WP(C) 6950 of 2009 Page 1 of 52 IN THE HIGH COURT OF DELHI AT NEW DELHI WP(C) No.6950/2009 & CMs 2309, 3588, 3925, 4894, 5329/09 Reserved on : 28th October, 2009 Decided on : 18th November , 2009 PARYAVARAN AVAM JANUTHAN MISSION (REGD SOCIETY)& Anr. ..... Petitioners Through: Mr. R.P. Bansal, Sr. Advocate with Mr. Rakesh Mahajan and Mr. Sheetesh Khanna, Advocates Mr. Raj Panjwani, Senior Advocate (Amicus Curiae Mr. S.S. Jauhar, Adv. for applicant in CM 3925/09. versus LT. GOVERNOR & ORS. ..... Respondents Through: Mr. H.S. Phoolka, Sr. Advocate with Ms. Maninder Acharya, Advocate for MCD. Mr. M.K. Singh, Advocate for DDA. Mr. Sachin Datta, Advocate for UOI. Ms. Pinky Anand, Sr. Advocate with Mr. A. Munjhal, Advocate for Intervenor. CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE DR. JUSTICE S. MURALIDHAR 1. Whether reporters of the local newspapers be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes S. MURALIDHAR,J. Introduction 1. The Parya Varan Avam Januthan Mission, a registered Society formed with the object of protecting and promoting the cause of pollution free environment, and its President, are the two petitioners before this Court. This petition concerns the Ajmal Khan Park, located in Karol Bagh in the WP(C) 6950 of 2009 Page 2 of 52 hub of West Delhi‟s thickly populated commercial and residential areas. The park has existed since 1920 and is spread over a total area of 24.83 acres. It is divided into four squares. The „ornamental‟ portion of the park is said to be 18.43 acres. In the remaining area of 4.8 acres community functions are held. This is the only major park in the area. The apprehension expressed by the petitioners, who are residents of the area, is that over the years the park has been used for purposes other than what is permissible in terms of the Master Plan for Delhi (MPD) 1962, 2001 and 2021. The immediate cause for concern is the proposed construction in the park of an indoor basket ball stadium by the Municipal Corporation of Delhi (MCD), Respondent No.2 herein, in violation of the MPD norms. 2. It is stated that since 1972 an area in the north-east square of the park measuring 2117 sq m. is being used as an open basket ball stadium. It is named as the Master Prithvi Nath Stadium and consists of a covered management block and an open rectangular shaped stadium having eight rows of concrete seating stands which can seat around 1500 to 2000 spectators. It is not in dispute that the said open basket ball stadium is the property of the MCD. It is claimed that in the past national level basket ball championship tournaments have been organized in the stadium but it does not meet the essential requirement for organizing international level tournaments. It is stated that there is no other stadium in this area. 3. The Ajmal Khan Park has been designated as a District Park in successive WP(C) 6950 of 2009 Page 3 of 52 Master Plans of Delhi i.e. MPD 1962, 2001 and MPD 2021. The park is situated in the B-2 sub-zone. It was designated as a special area under both the MPD 2001 as well as MPD 2021. In terms of the MPD 2001, for the B-2 sub-zone, an area of 33 hectares has been designated for parks and the norm specified is 2 hectares of park per 10000 persons. However, on account of scarcity of open area in the zonal plan for 2001, 7.47 hectares was proposed in the B-2 sub-zone for neighbourhood parks and playgrounds. Previous litigation 4. The petition states that this court has been approached earlier for protection of the Ajmal Khan Park. W.P. (C) No. 14261 of 2004 titled Bharushtrachar Virodhi Sangathan v. LG & Others was filed to protest against the MCD collecting charges for the use of the parks in Delhi for community functions like marriages. The petitioners there had sought a direction to the respondents to stop the illegal use of farm houses, banquet halls, vatikas, parks and other premises for commercial activities. An application being CM No. 10024/2004 was filed seeking a direction to seal the farm houses, banquet halls, parks being used for commercial activities without licence. On 6.7.2005, a Division Bench of this Court issued the following directions in the said writ petition: “the Corporation shall not allow anyone to use a property contrary to the Master Plan, on payment of charges or otherwise. The Commissioner is directed to appoint Special Officers to look into this problem and if there is any breach of the direction, the Officer concerned shall be held responsible.” WP(C) 6950 of 2009 Page 4 of 52 It appears that thereafter