Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3
CASE NO.:
Appeal (civil) 6211 of 2000
PETITIONER:
Allahabad Ladies Club
RESPONDENT:
Jitendra Nath Singh and Ors
DATE OF JUDGMENT: 20/03/2007
BENCH:
Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA
JUDGMENT:
J U D G M E N T
[With Civil Appeal nos.159 and 2875 of 2001]
Dr. ARIJIT PASAYAT, J.
Challenge in these appeals is to the judgment
rendered by a Division Bench of the Allahabad High Court,
inter-alia, directing that the lease granted to the appellant
in Civil Appeal No.6211 and Civil Appeal No. 159 of 2001
be cancelled. Certain other directions given are subject
matter of challenge in the other appeal. All constructions
made were also directed to be demolished.
A brief reference to the factual aspects would suffice:
A petition styled to be a "public interest litigation"
was filed before the Allahabad High Court primarily
making a grievance that the park known as the Company
Bagh has ceased to be a park and illegal leases have been
granted and constructions have been put up in alleged
violation of the provisions of the Uttar Pradesh Parks,
Playgrounds and Open Spaces (Preservation and
Regulation) Act, 1975 (in short the ’Act’). The writ petition
was disposed of with certain directions. The State
Government field special leave petition before this Court
questioning correctness of the order passed. The same
was disposed of by order dated 9.4.1991 with the following
order:
"After hearing the parties for a
considerable period of time, we think it will
be just and fair to pass the following
directions:-
i) The High Court will drop the
proceedings for contempt;
ii) The High Court will hear all the
parties and will try to solve the
problem regarding the shifting of the
stadium and other problems in a
fitting manner after taking
suggestions, if any, given by the
parties as well as by the State
Government as in our opinion, the
High Court will be the fitting and
proper authority to dispose of the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3
matter in order to promote public
interest; and
(iii) The High Court will hear all the
parties appearing before the Court.
Pursuant to the directions of this Court all the
parties were heard and the respective stand was
considered. The High Court by the impugned order which
is common to these appeals held that there has been clear
violation of the provisions of the Act and the Uttar Pradesh
Urban Planning and Development Act, 1973 (in short
’Development Act’). The appellants have questioned
correctness of the view expressed by the High Court on
several grounds. Primarily it is contended that there was
no challenge to the lease granted to any of them. There
was not even any prayer for cancellation of any lease. All
the leases were executed long time back i.e. much before
the Act and the Development Act were enacted. The
appellants were impleaded in the writ petition by this
Court’s direction as they were not parties when the matter
was earlier disposed of. There was no challenge in the
writ petition to any unauthorized construction. The
constructions made by the appellants were clearly
authorized. The original writ petitioners have not made
any grievance so far as the present appellants are
concerned and the writ petition was filed making
grievances to a limited extent which have nothing to do
with the leases granted to the appellants. Therefore, the
directions as given cannot be maintained.
Learned counsel for the Allahabad Development
Authority has stated that the impugned order virtually
rules out any developmental activity and even nullifies
works already done.
We find that the High Court has unnecessarily
enlarged the scope of the writ petition. Though in a
public interest litigation it is permissible to take note of
the necessary/connected matters; the position was not so
in the present case. Challenge was not to the grant of
lease. There was no averment made in petition that the
constructions by the appellants were unauthorized. In the
writ petition a few officers were impleaded.
The High Court was not justified in directing
cancellation of lease.
Sections 6, 7 and 8 of the Act have relevance. They
read as follows.
"6. Prohibition of the use of parks,
playgrounds and open spaces in certain
cases \026 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, playgrounds
and open spaces. \026 The local authority
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3
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. \026 No person shall except
with the previous sanction of the
prescribed authority, construct any
building or put any structure likely to
affect the utility of the park, playgrounds
and open space specified in the list
published under Section 3 or Section 4."
Above being the position, we dispose of these appeals
with the following directions.
(1) The parties were not required to place any
material regarding validity of leases as that was
not the subject matter of challenge in the writ
petition. It would be relevant to note that
Sections 6, 7 and 8 of the Act which have
relevance so far as the present dispute is
concerned. Section 6 deals with prohibition of
the use of parks, playgrounds and open spaces
in certain cases. A bare reading of the provision
indicates that no park, playground or space
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 the Act. Therefore, if on the
date of commencement of the Act a park,
playground or open space was being used for a
particular purpose the same can be continued.
(2) Under Section 8 there is prohibition on
construction of buildings etc. except with the
previous sanction of the prescribed authority.
That obviously means that construction of
buildings etc. can be done with the previous
sanction of the prescribed authority. The High
Court has not taken note of the effect of
Sections 6 and 7 of the Act as quoted above.
The State Government is directed to find out :
(a) If there is any encroachment.
(b) If there is violation of any terms of
the Act after taking note of Secitons
6, 7 and 8 thereof.
(c) The existing Master plans have to
operate and the effect thereof is also
to be considered by the appropriate
authority.
It is for the Allahabad Development
Authority to find out whether there is any
violation of the Development Act and if there is
any, it is open to the authority to take such
action as is warranted, as provided in law.
To the aforesaid extent the appeals are allowed.
Costs made easy.