# Ram Bhajan Singh v. State of U.P. & Ors

- **Citation:** (2020) 12 ILRA 459
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020
- **Case number:** Writ - C No. 15691 of 2020
- **Bench:** Abhinava Upadhya, Prakash Padia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-bhajan-singh-v-state-of-u-p-ors-45616
- **Pages:** 14

## Headnote

(A) Civil law - Uttar Pradesh Parks, Playgrounds and Open Spaces (Preservation and
Regulation) Act, 1975 - Section 2, Section 3,
Sections 5 - Variation or revocation of list,
Section 6 - Prohibition of the use of parks,
play grounds and open spaces in certain
cases, Section 7 - Maintenance of parks,
playground and open spaces and Section 8 -
Prohibition of construction of buildings, etc -
The Uttar Pradesh Parks, Playgrounds and
460 INDIAN LAW REPORTS ALLAHABAD SERIES
Open Spaces (Regulation and Control)
Rules, 2005 - U.P. Urban Planning and
Development Act, 1973 - maintenance of
Parks, Playgrounds and Open Spaces is a
statutory obligation .

(B) Constitution of India - Article 21 - Right
to live - includes the right of enjoyment of
pollution free water and air for full
enjoyment of life - Article 48-A - State is
obliged to endeavor, protect and improve
the environment of the country - Article 51A clause (g) in Part IV-A - it shall be the
duty of every citizen of India to protect and
improve the natural environment including
forests, lakes, rivers and wild life and to
have compassion for living creatures . (Para -
18,19,20)

(C) Legitimation expection - Doctrine of the
public trust (based on ancient theory of
Roman Empire) - certain common property
such as lands, waters and airs were held by
the Government in trusteeship for smooth
and unimpaired use of public - Air, sea,
waters
and
the
forests
have
great
importance to the people - wholly unjustified
to make them a subject of private ownership
- Doctrine enjoins upon the Government to
protect
the
natural
resources
for
the
enjoyment of the general public rather than
to permit their use for private ownership or
commercial purposes. (Para - 25)

Challenging the action of the respondents for
conversion of public park, situated in front of
the house of the petitioner, into public parking
area, which according to the petitioner is totally
illegal and not permissible under law. (Para - 2)

Held: - Competent Authority is directed to
ensure that there is no encroachment or
keeping or throwing garbage etc. in Park. It
should be maintained and cleaned in a proper
manner so as to be utilized as a Park by people
in general. (Para - 31)

Writ Petition disposed of. (E-7)

List of Cases cited:-

## Text

_Characters 0–39,892 of 47,881. This is a partial read: ask again with offset=39892 for what follows._

12 All. Ram Bhajan Singh Vs. State of U.P. & Ors.
459
evaded by the contractors either by not
purchasing the material from the mining
leaseholders
or
obtaining
it
from
unauthorized excavators. In case, if the
contractor purchases the material from
unauthorized person who has not paid
royalty, there would be loss to the public
exchequer and the circular was issued to
check evasion or loss to the public
exchequer. Such condition cannot be said
to be unreasonable and arbitrary and
therefore no prejudice could be said to have
been caused to the contractors.

12.
Learned
counsel
for
the
respondents contended that the royalty can be
levied in respect of the mineral removed or
consumed from lease areas at the rates
prescribed
in
Mines
and
Mineral
(Development and Regulation) Act 1957 and
any such levy can only be by a legislation and
not by any circular and the impugned circular
dated 06.10.2008 which is in the nature of levy
of royalty was rightly quashed by the High
Court and the impugned orders warrant no
interference. The clauses stipulating deduction
of royalty payable to the mineral department at
the rates stipulated in the circular cannot be
said to be a levy. As noticed earlier, the
circular stipulates that the royalty is deducted
at the rates prescribed in the circular, on
production of bills by the contractor to the
mining department showing that they had
purchased the royalty paid mineral from the
leaseholder and thus it only provides the
procedure for collection of royalty. The
circular only provides the procedure for
payment of royalty for the minerals used by
the contractors who have been given the works
contract by the government department. The
High Court did not keep in view the object of
the circular and erred in quashing the
impugned circular. "

16. Learned counsel for the side
opposite has, otherwise, made it clear as to
why deduction, to the extent of five times
of the royalty amount, has been made. It is
taken to be price of the mineral used
without payment of royalty. The circular
has been issued for justifiable purposes and
otherwise, petitioner could not show
reasons to justify delay in challenge to the
order issued in the year 2015, as for that,
petition has been filed in the year 2020. It
more so, when the petitioner is an "A" class
Contractor undertaking the work of the
Department regularly.

