The petition has been filed in the public interest by four residents of Moradabad. In the city of Moradabad, the district administration has earmarked a large area admeasuring about 1.5 hectares for the development of what is described as Company Garden in Civil Lines. Over the last decade and more, the condition of the area had deteriorated as a result of which the land had become barren. In 2013, the Municipal Corporation together with the district administration made extensive efforts to restore the Company Garden to its pristine state. A walking path has been constructed and it is not in dispute that some plantation has taken place. A boundary wall has been constructed to ensure the preservation of the public space. However, the area is still to be completely developed into a garden at the present point of time.
The district administration is now proposing to hold a Zila Evam Vikas Pradarshani (exhibition-cum-fair). The petitioners have drawn these proceedings under Article 226 of the Constitution seeking an order of restraint against the District Magistrate and the Commissioner from holding the exhibition or granting permission thereto in the precincts of Company Garden. The exhibition is to be held in the last week of May 2014 and would continue for a period of one month.
The State Legislature has enacted U.P. Parks, Playgrounds and Open Spaces (Preservation & Regulations) Act, 1975. The expressions 'open space' and 'park' are defined, in clauses (a) and (b) of section 2, as follows:
"(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 reminder of which is used for purposes of recreation, air or light;
(b) "park" means a piece of land on which there are no buildings or of which not more than one-twentieth part is covered with buildings, and the whole of the remainder of which is laid cut 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."
Section 3 provides for preparation of a list of parks, playgrounds and open spaces by an authority which is to be notified under the rules made under the Act. Section 6 contains a prohibition on the use of parks, playgrounds and open spaces for any purpose other than the purpose for which it was used on the date immediately preceding the date of commencement of the Act except with the previous sanction of the prescribed authority. Under section 7, the local authority has to maintain all parks, playgrounds and open spaces in a clean and proper condition. Section 8 provides that no person shall without the previous sanction of the prescribed authority construct any building or put up any structure which is likely to affect the utility of the parks, playgrounds or open spaces.
The Mayor of the Nagar Nigam in her communication dated 23 April 2013 has drawn the attention of the District Magistrate, Moradabad to the fact that besides the construction of a boundary wall, a large sum of money had been spent on the beautification of the Company Garden and hence it was not appropriate to permit the exhibition to be held. However, it was submitted that in the event the exhibition is to be held, it should be so situated on a portion of the land so as to ensure that the work of beautification already carried out is not adversely affected.
Public parks, playgrounds and open spaces constitute a valuable facet of the environment. The right to life under Article 21 of the Constitution incorporates within it the right to a clean and healthy environment including in the urban areas of the country where there is a rapid decline in the quality of the environment and the State is no exception. There is a rapid deterioration of the environment and open spaces and recreational areas are becoming rapidly extinct. Rampant development is threatening the existence of gardens and recreational areas which constitute the lungs of the cities. Article 48-A which forms part of the Directive Principles of State policy requires the State to protect and improve the environment and to safeguard the forests and wild life of the country. Similarly, Article 51-A incorporates a fundamental duty of every citizen to protect and improve the natural environment.
The enactment of the State Legislation, which we have referred to earlier, for the preservation and reservation of parks, playgrounds and open spaces is in relation to the fundamental right to have a clean and healthy environment under Article 21 and an acknowledgement of the obligation which is cast upon the State by the Directive Principles of State policy. Hence, there can be no manner of doubt that an area which is earmarked as a playground, park or open space cannot be utilized for any other extraneous purpose. Secondly, we are categorically of the view that it would not be open for the State to allow a public park or playground, as in the present case, to be commercialised by permitting the holding of such exhibitions.
However, insofar as the present year is concerned, the Court cannot be oblivious to the fact that at present though a considerable amount of public money has been spent on the beautification of the Company Garden including the levelling of the land, the construction of a boundary wall and a walking path, but it is still not fully developed. The petitioners have come before the Court when barely a few weeks are left for the holding of the exhibition.
Learned Standing Counsel appearing on behalf of the State has informed the Court that the purpose of the exhibition is to provide incentive to local talent and the event has been taking place since 1992 to spread a message of communal harmony.
Having due regard to these facts, we are of the view that an absolute prohibition on the holding of any such exhibition at Company Garden should come into force with effect from the year 2015 and that for the current year, an exception should be made only in respect of the exhibition in question subject to stringent conditions which we propose to impose.
We, accordingly, issue the following directions:
(1) The District Magistrate shall cause a site plan of Company Garden to be immediately prepared and earmark in the site plan the specific area within which the holding of the exhibition would be confined. The area will be earmarked for holding the exhibition in a manner that would ensure that the development which has already taken place in the Company Garden, including by way of construction of the walking path and plantation, is not affected;
(ii) The District Magistrate shall take necessary steps to duly determine what nature of stalls should be permitted for the purpose of the exhibition. The stalls to be constructed should be of material which would ensure that the ground is not damaged. No permanent construction or structure of any nature whatsoever shall be permitted;
(iii) Having due regard to the purpose of the exhibition, we specifically restrain the authorities from allowing Ferris wheels or any other form of allied activity of a commercial nature which is liable to damage the park or cause detriment to its use as such by the residents;
(iv) An undertaking shall be obtained from the organizers of the exhibition to the effect that they shall restore the park to its original condition immediately after the conclusion of the exhibition. The District Magistrate shall take necessary financial securities from the organizers for the said purpose in order to ensure that any damage is immediately taken care of;
(v) The District Magistrate shall file an undertaking before this Court in the present proceedings and an undertaking shall also be obtained from the organizers holding the event, which shall be filed in these proceedings, agreeing to comply with the directions which have been issued in the present judgment; and
(vi) The permission which has been granted by way of relaxation is only for the present year and in respect of the present exhibition only. For the next year, the district administration shall take necessary steps in consultation with the Nagar Nigam for holding the exhibition at any other alternative place.
The writ petition is, accordingly, disposed of.
Order Date :- 16.05.2014 GS (Dr. D.Y. Chandrachud, C.J.) (Dilip Gupta, J.)