Manushi Sangathan, Delhi vs Govt. Of Delhi And Ors.
2015 Latest Caselaw 6526 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                                                 Decided on : 02.09.2015

+      W.P.(C) 4572/2007

       MANUSHI SANGATHAN, DELHI                        .......Petitioner

                    Versus

       GOVT. OF DELHI AND ORS.                         .......Respondents

Through : Mr. Narayan Krishan, Advocates, for petitioners.

Mr. Kapil Sibal, Sr. Advocate, Ms. Maninder Acharya, Sr. Advocate with Mr. (appearance not given), Advocate, for applicant, Dharmik Ram Lila Committee in C.M. No.3937/2015 in W.P.(C) 4572/2007.

Mr. Sanjiv Ralli with Mr. Ankit Sharma, Advocates, for Chandni Chowk Sarv Vyapar Mandal.

Ms. Madhu Tewatia, Advocate, for MCD.

Mr. Arun Birbal, Advocate, for DDA/UTTIPAC.

Mr. Anupam Varma with Mr. Nikhil Sharma and Mr. Raghav Chadha, Advocates, for BYPL.

Mr. Anuj Aggarwal, Advocate, for GNCTD.

Mr. Naushad Ahmad Khan, ASC (Civil), for GNCTD.

Mr. Ranbir. S. Chillar with Mr. A.K. Gautam, Advocates, for UOI.

Ms. Meera Bhatia, Advocate, for UOI.

Mr. Ravinder Kumar, ACP Traffic with SI Jai Prakash, Traffic Circle, Kotwali, SI Udai Singh, Traffic/HQ and ASI Rajender Singh, PS Kotwali.

W.P.(C) 4572/2007                                                          Page 1
        CORAM:
       HON'BLE MR. JUSTICE S. RAVINDRA BHAT
       HON'BLE DR. JUSTICE S. MURALIDHAR
MR. JUSTICE S. RAVINDRA BHAT
%

1. The present judgment will dispose of a request by the Dharmic Leela Committee, to hold the Ram Lila Celebrations in front of the Red Fort and thereby permit it to block access of the public to the North Delhi Municipal Council's (NDMC) surface area of the multi level parking area at the Parade Ground. The entire parking facility (which includes two levels of underground parking) has a total capacity to accommodate 2400 cars and such vehicles. The request is necessitated because of orders of this Court, dated 23-09-2013 and dated 07-10-2013 whereby use of the parking facility, more particularly the surface area, for any purpose other than parking has been injuncted. The NDMC is also under restraint orders, by those directions, prohibited from permitting any other use.

2. A Full Bench of this Court had in W.P.(C) 4572/2007 and connected cases, on 10-02-2010, held that the constraints placed upon plying of cycle rickshaws, by certain bye-laws of the erstwhile Muncipal Corporation of Delhi ("MCD") which capped the total number of cycle rickshaws and placed absolute embargos on cycle rickshaw owners in respect of ownership of the rickshaws as well as entitled only owners to ply the rickshaws, was violative of Article 19 (1) (g) and Article 21 of the Constitution of India. To ensure that appropriate zoning of cycle rickshaws were made, the Court had issued a continuing mandamus and required periodic monitoring by a Task

W.P.(C) 4572/2007 Page 2 Force, appointed for the purpose. The Full Bench judgment was appealed by Special Leave Petition (SLP).

