Gomti Nagar Jan Kalyan Maha ... vs Lucknow Development Authority ...
2017 Latest Caselaw 1097 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 3
 

 
1. Case :- MISC. BENCH No. - 2551 of 2007
 
Petitioner :- Gomti Nagar Jan Kalyan Maha Samiti, Lucknow 
 
Respondent :- Lucknow Development Authority & Ors.
 
Counsel for Petitioner :- B.K. Singh
 
Counsel for Respondent :- K. Chandra,S.S. Chauhan,Shailendra Singh Chauhan, Ratnesh Chandra
 
2. Case :- MISC. BENCH No. - 6677 of 2009
 
Petitioner :- Pankaj Srivastava S/O Jagadamba Prasad Srivastava 
 
Respondent :- State Of U.P. & Others
 
Counsel for Petitioner :- B.K. Singh,Rajesh Singh Chauhan
 
Counsel for Respondent :- C.S.C.,Manish Kumar,Shailendra Singh Chauhan,Shobhit Mohan Shukla, Ratnesh Chandra
 
3. Case :- MISC. BENCH No. - 1495 of 2008
 
Petitioner :- Vivek Kumar Misra 
 
Respondent :- State Of U.P. & Ors.
 
Counsel for Petitioner :- H.K. Bhatt, B.K. Singh
 
Counsel for Respondent :- C.S.C.,Jyotinjay Verma, Ratnesh Chandra
 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Virendra Kumar-II,J.

1. Heard Sri B.K. Singh, learned counsel for petitioner and learned Standing Counsel as well as Sri Ratnesh Chandra, Advocate for respondents.

2. All these writ petitions, filed as Public Interest Litigation, involve common questions of law and fact and, therefore, as agreed by learned counsel for parties the same have been heard together and are being decided by this common judgment.

3. Grievance of petitioner is that various parks and stadium in the city of Lucknow have been developed, created or earmarked but thereafter the same are being used for different purposes including marriage functions, political meetings etc. This is a clear violation of provisions of U.P. Parks, Playgrounds and Open Spaces (Regulation) Act, 1975 (hereinafter referred to as the "Act, 1975") and U.P. Parks, Playgrounds and Open Spaces (Regulation and Control) Rules, 2005 (hereinafter referred to as the "Rules, 2005"). Our attention has been drawn to para 9 of Writ Petition No. 2551 of 2007, which reads as under:

"9. That on April 15, 2007 the opposite party no. 1 and 2 allotted Lohiya Park to the opposite party no. 3 for wedding ceremony without considering the several orders passed by this Hon'ble Court."

4. It could not be doubted that parks, stadium and other open places, created and developed for particular purposes, cannot be used for the purposes other than for which the same are created and developed. The authorities are bound to observe in this regard strictly the provisions of Act, 1975 and Rule, 2005 as also the Master Plan issued under U.P. Urban Planning and Development Act, 1973 (hereinafter referred to as the "Act, 1973"). Observation with regard to maintenance of parks and open spaces as it is, has been made by this Court in D.D. Vyas v. Ghaziabad Development Authority, AIR 1993 All 57. Therein a grievance was raised before this Court about utilization of open space reserved for a park in Ghaziabad either to construct building or otherwise it would defeat the purpose of preservation of environment and development of residential colonies shown in Master Plan. The Court observed that the writ petition is an apt example as to how the statutory object to secure preservation of environment and development can be defeated by authorities who lack dynamism, aestheticism and enthusiasm for development though assigned for development duties. Speaking on the objective of Act, 1973 the Court said that earlier growth in the State was haphazard and feeling necessity of developing areas tackling the problems of town planning and urban development in a rational manner and also to have the suitable expert bodies instead of the existing local bodies, found inadequate to cope with problem with passage of time, the Act was brought and development authorities on the pattern of Delhi Development Authority were established including the Ghaziabad Development Authority (hereinafter referred to as the "GDA") at Ghaziabad. In the Master Plan an open space was earmarked for public park called "Adu Park" situated in Raj Nagar. However, no steps were taken for its development and on the contrary GDA started carving out plots on such open space dedicated for public park in the plan and alienate the same, with a view to earn huge profits. This was challenged on the ground that GDA cannot alter the plan duly approved by Government to the detriment of public at large. Disapproving such action of GDA and upholding the challenge the Division Bench observed that object of legislation constituting development authorities was to ensure fast and planned development of the areas which was an enormous work and could not be accomplished by the local bodies or authorities existed prior to the Act, 1973. A plan can be said to have executed when entire works are done strictly in accordance with the plan. Unless an open space reserved for development of public park is developed as such, the execution of plan will remain incomplete. Buildings, as proposed in the plan, may have come up, amenities, civic and others may have been provided and the people may have started living in the colony, yet the plan cannot be said to have been executed fully, if an open space meant for a park is not developed as such. Such failure on the part of development authority would mean that ambition and objective of State that the areas reserved and approved to be developed in a particular manner has not been so developed. The duty of development authority is to implement the plan in its entirety and not to distort it. The Court said that the impression gathered by GDA that their job is over when residential area became habitable is a delusion. Habitability and completion of construction work in the entire area according to plan is one thing and development in entirety of the area, strictly in conformity with plan is another. In paras 9, 10 and 16, the Court further said:

"9. It is a matter of great regret that the fond object for which the G.D.A. was constituted remained unaccomplished. The Raj Nagar scheme is meant for the reasonable accomplishment of the statutory object, which is to promote the orderly development of the town Ghaziabad and to preserve open spaces by reserving public parks with a view to protecting the residents from the ill effect of urbanisation. 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 town. No town is known for sky-scrapers, for myriad industries, for big commercial centres, for big monumental building, but for the attractive lay out of the town, for good landscapes, for beautiful parks and lawns, for expansive verdant cover, and for perfect social ecology. Good parks expansively laid out are not only for aesthetic appreciation, but in the fast developing towns having conglomeration of buildings, they are a necessity. In crowded towns where a resident does not get anything but atmosphere polluted by smoke and fumes emitted by endless vehicular traffic and the factories, the efficacy of beautifully laid out parks is no less than that of lungs to human beings. It is the verdant cover provided by public parks and greenbelts in a town, which renders considerable relief to the restless public. Hence the importance of public parks cannot be under estimated. Private lawns or public parks are not a luxury, as they were considered in the past. A Public Park is a gift of modern civilisation, and is a significant factor for the improvement of the quality of life. 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 surrounding was a privilege of few, but now in a democratic set up, it is gift from the people to themselves. Open space for a public park is an essential feature of modern planning and development, as it greatly contributes to the improvement of social ecology.

10. A benefit which one can get from the developed, well maintained and well manicured lawns in a big park, cannot be secured from undeveloped, morbid and shabby, open space. Whereas the former attract and invite the people to come, suit and rest, the latter is always stinky, dirty and abhorrent.

16....Unless an open space is developed into a full-fledged park having gardens, trees, flower beds, plants, lawn, promenade etc., the environment will not improve and therefore the functionaries of the G.D.A. have remained grossly negligent in discharging their fundamental duty enjoined upon them by clause (g) to Article 5A of the Constitution. Equally they failed to discharge their duty enshrined by Article 5-A(j). If the functionaries of the State instrumentalities show their averseness to the developmental activities, which are assigned to them, then the nation can never grow to the cherished heights. An ornamental park with well manicured lawns is not only a source of comfort to the public, but adds to the beauty of a town, as jewellery studded with pearls or diamonds add to the beauty of the person who wears it."

(Emphasis added)

5. The Court also considered Section 13 and power of authority to make changes in plan and in paras 19, 22 and 23 said as under:

"19.....From Section 13(1), it is manifest that the authority may make only those amendments which do not affect material alterations in the character of the plan. It means the respondents do not have an absolute right of amending the master plan or the zonal development plan. The basic characteristic of such a plan cannot be altered by the authority. Only that amendment is permissible under Section 13(1) which does not affect the basic character of the plan. An open space lying for park in the plan forms a basic feature of the plan and that cannot be amended. A plan cannot be amended so as to denude the plan of such a basic feature. Section 13(1) can in no circumstances be interpreted so as to clothe the G.D.A. to utilise the open space reserved for a park either to construct building or use it in any other manner, which is foreign to the concept of a park.

22. Applying the dictum of the Supreme Court in Bangalore Medical Trust (supra), it must be held that the Authority cannot amend the plan under Section 13(1) so as to deprive the public of a public park. Not only the G.D.A. even the State Government cannot alter the plan under Section 13(1) carries several limitations, Section 13(2) gives the State Government unlimited powers to make amendments in the plan of the nature specified in sub-section (1) or otherwise. The words "or otherwise" occurring in Section 13(2) cannot be interpreted to mean that the State Government has a right to alter the plan so as to enable the G.D.A. to use the open space, reserved for a park, for the purposes having no semblance of a park. In Bangalore Medical Trust (supra), the Supreme Court reiterated that once an open space is dedicated for a park that cannot be converted into any other purpose.

23. We, therefore, hold that under Section 13, neither the Authority nor can the State Government amend the plan in such a way so as to destroy its basic feature allowing the conversion of open spaces meant for public parks." (Emphasis added)

6. The above view has been reiterated by this Court in Smt. Jagwati Gupta Vs. State of U.P. and others, 2012(7) ADJ 82.

7. We, therefore, dispose of all these writ petitions directing all concerned authorities and in particular respondents no. 1 and 5 (in Writ Petition No. 2551 of 2007) that parks and other open places created in different areas to be maintained by them shall be maintained as they are and shall not be allowed to be used for the purpose other than for which said areas have been developed and earmarked. If any park is allowed to be used for commercial, political or individuals, like wedding parties etc., officials of respondents no. 1 and 5 shall be personally responsible for criminal and civil action, both, as the case may be.

Order Date :- 24.5.2017

AK