17. For all the reasons given above,
the writ petition fails and is dismissed.
----------
(2020)12ILR A459
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.10.2020

BEFORE

THE HON'BLE ABHINAVA UPADHYA, J.
THE HON'BLE PRAKASH PADIA, J.

Writ - C No. 15691 of 2020

Ram Bhajan Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Prabhat Kumar Singh, Sri Anil Kumar
Tiwari

Counsel for the Respondents:
C.S.C., Sri Brijesh Kumar Mishra

(A) Civil law - Uttar Pradesh Parks, Playgrounds and Open Spaces (Preservation and
Regulation) Act, 1975 - Section 2, Section 3,
Sections 5 - Variation or revocation of list,
Section 6 - Prohibition of the use of parks,
play grounds and open spaces in certain
cases, Section 7 - Maintenance of parks,
playground and open spaces and Section 8 -
Prohibition of construction of buildings, etc -
The Uttar Pradesh Parks, Playgrounds and
460 INDIAN LAW REPORTS ALLAHABAD SERIES
Open Spaces (Regulation and Control)
Rules, 2005 - U.P. Urban Planning and
Development Act, 1973 - maintenance of
Parks, Playgrounds and Open Spaces is a
statutory obligation .

(B) Constitution of India - Article 21 - Right
to live - includes the right of enjoyment of
pollution free water and air for full
enjoyment of life - Article 48-A - State is
obliged to endeavor, protect and improve
the environment of the country - Article 51A clause (g) in Part IV-A - it shall be the
duty of every citizen of India to protect and
improve the natural environment including
forests, lakes, rivers and wild life and to
have compassion for living creatures . (Para -
18,19,20)

(C) Legitimation expection - Doctrine of the
public trust (based on ancient theory of
Roman Empire) - certain common property
such as lands, waters and airs were held by
the Government in trusteeship for smooth
and unimpaired use of public - Air, sea,
waters
and
the
forests
have
great
importance to the people - wholly unjustified
to make them a subject of private ownership
- Doctrine enjoins upon the Government to
protect
the
natural
resources
for
the
enjoyment of the general public rather than
to permit their use for private ownership or
commercial purposes. (Para - 25)

Challenging the action of the respondents for
conversion of public park, situated in front of
the house of the petitioner, into public parking
area, which according to the petitioner is totally
illegal and not permissible under law. (Para - 2)

Held: - Competent Authority is directed to
ensure that there is no encroachment or
keeping or throwing garbage etc. in Park. It
should be maintained and cleaned in a proper
manner so as to be utilized as a Park by people
in general. (Para - 31)

Writ Petition disposed of. (E-7)

List of Cases cited:-

1. Bangalore Medical Trust Vs B.S. Muddappa &
ors. , (1991) 4 SCC 54.
2. Animal & Environment Legal Defence Fund Vs
U.O.I. & ors. , (1997) 3 SCC 549

3. Agins Vs City of Tiburon , 447 us 255 (1980)

4. M.I. Builders Pvt. Ltd Vs Radhey Shyam Sahu
& ors. , AIR 1999 Supreme Court page 2468

5. T. Damodhar Rao & ors. Vs The Special
Officer, Municipal Corporation of Hyderabad &
ors., AIR 1987 AP 17

6. M.C. Mehta Vs Kamal Nath & ors. , (1997) 1
SCC 388

7. Vellore Citizens Welfare Forum Vs U.O.I. &
ors. , AIR 1996 SC 2715

8. M.C. Mehta Vs U.O.I., (1987) Supp. SCC 131

(Delivered by Hon'ble Prakash Padia, J.)

