Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : ...the Characteristic Of Park, As Defined By Clause (b) Of Section 2 Of The Parks Act, Would Not Be Changed Or Defaced, By Construction Of The...
JUDGEMENT TITLE : Sandeep Pandey And Anr. Vs. State Of U.P. And 5 Others On 08/24/2016 By Allahabad High Court
CASE NO : PUBLIC INTEREST LITIGATION (PIL) NO. 41434 OF 2015
CORAM : Hon'ble Dilip B. Bhosale,Chief Justice And Hon'ble Yashwant Varma,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.
Reserved

Case :- PUBLIC INTEREST LITIGATION (PIL) No. - 41434 Of 2015

Petitioner :- Sandeep Pandey And Another
Respondent :- State Of U.P. And 5 Others
Counsel For Petitioner :- Rahul Mishra
Counsel For Respondent :- C.S.C, Shashi Nandan, Sr. Adv., Anoop Trivedi, Anil Tiwari, Shivam Yadav,

Hon'ble Dilip B Bhosale, Chief Justice
Hon'ble Yashwant Varma, J.

Rule.
Heard Forthwith By Consent Of Learned Counsel For The Parties.
The Petitioners, Who Claim To Be Social Activists, Have Instituted This Petition In The Public Interest Under Article 226 Of The Constitution Of India, Challenging The Resolution/proposal Which Has Been Passed/approved By Respondent No. 4-Kanpur Development Authority (for Short "KDA") In Its 112th Board Meeting Dated 14.10.2014. By This Resolution, KDA Have Decided To Construct An Underground Parking In Phoolbagh, Which, According To The Petitioners, Is Contrary To And In Defiance Of The Judgement Of This Court Dated 12.9.2014 Rendered In Public Interest Litigation (PIL) No. 42083 Of 2014. The Petitioners Have Also Made Consequential Prayers In The PIL.
PIL No. 42083 Of 2014 Was Also Filed By The Petitioners, Challenging The Validity Of A Decision Of KDA To Construct An Underground Car Parking Area For 680 Cars In The Lower Basement With A Shopping Complex Of 150 Shops In The Upper Basement In A Portion Of Phoolbagh Park At Kanpur. The Challenge Was On The Ground That The Construction Of An Underground Shopping Complex And Car Parking In An Area Reserved For A Park Under The Master Plan Is Unlawful. The Project, That Was Under Challenge In The Said PIL, Envisaged The Construction Of An Underground Multilevel Car Parking Facility Of Between 7000 To 8000 Sq. Meters And A Shopping Complex Of 150 Shops In The Upper Basement With A Facility Of Providing For The Parking Of 680 Cars In The Lower Basement, In Addition To Which, Surface Parking Of 200 Cars. The Terrace Garden Was Also Envisaged Over And Around The Central Area Where Construction Was To Be Carried.
In This Backdrop, The Issue Which The Division Bench Addressed Was Whether The Construction Of An Underground Shopping Complex In An Area Which Is Reserved Under The Master Plan As A Park Would Violate The Provisions Of The Master Plan. Further, It Was Considered Whether The Construction Of 150 Shops Which Was Liable To Attract A Large Number Of Vehicles Of Persons Who Visit The Shopping Complex Would At All Alleviate The Problem Of Traffic Congestion Outside Phoolbagh. The Division Bench After Considering Judgments Of The Supreme Court In Bangalore Medical Trust Vs. B.S. Muddappa, AIR 1991 (SC) 1902, G.N. Khajuria Vs. Delhi Development Authority, AIR 1996 SC 253 And M.I. Builders Pvt. Ltd. Vs. Radhey Shyam Sahu, AIR 1999 SC 2468 Held That The Decision Of KDA To Construct An Underground Shopping Complex And Car Parking In The Area Of Phoolbagh Was Legally Impermissible And Was Contrary To The Provisions Of The Master Plan Prepared Under The U.P. Urban Planning And Development Act, 1973 (for Short "Act, 1973"). While So Declaring, It Was Also Observed That It Would Be Open To KDA To Conduct A Fresh Survey On The Likely Need For A Car Parking Facility In The Area And After A Due And Proper Enquiry And Survey, To Conceive Of A Project Involving The Provision Of A Parking Facility As An Amenity Appurtenant To The Park. It Was Also Clarified That The Said Judgement Would Not Stand In The Way Of The Authority In Taking Necessary Measures For Beautification And Maintenance Of Phoolbagh As A Park Without Disturbing Its Integral Feature As A Recreational Open Space.
