Preservation of public parks and open spaces for parks and playgrounds is a legitimate exercise of statutory powers, and the change of use for any other purpose by the Municipal body would tantamount to breach of trust.

ORAL ORDER MOHAMMAD RAFIQ, C. J. : – 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.

2. This Court while issuing notices of this writ petition vide its order dated 10-1-2011 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 2-3-2012, 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 20-3-2012, 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.

3. 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