1. Heard Sri Prabhat Kumar Singh,
learned counsel for the petitioner and
learned Standing Counsel for the State
respondents.

2. The present writ petition has been
filed
challenging
the
action
of
the
respondents for conversion of public park,
situated in front of the house of the
petitioner, i.e., House No. C-92, Sector 11,
Vijay Nagar, Ghaziabad, into public
parking area, which according to the
petitioner
is
totally
illegal
and
not
permissible under law.

3. Learned Standing Counsel was
earlier granted time to seek instructions by
an order dated 07.10.2020 and upon written
instructions, furnished by the District
Magistrate, Ghaziabad, he submits that the
status of the park in question has not been
changed neither the public park is going to
be converted into parking area.

4. In the Uttar Pradesh Parks, Playgrounds and Open Spaces (Preservation
12 All. Ram Bhajan Singh Vs. State of U.P. & Ors.
461
and Regulation) Act, 1975 (for short, 'U.P.
Act 1975') the word 'Park' is defined as a
piece of land on which there are no
buildings or of which not more than 1 /
20th part is covered with buildings and the
whole or the remainder of which is laid out
as gardens with trees, plant or flower beds
or as a lawn or as meadows and maintained
as a place for the resort of the public for
recreation, air or light. Though this
definition in view of Section 2 of the 1975
Act, shall apply only to the areas included
in
every
Nagar
Mahapalika,
every
Municipality or Notified Area and every
Town Area and to such other areas to
which it is extended by the State
Government by notification in the Gazette,
there will be no violation of law if we
resort to this definition to the case in hand.
No doubt, the definition given in a
particular enactment cannot be read down
into another enactment. But this rule is not
invariable, since the word 'park' is used
conceptually and contextually in the 1973
Act, namely, U.P. Urban Planning and
Development Act, 1973, the same way as it
is used in the 1975 Act, defining the term
'park, the same may be extended to 1973
Act, also. Parks owned and maintained by
Nagar Mahapalika, Notified Area or Town
Area are no more different from the parks
belonging to the Development Authority
which is nothing but a local authority
constituted under the Act of 1973. A park
must have considerable area covered by
garden with trees, plants or flower beds or
lawn, and should have been maintained as a
place for the resort of the public for
recreation, air or light. Wholly undeveloped
open space can never be said to have the
characteristic of a park. A park must have a
beautiful garden with a lot of trees on its
periphery to preserve and protect the
environment and from aesthetic point of
view, it must have beautiful plants or
flower beds and well maintained lawns.

5. So far as preservation and
maintenance of Park is concerned, there is
no doubt that Authorities are bound to
preserve and maintain Public Parks and to
ensure that there should not be any
encroachment, collection of garbage etc.
There should be nothing that may hinder
the use of place as Park by public at large.
This is applicable not only for Public Parks
but Playgrounds and Open Spaces also.

6. Uttar Pradesh legislature has taken
care of these places vide the U.P. Act, 1975
which received assent of the President on
28.10.1975 and published in U.P. Gazette,
(Extraordinary) on 28.10.1975.

7. "Public Parks", "Playgrounds" and
"Open Spaces" are defined in U.P. Act,
1975 in Section 2 (a), (b) and (c) of U.P.
Act, 1975, which read as under :-

"2(a) "open space" means any
land (whether enclosed or not), belonging
to the State Government or any local
authority, on which there are no buildings
or of which not more than one-twentieth
part is covered with buildings, and whole
or the remainder of which is used for
purposes of recreation, air or light;

(b) "park" means a piece of land
on which there are no buildings of which
not more than one-twentieth part is covered
with or buildings, and the whole or the
remainder of which is laid out as a garden
with trees, plants or flower-beds or as a
lawn or as a meadow and maintained as a
place for the resort of the public for
recreation, air or light;

(c) "playground" means a piece
of land adapted for the purpose of play,
462 INDIAN LAW REPORTS ALLAHABAD SERIES
game or sport and used by any educational
institution or club or other association;"

8. Section 3 of U.P. Act, 1975
requires maintenance of list with plans and
maps of all Parks, Playgrounds and Open
Spaces in such areas, prepared and
published by such Authorities within such
time and in such a manner as may be
prescribed and variation in the list is
permitted by Sections 4 and 5 of U.P. Act,
1975 respectively. Then, nature of statutory
obligation, with regard to preservation and
regulation of Parks, Playgrounds and Open
Space are provided.

