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2006 DIGILAW 1727 (RAJ)

J. R. Goyal v. State of Rajasthan

2006-05-18

S.N.JHA

body2006
Judgment S.N. Jha, CJ.-A public interest litigation titled Ram Chandra Kasliwal vs The State of Rajasthan & Ors. was filed in this Court highlighting the deteriorating conditions in the Ram Niwas Garden which is a public park and a landmark in the City of Jaipur (hereinafter referred to as the Park) and seeking appropriate directions for improvement of the Park. The petition was disposed of with a number of directions on 02.04.1993. 2. The Court, inter alia, directed the existing cafeteria and other stalls which are at present located in the garden may either be regularized and retained at those places or the garden authorities in consultation with the Jaipur Development Authority may provide them some other space. The Court also directed that kiosks may be constructed on all corners of the garden in accordance with the specifications to be decided in consultation with the Jaipur Development Authority making proper arrangements for throwing garbage. The Court clarified that khomchas, Thelas and hawkers shall not be permitted to stand anywhere except the area to be earmarked by the authorities and they shall in no case be permitted to spoil and environment of the garden. 3. The Court, further, stopped vehicular traffic through the Park. The Jaipur Chamber of Commerce & Industries filed Petition (Civil Review petition No. 10/1996) seeking review of the direction relating to vehicular thoroughfare. By order dated 15.04.1997 titled Jaipur Chamber of Commerce & Industries vs. Ram Chandra Kasliwal & Ors., 1997 (2) WLC 655 (Raj), to the extent that vehicular traffic through the garden was permitted from 8 a.m. to 9 p.m. and to this extent the direction issued under the main Judgment was modified. While disposing of the review petition the Court observed as under : "The State and others are directed to comply with the directions and to remove the Chat Bazar who are working without license and to shift it to the new location in front of Gem Cinema, with a separate entrance as suggested in the development plan instead of in back of museum, as per direction No. 8, within 4 months form today." Though, it was reiteration of the earlier direction, feeling aggrieved this time, the appellants who are 27 in number, filed this special appeal. The appellants are hawkers and it is contended that the public interest litigation was filed making grievance of the use of park as a through fare for vehicular traffic but going beyond the scope of the petition, direction was issued to shift the petty hawkers to another place. The only ground on which review was sought was that stopping vehicular traffic through the Park was not in the public interest but the Court again beyond the scope of the review petition issued direction to shift the hawkers from the Park. 4. The thrust of the main Judgment dated 02.04.1993 was that the Park should be maintained as a park within the meaning of Rajasthan Public Parks Act, 1956 and no vehicular traffic should be allowed to pass through. While considering the use of Park for commercial purposes the Court observed that the existing cafeteria and other stalls may either be regularized or shifted to other place in consultation with the Jaipur Development Authority. The theme of the public interest litigation was preservation and improvement of the park and the direction of the Court in the matter of he shifting of the stalls etc. was outside the scope of the proceedings. 5. After the review petition was decided on 15.04.1997, the Superintendent of Gardens issued notice to the appellants to shift the Chat Bazar from the garden. The appellants made representation and also served notice on the authorities asking them to desist from taking any action. The Superintendent of Gardens informed them that in pursuance of directions of this Court the appellants were required to shift to another place. At that stage, the appellants again served notice contending that the proposed action was not in accordance with the Judgment of this Court and thereafter filed the instant appeal. 6. During pendency of this appeal the State Government constituted a high level committee headed by the Chief Secretary and consisting of the Secretaries of the Departments of Environment & Forests, PHED, Tourism, Public Works Department, UDH, Commissioner, Jaipur Development Authority, Chief Engineer, PHED, Chief Executive Officer, Jaipur Municipal Corporation and representative of Law Department. In its meeting held on 07.08.2001 the Committee decided that the park be maintained only as a garden and extension/renewal of leases be not granted. Decision was also taken to discontinue all kinds of activities and shift the offices of the. NCC, Archaeology, Scouts etc. outside the park. In its meeting held on 07.08.2001 the Committee decided that the park be maintained only as a garden and extension/renewal of leases be not granted. Decision was also taken to discontinue all kinds of activities and shift the offices of the. NCC, Archaeology, Scouts etc. outside the park. The minutes of the proceedings of the committee may be quoted as under : "(1) Ram Niwas Bagh is to be maintained only as a garden. This is the only Green Patch adjacent to the walled city of Jaipur. .(2) No structures (except the existing Albert Hall - Museum and Ravindra Manch), save those related to natural flora and fauna, should be allowed. Parking structure in basement/underground can be development so as not disturb the above strategy. .(3) PWD would take necessary action and clear this garden from all unauthorized lease holders and unauthorized/encroaching occupants, if any. Existing leases, as they expire, may not be renewed. .