IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (PIL) No. 20 of 2010 Shamsher Mehar and others ……… Petitioners. Versus State of Uttarakhand and others .………. Respondents. Mr. Rajendra Dobhal, Senior Advocate with Mr. Manoj Sah, Advocate for the petitioners. Mr. H.M. Raturi, Advocate for respondent Nos. 1 to 3. Mr. Anil Bisht, Advocate for respondent No. 4. Date of Judgment: 14.07.2010 JUDGMENT Coram: Hon’ble J.S. Khehar, C.J. Hon’ble Sudhanshu Dhulia, J. J.S. KHEHAR, C. J. (Oral) Within the municipal limits of Pithoragarh, there is a historic playground, popularly known as Dev Singh Playground. The Nagar Palika Parishad, Pithoragarh, according to the petitioners, has decided to construct a parking and shopping complex by using land falling within the area of the aforesaid playground. A resolution to the aforesaid effect was passed by the Nagar Palika Parishad, Pithoragarh on 31.08.2009, whereupon tenders were invited for the construction of car parking and shopping complex. It is the pointed case of the learned counsel for the petitioners, that the aforesaid car parking and shopping complex would encroach upon the existing area of Dev Singh Playground. It is in the aforesaid background, that the petitioners approached this Court pro bono publico by filing the instant writ petition to prevent the Nagar Palika Parishad, Pithoragarh from carrying out the aforesaid activity, which would destroy the sanctity of the playground. It is the pointed contention of the learned counsel for the petitioners, that the construction activity proposed at the hands of the Nagar Palika Parishad, Pithoragarh has been opposed by the Bar Association of Pithoragarh, members of the Vyapar Mandal, Pithoragarh, members of the Gram Pradhan Sangathan and representatives of the Samajwadi Party. Being the only playground, the petitioners feel that the destruction thereof resulting out of the 2 construction proposed by the Nagar Palika Parishad, Pithoragarh would deprive the residents of the area of a playing field, which will eventually affect the children, who need an open space to carry out their physical activities. It is submitted, that the playground in the past has been used to conduct tournaments and other sports activities. The playground has also been used for public meetings where well-known dignitaries and political leaders have been addressing the residents of Pithoragarh. 2. Being satisfied with the assertions made at the hands of the petitioners, an interim order was passed by this Court on 07.04.2010. It is necessary to extract the relevant portion of the aforesaid order. The same is accordingly reproduced hereunder: “Learned counsel for respondent no. 4 has handed over to us a Fax Message depicting the nature of activities, which are likely to be carried out on and adjacent to the Dev Singh Playground. The same is taken on record and marked as Annexure-A. Before any activity is carried out in the area, which has been a playground for the last over fifty years, it would be essential for the residents of the City of Pithoragarh to ensure that their rights under the Bye-laws of the Municipalities notified on 29.01.1972 are not violated, as also, their fundamental rights to use the play ground are not impinged. In view of the above, we consider it just and appropriate to restrain the respondents from digging or making any construction over the land comprised of the Dev Singh Playground. Ordered accordingly. Respondent No. 4 shall place on the record of this case the architectural plan for the proposed development activity for the consideration of the petitioners, as also, of this Court along with a counter affidavit. Counter affidavits on behalf of the respondents be filed in the Registry of this Court within four weeks from today with a copy in advance to the counsel for the petitioners.” On account of the interim order passed by this Court on 07.04.2010, no construction activity has been carried out. 3. The only issue agitated by the petitioners before this Court was, that the construction activity would reduce the area of the playground, and as such, the same will be detrimental to the interest of the sporting activity being carried out hithertobefore on the premises of the Dev Singh Playground. 3 4. In response to the averments made in the writ petition, separate counter affidavits have been filed by respondent Nos. 1 to 3. In the affidavit filed by respondent No. 1, it is inter alia asserted as under: “5. That the grievances of the petitioners are uncalled for inasmuch as the present length and width of the said Dev Singh Ground is not going to be reduced on the contrary the construction, which is being opposed by the petitioners is being raised in quite technical manner, which will facilitate the sports persons and the Public at large in Pithoragarh.” 