IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.: 701 of 2004 Reserved on: 20.8.2008 Date of decision: 26. 8.2008 Rauchh Paul Vohra Petitioner. Versus State of Himachal Pradesh and others. Respondents Coram The Hon’ble Mr.Justice Deepak Gupta, J. The Hon’ble Mr. Justice Surinder Singh Whether approved for reporting?1 No. For the petitioner: Mr. R.L.Sood, Sr. Advocate with Mr. Arjun Lal, Advocate. For the respondent No.1: Mr. R.M.Bisht, Dy. Advocate General. For the respondent No.2: Mr. Shrawan Dogra, Advocate. For the respondent No.3: Mr. C.N.Singh, Advocate. For the respondents No.4 & 5 Mr. Ashutosh Burathoki, Advocate. Deepak Gupta, J. We need not give the facts of this writ petition in detail since the same are clearly spelt out in the order dated 20.7.2006 passed by a Division Bench of this Court, which reads as follows:- “Apparently some minor irritants have led to a lot of discontentment as well as avoidable lack of faith between the parties with respect to the affairs of HP Housing Board Colony, Kelston (hereinafter to be referred to as “Colony” for the sake of brevity). Kelston estate is a larger area and within this larger area is situated a small pocket called HP Housing Board colony. This “Colony” is built over a piece of land which land originally was in private ownership but lateron, by change of ownership it came ultimately to be possessed by the then HP Housing Board, which built 179 flats over this piece of land. Flats are built all around a central vista, indeed a very small vista which originally comprised 1 Whether the reporters of the local papers may be allowed to see the Judgment? yes 2 entirely of a green patch but lateron, much much after the “Colony” had been built (we are told somewhere in or around the year 2004) a part of this entire green patch was converted into a concrete “Badminton court”. This “Badminton court” is stated to have been built by the Municipal Corporation, Shimla with the funds provided by the local MLA. Only a part of the “vista” now remains a green patch. According to Mr. Dogra the dimensions of “Badminton court” is 13.49 metres x 6.70 metres and the area of the (remaining) green patch is 562 square metres. We shall hereafter be referring to the entire original green patch (the entire original green space as it stood before the construction of the “Badminton court”) as the “vista”, the Badminton court as the “Badminton court” and the space in the vista left after the construction of the “Badminton court as the “remaining green space”. The petitioner’s contention in the Writ Petition is that the purchasers of the flats in the “Colony” had contributed towards the price and the cost of the “vista” as well as all other public areas in the “Colony”, including garages and the parking spaces. According to the petitioner, since these purchasers of the flats in the “Colony” had contributed towards the aforesaid price and the cost, outsiders have no right to use either the “Colony” or any part of it nor have they any right to use either the “Badminton court” or the “remaining green space”. The petitioner therefore, contends that the outsiders have no right therefore even to park their vehicles in the “Colony” and actually they cannot be permitted to use any space in the “Colony” for any purpose. Para 5 of the Writ Petition contains a specific averment to the aforesaid effect. The relevant extract of para 5 containing the aforesaid averment is reproduced hereunder which reads thus:- “…. It may further be mentioned and clarified that all the owners of the various types of residential accommodation of the Housing Board Kelston Colony have borne the costs of the open areas including green spaces which have been proportionately paid by them, to the HP Housing Board, as a part of the built in costs….” Respondent No. 3, which is successor of HP Housing Board, in the reply submitted by it to the Writ Petition has admitted the aforesaid assertion contained in the aforesaid averment. Para 5 of 3 the reply of respondent No.3, containing the aforesaid admission reads thus:- “That the contents of para-5 are admitted to the extent that all the owner of the residential accommodation of Housing Colony Kelston have borne the cost of the open area including green spaces which were paid proportionally by them.” Respondent No.2 in the reply filed by it has not disputed the aforesaid factual assertion made by the petitioner and admitted by respondent No.3. Respondent No.3 was the builder and seller of the flats in the “Colony”. There could not therefore be anyone better than respondent No.3 to have dealt with and admitted this material assertion of the petitioner. We have, therefore, no hesitation in holding that because the purchasers of the flats of the “Colony” had contributed towards the price and the cost of the “vista”, open spaces in the “Colony” including parking spaces and the garages etc., a right stood vested in them to use all these to the exclusion of outsiders and the “vista”, the open spaces and the garages etc. therefore are mean for the exclusive use of the residents of the “Colony”. In the aforesaid background we have to decide the following issues: 1. Whether the outsiders can or should be denied ingress or egress through the “Colony”? 2. Whether the outsiders have any right to park their vehicles in the “Colony” and should they be prohibited from doing so? 3. Whether the outsiders be permitted or not permitted to use the “Badminton court” and the “remaining green space”? 4. Can the “Badminton court” be used for any purpose other than for playing Badminton? Let us take these issues one by one. 1. Whether the outsiders can or should be denied ingress or egress through the “Colony”? In so far as this issue is concerned, even though the purchasers of the flats have contributed towards the price and the cost of open spaces in the “Colony” including the roads/lanes of the 4 “Colony”, the “Colony” not being the private property of any individual, public, in public interest cannot be denied ingress or egress through the “Colony” for a variety of reasons. We therefore, hold and direct that no one can be denied ingress or egress through the “Colony”. 