3. The Supreme Court (in SLP (Civil) No. 9960 of 2010 (Municipal Corporation of Delhi v. Manushi Sangathan), on 8th November 2011, observed that "since this Court had already rejected the Petitioner's prayer for interim relief, we deem it appropriate to request the High Court to continue to effectively monitor the implementation of the directions contained in the impugned order." Ultimately, the Supreme Court dismissed the aforementioned SLP of the MCD on 2nd April 2012. The Supreme Court required the constitution of a Bench to monitor the work of the Task Force on the question of creating non-motorized lanes in Delhi (in line with the Full Bench order, for ensuring that rickshaws, cycles and other environment friendly vehicles were afforded separate lanes on the roads in Delhi). On 28- 09-2012, this Court's attention was drawn to the problem of congestion in the Chandni Chowk area. It appeared that no traffic management plan was operational in the area. The Court was informed on behalf of the Government of NCT of Delhi (GNCTD) that a meeting of the Delhi Police with the Petitioner, the representatives of the Municipal Corporation of Delhi, the Chandni Chowk Vyapar Mandal ("the Mandal") and others would be held for the development of a plan. After the meeting it was disclosed to the Court that a multi-level parking facility was under development and construction. The Court monitored the process; the MCD kept reporting the progress and indicating the tentative date(s) on which the facility would be made available to the public- as orders, dated 22-09-2012, 18-10-2012, 09- 11-2012, 25-04-2013, and 29-04-2013 would reveal. On 24-05-2013, the

W.P.(C) 4572/2007 Page 3 court was informed that two levels of the multi level parking facility had become operational. On 23rd September, 2013 the court recorded MCD's plea that the entire facility had become fully operational. On behalf of the Mandal, it was, on that day, contended that the surface parking part of the multi-parking facility was proposed to be temporarily allotted for the annual Ram Lila celebrations. Counsel for the Mandal also drew the attention of the Court to a public notice issued by the Delhi Police issuing instructions for ensuring the unhindered use of public spaces. Counsel for MCD assured the Court that this would not in any way hamper the use of the basement parking facility at the three levels, which had already been commissioned. The Court then issued the following directions:

"The MCD and the Delhi Police are hereby directed to ensure that basement parking at the Parade Ground is fully functional during the festive season and that there is no impediment in its usage during the Ram Leela celebrations".

4. At that stage, the Committee filed CM 13874/2013 seeking variation of the above order. The Court found certain observations in the application to be objectionable; consequently, learned Senior Counsel, Mr. Sudhir Nandrajog appearing for the Committee sought leave and was permitted to withdraw the application. Subsequently, on 4th October, 2013 counsel for MCD urged that she would obtain instructions as to whether formal orders were issued to permit the Committee to use the surface parking area at the Parade Ground facility for the Ram Lila Festival. On 7th October, 2013, the court was informed that the NDMC had in fact permitted temporary use of surface of the parking facility through a letter issued on 12-08-2013 to the Committee granting it temporary license to use surface area of the Parade

W.P.(C) 4572/2007 Page 4 Ground parking facility for holding the Ram Lila festival. The Court was informed that the President of India would be the Chief Guest and that the underground parking be shut down for the entire period of the festival. The Court noted that the temporary license granted by NDMC to the Committee was silent about shutting down of the underground parking and observed "In the circumstances, the only modification that the Court considers appropriate to be made to its order dated 23.09.2013 is to direct the concerned authorities i.e., Delhi Police and North DMC to ensure appropriate security arrangements for the visit of the President of India during the festival". The Court further directed that if the normal security drill for the visit of the President required the entire parking facility to be shut down, then it would remain closed only for the period of the said two days. It was the above limited extent that the previous order restraining non- parking use was varied.

5. Again, in 2014, despite the Court's order, the NDMC again permitted temporary use of the surface parking area; the court was informed that the Prime Minister of India had consented to visit the site; consequently the Court directed the Delhi Police "to ensure that no visible signs preventing use of the underground parking facility at the Parade Ground are allowed to be retained on that site". The court was not shown the temporary permission order. All these developments led to initiation of suo motu proceedings against the Commissioner, NDMC for violation of the orders of court. Those proceedings culminated in a judgment dated 20-08-2015 when the Court accepted the apology of the Commissioner but also issued severe strictures for the casual attitude displayed by officers of the NDMC in this regard.

