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2019 DIGILAW 131 (ALL)

Bajrangpuri Ram Leela Committee v. State of U. P.

2019-01-17

RAJENDRA KUMAR-IV, SUDHIR AGARWAL

body2019
JUDGMENT : 1. This writ petition has been filed in the garb of Public Interest Litigation (hereinafter referred to as 'PIL') alleging that private respondents 5 to 7 have encroached upon a public Park by raising certain construction which is causing obstruction in functioning of Ram Leela from time to time and, therefore, direction be issued to respondents to remove aforesaid encroachment and demolish construction so that petitioner may perform 'Ram Leela' every year. 2. Following prayers have been made by petitioners :- (a) Issue a writ, order or direction in the nature of mandamus directing the respondents authorities to restrain the private respondents not to change the nature of public park either by raising construction or alienating the same. (b) Issue such any other writ or order in the nature of mandamus directing and commanding the respondents to demolish the illegal construction made over the Aarazi of park and garbage from the park may be removed forthwith and petitioner may be allowed to performed Ram Lila in the park year by year without any impediment." 3. Though, petitioner has attempted to term this petition a PIL alleging that there is an encroachment on a public Park but in effect it is enforcing personal rights also since a writ of mandamus has also been sought directing respondents to allow petitioner to perform 'Ram Leela' in the Park in question, regularly and without any hindrance and impediment. 4. So far as preservation and maintenance of Park is concerned, there is no doubt that Authorities are bound to preserve and maintain Public Parks and to ensure that there should not be any encroachment, collection of garbage etc. There should be nothing to which may hinder use of place as Park by public at large. This is applicable not only for Public Parks but Playgrounds and Open Spaces also. 5. Uttar Pradesh legislature has taken care of these places vide "The Uttar Pradesh Parks, Playgrounds and Open Spaces (Preservation and Regulation), 1975 (hereinafter referred to 'U.P. Act, 1975') which received assent of President on 28.10.1975 and published in U.P. Gazette, (Extraordinary) on 28.10.1975. 6. This is applicable not only for Public Parks but Playgrounds and Open Spaces also. 5. Uttar Pradesh legislature has taken care of these places vide "The Uttar Pradesh Parks, Playgrounds and Open Spaces (Preservation and Regulation), 1975 (hereinafter referred to 'U.P. Act, 1975') which received assent of President on 28.10.1975 and published in U.P. Gazette, (Extraordinary) on 28.10.1975. 6. "Public Parks", "Playgrounds" and "Open Spaces" are defined in U.P. Act, 1975 in Section 2 (a), (b) and (c) of U.P. Act, 1975, which read as under :- "2(a) "open space" means any land (whether enclosed or not), belonging to the State Government or any local authority, on which there are no buildings or of which not more than one-twentieth part is covered with buildings, and whole or the remainder of which is used for purposes of recreation, air or light; (b) "park" means a piece of land on which there are no buildings of which not more than one-twentieth part is covered with or buildings, and the whole or the remainder of which is laid out as a garden with trees, plants or flower-beds or as a lawn or as a meadow and maintained as a place for the resort of the public for recreation, air or light; (c) "playground" means a piece of land adapted for the purpose of play, game or sport and used by any educational institution or club or other association;" 7. Section 3 of U.P. Act, 1975 requires maintenance of list with plans and maps of all Parks, Playgrounds and Open Spaces in such areas, prepared and published by such Authorities within such time and in such a manner as may be prescribed and variation in the list is permitted by Sections 4 and 5 of U.P. Act, 1975 respectively. Then, nature of statutory obligation, with regard to preservation and regulation of Parks, Playgrounds and Open Space are provided. 8. Sections 5, 6, 7 and 8 of U.P. Act, 1974, read as under :- "5. Variation or revocation of list - (1) The State Government may at any time, either suo motu, or at the instance of a local authority, or of any person interested, add to, vary or revoke a list approved under Section 3 or revised under Section 4. Variation or revocation of list - (1) The State Government may at any time, either suo motu, or at the instance of a local authority, or of any person interested, add to, vary or revoke a list approved under Section 3 or revised under Section 4. (2) Before making any such addition, variation or revocation, the State Government shall publish, in the prescribed manner, a draft of such addition, variation or revocation together with a notice specifying a date on or after which such draft will be taken into consideration and shall consider such objections and suggestions as may be received in respect of such draft before the date so specified. 6. Prohibition of the use of parks, play grounds and open spaces in certain cases.- No park, playground or open space, specified in the list published under Section 3 or Section 4, as the case may be, shall except with the previous sanction of the prescribed authority, be used for any purpose other than the purpose for which it was used on the date immediately preceding, the date of commencement of this Act. 7. Maintenance of parks, playground and open spaces.