2. Whether the outsiders have nay right to park their vehicles in the “Colony” and should they be prohibited from doing so? Parking of vehicles in the “Colony” area is a matter which is quite different and totally independent of issue relating to ingress and egress. There are 179 flats in the “Colony”. It is common knowledge that finding spaces for parking of vehicles is a problem of acute gravity these days. These purchasers of the flats having contributed towards the price and the cost of open spaces, including parking spaces as well as garages have a right to avail of this facility. Persons who have not make any contribution towards the price and the cost of this facility therefore undoubtedly have no right to use this facility and thus they in the process also cannot be permitted to encroach and impinge upon the said right of user by the purchasers. We therefore, direct that henceforth the outsiders shall not be permitted to park their vehicles in the “Colony”. As agreed to by the learned counsel for the parties the only exception to this would be the vehicle(s) belonging to just one person, namely, Mr. Dhiman who has his house in the “Colony”. Only this person and the actual, genuine occupiers of his house, including his tenants, if any, shall be permitted to park their vehicles in the “Colony”. A Sign-Board shall be installed at the entrance to the “Colony” clearly indicating therein that the outsides are prohibited from parking their vehicles in the “Colony”. 3. Whether the outsiders be permitted or not permitted to use the “Badminton court” and the “remaining green space”? As far as the use of the “Badminton court” and “remaining green space” is concerned, even though we are of the opinion that the outsiders should not be permitted to use either of them, generally speaking, yet in the larger public interest we do feel that subject to such reasonable restrictions and such regulatory mechanism as might be evolved and prescribed and subject to the condition that no flat owner and/or occupier of a flat in the 5 “Colony” is put to any inconvenience, nor does such use result in any nuisance or causes any annoyance to these persons, a mechanism can be devised whereby limited, a very limited number of outsiders, if at all, are allowed to use the “remaining green space” and the “Badminton court”. As far as the use of the “Badminton court” is concerned, such a mechanism has to ensure that the persons using the “Badminton court” use it only for playing Badminton and for no other purpose whatsoever and that their names and particulars are appropriately entered in a record to be maintained for this purpose so that, in case of any misbehaviour or misconduct they are taken to task. 4. Can the “Badminton court” be used for any purpose other than for playing Badminton? The “Badminton court” cannot be used for any purpose other than playing Badminton. We are very clearly and quite emphatic that the “Badminton court” cannot be used for any purpose other than playing the Badminton. We direct that a Sign-Board shall be installed at the “Badminton court”, at a conspicuous place informing that the “Badminton court” is meant for playing Badminton and cannot therefore be used for any purpose other than this. To ensure that the aforesaid board guidelines formulated by this Court are translated into concrete action and parameters are evolved based on the aforesaid guidelines, we hereby constitute a Committee of the following Advocates of this Court to implement these directions:- 1. Mr. Rajiv Sharma, Senior Advocate, 2. Mr. Ajay Kumar, Advocate, 3. Mr. K.D.Sood, Advocate, 4. Mr. Bipin Chand Negi, Advocate; and 5. Mr. Deepak Kaushal, Advocate. This Committee shall visit the site, if required more than once and after taking into account all relevant considerations but confining itself to the aforesaid board guidelines indicated by this Court, evolve and formulate, all relevant parameters to ensure strict compliance of the directions hereinabove contained. Actually it shall be worthwhile for this Committee to explore the possibility of all the flat owners and/or occupiers in the “Colony” coming 6 under the banner and umbrella of a Residents Welfare Association (RWA) so that the activities of the “Colony” henceforth are regulated and controlled by the RWA itself. We hope and trust that the aforesaid Committee of Advocates shall make a sincere endeavour in constituting RWA in the best possible interests of the owners and/or occupiers of the flats in the “Colony”. We direct the Committee to submit its report to us by or before the next date. Till the report is submitted by this Committee, we order and direct that the “Badminton court” shall not be used by anyone for any purpose, except the residents of the “Colony”. Superintendent of Police, Shimla and the Commissioner, Municipal Corporation, Shimla, shall be jointly responsible to comply with and implement the aforesaid directions. Even though both of them may evolve broad parameters for the implementation and compliance of these directions, we permit them to nominate/depute Officers/ officials working under them to actually oversee such implementation and compliance. We wish to make it clear that anyone violating the aforesaid directions and orders passed by us shall be dealt with for committing contempt of this Court. If any violation is reported to the Commissioner, Municipal Corporation, Shimla, or to the Superintendent of Police, Shimla, or their subordinate functionaries, they shall ensure that the violators are dealt with in accordance with law. xx.. xx.. xx.. xx.. xx.. xx.. xx.. xx.. (V.K.Gupta), Chief Justice. July 20, 2006 (Surjit Singh), Judge.” Thereafter, when the petition came before this division bench on 11.12.2006, we had passed the following order:- “In view of the order passed by this Court on 20th July, 2006 read