(4) A perspective plan would be drawn up initially by PWD in consultation with JDA. This is in consonance with decision that JDA should develop and maintain it as a garden. Ownership would continue with PWD. .(5) Office of NCC, Archaeology, Scouts, etc, should be shifted elsewhere, in consultation with concerned administrative departments. PWD may take necessary steps in this regard. Once shifted out, demolition etc. can be resorted to in consonance with the perspective plan. .(6) Zoomay be continued in tune with the concept of garden with flora and fauna. However, its suitability in view of space constraint should be reviewed with due emphasis on its adequacy as to need of animals. .(7) Office of Archaeology Department adjacent to Albert Hall has been de-notified, Secretary, Tourism informed. Necessary steps may be taken to shift the office out and demolish that structure." 7. On behalf of the respondents, it was stated that the licenses of the appellants expired long before and as on date they have no legal right to continue commercial activities and do business inside the park complex. It was stated that pursuant to the said decision of the high level committee dated 07.08.2001, offices have been closed. So far as the appellants are convened they could not be shifted because of the status quo order passed in these proceedings. It was also stated that the Jaipur Development Authority has framed a rehabilitation scheme to cater to the interests of the appellants. 8. So far as the appellants are convened they could not be shifted because of the status quo order passed in these proceedings. It was also stated that the Jaipur Development Authority has framed a rehabilitation scheme to cater to the interests of the appellants. 8. On behalf of the appellants it was submitted that the appellants have fundamental right to do business and in support of the contention reliance was placed on Olga Tellis vs. Bombay Municipal Corporation, 1985 (3) SCC 545 . 9. Reliance on Olga Tellis vs. Bombay Municipal Corporation (Supra), is totally misconceived. That was a case of removal of pavement and slum dwellers living for 20 years or 30 - without notice and making alternative arrangements for their rehabilitation. In the instant case the appellants were doing business under license and on expiry of the license period they cannot claim any right to continue. The appellants cannot claim any vested right that they must be permitted to do business at a particular place. As mentioned above, the respondents have prepared a rehabilitation scheme in terms of which the genuine claims of the appellants can be considered and they can be provided alternative place for doing business. 10. As a matter of fact, even if the appellants had any right to do business in the Park, the interests of the public cannot be sacrificed to cater to an individuals interest. It is well -settled that where there is conflict between public interest and individual/private interest, the former shall prevail. The following observations in Jamshed Hormusji Wadia vs. Board of Trustees, Port of Mumbai & Anr., 2004 (3) SCC 214 , may usefully be quoted: "18 In our opinion, in the field of contracts the State and its instrumentalities ought to so design their activities as would ensure fair competition and non-discrimination. They can augment their resources but the object should be to serve the public cause and to do public good by resorting to fair and reasonable methods. The State and its instrumentalities, as the landlords, have the liberty of revising the rates of rent so as to compensate themselves against loss caused by inflationary tendencies. They can - and rather must - also save themselves from negative balances caused by the cost of maintenance, payment of taxes and costs of administration. The State, as the landlord, need not necessarily be a benevolent and good charitable Samaritan. They can - and rather must - also save themselves from negative balances caused by the cost of maintenance, payment of taxes and costs of administration. The State, as the landlord, need not necessarily be a benevolent and good charitable Samaritan. The felt need for expanding or stimulating its own activities or other activities in the public interest having once arisen, the State need not hold its hands from seeking eviction of its lessees. However, the State cannot be seen to be indulging in rack-renting, profiteering and indulging in whimsical or unreasonable evictions or bargains." In these premises we find no error in the order dated 15.04.1997 directing that the appellants be shifted from the Park and provided accommodation elsewhere at a new location. 11. An attempt was made to satisfy the Court that the carrying on business by the appellants can in no way said to be detrimental to the public interest. As a matter of fact, it was contended that the kind of business the appellants have been doing is rather in the interest of the visitors i.e., public at large. It was submitted that needs of the visitors in the Park ought also to be taken care of for which stalls/kiosks have to be put up., This is a matter to be taken into consideration by those who are incharge of maintenance of the park. Whether carrying on activities by the appellants is detrimental to the interest of garden and the larger interest of the public is a question of fact and in the absence of any evidence on the point the Court cannot give a verdict in this regard. It is for the authorities to consider whether and if so at what places the stalls/kiosks should be shifted and set up to cater to the needs of the visitors of the park keeping in view the provisions of the Rajasthan Public Parks Act, 1956 -particularly Section 7 thereof , and the rule framed thereunder. So far as direction of the learned Single Judge is concerned, we find no error to warrant interference by the Division Bench. 12. Consequently, the appeal is dismissed