Thereafter, KDA, It Appears, Conducted A Survey And Enquiry And Has Taken The Impugned Decision. It Further Appears That After Following The Due Procedure, KDA Also Commenced With The Construction Of The Underground Car Parking, Providing Parking Space For 650 Cars.
Feeling Aggrieved And Dissatisfied With The Impugned Resolution Dated 14.10.2014, The Petitioners Have Filed The Instant PIL Alleging That KDA, In The Name Of Survey And Enquiry And Under The Garb Of Limited Liberty Given By This Court In The Judgment Dated 12.9.2014 In PIL No. 42083 Of 2014, Deliberately Misread And Misinterpreted The Order And Commenced The Construction Of Underground Parking. Petitioner No. 2 And The Residents Of Kanpur City, It Is Stated In The Petition, Submitted Objections Before KDA Which, It Appears, Have Been Shelved By The Authority, Inasmuch As It Had Pre-decided To Proceed With The Plan And Just Covered Up With Paper Formalities. In Short, According To The Petitioners, The Decision Of The Respondents, In Particular KDA, Was In Contravention And Defiance Of The Order Passed By This Court Dated 12.9.2014 In PIL No. 42083 Of 2014, Inasmuch As They Wilfully Misread The Limited Liberty Given By This Court To Proceed With Multilevel Parking As Was Originally Conceived Of By Them Earlier And Which In Unequivocal Terms, As Held By This Court, Legally Impermissible.
The Vice Chairman Of KDA Has Filed Counter Affidavit Denying All Allegations Made In The Writ Petition And Has Placed On Record The Materials Including Survey Report Dated 24.9.2015 (Annexure CA-14) In Support Of The Impugned Resolution. It Would Be Relevant To Reproduce Paragraphs 37, 39, 41, 42, 44, 53, 54, 76 And 78 To Know The Exact Stand Of The KDA, Which Read Thus:
"37. That Further, The Tract Of Land Over Which The Car Parking Is Now Being Constructed Was A Barren Piece Of Land Which Was Not Being Utilized For Any Purpose. It Is Stated That Neither Ecology Of The Park Has Been Disturbed Nor There Would Be Any Change In The Nature Of Park. The Multilevel Car Parking Below The Ground Level Would Only Add To The Convenience Of The Visitors To The Park And Nearby Areas. The Said Facility Is Presently A Necessity In The City Also.
39. That It Is Stated That The Project Of Underground Parking Is Being Carried Out After The Survey Was Conducted Under The Directions Of This Hon'ble Court. This Project Has Also Included The Future Possibilities And Future Inflow Of The Persons / Vehicles In The Park.
41. That It Is Specifically Stated Here That The Kanpur Development Authority Has Undertaken The Beautification And Renovation Of The Park In Question. Various Facilities / Amenities Are Being Provided By The Kanpur Development Authority In The Park That Would Certainly Attract A Large Crowd To The Park. These Visitors Would Certainly Require A Big Parking Lot.
42. That It Is Specifically Stated Here That The Kanpur Development Authority Is Creating Walking Track/ Path Way 3 Meters Wide About 960 Meters, 2.5 Meter About 210 Meters. This Walking Track / Path Way Would Cover An Area Of 3273 Square Meters.
44. That The Kanpur Development Authority Has Further Proposed To Construct A Separate Jogging Park Of 380 Meter Length.
53. That In The Meanwhile The Officers Of The Kanpur Development Authority Started Conducting Survey Which Took Three Weeks Time And The Survey Report Was Submitted And Considered In A Meeting Dated 24.09.2015.
54. That The Answering Respondent Brings On Record A True Copy Of The Survey Report Conducted By The Kanpur Development Authority. A True Copy Of The Survey Report Dated 24.09.2015 Is Annexed Herewith And Marked As Annexure No. CA-14 To This Affidavit.
