JUDGMENT Ravi S. Dhavan, J. - The city of Allahabad once had a park known as Alfred Park; it is called the Motilal Nehru Park today. The past tense is relevant as this has occasioned the present writ petition under Article 226 of the Constitution of India. Parks lose their character at times when they are ill kept, not maintained and far from being green manicured open spaces fall into decay and have more shrubs than lawns. The other factor which erodes a park's usefulness as a park is when the discipline of urban planning is abdicated and laws which govern them are violated and open spaces like parks are encroached upon and covered with man made structures. In the case of the Alfred Park, unfortunately, both have happened. 2. The planning of Sir Edwin Lutyen's New Delhi began around 1911 when, during the time of Lord Curzon, King George at the Great Durbar announced that the transfer of the capital of the Government of India from Calcutta to the ancient capital of Delhi. People of Delhi were joyous. But, more than half a century before the plan of New Delhi was on the drawing boards the city of Allahabad as a modern metropolis had been conceived with broad avenues and roads as far as possible cross-crossing each other and running north to south or east to west surrounded on three sides by cantonments with a civil station as a nucleus and in between the park known as the Alfred Park was part of the planning. It was an area of approximately 131 acres with open stretches of huge tamarind and neem and some pipal trees. The 1911 District Gazetteer of the United Provinces of Agra and Oudh on Allahabad records "Greater part of the old south cantonment from the Thomhill Road on the north to the cantonment road on the south is taken up by Alfred Park, a public green of about 133 acres which forms the chief ornament of Ailahabad". The Thomhill Road today is known as Maharishi Dayanand Marg and the cantonment Road is Mahatma Gandhi Marg. The Alfred Park, as stated above is the Motilal Nehru Park. Chandra Shekhar Azad an associate of Bhagat Singh was shot in this parkin 1931; an area in the Park, at the north is named after him and has his bust as a memorial. The Alfred Park, as stated above is the Motilal Nehru Park. Chandra Shekhar Azad an associate of Bhagat Singh was shot in this parkin 1931; an area in the Park, at the north is named after him and has his bust as a memorial. The Gazetteer records that within this park, the Thomhill-Mayne Memorial, a combined museum and library, was erected in 1878 and dedicated in their names. C. B. Thomhill and F. O. Mayne were for a very long time associated in the administration of the district and thus the memorial in their names. Today, it is a public library. The Gazetteer also records that apart from the memorial aforesaid, the residence of the Superintendent of the Government Gardens is set in the southwest corner of the park. Barring these two buildings or structures, the park was an open space blending natural environment with urban planning. 3. The Gazetteer of India, Uttar Pradesh on Allahabad has this to record on the park; "To the east of Kamla Nehru Road and south of Baehaji Road lies a spacious Motilal Nehru Park (formerly known as Alfred Park) which is the attraction of the city. In it are Thomhill-Mayne Memorial (erected in 1878) which had a combined museum and public library, only the latter (which has a large number of rare and important books) now being in existence; and the Allahabad Museum, which is maintained by the Municipal Corporation. It also contains the Azad Memorial in memory of Chandra Shekhar Azad, a revolutionary who was shot and died in this park in an encounter with the police in 1931, the buildings of the Gymkhana Club, Stadium, Ganga Nath Jha Institute and Prayag Sangit Samiti." 4. The disappearance and the whittling of the open spaces of the park have thus even been recorded by the Official Gazetteer. 5. The Allahabad Master Plan 1967-1991 prepared by the Allahabad Survey Division, Town and Country Planning Department, Uttar Pradesh refers to four existing city parks in Volume 1 at page 107, the references are; (1) Alfred Park, (2) Khusroo Bagh, (3) Minto Park, and (4) Macpherson Park. In a reference to Alfred Park it mentions : "(i) Alfred Park: It is the most important city park. From the point of view of location, it occupies more or less central position of the entire physical development of the town. In a reference to Alfred Park it mentions : "(i) Alfred Park: It is the most important city park. From the point of view of location, it occupies more or less central position of the entire physical development of the town. Moreover, it is situated in the Civil Lines area which is an important part of the town. The total area under this park is approximately 132 acres. A number of important community buildings such as a stadium, a museum and a public library are located in this park. This park achieved historical importance with the martyrdom of Chandra Shekhar Azad, an important revolutionary of freedom struggle of India. Most of the area of this park is not properly developed and maintained at present. Special development proposal should be prepared for its improvement." 6. By and large irregularities of urban planning or mistakes are unnoticed. It is also not common for citizens in our country to keep those in charge of urban planning in check when urban planning laws are violated whether at the instance of individuals or the agencies of the State. Alfred Park was no exception and it saw encroachments like an octopus spreading its tentacles. 7. The north-west corner of the park by the Ganganath Jha Kendriya Sanskrit Vidyapeeth (G. N. Jha Research Institute), Rashtriya Sanskrit Sanathan, Shiksha Avam Sanskrit Manthayalay, Government of India. The south-west corner, more west than south by the Prayag Sangit Samiti and the Hindustani Academy. The south-west corner of the park by the Ladies Club. The northwest corner by the Allahabad Museum. The central cost of the park by the Motilal Nehru Sports Stadium. Next to the stadium towards he south is the Gymkhana Club; it has more lawns than buildings. The lawns were once B lush green, today they are parched. These encroachments are with State permission. South of the stadium has sprung up an uncouth structure which looks like an aircraft hanger with its roof set on triangular steel structures. A Hindu religious organisation has usurped this area. 8. Over the years these building activities began in 1950s 60s and 70s, unabated and unchecked with the consent of the State Government. Between the Government and the builders, they were totally oblivious that the character of the park was disappearing and the citizens were having less and less open space. A Hindu religious organisation has usurped this area. 8. Over the years these building activities began in 1950s 60s and 70s, unabated and unchecked with the consent of the State Government. Between the Government and the builders, they were totally oblivious that the character of the park was disappearing and the citizens were having less and less open space. The Master Plan of Allahabad makes a mention of these unfortunate circumstances. 9. During the winter of 1986-87 one Arun Kumar a resident of 121 Tagore Town, Allahabad came rushing to this Court that on a part south of the park its walls were being increased in height and behind this and away from public view yet another building was coming up. This building was being constructed next to another building which has been completed recently and not yet occupied. He complained that this building activity was illegal, against the law which controls urban planning and open spaces and that there is nothing being left of the park. He sought stay of the construction of the building which was in the offing and an injunction to prevent occupation of the other which had recently been constructed. The two buildings are virtually next to each other at the south of the park entrance opposite St. Josephs College. This Court granted an ad interim order directing the respondents to cease construction of the building and prevent the occupation of the one which had been completed recently. The injunction of this Court was violated as the construction activity continued despite the ad interim order of this Court. An unconditional apology was tendered before this Court by the Superintendent, Government Gardens, respondent No. 3. The apology in an affidavit is on record. 10. In the writ petition the reliefs sought are (a) demolition of the two buildings being constructed recently, (b) prevention of further encroachment of the park by erecting buildings, (c) restoration of the identity of the park by removing constructions in it, id) not to erect any tube well etc. within the precincts of the park, (e) to certify in reference to the Master Plan of Allahabad that the constructions in the Alfred Park and other parks of Allahabad are illegal, (f) to stop the construction of the building being erected, in reference to (a) above; and to prevent the occupation of the building recently completed in reference to (a) above. 11. 11. Notice was issued to the respondents and on more than one occasion this Court granted an opportunity to all of them to file an affidavit in reply to the writ petition. An affidavit was filed by the Superintendent, Government Gardens, respondent No. 3 on behalf of his department and State of Uttar Pradesh. The city corporation known as Nagar Mahapalika, Allahabad and the Allahabad Development Authority, a body corporate under the Uttar Pradesh Urban Planning and Development Act, 1973 have not filed their affidavits despite opportunity being granted on more than one occasion. 12. In the counter-affidavit on behalf of the respondents Nos. 3 and 4 there was a discrepancy in the area of the park. The counter-affidavit mentions an area which stood contradicted from what was mentioned in the Gazetteer of the United Provinces of Agra and Oudh or Allahabad, 1911 at page 205 and the Allahabad Master Plan, aforesaid at page 107. The Gazetteer mentions an area as about 133 acres and the Allahabad Master Plan as about 132 acres. In the counter affidavit of the respondents placed before this Court it is mentioned as 188.2 acres. 13. This is a major discrepancy and it is of more than 50 acres and cannot be overlooked so easily. This Court thus thought it appropriate to commission an Architect and Surveyor to survey the park and report on its area and the area .occupied by the buildings and their appurtenances so that we could as a matter of certainty have an idea of much of the park is unusable as a park. In our directions to the Architect and Surveyor we asked him not to report on the area occupied by the Thomhili-Mayne Memorial building and the residence of the Superintendent, Government Gardens for the reason that these were mentioned in 1911 Gazetteer and earlier official record to which this Court will refer later. The Architects and Surveyors were Messrs Parvez Nasirand Ritu Nasir, graduates of the Thompson College of Civil Engineering at Roorkee. This Court had directed the Registrar, High Court to enquire from them whether they would volunteer to render honorary service for a public cause so that the expense of the survey is not saddled on any person, should there be misdemeanour in planning. The Architects and Surveyors aforesaid informed the Registrar that they would offer honorary services to the Court. This Court had directed the Registrar, High Court to enquire from them whether they would volunteer to render honorary service for a public cause so that the expense of the survey is not saddled on any person, should there be misdemeanour in planning. The Architects and Surveyors aforesaid informed the Registrar that they would offer honorary services to the Court. The Court permitted the parties to file objections against the survey report when submitted. The reports of the Architects and Surveyors are dated 6th April 1987 and 13th April 1987, one preliminary and the other final and are on record of the writ petition. Against these the Superintendent, Government Gardens filed objections and these are also on record. 