# L.K. Khurana v. State of U.P. & Ors

- **Citation:** (2015) 2 ILRA 576
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-04-22
- **Case number:** C.M.W.P. (PIL) No. 15255 of 2015
- **Bench:** Dr. Dhananjaya Yeshwant Chandrachud, C.J. Manoj Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/l-k-khurana-v-state-of-u-p-ors-43160
- **Pages:** 6

## Headnote

Constitution
of
India,
Art.-226-Public
Interest Litigation-Proposal by development
authority-converting the park into multilevel
car parking complex-open space being lungs
of urban area-local authorities to protect the
right of citizens-not to violate-against the
2 All] L.K. Khurana Vs. State of U.P. & Ors
577
statutory provisions-authorities to find out
alternative space for parking facility-petition
disposed of.
Held: Para-6
In our view, the efforts on part the part of
the Meerut Development Authority as well
as the Nagar Nigam to convert an open
space which is used for recreation including
by morning walkers into a multi level car
parking facility, cannot be countenanced.
These areas are the lungs of the urban
areas. The counter affidavit filed by the
Nagar Nigam seems to take a casual view of
the urbanisation of the city of Meerut. What
the Commissioner of the Nagar Nigam has
clearly ignored, is the duty of the Nagar
Nigam to ensure that the right to life of the
citizens of the city, which is protected by
Article 21 of the Constitution, is not violated
by depriving the citizens of the use of open
spaces. Constructing a multi level car
parking facility and expecting citizens to
use the terrace of a concrete structure as a
play ground and as a park would be
travesty of urban planning. A citizen has
every right to utilise a park in its
conventional form. As regards open spaces,
the right of a citizen to use them, cannot be
abrogated
by
expecting
all
citizens,
irrespective of age or disabilities to utilise
the top floor or terrace of a constructed
building, as recreation. This simply cannot
be acceptable. Walking on the terrace of a
multi storeyed building is no substitute for
being rooted to the earth. We express the
deep concern of the Court about the
manner in which public authorities are
eying the few remaining open spaces in
urban areas for commercial development.
The need of citizens to a holistic pattern of
life in the urban areas cannot be sacrificed
at the altar of human avarice and greed.
Rapacious urban sprawls will destroy the
remaining green areas, if unchecked.
Case Law discussed:
AIR 1991 (SC) 1902; AIR 1996 SC 253; AIR
1999 SC 2468.

## Text

576
 INDIAN LAW REPORTS ALLAHABAD SERIES
legislation
cannot
abrogate
the
constitutional power of judicial review
that is vested in the Supreme Court under
Article 32 and in the High Courts under
Article 226;
(iii) The Armed Forces Tribunal Act,
2007 does not contain, either expressly or
by necessary implication, any exclusion
of the power of judicial review that is
conferred upon the Supreme Court under
Article 32 or upon the High Courts under
Article 226. The legislation in fact
contains a statutory recognition in Section
14 that the jurisdiction which is conferred
upon the Armed Forces Tribunal is a
jurisdiction in relation to service matters
as defined in Section 3(o) as was
exercisable by all courts and tribunals
immediately before the appointed day,
save
and
except
the
jurisdiction
exercisable by the Supreme Court and the
High Courts;
(iv) Having said this, it needs to be
emphasised
that
the
existence
of
jurisdiction and the nature of its exercise
have
distinct
connotations
in
constitutional law. The Armed Forces
Tribunal is constituted by legislation
which provides for a specialized and
efficacious administration of justice in
matters falling within its jurisdiction
under the provisions of the Act. This is
coupled with the need to maintain
discipline in the Armed Forces;
(v) The Armed Forces Tribunal is a
court of first instance and ordinarily,
matters which fall within the purview of
its jurisdiction have to proceed for
adjudication before the Tribunal and the
Tribunal alone. Against the decision of
the Tribunal, there is a statutory remedy
of an appeal which is provided under
Sections 30 and 31 to the Supreme Court;
(vi) Since a statutory remedy of an
appeal is provided, the principles which
are well established for the exercise of the
jurisdiction under Article 226, would
warrant that the High Court should be
circumspect
and
careful
while
determining as to whether any case for the
exercise of jurisdiction under Article 226
of the Constitution is made out;
(vii) The jurisdiction under Article
226 has not been abrogated as it could not
have been, being a basic and essential
feature of the Constitution.
74. In the circumstances, the
questions of law which have been framed
are answered in the aforesaid terms. The
reference to the Full Bench shall
accordingly stand disposed of. The writ
petition shall now be placed before the
Division Bench for disposal in the light of
this judgment.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.04.2015
BEFORE
THE HON'BLE DR. DHANANJAYA YESHWANT
CHANDRACHUD, C.J.