76. ....In Reply It Is Stated That The Answering Development Authority Has Merely Constructed An Underground Multilevel Car Parking That Too Without Disturbing The Ecology Of The Park In Any Manner. It Is Specifically Stated Here That The Ground Area Above The Car Parking Would Remain As A Park. It Is Specifically Stated Here That No Commercial Activity Whatsoever Is Either Contemplated Or Would Be Permitted At The Site In Question.
78. ....However, It Is Specifically Stated Here That Even After The Construction Of Underground Multilevel Car Parking The Land Above It Will Be Restored In The Shape Of Park And Would Not Be Utilized For Any Other Purpose And The Same Will Continue To Be An Integral Part Of The Ganesh Udyan That Too As A Park."

In Reply To The Counter Affidavit, Petitioner No. 2 Has Filed Rejoinder Affidavit And In Paragraph 5 Thereof Stated That "the Development Authority Have Not Made Any Proposal For Constructing Parking Facility Appurtenant To The Park But Had Made The Proposal For Constructing Multilevel Parking In The Park Itself, Considering The Need Of The Entire City. The Proposal Was Against The Master Plan Of The Development Authority And Even Against Various Judgments Of Hon'ble Supreme Court, Which Forbade Any Change In User Of Park Or Green Area, Contrary To The Master Plan." The Petitioner No. 2, Apart From Denying The Averments Made In The Counter Affidavit Filed On Behalf Of KDA, Has Also Tried To Demonstrate As To How The Decision Of The Construction Of An Underground Parking Facility Is Also Contrary To The Provisions Of Uttar Pradesh Parks, Playgrounds And Open Spaces (Preservation And Regulation) Act, 1975 (for Short "Parks Act") And Also Against The Master Plan. In Short, In The Rejoinder Affidavit, Petitioner No. 2 Once Again Made An Attempt To Demonstrate As To How The Construction Of Underground Parking Facility In The Park Is Likely To Cause Injury To The Environment And Ecology Of The Public Park.
We Have Heard Learned Counsel For The Petitioners And Learned Senior Counsel For KDA And Other Learned Counsel Appearing For The Remaining Respondents At Considerable Length And With Their Assistance Perused The Entire Materials Placed On Record.
Mr. Rahul Mishra, Counsel For The Petitioners, At The Outset, Submitted That Construction Of An Underground Car Parking Facility In An Area Which Is Reserved Under The Master Plan As A Park Would Violate The Provisions Of Master Plan. In Support Of This Contention, He Placed Heavy Reliance Upon The Judgment Of This Court Dated 12.9.2014 In PIL No. 42083 Of 2014. He Vehemently Submitted That The Impugned Resolution Is Not Only Contrary To And In Defiance Of The Judgment Dated 12.9.2014, But Going Ahead With The Proposal For Construction Of Underground Parking Facility, Would Also Amount To Flouting Of The Said Order Of This Court. In Support, He Invited Our Attention To The Conclusion Drawn In The Judgment Dated 12.9.2014, Wherein It Was Held That "an Area Reserved In The Master Plan As A Park Must Be Used As A Park And A Terrace Garden Above An Underground Shopping Complex Is No Substitute For A Park", As Held By The Supreme Court In M.I. Builders (supra). He Submitted, In Any Case, The Construction Of An Underground Facility For Parking Of 650 Vehicles Is Not An Amenity Associated With The Use Of The Park Itself. He Then Submitted That If The Underground Parking Lot Is Built Then The Park Would No Longer Adhere To The Definition Of Park Under Clause (b) Of Section 2 Of The Parks Act, 1975, Which Provides For Minimum 95% Of Area Should Be 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. He Then Submitted That If Underground Car Parking Facility Is Provided Then In That Portion Of The Park, Above The Parking Lot, Trees Cannot Be Planted Apart From The Fact That Number Of Trees Are Likely To Be Cut For Construction Of The Underground Parking Facility. He Submitted, The Park, Which Is Of Historical Importance, Cannot Be Allowed To Be Destroyed By Constructing An Underground Parking Facility, And Thereby Loosing Its Character As A Park. Lastly, He Submitted That No Survey As Directed By This Court Vide Order Dated 12.9.2014 And As Observed By The Supreme Court Made In M.I. Builders (supra).
