Using Public Parks For Any Other Purpose Would Amount To Breach Of Trust: MP HC Directs Demolition Of Community Halls

by Sep 12, 2021Governance0 comments

In a path breaking development which can be termed as a shot in the arm for environment and environmentalists, the Division Bench of Madhya Pradesh High Court comprising of Chief Justice Mohammad Rafiq and Justice Vijay Kumar Shukla has as recently as on August 26, 2021 in a learned, laudable, landmark and latest judgment titled Preeti Singh vs The State of Madhya Pradesh and others in Writ Petition No. 470/2011 has directed the demolition of a Community Hall that was constructed in a park upholding the importance of open spaces of land as a buffer zone for ecological balance. It had held that, “Such open spaces act as lungs and ventilators for the suffocating growth of population and as rightly observed by the Supreme Court in various judgments from time to time, also add luster and beauty to the township. These open spaces of land have immense importance and utility as buffer zone for maintaining ecological balance and fulfilling environmental demands. Once a Public Park is dedicated to citizens/residents, it is held by the Municipality in trust on behalf of public at large and cannot be put to any other use. Change of its use for any other purpose by Municipal body would tantamount to breach of trust.” Very rightly so!

To start with, this brief, brilliant and balanced judgment authored by Chief Justice Mohammad Rafiq for a Division Bench of Madhya Pradesh High Court comprising of himself and Justice Vijay Kumar Shukla sets the ball rolling by first and foremost observing in para 1 that, “This writ petition has been filed by petitioner – Mrs. Preeti Singh seeking a direction to the respondents to immediately stop the construction of Community Hall in the land of Public Park of Indira Colony in the city of Burhanpur, with the further prayer that the respondent-State be directed to conduct an enquiry into illegalities committed by the Respondent No.5 in his functioning as Mayor of the Municipal Corporation, Burhanpur. The petitioner has placed on record few colour photographs of the Park showing unfinished construction of a Hall.”

To put things in perspective, the Bench then puts forth in para 2 that, “This Court while issuing notices of this writ petition vide its order dated 10.01.2011 directed that no further construction shall be made in the Park in question until further orders. The District Magistrate, Burhanpur was directed to ensure compliance of the said order. When the matter was listed before the Court on 02.03.2012, this Court noticed that the return filed by the respondent Nos.4 to 6 makes it evident that there was an encroachment in the form of shed on the public way by none other than the Mayor herself, in front of her house, who is wife of respondent No.6. This Court, therefore, directed the respondents to immediately remove such encroachment made on the public way. Thereafter, when the matter was listed on 20.03.2012, the learned Government Advocate appearing for the State Government informed the Court that direction has been issued to the Collector, Burhanpur (Respondent No.3) for immediately stopping the construction in the Park. In response to pointed query by the Court whether such construction work was approved by the Town and Country Planning and whether it was lawful construction, the learned Government Advocate fairly submitted that it was not a legal construction. The Court then required the respondents to inform as to what action has been taken against the Commissioner, Municipal Corporation, Burhanpur (Respondent No.4) for carrying out the aforesaid illegal construction. Unfortunately, the matter has been getting adjourned thereafter on every date and has come up for hearing today.”

Be it noted, the Bench then observes in para 3 that, “The Supreme Court has dealt with the issue of importance of Public Parks and their preservation in the case of Bangalore Medical Trust Vs. B.S. Muddappa and others reported in (1991) 4 SCC 54 which judgment still holds field. Observations made by the Supreme Court, in our considered view, are of great relevance even in the present times, as would be seen from Para 24 and 36, which read as under:-

“24. 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 in a development scheme. It is that public interest which is sought to be promoted by the Act by establishing the BDA. The public interest in the reservation and preservation of open spaces for parks and play grounds cannot be sacrificed by leasing or selling such sites to private persons for conversion to some other user. Any such act would be contrary to the legislative intent and inconsistent with the statutory requirements. Furthermore, it would be in direct conflict with the constitutional mandate to ensure that any State action is inspired by the basic values of individual freedom and dignity and addressed to the attainment of a quality of life which makes the guaranteed rights a reality for all the citizens.