THE HON'BLE MANOJ KUMAR GUPTA, J.
C.M.W.P. (PIL) No. 15255 of 2015
L.K. Khurana
 ...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri Shams Uz Zaman
Counsel for the Respondents:
C.S.C., Sri B. Dayal, Sri Tabish Sheikh
Constitution
of
India,
Art.-226-Public
Interest Litigation-Proposal by development
authority-converting the park into multilevel
car parking complex-open space being lungs
of urban area-local authorities to protect the
right of citizens-not to violate-against the
2 All] L.K. Khurana Vs. State of U.P. & Ors
577
statutory provisions-authorities to find out
alternative space for parking facility-petition
disposed of.
Held: Para-6
In our view, the efforts on part the part of
the Meerut Development Authority as well
as the Nagar Nigam to convert an open
space which is used for recreation including
by morning walkers into a multi level car
parking facility, cannot be countenanced.
These areas are the lungs of the urban
areas. The counter affidavit filed by the
Nagar Nigam seems to take a casual view of
the urbanisation of the city of Meerut. What
the Commissioner of the Nagar Nigam has
clearly ignored, is the duty of the Nagar
Nigam to ensure that the right to life of the
citizens of the city, which is protected by
Article 21 of the Constitution, is not violated
by depriving the citizens of the use of open
spaces. Constructing a multi level car
parking facility and expecting citizens to
use the terrace of a concrete structure as a
play ground and as a park would be
travesty of urban planning. A citizen has
every right to utilise a park in its
conventional form. As regards open spaces,
the right of a citizen to use them, cannot be
abrogated
by
expecting
all
citizens,
irrespective of age or disabilities to utilise
the top floor or terrace of a constructed
building, as recreation. This simply cannot
be acceptable. Walking on the terrace of a
multi storeyed building is no substitute for
being rooted to the earth. We express the
deep concern of the Court about the
manner in which public authorities are
eying the few remaining open spaces in
urban areas for commercial development.
The need of citizens to a holistic pattern of
life in the urban areas cannot be sacrificed
at the altar of human avarice and greed.
Rapacious urban sprawls will destroy the
remaining green areas, if unchecked.
Case Law discussed:
AIR 1991 (SC) 1902; AIR 1996 SC 253; AIR
1999 SC 2468.
(Delivered by Hon'ble Dr. Dhananjaya
Yeshwant Chandrachud, C.J.)
1. In the city of Meerut, there is an
area called the Town Hall and Gandhi
Park; the area is used by morning walkers
and it is not in dispute that it is the only
open area available in the vicinity. A
Committee
consisting
of
the
Chief
Engineer of the Meerut Development
Authority, Meerut, the Chief Engineer of
the Nagar Nigam, Meerut and a member
of the Development Authority resolved on
23 January, 2015 to construct a multi
level parking facility in the area of the
park and to develop a park on the roof top
of the parking facility. The existing park
is also known as Gandhi Park as a statue
of the Father of the Nation, Mahatma
Gandhi, is installed in it. The statue of
Mahatma Gandhi is sought to be relocated towards the park near the main
gate of the Town Hall, in the process of
redeveloping the area into a multi level
car parking facility. The petition, which
has been filed in public interest, calls into
question the legality of the proposed redevelopment.
2. Two counter affidavits have been
filed in response to the petition. The Vice
Chairperson of the Meerut Development
Authority has stated in his counter that
there was an acute shortage of parking
space for vehicles and hence, a decision
was taken to select the present location
for the construction of a multi level car
parking facility. The counter states that on
the top floor of the multi level car parking
facility, a park and play ground would be
developed and two heavy lifts would be
provided for transporting people to the top
floor of the multi level car parking
facility. However, the affidavit fairly
states that in the event, this Court holds
that it would not be proper to construct a
multi level car parking facility, having
due regard to the environmental needs of
578
 INDIAN LAW REPORTS ALLAHABAD SERIES
the area, the Committee would find out
some other place for the construction of a
multi level car parking facility.
3. A counter affidavit has been filed
by the Commissioner of the Nagar
Nigam. According to the counter, the area
of the Town Hall, which ad-measures
7200 square meters, is not recorded as a
park in the revenue records, but the land
is being used as open area for the Town
Hall. The counter admits that the land
adjacent to the Town Hall is being used in
the interest of the general public. The
submission of the Nagar Nigam is that a
decision has been taken to construct a
multi level car parking facility at the
Town Hall, since it is situated in the
centre of the city and is of "great interest
to the public at large".