On The Other Hand, Mr. Shashi Nandan, Learned Senior Counsel For KDA, Apart From Reiterating What Has Been Stated In Their Counter Affidavit, On Instructions, Submitted That For Construction Of Underground Parking Lot, KDA Shall Not Cut A Single Tree. As A Matter Of Fact, He Submitted That The Area Of 1.5 Acres Where KDA Proposed To Construct Underground Parking Lot, As On The Date Of Decision, Did Not Have A Single Tree And Even Today, This Portion Does Not Have A Single Tree. He Further Submitted That, In Any Case, KDA Would Construct The Underground Parking Facility In Such A Way That The Surface (ground Level) Of The Park Would Not Be Disturbed Nor Any Levels Would Be Created And That One Would Even Not Realize That There Is An Underground Parking Lot Beneath The Park. He Also Submitted That KDA Shall Use Modern Technology For Providing Exhaust Facility Without Causing Any Pollution In The Park. In The Course Of Arguments, He Submitted, As A Matter Of Fact, As Of Today, The Portion Where KDA Propose To Construct Underground Parking Lot Is Vacant And Is Not Used For Any Purpose Whatsoever. After Construction Of The Underground Parking Facility, KDA Propose To Develop A Very Attractive Garden/park Over This Portion. In Support Of This Contention, He Also Invited Our Attention To Several Paragraphs, Few Of Which We Have Already Made Reference, Of The Counter Affidavit.
The Principal Question That Falls For Our Consideration Is Whether The Construction Of An Underground Parking In An Area, Which Is Reserved Under The Master Plan As A Park, Would Violate The Provisions Of The Master Plan, More Particularly In The Light Of The Judgment Of This Court Dated 12.9.2014 In PIL No. 42083 Of 2014. At This Stage, It Is Relevant To Notice The Question That Was Raised In The Earlier PIL And The Liberty Given By The Division Bench, While Disposing Of The Said PIL. The Question Was "whether Construction Of An Underground Shopping Complex In An Area Which Is Reserved Under Master Plan As A Park Would Violate The Provisions Of Master Plan" And The Liberty Granted, While Disposing Of The PIL, Was To Conduct A Fresh Survey On The Likely Need For A Car Parking Facility And After A Due And Proper Enquiry And Survey, To Conceive Of A Project Involving The Provision Of A Parking Facility As An Amenity Appurtenant To The Park. Thus, The Challenge In The Earlier PIL Was To The Proposed Construction Of An Underground Car Parking And A Shopping Complex Of 150 Shops In A Portion Of Phoolbagh Park At Kanpur. The Division Bench While Dealing With The Question That Fell For Its Consideration Observed Thus:
"...At This Stage, It Does Not Appear That Any Survey Or Study Was Carried Out Before A Decision Was Taken To Provide An Underground Shopping Complex Of 150 Shops, On The Impact Of A Shopping Complex On The Existing State Of Traffic Congestion In The Area. The Presence Of 150 Shops Is Liable To Attract A Large Number Of Vehicles Of Persons Who Visit The Shopping Complex. Whether This Situation Would At All Alleviate The Problem Of Traffic Congestion Outside Phoolbagh Is A Moot Point. In Our View, It Was Necessary For KDA To Have Carried Out A Thorough Study In Regard To Whether The Construction Of A Shopping Complex, Albeit In The Basement Would Resolve The Basic Issue Of Traffic Congestion."
(emphasis Supplied)

Then The Division Bench After Considering The Judgments Of The Supreme Court In Bangalore Medical Trust, G.N. Khajuria And M.I. Builders (supra) In One Of The Concluding Paragraphs Held Thus:
"The Submission Is That Only An Area Ad-measuring 1.5 Acres Of The Park Would Be Utilized For An Underground Shopping Complex. The Fact That "only" 1.5 Acres Of The Total Area Of The Park Is To Be Utilized For The Construction Of A Shopping Complex Together With An Appurtenant Car Parking Facility Cannot, In Our View, Legalise The Project. Conceivably, A Master Plan May Permit Making Available A Parking Facility For The Purpose Of The Visitors To A Park Or Recreation Space And This Would Be An Amenity Associated With The Use Of The Park Itself. But In No Circumstances, Can A Recreational Area Be Converted Into Shopping Complex, Whether Below Or Above Ground. In M.I. Builders (supra), The Supreme Court Held That A Terrace Garden Above An Underground Shopping Complex Is No Substitute To A Park. An Area Reserved In The Master Plan As A Park Must Be Used As A Park. The Court Cannot Countenance Devious Attempts By Public Bodies To Usurp The Dwindling Green Areas That Remain. Above All, The Project In Question, Allowing As Many As 150 Shops In The Basement, Was Conceived Without A Due And Proper Application Of Mind To The Impact On Congestion And Density Of Population In An Already Over Crowded Area. In This View Of The Matter, We Are Of The View That It Would Not Be Appropriate To Allow The Historical Park Situated In The City Of Kanpur And Associated With Important Events Of The Freedom Struggle, To Be Frittered Away."