- The local authority shall maintain in a clean and proper condition all parks, playgrounds and open spaces belonging to or vested in it and included in the list published under Section 3 or Section 4 8. Prohibition of construction of buildings, etc.- No person shall, except with the previous sanction of the prescribed authority, construct any building or put up any structure likely to affect the utility of the park, playground or open space specified in the list published under Section 3 or Section 4." 9. The owner of Parks, Playgrounds and Open Spaces etc., whether it is Local Authority or others but included in the list of Parks etc., has to perform such statutory duties which can be enforced by Prescribed Authority in the manner as provided in Section 9 of U.P. Act, 1975. 10. If there is any entry or stay of any unauthorized person in Park, Authority, as prescribed in Rules, is obliged to remove such person from such Park, Playground and Open Space etc. taking help of even Police Force or any other persons on behalf of State Government or Local Body, as the case may be. 11. Throwing of rubbish etc. If there is any entry or stay of any unauthorized person in Park, Authority, as prescribed in Rules, is obliged to remove such person from such Park, Playground and Open Space etc. taking help of even Police Force or any other persons on behalf of State Government or Local Body, as the case may be. 11. Throwing of rubbish etc. in Parks, Playgrounds and Open Spaces is an offence, for which penalty is prescribed in Section 12 of U.P. Act, 1975, which is imprisonment for a term which may extend one month or with fine or with both. 12. Section 14 of U.P. Act, 1975 confers power upon State Government to frame Rules in pursuance whereto "The Uttar Pradesh Parks, Playgrounds and Open Spaces (Regulation and Control) Rules, 2005 (hereinafter referred to as 'Rules, 2005') have been framed. "Prescribed Authority" has been defined in Rule 2 (c) of Rules, 2005, which reads as under :- "'prescribed authority' means an officer or a body corporate appointed by the State Government in this behalf by notification in the Gazette and if no such officer or body corporate is appointed, the Commissioner Division, in which the Corporation or the District Magistrate of the district in which the Municipal Board or the Nagar Panchayat is situated." 13. Rules, 2005 by virtue of Rules 1(2) are applicable to every Municipal Corporation, Municipal Board, Nagar Panchayat in State of U.P. and such other areas as State Government may, from time to time, by notification in Gazette specify. Rule 7 of Rules, 2005 describes various prohibitions in respect of Parks, Playgrounds and Open Spaces and it reads as under :- "7. Prohibition - (1) No person shall except with the written permission of Prescribed Authority or any officer authorised in this behalf setup any wall, fence, rail, post, step, booth or other structure whether fixed or movable and whether of a permanent or a temporary nature, or any fixture in or upon any park, playground and open spaces so as to form an obstruction to, or an encroachment upon or to occupy any portion of such park, playground and open space. (2) No person, owner, manager or agent shall except with the permission of local body or any officer authorised in this behalf shall be allowed to enter any any class of animal to any park, playground or open space. (2) No person, owner, manager or agent shall except with the permission of local body or any officer authorised in this behalf shall be allowed to enter any any class of animal to any park, playground or open space. (3) No park, playground or open space specified in the list approved by Prescribed Authority under rule 5 shall except with the written permission of Prescribed Authority or any officer authorized by it in this behalf, be used for any purpose other than the purpose for which it has been made for. (4) No person shall be allowed to affect the utility of the parks, playgrounds or open spaces specified in the approved list. (5) No person shall throw rubbish, stack debris, get over railing or fence, steal or damage fruits, flowers, leaves, plants, grass, fixtures, tools or illegal and immoral conduct." 14. Rule 8 of Rules, 2005 lays down obligation upon Local Authority to maintain all Parks, Playgrounds or Open Spaces in a clean, proper and satisfactory condition. Clauses (a) and (b) of Rule 8 of Rules, 2005, describe various maintenance works to be observed in respect of Parks, Playgrounds and Open Spaces, and it reads as under :- "8. Maintenance of Park, Playground of Open Spaces. - (1) The local body concerned shall maintain all parks, playgrounds or open spaces belonging to or vested in it and included in the list approved and published under rule 5 in a clean, proper and satisfactory condition. (2) The parks, playgrounds or open spaces developed by Development authorities, housing boards, housing societies, builders and such other agencies, but not handed over to local body, shall be maintained by them in a clean, properly and to the satisfaction of the local body concerned. (3) In case of parks, playgrounds or open spaces not vested in a local authority, but included in the list published under rule 5, the Prescribed Authority, may, by notice, require the owner or occupier of such parks; playgrounds or open spaces - (a) to maintain such parks, playgrounds or open spaces in a clean and proper condition; or (b) to remove or alter any projection, encroachment or obstruction in or over in such park, playground or open space or to make within a period specified in the notice such repairs to any buildings in such park playground or open space as Prescribed Authority may consider necessary." 