Allahabad High Court
Ashok Kumar Sant vs State Of U.P. And Others on 31 August, 2017
Bench: Arun Tandon, Siddhartha Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Court No. - 10
Case :- PUBLIC INTEREST LITIGATION (PIL) No. - 33527 of 2011
Petitioner :- Ashok Kumar Sant
Respondent :- State Of U.P. And Others
Counsel for Petitioner :- A.K. Singh
Counsel for Respondent :- C.S.C.,Anoop Trivedi,Ashwani K. Misra,Ashwani K.Mishra,Mahendra Pratap,P.C. Shukla,Rajesh Kumar Singh,Vrindavan Mishra
Hon'ble Arun Tandon,J.
Hon'ble Siddhartha Varma,J.
This Public Interest Litigation has been filed by a resident of Ghaziabad for challenging the decision of the State Government dated 4.2.2011 whereby it has granted permission to the Ghaziabad Development Authority to set up a High Profile City Clup in Kavinagar Residential Scheme on Built, Operate and Transfer(hereinafter referred to as 'BOT') basis.
The controversy as has been raised by means of the present Public Interest Litigation is that an area which is earmarked for a Park and for a Community Center for the use of the common public in the master plan of Ghaziabad Development Authority cannot be permitted to be used for a high profile club. According to the petitioner, the use of the area for a high profile club by the State Government would not be in conformity with the purpose for which the land was acquired for the Ghaziabad Development Authority, namely, public purpose. The Club would be used by the affluent and the rich. The common man would be deprived of the Park and the Community Center.
A counter affidavit has been filed on behalf of the Ghaziabad Development Authority and it has been stated that in the Master Plan specifically pertaining to the Kavinagar Residential Scheme, provision was made for providing a Park over an area 8987.08 square meters, a Club house over an area of 4501.10 square meters, a Guest House over an area of 4396.60 square meters and a Community Center over an area of 4788 square meters. Ghaziabad Development Authority in its meeting held on 8.12.2007 resolved to establish a Club over an area of 18526 square meters and thereafter advertisements were published by the Ghaziabad Development Authority in Hindi News Paper, Danik Jagran on 1.2.2008 and in English newspaper, Hindustan Times on 2.2.2008. Copies of these Advertisements have been produced before this Court and are taken on record.
From a reading of the advertisement, it is apparent that the total area offered for developing the Club at Kavinagar, Ghaziabad, on the principle of BOT basis has been shown as 18526 square meters.
However, the State Government granted permission for setting up the Club over the land which was earmarked for the Club and the Guest House only. This area, according to the Ghaziabad Development Authority would work out to approximately 9000 and odd square meters. It is further stated that in compliance of the order of the State Government dated 11.2.2011, the Ghaziabad Development Authority has also identified an area of 9000 and odd square meters for the establishment of the Club. It has been stated before us on behalf of the Ghaziabad Development Authority that the area which was earmarked for the Park is not to be used for the establishment of the Club. The Park as on date has been established on the original area earmarked for the purpose in the master plan. It is also specifically stated that the Park shall not to be touched and it would be maintained on the entire area as per the master plan.
We are of the opinion that the area which was earmarked for the park and the Community Center cannot be utilized for any other purpose except for which it was so provided in the master plan. Establishment of a park and the Community Centre is for the public benefit as the residents of Kavinagar would specifically benefit from it. Such centers must be established as per the assurance held out to the public at large at the time of announcement/advertisement of the scheme by the Ghaziabad Development Authority. The public has invested in the Kavinagar Scheme. On the said assurance of providing a part as a Community Center. The land thus earmarked for the Community Center will be used for that purpose alone.
We have no hesitation to record that the earlier advertisement which depicted availability of 18,526 square meters of land for the Clubs has lost its efficacy as the area over which the Club can now be constructed stands reduced to less than half, vis-a-vis the area advertised earlier. Therefore, in our opinion the advertisement which was earlier published and which according to the Ghaziabad Development Authority included the area of the park and Community Center has to be held to be inoperative in the eyes of law. We, therefore, hold that no further action can be taken in pursuance to the advertisement which was earlier published in the Hindi Daily, Danik Jagran on 1.2.2008 and in the English Daily, Hindustan Times on 2.2.2008. We, therefore, direct the Ghaziabad Development Authority to revisit the matter pertaining to the establishment of the Club keeping in mind the interest of the common man, who had invested money in the Kavinagar Scheme in response to the assurance given. If the Ghaziabad Development Authority deems it necessary to establish the Club then it should do so by finalizing the norms for admission to the Club which so as to be beneficial to the residents at large. Its user should not be confined to the rich only. The benefits must accrue to the common man who had invested in the Kavinagar Scheme.
We, therefore, dispose of the matter with the following directions:-
A. The area which was earmarked for the park in the Kavinagar scheme would be used for Park alone. It shall not be used for any other purpose.
B. The area earmarked for Community Center which is said to have been established shall continue to be used as the Community Center. It shall not be used for any other purpose.
C. The Ghaziabad Development Authority may revisit its decision in the matter of establishment of this Club, which would serve the interest of the residents at large.
D. No further proceedings shall be undertaken in pursuance to the Advertisements which were issued in the year 2008. If the Ghaziabad Development Authority still decides to establish a Club, it shall do so by adhering to such norms as would make the Club available to the residents on reasonable terms.
It is stated by the Ghaziabad Development Authority that no offer has been made to any bidder with reference to the Advertisement of 2008 till date.
The writ petition is disposed of.
Order Date :- 31.8. 2017
praveen.
