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The Honble The Chief Justice In this writ petition, by way of public interest litigation, the petitioner seeks a mandamus or any other writ or order in the nature of a writ forbearing the respondents herein, their agents or servants from constructing an underground Car Park in the Corporation Playground situated on Venkata Narayana Road, in the City of Chennai or for converting it for any other purpose.

2. According to the petitioner, a news item was published in the newspapers that the Corporation Play ground is being converted into an underground Car Park to facilitate parking of cars. Though Venkata Narayana Road is a busy thoroughfare, there has never been any traffic congestion in view of the restricted number of commercial buildings in the area. According to the petitioner, the respondents are contemplating to sacrifice the play ground, which has been in existence for the last 50 years. It is stated that taking advantage of its classification of Open Space and Recreational Area, they have now decided to locate the car park in the Corporation play ground. The petitioners case is that the play ground has a concrete flood lit basketball court with a gallery. Along side the gallery there is a changing room with toilet facilities. The other part of the play ground has an outdoor gymnasium and a provision has been made for the local residents to play volley ball, shuttle and badminton. There are about 10 clubs managed by enthusiasts like the petitioner to provide free coaching to young children and students belonging to different schools and colleges. The basket ball court in the playground has been the venue of State Level Basketball Tournaments by Public Sector Undertakings and Educational Institutions for the last 50 years. The Clubs have produced State Level players at varying age groups and belonging to middle and lower income families. It is contended by the petitioner with the depletion of open spaces in the City, due to construction of multi storeyed buildings, most of them in an around T.Nagar, the conversion of the playground into a Car Park would result in grave injustice to the residents of the locality. The petitioners case is that earlier, the Corporation decided to have an underground car park in Natesa Mudaliar Park, but the same was dropped and ultimately it was decided to convert the present park into an underground car parking and for that there had never been any consultation with the people, who have been residing there. In that view of the matter, the underground car parking shall be constructed only in open space and by no stretch of imagination, the corporation play ground be converted into underground car parking by treating the park and the play ground as a open space. It is, further, stated that the proposed action of the respondents smacks of arbitrariness, fairness and favoritism and it cannot be in public interest. The petitioner, therefore, challenges the proposed action of the respondents, inter alia, on the following grounds:-

10. In the case of Pt.Chet Ram Vashist Vs. Municipal Corporationof Delhi reported in AIR 1995 SC 430 the question that fell for consideration was as to whether the Municipal Corporation of Delhi in absence of any provision in the Delhi Municipal Corporation Act, 1957 was entitled to sanction the plan for building activities with condition that the open space for parks and schools be transferred to the Corporation free of cost. The Supreme Court held that the Corporation shall have no right to change the user of the land which shall be for beneficial enjoyment of the people. Their Lordships further held that the Corporation by virtue of the land specified as open space may get a right as a custodian of public interest to manage it in the interest of society, but it has no right to transfer the land. Their Lordships held in paragraph  6 as follows:-

12. It has not been disputed by the 2nd respondent-Corporation that the land in question has been used as park and playground for the last several decades. There is a basket ball ground in the said park, which is said to be an historical ground for many aspiring basketball players of the country. Many basketball training sessions and tournaments have been conducted there, and several high dignitaries visited the place and distributed prices to the winners of such tournaments. Similarly, public at large had been using the park since several decades. Learned counsel for the petitioner drawn our attention to Section 2(34) of the Tamil Nadu Town and Country Planning Act inter alia defines public open space, which means any land whether enclosed or not belonging to the Central or any State Government or any local authority or any body corporate, owned or controlled by the Central or any State Government on which there is no building or of which not more than one twentieth part is covered with buildings, and the whole or the remainder of which is used for purpose of recreation, air or light. Therefore, evidently the playground and the park could not be brought within the definition of public open space. It has also not been disputed that the playground at Venkata Narayana Road, T.Nagar has been listed as the playground both under the Tamil Nadu Parks, Play Fields and Open Spaces (Preservation and Regulation) Act, 1959 and the Development Control Rules. Rule  4(a) of the Development Control Rules provides that where the use of the site or the premises is specifically designated as open space, it shall be used only for that purpose for which it has been so designated.

16. As noticed above, the land in question has been used by the public as park and playground for the last more than five decades and this is only the place of enjoyment for the public of that locality. It is well settled that right to life is not only fundamental right but also right to lead a decent life and to enjoy fresh air and water by using parks and greeneries, which is meant for the public at large.

17. During the course of argument the learned counsel for the second respondent would submit that apart from underground parking facility a commercial complex is also proposed, inter alia providing restaurants and other facilities to cater to the needs of the persons who use the car parking facility. It is further submitted that by establishing a commercial complex it would add to the revenue, as the revenue generated from the car parking alone would not be sizable. Therefore, it is contended that the entire project as conceived is in the interest of the general public. We however fail to see any public interest as projected by the second respondent. In fact this commercial complex proposed was not mentioned originally. Significantly, even in the notice issued for public hearing no such proposal was projected. Thus it appears that the impugned proposal includes commercial venture; which is impermissible in a site which has been reserved for recreational purpose. An attempt was made by the second respondent to justify their proposal by drawing an analogy to that of the Metro Rail Project, at New Delhi, the Palika Bazaar at New Delhi etc. In our view the submission is misconceived. The sole determinative factor in a case like the present one, shall be classification of the land in question. It is not in dispute that the land in question has been classified as "play ground", notified as such in Annexure III of the Development Control Rules, which lists out the areas included in open space and recreational use zone. As observed by their Lordships of the Supreme Court in the Case Pt. Chet Ram Vashist, (supra) by virtue of the law, if an area is specified as open space the Corporation may at best get a right as a "custodian of public interest" to manage it in the interest of the society in general. Any breach of this custodianship and any attempt to change the 'use' of such land would be impermissible under law and would be against public interest.