9. Sections 5, 6, 7 and 8 of U.P. Act,
1975, read as under :-

"5. Variation or revocation of list
- (1) The State Government may at any
time, either suo motu, or at the instance of
a local authority, or of any person
interested, add to, vary or revoke a list
approved under Section 3 or revised under
Section 4.
(2) Before making any such addition,
variation
or
revocation,
the
State
Government
shall
publish,
in
the
prescribed manner, a draft of such
addition, variation or revocation together
with a notice specifying a date on or after
which such draft will be taken into
consideration and shall consider such
objections and suggestions as may be
received in respect of such draft before the
date so specified.

6. Prohibition of the use of
parks, play grounds and open spaces in
certain cases.- No park, playground or
open space, specified in the list published
under Section 3 or Section 4, as the case
may be, shall except with the previous
sanction of the prescribed authority, be
used for any purpose other than the
purpose for which it was used on the date
immediately
preceding,
the
date
of
commencement of this Act.

7.
Maintenance
of
parks,
playground and open spaces.- The local
authority shall maintain in a clean and
proper condition all parks, playgrounds
and open spaces belonging to or vested in
it and included in the list published under
Section 3 or Section 4.

8. Prohibition of construction of
buildings, etc.- No person shall, except
with the previous sanction of the prescribed
authority, construct any building or put up
any structure likely to affect the utility of
the park, playground or open space
specified in the list published under Section
3 or Section 4."

10. The owner of Parks, Playgrounds
and Open Spaces etc., whether it is Local
Authority or others but included in the list
of Parks etc., has to perform such statutory
duties which can be enforced by Prescribed
Authority in the manner as provided in
Section 9 of U.P. Act, 1975.

11. If there is any entry or stay of any
unauthorized person in Park, Authority, as
prescribed in Rules, it is obliged to remove
such person from such Park, Playground
and Open Space etc taking help of the
Police Force or any other persons on behalf
of State Government or Local Body, as the
case may be.

12. Throwing of rubbish etc. in Parks,
Playgrounds and Open Spaces is an offence,
for which penalty is prescribed under Section
12 of U.P. Act, 1975, which is imprisonment
for a term which may extend upto one month
or with fine or with both.

13. Section 14 of U.P. Act, 1975
confers power upon State Government to
12 All. Ram Bhajan Singh Vs. State of U.P. & Ors.
463
frame Rules in pursuance whereto "The
Uttar Pradesh Parks, Playgrounds and Open
Spaces (Regulation and Control) Rules,
2005 (hereinafter referred to as 'Rules,
2005') have been framed. "Prescribed
Authority" has been defined in Rule 2 (c)
of Rules, 2005, which reads as under :-

"prescribed authority' means an
officer or a body corporate appointed by
the State Government in this behalf by
notification in the Gazette and if no such
officer or body corporate is appointed, the
Commissioner Division, in which the
Corporation or the District Magistrate of
the district in which the Municipal Board
or the Nagar Panchayat is situated."

14. Rules, 2005 by virtue of Rules
1(2) are applicable to every Municipal
Corporation,
Municipal
Board,
Nagar
Panchayat in State of U.P. and such other
areas as State Government may, from time
to time, by notification in Gazette specify.
Rule 7 of Rules, 2005 describes various
prohibitions
in
respect
of
Parks,
Playgrounds and Open Spaces and it reads
as under :-

"7. Prohibition - (1) No person
shall except with the written permission of
Prescribed
Authority
or
any
officer
authorised in this behalf setup any wall,
fence, rail, post, step, booth or other
structure whether fixed or movable and
whether of a permanent or a temporary
nature, or any fixture in or upon any
park, playground and open spaces so as to
form
an
obstruction
to,
or
an
encroachment upon or to occupy any
portion of such park, playground and open
space.