xxx xxx xxx

36. Public park as a place reserved for beauty and recreation was developed in 19th and 20th century and is associated with growth of the concept of equality and recognition of importance of common man. 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 surroundings was privilege of few. But now it is a, ‘gift from people to themselves’. Its importance has multiplied with emphasis on environment and pollution. In modern planning and development it occupies an important place in social ecology. A private nursing home on the other hand is essentially a commercial venture, a profit oriented industry. Service may be its motto but earning is the objective. Its utility may not be undermined but a park is a necessity not a mere amenity. A private nursing home cannot be a substitute for a public park. No town planner would prepare a blueprint without reserving space for it. Emphasis on open air and greenery has multiplied and the city or town panning or development Acts of different States require even private house owners to lease open space in front and back for lawn and fresh air. In 1984 the B.D. Act itself provided for reservation of not less than 15 per cent of the total area of the layout in a development scheme for public parks and playgrounds the sale and disposition of which is prohibited under Section 38-A of the Act. Absence of open space and public park, in present day when urbanization is on increase, rural exodus is on large scale and congested areas are coming up rapidly, may give rise to health hazard. May be that it may be taken care of by a nursing home. But it is axiomatic that prevention is better than cure. What is lost by removal of a park cannot be gained by establishment of a nursing home. To say, therefore, that by conversion of a site reserved for low lying park into a private nursing home social welfare was being promoted was being oblivious of true character of the two and their utility.””

While continuing in the same vein, the Bench then enunciates in para 4 that, “Under challenge before the Supreme Court in Bangalore Medical Trust (supra) was the judgment of Division Bench of the Karnataka High Court by which the decision of the Bangalore Development Authority in converting the site of a public park into a nursing home and then allotting the same to Bangalore Medical Trust, was set aside. The Supreme Court while upholding the judgment of the High Court in Para 48 of the judgment held as under:

“48. Much was attempted to be made out of exercise of discretion in converting a site reserved for amenity as a civic amenity. Discretion is an effective tool in administration. But wrong notions about it results in ill-conceived consequences. In law it provides an option to the authority concerned to adopt one or the other alternative. But a better, proper and legal exercise of discretion is one where the authority examines the fact, is aware of law and then decides objectively and rationally what serves the interest better. When a statute either provides guidance or rules or regulations are framed for exercise of discretion then the action should be in accordance with it. Even where statutes are silent and only power is conferred to act in one or the other manner, the Authority cannot act whimsically or arbitrarily. It should be guided by reasonableness and fairness. The legislature never intends its authorities to abuse the law or use it unfairly. When legislature enacted Sub-section (4) it unequivocally declared its intention of making any alteration in the scheme by the Authority, that is, BDA and not the State Government. It further permitted interference with the scheme sanctioned by it only if it appeared to be improvement. The facts, therefore, that were to be found by the Authority were that the conversion of public park into private nursing home would be an improvement in the scheme. Neither the Authority nor the State Government undertook any such exercise. Power of conversion or alteration in scheme was taken for granted. Amenity was defined in Section 2(b) of the Act to include road, street, lighting, drainage, public works and such other conveniences as the government may, by notification, specify to be an amenity for the purpose of this Act. The Division Bench found that before any other facility could be considered amenity it was necessary for State Government to issue a notification. And since no notification was issued including private nursing home as amenity it could not be deemed to be included in it. That apart the definition indicates that the convenience or facility should have had public characteristic. Even if it is assumed that the definition of amenity being inclusive it should be given a wider meaning so as to include hospital added in Clause 2 (bb) as a civic amenity with effect from 1984 a private nursing home unlike a hospital run by government or local authority did not satisfy that characteristic which was necessary in the absence of which it could not be held to be amenity or civic amenity. In any case a private nursing home could not be considered to be an improvement in the scheme and, therefore, the power under Section 19(4) could not have been exercised.””