the focus in W.P. (C) No. 14261 of 2004 shifted to the use of farm houses for holding marriages. On 10.10.2007 this Court was informed that certain guidelines had been framed by the GNCTD for regulating the use of farm houses for commercial purposes. On that basis, the said petition was closed. It is contended that as far as the Ajmal Khan Park is concerned, the directions issued on 6.7.2005 still hold good. 5. In 2005, a public interest litigation (PIL) in the form of W.P. (C) No. 12902/2005 titled Swamy Bhaskar Anand & Anr v. Lt. Governor & Anr. was filed in this Court protesting against the decision of the MCD to permit the Delhi Tourism and Transport Development Corporation (DTTDC) to use the Ajmal Khan Park for promotion of tourism. The raising of concrete structures in the park at the instance of and for the use of the DTTDC was frowned upon by this Court. In response to the notice issued by this Court an affidavit was filed by the Additional Deputy Commissioner Development Land and Estate Department MCD stating that “MCD has decided that Ajmal Khan Park will be used only for park purposes with an access to the public”. This Court was further informed “that the arrangement with the DTTDC for running a snack bar in a portion of the park that has been cancelled and the MCD has decided to return the money received from the DTTDC and is taking steps to restore the possession of the portion which is in their possession to the MCD”. WP(C) 6950 of 2009 Page 5 of 52 6. In an order dated 8.11.2005 passed in the above writ petition, this Court observed as under: “Now it seems that DTTDC has also gone under the sway of globalisation and has contemplated to induct some outside agency for providing the facilities of banqueting under the name of International Food Plaza. A park which is not only of historical importance but situated in a densely populated area like Karol Bagh where there is hardly any other park of this size, should not be permitted to be used for putting an International Food Plaza. Government lands and municipal parks have to be saved from onslaught of commercialization, as the citizens of this city require green areas for their lungs. Food Plazas and commercial activities can be undertaken at other places and certainly not in a park like Ajmal Khan Park. Ajmal Khan Park should be used for the residents, for morning walkers, for the children and for other social activities and it is the obligation of the state including Municipal Corporation of Delhi to allow use of this park for the said purpose. The endeavour of the MCD ought to have been to make it a model park. We are putting this on record as we have been told that the standing committee of the MCD is seized with the matter and the Committee is going to meet within ten days. We are sure that standing Committee as the representative of the people of Delhi will keep all these aspect in mind.” 7. On 2.8.2006 the Court took the above statement on record and disposed of the said petition. In the applications filed thereafter in the disposed of writ petition concerning return of the money by the MCD to the DTTDC, orders were passed on 23.1.2007. The Court took note of another affidavit filed by the MCD and the statement made by the Additional Deputy Commissioner, Land and Estate Department, MCD who was present in Court that the demolition of the structure had already taken place and that “every effort is being made to restore the park in its original position”. The Court then WP(C) 6950 of 2009 Page 6 of 52 further directed as under: “In view of the affidavit filed before us and the undertaking given in court which we accept, we will finally dispose of this writ petition with clear direction that within four weeks from today the park shall be restored to its original position without any exception. We make it clear that if the efforts is not made and direction of the court in terms of the affidavits of the Commissioner MCD and as well as Additional Deputy Commissioner Land & Estate Department is not complied with, they shall be liable to be proceeded against for violating the order resulting in initiating of proceeding under the Contempt of Court Act. Liberty is granted to the parties to move the court in the event of default.” The present petition 8. The present petitioners state that they learnt subsequently of a decision taken by the MCD to construct a two-storied covered air conditioned stadium and commercial complex in the Ajmal Khan Park. A 100 tone AC plant for the said stadium was also proposed to be