14. During the pendency of the writ petition there were intervenors, 16 of them, students of the University of Allahabad and residents of Madan Mohan Malviya University Hostel, formerly known as the Hindu Hostel, It is one of the largest hostels of the University of Allahabad housing its students and it is directly opposite the north-west comer of Alfred Park. These students contend that as the park is opposite to their hostels they use the park in the mornings and evenings for their physical exercises viz., jogging and running and have been doing this for some years during their period of residence in the hostel. These intervenors contend that they have objection to the buildings which are being constructed in the park and have already been constructed and submit that if indeed buildings have to be constructed then a hostel for the students of the University of Allahabad should be erected inside the park. It is submitted on behalf of the students that there is dire need for residential accommodation,. for the students of the University and hostels are lacking and if a park is being utilised for building purposes then it is better that hostels be constructed on it, on the same principle that the State Government permitted other buildings to be constructed over the years. Simultaneously, these intervenors contend that the park is otherwise to be reserved for hundreds of students who use the park a quiet area where they study also. They accept that the park is utilised by many retired people and children. Simultaneously, these intervenors contend that the park is otherwise to be reserved for hundreds of students who use the park a quiet area where they study also. They accept that the park is utilised by many retired people and children. It is contended by these intervenors that the law prohibits the disfigurement of any park by putting buildings in it as it renders useless the purpose for which a park is laid. 15. There is another set of intervenors, nine of them. They appear to be supporting the Superintendent, Government Gardens to for fifty his stand that one of the buildings constructed recently which the petitioner says is illegal is being used for Home Science and training in Culinary art being imparted by the State Government, Food and Science Training Centre at Allahabad. These intervenors have nothing to say whether the constructions in the park are legal or illegal. They have access to the State record to show that the building was occupied recently when the venue of their training in Home Science courses was shifted from a building near the park at Sardar Patel Marg to inside the park. Upon being called whether they had to say anything about the controversy in the writ petition their counsel had nothing to offer except that the stay order granted by this Court should be vacated. No submission was made on merit. 16. The Standing Counsel offered submission behalf of the respondent No. 3 the Superintendent, Government Gardens, U. P. and the State of Uttar Pradesh. The first argument on behalf of the State was that the Alfred Park was not a public park but a horticulture garden and no member of the public or citizen of Allahabad had any locus standi to question the manner in which it was kept, maintained or permitted to be built upon at the discretion of the State. The second argument of the learned State Counsel was that the State had the sole discretion to do what it likes with the gardens maintained by it and this discretion included the granting permission to build in the park. The this argument on behalf of the State was that State Government maintains certain gardens and parks for its own purpose and it is any ones business to tell the State Government what it may do with its parks, gardens and open spaces. The this argument on behalf of the State was that State Government maintains certain gardens and parks for its own purpose and it is any ones business to tell the State Government what it may do with its parks, gardens and open spaces. The fourth argument of the learned State Counsel was that now the constructions have already been made and some are in the process of being made, and immense funds have been spent on these constructions and it would not be in the interest of anyone to question the building which have been made in the park. 17. These submissions have been Madel by the learned Standing Counsel when the court had sought a clarification on how in a public park buildings had been permitted be set up and multifarious activities now connected with the park had been permitted to us room within it precincts. On the firm submission on behalf of the State it was submitted that the State had the right to regulate its open spaces in any manner ill desired and it was in pursuance of this right that certain places were carved out of park and were given on lease to if organisations which occupied the park today. The encroachments in the park wet explained, thus. 18. This Court called upon the State Counsel to instruct the Court, in its defendant in a reference to the law which governs spaces, public gardens and public parks, the concept of planning controlled by legislation and certain decisions of the Supreme Court in reference to urban planning. Learned Standing Counsel while addressing the Court on these issues conceded that it was incorrect and irregular for the State to permitted the encroachments of the pail when buildings were constructed upon all whether by the State Government who had received permission to constant buildings. It was not denied by the Standing Counsel that the area of the park it originally stood for use of the public to been reduced. But, the Standing Counsel justified the upcoming construction sandi existing constructions on the ground dial) firstly the mistake had already been made and secondly the right of the State to build on public places was unfettered. The attention drawn by the Court to the Master Plan, the law and the decisions of the Supreme Court, was evaded. 19. But, the Standing Counsel justified the upcoming construction sandi existing constructions on the ground dial) firstly the mistake had already been made and secondly the right of the State to build on public places was unfettered. The attention drawn by the Court to the Master Plan, the law and the decisions of the Supreme Court, was evaded. 19. What is the remedy in such a situation is the issue before this Court, if illegal encroachments of public places continue what ought to be the scope of interference by this Court? If a citizen demands the performance of a statutory duty that urban planning must strictly conform to the legislation which controls it and the laws which monitor urban planning must be adhered to strictly, how is the Court to watch the larger interest of the public? If everything proceeded in accordance with law, and urban planning is no exception, Then there would be no occasion for the citizens to vent their grievance. City life is to be organised, civic sense is consciousness not of the individual alone but also an obligation of the body politic known as the State Urban planning is for the better enjoyment of a city. Mostly the common man is the beneficiary of a planned urban environment. Public places like public streets and parks are inviolate and are to be protected (or the purpose for which they are dedicated. Their use is dedicated to the public whether under general law or special legislation. 20. Every modern city has a blue-print of planning known as its Master Plan. It is sacrosanct. The making of the Master Plan has undertaken an amalgam of every conceivable detail of the local conditions of the urban area whose development is planned and regulated. The details are topography, demography, correlating area with density, the needs of the city and its peoples. These are the broad features. 21. Inasmuch as the State Counsel submitted vehemently that it is not a public park this Court finds it difficult to accept this contention as this park finds references in official gazettes of the State Government even as early as 1911, if not earlier. 22. The Statistical Descriptive and Historical Account of the North Western Provinces of India, Vol. VIII Part II Allahabad, published by the North Western Provinces and Oudh Government Press, at Allahabad, in KM. 22. The Statistical Descriptive and Historical Account of the North Western Provinces of India, Vol. VIII Part II Allahabad, published by the North Western Provinces and Oudh Government Press, at Allahabad, in KM. This is a report published by the then State Government. It says "The Alfred Park is the chief ornament of Allahabad." The only building it refers to is the Mayne and Thomhill Memorials and the houses of the park employees, reference to which is made in 1911 Gazette. This report of 1884 also records that a civil station of Allahabad was laid out just after the Mutiny under the superintendence of the then Commissioner, Mr. C. B. Thomhill after whom the road which runs north of the park had been named. 23. The District of the United Provinces of Agra and Oudh-Volume 23 on Allahabad published in 1911 refers to Alfred Park as a "public garden". Fifty five years later the Gazetteer of India, Uttar Pradesh, Allahabad mentions the same park as Motilal Nehru Park and calls it as "one of the chief attractions of the city". The Allahabad Master Plan, 1967-1991 prepared by the Allahabad Survey Department and Country Planning Department, State of Uttar Pradesh makes a mention of this park in more than one places and refers to it as "the most important city park". These references are from official documents and leave no room for doubt that it is a public park dedicated for the benefit and enjoyment of the citizens of Allahabad. 24. On behalf of the State Government it is not denied that the urban planning of Allahabad is subject to the Allahabad Master Plan which will remain in force till 1991 and as already stated this Master Plan has been prepared by the State of Uttar Pradesh by its Town and Country Planning Department. The Master Plan of any town or city in the State has a statutory sanctity under the Uttar Pradesh Urban Planning and Development Act, 1973 hereinafter referred to as the 1973 Act. Parks and open spaces of Allahabad find a mention in the Master Plan. The Master Plan of Allahabad in a reference to Alfred Park mentions' most of the area of this park is not properly developed and maintained at present. Special development proposal should be prepared for its improvement". 25. Parks and open spaces of Allahabad find a mention in the Master Plan. The Master Plan of Allahabad in a reference to Alfred Park mentions' most of the area of this park is not properly developed and maintained at present. Special development proposal should be prepared for its improvement". 