JUDGMENT
S. Ravindra Bhat, J.
Page 3292
1. Issue notice. Mr. Bagai, Advocate accepts notice on behalf of Respondents No. 2 and 3. Mr. Umesh Suri, Advocate accepts notice on behalf of Respondent No. 5. The affidavits are hereby taken on record.
2. The Petitioner, claiming to be a Registered Welfare Association of Dilshad Garden A Block Residents, has sought directions to the Respondents, particularly the Respondent MCD not to permit holding of social, religious functions, namely Sri Durga Puja w.e.f. 28.9.2005 to 2.10.2006 and Sri Kali Puja on 21.10.2006, in the designated ornamental park. Consequential directions are also sought for not handing over possession of the A Block Central Park Community Hall Centre of Dilshad Garden, to the fifth respondent.
3. Learned Counsel for the Petitioner has relied upon the averments and materials on record to say that the park in question namely the Central Park in A block was declared as an “Ornamental Park” (hereafter “the park”) on 7.7.2005 by the MCD. He further states that on 10.8.2005 the Horticulture Department communicated the order of the Commissioner that Page 3293 the park ought not be allotted to any one for social or religious functions, or marriages. It is claimed that the Petitioners represented on various dates sometime in October, 2005 that no functions be permitted in the park. In this background, it is further claimed that on 21.8.2006 the Petitioners had written to the Commissioner requesting information as to whether the fifth Respondent had sought for any permission for holding religious functions or Sri Durga Puja in the park.
4. The Petitioners have relied upon an invitation card said to have been made available to them on 12.9.2006 showing that the park was to be used for the purpose of holding Sri Durga Puja and related activities between 28.9.2006 to 2.10.2006. Counsel submits that a look at the card would show that the fifth Respondent was aware as to the tenuous nature of the allotment as it clearly indicated an alternate venue namely the B Block park.
5. Learned Counsel submitted that the entire object of declaring an area or a park within the control of municipal or public authorities as an “Ornamental park” is to ensure its preservation as a lung space for improvement of the quality of life of the local residents. It is claimed that if such Ornamental parks, developed and maintained on public expense are allotted for the purpose of social, religious or cultural activities, the entire object would be defeated and its character as a park would be endangered; the park itself would cease to be so. A large number of visitors or devotees would throng the venue in thousands, leading to trampling on the grass, and near certain destruction – even if unintentional – of saplings and plants which are carefully nurtured.
6. Learned Counsel further submitted that an advance copy of this petition was furnished to MCD on 18.9.2006 and as on that date the park had not been permitted to be used by the fifth Respondent. He further submitted that the subsequent action of the MCD in granting express permission on 18/19.9.2006 is clearly untenable.
7. Learned Counsel for the fifth Respondent submitted that though the park has been declared as an “Ornamental Park” he has instructions to give an appropriate undertaking that no part of the park would be changed and that every effort would be made to preserve the existing status quo. He states that till last year (when the park was declared as an Ornamental Park) for the last 20 years the local residents of the community which the fifth Respondent is representing used it for the purpose of Sri Durga Puja and Sri Kali Puja. It is submitted that at the eleventh hour if the fifth Respondent is asked not to hold functions in the park the sentiments of a large body of the Bengali residents would be hurt. It was further submitted that artists are expected from Kolkata and that the other venue would not be suitable.
8. Learned Counsel for the MCD submitted, placing reliance on the affidavit filed, that the allotment was initially made in respect of the other venue namely the `B’ Block Park which is not an Ornamental park, in keeping with the policy (of the MCD) that an Ornamental park could not be used for any other purpose and under no circumstances it would be used for social and religious events or for marriages etc. It was submitted that after the allotment Page 3294 had been made on 31.8.2006, the representatives of the fifth Respondent had met the Commissioner and entreated him to change the allotment to the park. The Commissioner was apparently convinced and asked the concerned authority to take suitable action which ultimately led to the allotment of the Ornamental park in Block A, on 18/19.9.2006. While permitting use of the park, it was however, made clear that it would be subject to legal objections.
