 2d (Vol. 82, at p. 388) states:
'Planning', is that term is used in connection with community development, is a generic term, rather than a word of art, and has no fixed meaning. Broadly ::: Downloaded on - 25/04/2022 20:05:30 :::CIS 15 speaking, however, the term connotes the systematic development of a community or an area with particular reference to the location, character, and extent of streets, squares, and parks, and to kindred mapping and .
charting. Planning has in view the physical development of the community and its environs in relation to its social and economic well-being for the fulfillment of the rightful common destiny, according to a 'master plan' based on careful and comprehensive surveys and studies of present conditions and the prospects of future growth of the municipality, and embodying scientific teachings and creative experience.
32. The significance of a development planning cannot therefore be denied. Planned development is the crucial zone that strikes a balance between the needs of large-
scale urbanization and individual building. It is the science and aesthetics of urbanization as it saves the development from chaos and uglification. A departure from planning may result in disfiguration of the beauty of an upcoming city and may pose a threat for the ecological balance and environmental safeguards."
14. The Supreme Court in Bombay Dyeing and Manufacturing Co. Ltd.(3) Vs. Bombay Environmental Action Group and others reported in(2005) 5 SCC 61held that "ecological factors indisputably are very relevant considerations in construing a town planning statute. The Court normally would lean in favour of environmental protection in view of the creative interpretation made by this Court in finding a right of environment protection including the right to clean water, air etc. under Article 21 of the ::: Downloaded on - 25/04/2022 20:05:30 :::CIS 16 Constitution." The Supreme Court in Para 100 of this judgment observed that "both open space as also the other factors relevant for making the regulation would be in public interest.
.
The question would, however, be as to which is of greater public interest. The public interest, thus, would be a relevant factor also for interpretation of the statute. Pubic (sic : Public) interest so far as maintenance of ecology is concerned pertains to a constitutional scheme comprising Articles 14, 21, 48A and 51-A(g) of the Constitution, the other factors are no less significant."
15. The Division Bench of Madhya Pradesh High Court in Yogendra Singh Tomar Vs. State of M.P. and others reported in AIR 1997 MP 124 was dealing with a Public Interest Litigation where the allegation of the petitioner was that already congested locality of Ambah, District Morena is further sought to be congested by converting open space into a shopping complex. Disputed land was earmarked as Park in between two rows of building. Photographs of the area were placed on record. This according to the petitioner, if allowed to take place, would lead to obliterating an open space and thus, ecological balance would be disturbed. The Municipal Council, however, opposed the writ petitioner. The Court observed that all Indian cities like Jupiter are perpetually enveloped in thick dusty and gaseous substances. The Statutes in force in India and abroad reserving open spaces for parks and play grounds ::: Downloaded on - 25/04/2022 20:05:30 :::CIS 17 are the legislative attempt to eliminate the misery of disreputably housing condition caused by urbanisation.
Crowded urban areas tend to spread disease, crime and .
immorality. Reservation of one space for parks and play ground is universally recognised as a legitimate exercise of statutory power rationally related to the protection of the residents of the locality from the ill-effects of urbanisation.
The Division Bench relied on the judgment in Attorney General Vs. Corporation of Sunder Land - 1875-76 (2) Ch. D 634, wherein the position of the municipal authorities with regard to public parks, gardens, squares and streets was put at par with a trustee, and it was held that the municipal authorities would be guilty of breach of trust in employing any part thereof for purposes other than those contemplated by the relevant statute. Following the aforesaid judgment in Bangalore Medical Trust(supra) and on various other decisions, this Court in Yogendra Singh Tomar(supra) in paragraph Nos.3, 10 and 11 of the report has held as under:-
"3. We are of the opinion that open space in this case should not be converted into shopping complex. In this regard it would be apt to remind the Municipal Council of its obligations to the citizens.
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10. From the decisions referred to above, it becomes apparent that;
(i) the municipal authorities are supposed to act as trustees and should see to it that the property which vests in it is used for the benefit of the residents of the city it governs; and ::: Downloaded on - 25/04/2022 20:05:30 :::CIS 18
(ii) if open spaces are sought to be used in a way which would result in pollution, destruction of scenic beauty or disturbance of the ecology, then the Courts would step in and would remind the municipal authorities of their obligations.
.
11. From the aforementioned judicial precedents it becomes apparent that the municipal authorities are supposed to act as trustees and should see to it that open spaces should not be converted into shopping complexes. In fact, open spaces are lungs of the city. If these lungs are not there, then the citizens of the city can have no better life. Something may be said regarding locus standi also. In this regard, there can be no dispute with the proposition that this is a public interest litigation. This aspect be examined in detail."
16. Division Bench of Madhya Pradesh High Court in Preeti Singh versus State of M.P. & Others in its judgment authored by one of us ( Mohammad Rafiq CJ), reported in ILR 2021 MP 1886, on analysis of law as discussed above, directed demolition of a community hall, which also was a public facility, built in the land of public park, while recording the following observations in para 12 of the judgment:
"Taking a holistic and pragmatic view of the matter and keeping with the salutary principles of law laid down by the Supreme Court in very many cases while interpreting various town planning laws, it is expected from the Government authorities/respondents that in discharging all their obligations of planning and development of a city, they should give due importance to the provisions envisaged in the Rules and the Act and in doing so, mandatorily adhere to the requirement of sufficient spaces being left open to be used as parks, gardens, playground and ::: Downloaded on - 25/04/2022 20:05:30 :::CIS 19 recreational grounds for entertainment and health activity by the local residents and especially the children. Such utilities have been broadly categorized as open spaces in the relevant rules.
.
Such open spaces act as lungs and ventilators for the suffocating growth of population and as rightly observed by the Supreme Court in various judgments from time to time, also add luster and beauty to the township. These open spaces of land have immense importance and utility as buffer zone for maintaining ecological balance and fulfilling environmental demands. Once a Public Park is dedicated to citizens/residents, it is held by the Municipality in trust on behalf of public at large and cannot be put to any other use. Change of its use for any other purpose by Municipal body would tantamount to breach of trust."
17. In view of the above discussions, the present writ petition is allowed. The respondents are directed not to alter the nature of the Children's Park. If it was earlier maintained as a Children's Park, it will always be maintained as a Children's Park. Construction of the public toilets shall not be made in the Children's Park, as the land once dedicated to be used as a Park for children shall always be held by the Municipal Corporation in trust for children's interest on behalf of the public and its nature can never be allowed to be changed. It will however be open for the respondents to relocate the toilets anywhere else, they may deem fit.
::: Downloaded on - 25/04/2022 20:05:30 :::CIS 2018. Respondent shall file an affidavit to give the exact dimension/size of the Children's Park as it was originally existing and shall take steps to remove the toilets, if .
constructed within the park area, which was earlier dedicated for use by the children of the adjoining localities. Respondents shall produce affidavit alongwith photographs of the Children's Park and shall take steps to restore the Children's Park in the shape, it was earlier existing.
19. A copy of this order shall be provided to Mr. Naresh K. Gupta, learned counsel for the Municipal Corporation, for complete compliance.
List on 11.5.2022 for seeing the compliance of the order.
(Mohammad Rafiq) Chief Justice (Sandeep Sharma) Judge 21st April, 2022 (shankar) ::: Downloaded on - 25/04/2022 20:05:30 :::CIS