25. The Master Plan had laid down a policy for parks and open spaces in reference to this, it records : - "4.9. Policy for parks and Open Spaces : After evolving standards for parks and open spaces, next step involved is the implementation part of it in the shape of actual provision of open spaces, parks, playgrounds etc. for the city and their maintenance. Considerable financial implication will arise towards the purchase of such land for parks, their development and maintenance and providing them free for public use. This item, therefore, forms an appreciable part of city's finance. In order to meet the Master Plan that in accordance with the open space standards on assessment of total land required to be developed as public open space in the form of parks, playgrounds, tot-lots etc. should be made on the basis of each residential pocket as defined by major road system or any other distinguishing feature of land use plan proposed in the Master Plan. The total expenditure involved to this effect may then be realised from the benefited owners of the plots along with the development charges in such a proportion so that the plots located in more advantageous positions with respect to the proposed parks and playgrounds should carry proportionately higher charges. In case of corporate bodies or co-operative societies and other residential development bodies, it shall be the responsibility of concerned bodies to ensure necessary provision of open spaces, parks and play grounds as per standards. Municipal Corporation will maintain all the public open spaces out of the taxes from the public imposed especially for this purpose. All the proposed major open spaces such as district parks, regional parks etc. have been shown in the Master Plan land use in the Zonal Development Plans and detailed lay out plans." 26. The Master Plan reviews the existing conditions in reference to the distribution of open spaces available within the urban agglomeration of Allahabad for its residents. The observations in the Master Plan are in reference to 1961 census. have been shown in the Master Plan land use in the Zonal Development Plans and detailed lay out plans." 26. The Master Plan reviews the existing conditions in reference to the distribution of open spaces available within the urban agglomeration of Allahabad for its residents. The observations in the Master Plan are in reference to 1961 census. The report in the Master Plan is that open places available in the city of Allahabad are illusory, as large chunks of open spaces otherwise belong to the military for the cantonments or are near the river for the Kumb Mela and these spaces are not available to the public. It is necessary to reproduce what the Town and Country Planning Department has to say in reference to other parks so that authentic assessment gives an idea of the state of the parks of the ^ city and the availability of open space in proportion to the population. It would be best to reproduce the report from the Master Plan in reference to the context : 4.7.1. Review of Existing Conditions (a) Distribution of open spaces: Parks and open spaces cover a total area of 2,549 acres out of the total urban area of 20,128 acres. Thus the area under open spaces and parks constitute about 12.6% of the total urban land. Further, as per 1961 census the population of Allahabad being 4,30,730 persons, the average distribution of open space per thousand population comes to about-6 acres. On the face of it this appears very satisfactory, whereas the actual situation is otherwise, the reason being that about 99.0% of open land is not within the actual purview of the general public. Of the total open land approximately 2,064 acres i.e. 81.0% belong to the cantonment, a part of which is occasionally utilised for the Kumb and other melas. Approximately 259 acres i.e. 10.5%of open land are occupied by four major parks of the city viz. Alfred Park, Khusroo Park, Me. Pherson Park and the Minto Park. Only a small area of approximately 36 acres i.e. 1.0% of open land is available in the immediate vicinity of residential areas in the form of children parks and other local parks. The remaining 190 acres i.e. 7.5% of open land is scattered all over the city in the form of undeveloped land. Pherson Park and the Minto Park. Only a small area of approximately 36 acres i.e. 1.0% of open land is available in the immediate vicinity of residential areas in the form of children parks and other local parks. The remaining 190 acres i.e. 7.5% of open land is scattered all over the city in the form of undeveloped land. From the above it can be observed that open spaces exist in big chunks and not in relation to the needs of the residential neighbourhoods. The congestion in the core of the city has left no space for recreational use where they are needed most. The following table gives a comparative distribution of open spaces in the major parts of the city which shows that the southern part comprising wards Nos. 9 to 27 of mostly old city, has extremely poor share of open spaces. This is evidenced from the majority of slum areas existing in this part of the city. Table No. 4.11 Distribution Of Areas Under Parks And Open Spaces In The Major Parts Of Allahabad City Divisions Population 1961 Area In Acres Space Per 1000 Population Park Open Spaces Total Parks Open Spaces Total 1 2 3 4 5 6 7 8 A. North (Wards-1-8) Including Civil Lines 1,21,556 151.0 100.0 251.0 1.2 0.9 21.1 B. South (Wards-9-27) Including Chowk 2,91,529 100.0 71.3 171.3 0.3 0.2 .5 C. Cantonment 17,529 63.0 2063.8 2.126.8 2.9 118.4 121.3 Total 4,30,730 314.0 21,235.1 2549.1 0.7 5.2 5.9 (b) Existing city parks. There are only four major city parks which are existing at present. These are described as below : - (i) Alfred Park. It is the most important city work. From the point of view of location, it occupies more or less central position of the entire physical development of the town. Moreover, it is situated in the Civil Lines areas which is an important part of the town. The total area under this park is approximately 132 acres. A number of important community buildings such as a stadium, a museum and a public library are located in this park. This park achieved historical importance with the martyrdom of Chandra Shekhar Azad, an important revolutionary of freedom struggle of India. Most of the area of this park is not properly developed and maintained at present. Special development proposal should be prepared for its improvement. This park achieved historical importance with the martyrdom of Chandra Shekhar Azad, an important revolutionary of freedom struggle of India. Most of the area of this park is not properly developed and maintained at present. Special development proposal should be prepared for its improvement. (ii) Khusroo Bagh : It is another major park, which is situated along G. T. Road towards the old city side. The total area under this park is roughly 64 acres. It is a historical park laid out in typical Mughal style by emperor Jehangir and contains the tombs of Khusroo, his mother and sister. These tombs are being preserved as archaeological national monuments. For the present this park has little value as a public space because its considerable part has been occupied by the Allahabad Water Works and the nursery gardens. Only a small part around the monuments is available for public use. It is proposed that entire area, leaving the part under Allahabad Water Works, should be properly laid out in the typical Mughal style for the public so that it may serve as an important land mark of the city. (iii) Minto Park : it is situated along the Yamuna Bank Road and covers roughly an area of 13.6 acres. More than half of the area of this park is under cultivation of guava fruit. (iv) Mepherson Park : It is situated within the Cantonment and covers an area of about 49.16 acres. This park does not have free access for the civilian public. Moreover it is situated at a considerable distance from the city. 4.8.II.Proposals. Open space standards : - Open spaces in residential areas are important mainly from the points, of view of health and recreation. Health requirements i.e. ventilation, air and light, are marked out by means of spacing the buildings and by providing set-backs from the plot lines of individual plots. Open spaces as obtained in this way forms part of the building plot itself it the form of individual property and is not so important for the community as a whole. In order to facilitate out-door recreational needs of the community, provision of land in the form of organised open spaces and in elective ownership is necessary, if the entire facility has to be provided for the real benefit of the community. In order to facilitate out-door recreational needs of the community, provision of land in the form of organised open spaces and in elective ownership is necessary, if the entire facility has to be provided for the real benefit of the community. A correct determination of open spaces for out-door recreational purposes is, therefore, more important from the view point of planning residential areas and it is this part which has been discussed here for the purpose of determining open space standards. (a) At local level : Total amount of open space Open space unless staled otherwise shall here mean organised, maintained and developed open land for out-door recreation as required for a residential area can lie divided into two categories of parks and playgrounds the former for passive outdoor recreation and the latter for active out-door recreation. The amount of land required for parks and playgrounds is directly related to different age groups and other economic conditions of the people. For example, small tot-lots and playgrounds are provided for smaller children and bigger open areas as playgrounds and parks for the grown up children and the adults. Hence, in order to arrive at a suitable system of open spaces a proper knowledge of age group. Since human society is extremely dynamic, the standards for open spaces, have not been proposed specifically in terms of parks, playgrounds and open spaces, rather they have been proposed in terms of total space required for this purpose so as to provide maximum flexibility in the detailed development proposals. Total open space, as required for a particular development, may be divided in the form of children tot-lots, parks, play areas etc. as desired all the lime of the preparation of detailed lay out plans. The minimum size of a lot-lot should not be less than 0.05 acre in area and that of a children park and a playground 0.25 acres each, with the smallest sides not to be less than 50 ft. in ease of tot-lots and 75 to 100ft. in ease of children park and playground. Since the requirement of open spaces is a function of total population, the open space standards have also been expressed in terms of acreage per 1000 population with density varying from 60 to 200 persons per acre as shown in table given below : 27. in ease of tot-lots and 75 to 100ft. in ease of children park and playground. Since the requirement of open spaces is a function of total population, the open space standards have also been expressed in terms of acreage per 1000 population with density varying from 60 to 200 persons per acre as shown in table given below : 27. The pressure on open space can best be visualised from the table in the Master Plan. Item in the table refers to cantonments. This is not being taken into account as in the cantonments the utilisation of open spaces is strictly regulated by the military or the Ministry of Defence and not accessible to the civil population easily The other two sections of the city north and south referred to again as item (A) and item(B) reflect lie congestion of the open spaces in Allahabad. This is in reference to the 1961 census, it is not necessary for this Court to upgrade this table in reference to 1971 or 1981 census as it is beyond a reasonable doubt that there is no controversy that open spaces have been curtailed and the population has increased. The population of Allahabad in 1971 was 5,42,103 and in 1981,7,73,588. 