15. Rule 10 of Rules, 2005 talks of removal of encroachment, which reads as under :- "(10) Removal of Encroachments.- The prescribed authority or any officer authorised by it in this behalf may without notice cause to be removed any wall, fence, railing, post, step, booth or other structures whether fixed or movable and whether of permanent or of temporary nature or any fixture which is erected or setup in or upon any park, playground or open space." 16. Thus, maintenance of Parks, Playgrounds and Open Spaces is a statutory obligation. The same have to be maintained without any encroachment, without presence of unauthorized persons therein and in clean and proper manner. Penal provisions are available in statute and also provisions for enforcement of various duties in respect of Parks, Playgrounds and Open Spaces etc. It is really surprising, as stated in para 15 of PIL, that the land in question, over which Public Park is there belong to Kanpur Development Authority but not being maintained as provided in U.P. Act, 1975. Once it is ear-marked as Park, it has to be maintained in the manner, as provided in U.P. Act, 1975 and Rules, 2005. 17. The Parks, Playgrounds and Open Spaces etc. which are to be used for public in common, cannot be allowed to be used for religious purposes by any particular community or class for religious activities, for the reason that in such a case such Parks, Playgrounds and Open Spaces would stand restricted to be used by such religious community or class, may be for a short period, but to that extent, it will be occupied by such persons to the exclusion of other common people. It is also not the purpose of objective of making park, this would be in violation of Section 6 of U.P. Act, 1975. Parks, Playgrounds and Open Spaces, therefore, cannot be occupied in the name of religious activities unless Competent Authority permits to do so and that too, if it is permissible under law and not otherwise. 18. Thus, in our view, Parks, Playgrounds and Open Spaces cannot be utilized for any religious activities and if there is any encroachment for such activities or someone is keeping or throwing garbage etc., it is the responsibility of Prescribed Authority to take appropriate action for removal thereof, forthwith. 19. 18. Thus, in our view, Parks, Playgrounds and Open Spaces cannot be utilized for any religious activities and if there is any encroachment for such activities or someone is keeping or throwing garbage etc., it is the responsibility of Prescribed Authority to take appropriate action for removal thereof, forthwith. 19. Counsel for petitioner submitted that only 'Ram Leela' is being organized for a shorter period during Dussahra and some other activities for a shorter period for organizing religious activities like Ram Leela and Durga Puja etc. in the interest of public, therefore, Parks, Playgrounds and Open Spaces etc. can be utilized temporarily. 20. We do not find ourselves in agreement with the aforesaid submission. If a statute does not permit to do so, we find no reason to allow any religious activity to be performed in public place like Parks, Playgrounds and Open Spaces or similarly other public places like roads, Side-lanes, railway platforms and other public places of specific importance and use of particular purpose. No person or group or class of persons having faith in any religion or religious denomination, whether belong to majority community or minority community, can claim a right to block public place so as to prevent its utilization to public at large, even for a shorter period, as it amounts to temporary encroachment which is illegal and cannot be permitted to any community, whether belongs to majority community or minority community. It is the responsibly of Competent Authority to ensure that no such activity is undertaken and public places are maintained unobstructed, unencroached, unoccupied and free from such activities, which restricts common persons from exercising his / her general right of use of public places, without any hindrance. 21. We reiterate that whatever we have observed above will apply to all kinds of activities, which are performed in the name of religion or religious denomination, irrespective of the fact whether it is being observed by majority community or minority community. 22. In order to avoid any misinterpretation of what we have stated above, we may clarify that mere passing of a procession on a road for religious purpose will not come within obstruction or encroachment. 23. In present case, Park in question has to be maintained under the provisions of U.P. Act, 1975 and Rules 2005. Therefore, we direct Competent Authority to ensure that there is no encroachment or keeping or throwing garbage etc. 23. In present case, Park in question has to be maintained under the provisions of U.P. Act, 1975 and Rules 2005. Therefore, we direct Competent Authority to ensure that there is no encroachment or keeping or throwing garbage etc. in Park. It should be maintained and cleaned in a proper manner so as to be utilized as a Park by people in general. 24. Further, in compliance and observance of this order in respect of similarly placed other public purpose, we direct that a copy of this judgment shall be forwarded to Chief Secretary, U.P. Lucknow so that he may issue necessary instructions in this regard across the State to all concerned authorities. A compliance report shall be submitted within three months, to this Court by way of filing an affidavit. 25. Subject to above directions and observations, writ petition is disposed of.