(emphasis Supplied)

From Perusal Of The Judgement Dated 12.9.2014 Passed In PIL No. 42083 Of 2014, It Is Clear That The Division Bench Had Granted Liberty To KDA To Conduct A Fresh Survey On The Likely Need For A Car Parking Facility And Then To Conceive Of A Project Involving The Provision Of A Parking Facility As An Amenity Appurtenant To The Park. In View Of The Observations Made In The Judgement Dated 12.9.2014, The Respondents Claim That They Conducted Survey And After Due And Proper Enquiry Conceived Of A Project Involving The Provision Of A Parking Facility Only As An Amenity Appurtenant To The Park. In Other Words, KDA Dropped The Proposal For Construction Of A Shopping Complex Of 150 Shops In The Upper Basement In A Portion Of Phoolbagh At Kanpur. It Was Categorically Submitted On Behalf Of The Respondents That They Would Not Cut A Single Tree For Construction Of The Underground Car Parking And Would Also Not Disturb The Surface (ground Level), And That After Construction Gets Over, They Would Develop And Maintain Better Garden Than What Exists As Of Today, In Particular At The Spot Where They Propose To Construct The Underground Car Parking Lot. It Was Also Submitted That After The Construction Is Over And A Garden Is Developed, One Would Not Even Realize That There Is An Underground Car Parking Lot Beneath The Park/garden.
The Project That Has Been Cleared In The 112th Meeting Of KDA Board Dated 14.10.2014, Envisages Construction Of An Underground Car Parking Facility For 650 Cars And The Portion Above The Car Parking Lot, Shall Be Restored Back To Its Original Position To Be Used As Park/garden. It Is Well Settled That Any Use, Development Or Construction Must Necessarily Abide By The Provisions Of Master Plan And The Zoning Regulations. The Master Plan Which Has Been Prepared Under The Act, 1973 Has Statutory Force. Once The Master Plan Is Notified, It Has Binding Force And Effect.
It Appears That KDA, While Proposing To Construct Underground Car Parking Facility And Shopping Complex, Did Not Carry Out Any Study On The Impact Of The Proposed Shopping Complex On The Preservation Of A Historical Park As A Green Area And Further On The Impact Of A Shopping Complex On The Existing State Of Traffic Congestion In The Area. It Was Noticed That The Presence Of 150 Shops Would Attract A Large Number Of Vehicles Of The Visitors To The Shopping Complex. Whether That Situation Would At All Alleviate The Problem Of Traffic Congestion Outside Phoolbagh Was Not Taken Into Consideration By The Respondents. In This Backdrop, The Division Bench In The Earlier PIL Had Observed That "it Was Necessary For KDA To Have Carried Out A Thorough Study In Regard To Whether The Construction Of A Shopping Complex, Albeit In The Basement, Would Resolve The Basic Issue Of Traffic Congestion." There Was Nothing On Record To Indicate That Any Study Was Carried Out On The Impact Of Proposed Shopping Complex. Having So Observed, The Earlier PIL Was Disposed Of With Liberty To KDA, As Mentioned Above.