28. Thus, it is clear that those in-charge the parks in the city of Allahabad permitted the Master Plan to gather dust and paid no need to it when the planning of the city was being disrupted. Encroachment in the Alfred Park was only a part of it. 29. The Allahabad Master Plan has statutory sanctity both under the U. P. Urban Planning and Development Act, 1973 and the U.P. Nagar Mahapalika, Adhiniyam, 1959. Under the 1959 Adhiniyam, every city corporation in the city is to have a Master Plan. This is required under S. 383. It reads "383. 29. The Allahabad Master Plan has statutory sanctity both under the U. P. Urban Planning and Development Act, 1973 and the U.P. Nagar Mahapalika, Adhiniyam, 1959. Under the 1959 Adhiniyam, every city corporation in the city is to have a Master Plan. This is required under S. 383. It reads "383. Master Plan for the Mahapalika may, and if so required by the Table No. 4.12 Standards For Open Space (Parks And Playgrounds) Gross density Standard Minimum size of open space Total open space 1000 persons Tot-lot Children Adult Adult Play ground Adult Park Adult Playground Persons/acre 1 Acres 2 S.q. Yard 3 Acres 4 Acres 5 Acres 6 Up to 60 1.75 300 0.30 2.50 0.6 60-100 1.5 250 0.25 2.00 0.5 100-150 1.00 250 0.25 1.50 0.5 150-200 0.75 200 0.20 1.00 0.4 Table No. 4.13 Requirements Of Open Spaces (Parks & Playgrounds) For A Neighbourhood Of 20,000 Persons Gross density Tot-lot Children playground Adult Park Adult Playground. Persons /acre 1 Acres 2 Acres 3 Acres 4 Acres 5 Up to 60 3.00 5.00 18.00 9.00 60-100 2.75 4.50 15.75 7.00 100-150 2.00 3.00 11.00 4.00 150-200 1.50 2.00 8.00 3.50 Table No. 1.14 Access Standards 1 Or Open Spaces As Proposed In Allahabad Master Plan Facility 1 Maximum distance 2 Approx Walkable time 3 1. Tot-lot 1/8 mile 2-3 minutes 2. Children playground to mile 5.10 minutes 3. Adult park and playground Up to 3/4 mile 10-15 minutes. State Government shall prepare in the manner and subject to the conditions prescribed by rules made in this behalf of Master Plan for the city. Explanation - In this section "Master Plan" means a comprehensive plan showing therein the existing and proposed location and general layout of : - (a) Arterial streets and transportation lines; (b) residential section. (c) business areas; (d) industrial areas; (e) educational institutions; (f) public parks, playgrounds and other recreational facilities; (g) public and semi public buildings; (1) other land uses which are necessary. (2) A Master Plan shall be revised at the end of every 10 years and may be revised earlier if the Mahapalika so thinks it. (3) Notwithstanding anything in this Act, the improvement schemes and the layout of new streets, drains, parks, factories and buildings shall, as far as may be, be in conformity with the Master Plan. (2) A Master Plan shall be revised at the end of every 10 years and may be revised earlier if the Mahapalika so thinks it. (3) Notwithstanding anything in this Act, the improvement schemes and the layout of new streets, drains, parks, factories and buildings shall, as far as may be, be in conformity with the Master Plan. Provided that nothing in this section shall apply to the improvement schemes already sanctioned under the U. P. Town Improvement Act, 1919, or the Cawnpore Urban Area Development Act, 1945". 30. The 1973 Act, lays down the subject matters which a Master Plan may deal with. The approval of the plan, the procedure to be followed in the preparation and approval of the plan. This is in Chapter 111. The next Chapter IV, does provide for the amendment of the Master Plan, but in exceptional circumstances. 31. The Master Plan cannot be ignored, the confirming use of a land cannot be changed. The conforming use of a public place like streets, roads, parks, garden and open spaces cannot lose their character for which they have been dedicated. 32. The Alfred Park like any other public garden or park did not cease to be a public place even at the turn of the century and was protected as such even under the Municipalities Act, 1961 (1916) which defined public place : - "2( 18). "Public place" means a space, not being private property, which is open to the use or enjoyment of the public whether such space is vested in the board or not." 33. Under the 1916 Act was constituted the Allahabad Municipal Board. The Municipal Board became a city corporation under the Uttar Pradesh Nagar Mahapalika Adhiniyam, 1959 by which it came to he known as the Nagar Mahapalika, Allahabad. The definition of Public place was more or less pari material to the one in the U. P. Municipalities Act, 1916. U. P. Nagar Mahapalika Adhiniyam 1959 defines a public place as : "2(60). "Public place" includes any public park or garden or any ground to which the public have or are permitted to have access." 34. The definition of Public place was more or less pari material to the one in the U. P. Municipalities Act, 1916. U. P. Nagar Mahapalika Adhiniyam 1959 defines a public place as : "2(60). "Public place" includes any public park or garden or any ground to which the public have or are permitted to have access." 34. So there is no dearth of explanations under the law that Alfred Park like any other park in the city is a public place and notwithstanding whether it was governed under the Municipalities Act, 1916 or the U. P. Nagar Mahapalika Adhiniyam, 1959 it was protected against encroachment or from the change of its character as a park. Even otherwise, more than a century ago official records a reference to which has already been made earlier, dedicate the Alfred Park as a public park. 35. In Uttar Pradesh there is even legislation for the preservation of open spaces and public parks. It is called the Uttar Pradesh Parks, Playgrounds and Open Spaces (Preservation and Regulation) Act, 1975 being IJ. P. Act No. 55 of 1975 (hereinafter referred to as the 1975 Act.). The purpose of the 1975 Act is to provide for the preservation and regulation of parks, playgrounds and open spaces in Uttar Pradesh. Thus, looked at from any other angle, it is difficult for this Court to accept that there is no obligation upon the State to preserve open spaces, parks and playgrounds whether in Allahabad or any other part of the State. The obligation was always there when these open spaces had been dedicated for the public whether at the turn of the century or before. Subsequent legislation creating municipalities or city corporations made it a statutory obligation upon the local bodies to preserve these open spaces whether they were parks, playgrounds or gardens or public streets or pavements. 36. The Town and Country Planning Department of the State drew up the Master Plan for land development of the urban areas or towns or cities of this Slate. The Master Plan is a blue print and as far as possible it is not to be deviated from. One of the cardinal principles upon which the planning of urban area is undertaken is to defuse the agglomeration of population and separate it evenly so that civic amenities of a city can be enjoyed by every resident at its optimum level. One of the cardinal principles upon which the planning of urban area is undertaken is to defuse the agglomeration of population and separate it evenly so that civic amenities of a city can be enjoyed by every resident at its optimum level. Whether this concept is precipitated successfully is not the subject matter of debate before this Court. As it is the principle which matters that every person in the city has to contribute towards planning. The State is no exception. In fact, the residents did not expect that the State would violate its principles of urban planning. If that happens how would it check its citizens. 37. When this Court pointed out to the learned Standing Counsel on the obligation of the State to preserve and protect public places under the Master Plan, the legislation which governs urban planning, and the decision of the Supreme Court in reference to this, the only answer this Court received was that in reference to the 1975 Act the Alfred Park was neither an open space, nor a park or a garden. These expressions are used in the 1975 Act providing definitions in S. 2. The learned standing counsel submits that the Alfred Park is a horticulture garden of the State. The park is maintained by the Agriculture Department in which the administration of the park is vested. The administration of all the major gardens of the Style is vested with the Agriculture Department. This will cease to make Allied Park a public park. The Court drew the attention of the State counsel to the effect that the parks find mention in official publications of the Government in the last century as well as the present. The Court also finds that a list of parks was prepared in the report on the working and administration of the United Provinces Government Gardens for the year 1923-24 published in 1924. The compendium is entitled "A complete Set of Site Plans of the Major Gardens of the United Provinces the Administration of which is vested with Agriculture Department". This official publication lists the parks in Agra, Lucknow, Allahabad, Kumaon, Saharanpur and Dehradun. This is in reference to the major gardens of the State at that lime. Alfred Park as amongst many others, in the cities of the State is mentioned in this publication. This official publication lists the parks in Agra, Lucknow, Allahabad, Kumaon, Saharanpur and Dehradun. This is in reference to the major gardens of the State at that lime. Alfred Park as amongst many others, in the cities of the State is mentioned in this publication. Thus in so far as certain parts of Uttar Pradesh were concerned they had already been listed by official publication more than half a century ago. Thus Alfred Park over a century ago had been declared as a park and a garden and it is on record. The learned Standing Counsel, instructed by the Superintendent, . Government Gardens, Allahabad, cannot take a stand otherwise. The Alfred Park is a public park and garden. 38. What has happened to the Alfred Park, is a tragedy which is happening virtually in most of the parks of the city. Open spaces are disappearing, and more often than not been occupied by State agencies ostensibly for a public purpose but in a style of bad planning and illegal occupation. Parks reserved for little children have been scarred by putting tube wells for water and sub-sections for distributing electricity. These are only some instances, but there to see for any eye which will see. What do the children do? Where do they go when they yearn for their Parks? Where do they play? In fact, if there ever was, they are the most privileged class and a park is their basic need, whether ward of a poor man or rich man. 39. Alfred Park has been no exception. It has not been preserved and respected as a park. Its open spaces have been abused. The institutions which have been permitted to encroach may be meaningful and with purpose, but there was no occasion to put them in a park. After all, this is what urban planning is all about. Areas and open spaces are to be put to their conforming use only, and no other. A contradiction of this principle negates urban planning. 40. Let this Court examine what went wrong in Alfred Park. The district administration mutilated the park. This is best perceived by visualising the references to the official reports on the parks, being Stale Publications which have been referred to above. A contradiction of this principle negates urban planning. 40. Let this Court examine what went wrong in Alfred Park. The district administration mutilated the park. This is best perceived by visualising the references to the official reports on the parks, being Stale Publications which have been referred to above. The publication entitled "Site plan of the Major Gardens of the United Provinces, 1924, (referred) contains a site plan of Alfred Park; it is the record of the State. This is plate XXVII. 