Research › Search › Judgment

Madhya Pradesh High Court · body

2016 DIGILAW 606 (MP)

Dashrath v. State of M. P.

2016-07-25

P.K.JAISWAL, VIVEK RUSIA

body2016
ORDER Rusia, J. -- 1. Present petition has been filed by the petitioners as pro bono publico challenging the action of the respondent No.6 Municipal Council, Khachrod by which they have passed a resolution to develop a park over the vacant land within the municipal area of Khachrod. According to the petitioners land bearing Khasra Nos.992, 993, 994 and 995 are being used as playground area by the local community and there is a path/road situated over the land bearing Survey No.1209 and by constructing a park the said path would be blocked. It is submitted that in the year 2011 a resolution was passed by the respondent No.6 for constructing a stadium over the said playground but without any reasons another resolution has been passed to convert the said playground into a park on 19.3.2013. The public at large and sports persons of the locality have objected the act of the Municipal Council and submitted a representation to the Collector and others on the ground that this is the only playground available for the players and if a park is constructed over the said land then they would be deprived of sports activities. Apart from that the path over Khasra No.1209 is being used by many agriculturists and local residents and if park is constructed over it then they would not be in a position to reach their agricultural field, therefore, the construction of the park is not in public interest. Hence, this petition has been filed by the petitioners. 2. In reply respondents No.1, 3, 4 and 5 filed their reply in which it is stated that Survey Nos.992 to 995 are not notified or earmarked for playground but the same has been notified and recorded as “Abadi land” which belongs to the Municipal Council, Khachrod, therefore, the Municipal Council is free and competent to pass the resolution and free to use the said land. So far as the contention regarding the public road is concerned, it is submitted that no such road is passing through the park and the said road is also not recorded in the revenue records. Besides that petitioners have an alternative efficacious remedy of filing an appeal under section 307 of the M.P. Municipalities Act, 1961 against the resolution passed by the by the Municipal Council. Besides that petitioners have an alternative efficacious remedy of filing an appeal under section 307 of the M.P. Municipalities Act, 1961 against the resolution passed by the by the Municipal Council. Petitioners have not approached this Court with clean hands as they have suppressed the material fact that there are six other playgrounds available in the Municipal limits of Khachrod for the public at large and by suppressing this fact they have obtained the interim order from this Court. In view of the law laid down in the case of State of M.P v. Narmada Bachao Andolan, reported in (2011)7 SCC 639 , petitioners are guilty of suppression of material and incorrect facts, therefore, this petition is liable to be dismissed. They have placed further reliance over the decisions in the matters of the Ramjas Foundation and others v. Union of India and others, reported in AIR 1993 SC 852 , Noorduddin v. Dr. K. L. Anand [ (1995)1 SCC 242 ], Ramniklal No.Bhutta and others v. State of Maharashtra and others, reported in AIR 1997 SC 1236 , Sabia Khan and others v. State of U.P and others, reported in (1999)1 SCC 271 , SJS Business Enterprises (P) Ltd. v. State of Bihar and others, reported in (2004)7 SCC 166 and Union of India and others v. Shantiranjan Sarkar, reported in (2009)3 SCC 90 . 3. In support of the return Khasra entries have been filed in which Survey Nos.992, 993, 994 and 995 are mentioned as Abadi land. After passing the resolution, the Director Urban Administration and Development, Ujjain has granted permission for construction of boundary wall. The Executive Engineer has also granted permission and thereafter layout of the garden was sanctioned. The garden has been constructed for the public at large for which a sum of Rs.1,62,00,000/- (approximately) has been spent and now the garden is available for public use w.e.f. September, 2014. 4. That the respondent No.6 i.e. Municipal Council, Khachrod has also filed a return in which similar objections were taken regarding the availability of other playgrounds in the area and availability of alternative efficacious remedy of appeal etc. Respondent No.5 specifically stated that there are total six playgrounds available within the Municipal limits of Khachrod. The details are mentioned in para-4 of the return, therefore, petitioners are wrong in saying that this was the only playground available for the sports activities in Khachrod. Respondent No.5 specifically stated that there are total six playgrounds available within the Municipal limits of Khachrod. The details are mentioned in para-4 of the return, therefore, petitioners are wrong in saying that this was the only playground available for the sports activities in Khachrod. It is further submitted that resolution for construction of the garden was passed on 19.3.2013. Thereafter the permission was taken from Director, Urban Administration and Development, Ujjain. The layout of the garden was also got sanctioned. Thereafter, tenders were invited for construction work. Now the construction activity has been completed and the garden has been opened for the public at large from September, 2014 and the local residents are using the facility of garden and they have no objection about the same. The Municipal Council has utilized public money Rs.1,62,00,000/- for the public interest. It is further