Chattisgarh High Court
Priyadarshani Grah Nirman ... vs State Of Chhattisgarh on 23 March, 2022
Page No.1
HIGH COURT OF CHHATTISGARH, BILASPUR
Reserved for orders on :10/03/2022
Order passed on :23/03/2022
WPC No. 3528 of 2021
1. Priyadarshani Grah Nirman Sahkari Samiti Maryadit 445-B,
Priyadarshani Nagar, Raipur, Through Its Vice President Shri Bharat
Trivedi
---- Petitioner
Versus
1. State of Chhattisgarh Through Principal Secretary, Mahanadi Bhawan,
Atal Nagar, Nava Raipur Chhattisgarh,, District : Raipur, Chhattisgarh
2. Public Works Department Through Principal Secretary, Mahanadi
Bhawan, Atal Nagar, Nava Raipur Chhattisgarh.
3. Commissioner Municipal Corporation Raipur Azad Chowk Rd, Near
Mahila Police Thana, Chottapara, Janta Colony Raipur , Chhattisgarh.,
District : Raipur, Chhattisgarh
4. Assistant Chief Executive Officer Rajya Sahri Vikas Abhikaran ,
Chhattisgarh , D-04, 4th Floor, Indrawati Bhavan, Nawa Raipur , Atal
Nagar Raipur, Chhattisgarh.
5. Chief Executive Officer (CEO) Raipur Development Authority, Bhakta
Mata Karma Commercial Complex, 2nd Floor, New Rajendere Nagar
Raipur Chhattisgarh.
6. Guru Ghasi Das Sahakari Samiti Maryadit Through Its President , Guru
Ghasidas Sanskaratik Bhavan, New Rajendra Nagar, Raipur
Chhattisgarh.
---- Respondents
____________________________________________________________
For Petitioner : Mr. Himanshu Pandey, Advocate
For State : Mr. Rahul Jha, Govt. Advocate.
For Respondents : Mr. Pankaj Agrawal, Mr. Rajesh Kumar
Kesharwani, Mr. Sandeep Dubey ,
Advocates.
For Intervenor : Mr. Sushobhit Singh, Advocate.
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Hon'ble Shri Justice Rajendra Chandra Singh Samant
CAV Order
Page No.2
23/03/2022
1. Heard.
2. This writ petition has been brought praying for issuance of appropriate
writ to quash the allocation of land for construction of "Sarv Samaj
Samudayik Bhavan" as proposed by respondent No.6.
3. It is submitted that the petitioner is a registered society. The Raipur
Development Society implemented housing plan in Katoratalab Plan
No.016, in which, the petitioner society has found place in the
approved plan for the housing society of the petitioner. One open
space was left for the purpose of developing a garden on the same.
Municipal Corporation, Raipur has developed a garden on this open
space, which was being utilized by the residents of the petitioner
society. By a newspaper publication Annexure-P5, the petitioner learnt
that construction of a "Sarv Samaj Samudayik Bhavan" is proposed
which is to be constructed on the open space in question. The
petitioner and respondent No.6 both submitted representations to
register their objection for the proposed construction, but the same
was not considered. It is submitted that this allocation of the land for
construction of "Sarv Samaj Samudayik Bhavan" is erroneous,
arbitrary and contrary to the provisions of Municipal Corporation Act,
1956 and the provisions of Chhattisgarh Nagar Tatha Gram Nivesh
Adhiniyam, 1973. Further, the principle of natural justice was also not
followed. No objection or suggestions were invited from the residents
of the concerned societies. In the reply of respondent No. 1 & 2 It is
submitted that State has to take care of the welfare activities of the
respective societies for the purpose that the people living in the area
can get a good environment and amenities. It is also admitted by the
Page No.3
respondent No.5 in his reply, that the colony was developed under the
scheme for development. Later on, same was handed over for
Municipal Corporation for maintenance, therefore, the transfer of the
open space to the municipal corporation was only for the purpose of
maintenance which does not confer any title on respondent No.5.
Clause(e) of Section 49(3) provides, that the Town Development
Scheme may make provisions for open spaces for garden, recreation
grounds etc and it is also provided in Section 49(3), that the proposals
of the Town Development Scheme shall be treated as public purpose.
It is also submitted that the Section 292 of the Municipal Corporation
Act, 1956 restrains the Municipal Corporation from making any town
planning scheme against the scheme sanctioned under the provision
of Town Improvement Act, 1922.
Reliance has been placed on the judgment of Madras High
Court in the case of G. Pandi Vs. The Commissioner and others, in
W.P. No.35970 of 2003 decided on 16.07.2012. It is submitted that
Madras High Court has held that the public purpose is not capable of
any precise definition. It is submitted that in the case of Pt. Chet Ram
Vashist(dead) by LR's Vs. Municipal Corporation of Delhi, reported in
(1995) 1 SCC 47, it was held that on any site reserved for public
purpose, the Municipal Corporation gets the right only as a custodian
to manage the same and the corporation does not acquire any right
title or interest there on. It is submitted that in the case of Bangalore
Medical Trust Vs. B.S. Muddappa and others, reported in (1991) 4
SCC 54, it has been held that 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
Page No.4
in a development scheme, therefore, the petitioners have a right to
have the open space for garden for their respective society. In the case
of Preeti Singh Vs. State of Madhya Pradesh and others, in W.P.