41. The area reserved for the offices for administration and the residence of the Superintendent Government Garden is the south west corner. The only other building, barring statues, is the Thomhill Mayne Memorial, the Public Library today. This is in 1924. 42. Almost all the encroachments have' sprung, after the year of the republic. 43. The portion of this park was lost thus. The North West corner by the Ganga Nath Jha Kendriya Sanskrit Vidyapeeth, Rashtriya Sanskrit Sansthan, Shiksha Avam Sanskrit Mantrayalay, Government of India. The North West corner, where the Hockey ground, by the Allahabad Museum, maintained by the city corporation. The South East corner, opposite the terminal on of Elgin Road (Lal Bahadur Shastri Marg) by the Prayag San gee Samiti with a major area, and the Hindustani Academy with a lesser area. A portion of the South West corner was occupied by the Ladies Club. More or less the centre of the park, where the open grounds were, was occupied by the Sports stadium. This park, undeniably lost its conforming use as a park with man made structures, of huge dimensions. 44. The Gymkhana Club was left out for a reference later. The South of the park had cricket and croquet grounds and lawn tennis courts and 'pucca' Courts, and recorded as such. Those were the days of the Raj. The Gymkhana was established to co-ordinate the sports of tennis, croquet and cricket. Time killed croquet as a sport. The cricket field available to all and sundry as an open field simpliciter was absorbed and the stadium eclipsed it, in early 1960s. A part of this field was encroached by a Hindu Religious Seel it spot under a peapal' tree spread to what it is today. We are constrained to observe that the respondent No. 3, the Superintendent Government Garden, has made an incorrect statement in reference to the expense of this temple. 45. A part of this field was encroached by a Hindu Religious Seel it spot under a peapal' tree spread to what it is today. We are constrained to observe that the respondent No. 3, the Superintendent Government Garden, has made an incorrect statement in reference to the expense of this temple. 45. The manner in which these institutions, except the temple, occupied the park is mentioned in the counter affidavit of the State Respondents. It is slated that the State Government granted leases to these institutions or organisations. The land of the public park, a public place, reserved under the law for the aforesaid conforming use only was virtually transferred, if not sold, on lease to be used for a purpose other than a park. This is an illegality which is incurable on the dictum of the Supreme Court. AIR 1974 SC 2177 : Ram Das Shenoy, v. Chief Officers, Town Municipal Council, Udipi to which this Court will refer again. 46. A perusal of the map of the Architects and surveyors, commissioner to report on the park, visually gives an idea of the extent to which the park has been pul out of use. Even if the map of the Commissioner is not looked into, the impression is the same if the map appended to the counter affidavit of the Stale response is examined. The surveyors and architects commissioned, in effect, report that the area of the park as mentioned in the 1911 Gazette and the Allahabad Master Plan is correct. The map appended to the counter affidavit, the commissioner's report is not to the scale mentioned. 47. The Commissioners, architects and surveyors by profession, report upon statistics that the total area rendered un-utilisable for landscaping, in effect, in future is more than 30% of the total area of the park. The park is 132 acres (57,49,920 sq. ft). The expanse of the areas occupied by the institutions or any other squatter is 39.89 acres (17,38,(MX) sq. ft). This assessment of the architect and surveyor is not incorrect. The records from 1884 to the present day, consistently record the area of this park as about 132 acres. The area is mentioned in the 1884 report, the 1911 Gazetteer and the Allahabad Master Flan 11967-1991). The Stale respondents in their counter affidavit admit that about 32 acres have been transferred to various organisations. The records from 1884 to the present day, consistently record the area of this park as about 132 acres. The area is mentioned in the 1884 report, the 1911 Gazetteer and the Allahabad Master Flan 11967-1991). The Stale respondents in their counter affidavit admit that about 32 acres have been transferred to various organisations. This is 25% of the park area The Commissioners suggest 30% as they have, taken into account the appurtenances of the demarcation of building and their boundaries which pul the park out of use. They have further reported that if the area occupied by the institutions of the Public Library Thomhill Mayne Memorial) and the complex of the Superintendent Government Garden is excluded from the area of the park, or taken into account as unusable then 50% of the park area has been rendered unusable by the constructions and their appurtenances. However, this was only an exercise to reveal what happens when open spaces otherwise meant to be protected as parks, are constructed upon. In legal parlance important alterations were made in the character of the plan of city which did relate to the extent of land uses and were in total contradiction to the standards of population density. The principle of the Master plan was violated as also Section 13 of the 1973 Act. The general principles of planning, urban areas and cities have never changed. This Court cannot certify the constructions in this park as legal. The State was the lessor in granting the leases in this park. But their purpose was certainly not to preserve the park or improve upon its designated or conforming purpose. 48. Protecting the environment was, but is no longer a private matter. It is a concept which has to be seriously embodied and the sooner the better. One of the hazards of urbanisation today is taking conflict with nature. The mandate of protecting nature hits been put on all the citizens in the Constitution of India in the Directive Principles of State Policy. The State cannot ignore its edict in a city. It is a concept which has to be seriously embodied and the sooner the better. One of the hazards of urbanisation today is taking conflict with nature. The mandate of protecting nature hits been put on all the citizens in the Constitution of India in the Directive Principles of State Policy. The State cannot ignore its edict in a city. Article 48-A declares : "48-A. The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country." Close on heals of the amendment of the Constitution by Article 48-A in the Directive principles of Slate policy, the Parliament passed a legislation known as the Environment (Protection) Act, 1986, Act No. 29 of 1986. The purpose of this enactment is best seen in its preamble : The Environment (Protection) Act, 1986 (Act No. 29 of 1986) An Act to provide for the protection and improvement of environment and for matters connected therewith : Whereas decisions were taken at the United Nations Conference on the Human Environment held at Stockholm in June, 1972, in which India participated, to take appropriate steps for the protection and improvement of human environment; And whereas it is considered necessary further to implement the decisions aforesaid in so far as they relate to the protection and improvement of environment and the prevention to hazards to human beings, other living creatures, plants and property : Be it enacted by Parliament in the Thirty Seventh year of the Republic of India as follows : 49. Environment has been defined in this enactment and it is not necessary to delve into the dictionary meaning of this expression. The definition reads : "2. Definition, In this Act, unless the context otherwise requires : (a) environment' includes water, air and land and the inter relationship which exists among and between water, air and human beings, other living creatures, plants micro-organism and property". 50. In the fact of the legislation which governs urban planning anti the obligation cast upon the citizens and the Slate and further that the Constitution of India declaring to protect and improve environment leaves little room for doubt on what the statutory obligations of the Slate are in preserving the environment and the ecology of the nation, whether urban or rural and the city of Allahabad is no exception. We mention this to dispel any confusion that the preservation and conforming use of urban areas in a planned environment, is not the statutory duty of the district administration, the Stale and the local bodies concerned. 51. Planning inside a park must have a purpose so that there is a direct co-ordination with functions of the park. These open spaces are to be preserved. Buildings are not to be put at the whims of those who given the city. Public participation in planning can only be received when sought and in law their suggestions are not to be ignored. The State is obliged to accept the suggestions of the residents and seriously consider the proposal with the Town and Country Planning Department, before attempting to upset the conforming use of a space already dedicated for public use. This is the law. And in any case certain spaces are inviolate under the laws governing urban planning. This has already been discussed above. But no one paid heed to these principles, at the district administration or the State Government. These principles are mandatory and the legislature requires strict compliance. This Court repeats that it is for this reason that the Supreme Court in the case of Ramadas Shenoyt AIR 1974 SC 2177 ) (supra) in effect declared that when an illegality is committed in the matter of an urban plan the illegality is incurable, in effect, implying that the acts of misdemeanour in urban planning could not be excused or compounded. 52. The Supreme Court in its two major decisions on Urban planning and the protection of public places like roads, streets and footpaths, declined to grant protection to those squatted on the pavements of the Bombay metropolis, notwithstanding the economic compulsions. The learned Judges were totally conscious of the hazards and disasters if the discipline of urban planning was neglected in protecting public places. The apprehensions and the dangers of encroaching on public places are given in the two Supreme Court decisions. In urban planning the principle which applies to protect a place like a road, street, or a footpath, also applies to a public park, garden or a playground. The apprehensions and the dangers of encroaching on public places are given in the two Supreme Court decisions. In urban planning the principle which applies to protect a place like a road, street, or a footpath, also applies to a public park, garden or a playground. It is for this reason that the Supreme Court in summing up the law relating to protecting public places in reference to the strict discipline of urban planning, in the case re : Olga Tellis (supra) held : AIR 1986 SC 180 : Olga Tellis v. Bombay Municipal Corpn., AIR 1985 SC 1206 : Bombay Hawkers' Union v. Bombay Municipal Corpn. "To summarise, we hold that no person has the right to encroach, by erecting a structure or otherwise, on footpaths, pavements or any other place reserved or earmarked for a public purpose like, for example, a garden or a playground " 53. I his in short is the law which protects the conforming use of an area in urban planning, no matter whether the laws govern the State of Uttar Pradesh or Maharashtra. 