constructed. Copies of the working drawings for the said indoor stadium have been enclosed as Annexure P-2 to the writ petition. The petitioners state that a meeting was held with the local representatives. Two MLAs of the Delhi Legislative Assembly met the LG (Respondent no. 1 herein) on 25th July, 2008 in the presence of the Commissioner MCD and protested against any construction or concretization in the Ajmal Khan Park under the pretext of extension of Master Prithvi Nath Stadium for basket ball. 9. Following the above discussion, on 1.9.2008 a communication was addressed to one of the MLAs by the officer on special duty at the office of WP(C) 6950 of 2009 Page 7 of 52 the LG enclosing a copy of the record of the meeting held on 25th July, 2008. Para 3 of the said record of the meeting reads as under: “3. Subsequent to detailed discussions and explanation offered by the Hon‟ble MLAs, Commissioner-MCD was requested by the Hon‟ble Lt. Governor to examine the case and put up the file for further orders. In the interim, it was decided that no construction whatsoever would be undertaken in the Ajmal Khan Park in the name of Extension of Master Prithvi-Nath Stadium which otherwise is presently being used by the general public of the area for physical fitness, social, religious and cultural activities. Subsequently the E-in-C, MCD has confirmed this office regarding suspension of any construction activity in the Ajmal Khan Park.” 10. Following the aforementioned meeting, the petitioner on 12.8.2008 addressed a letter to the Secretary Environment Department, GNCTD pointing out that the proposed move to construct the air conditioned indoor stadium for basket ball at the Ajmal Khan Park would be detrimental to the environment and that all cemented constructions which were going on must be demolished. The present petition was filed on 10th February, 2009 after it became clear that the respondents were going ahead with the construction of the indoor basket ball indoor stadium. The prayer in the writ petition is for a declaration that the construction of the proposed double-storied air conditioned indoor stadium in the pretext of extension of the Prithvi Nath Stadium for basket ball is in contravention of the MPD 2001 and MPD 2021. It seeks a writ of mandamus to the MCD to immediately stop the illegal construction of the indoor stadium as being contrary to the MPD 2001 and MPD 2021 and to remove all the unauthorized construction and encroachment from the Ajmal Khan Park. Photographs of the ongoing construction activity have been placed on record. Annexed to the petition is WP(C) 6950 of 2009 Page 8 of 52 also a copy of the report published by the Human Settlement Management Institute, HUDCO House Lodhi Road which has an entire portion devoted to the Ajmal Khan Park. 11. On 18.2.2009 while directing notice to issue to the Respondents this Court appointed Mr. Raj Panjwani, learned Senior Advocate as amicus curiae to inspect the park area and to file a status report. The report of Mr. Raj Panjwani was tendered before the Court on 24th February, 2009. The report inter alia indicated that a north east block of the park has since 1972 been an open court basket ball stadium known as the Master Prithvi Nath Basket Ball Stadium. At the time of the visit by Mr.Panjwani a section of the stadium had been demolished for the purposes of constructing the indoor stadium. As far as the new stadium was concerned, the learned amicus curiae found that 17 columns of the proposed 23 had been constructed. The area of the stadium was also increased as was shown in the photographs annexed with the report. It was observed that in the entire north east block which was barren four huge marriage pandals, which appeared to be semi-permanent, were erected. Photographs showing the marriage pandals and the cooking activity underway for the functions held therein have been annexed with the report. A tar road 600 feet in length and 100 feet in width had been constructed within the park to be used for access to the marriage pandals and for parking. In the proposed drawing of the stadium annexed to the report it is indicated that the existing area of the open stadium is 2649.44 sq.m. and the proposed area of the covered indoor stadium was 2971.73 sq.m. The WP(C) 6950 of 2009 Page 9 of 52 amicus curiae was informed during the course of his inspection that the each of the four marriage pandals were being leased out by the MCD for a meager amount of Rs.5000 per event. Behind the marriage pandals was a small room used as a gym, the condition of which was stated to be pitiable. There was a musical fountain located in the North West block which was deserted. The musical fountain was set up in 1996 and could accommodate about 700 people with an entry ticket of few a rupees each. It was not in operation for several years and found not to be serving any social or ecological function. The remaining two blocks namely South West and South East Blocks were the only areas which were used by around 3000 to 5000 people for their morning walks and other recreational activities. A large part of the South West Block however was found to be fenced by a grill and entry to this portion was restricted. 