Prohibition of construction likely to affect the utility of a park under Section 8(1) of the Karnataka Parks, Play Fields and Open Spaces (Preservation and Regulation) Act, 1985.

ORDER

1. This petition has been filed as Public Interest Litigation, in which the petitioners inter-alia seeking for Writ of Mandamus or direction to the respondents to consider the representations dated 17.07.2018 and 18.07.2018 and not to go ahead with the construction of building at Park called Gayathri Devi park (Mariappanapalaya Park) which is situated at Ward No.98, Prakashnagar, Rajajinagar Assembly Constituency, Bengaluru (hereinafter referred to as 'the park' for short).

2. The petitioner who claim themselves to be social activists assert that they used to take care of welfare measures for people of Prakashnagar in Rajajinagar, Bengaluru. In the Prakashnagar Ward of Rajajinagar Assembly Constituency, a Park namely Gayatridevi Park was set up about more than 30 years ago, which has been included in the list of approved parks, within the meaning of Karnataka Parks, Play Fields and Open Spaces (Preservation and Regulation) Act, 1985 (hereinafter referred to as 'the Act'). The grievance of the petitioners is that aforesaid park is sought to be turned into concrete Jungle in violation of the provisions of the Act and the rules framed thereunder.

3. Learned counsel for the petitioner submits that the respondent No.2 has proposed to raise construction of swimming pool, multi-gym inside the park. It is submitted that Section 8 of the Act prohibits construction of any building or putting up of any structure, which is likely to affect the utility of the park, play field or open space. It is submitted that the proposed construction by the respondent No.2 - BBMP shall affect the utility of the park and the said construction is in contravention of Section 8(1) of the Act as well as Rule 6 of the Karnataka Parks, Play Fields and Open Spaces (Preservation and Regulation) Rules, 1985 (hereinafter referred to as 'the Rules' for short).

4. On the other hand, learned counsel for respondent No.2 has fairly submitted that the proposed construction is prohibited under Section 8(1) of the Act.

5. We have considered the submissions made on both sides and have perused the record.

6. We may also take note of relevant statutory provisions. The open spaces for parks protect the resident of the locality from ill effects of urbanization. The Act has been enacted with an object to provide residents of the locality a quiet place free of pollution where children can play and adults can rest and breath fresh air.

7. The Act which is inter-alia enacted to provide necessary space for recreation to residents of the locality and with a view to preserve parks, play fields and open spaces and to put an end to the practice of converting such lands into other uses, Section 8(1) of the Act reads as under:

"8 (1) No person shall construct any building or put up any structure likely to affect the utility of the park, play-field or open space or make any encroachment in or over any park, play-field or open space specified in the list published under Section 4 or Section 5."

Thus, Section 8(1) of the Act mandates that no person shall construct any building or put up any structure likely to affect the utility of the park, play-field or open space or make any encroachment in or over any park, play-field or open space.

In exercise of powers conferred under the Act, Rules namely, Rule 6 of the Rules provides as under:

"6. Construction of other structures in the Parks, Play-fields and Open Spaces:-

(1) The executive authority may permit construction of a well, pump house, benches for the visiting public to sit and quarters for the watchman in any park, play-fields or open space

(2) Notwithstanding anything in sub-rule

(1) -

(a) no permission to construct quarters for the watchmen shall be granted were the total area of the park, play field or open space is less than two hectares;

(b) in other cases, not more than two quarters may be permitted to be constructed and the area of any such quarters shall not exceed thirty square metres."

Thus, the aforesaid Rule permits construction of a we