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CASE NO.: Appeal (civil)  6211 of 2000

PETITIONER: Allahabad Ladies Club

RESPONDENT: Jitendra Nath Singh and Ors

DATE OF JUDGMENT: 20/03/2007

BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T [With Civil Appeal nos.159 and 2875 of 2001]  

Dr. ARIJIT PASAYAT, J.          

       Challenge in these appeals is to the judgment  rendered by a Division Bench of the Allahabad High Court,  inter-alia, directing that the lease granted to the appellant  in Civil Appeal No.6211 and Civil Appeal No. 159 of 2001  be cancelled.  Certain other directions given are subject  matter of challenge in the other appeal. All constructions  made were also directed to be demolished.     

       A brief reference to the factual aspects would suffice:  

       A petition styled to be a "public interest litigation"  was filed before the Allahabad High Court primarily  making a grievance that the park known as the Company  Bagh has ceased to be a park and illegal leases have been  granted and constructions have been put up in alleged  violation of the provisions of the Uttar Pradesh Parks,  Playgrounds and Open Spaces (Preservation and  Regulation) Act, 1975 (in short the ’Act’).  The writ petition  was disposed of with certain directions. The State  Government field special leave petition before this Court  questioning correctness of the order passed.  The same  was disposed of by order dated 9.4.1991 with the following  order:                                                                        "After hearing the parties for a  considerable period of time, we think it will  be just and fair to pass the following  directions:-  i)      The High Court will drop the  proceedings for contempt;

ii)     The High Court will hear all the  parties and will try to solve the  problem regarding the shifting of the  stadium and other problems in a  fitting manner after taking  suggestions, if any, given by the  parties as well as by the State  Government as in our opinion, the  High Court will be the fitting and  proper authority to dispose of the

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matter in order to promote public  interest; and

(iii)   The High Court will hear all the  parties appearing before the Court.               Pursuant to the directions of this Court all the  parties were heard and the respective stand was  considered.  The High Court by the impugned order which  is common to these appeals held that there has been clear  violation of the provisions of the Act and the Uttar Pradesh  Urban Planning and Development Act, 1973 (in short  ’Development Act’). The appellants have questioned  correctness of the view expressed by the High Court on  several grounds. Primarily it is contended that there was  no challenge to the lease granted to any of them.  There  was not even any prayer for cancellation of any lease.  All  the leases were executed long time back i.e. much before  the Act and the Development Act were enacted.  The  appellants were impleaded in the writ petition by this  Court’s direction as they were not parties when the matter  was earlier disposed of.  There was no challenge in the  writ petition to any unauthorized construction. The  constructions made by the appellants were clearly  authorized. The original writ petitioners have not made  any grievance so far as the present appellants are  concerned and the writ petition was filed making  grievances to a limited extent which have nothing to do  with the leases granted to the appellants.  Therefore, the  directions as given cannot be maintained.          Learned counsel for the Allahabad Development  Authority has stated that the impugned order virtually  rules out any developmental activity and even nullifies  works already done.  

       We find that the High Court has unnecessarily  enlarged the scope of the writ petition.   Though in a  public interest litigation it is permissible to take note of  the  necessary/connected matters; the position was not so  in the present case.  Challenge was not to the grant of  lease.  There was no averment made in petition that the  constructions by the appellants were unauthorized.  In the  writ petition a few officers were impleaded.   

The High Court was not justified in directing  cancellation of lease.            Sections 6, 7 and 8 of the Act have relevance.  They  read as follows.

"6.     Prohibition of the use of parks,  playgrounds and open spaces in certain  cases \026 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, playgrounds  and open spaces. \026 The local authority

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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. \026  No person shall except  with the previous sanction of the  prescribed authority, construct any  building or put any structure likely to  affect the utility of the park, playgrounds  and open space specified in the list  published under Section 3 or Section 4."

Above being the position, we dispose of these appeals  with the following directions.

(1)     The parties were not required to place any  material regarding validity of leases as that was  not the subject matter of challenge in the writ  petition.  It would be relevant to note that  Sections 6, 7 and 8 of the Act which have  relevance so far as the present dispute is  concerned.  Section 6 deals with prohibition of  the use of parks, playgrounds and open spaces  in certain cases.  A bare reading of the provision  indicates that no park, playground or space  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 the Act.  Therefore, if on the  date of commencement of the Act a park,  playground or open space was being used for a  particular purpose the same can be continued.   (2)     Under Section 8 there is prohibition on  construction of buildings etc. except with the  previous sanction of the prescribed authority.  That obviously means that construction of  buildings etc. can be done with the previous  sanction of the prescribed authority.  The High  Court has not taken note of the effect of  Sections 6 and 7 of the Act as quoted above.   The State Government is directed to find out : (a)     If there is any encroachment.  (b)     If there is violation of any terms of  the Act after taking note of Secitons  6, 7 and 8 thereof. (c)     The existing Master plans have to  operate and the effect thereof is also  to be considered by the appropriate  authority.

It is for the Allahabad Development  Authority to find out whether there is any  violation of the Development Act and if there is  any, it is open to the authority to take such  action as is warranted, as provided in law.                                                 

       To the aforesaid extent the appeals are allowed.   Costs made easy.