14 Dec 2010

Public park cannot be turned into parking: High Court

Required to balance between the growing urge for commercialization, and thus earn revenue, with the rights of the citizen to enjoy the natural environment, in a recently reported decision (R.Chandran v. State of Tamil Nadu AIR 2010 Mad 189) the Madras High Court was called upon to examine the validity of the action undertaken by the Municipal authorities of converting a public park into a commercial parking area. The people of the neighbourhood had challenged the action of the local body alleging that the park in question had provided them access to natural habitat to over five decades and thus a removal of the same from their lives was an action beyond the prerogative of the local body.

The High Court, holding that the law to this effect was settled and that the citizens have a right to live which includes access to nature, declared the action of the local body as illegal and unjust. The High Court, allowing the petition, inter alia observed as under;
8. In the case of M.I.Builders Pvt. Ltd. Vs. Radhey Shyam Sahu reported in AIR 1999 SC 2468 a similar question came up for consideration before the Supreme Court. In that case, the Lucknow Nagar Mahapalika also called Nagar Nigam or Corporation permitted a builder known as M.I.Builders Pvt. Ltd. to construct underground shopping complex in the Jhandewala Park situated at Aminabad Market, Lucknow. The High Court of Lucknow quashed the resolution of the Corporation permitting such construction and also the agreement entered into between the Corporation and the builder. The matter ultimately came to the Supreme Court in appeal filed by the builder. The Supreme Court dismissing the appeal held as under:-  
Para-59: 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. 
Para-60: In the treatise : 'Environmental Law and Policy: Nature, Law and Society by Plater Abrams Goldfarb (American Casebook series 1992) under the Chapter on Fundamental Environmental Rights, in Section 1 (The Modern Rediscovery of the Public Trust Doctrine) it has been noticed that :long ago there developed in the law of the Roman Empire a legal theory known as the 'Doctrine of the Public Trust' In America Public Trust doctrine was applied to public properties, such as shore-lands and parks. As to how doctrine works it was stated:  
"the scattered evidence, taken together, suggests that the idea of a public trusteeship rests upon three related principles. First, that certain interests ı like the air and the sea ı have such importance to the citizenry as whole that it would be unwise to make them the subject of private ownership. Second, that they partake so much of the bounty of the nature, rather than of individual enterprise, that they should be made freely available to the entire citizenry without regard to economic status. And, finally, that it is a principle purpose of government to promote the interests of the general public rather than to redistribute public goods from broad public uses to restricted private benefit." 
With reference to a decision in Illinois Centralk Railroad Company Vs. Illinois, (1892) 146 US 387, it was stated that ıthe Court articulated in that case the principle that has become the central substantive thought in public trust, litigation. When a state holds a resource which is available for the free use of the general, a Court will look with considerable skepticism upon any governmental conduct which is calculated either to reallocate the resource to more restricted uses or to subject public uses to the self-interest of private partiesı This public trust doctrine in our country, it would appear, has grown from Article 21 of the Constitution.  
71. It is not disputed that there is a Master Plan applicable to city of Lucknow. This Master Plan is prepared under the Development Act. It was submitted by the builder that the park could be exploited for commercial purposes as Aminabad has been shown to be a commercial area. No doubt Aminabad is a commercial area but that does not mean that the park can be utilized for commercial purposes. Rather using the park for commercial purposes would be against the Master Plan. However, in letter dated October 16, 1993 by Vice-Chairman, LDA to the Mahapalika did say: 
"I am to inform you in this regard that the land use of the Jhandawala Park situated in Aminabad is commercial one as per the Master Plan. This department has no objection on the layout plan submitted accordingly" 
9. Their Lordships further observed in paragraph 78 as follows:- 
78. The facts and circumstances when examined point to only one conclusion that the purpose of constructing the underground shopping complex was a mere pretext and the dominant purpose was to favour the M.I.Builders to earn huge profits. In depriving the citizens of Lucknow of their amenity of an old historical park in the congested area on the specious plea of decongesting the area Mahapalika and its officers forgot their duty towards the citizens and acted in a most brazen manner. 
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 Lordshipıs held in paragraph 6 as follows:-  
6. Reserving any site for any street, open space, park, school, etc in a lay-out plan is normally a public purpose as it is inherent in such reservation that it shall be used by the public in general. The effect of such reservation is that the owner ceases to be a legal owner of the land in dispute and he holds the land for the benefit of the society or the public in general. It may result in creating an obligation in nature of trust and may preclude the owner from transferring or selling his interest in it. It may be true as held by the High Court that the interest which is left in the owner is a residuary interest which may be nothing more than a right to hold this land in trust for the specific purpose specified by the coloniser in the sanctioned lay-out plan. But the question is, does it entitled the Corporation to claim that the land so specified should be transferred to the authority free of cost. That is not made out from any provision in the Act or on any principle of law. 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 the society in general. But the right to manage as a local body is not the same thing as to claim transfer of the property to itself. The effect of transfer of the property is that the transferor ceases to be owner of it and the ownership stands transferred in the person in whose favour it is transferred. The resolution of the Committee to transfer land in the colony for parks and school was an order for transfer without there being any sanction for the same in law. 
11. In the case of Dr.G.N.Khajuria Vs. Delhi Development Authority reported in AIR 1996 SC 253 Delhi Development Authority permitted a nursery school to be opened in Park No.6 of Pocket 'A' of Sarita Vihar in complete violation of the provisions of Delhi Development Act, 1957. The said decision of the Authority was challenged. In that case the Supreme Court observed:- 
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 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." 
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.  
18. After giving our anxious consideration in the matter, and considering the fact that the land used as park and play ground for the last 50 years, the Corporation cannot be allowed to use the said play ground for construction of underground car parking. The decision of the Corporation to that effect is, therefore, declared illegal and unjustified. 

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