It Is True, And In Any Case Cannot Be Disputed That The Public Interest In The Reservation And Preservation Of Open Spaces For Parks And Playgrounds Cannot Be Sacrificed For Any Purpose Whatsoever. Any Such Act Would Be Contrary To The Legislative Intent And Inconsistent With The Statutory Requirements. Furthermore, It Would Be In Direct Conflict With The Constitutional Mandate To Ensure That Any State Action Is Inspired By The Basic Values Of Individual Freedom And Dignity And Addressed To The Attainment Of A Quality Of Life Which Makes The Guaranteed Rights A Reality For All The Citizens, As Observed By The Supreme Court In Bangalore Medical Trust (supra). Absence Of Open Space And Public Park, In Present Day When Urbanisation Is On Increase, Rural Exodus Is On Large Scale And Congested Areas Are Coming Up Rapidly, May Give Rise To Health Hazard. Therefore, In Any Case Open Space And Parks Cannot Be Allowed To Be Destroyed, Either By Constructing Shopping Complex Or Even For Parking For That Matter. What Is Necessary To See, In The Present Case, Is Whether Construction Of Underground Parking Would Either Destroy The Park Or Reduce The Area Of Park More Than 5% Of The Total Area For Providing Ingress And Egress To Underground Parking Lot.
Our Attention Was Specifically Drawn To The Observations Made By The Supreme Court In M.I. Builders (supra) To Contend That Phoolbagh Is Of Historical Importance And Construction Of Underground Parking Would Create Grave To The Environment Ecology Of The Park, The Surrounding Area And The City, Adversely Affecting The Health Of The Citizens. It Was Submitted That After The Underground Parking Is Allowed To Be Constructed, Trees Cannot Be Planted And The Development Of Park Above The Underground Parking Lot Would Be More Like A Terrace Park And In Any Case, It Cannot Be Termed As A Park. It Would Be Relevant To Notice The Observations Made By The Supreme Court In M.I. Builders (supra) Wherein The Decision Taken By The Lucknow Nagar Mahapalika, Permitting A Builder To Construct An Underground Shopping Complex In The Jhandewala Park Situated In Aminabad Market Lucknow Was Under Challenge. The Supreme Court Was Dealing With The Judgment Of A Learned Single Judge, Who Held The Decision To Be Unlawful And A Mandamus Was Issued To The Lucknow Nagar Mahapalika To Restore Back The Park To Its Original Position. The Relevant Observations In Paragraph 51 Read Thus:
"51. Jhandewala Park, The Park In Question, Has Been In Existence For A Great Number Of Years. It Is Situated In The Heart Of Aminabad, A Bustling Commercial-cum-residential Locality In The City Of Lucknow. The Park Is Of Historical Importance. Because Of The Construction Of Underground Shopping Complex And Parking It May Still Have The Appearance Of A Park With Grass Grown And Path Laid But It Has Lost The Ingredients Of A Park Inasmuch As No Plantation Now Can Be Grown. Trees Cannot Be Planted And Rather While Making Underground Construction Many Trees Have Been Cut. Now It Is More Like A Terrace Park. Qualitatively It May Still Be A Park But It Is Certainly A Park Of Different Nature. By Construction Of Underground Shopping Complex Irreversible Changes Have Been Made. It Was Submitted That The Park Was Acquired By The State Government In The Year 1913 And Was Given To The Mahapalika For Its Management. This Has Not Been Controverted. Under Section 114 Of The Act It Is The Obligatory Duty Of The Mahapalika To Maintain Public Places, Parks And Plant Trees. By Allowing Underground Construction Mahapalika Has Deprived Itself Of Its Obligatory Duties To Maintain The Park Which Cannot Be Permitted. But Then One Of The Obligatory Functions Of The Mahapalika Under Section 114 Is Also To Construct And Maintain Parking Lots. To That Extent Some Area Of The Park Could Be Used For The Purpose Of Constructing Underground Parking Lot. But That Can Only Be Done After Proper Study Has Been Made Of The Locality, Including Density Of The Population Living In The Area, The Floating Population And Other Certain Relevant Considerations. This Study Was Never Done. Mahapalika Is The Trustee For The Proper Management Of The Park. When True Nature Of The Park, As It Existed, Is Destroyed It Would Be Violative Of The Doctrine Of Public Trust As Expounded By This Court In Span Resort Case (1997 (1) SCC 388). Public Trust Doctrine Is Part Of Indian Law. In That Case The Respondent Who Had Constructed A Motel Located At The Bank Of River Beas Interfered With The Natural Flow Of The River. This Court Said That The Issue Presented In That Case Illustrated "the Classic Struggle Between Those Members Of The Public Who Would Preserve Our Rivers, Forests, Parks And Open Lands In Their Pristine Purity And Those Charged With Administrative Responsibilities Who, Under The Pressures Of The Changing Needs Of An Increasingly Complex Society, Find It Necessary To Encroach To Some Extent Upon Open Lands Heretofore Considered Inviolate To Change"
(emphasis Supplied)

From Perusal Of The Above Observations Made By The Supreme Court, It Is Clear That One Of The Obligatory Functions Of The Nagar Mahapalika Under Section 114 Of The Uttar Pradesh Municipal Corporation Adhiniyam, 1959 (in Short Adhiniyam Of 1959) Is To Construct And Maintain Parking Lot. Having Regard Thereto, The Supreme Court Observed That Some Area Of The Park Could Be Used For The Purpose Of Constructing Underground Parking Lot. But That Can Only Be Done After Proper Study Has Been Made Of The Locality, Including Density Of The Population Living In The Area, The Floating Population And Other Certain Relevant Considerations.