4. From the affidavits filed in the
present proceedings, it is clear that the
area is recorded as a Town Hall in the
revenue record. What is also not in
dispute is the existence of the park
adjoining the statue of Mahatma Gandhi.
Again, what is not in dispute before the
Court, is that the area is an open space
and is being used as such by the general
public as a recreation space including by
morning walkers. There is no dispute
about the factual position that there is no
other open area in the vicinity, which
would subserve the purpose.
5. The Supreme Court has in a line of
authority, beginning with the decision in
Bangalore
Medical
Trust
v.
B.S.
Muddappa1 taken a serious view of the
violation
of
urban
planning
norms
resulting in a diversion of public parks
and open spaces for alien purposes. In
Bangalore Medical Trust, a nursing home
was sought to be situated on a public
park. Holding that this was impermissible,
the Supreme Court observed as follows:
"(23). The scheme is meant for the
reasonable
accomplishment
of
the
statutory object which is to promote the
orderly development of the city of
Bangalore and adjoining areas and to
preserve open spaces by reserving public
parks and playgrounds with a view to
protecting the residents from the illeffects of urbanisation. It was meant for
the development of the city in a way that
maximum space is provided for the
benefit of the public at large for
recreation, enjoyment, 'ventilation' and
fresh air. This is clear from the Act itself
as it originally stood. The amendments
inserting Sections 16(1)(d), 38A and other
provisions are clarificatory of this object.
The very purpose of the BDA, as a
statutory authority, is to promote the
healthy growth and development of the
city of Bangalore and the area adjacent
thereto. The legislative intent has always
been the promotion and enhancement of
the quality of life by preservation of the
character and desirable aesthetic features
of the city. The subsequent amendments
are not a deviation from or alteration of
the original legislative intent, but only an
elucidation or affirmation of the same.
(24). Protection of the environment,
open spaces for recreation and fresh air,
playgrounds 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 playgrounds cannot
2 All] L.K. Khurana Vs. State of U.P. & Ors
579
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".
Again, the Supreme Court observed
as follows:
"(37)......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 essentiality a
commercial venture, a profit oriented
industry. Service may be its moto 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
blue print without reserving space for it.
Emphasis on open air and greenery has
multiplied and the city or town planning
or development acts of different States
require even private house-owners to
leave open space in front and back for
lawn and fresh air. In 1984 the BD Act
itself provided for reservation of not less
than fifteen per cent of the total area of
the lay out in a development scheme for
public parks and playgrounds the sale and
disposition of which is prohibited under
Section 38A of the Act. Absence of open
space and public park, in present day
when urbanisation 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
into a private nursing home social welfare
was being promoted was being oblivious
of true character of the two and their
utility."
A similar view was taken in another
decision of the Supreme Court in G.N.
Khajuria
v.
Delhi
Development
Authority2. While holding that the
diversion of a space meant for a park into
a nursery school is impermissible, the
Supreme Court observed as follows:
"(8). We, therefore, hold that the land
which was allotted to respondent No.2
was part of a park. We further hold that it
was not open to the DDA to carve out any
space meant for park for a nursery school.
We are of the considered view that the
allotment in favour of respondent No.2
was misuse of power, for reasons which
need not be adverted. It is, therefore, a fit
case, according to us, where the allotment
in favour of respondent No.2 should be
cancelled and we order accordingly. The
fact that respondent No.2. has put up up
some structure stated to be permanent by
his counsel is not relevant, as the same
has been done on a plot of land allotted to
it in contravention of law. As to the
submission that dislocation from the
present site would cause difficulty to the
tiny tots, we would observe that the same
580
 INDIAN LAW REPORTS ALLAHABAD SERIES
has been advanced only to get sympathy
from the Court inasmuch as children, for
whom the nursery school is meant, would
travel to any other nearby place where
such a school would be set up either by
respondent No.2 or by any other body."
In M.I. Builders Pvt. Ltd. v. Radhey
Shyam Sahu3 a decision had been taken
by the Lucknow Nagar Mahapalika,
permitting a builder to construct an
underground shopping complex in the
Jhandewala Park situated in Aminabad
market, Lucknow. A learned Single Judge
of this Court held the decision to be
unlawful and a mandamus was issued to
the Lucknow Nagar Mahapalika to restore
back the park to its original position.
While
considering
the
matter,
the
Supreme Court observed as follows:
"51. Jhandewala Park, the park in
question, has been in existence for a great
number of years. It is situated in the heart
of Aminabad, a bustling commercialcum-residential locality in the city of
Lucknow. The park is of historical
importance. Because of the construction
of underground shopping complex and
parking it may still have the appearance
of a park with grass grown and path laid
but it has lost the ingredients of a park
inasmuch as no plantation now can be
grown. Trees cannot be planted and rather
while making underground construction
many trees have been cut. Now it is more
like a terrace park. Qualitatively it may
still be a park but it is certainly a park of
different nature. By construction of
underground
shopping
complex
irreversible changes have been made. It
was submitted that the park was acquired
by the State Government in the year 1913
and was given to the Mahapalika for its
management.