W.P.(C) 4572/2007 Page 5

6. The Committee, a registered Society since 1923 states that it used to organize Ram Lila celebrations at the Gandhi Maidan between 1942 and 1957. Thereafter it used to organize festival celebrations continuously from 1958 at the Parade Ground except during 2011 and 2012 when the Municipal Corporation of Delhi (MCD) had undertaken construction of the Multi-Level Parking. An alternative site had been given to the Committee in front of Red Fort subject to permission granted each year, without conferring any right to it. It is stated by that Ram Lila celebrations organized at the Parade Ground is synonymous with the Committee in the public mind. It is claimed that a useful reason is the "central location of the space in a thickly populated area". According to the Committee, the general public identifies the Parade Ground with the Ram Lila which is organized annually. The Committee further states that before the Multi-Level parking facility was created, the space was used for parking 300 vehicles and that after construction of the Multi-Level Car Parking in 2012, the parking facility of 2400 vehicles at one time is available.

7. The Committee submits that the Multi-Level Car Parking is more than sufficient for the need of parking facility of the public during Dussehra festival and asserts that the third level parking which has a 600 vehicle parking capacity cars is mostly vacant the year round. The surface area has according to the applicant/ Committee, a capacity to park 100 cars. The Committee further states that the Multi-Level Car Parking adequately meets the needs of the public. If the surface area is allotted to it for the purpose of celebrating Ram Lila festival there would be no hardship. In the application, it is stated that the right to organize, participate and watch Ram Lila is a

W.P.(C) 4572/2007 Page 6 Fundamental Right under Article 25 of the Constitution, which cannot be violated by the State. It is stated that the fundamental Rights as well as the cultural and religious feelings of the public should not be ignored by the North Delhi Municipal Corporation (NDMC). The Committee adverts to the orders of this Court dated 11.09.2013, 23.09.2013 and 07.10.2013 and the subsequent orders where the Court was seized of violation of its previous orders and had directed suo motu notice to the Commissioner, NDMC.

8. On behalf of the Committee, learned senior counsel, Sh. Kapil Sibal argued that since Ram Lila has been continuously celebrated initially in the Gandhi Maidan and thereafter continuously from 1958 in the Parade Ground and the later development, i.e. construction of the Multi-Level Car Parking should not constitute a barrier for the use of the Surface Parking facility and its allotment for Ram Lila purposes. It was stated that traditionally, the President and the Prime Minister have visited the Ram Lila on festive occasions annually at the invitation of the organizers of the Committee and it is only on three days that the entire Parking facility would have to be shut down to augment security arrangements. Otherwise, access to the basement and other parts of the Multi-Level Car Parking facility would always be available to the public and the surface parking, which is meagre, would be available for Ram Lila celebrations.

9. Learned senior counsel relied upon the judgments of the Allahabad High Court reported as Kanhai Singh v. Basdeo Sahai and Ors. AIR 1939 All 387 and Lakhmi Chand v. Moti Lal and Ors. AIR 1939 All 165, to say that the right to hold fairs and celebrate religious or cultural festivals such as the Ram Lila is recognized as an "easement" under Section 18 of the Indian Easements Act, 1882. It is argued that whenever an individual or group of

W.P.(C) 4572/2007 Page 7 persons uses space for holding such religious or cultural festivals or functions, a right of continuing to do so is recognized in law. Learned senior counsel highlighted that in the present case too, the Committee had acquired such a right.

10. Learned counsel for the Mandal as well as the learned counsel for the NDMC opposed the request for allotment. Learned counsel pointed out that in C.M. No.5322/2015, filed on behalf of another applicant, seeking permission to use the Parade Grade and surface parking for the Bhagwan Mahavir Jayanti celebrations for the period 25.03.2015 to 03.04.2015 was rejected. It was submitted that likewise, another request for the purpose of holding Eid Milan celebrations to be organized by Awam Welfare Organization (C.M. No.10269/2015) was rejected by the Court's order dated 29.05.2015. It was submitted that in both these cases, especially the latter, not only were similar requests for extended periods made, but it was even emphasized that the applicants had been enjoying similar permissions for considerable periods - of upto 15 years or so.