with the report of the Committee which shows that the substantive portion of the orders stand implemented, no further orders are called for on this writ petition. Needless to say that the 7 parties shall abide by the directions given in the said order. The petition is accordingly disposed of. In view of the disposal of the main petition all the miscellaneous applications are also disposed of.” Review petition No. 10 of 2007 was filed by two persons who were applicants in the original writ petition. They had filed an application for being impleaded as parties. The main ground raised in the review petition was that the writ petition had been decided in their absence. We had allowed the Civil Review Petition vide order dated 23.11.2007 since we had found that the name of the counsel for the applicants was not reflected in the cause list and the petition had been decided in their absence. The order dated 11.12.2006 was accordingly recalled. Thereafter, CMP No. 1904 of 2006, which was the application for being impleaded as parties was listed before another division bench and the said application was dismissed on 17.3.2008. We would have thought that in view of the dismissal of the application filed by the review petitioners nothing survived in the writ petition. However, when the matter was listed for hearing Shri Shrawan Dogra, learned counsel for the Municipal Corporation and Shri Ashutosh Burathoki, learned counsel for respondents No. 4 and 5 strenuously urged that the writ petition should be re-heard on merits. At their insistence, we re-heard the same. At the outset, we may mention that though the order dated 20.7.2006 quoted by us here-in-above did not finally dispose of the writ petition, it cannot be said to be an interim order. It virtually decides the writ petition and it is obvious that the writ petition was kept alive only for the purpose of monitoring. This order was not 8 challenged either by the Municipal Corporation or by respondents No. 4 and 5. This has attained finality and the respondents can not be permitted to challenge the same. Therefore, we reaffirm the directions given by a division bench of this Court on 20th July, 2006 in so far as the questions No. 1, 2 and 4 are concerned. However, with respect of question No.3, we find that the Court did observe that in the larger public interest outsiders could be permitted to use the “Badminton court” subject to reasonable restriction and regulatory mechanism. The Committee found that the guidelines issued by the Court had been duly implemented. The only question which calls for further adjudication is with regard to the restriction and regulatory mechanism for use of the “Badminton court” and remaining green space to be used by the outsiders. Shimla is situated on various hills. There are very few open flat spaces for children to play. Children, as is their nature are fond of playing. They are bound to be boisterous; in fact, this is the most endearing quality of children. Their playfulness gives joy to the elderly. Many of the old residents of the Housing Board Colony may not have their families residing with them. If the children of surrounding areas use the “Badminton court” and remaining green space (obviously subject to certain restrictions), we do not feel that the rights of the Senior Citizens of the Housing Board Colony will in any manner be affected. Therefore, though we are clearly of the opinion that outsiders have no right to park their vehicles in the Housing Board Colony and the “Badminton court” can only be used for the purpose of playing Badminton, we are also of the view that their can be no blanket ban on the outsiders using the remaining 9 green space or the “Badminton court”. The remaining green space is about 562 square meters. No prejudice will be caused to anybody if persons residing near the Housing Board Colony use this remaining green space for walking, exercising, etc. As far as the “Badminton court” is concerned, it is not denied that this “Badminton court” has been constructed out of the public funds provided by the local MLA. Therefore, we feel that though the residents of the Colony can have a limited exclusive right to use the “Badminton court” but during the remaining hours outsiders may also use the said “Badminton court” only for the purpose of playing Badminton. We, therefore, direct that the “Badminton court” shall be used exclusively by the residents of the Housing Board Colony from 6.00 am to 9 am and 6 pm to 8 pm during the summer season, i.e. 1st April to 30th September and 7 am to 10 am and 5 pm to 7 pm during the remaining period of the year. This would mean that the residents of the colony would have exclusive rights to use the “Badminton court” for five hours every day. The residents may if they so desire fix lights, net, etc. for playing Badminton. This shall be the exclusive property of the residents and the outsiders shall have no right to use the net, racquets, lights, etc., which may be provided by the residents of the colony. However, during the remaining hours i.e. between 9 am to 6 pm in the summer and 10 am to 5 pm in the winter the outsiders may also use the “Badminton court”. During these hours the residents of the Housing Board Colony can also use the “Badminton court”. The “Badminton court” during these hours shall be used on first come first use basis. As far 10 as the remaining green patch is concerned, this will only be used for walking and exercising. Children may play games here, but these games shall not be games like Cricket, Football, etc., which may cause disturbance and nuisance to the residents and other users of the open green space. We direct that the above directions shall be prominently displayed at the entrance of green area/and or near the “Badminton court” by the ‘Residents Welfare Association’ (RWA). The writ petition is disposed of in the light of the order dated 20.7.2006 and the observations made by us here-in-above. ( Deepak Gupta ), J. 26th August, 2008 ( Surinder Singh ), J. ™