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1997 DIGILAW 210 (ALL)

PYARE LAL v. DISTT MAGISTRATE

1997-03-03

R.S.DHAVAN, V.P.GOEL

body1997
Ravi S. Dhawan and V P. Goel, JJ. The issue raised in this writ petition, in effect, seeks a writ of certiorari to quash an order of 6-8-1994 (Annexure 9 to the writ petition) by which the petitioner was indi cated by the Additional Chief Executive Of ficer, Zila Parishad, Sonbhadra, that as the State Government has not given approval for the lease of the plot No. 1 within Com pany Bagh, the grant cannot be made. The petitioner desires that this communication be quashed. 2. The Court has heard learned coun sel for the petitioner Mr. V. K. Jaiswal, learned Standing Counsel for the District Magistrate, the respondent No. 1 and learned counsel for the Zila Parishad, respondent No. 2. 3. The Court is not inclined to grant a prerogative writ to interfere by this writ petition in this matter for more than one reason. 4. Firstly, between the petitioner and the respondents it is on record that the lease which the petitioner seeks as a grant from the Government cannot be granted except by approval of the authority so named under U. P. Kshetra Samiti and Zila Parishad Ad-hiniyam, 1961. The fact that the approval of the Govt. has to be taken implies that the property either is Nazul Land or belongs to the Govt. as its alienation without the per mission and approval of the Government cannot be had. These public properties vest with the Zila Parishad by virtue of Section 193 of the Act, aforesaid. Even otherwise, should the capital value of any immovable property exceeds Rs. 500 but does not ex ceed Rs. 2,500 then there is an embargo on the Zila Parishad to transfer except on the approval of the Collector. Where the value of the property exceeds Rs. 2,500 but does not exceed Rs. 10,000 from the Commis sioner of the Division and where it exceeds Rs. 10,000 from the State Government. In reference to the property in question the approval is beyond the sanction of the Zila Parishad. Then, the rules framed under the Act, particularly Rule 10 further stipulates that if the matter is of a lease the term of which exceeds ten years but not thirty years, the previous sanction from the Commis sioner concerned is to be obtained and if the term exceeds 30 years then of the State Government. Then, the rules framed under the Act, particularly Rule 10 further stipulates that if the matter is of a lease the term of which exceeds ten years but not thirty years, the previous sanction from the Commis sioner concerned is to be obtained and if the term exceeds 30 years then of the State Government. Again, to grant a lease within a public park is not within the domain of the Zila Parishad nor can the State Government destroy the characteristic of a public part notwithstanding that it may not be in use. 5. It is the petitioners case that of the consideration sought for the grant of the lease, he deposited an amount of Rs. 650. Assuming the lease could be granted, it comes within the purview of an approval to be granted by the Collector and if the capital value was to be taken, otherwise, the ap proval would be granted either by the Com missioner or by the State Government. There is no approval on record of a sanction to settled the grant in favour of the petitioner. This is one aspect of the matter. 6. Then, the, aforesaid, Act also provides that should the grant be of a lease for thirty years, then, previous sanction of the State Government will have to be ob tained and the Zila Parishad is obliged not to settle the properties except upon having obtained this sanction. This is so provided in Rule 10. Between the petitioner and the respondents, there is no issue, that the lease contemplated is for 99 years. There is no escape from the law that the sanction could be had only from the State Government. This sanction was not forthcoming. 7. The other aspect of the matter is tnat it is the petitioners case that the grant which was to be received by him as a lease was within the precincts of a public park, the "company Bagh". Putting this description of the property "company Bagh" and the fact that the grant needs the approval of the State Government only gives an occasion for the Court to draw a presumption that the grant certainly is of Government land vesting for the Management of it in the hands of the Zila Parishad, previously, the District Board. Putting this description of the property "company Bagh" and the fact that the grant needs the approval of the State Government only gives an occasion for the Court to draw a presumption that the grant certainly is of Government land vesting for the Management of it in the hands of the Zila Parishad, previously, the District Board. There is a very serious objec tion in law whether a grant can be made to make a house within a part or for colonising a park. The contention of the petitioner is that now there is no park within the grounds of the Company gardens. That may be so, yet this will not make the conforming uses of the area as a park disappear. It is an ir regularity which may have been committed or continues unabated, but to colonise a park is an irregularity, which is incurable. This public property is certainly described, without issue, even by the petitioner and the record of the State records it is "company Bagh". It was not unusual to describe Public parks before 1857 as a company Bagh and after 1857 as "government Garden". If a park is occupied for a purpose other than a park, it is occupied illegally. 8. The contention of the petitioner is that while the respondents are denying him the lease which they had readily agreed to grant him, they are now setting about to make this grant to the tourism department of the State, the details of which are not before the Court. Suffice it to say that the law applies equally to all and the state of the park will remain as a park and cannot be occupied by anybody not even the State, except for the purposes of a park. 9. In so far as the sanction, which is not forthcoming to accord approval on a lease, which the petitioner desires to be settled in his favour, the Court can give no direction. And to grant a lease within a public park is an illegality. The conforming use of a park will remain as a public park to be used as a park. Bangalore Medical Trust v. B. S. Muddappa and others, AIR 1991 SC1902; Dr. G. N. Khajuna v. D. D. A. , AIR 1996 SC 253 . 10. And to grant a lease within a public park is an illegality. The conforming use of a park will remain as a public park to be used as a park. Bangalore Medical Trust v. B. S. Muddappa and others, AIR 1991 SC1902; Dr. G. N. Khajuna v. D. D. A. , AIR 1996 SC 253 . 10. The petitioner contends that he has made constructions on the plot which was intended to be settled by the grant of a lease. The respondents have taken issues with the petitioner that no map was sanctioned and, in fact, was rejected. In the petition, the petitioner contends that the has con structed a boundary wall, a well and one room apart from filling the plinth to take upon it the constructions. Even according to the petitioner barring one room and the plinth, there is no other construction. In the counter affidavit respondents submit that they had filed a complaint with the police by their communication dated 20-8-1994 to in timate that the petitioner is attempting to make illegal constructions and that steps be taken to stop this activity. The attitude of the respondents in the activity of the petitioner in making the construction was hostile. In the circumstances of any con struction which the petitioner may have at tempted in the face of the objections of the respondents and a map which was never sanctioned, any constructions which the petitioner made he did so at his risk. 11. Of any assurance by the Zila Parishad, regard being had to the cir cumstances of the case, without the ap proval of the State Government, it could not be acted upon. Otherwise the Court is not very happy that this park in Sonbhadra is being destroyed and colonised. The con struction which the petitioner has made without sanction and in the face of objec tions of the respondents, he did so by taking the law in his hands. A lease in a public park cannot be granted. 12. The Court is not inclined to inter fere in this writ petition. 13. Dismissed with costs. Petition dismissed. .