54. In reference to the preservation of public parks this Court has already delivered a decision. This Court, in a decision of a Bench of which one of us was a member has that a public park can be used as a park only, and for no other purpose and that encroachments negating the spaces of a park are illegal. This decision was in reference to a local park known as the Purshottam Das Tandan Park which had been encroached on at the instance of the city corporation when a fair and an exhibition were granted lease to occupy it. 1986 UPLBEC 781 : U.P. Krishak Samaj, Lucknow v. Administrator, Nagar Mahapalika 55. The conforming use of a land area cannot even be changed or altered in certain circumstances. Even an amendment in the Master Plan is prohibited by law. These positive prohibitions in disturbing the conforming use of an area are that (1) the amendments in the Master Plan do not affect important alterations in the character of the plan and (2) neither relate to the Extent of the land uses or the standards of population density. Even for the State the amendments are writ large with restrictions. It is not so easy to contradict the conforming use of public places or the Master Plan. Even for the State the amendments are writ large with restrictions. It is not so easy to contradict the conforming use of public places or the Master Plan. Chapter IV of the 1973 Act is clear in the strict discipline in urban planning, it sets. It is borrowed from the Delhi Development Act, 1957 (Act 61 of 1957). 56. Even the Master Plan cannot be altered to change the conforming use of public places in use, like public parks or public roads, except use to serve a better purpose of utility for the purpose it is dedicated. The exception would be to widen the public road to take more vehicular traffic and safeguard pedestrians on the footpath or side walls. Likewise to increase the area of parks to cater to the expanding needs of the population. 57. Much of the illegalities in violating the basic structure of the park have already been committed. It does not take any time destroy a park and render it useless being used as a park depriving the residents, whether children, pensioners or citizens looking for an open space. Remedying a wrong situation, in reference, to urban planning may take more than a generation and even then the original concept for which the park was laid out or open space dedicated may not be restored. This is the tragedy of the Alfred Park. Within a span of one generation an open space of 132 acres has been rendered useless as a park. This Court solicited suggestions from the parties at the Bar no (Sic) how the situation ought to be remedied. The remedial measures in themselves will take considerable time as the encroachment which has already been made cannot be removed instantly. But, illegality is incurable and thus, the manner in which the park has been encroached and usurped cannot be left without comment. 58. The city of Allahabad did not have a Town Planner till 1986. Illegalities in planning thus, could not be overruled. In fact it was published and is on record that the Allahabad Development Authority deriving its corporate status under the 1973 Act a legislation dealing in urban planning was without a Town Planner since inception. As a consequence, the aforesaid Authority announced by publishing a notice seeking applications for the post of Senior Town planner-cum-Architect. In fact it was published and is on record that the Allahabad Development Authority deriving its corporate status under the 1973 Act a legislation dealing in urban planning was without a Town Planner since inception. As a consequence, the aforesaid Authority announced by publishing a notice seeking applications for the post of Senior Town planner-cum-Architect. Shortly after this a leading newspaper reported that the Allahabad Development Authority has neither a Town Planner nor an Architect since its inception i.e. in 1974. This court cannot comment more on this except that it was unfortunate. 59. On behalf of the State respondents it' has not been satisfactorily explained to the Court how a public park gradually became a haven for institutionalised encroachments. Not only logic and the general law but even special legislation on urban planning and preservation of the environment requires strict protection and preservation of open spaces. The utilisation of the part and its planning is to have this compatibility of purpose. 60. The existence of the institutions or their buildings inside the park cannot be justified. The prime purpose of the park is not to be forgotten. The dedication of the park for a public use implies that the conforming use is preserving open spaces of the park, otherwise, the purpose of the park is being violated. The factors which negate the conforming use of the part i.e. preservation of its open spaces, are illegal. Almost all the institutions inside the park may have a useful or purposeful meaning on their own but the only relevant question in terms of legality is whether they ought to have been inside the park. Their purpose though meaningful has to be detached from their existence inside the park. The preservation of open spaces of park could countenance no rival in the shape of structures and buildings. 61. The Allahabad museum, the Ganganath Jha Sanskrit Institute, the Prayag Sangit and its complex, the Hindustani Academy and the Ladies Club despite the fact that the Stale illegally invited them by dispensing leases will remain in illegal occupation at the behest of the Stale Government and as long as they exist in the park these encroachments in the park will be there as a bad lesson for future Town Planners, the District Administration and the Stale. This will be a stark precedent for posterity that an area of a park was usurped and its conforming use destroyed and its open space not respected. 62. The area which has been lost and occupied by these institutions will have to be compensated for the residents and the citizens of Allahabad, by creating and establishing more public parks and open spaces so that the spirit of the Master Plan and the principle of the 1973 Act to render open spaces in proportion to the population density is not made a dead letter. Inevitably it will not be the same thing as having the continuity of open spaces, on the facade of Alfred Park. The errors in not adhering to urban planning cannot be reconciled with by the residents and the citizens of the city as the pressure of population of the city grows. This necessarily implies that every conceivable public park and open space in the city is to be restored for public use at a very early date and as a measure of urgency. 63. The two recent constructions are buildings marked N and B on the sketch map (not to scale) appended as Annexure to the writ petition. Both these buildings are towards the east of the park facing Kamla Nehru Road and near one of its main gates almost opposite the St. Joseph's School and College where the Edmon-stone Road ends. These constructions have been planted mid space which is in continuity and running parallel to a pathway of the park and the boundary on the road aforesaid. This open space meets the road of the museum. 64. The area of the building under construction according to the State respondents is 323.6 square yards. This construction 'N was the subject matter of a stay order of this Court which was passed on 1st December 1986. The injunction was violated. A negligible construction on the day of the Stay order was continued with pace, and within days the walls raised to a height. An affidavit of apology was filed before this Court by the Superintendent, Government Gardens seeking unconditional pardon and explaining the circumstances in which the construction continued for few days. The violation of the injunction is not relevant in the present petition because there is no issue that the injunction was not violated. An affidavit of apology was filed before this Court by the Superintendent, Government Gardens seeking unconditional pardon and explaining the circumstances in which the construction continued for few days. The violation of the injunction is not relevant in the present petition because there is no issue that the injunction was not violated. The pace of the construction was increased after the stay order is explained in the affidavit of apology. These constructions were at the risk of the State. Detailed discussions of the law in this judgment leave no room for doubt that the constructions in the park destroy its open spaces and its conforming use, and are an illegality. The principle of law is to preserve open spaces not to occupy it. The Supreme Court in the matter of Ramadas Shenoy v. Udipi Municipality ( AIR 1974 SC 2177 ) (supra) laid down the law that such illegalities are incurable. This Court cannot grant permission to the State respondents to complete these constructions. It must be dismantled. The disfigurement of the park must cease and its open spaces be preserved. 65. Even otherwise we are not impressed with the purpose for which these constructions were being made. Learned Standing Counsel on behalf of the State respondents explained the purpose. These constructions were for housing the godown and the seed store for the Allahabad district. It was explained that barring the godown, the structure would have stocked agricultural seeds and saplings. Preservation of open space is the cardinal rule to maintain the open spaces of a park. 66. It is not necessary to pul a district godown or a seed store with building inside the park. This function can be discharged by the State from various other places in the city as indeed there are places where the Stale Government sells agricultural seeds. In so far as the park is concerned it already has two sale points right at the very spot where the two nurseries exist. One nursery develops household and indoor plants, roses and seedlings of seasonal flowers. This nursery contains a set of summer houses, a glass house and a masonry building constructed at the north end of the park and blending with its environment. This building contains a small office which caters to the needs of the citizens in advising them upon household plants and is the sale outlet. This nursery contains a set of summer houses, a glass house and a masonry building constructed at the north end of the park and blending with its environment. This building contains a small office which caters to the needs of the citizens in advising them upon household plants and is the sale outlet. This nursery and the sale doubleton the north of the park is duly recorded in the 1924 map and the map of the Commissioner which contains a label 'chick house'. The 1924 map demarcates the area and contains the expression 'conservatory', chick house and glass house, It records 8 structures. This area has a self contained conservatory carding to the same purpose of which illegal constructions were being made near one of the main entrances of the park towards the east. 67. The other nursery of the park is on the south west corner next to the Mahatma Gandhi Marg and is shown in the map of the Commissioner. In the 1924 map the road is known as Canning Road. This nursery is part of the complex of the office of the Superintendent, Government Gardens. This residence is next to this complex. In this complex, also is a nursery from where citizens can have saplings of fruit trees freshly dug, packed and delivered. Like at the flower nursery this nursery also has sale points and a building from where the administration of the nursery is coordinated as also the sale of the saplings. This complex is marked on the Commissioners map and duly recorded in the 1921 map also. The 1924 map shows that the complex has more than half a dozen buildings near the residence of the garden Superintendent. 