(2) No person, owner, manager
or agent shall except with the permission
of local body or any officer authorised in
this behalf shall be allowed to enter any
any class of animal to any park,
playground or open space.

(3) No park, playground or open
space specified in the list approved by
Prescribed Authority under rule 5 shall
except with the written permission of
Prescribed
Authority
or
any
officer
authorized by it in this behalf, be used for
any purpose other than the purpose for
which it has been made for.

(4) No person shall be allowed to
affect the utility of the parks, playgrounds
or open spaces specified in the approved
list.

(5)
No
person
shall
throw
rubbish, stack debris, get over railing or
fence, steal or damage fruits, flowers,
leaves, plants, grass, fixtures, tools or
illegal and immoral conduct."

15. Rule 8 of Rules, 2005 lays down
obligation
upon
Local
Authority
to
maintain all Parks, Playgrounds or Open
Spaces in a clean, proper and satisfactory
condition. Clauses (a) and (b) of Rule 8 of
Rules, 2005, describe various maintenance
works to be observed in respect of Parks,
Playgrounds and Open Spaces, and it reads
as under :-

"8.
Maintenance
of
Park,
Playground of Open Spaces. - (1) The
local body concerned shall maintain all
parks,
playgrounds
or
open
spaces
belonging to or vested in it and included in
the list approved and published under rule
5 in a clean, proper and satisfactory
condition.

(2) The parks, playgrounds or
open spaces developed by Development
authorities,
housing
boards,
housing
societies, builders and such other agencies,
but not handed over to local body, shall be
maintained by them in a clean, properly
464 INDIAN LAW REPORTS ALLAHABAD SERIES
and to the satisfaction of the local body
concerned.

(3) In case of parks, playgrounds
or open spaces not vested in a local
authority, but included in the list published
under rule 5, the Prescribed Authority,
may, by notice, require the owner or
occupier of such parks; playgrounds or
open spaces -

(a) to maintain such parks,
playgrounds or open spaces in a clean and
proper condition; or

(b) to remove or alter any
projection, encroachment or obstruction in
or over in such park, playground or open
space or to make within a period specified
in the notice such repairs to any buildings
in such park playground or open space as
Prescribed
Authority
may
consider
necessary."

16. Rule 10 of Rules, 2005 talks of
removal of encroachment, which reads as
under :-

"(10) Removal of Encroachments.-
The prescribed authority or any officer
authorised by it in this behalf may without
notice cause to be removed any wall, fence,
railing, post, step, booth or other structures
whether fixed or movable and whether of
permanent or of temporary nature or any
fixture which is erected or setup in or upon any
park, playground or open space."

17. Thus, maintenance of Parks,
Playgrounds and Open Spaces is a statutory
obligation. The same have to be maintained
without any encroachment and without the
presence of any unauthorized persons
therein and in clean and proper manner.
Penal provisions are available in statute and
also provisions for enforcement of various
duties in respect of Parks, Playgrounds and
Open Spaces etc.

18. Under Article 48-A of the
Constitution, the State is obliged to
endeavour,
protect
and
improve
the
environment of the country. To effectuate
the directive principles there has been a
spate of legislation aiming at preservation
and protection of the environment. The
respondents having failed to develop the
spaces earmarked for Parks for several
years and have thus belied all the cherished
hopes of the citizens. The underlying idea
behind the constitution of the Development
Authorities were to accelerate the pace of
development and make the town in the
State as attractive as possible. It is
unfortunate that the respondents sat tight
over the development of the Parks and
remained absolutely inactive for years.

19. Right to live is a fundamental
right under Article 21 of the Constitution
and it includes the right of enjoyment of
pollution free water and air for full
enjoyment of life.