5. In so far as respondent No. 2 is concerned, i.e. the Collector, District Magistrate, Pithoragarh, has averred in paragraph 27 of the affidavit filed in this Court, that the area of the land being used as a playground, would not be reduced in any manner, whatsoever. Paragraph 27 of the counter affidavit filed on behalf of respondent No. 2 is being reproduced hereunder: “27. That the contents of para 14, 15, 16 and 17 of the writ petition are wrong and denied. In reply thereof it is stated that the people of Pithoragarh, sports persons and the persons involved in cultural activities are in the favour of present project, because after completion of project the people of Pithoragarh will get a modern stadium with full amenities. Moreover, by project the ground is not being reduced even by an inch and on the contrary the people of the city will get benefit of car parking and shopping complex.” Likewise the Superintending Engineer, Public Works Department, Pithoragarh, who is associated in sanctioning the construction works under reference and will be responsible for supervision and execution thereof, in his counter affidavit has reiterated the factual position brought to the notice of this Court by respondent Nos. 1 and 2. In this behalf, paragraphs 15 and 16 of the counter affidavit filed by respondent No. 3 are being extracted hereunder: “15. That it is stated that below the spectators stand on both sides i.e. south and east side (80.54 X 8.06 meter and 41.51 X 4.85 meter respectively) on ground floor and in first floor the construction of shopping complex is to be raised and on the 80.54 X 14.63 meter excavated inner part, the underground double storey car parking is to be constructed in which 120 cars can be parked and the same thing will be done in the east side of the playground. 16. That it is stated that by doing these all development works the length and width of the present playground will not be decreased in any manner and on the contrary the play ground will be converted into a modern and beautiful stadium. Not only this, the whole ground will be leveled properly and will be equipped 4 with modern drainage system so that the water may not stay over the ground, as is happening at present.” 6. The Nagar Palika Parishad, Pithoragarh was directed by this Court vide its order dated 07.04.2010 (extracted hereinabove) to place on the record of this case architectural plans proposed for the development activities. In furtherance of the directions issued by this Court, the architectural plans have collectively been appended to the counter affidavit filed on behalf of respondent No. 4, i.e. the Nagar Palika Parishad, Pithoragarh, as Annexure 2. Besides placing on the record the aforestated architectural plans, respondent No. 4 has also denied the factual position asserted at the hands of the petitioners, that the area of the playground under reference would be reduced. In this behalf, paragraphs 15 and 20 of the counter affidavit filed on behalf of respondent No. 4 are being reproduced hereunder: “15. That it is stated that by doing these all development work the length and width of the present play ground will not be decreased in any manner and on the contrary the play ground will be converted into a modern and beautiful stadium. Not only this the whole ground will be leveled properly and the modern drainage system will be applied so that the water may not stay over the ground, as is happening at present. 20. That the contents of the paragraph no. 3 of the writ petition are wrong and denied. In reply thereof it is stated that the shopping complex is being constructed below the ground level and the car parking is the underground car parking. Meaning thereby by present project the length and width of the ground is not going to be reduced in any manner and on the contrary after completion of the project the ground will be converted into a modern stadium with full amenities. Allegations to the contrary are baseless and misconceived.” 7. During the course of hearing, it emerged from the submissions advanced by the learned counsel for the respondents, that although some digging activities will be carried out in the existing playground, but the eventual civil construction made would be below the level of the playground. In the area over which such digging activity and construction would be carried out, earth would be re-filled, so as to restore the surface area, as it presently exists. The re-filled area will also constitute a part of playground. 5 8. In view of the assertions made in the separate counter affidavits filed on behalf of respondent Nos. 1 to 4, it emerges that the petitioners had approached this Court under a mistaken belief. Although digging activity is to be carried out in the existing playground, yet on the eventual completion of the project initiated by the Nagar Palika Parishad, Pithoragarh the surface area of the ground would be restored to its original position. It is submitted, that the planned construction activity will result in the creation of double level parking area, besides a shopping complex, which will be in the welfare and interest of the residents of Pithoragarh. Additionally, it is pointed out that beyond the existing area of the playground further construction would be made, whereby spectators stand/pavilions will be constructed. This again, according to the learned counsel for the respondents, will add to the ambience of the playground. It is submitted, that any of the activity presently been undertaken on the playground will not be diminished in any manner, whatsoever. It is, therefore, not possible for us to accept the contention of the learned counsel for the petitioners, that the area of the playground would be reduced after the activity planned by the Nagar Palika Parishad is complete. 