Construction in a public park is prohibited, and the Municipality has a duty to maintain and develop the park.

S.B. Sinha, J.

1. The question which arise for consideration in these two applications are as to whether any construction can be allowed in a Public Park.

2. The Salt Lake City which consisted of water bodies having a large area. Keeping in view the growing population it was considered necessary to turn into a Model Town. Subsequently named as 'Bidhannagar', the town stands at the extreme eastern end of Town of Calcutta having a total area of around 15 Square K.M. The Layout Plan of Bidhannagar City indicates that 35.10% of the total land would be open space, out of which 35.10% of the total land would be open space, out of which 23% had been earmarked for roads and the rest 12.10% for exclusive greenery, parks etc. The present estimated population is about 5 lakhs.

3. There are about parks in the said area and some green verges which act as lungs of the residence of the area. A piece of land had been leased out to the applicants for 999 years it is accepted that persons those who wanted allotments facing open spaces park were required to pay a premium and those who wanted land near green verges were required to pay a premium of 3% of the used charges. The Policy of the State, thus, there cannot be any doubt, was to maintain the greenery. It, however, appears that in the name of Community Centre or Ward Office of the Bidhan Nagar Municipality, constructions were allowed on portions of the Parks as a result whereof• hardly any area is left aside as open-space for the neighbouring building owners. One of such buildings had been constructed in BH Block.

4. Various photographs have been annexed with the writ application to show that vats have been placed in the green verges, as a result whereof a vicious atmosphere had been created.

5. It is, thus, not denied that 30 numbers of parks exist in the Salt Lake City. It is further not denied that in some of the parks including B.H. Block which is the subject matter of writ petition No. 1823/94 a Community Hall had come up resulting in frustrating the purpose for which the petitioner had paid the extra premium. Photographs placed before us clearly depict that construction had been raised even without leaving the required space between two buildings.

6. How the State Government had allotted a portion of the Park in deviation of its policy decision in the name of building of Community Hall is a matter of great surprise that there are several statutes governing the field is not in dispute. A layout plan has to be made under the provision of the West Bengal Town and Country (Planning and Development) Act, 1979. The Calcutta Metropolitan Development Authority has issued a handbook laying down the procedure and guidelines for environmental clearance. Although the same is meant for certain purposes, viz., industrial projects, the same is a pointer to show that the State had been also eager to maintain the greenery and the ecological balance. Therefore, we fail to understand as to how the State could allot the lands in question within a park which is contrary to the representation made by it to the residents particularly in view of the fact that excess premiums had been charged for those who had opted for settlement of land near the park or green verges.

7. It is also surprising as to how the Bidhan Nagar Municipality also sanctioned the building plan within a park. The said action, in our opinion, was not commensurate with the professed policy decision of the State and the Municipality. The aspect of the matter has recently been considered in M.I. Builders Pvt. Ltd. vs. Radhey Shyam Sahu & Ors., reported in JT 1999 (5) SC 42 wherein it has been held that the Municipality is a Public Trustee in respect of Parks.

8. Clauses (a) and (1) of sub-section (3) of section 63 of the West Bengal Municipal Act, 1993 read thus :-

"(3)(a) - devising town planning within the limits of the municipal area in accordance with the laws relating to town planning for the time being in force;

(1) - measures for beaut