20. Article 51-A clause (g) in Part IVA introduced by the Constitution (42nd
Amendment) Act, 1976, with effect from
3rd
January,
1977,
enshrined
as
a
fundamental duty and mandates that it shall
be the duty of every citizen of India to
protect
and
improve
the
natural
environment including forests, lakes, rivers
and wild life and to have compassion for
living creatures. The last clause (j) of
Article 51-A of the Constitution further
mandates that it shall be the duty of every
citizen of India to strive towards excellence
in all spheres of individual and collective
activity, so that the nation constantly rises
to
higher
levels
of
endeavour
and
achievement. It is lamentable that the
respondents being a State instrumentality
have
failed
to
discharge
both
the
fundamental duties. Unless an open space
12 All. Ram Bhajan Singh Vs. State of U.P. & Ors.
465
is developed into a full-fledged park having
gardens trees, flower beds, plants, lawn,
promenade etc., the environment will not
improve and therefore the functionaries of
the
Development
Authorities
have
remained grossly negligent in discharging
their fundamental duty enjoined upon them
by clause (g) to Article 51-A of the
Constitution. Equally they have failed to
discharge their duties enshrined under
Article 51A(j). If the functionaries of the
State
show
their
averseness
to
the
developmental
activities,
which
are
assigned to them, then the nation can never
grow
to
the
cherished
heights.
An
ornamental park with well manicured lawns
is not only a source of comfort to the
public, but adds to the beauty of a town, as
jewellery studded with pearls or diamonds
add to the beauty of the person who wears
it. The relevant portion of Article 51-A of
the Constitution of India is quoted below:-

"51A. Fundamental duties - It
shall be the duty of every citizen of India -

(g) to protect and improve the
natural environment including forests,
lakes, rivers and wild life, and to have
compassion for living creatures;

(j) to strive towards excellence in
all spheres of individual and collective
activity so that the nation constantly rises
to
higher
levels
of
endeavor
and
achievement."

21. Public interest requires some areas
to be preserved by means of open spaces of
parks and play grounds, and that there
cannot be any change or action contrary to
legislative intent, as that would be an abuse
of
statutory
powers
vested
in
the
authorities. Once the area had been
reserved, authorities are bound to take steps
to preserve it in that method and manner
only. These spaces are meant for the
common man, and there is a duty cast upon
the authorities to preserve such spaces.
Such matters are of great public concern
and need to be taken care off in the
development scheme. The public interest
requires not only reservation but also
preservation of such parks and open spaces.
In our opinion, such spaces cannot be
permitted, by an action or inaction or
otherwise, to be converted for some other
purpose, and no development contrary to
plan can be permitted.

22. The importance of open spaces for
parks and play grounds is of universal
recognition, and reservation for such places
in development scheme is a legitimate
exercise of statutory power, with the
rationale of protection of the environment
and of reducing ill effects of urbanization.
It is in the public interest to avoid
unnecessary conversion of ''open space
land' to strictly urban uses, as gardens
provide fresh air, thereby protecting against
the resultant impacts of urbanization, such
as pollution etc. Once such a scheme had
been prepared in accordance with the
provisions of
the
Act, by
inaction,
legislative intent could not be permitted to
become a statutory mockery. Government
authorities and officers are bound to
preserve it and to take all steps envisaged
for protection.

23. The Hon'ble Apex Court had
considered the question as to the duty of
the State Authorities to preserve the open
spaces for public parks in the case of
Bangalore
Medical
Trust
vs.
B.S.
Muddappa & Ors. reported in (1991) 4
SCC 54. In the said case, the Court had
considered the question as to whether area
reserved for a public park can be permitted
to be converted for other purposes. The
State Government by an order had allotted
466 INDIAN LAW REPORTS ALLAHABAD SERIES
the area reserved for public parks to a
Medical Trust, for
the purposes of
constructing a hospital.

24. The Hon'ble Apex Court has
pointed out the importance of open spaces
for public parks in Bangalore Medical
Trust's case(supra). Paragraph 23 to 25, 28
and 36 of the aforesaid judgment is
reproduced below:-

"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 play
grounds with a view to protecting the
residents
from
the
ill-effects
of
urbanisation.
It
is
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, 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.