9. Besides the contention advanced by the learned counsel for the petitioners (as has been noticed hereinabove), leaned counsel for the petitioners invited our attention to a notification dated 29.01.1972 issued by the State Government, wherein pointed reference has been made to Regulation 3 thereof, which expressly provides, that no person would be permitted to demolish any existing wall or railing in a Nagar Palika Parishad nor would any person be permitted to dig earth in the area of the Nagar Palika Parishad. It is pointed out, that respondent No. 4, while carrying out the activity of civil construction, is bound to dig a part of the playground in complete derogation and violation of Regulation 3 contained in the notification dated 29.01.1972. Despite the incorporation of the aforesaid regulation, learned counsel for the petitioners very fairly stated, that the activity of digging or the activities contemplated under Regulation 3 of the notification dated 29.01.1972 can be carried out after permission has been obtained from the Prescribed Authority, although it is 6 the contention of the learned counsel for the respondents, that no such permission is required in the execution of the activities of the Nagar Palika Parishad itself for which reliance has been placed on Section 8 of the Uttar Pradesh Municipalities Act, 1916, which is being extracted hereunder: “8. Discretionary functions of Municipalities. - (1) A Municipality may make provision, within the limits of the Municipality and with the sanction of the Prescribed Authority outside such limits, for- (a) laying out, in areas whether previously built upon or not, new public streets and acquiring land for that purpose and for the construction of buildings, and their compounds, to abut on such streets; (aa) preparing and executing Master Plan ; (b) constructing, establishing, maintaining or contributing to the maintenance of libraries, museums, reading rooms, radio receiving stations, leper’s homes, orphanages, baby – folds and rescue homes for women, lunatic asylums, halls offices, dharamshalas, rest- houses, encamping grounds, poor- houses, dairies, baths, bathing ghats, washing places, drinking fountains, tanks, wells, dams and other works of public utility ; (c) [ ***] (d) Furthering educational objects by measures other than the establishment and maintenance of primary schools; (e) taking a census, and granting rewards for information which may tend to secure the correct registration of vital statistics; (ee) granting rewards for information leading to the detection of evasion of tax imposed under this Act, or the detection of the causing of injury to or encroachment on property vested in or entrusted to the management and control of the Municipality; (f) [ *** ] (g) giving relief on the occurrence of local calamities, by the establishment and maintenance of relief works or otherwise; (h) [ *** ] (i) securing or assisting to secure suitable places for the carrying on of any trade or manufacture mentioned under sub-head (a) of heading G of Section 298; (j) establishing and maintaining a farm or factory for the disposal of sewage; (jj) making arrangements for preparation of compost manure from nightsoil and rubbish; 7 (k) constructing, subsidizing or guaranteeing tramways, rail-roads or other means of locomotion and electric or gas lighting or electric or gas power works; (kk) promoting tourist traffic ; (l) holding fairs and exhibitions; (ll) preparing and executing House and Town Planning Schemes; (lll) taking measures to promote trade and industry ; (llll) supply of milk; (lllll) establishing Labour Welfare Centres for its employees and subsidizing the activities of any association, union or club of such employees by grant or loan, for its general advancement; (llllll) Organizing or contributing to Municipality Unions ; (m) adopting any measure, other than a measure specified in Section 7 or in the foregoing provisions of this Section likely to promote the public safety, health, or convenience; and (mm) removing social disabilities of scheduled castes and backward classes in such manner as may be prescribed; (mmm) taking measures for the control of beggary; (n) the doing of anything whereon expenditure is declared by the State Government or by the Municipality with the sanction of the Prescribed Authority to be an appropriate charge on the Municipal fund: Provided that the State Government may in respect of any Municipality or all Municipalities, by notification in the official Gazette, declare any of the functions mentioned in this section to be a duty of Municipality or Municipalities concerned and thereupon the provisions of this act shall apply thereto as if it had been duty imposed by Section 7. (2) A Municipality may make provision for the extension beyond the limits of the Municipality of the benefits of any Municipal undertaking; Provided that no provision shall be made for the extension of the benefits of a Municipal undertaking for the supply of water to any local area which comprises or contains the whole or a portion of a cantonment without the previous sanction of the Central Government. (3) [***]” Despite the aforesaid, learned counsel for the petitioners invited our attention to Sections 6 and 17 of the Uttar Pradesh (Regulation of Building Operations) Act, 1958. It is not necessary for us, while disposing of the instant Public Interest Litigation, to determine the veracity of the submissions advanced by the learned counsel for the rival parties, since we had taken up the instant petition as a cause in public interest, when notice of this Court was invited to the fact, that the area of 8 a historical playground was being used for civil construction, namely, the construction of parking areas, shopping complexes, etc. Thus viewed, we restrain ourselves from recording any conclusion on the aforesaid aspect of the matter. Needless to mention, that if any such permission is required for the construction activity sought to be undertaken by respondent No. 4, the same shall be obtained by respondent No. 4 in accordance with law. 10. The instant writ petition stands disposed of in the aforesaid terms. (Sudhanshu Dhulia, J.) (J.S. Khehar, C. J.) 14.07.2010 14.07.2010 Amit