No.478/2011 decided on 26.8.2022, it was held by M.P. High Court that
place left open for a public park cannot be utilised for construction of
community hall which permanently changes its character.
4. Learned State counsel appearing on behalf of respondents No.1 & 2
opposes the submissions and submits, that the layout plan Annexure-
P3 shows the place as open place only and not a garden, therefore,
there was no proposal for developing a garden on the open space. It is
submitted that the petitioner society have their own separate garden
situated in khasra No.363, 369 which is being utilised by the residents
of the society. Guru Ghasi Das Grah Nirman Sahkari Sanstha Maryadit
Samiti had been demanding from the State Government for
construction of a community building of the welfare activity of the entire
society, regarding which the amount has been sanctioned by the
Hon'ble Chief Minister for construction. Raipur Development Authority
has given a letter Annexure-R1/1 of no objection for such construction.
The dispute has been raised by the petitioner society on the ground of
personal reasons, hence, the same cannot be entertained, therefore,
the petition be dismissed.
5. Learned counsel for respondent No.3 opposes the submissions and
submits, that sanction have been granted for the construction of the
community building on the open space left, which was certainly not
specified for development of a garden. The layout as shown in
Annexure-P3 mentions the left space as open space only, therefore,
there was no proposition for developing a garden. It is submitted that
Page No.5
the petitioner has no locus standi to bring this petition. The colony of
the petitioner has two separate gardens. It is further submitted that
already NOC granted by the Raipur Development Authority by a memo
dated 21.6.2021 mentioning that the open space is situated in khasra
No.388/1 and 388/11, therefore, the petition is without any basis which
may be dismissed.
6. Learned counsel for respondent No.5 submits, that after the
development of the colony and the same has been handed over to the
Municipal Corporation, Raipur for maintenance purposes. The
respondent No.5 has granted No Objection Certificate for the proposed
construction, hence, the petition is liable to be dismissed.
7. Learned counsel for Intervenor K.P. Khande submits, that the petition
is not maintainable, there is no clarity in the relief sought in the petition.
Further, the petitioner has no locus-standi to prosecute this petition,
hence, the petition may be dismissed.
8. Learned counsel for another intervenor S.L. Sahu submits, that this
intervenor is a Civil Contractor and he has been granted contract for
the construction of the community building, after completion of the
tender procedure. This intervenor has made heavy investment on the
construction site after the same was handed over to him by the
Municipal Corporation, Raipur. The construction activity has come to
halt because of the interim order passed by this Court, therefore, this
petition may be dismissed in the interests of justice.
9. Considered on the submissions.
10. It is the statement of the petitioner that the open space left had been
Page No.6
for the purpose of developing a garden and it is the statement of the
petitioner itself, that the Municipal Corporation had developed a garden
on the open space.
11. In reply by the counsel for respondent No.3, the Municipal Corporation,
it is specifically denied that the subject land was reserved for garden
and that for the purpose of preventing encroachment wall was
constructed and some trees were planted, which was not a garden,
hence, the statement of the petitioner that the open space has been
developed as a garden is being denied by the Municipal
Corporation/respondent No.3. Layout map Annexure-P3 also does not
mention the open space to be reserved for developing a garden.
Respondent No.5 has not made any clear statement as to whether the
open space was reserved for developing a garden or for some other
purpose. Therefore, first question which is needed to be determined is
whether the open space was reserved for garden or not ? As the
development plan of the petitioner society and the other societies was
prepared by Raipur Development Authority the respondent No.5 and
there is no such admission from the respondent No.5 or the other
respondent that the open space left was left for the purpose of
developing a garden, hence, the purpose of the open space not being
admitted by the respondent sides cannot be regarded as a place left
for developing a garden.
In the case of G. Pandi(supra) before Madras High Court the
question has been determined regarding the place earmarked for a
park. In the case of Bangalore Medical Trust(supra) and also the
space left was for the purpose of developing a public park. In the case
of Preeti Singh (supra) the M.P. High Court has held that in view of the
Page No.7
law laid down by Supreme Court in the Bangalore Medical
Trust(supra), the land left as open space can be used only as a public
park was a decision on the basis of the facts and circumstances of that
case.
12. There is specific statement of respondent No.3 in the reply filed, that
the petitioner Samiti has a separate garden situated in khasra No.363
and 369 measuring 14176 and 4938 square feet i.e. total 19114
square feet. Similar Statement has been made by respondents No.1 &
2 in their reply. No rejoinder has been filed by the petitioner to rebut or
contradict the statement made by respondents No.1 to 3 in their reply.
Therefore, the statement and reply made by respondents No. 1 to 3
remains unrebutted. The layout map Annexure-P3 does not show the
open space to be reserved for development of a garden. Therefore, the
case laws cite by the petitioner do not give any guidance in the present
case. On the basis of these observations, I am of this view that this
petition is not fit to be allowed, hence, it is dismissed. The interim relief
granted earlier by this Court stands vacated.
Sd/-
(Rajendra Chandra Singh Samant)
Judge
Nisha