25. Reservation of open spaces
for parks and play grounds is universally
recognised as a legitimate exercise of
statutory power rationally related to the
protection of the residents of the locality
from the ill effects of urbanisation.

28. Any reasonable legislative
attempt bearing a rational relationship to a
permissible state objective in economic and
social planning will be respected by the courts.
A duly approved scheme prepared in
accordance with the provisions of the Act is a
legitimate attempt on the part of the
Government and the statutory authorities to
ensure a quiet place free of dust and din where
children can run about and the aged and the
infirm can rest, breath fresh air and enjoy the
beauty of nature. These provisions are meant
to guarantee a quiet and healthy atmosphere
to suit family needs of persons of all stations.
Any action which tends to defeat that object is
invalid. As stated by the U.S. Supreme Court
in Village of Belle Terre v. Bruce Boraas: {L
Ed p. 804: US P.9):

".... The police power is not
confined to elimination of filth, stench, and
12 All. Ram Bhajan Singh Vs. State of U.P. & Ors.
467
unhealthy places. It is ample to lay out
zones where family values, youth values,
and the blessings of quiet seclusion and
clean air make the area a sanctuary for
people".

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 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 morn 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 given 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, there- fore, 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."

25. It could be legitimately expected
of the authority to take timely steps in
which they have failed. Their inaction
tantamounts to wrongful deprivation of
open spaces/garden to public. The Hon'ble
Apex Court in the case of Animal and
Environment Legal Defence Fund v.
Union of India & Ors. reported in (1997)
3 SCC 549 has laid down that there is duty
cast to preserve the ecology of the forest
area.
The
Hon'ble
Apex
Court has
enunciated the doctrine of the public trust
based on ancient theory of Roman Empire.
Idea of this theory was that certain common
property such as lands, waters and airs
were held by the Government in trusteeship
for smooth and unimpaired use of public.
Air, sea, waters and the forests have such a
great importance to the people that it would
be wholly unjustified to make them a
subject
of
private
ownership.
The
American courts have also in various cases
expanded the concept of this doctrine. The
doctrine enjoins upon the Government to
protect the natural resources for the
enjoyment of the general public rather than
to permit their use for private ownership or
commercial purposes.

26. In the case of Agins vs. City of
Tiburon [447 us 255 (1980)], the Supreme
Court of the United States upheld a zoning
ordinance which provided `... it is in the
468 INDIAN LAW REPORTS ALLAHABAD SERIES
public
interest
to
avoid
unnecessary
conversion of open space land to strictly
urban uses, thereby protecting against the
resultant impacts, such as ...... pollution, ....
destruction of scenic beauty. disturbance of
the ecology and the environment, hazards
related geology, fire and flood, and other
demonstrated
consequences
of
urban
sprawl'. Upholding the ordinance, the Court
said:

".... The State of California has
determined that the development of local openspace plans will discourage the "premature and
unnecessary conversion of open-space land to
urban uses". The specific zoning regulations at
issue are exercises of the city's police power to
protect the residents of Tiburon from the ill-
effects of urbanization. Such governmental
purposes long have been recognized as
legitimate.

....The zoning ordinances benefit
the appellants as well public by serving the
city's interest in assuring careful and
orderly development of residential property
with provision for open-space areas."

27. The Hon'ble Apex Court in the
case of M.I. Builders Pvt. Ltd vs. Radhey
Shyam Sahu and Others reported in AIR
1999 Supreme Court page 2468 was
pleased to hold that the construction of
underground
shopping
complex
and
parking, the permission for which was
granted by the Mahapalika was not correct.
It was held by the Hon'ble Supreme Court
that the aforesaid permission is in violation
of obligatory duties cast by Section 114 on
Mahapalika to maintain parks. It was held
by the Hon'ble Supreme Court that the
aforesaid permission is in violation of
obligatory duties cast by Section 114 on
Mahapalika to maintain parks. The relevant
paragraphs namely paragraph nos. 59 to 61
are quoted herein-below:-

59. 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 commercial-cum-
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
12 All. Ram Bhajan Singh Vs. State of U.P. & Ors.
469
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".