submitted that so far as the facility of playground is concerned, a resolution has been passed on 12.10.2011 and NOC has been obtained from the State Government on 28.11.2014 for construction of the stadium at Khachrod. The Director, Urban Administration and Development, Ujjain vide order dated 22.3.2013 granted sanction for construction of stadium. The Department of School Education has also issued NOC for the said work. Now the Municipal Council is in the process of starting the construction of stadium, therefore, the interest of the sportsmen has also been taken care of by the Municipal Council. Inter alia, allegation has been made against the petitioners that they have stated incorrect and incomplete facts before this Court in this Public Interest Litigation and by suppressing material facts they have obtained an interim order from this Court and thereby committed criminal contempt for which this writ petition is liable to be dismissed with cost. 5. We have heard Shri Vinay Zelawat, learned senior counsel for the petitioners, Shri Sunil Jain, learned A.A.G for the respondents/State and Shri Amit Agrawal, learned counsel for the Municipal Council, Khachrod. 6. This petition has been filed in public interest on the ground that on the land bearing Khasra Nos.992 to 995 there is a public playground and over Khasra No.1209 there is a public way but as per the revenue records the said lands are shown as Abadi land and it is in the possession of Municipality, Khachrod. 6. This petition has been filed in public interest on the ground that on the land bearing Khasra Nos.992 to 995 there is a public playground and over Khasra No.1209 there is a public way but as per the revenue records the said lands are shown as Abadi land and it is in the possession of Municipality, Khachrod. Since the land was vacant it might have been used for playing activities by the local residents but as per the revenue records it is Abadi land and is in possession of Municipal Council, Khachrod. Since the land belongs to the Municipal Council they are free to use it in accordance with law. It is not the case of the petitioners that Municipal Council, Khachrod is not competent to pass the impugned resolution under the provisions of the Municipalities Act, 1961. A valid resolution has been passed by the Municipal Council, Khachrod to use the land for constructing public park. Petitioners have not pointed out any illegality in passing the impugned resolution dated 19.3.2013. The Municipal Council has passed the resolution within its competence and an appeal lies against the said resolution before the appellate authority. Neither the petitioners nor anyone has challenged the same by way of an appeal, therefore, the contention of the petitioners that the land in question is being used as playground cannot be used for the purpose of construction of a park has no force because in the revenue records the use of the land is not mentioned as playground. 7. That the Municipal Council has passed a resolution dated 19.3.2013 to develop a park over the land in question. A valid resolution has been by the Municipal Council and thereafter necessary permissions have been granted by the competent authority. The layout was sanctioned and by spending Rs.1,62,00,000/- garden was constructed. The photographs to that effect has been filed along with the return. From the perusal of the said photographs it is revealed that the park has been constructed with all the facilities. The construction of park is also for public purpose and public at large is using the said park for amusement purpose, therefore, the land is being used for public purpose, hence resolution passed by the Municipal Council cannot be said to be illegal and is not liable to be set aside. The construction of park is also for public purpose and public at large is using the said park for amusement purpose, therefore, the land is being used for public purpose, hence resolution passed by the Municipal Council cannot be said to be illegal and is not liable to be set aside. So far as the public path over Khasra No.1209 is concerned, the respondents No.1, 3, 4 and 5 in its return specifically stated that in revenue records it is not shown as public path and especially Survey No.925 where the park is constructed that is not blocking the public path, therefore, on this ground also the contention of the petitioners are not acceptable. 8. That so far as the facility of playground is concerned, respondent No.6 in its return have stated that petitioners have made incorrect statement that this was the only one playground available for the sportsmen in the locality but the facts remains that apart from this there are six more playgrounds available within the Municipal limits of Khachrod. Apart from this Municipal Council has also passed a resolution for construction of stadium for which necessary permission has been obtained and the work is about to begin. Though the petitioners have disputed about the availability of six playgrounds for public at large within the Municipal limits but the facts remains that Municipal Council has passed the resolution for providing stadium in Khachrod. The land which was being used as playground was a barren land where other facilities of sports are not available but if the stadium is constructed wide range sports facilities like pavilion, bathroom, rest-room, changing-room, drinking water etc. would be available to the sports persons. The Municipal Council, Khachrod has taken care of the interest of sportsmen and local public by providing the stadium and park. Hence, we do not find any substance in the writ petition, accordingly, the petition being devoid of any merit is hereby dismissed without any cost.