Using Public Parks For Any Other Purpose Would Amount To Breach of Trust: Madhya Pradesh High Court Directs Demolition of Community Hall

The Madhya Pradesh High Court has directed the demolition of a Community Hall constructed in a park upholding the importance of open spaces of land as a buffer zone for ecological balance. A Division Bench of Chief Justice Mohammad Rafiq and Justice Vijay Kumar Shukla observed,

"Once a Public Park is dedicated to citizens/residents, it is held by the Municipality in trust on behalf of the 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."

It also directed that the said space should always be maintained only as a Park and shall not be allowed to use for any other purpose.

Background

A writ petition was filed through Advocate M.K. Tripathi seeking directions to stop the construction of a Community Hall in the land of a Public Park in a residential colony in Burhanpur. It further sought an enquiry into the illegalities committed y the Mayor of the Municipal Corporation, Burhanpur.

On an earlier occasion, while issuing notices, the Court restrained the respondents from undertaking any further construction until further orders. It was also noticed that there was the encroachment of the public road in the form of a shed by the Mayor herself, in front of her house. Therefore, the Court also directed to remove such encroachment on the public way.

Government Advocate Darshan Soni submitted that the construction of the community hall in question was not legal and was being carried on without the approval of the Town and Country Planning. The Court had also sought information on the action taken against the Commissioner, Municipal Corporation, Burhanpur, for carrying out the illegal construction.

Findings

The Court referred to apex court judgement in Bangalore Medical Trust vs B.S. Mudappa & Ors (1991) where the preservation of Public Parks and their preservation was stressed upon. In the said the utility of public park was contested against that of a nursing home, and it was observed that,

"Absence of open space and public park, in present-day when urbanization is on the 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 park into a private nursing home social welfare was being promoted was being oblivious of true character of the two and their utility."

The Court read Section 279 of the M.P. Municipalities Act, 1961, which requires the Municipal Council to provide places for 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 1961 Act allows the State Government to reserve an area for public utility use. After making such a reservation, any construction cannot be allowed except when permitted by the State Government.

The High Court further observed,

"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 playgrounds 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."

Referring to several other notable judgement and salutary principles, the Court held that 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 residents and especially the children.

"Such open spaces act as lungs and ventilators for the suffocating growth of population," the Court further added.

Title: Preeti Singh v. State of Madhya Pradesh

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