This
has
not
been
controverted. Under Section 114 of the
Act it is the obligatory duty of the
Mahapalika to maintain public places,
parks and plant trees. By allowing
underground construction Mahapalika has
deprived itself of its obligatory duties to
maintain the park which cannot be
permitted. But then one of the obligatory
functions
of
the
Mahapalika
under
Section 114 is also to construct and
maintain parking lots. To that extent some
area of the park could be used for the
purpose of constructing underground
parking lot. But that can only be done
after proper study has been made of the
locality,
including
density
of
the
population living in the area, the floating
population and other certain relevant
considerations. This study was never
done. Mahapalika is the trustee for the
proper management of the park. When
true nature of the park, as it existed, is
destroyed it would be violative of the
doctrine of public trust as expounded by
this Court in Span Resort Case (1997 (1)
SCC 388). Public Trust doctrine is part of
Indian law. In that case the respondent
who had constructed a motel located at
the bank of river Beas interfered with the
natural flow of the river. This Court said
that the issue presented in that case
illustrated "the classic struggle between
those members of the public who would
preserve our rivers, forests, parks and
open lands in their pristine purity and
those
charged
with
administrative
responsibilities who, under the pressures
of the changing needs of an increasingly
complex society, find it necessary to
encroach to some extent upon open lands
heretofore
considered
inviolate
to
change".
6. In our view, the efforts on part the
part
of
the
Meerut
Development
2 All] State of U.P. Vs. Vijay Prakash & Anr.
581
Authority as well as the Nagar Nigam to
convert an open space which is used for
recreation including by morning walkers
into a multi level car parking facility,
cannot be countenanced. These areas are
the lungs of the urban areas. The counter
affidavit filed by the Nagar Nigam seems
to take a casual view of the urbanisation
of the city of Meerut. What the
Commissioner of the Nagar Nigam has
clearly ignored, is the duty of the Nagar
Nigam to ensure that the right to life of
the citizens of the city, which is protected
by Article 21 of the Constitution, is not
violated by depriving the citizens of the
use of open spaces. Constructing a multi
level car parking facility and expecting
citizens to use the terrace of a concrete
structure as a play ground and as a park
would be travesty of urban planning. A
citizen has every right to utilise a park in
its conventional form. As regards open
spaces, the right of a citizen to use them,
cannot be abrogated by expecting all
citizens, irrespective of age or disabilities
to utilise the top floor or terrace of a
constructed building, as recreation. This
simply cannot be acceptable. Walking on
the terrace of a multi storeyed building is
no substitute for being rooted to the earth.
We express the deep concern of the Court
about the manner in which public
authorities are eying the few remaining
open
spaces
in
urban
areas
for
commercial development. The need of
citizens to a holistic pattern of life in the
urban areas cannot be sacrificed at the
altar of human avarice and greed.
Rapacious urban sprawls will destroy the
remaining green areas, if unchecked.
7. In the circumstances, we hold and
declare that the proposal for the redevelopment of the area of Town Hall and
its appurtenant park into a multi level car
parking facility is against the intent of the
statutory
provisions
and
cannot
be
approved.
The
Meerut
Development
Authority shall in terms of the statement
made in the affidavit, be at liberty to
pursue any alternative proposal for
constructing a multi level car parking
facility. The authorities are directed to
maintain the area of the park as a park.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.04.2015
BEFORE
THE HON'BLE SURYA PRAKASH
KESARWANI, J.
C.M.W.P. No. 15739 of 2012 alongwith
W.P. No. 15740 of 2012; W.P. No. 15741
of 2012
State of U.P.
 ...Petitioner
Versus
Vijay Prakash & Anr.
...Respondents
Counsel for the Petitioner:
Sri Shekhar Kumar, Dr. Madhu Tandon,
S.C.
Counsel for the Respondents:
Sri Jamal Khan
Constitution of India, 'Back Wages'-Time
bound
appointment-automatically
service
come to an end-refer after 17 years-award
regarding reinstatement with back wageswithout discussion of retrenchment notice and
gainfully employment during retrenchment
period-held-award not sustainable-direction
for fresh consideration given.
Held: Para-13
No finding has been recorded in the
impugned award either with respect to
notice of retrenchment as admitted by the
respondent-workmen themselves or on the
point of completion of continuous service of
240 days by them in any calender year.