11. Learned counsel for the Mandal submitted that the order sheet in this case relating to Chandni Chowk and the need to ease traffic congestion would show that the Court had made a series of orders ultimately resulting in the creation of Multi-Level Car Parking facility which was meant to be occupied and used exclusively for that purpose. Learned counsel relied upon para 12.13.7 of the Master Plan and Annexure I to the Master Plan which specifically listed "Parade Ground" facility as one that had to be developed. It was submitted that in terms of the Master Plan and the Delhi Building Bye-Laws, 1983, parking sites cannot be used for any purpose other than parking cars and other vehicles. It was submitted that if the Committee's

W.P.(C) 4572/2007 Page 8 application were to be granted, similar applications would have to be accepted with respect to other religious or cultural organizations which would render the surface parking facility inaccessible for substantial periods of the year and even during that period, access to the basement and other part of the Multi-Level Parking facility would be severely impaired. Commenting on the kind of structures put up and the arrangements made during Ram Lila and other festivals, learned counsel highlighted that stalls for entertainment, food etc. are placed besides the stage which will invariably restrict, if not entirely close, access to the basement and other levels of the Multi-Level Parking facility. It is submitted that the Right to Freedom of religion would not extend to the right to claim unrestricted claim of use of public property which is a public utility resource developed at the cost of the public exchequer for the regulation of traffic and issuing road condition.

Analysis and Conclusions

12. The above factual analysis would reveal that the parking facility on the Parade Ground is a multi-level amenity for the use of the general public. Concededly, it has a capacity of accommodating 2400 cars. The Parade Ground parking was opened to the public free of cost with effect from 1 st November, 2012, as the MCD disclosed to this Court by affidavit dated 9th November 2012. The relevant extracts of the Delhi Master Plan, 2021, framed in exercise of the power conferred upon the Central Government under Section 7 of the Delhi Development Act, 1957 are as follows:

"12.13.7 MULTI LEVEL PARKING

W.P.(C) 4572/2007 Page 9 Multi level parking facility should preferably be developed in the designated parking spaces or in the residential, public-semi- public facilities, commercial, transport node, DTC depot, etc. with the following Development Controls:

i. Minimum Plot Size - 1000 sqm.

ii. In order to compensate the cost of Multi-level parking and also to fulfill the growing need of parking spaces within urban area, a maximum of 25 % of gross floor area may be utilized as commercial / office space.

iii. In addition to the permissible parking spaces on max.

FAR, 3 times additional space for parking component shall be provided.

iv. Maximum FAR permissible shall be 100 (excluding parking area) or as per the comprehensive scheme.

However, no FAR shall be permissible in plots / existing buildings where 5% addl. ground coverage is permissible (Refer para 8 (4) i) Parking Standards, Chapter 17.0 Development Code).

v. Maximum ground coverage shall be 66.6%. The maximum height shall be restricted to permissible height of the land use in which the plot falls. There will be no restriction on the number of levels of basement subject to structural safety."

Clause 12.13.2, "Public Parking" states, inter alia that:

"viii. Serious consideration should be given to evolve a policy linking registration of new vehicles to availability of owner parking facilities.

ix. All encroachments on land earmarked for public parking should be removed. However, Public Parking Areas may be used for Second Hand Car Bazaar on payment basis, only during holidays subject to meeting requirement / conditions of the concerned authorities..."

It is evident that Public parking sites are to be used exclusively for parking purposes. The development of a multi level parking facility has been

W.P.(C) 4572/2007 Page 10 expressly stated in the Master Plan. In these circumstances, there is no doubt that public parking facilities are to be used only for that purpose and no other. The Master Plan, in other places indicates limited mixed land use for certain kinds of plots; however, parking sites appear to have been excluded from that arrangement.

13. The next question is whether the Committee can claim any entitlement for allotment of the surface area of the Parade Ground multi level parking facility. The Committee's main argument is that the said area has been used for over 55 years and that the surface area is not fully utilized and can consequently it has some kind of entitlement to such temporary allotment. It also invokes Article 25 of the Constitution of India.