12. The amicus curiae in his report pointed out that the setting up of the pandals along with pantry/cooking facilities, installation of huge electric generators and construction of the road in the District Park was a prima facie violation of the MPD and the Zonal Plan. 13. On 24.2.2009 while taking on record the report of the amicus curiae an interim order was passed by this court directing the respondents not to carry out any construction activity in the park. The MCD was also directed to file the list of persons to whom the marriage pandals were let out in the last one year as well as the amount charged from them. On 24.3.2009 while granting WP(C) 6950 of 2009 Page 10 of 52 the MCD two more days to file an affidavit on the above information it was directed that the MCD will not accept any further bookings for use of the park for functions till further orders. 14. An affidavit dated 16.3.2009 was filed by the MCD in which it was stated that the four slots in the north-eastern block were let out for marriage activities only for ten days in a month. Reliance was placed on para 9.6 of MPD 2021 to contend that „sports activity‟ was permitted in the park. The list of persons to whom the marriage slots had been let out during the last one year was annexed. The order dated 26.3.2009 15. On 26.3.2009 the following detailed order was passed by this Court: “The petitioners have filed this petition in public interest taking exception to the construction of a covered basket ball stadium in Ajmal Khan Park, which is an ornamental park names after a famous freedom fighter Hakeem Ajmal Khan and was inaugurated by a person none other than the Father of the nation. In the past, this Court had issued certain directions in respect of this park. In order dated 8th November, 2005 passed in W.P(C) No. 12902- 03/2005, the Court has observed that Ajmal Khan Park is not only of historical importance but situated in a densely populated area like Karol Bagh where there is hardly any other park of this size, which is available for the residents of the area. The Court has further observed that “Government land and municipal parks” have to be saved from onslaught of commercialization, as the citizens of this city require green areas. Food Plazas and commercial activities can be undertaken at other places and certainly not in a park like Ajmal Khan Park. Ajmal Khan Park should be used for the residents, for morning walk, for the children and for other social activities and it is the obligation of the State including Municipal WP(C) 6950 of 2009 Page 11 of 52 Corporation of Delhi to allow use of this park for the said purpose. The endeavour of the MCD ought to have been to make it a model park”. By a further order dated 2nd August, 2006, the Court has recorded that the MCD has filed an affidavit through its Additional Deputy Commissioner (Land & Estate), inter alia, stating that the MCD has decided that Ajmal Khan Park will be used only for park purposes with full access to the public and arrangement with Delhi Tourism & Travel Development Corporation for running a snack bar in a portion of the said park has been cancelled and the MCD has decided to return the money received from DTTDC and is taking steps to restore the possession of the portion which is in their possession to the MCD. 2. Ajmal Khan Park admeasuring about 24 acres is situated in West Delhi (Karol Bagh). It was established in 1921. A research report recently published by the Human Settlement Management Institute describes the Ajmal Khan Park as the only potentially green space within a 1 to 3 kilometers radius of cheek of jowl cluster of residential colonies like Paharganj, Regharpura, Bedunpura, Devnagar, Naiwala, Sidipura among the many others. It is stated that such bastis and the densely built low-income areas occupy 50% of the area of Karol Bagh. The living condition of the