In That Case, The Supreme Court Was Considering The Challenge To The Construction Of An Underground Shopping Complex And In View Thereof, It Was Also Held That The Master Plan Could Not Have Envisaged Jhandewala Park Being Used As A Site For Commercial Purposes, Considering The Density And Congestion In The Area.
It Is Not In Dispute That Kanpur Is One Of The Most Populated Cities Not Only In India But In The World. It Faces Traffic Congestion Problem Day In And Day Out. It Is Also Not In Dispute That The Area Around Phoolbagh Park Is Marked By Heavy Traffic Congestion Since A Crowded Market Place Is Situated In Close Proximity Of The Park. Traffic Congestion Causes Inconvenience Not Only To The Residents Of Area And The Persons Visiting Markets Situated In Close Proximity Of The Park, But Also To The Visitors To The Park. It Is Also Not In Dispute That The Visitors To The Park And Even To The Market Place Situated In Close Proximity Of The Park Do Not Have Parking Facility And They Find It Extremely Difficult To Park Their Vehicles, And Situation There Force Them To Park Their Vehicles On Crowded Road And Lanes, Which Further Causes Traffic Congestion And Also Air Pollution. It Was Contended On Behalf Of The Petitioners That Though The Area Of Phoolbagh Was Originally 40 Acres, What Remains As Of Today As Park, Is An Area Of About 18 Acres. Out Of This Area Of Park, KDA Proposes To Use 1.5 Acres For An Underground Parking Facility. After The Judgment Of This Court In The Earlier PIL, We Are Informed, KDA Decided Not To Reduce The Area Of Park At All And Provide An Underground Car Parking Facility Without Disturbing The Surface (ground Level) Of The Park And To Provide A Modern Exhaust Facility Without Creating Any Pollution In The Park.
In Our Opinion, Parking Lot, Irrespective Of The Fact Whether, It Is At Ground Level Or Underground, For A Park, As Per The Master Plan, Would Be An Amenity Associated With The Use Of The Park Itself As Observed By The Supreme Court In M.I. Builders (supra), After Making Reference To Section 114 Of The Adhiniyam Of 1959. Construction Of Underground Parking To Some Extent Is Permissible In Law. What Is Required Is Only That Such Decision Has To Be Taken After Proper Study Of The Locality, Including The Density Of The Population Living In The Area, The Floating Population And Other Certain Relevant Considerations, Such As Traffic Congestion. Dropping Of The Original Proposal For Construction Of An Underground Shopping Complex Is An Outcome Of The Study/survey Conducted By KDA For Car Parking Facility In The Area As An Amenity Appurtenant To The Park. We Have, With The Assistance Of Learned Senior Counsel For KDA, Gone Through The Survey Report Dated 24.9.2015. The Report Is Exhaustive. Lot Of Photographs Are Also Placed On Record, Which Show The Physical Condition Of The Area Around The Park. The Report And The Photographs Placed On Record Are Sufficient To Convince That The Parking Facility Is Necessary And It Could Be Only Underground. The Supreme Court In M.I. Builders (supra) Has Undoubtedly Observed That A Terrace Garden Above An Underground Shopping Complex Is No Substitute To A Park But That Was In The Light Of The Nature Of Project Under Consideration, Namely Underground Shopping Complex. In The Very Same Judgment, As Noticed Earlier, The Supreme Court Also Observed That Some Area Of The Park Could Be Used For The Purposes Of Constructing Underground Parking Lot Having Regard To Surrounding Areas Where The People Suffer Every Day Due To Traffic Congestion. The Only Alternative Left To KDA Is To Provide Underground Parking Lot Without Causing Any Disturbance To The Park On The Surface.