68. Even otherwise both these nurseries are one kilo-meter away from the spot where the constructions were attempted to be made. The blue-print of the Alfred Park had protected its conforming use and assigned the areas which were to be occupied for the administration and offices and the sale points either for seeds or saplings at the two ends of this park. The character of the plan of the park cannot be changed. The nurseries are at the two ends of the park and have sufficient space to contain a little building for purpose for which it was needed, if it was. The character of the plan of the park cannot be changed. The nurseries are at the two ends of the park and have sufficient space to contain a little building for purpose for which it was needed, if it was. But there was 110 occasion to attempt to construct upon any existing open space which was to be left as such. Looked at it in any way, the attempt to construct this godown and seed store is illegal as it offends the conforming use to which the open spaces are set and dedicated for the public. 69. This construction was in any case an attempt to defeat the stay order of this court and remains incomplete. This in itself was a serious aspect as it could have mitigated the damages which the State respondents purposefully expended. These constructions are to be dismantled forthwith. They ought not to have continued in any case when this court granted its stay order on 1st December 1986. But, this court considers this construction an illegality as it destroys the open spaces of the park. 70. This court may also point out while we are dealing with the nurseries and the conservatories mentioned above that each of the two nurseries have access to two gales. These gates have been closed by the park administration by brick and mortar. The gates are shown in the 1924 map and the map of the Commissioner. By closing the gates to the nurseries and conservatories one on the north side and the other south, the public is being denied access to the park nurseries and its sale points. 71. The other construction is building B'. It is next to the construction wish which we have just dealt. It is next to one of the main gates of the park on the west. This building is also under an injunction of the Court passed on 1st December 1986, and is in disuse. Its constructed area as given by the Stale respondents is 282.48 square meters. For the same reason for which the earlier constructions are illegal and have been stopped, these are also encroaching on the open spaces of the park. It is destroying its conforming use and is illegal. Its constructed area as given by the Stale respondents is 282.48 square meters. For the same reason for which the earlier constructions are illegal and have been stopped, these are also encroaching on the open spaces of the park. It is destroying its conforming use and is illegal. The purpose of the building has been explained, but this is not relevant as the sole criterion for preserving open spaces of a public park is to respect the law which requires that the open spaces be retained. Building on the open spaces of the public park destroys its conforming use. On behalf of the State Respondents the purpose of these buildings was explained. The mistake and the illegality is the same when two other institutions encroached the park to establish teaching institutions. This building was to be utilised for imparting Home Science Courses to house wives, adult girls and gentlemen who would like to seek instructions in such courses. The courses have also been explained to this Court. They can be purchased against a fee, the Institution which will run the courses will teach how to bake and cook and the culinary arts. The counter affidavit of the State respondents mentions that various courses would be taught to students in cooking, baking, confectionary, making jelly and jam and food preservation. The open spaces of the park were not to be used by teaching institutions. It does not matter whether it is Ideology, Music or Culinary Arts. Several serious mistakes and illegalities have been committed in the park in the past years for which the State is obliged to find other open spaces in lieu of the illegalities committed. Culinary arts can be taught outside the park. There already exists a Home Science College run by the State Government within a kilometre of the park. These courses were shifted inside the park to the present buildings from a place which was near the park at the Sardar Patel Marg, a fact mentioned in the affidavit of one of the intervenors supporting the Slate respondents. At the time of hearing we had enquired from the State respondents that should they require an order from this Court that the course in the culinary arts ought to be at the Home Science College of the State Government or from the place from which they were previously conducting, this Court could make an appropriate order. At the time of hearing we had enquired from the State respondents that should they require an order from this Court that the course in the culinary arts ought to be at the Home Science College of the State Government or from the place from which they were previously conducting, this Court could make an appropriate order. It was submitted to the Court as should the Slate Government require the courses to be outside the park, it did not need a court order. Learned State Counsel submitted that the department which conducts these courses was the State Government Food Science Training Institute. Likewise we refrained from giving any directions as whether the courses ought to run from outside the park, is not the subject matter in issue before this Court but the buildings which have been constructed to accommodate these courses are. This building violates the open spaces of the park and its construction is an illegality which cannot be condoned. The restraint on the use of this building is made absolute. This Court is reminded of the decision of the Supreme Court, in effect, that conforming use of an area, dedicated for the purpose for which they have been set, cannot be violated. This Court thus hereby directs by a writ of mandamus that this building marked B' aforesaid, will be dismantled within six months of the date of this judgment and order. Thereafter open spaces, which were so far occupied by the constructions marked N and 'B' on the east of the park will be restored to the public in conformity with the purpose of the park. 72. The open spaces occupied by these two buildings aforesaid will be developed being next to one of the main entrances of the part, it will be dedicated for the use of little children in consultation with Town and Country Planning Department of the State of Uttar Pradesh. 73. While the State Government was distributing leases on the open space of I,he park it did not realise that some of these organisations would be making a business out of the occupation of the park and at the expense of the public first, and secondly the Government would be making money and capital out of the public spaces. One such organisation is Prayag Sangeet Samiti. Learned State Counsel found it difficult to justify the circumstance narrated before this Court. One such organisation is Prayag Sangeet Samiti. Learned State Counsel found it difficult to justify the circumstance narrated before this Court. The Prayag Sangeet Samiti was established initially in 1939 in the locality known as South Malaka at the South end of the city. Its basic purpose is good. It was incorporated to impart instructions in classical music and offers diplomas in music. Around the early fifties the Prayag Sangeet Samiti was shifting its activities and it came into the Alfred Park. It received a large area. 74. Gradually the Samiti apparently spread its wings and started further construction towards South of the Park. An open air auditorium was built. It is not a public auditorium. The so called open air auditorium of the Samiti, and even its indoor auditorium, is also utilised for conventions, weddings and social functions. Only those who can afford to pay can have access. Poor people cannot. Access to these premises is available to the affluent whether individuals, organisations or corporate bodies. A common man from the road watches the social activities of the affluent and as far as he is concerned in a public park. As far as the Samiti is concerned it should have only utilised that much space which it needed, strictly for its purpose and no more. Another building of the Prayag Sangeet Samiti, made more recently, has been let out to the Sales Tax Department of the State of Uttar Pradesh. The inevitable question of the Court to the Bar was, what nexus docs the Sales Tax Department have with a public park? The Prayag Sangeet Samiti constructed the building and makes a business out of putting its building on lease to the State of Uttar Pradesh. That is, a business out of illegal occupation of the park. This only shows that neither the Superintendent Government Gardens nor the State of Uttar Pradesh or those in charge of parks in the Stale had any regard to the preservation of this Park as a park. That is, a business out of illegal occupation of the park. This only shows that neither the Superintendent Government Gardens nor the State of Uttar Pradesh or those in charge of parks in the Stale had any regard to the preservation of this Park as a park. It would be advisable if the State of Uttar Pradesh would relieve the building, which it utilises through the Sales Tax Department, and offers it to the Superintendent of Government Garden to make such use of it as his offices require This Court hopes that the Prayag Sangeet Samiti would agree to this arrangement, in view of the fact that this building was not an accommodation which was being used for the purpose of the Samiti. The suggestion of this Court that it may be used by the Horticulture Department, of which the Superintendent Government Garden is a part, is based on the logic of the Master Plan. The area in which this building is situate, is an area which under the stipulations of planning is, that in this corner of the park are the complex of the offices and administration and the residence of the Superintendent Government Gardens. This is the South West corner, and this suggestion of the Court is in keeping with the conforming use of the park that the residences, offices and administration of the park would be reserved only at this corner of the park. The illegality of the existence of this building which houses the Sales Tax Department is, like any other encroachment made in the park, not curable and will remain. The Courts suggestion is only a mitigating remedial measure. Both the Sales Tax and the Horticulture Departments are of the State Government. The conforming use and preservation of the park is the obligation of the Horticulture Department. The Sales Tax Department, under the law, has no place in the park. 75. The State Government is the lessor and it had no business to grant lease of open spaces inside a park to various organisations. The act of granting leases in areas carved out as a public park was an illegal act. The Sales Tax Department, under the law, has no place in the park. 75. The State Government is the lessor and it had no business to grant lease of open spaces inside a park to various organisations. The act of granting leases in areas carved out as a public park was an illegal act. The grants made by the State Government in offering leases to various organisations which occupied the park today have violated every concept of urban planning and the discipline of the law which requires parks to be preserved as parks and to be utilised as such. This Court in the present writ petition cannot determine the lease, but has no hesitation in observing that the grant, for which the State Government is responsible, is illegal. The inevitable contradiction of law in the grant of leases inside a public park has been that whereas the Master Plan requires planning of public parks and open spaces with the proportionate increase of the population, the State Government has decreased the area of the park. The population of Allahabad since the 1961 census has almost doubled. Under the law where is the occasion to decrease the area of the park? The organisations which have been granted leases inside the park have barricaded their areas with high walls. These are areas which these organisations have occupied and have been cordoned off. The area in their occupation is not available to the citizens for use as a park. These organisations, between them and the State Government, have reduced the area of the park. Denying the use of the area of the park to the citizens is illegal. The environment of the park has been marred. This is why law requires that the conforming use of a park is, open spaces. In order that the environment of the park in totality blends with its natural surrounding, it is necessary that these organisations be required to reduce their boundary walls from the present height to a height of two feet from the ground. Thereafter if these organisations so desire they may either put hedges around the periphery of their areas or embed ornate wrought iron or other fencing to mark their boundaries. This will have the immediate effect in harmoniously fusing the total open space of the park with its ecology and environment. 