'Every Citizen Has A Fundamental Right To Fresh Air', P&H HC Stays Decision to Convert Public Parks Into Residential Areas In Faridabad [Read Order]

The Bench of Justice Rajiv Sharma and Justice Harinder Singh Sidhu was hearing a petition challenging the decision of the Government of Haryana to convert public park into the residential area (in Faridabad Township area).

Matter before the Court

The total area of earmarked for parks was 7.5 Acres approximately (in the Faridabad Township area). However, in due course, jhuggis, residential houses, workshops etc. came up unauthorisedly in the open areas.

According to the averments made in the petition, that in the master-plan of the Faridabad Township area, parks were carved out. However, with the passage of time, these were encroached upon.

The respondents had undertaken before the Court from time to time that illegal encroachers would be removed. However, by taking a U-turn, the authorities decided to convert parks into residential areas.

The contention of the counsel for the petitioner was that decision had been taken to convert the public park into a residential area against the orders passed by this Court in CWP No. 3323 of 2003, CWP No. 13508 of 2006, COCP No. 2254 of 2009 and COCP No. 2064 of 2015.

The counsel for the petitioner lastly contended that action of the respondents to convert Public Park into the residential area was unreasonable, arbitrary and also violative of Articles 21 and 48 of the Constitution of India.

Court's Analysis

The High Court relied on the Supreme Court's ruling in the case of Virender Gaur and others Vs. State of Haryana and others, (1995) 2 Supreme Court Cases 577, wherein the Court had held that the Government could not sanction the lease in favour of private party since the municipal land was earmarked for open space for public use i.e. to maintain ecology and hygienic environment.

The Court also cited the Judgments of the Apex Court in the cases of Bangalore Medical Trust Vs. B.S. Muddappa and others, (1991) 4 Supreme Court Cases 54, Dr. G.N. Khajuria and others Vs. Delhi Development Authority and others, (1995) 5 Supreme Court Cases 762

The Court was of the prima facie view that action of the respondents in converting Public Park into a residential area was unconstitutional and contrary to law. The residents of the Society have a fundamental right to free air and to enjoy the public amenities.

The Court remarked,

"It was expected from the respondents to evict the illegal encroachers from the public land instead of nullifying the orders passed by this Court from time to time by converting the park into residential areas. The respondents are bound to preserve and save the open spaces."

The Court further opined,

"Every citizen has a fundamental right to fresh air. The ecology and environment of the area would be affected drastically if the parks are converted into a residential area. The aesthetic characteristics of the city must be promoted and preserved."

In view of the above-said, the Court directed that there shall be a stay of letter/communication dated 03.06.2020 issued by respondent No.2, approval dated 29.05.2020, letter dated 08.08.2019 and letter dated 19.06.2020 issued by the Commissioner, Municipal Corporation, Faridabad, till further orders.