14. The Committee's argument of a long accepted right to temporary use of the entire surface area of the parking facility, in the opinion of the court, is insubstantial and without merit. This court has already held that the Master Plan has the force of law; it nowhere permits the use of a public parking facility for an entirely different purpose. In the present case, the Mandal and NDMC had stated that the capacity of the surface portion of the Parade Ground facility (i.e the one in question) is about 300 cars. Now, looking at the congested nature of Chandni Chowk and the overwhelming number of vehicles which ply the roads, it would be reasonable to assume that for a capacity of 300 cars, would translate to about 500-600 cars being parked at the surface area each day; maybe the figure is even higher. If the surface area is not available for a month, potentially 15000 cars would have to park elsewhere. There is no such parking facility near the Parade Ground or at the entire length of the Chandni Chowk main carriageway. This court is

W.P.(C) 4572/2007 Page 11 unpersuaded with the submission on the Committee's behalf that during the festive season, there is less vehicular traffic because of several holidays. On the contrary, being the festive season, because of holidays, greater number of visitors tend to visit Chandni Chowk; shops are open and shopping of a certain kind which is done traditionally intensifies. If anything, footfalls increase and there is a natural tendency of increase in vehicular traffic.

15. Now, as to the submission that the Committee's (rather its members') Right to Freedom of Religion would be violated or that it would be impaired if the NDMC were to refuse permission to use the surface area of the parking facility for celebration of Ram Lila and other activities such as putting up pandals etc. No doubt, every citizen has the freedom to practice and profess her or his religion without interference by the state. However, the Constitution also permits the regulation of that freedom; it is subject to public order. In this case, the Committee asserts the unrestricted right to celebrate a religious- perhaps even a cultural event - on what is concededly a public utility developed at public expense. On this, it would be appropriate to recollect the judgments of the Supreme Court. In Sri Sri Lakshmana Yatindralu v State of A.P. AIR 1996 SC 1414 it was held that:

"14. Article 25, as its language amplifies, assures to every person subject to public order, health and morality, freedom not only to entertain his religious beliefs, as may be approved of by his judgment and conscience, but also to exhibit his belief in such outwardly act as he thinks proper and to propagate or disseminate his ideas for the edification of others."

In Commr. of Police and others v. Acharya Jagadishwarananda Avadhuta 2004 (12) SCC 770 the Supreme Court observed that:

W.P.(C) 4572/2007 Page 12 "77. Though the freedom of conscience and religious belief are absolute, the right to act in exercise of a man's freedom of conscience and freedom of religion cannot override public interest and morals of the society and in that view it is competent for the State to suppress such religious activities which are prejudicial to public interest".

16. There is no denial that the property, i.e the vacant land and the multi level parking facility in the Parade Ground are owned by the North Delhi Municipal Corporation. Furthermore, the surface area is to be used as parking; indeed the control norms in the Master Plan require substantial open area; the minimum plot size for such multi level parking is 1000 square metres. Once the use is indicated in the Master Plan, there cannot be any deviation. Planning at three different levels (Master, Zonal and lay out stages) implies macro and micro levels where in some cases, multiple use of plots is permitted. Owners of these plots- be they private or public entities are to adhere to these norms. Concededly use of public parking areas: especially multi level parking plots and surface areas attached to them for any other purpose is impermissible. In these circumstances, the Court cannot hold that the right to profess and practice religion or hold cultural festivities on such areas trumps over such legal prohibition.

