Preeti Singh vs The State Of Madhya Pradesh - 2021 Supreme(Online)(MP) 6422

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Online)(MP) 6422

THE HIGH COURT OF JUDICATURE FOR MADHYA PRADESH AT JABALPUR (Division Bench)
Writ Petition No.470/2011 Preeti Singh ……………….Petitioner Versus The State of Madhya Pradesh and others ………......Respondents -----------------------------------------------------------------------------------------------
Coram:
Hon’ble Mr. Justice Mohammad Rafiq, Chief Justice Hon’ble Mr. Justice Vijay Kumar Shukla, Judge -----------------------------------------------------------------------------------------------
Presence :
Shri M.K. Tripathi, learned counsel for the petitioner.
Shri Darshan Soni, learned Government Advocate for the respondent Nos.1 to 3/State.
Shri Sanjay Ram Tamrakar, Advocate for respondent Nos.4 and 5.
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Whether approved for reporting- Yes ---------------------------------------------------------------------------------------------------------------
Law laid down:
 Writ Petition filed for 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.
 Section 279 of the M.P. Municipalities Act, 1961 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 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.
 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.
 It is 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.
 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.
 While disposing of the writ petition, the Court directed that Hall constructed in the Park shall be demolished and the construction material shall be removed within a period of two months with further direction 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.
Reference made to Bangalore Medical Trust Vs. B.S. Muddappa and others, (1991) 4 SCC 54 Intellectual Forum, Tirupathi Vs. State of A.P. and others, (2006) 3 SCC 549 Municipal Corporation, Ludhiana and anr. Vs. Balinder Bachan Singh, (2004) 5 SCC 182 Padma Vs. Hiralal Motilal Desarda and others reported in (2002) 7 SCC 564 Bombay Dyeing and Manufacturing Co. Ltd.(3) Vs. Bombay Environmental Action Group, (2005) 5 SCC 61 Yogendra Singh Tomar Vs. State of M.P., AIR 1997 MP 124 Attorney General Vs. Corporation of Sunder Land - 1875-76 (2) Ch. D 634, Sections 279 and 282 of the M.P. Municipalities Act, 1961.
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Significant Paragraphs:- 5 to 14 -----------------------------------------------------------------------------------------------
Hearing convened through Video Conferencing:
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Advocates:
M.K. Tripathi,Advocate General

O R D E R (ORAL)

(26.08.2021)

Per: 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 10.01.2011 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.

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.

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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 imp

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