Rajasthan High Court - Jodhpur
Bharat Singh Rathore vs State Of Rajasthan ... on 11 September, 2024
Author: Kuldeep Mathur
Bench: Kuldeep Mathur
[2024:RJ-JD:37722-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Writ Petition No. 16413/2023
1. Bharat Singh Rathore son of Shri Heera Singh Rathore,
aged about 60 Years, 6/7 Sanand House, Nakkii Road,
Mount Abu, District-Sirohi.
2. Bharat Tyagi son of Shri Omprakash Tyagi, aged about 40
Years, 72, C.P.W. Quarter, Ward No.19, Near Global
Hospital, Block No.1, Mount Abu, District-Sirohi.
----Petitioners
Versus
1. State Of Rajasthan, Through The Secretary to the
Government, Department Of Local Self Government,
Government Of Rajasthan, Secretariat, Jaipur.
2. Director, Directorate Of Local Self Government,
Rajasthan, Jaipur.
3. Municipal Board, Mount Abu, District Sirohi Through Its
Commissioner.
4. M/s Maheera Construction And Suppliers, Through
Commissioner, Municipal Board Mount Abu, District Sirohi.
----Respondents
For Petitioner(s) : Mr. Pritam Solanki
For Respondent(s) : Mr. Monal Chugh for
Mr. Rajesh Panwar, Sr. Adv. & AAG
HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE KULDEEP MATHUR
Order
11/09/2024
This Writ Petition (PIL) has been filed with the following
prayers.
"It is therefore, most humbly and respectfully prayed
that:-
i) by an appropriate writ, order or direction the writ
petition filed by the petitioners may kindly be allowed.
ii) by an appropriate writ, order or direction, impugned E-
Tender Notice dated 10.08.2023 (Annx.3) issued by the
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respondent No. 3 as well as entire proceedings as initiated
pursuant thereto may kindly be declared illegal and
accordingly, be quashed and set aside.
iii) by an appropriate writ, order or direction the
respondent authorities may further kindly be directed not to
raise any construction work in the form of fixing of
interlocking on the green area/public park of Gandhi Vatika
and thereby, remove/destroy said green area/ public park in
any manner in future also.
iv) by an appropriate writ, order or direction, the
respondent authorities may also kindly be directed to comply
with the directions issued by the learned Division Bench of
this Hon'ble Court in the case of Abdul Rehman (supra) in its'
letter and spirit and ensure that no such illegal construction
work will be raised in the green area/public park of Gandhi
Vatika situated adjoining the famous Nakki Lake in the Hill
Station of Mount Abu In the future as well.
v) by an appropriate writ, order or direction, an exemplary
cost may also kindly be imposed upon the respondent
authorities for not considering the problems of public at large
and failure/inaction in not stopping construction work in the
form of fixing of interlocking and thereby removing/
destroying green area/public park in question.
vi) Any other appropriate order, which this Hon'ble Court
deems just and proper in the facts and circumstances of the
case may kindly be passed in favour of the petitioners.
11. Interim order, if prayed for: By an appropriate order,
the respondent authorities may kindly be restrained from
raising any construction work more particularly fixing of
interlocking in the green area/ public park forming part of
Gandhi Vatika situated adjoining the famous Nakki Lake in the
area of Hill Station of Mount Abu forthwith and they may
further kindly be directed to ensure that no such illegal
construction activities will be carried out in the said area in
future also."
2. In this Writ Petition, the petitioners claim that they are
permanent residents of Mount Abu in the District of Sirohi and are
vigilant citizens of this area. They have stated that they are
aggrieved by the action of the respondent-Authorities in fixing of
[2024:RJ-JD:37722-DB] (3 of 5) [CW-16413/2023]
interlocking tiles over the green area in the public park at Gandhi
Vatika resulting into non-availability of green area in the park for
sitting of the tourists as well as local residents. They further claim
that such action of the respondent-Authorities shall have adverse
effect on the scenery and beauty of the famous Nakki Lake.
3. In support of the aforesaid grievances, the petitioners have
placed on record certain photographs.
4. Mr. Pritam Solanki, the learned counsel for the petitioners
states that the respondent-Authorities on affidavit stated that
e-Tender Notice dated 10th August 2023 vide Annexure-3 has been
withdrawn. However, the respondent-Authorities are not complying
with the order passed by a Division Bench of this Court in "Abdul
Rehman Vs. State of Rajasthan & Ors." (D.B. Civil Writ Petition
No.1536 of 2003). In short, the learned counsel for the petitioners
submits that the construction work at Gandhi Vatika must stop
and a direction may be issued to the respondent-Authorities for
not removing/destroying green area in the public park in question.
In support of this submission, the learned counsel for the
petitioners relies on the judgment in "Municipal Corporation of
Greater Mumbai & Ors. Vs. Hiraman Sitaram Deorukhar & Ors."
(2019) 14 SCC 411, in particular, paragraph No.7, wherein the
Hon'ble Supreme Court observed as under:-
"This Court has laid down that public interest requires
some areas to be preserved by means of open spaces of parks
and playgrounds, and that there cannot be any change or
action contrary to legislative intent, as that would be an abuse
of statutory powers vested in the authorities. Once the area had
been reserved, the authorities are bound to take steps to
preserve it in that method and manner only. These spaces are
meant for the common man, and there is a duty cast upon the
authorities to preserve such spaces. Such matters are of great
[2024:RJ-JD:37722-DB] (4 of 5) [CW-16413/2023]
public concern and vital interest to be taken care of in the
development scheme. The public interest requires not only
reservation but also preservation of such parks and open
spaces. In our opinion, such spaces cannot be permitted, by an
action or inaction or otherwise, to be converted for some other
purpose, and no development contrary to plan can be
permitted."
5. At the outset, we may indicate that the observations in
"Municipal Corporation of Greater Mumbai" were made by the
Hon'ble Supreme Court in the context of the Maharashtra Regional
and Town Planning Act, 1966. Whereas, on a repeated query from
the Court the learned counsel for the petitioners is unable to show
a law under which some area in a public park at Gandhi Vatika
cannot be re-modelled by laying interlocking tiles. Still further, we
find that the prayers made in this Writ Petition cannot be
accepted. Making some changes in the public park shall not mean
that the nature of the park at Gandhi Vatika itself has been
changed. This is too well-known that with the rise in population
the needs of the local people and the visitors would demand
certain additional facilities to be created by the State.
6. The learned counsel for the petitioners however submits that
by filing affidavits the respondent-State has itself expanded the
scope of this PIL. We however cannot countenance with such a
submission. The scope of the Writ Petition and that too in the
nature of Public Interest Litigation must remain confined to the
prayers made in the petition and the Court cannot travel beyond
the prayers made therein.
7. Therefore, D.B. Civil Writ Petition (PIL) No.16413 of 2023 is
disposed of however with a direction to the Municipal Board,
Mount Abu, District Sirohi which has been arrayed as the
[2024:RJ-JD:37722-DB] (5 of 5) [CW-16413/2023]
respondent No.3 in the present proceedings to ensure compliance
of the directions issued by this Court in "Abdul Rehman Vs. State
of Rajasthan & Ors." (D.B. Civil Writ Petition No.1536/2003).
(KULDEEP MATHUR),J (SHREE CHANDRASHEKHAR),J
33-Arjun/-
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