Truth be told, the Bench then underscores in para 5 that, “Section 279 of the M.P. Municipalities Act, 1961 (hereinafter referred to as “the Act of 1961” for short) requires the Municipal Council to provide places to recreation such as open space, park, playgrounds, commons, swimming tanks and amenities for the use and employment of the people and may frame bye-laws regulating their use. Section 282 of the Act of 1961 provides that the State Government may, either on its own motion or on the request of a Council in respect of any Municipality and after making such inquiry as it deems necessary, notify, by a notice published in the official gazette, any area or areas, to be reserved from a date fixed therein, for use in the future for any special purpose of public utility such a public parks, playgrounds, educational and medical or public health institutions, markets, stands for vehicles and animals, public recreation centres and housing colonies. Sub-section (2) of Section 282 provides that after such reservation has been noticed, no construction shall take place on any area or areas so declared without the special permission of the State Government in this behalf. The law enunciated by the Supreme Court in the Bangalore Medical Trust (supra) when applied to the facts of the present case, we are clear in our mind that the land left as open space can be used only as Public Park and could not be used for construction of a Community Hall to permanently change its character.”

Needless to say, the Bench then further underscores in para 6 that, “It is trite that the environmental factors should weigh heavily with all the local bodies as also with the Courts while construing a town planning statute. While therefore exercising any powers, such authority should ensure that its outcome does not have the effect of marginalizing the ecological considerations. Reservation of the open spaces for parks and play grounds is universally recognized legitimate exercise of statutory powers rationally related to the protection of the residents of the locality from the ill effects of urbanization. The Supreme Court in Bangalore Medical Trust (supra) in this regard rightly stated that “statutes in force in India and abroad reserving open spaces for parks and playgrounds are the legislative attempts to eliminate the misery of disreputable housing condition caused by urbanization. Crowded urban areas tend to spread disease, crime and immorality.” It is harmonious development with environment that has given rise to the concept of urban development. Urban development is a process in which though the benefits of development may be derived but efforts should always be made to stay immune from its ill effects.”

Most significantly, what forms the cornerstone of this notable judgment is then laid bare in para 12 wherein it is held that, “Taking a holistic and pragmatic view of the matter and keeping with the salutary principles of law laid down by the Supreme Court in very many cases while interpreting various town planning laws, it is expected from the Government authorities/respondents that in discharging all their obligations of planning and development of a city, they should give due importance to the provisions envisaged in the Rules and the Act and in doing so, mandatorily adhere to the requirement of sufficient spaces being left open to be used as parks, gardens, playground and recreational grounds for entertainment and health activity by the local residents and especially the children. Such utilities have been broadly categorized as open spaces in the relevant rules. Such open spaces act as lungs and ventilators for the suffocating growth of population and as rightly observed by the Supreme Court in various judgments from time to time, also add luster and beauty to the township. These open spaces of land have immense importance and utility as buffer zone for maintaining ecological balance and fulfilling environmental demands. Once a Public Park is dedicated to citizens/residents, it is held by the Municipality in trust on behalf of public at large and cannot be put to any other use. Change of its use for any other purpose by Municipal body would tantamount to breach of trust.”

Adding more to it, the Bench then further holds in para 13 that, “On consideration of the matter in its entirety and taking note of the submissions made by learned counsel for the parties and perusing the colour photographs of the Park showing the unfinished construction of the Hall, it is directed that Hall constructed in the Park shall be demolished and the construction material shall be removed within a period of two months. It is further directed that the Park situated in Plot Nos.101, 102, 103 in the map of Town and Country Planning, shall always be maintained only as a Park and shall not be used or allowed to be used for any other purpose. The Municipal Corporation, Burhanpur shall be responsible for maintaining the Park on regular basis. The Collector, Burhanpur shall be responsible for ensuring compliance of this order.”

Not stopping here, the Bench then further directs in para 14 that, “A copy of this order be forwarded to and the Collector, Burhanpur and the Commissioner, Municipal Corporation, Burhanpur for compliance.”

Finally, the Bench then holds in para 15 that, “The writ petition is disposed of accordingly with no order as to costs.”

To conclude, the crux of this commendable, cogent and convincing judgment by a Division Bench of Madhya Pradesh High Court is that using public park for any other purpose other than for which it is constructed would amount to breach of trust. Where such breach of trust happens as we see in this leading case then the purpose other than that for which it was allotted shall be demolished and we saw here how the community hall was commendably directed to be thus demolished! Kudos to the Madhya Pradesh High Court for it!

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