76. Thereafter if these organisations so desire they may either put hedges around the periphery of their areas or embed ornate wrought iron or other fencing to mark their boundaries. This will have the immediate effect in harmoniously fusing the total open space of the park with its ecology and environment. 76. The entire park today has been encased by a high boundary wall of masonry bricks. The height varies from six feet to even more. Only on the north of the park where the Chandra Shekhar Memorial is, does the boundary of this park partly blend with its surrounding. At the north there is a short wall and an ornate iron fencing so that if inside the park, one can see the University ground on the other side of the Thomhill Road (Maharshi Dayanand Marg), Likewise from the outside one can see the inside, being the Azad Memorial and the greens of the park this section is reasonably green. The rest of the park unfortunately has been screened off by masonry walls. 77. On the east of the park is residential colony. Between this colony and the park runs a public road known as the Park Road. The residents are entitled to share the environment of the park as it exists for them also. The very purpose of a park is that its environment may be perceived from outside also. This is preservation and respect for the environment and ecology, which legislation obliges us to respect. This Court directs that the walls of the park will be scaled down to the same height as the fencing which exists on the north of the Alfred Park facing Thomhill Road, and this isometry be .continued throughout the park. This should be done in three fiscal years. 78. The stadium which was constructed inside- the park was an illegal exercise and a vast open space was cordoned off by high walls and a large area of the park representing more than 4,60,000 sq. feet has disappeared for being used as a park. It is unprecedented, and unimaginative planning, that inside a public park a full-fledged stadium has been parked. This exercise is not compatible with the preservation of open spaces and public parks. But to put a stadium inside the park is to say that the area is no longer a public park. feet has disappeared for being used as a park. It is unprecedented, and unimaginative planning, that inside a public park a full-fledged stadium has been parked. This exercise is not compatible with the preservation of open spaces and public parks. But to put a stadium inside the park is to say that the area is no longer a public park. This situation cannot be remedied instantly but indeed, the construction of a stadium inside a park is illegal. 79. This Court hereby directs the State Government that within 18 months from today it would find an alternative space in accordance with law conforming to the criteria set in U.P. Urban Planning and Development Act 1973 so that after the expiry of 18 months and before two years from today it will carry out the exercise of announcing the plan of an alternative site of a Stadium commensurate with the modern facilities which a stadium ought to have and public a notice inviting suggestions and objections from the citizens of Allahabad on its proposal regarding its location in accordance with Chapter IV of the 1973 Act, aforesaid. This exercise ought to be completed within two years from today. When the plans of the stadium are finalised in accordance with this exercise, in the next three years, the new stadium complex should begin to rise. In effect, it should be functional in the next five years. When the new stadium is completed, the stadium which is at present in the centre of the Alfred Park is to be dismantled by the State Government. 80. In the city of Allahabad sports facilities to the younger generation are inadequate. Over the years there has been no serious efforts to impart and develop the discipline of sports seriously. The University is already overcrowded and can barely cater to the needs of the colossal number of students it already has. The same is the situation in the local schools, some schools cannot afford to provide a coordinated sports programme to the younger generation. There has been no effort to inculcate and encourage the young people of this city, in sports as the opportunity is not available for all the youngster who may seek it. The stadium which is in the middle of the park is basically for trace ana field events. There has been no effort to inculcate and encourage the young people of this city, in sports as the opportunity is not available for all the youngster who may seek it. The stadium which is in the middle of the park is basically for trace ana field events. There is no swimming pool or basket ball or tennis or badminton or a gymnasium or squash rackets all under one complex. Another lapse of planning has been that what was a Town Hall of Allahabad known as the Mayo Hall constructed in 1897 for the use of the public, as a Town Hall is being used as a mere sports complex. It is good for children to have some place to use as on the grounds of the Mayo Hall have been provided facility to the young people to play tennis, badminton and basket ball. But, the Town Hall is not being utilised, as such. The Mayo Hall was designed in the year mentioned above by Professor Gamble of the South Kensington Museum. Its purpose was to provide for all public meetings. It is not used as a Town Hall any more. It is for this reason that we express that a coordinated planning of a sports complex calls for a better planning of a stadium which includes every discipline of sports in one complex. When a new stadium is functional it should be a total sports complex. By and large a sophisticated sports stadium will encourage the health of the young generation and those serious in sports will take to competitive sports seriously. Two public places would then be relieved and a large area inside the Alfred Park will be restored as an open field and the Mayo Hall made available to the residents of Allahabad to be used as a Town Hall for which purpose it was erected. 81. The record of the State, containing the layout of the park in the 1924 publication gives the location of the present Gymkhana Club, it is not mentioned by name, but the activities are tennis croquet and cricket. The last two sports have disappeared from this park. But, the tennis courts are there, and were there apparently more than sixty years ago. The last two sports have disappeared from this park. But, the tennis courts are there, and were there apparently more than sixty years ago. The State Government could encourage on the maintenance of the lawns so that tennis as a sport is revived for the youth and available to the children at a low cost if not free. For this the State may consider an arrangement with the Gymkhana to help it restore its lawns, and give it subsidy to encourage the sport of tennis for the children, This will restore one of the original activities of the park connected with tennis. The exception will be that the Gymkhana in the days of the Raj was exclusive to the elite. But, today the sport of tennis will be available, in keeping with the fabric of a classless society to any youth who desires to play. 82. The Ladies Club, mentioned by the State respondents in their counter-affidavit, also ought not to have been where it is. Someone, at sometime, about two decades ago in the district administration may have been chivalrous, but this generosity was illegal in a public park. 83. The State respondents refute the petitioners contention that the Alfred Park was not a zoological garden and that it did not have a natural lake or a tank. This contradiction of the State respondents is against the record of the State Government. The 1884 publication (referred) records that the park had a small zoological garden, but it was abandoned. The original layout of this park, in the 1924 publication in plate XXVII (referred) records a large reservoir. The scale of the site plan is one inch to 400 feet. If this is accurate then the length of this reservoir, lake or tank, now non functional is approximately 800 feet. The site plan shows it on two inches. The source of feeding water into this small lake must be traced by the district administration. 84. During midst hearing, the State respondents sought permission of the Court to permit the authorities of the Alfred Park to construct the pump-house to protect the tube well recently sunk which will discharge about 22000 gallon of water in an hour. We considered that the functioning of the tube well was in keeping with the conforming use of the park and its maintenance. The permission was granted on the day of the application. We considered that the functioning of the tube well was in keeping with the conforming use of the park and its maintenance. The permission was granted on the day of the application. Though we did advise the State respondents that while constructing the pump, every effort should be made to harmonise the structure with the environment of the park. 85. We are sad to reflect on what the Alfred Park would have been if it had not been encroached and its open spaces left as it had been originally planned. The mistakes made, consciously or otherwise have been at a very heavy cost on the citizens of Allahabad from which the population will suffer in posterity. The environment and the ecological balance has been upset, in and near this park. When we reflect on this balance we do so in all the grammatical variations environment and ecology has reference. This will continue to happen if indiscreet planning will fight nature. Planning concepts must never be abdicated. 86. This Court desires to express its gratitude to the learned Commissioner, the Surveyors and Architects for instructing this Court on the details sought. 87. The court has referred to the park as Alfred Park as all the publications of the State refer it to as such. 88. The writ petition is partly allowed, with the observations and the directions given in the text of this judgment. The reliefs considered were only in reference to the park known as Alfred Park. This is a class action, and in the circumstances of this case it would not be appropriate to award costs.