9. The dispute in this case is narrow. The facts are almost un-controverter. The park was declared as an Ornamental park in 2005; as per the express orders of the Commissioner and the policies of the MCD it cannot be used for any function, be it social, religious or cultural or for marriages etc. It would be therefore apparent that the nature of the area changed, the moment MCD decided to develop the park as an “Ornamental park”.
10. Disputes regarding availability of community areas for religious and social functions are not easy to resolve ordinarily. On the one hand is the value which the society and public at large place on having at least some areas as lung spaces/green areas in a crowded city like Delhi with ever increasing environmental concerns. On the other hand one cannot lose sight of the fact that the community is definitely starved of public places where cultural and religious functions (which are also essential for society) have to be held. When such competing interests arise, the issues are easy not for resolution. If not addressed, such issues simmer and lead to open conflict.
11. In a case like the present, the Court however has to arrive at a decision which best subserves the social order, based on settled principles of law. In the order of the Supreme Court in M.C.Mehta v. Union of India (dated 10.12.96 in WPC 4677/1985) the Supreme Court had recorded the existence of a large number of parks in Delhi and directed that progressively the municipal authorities would ensure that their utilization for purposes other than as parks should be diminished. Indeed the court had indicated that by the end of 1997 use of existing parks for marriages, etc. would be reduced to 50%. What we have here is not use of an existing park but one which has now been declared as an Ornamental park. Apparently the concept of an Ornamental park is to earmark the open space as worthy of greater development, by planting trees, so as to assure the residents of permanent green areas which everyone craves for. The present case therefore narrows to the use of such Ornamental parks.
12. The respondent No. 5 asserts (and perhaps it cannot be faulted on this score) that the local Bengali community has been using the area for last 20 years for religious purposes; therefore, there can be such expectation of such use. However, I am of the opinion that there are a few crucial facts, which stand out (apart from the fact that the the area had been declared as an Ornamental park) is that residents of the area – the members of the fifth Respondent being no exception – were aware that the character of the park had stood changed in 2005. Nevertheless, they sought for its allotment in August, 2005. They were made aware by the MCD that allotment of the park could not be granted. Indeed, on 31.8.2006 the MCD allotted another park which according to its policies could be used for such functions. The fifth Respondent evidently was content with this, for more than two weeks. Page 3295 It is only on 18th/19th September, 2006 that they again approached the Respondent-MCD requesting that the decision taken should be recalled or reviewed. The MCD for no discernable reason or rationale accepted this request.
13. There is nothing on record to show why at the late stage after the publication of the invitation card (which has been produced as an annexure in the writ petition, and which clearly indicates the alternate venue as the park in block B) the MCD could be persuaded to act contrary to its policy. Although sentiments of a body of citizens could be involved, the fact that at a late stage, after having received advance notice of the petition, the MCD nevertheless went ahead and granted permission to use the park is surprising to say the least. It is trite law that every public authority is bound to conduct its affairs according to the policies which it evolves for itself and for determination of the rights of the citizens and others who approach it.
14. No record or reasons are forthcoming as to what impelled the MCD to do a volte face, after initially stating that the park could not be allotted. No provision either by way of an exception or a residual power, has been indicated, as to how, and under what conditions, ornamental parks can be used for other purposes.
15. The Supreme Court, in the decision reported as Virender Gaur v. State of Haryana ; Dr. G.N. Khajaria v. DDA 1995 (5) SCC 762 and M.I. Builders v. Radhey Shyam Sahay had underscored the public interest in reserving, designating, and ensuring protection of open spaces as parks for improving the environment. In this case, the public interest in retaining and preserving the character of the ornamental park for outweighs the interests of the community which insists upon its use for socio-religious purposes, particularly when there is no dispute that another site in the vicinity is, and can be made available. If the fifth respondents request were to be accepted, the number of persons visiting the site every day would well result in destruction of the park, on which public resources have been deployed for the last year or so.
16. In view of the above reasons, I am of the opinion that the petition is entitled to succeed. However, the MCD shall ensure the alternate venue initially allotted to fifth Respondent is handed over forthwith today itself so that it can take up its activities. Learned Counsel for the fifth Respondent states that the second plot at block B may be handed over at 5.00 P.M. today. Counsel for the MCD agrees to this course of action. Directed accordingly.
17. The writ petition is disposed off in the above terms. No costs.