60. In the treatise "Environmental
Law and Policy : Nature, Law, and
Society" by Plater Abrams Goldfarb
(American Casebook series - 1992) under
the
Chapter
on
Fundamental
Environmental Rights, in Section 1 (The
Modern Rediscovery of the Public Trust
Doctrine) it has been noticed that "long
ago there developed in the law of the
Roman Empire a legal theory known as the
Doctrine of the public trust." In America
Public Trust doctrine was applied to public
properties, such as shore-lands and parks.
As to how doctrine works it was stated:
"The scattered evidence, taken together,
suggests that the idea of a public
trusteeship
rests
upon
three
related
principles. First, that certain interests - like
the air and the sea - have such importance
to the citizenry as a whole that it would be
unwise to make them the subject of private
ownership. Second, that they partake so
much of the bounty of nature, rather than of
individual enterprise, that they should be
made freely available to the entire citizenry
without regard to economic status. And,
finally, that it is a principle purpose of
government to promote the interests of the
general public rather than to redistribute
public goods from broad public uses to
restricted private benefit... With reference
to a decision in Illinois Central Railroad
Company v. Illinois (146 U.S. 387 [1892]),
it was stated that the court articulated in
that case the principle that has become the
central substantive thought in public trust
litigation. When a state holds a resource
which is available for the free use of the
general public, a court will look with
considerable
skepticism
upon
any
governmental conduct which is calculated
either to reallocate the resource to more
restricted uses or to subject public uses to
the self-interest of private parties. This
public trust doctrine in our country, it
would appear, has grown from Article 21
of the Constitution.

61. Thus by allowing construction
of underground shopping complex in the
park Mahapalika has violated not only
Section 114 of the Act but also the public
trust doctrine.

28. Andhra Pradesh High Court in
case of T. Damodhar Rao & Ors. v. The
Special Officer, Municipal Corporation
of Hyderabad & Ors., reported in AIR
1987 AP 17 pleased to hold that where the
land was reserved under the approved
development plan for the purpose of
recreational park, a portion of it cannot be
used by the person for whom it was
acquired for construction of residential
houses. Relevant paragraphs 23 and 24 of
the aforesaid judgment are quoted hereinbelow:-

23.
The
objective
of
the
environmental law is to preserve and
protect the nature's gifts to man and
woman such as air, earth and atmosphere
from pollution. Environmental law is based
on the realisation of mankind of the dire
470 INDIAN LAW REPORTS ALLAHABAD SERIES
ophysical necessity to preserve these
invaluable
and
none
too
easily
replenishable gifts of mother nature to man
and his progeny from the reckless wastage
and rapacious appropriation that common
law permits. It is accepted that pollution "is
a show agent of death and if it is continued
the next 30 years as it has been for the last
30, it could become lethal". (See Krishna
Iyer's Pollution and Law). Stockholm
declaration of United Nations on Human
Environment evidences this human anxiety
:-

"The natural resources of the
earth, including the air, water, land, flora
and fauna and especially representative
samples of natural ecosystem, must be
safeguarded for the benefit of present and
future
generations
through
careful
planning or management, as appropriate. .
. . . . . Nature conservation including
wildlife must therefore receive importance
in planning for economic development."

Similarly, the African Charter on
Human and People's rights declares that "all
peoples shall have the right to a general
satisfactory environment favourable to their
development". Judicially responding to this
situation, Justice Douglas has suggested that
environmental issues might be litigated in the
name of "the inanimate object about to be...
deposited" with those who have an "intimate
relation" with it recognised as its legitimate
spokemen. Common law being basically blind
to the future and working primarily for the
alienated good of the individual and operating
on the cynical theory that because posterity
has proved its utter inadequacy to achieve the
urgent task of preservation and protection of
our ecology and environment. Roscoc Pound
blamed the common law for its serious social
shortfalls. He wrote :-

"Men have changed their views
as to the relative importance of the
individual and of society; but the common
law has not. Indeed, the common law
knows individuals only..... It tries questions
of the highest social import as mere private
controversies between John Deo and
Richard Deo. And this compels a narrow
and one sided view."