people in these low income bastis prohibit the availability of open spaces within their residences. The narrow service lanes and the dense congestion precludes any scope of open space, let along green lands. As per the report of the learned Amicus Curiae Ajmal Khan Park is a rectangular shaped park and covers an area of 89,000 square meters or about 24 acres. A cross shaped path divides the park in four almost equal sized squares. The said four squares have been put to different uses and are referred to as North- West, North-East, South-West and South-East blocks in the report. The maps downloaded from Google on 19th February, 2009 of the area and the park are also produced on record. 3. Learned Amicus Curiae has reported that the North- East Block has an existing open court basket ball stadium known as the Master Prithvi Nath Basket Ball Stadium. It is stated that prior to 1972 an open court had been established and in the year 1972 an open rectangular shaped stadium having eight rows of concrete seating steps stand, which could seat about 1500 to 2000 spectators was constructed. The MCD has now undertaken the construction of a covered basket ball stadium by increasing the width by 9‟-3” from points „A‟ WP(C) 6950 of 2009 Page 12 of 52 to „D‟ and „B‟ to „C‟ and by increasing the length by 34‟- 3” from point „D‟ to „C‟ as shown in the map submitted by learned Amicus Curiae. As per the sanctioned plan the new stadium will be fully air conditioned and a shopping complex is also provided in the stadium. The North-East block has no trees or vegetation. The entire remaining area is barren wherein four huge marriage pandals, which appear to be semi-permanent have been constructed. A tar road admeasuring about 600 feet in length and 100 feet in width has been constructed within the park, apparently to be used for access to the marriage pandals and for parking. Learned Amicus Curiae has opined that the setting up of the pandals along with pantry/cooking facilities, installation of huge electric generators and construction of the road in the District park (Green Area) prima facie may be in violation of the Master Plan and the Zonal Plan. Learned Amicus Curiae has reported that each of the four marriage slots is leased out by the MCD for a meager amount of Rs.5000/- per event. It is also reported that just behind the marriage pandals lies a small room which is used as a gym which is lying in neglected condition. 4. Insofar as the North-West block is concerned learned Amicus Curiae has reported that there is a musical fountain located within this block, which is now deserted and it is not in operation for last several years. This entire area is lying unused and not serving any ecological function. It is further reported by learned Amicus Curiae that the remaining two blocks, viz., South-West and South-East are the only areas, which 3000 to 5000 people (approximately) are able to use for their morning walks by the senior citizen groups and for other recreational activities. However, a large part of the South-West block which has an exclusive well kept park, has been fenced by a grill and the access has thus become very restrictive. According to learned Amicus Curiae the condition of the South-West and South-East blocks needs to be improved upon. 5. Our attention is also brought to the order passed by the Supreme Court in M.C. Mehta versus Union of India & Ors., I.A. Nos. 20-22, 34 & 35 in Writ Petition (Civil) No. 4677/85. In this case, the Supreme Court expressed concern that large number of parks in the city are being used for construction of marriage pandals and for hosting other functions also. The Court observed that the permitted use of the parks being recreation under the Master Plan, it cannot be permitted for any other use. But at the same time, keeping in view the need of the WP(C) 6950 of 2009 Page 13 of 52 society, it is necessary to bring the parks back to their normal use in a sustained manner. The Court was of the view that the MCD, the NDMC and the DDA should in a phased manner stop granting of permission for use of the parks for commercial/marriage purpose. Consequently, the Court issued the following directions: “(1) The use of parks by the MCD, the NDMC and the DDA for the purposes mentioned above shall not be permitted more than 10 days in a month. In other words when any of the designated park is used for such purpose 10 days in a month, no function thereafter shall be permitted during the remaining 20/21 days. (2) The MCD, the DDA and the NDMC shall make endeavour to