In Our Opinion, The Observations Made By This Court In The Order Dated 29.7.2015 Were Prima Facie Observations And They Cannot Be Taken As Final Opinion On The Questions Raised In The Writ Petition. Section 13 Of The Act, 1973 Also Would Not Come In Our Way To Take The View, That We Are Taking In The Instant PIL. From Sub-section (1) Of Section 13, It Is Manifest That The Authority May Make Only Those Amendments Which Do Not Affect Important Alteration In The Character Of The Plan. It Means The Respondents Do Not Have An Absolute Right Of Amending The Master Plan Or The Zonal Development Plan. The Basic Characteristic Of Such A Plan Cannot Be Altered By The Authority. Only That Amendment Is Permissible Under Section 13(1) Which Does Not Affect The Basic Character Of The Plan. Open Space Lying For Park In The Plan Forms A Basic Feature Of The Plan And That Cannot Be Amended. A Plan Cannot Be Amended So As To Denude The Plan Of Such A Basic Feature. Section 13 (1) Can In No Circumstances Be Interpreted So As To Clothe KDA To Utilise The Open Space Reserved For A Park Either To Construct Buildings Or Use It In Any Other Manner, Which Is Foreign To The Concept Of A Park. (See D.D. Vyas And Others Vs. Ghaziabad Development Authority, Ghaziabad, 1992 Legal Eagle (ALD) 131). In The Present Case, The Basic Characteristic Of Master Plan Has Not Been Altered And, Therefore, The Question Of Even Amendment Of The Master Plan Also Did Not Arise.
Project Of Underground Parking, The Manner In Which KDA Proposes To Develop, As Observed Earlier, In Our Opinion, Would Not Alter The Master Plan Or The Zonal Development Plan. On The Contrary, The Provision Of A Parking Facility That KDA Proposes To Provide By Constructing Underground Parking Lot, Is An Amenity Appurtenant To The Park. It Is The Obligatory Duty Of Mahapalika To Maintain Public Places, Parks And Plant Trees. It Is Also One Of The Obligatory Functions Of The Mahapalika Under This Provision, To Construct And Maintain Parking Lot And To That Extent Some Area Of Park Could Be Used For The Purpose Of Constructing Underground Parking Lot. In Our Opinion, The Characteristic Of Park, As Defined By Clause (b) Of Section 2 Of The Parks Act, Would Not Be Changed Or Defaced, By Construction Of The Underground Parking Facility In Phoolbagh.
In The Result, The Petition Is Dismissed With No Order As To Costs.
Before Parting, In The Larger Interest Of The People In Kanpur, We Issue The Following Directions To KDA:
(i) KDA For Construction Of The Underground Parking Facility, As Proposed, Shall Not Cut A Single Tree;
(ii) KDA After Construction Of The Underground Parking Facility Shall Develop The Park And To Have Appearance Of A Park, Provide Lawn, Flower Beds, Walking Track/jogging Track, Etc. In Short, Under Any Circumstances, KDA Should See To It That After Construction Of The Underground Car Parking Facility, The Park Above The Parking Lot, Shall Not Loose Its Character As A Park;
(iii) KDA Shall Provide Exhaust Facilities, For The Underground Parking Facility, In Such A Way That It Shall Not, In Any Case, Cause Any Air Pollution In The Park;
(iv) KDA Shall Reserve Minimum Half Of The Parking Space In The Underground Parking Lot For The Vehicles Of Visitors To The Park; And
(v) KDA Even In Future Shall Not Use Any Portion Of The Park For Any Purpose Other Than For A Park As Defined Under Section 2 (b) Of The Parks Act.

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