17. In Senior Citizen Council v Delhi Development Authority (L.P.A. No.613/2012, decided on 22nd November, 2012) a Division Bench of this Court rejected the plea of a group of individuals who claimed long usage of land, which was a District Park under the Master Plan. Like in this case, the Petitioners had claimed long usage and also that high dignitaries had in the past graced their functions. It was observed that:

"We are governed by the rule of law and not by rule of men; no

W.P.(C) 4572/2007 Page 13 authority in favour of any official of the DDA to so allow the appellant or its members can be cited or can possibly be cited. None of the officials of the DDA are competent to, on their whims and fancies, allow such use of public parks/ spaces to a particular body/ organization which would amount necessarily to the exclusion of other users. Similarly, merely because various leaders including those holding high offices have participated in the functions organized by the appellant in the said park cannot confer any legitimacy to the presence otherwise illegal, of the appellant and its members in the park." In Dr. G.N. Khajuria & Ors. v. Delhi Development Authority & Ors [(1995) 5 SCC 762] the Plan had provided for a public park and the Delhi Development Authority had taken the decision to establish a nursery school for the benefit of the children of the colony. Rejecting the contention, this Court observed that within the framework of law and the provisions made in the Master Plan, the authorities could only establish a public park and nothing else, as such conversion would amount to misuse of power. For these reasons, this Court rejects the contention of the Committee that its Right to Freedom of Religion would be impaired if the permission sought is refused. For the same reason, the Court holds that there cannot be any easement of the kind, asserted by the applicant/Committee.

18. This court further holds that similar requests on behalf of a Jain Sansthan and a Muslim organization - to commemorate their religious festivals or hold functions- at the same venue, were rejected in the past. In CM 5322/2015, a Jain organization: much like the Committee had argued that it had the right to continue holding the event for commemoration of its festivities for about two weeks; they also stated that they used to hold such events in the past for 90 years. The court rejected the application, stating

W.P.(C) 4572/2007 Page 14 that:

"Public utilities, like parking complexes, are meant for the use of the general public. The Parade Ground parking facility caters both to visitors to Chandni Chowk as well as those carrying on business. It goes without saying that permitting use of the space earmarked for such facility by private organisations, would entail disruption of the use of the parking arrangements in the area. It would result in traffic congestion and cause undue hardship to visitors to the area for whom the facility is meant.

The application points out that the annual Mahavir Jayanti celebrations have been customarily held at the Parade Ground for the past 90 years. Whilst that may be so, with an exclusive parking facility having been built at the place at considerable cost for public use, the previous use of the Parade Ground cannot create any special equities or rights in favour of the applicant.

We, therefore, are of the opinion that the applicant's attempt to have the order dated 28.11.2014 set aside cannot succeed."

Again, when the Awam Welfare Organization filed an application (CM 10269/2015) seeks a direction to the North Municipal Corporation of Delhi (NMCD) to allot a portion of the Parade Ground Surface parking area for the purpose of holding the Eid Milan Mela celebrations, to be organized by it, the Court rejected it on 29-05-2015. In the order, the court had quoted the previous order of 23-03-2015.

19. For the above reasons, this Court holds that the request of the Committee to facilitate usage of the surface area of the parking on the Parade Ground cannot be granted. The Committee urged during the hearing that since the securing of temporary allotment of municipal lands for such purposes is not governed by any policy, the NDMC may be directed to

W.P.(C) 4572/2007 Page 15 consider allotting alternative land and that such consideration should take place in a time bound manner. The Court sees some merit in this submission. While the applicants and organizations like the Committee might not be able to seek temporary allotment on lands where the Master Plan and use zones do not permit such usage, at the same time, the municipal authorities should put in place a transparent policy for usage wherever the law permits it, subject to public order and security concerns. The NDMC and all other Municipal authorities (the East Delhi Municipal Corporation, South Delhi Municipal Corporation and the New Delhi Municipal Council) are hereby directed to frame a policy and display it on their respective websites. As far as the Committee is concerned, the NDMC is directed to consider its request for suitable alternative site for temporary usage, this year, and take a decision within a week of receiving an application in that regard. This direction is in line with the directions made in the other cases (C.M. Nos. 5322/2015 and 10269/2015).

Order dasti under the signatures of Court Master.

S. RAVINDRA BHAT (JUDGE)

S. MURALIDHAR (JUDGE) SEPTEMBER 2, 2015

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