Amba Lal Nayak vs State of Rajasthan and Others

Arun Bhansali, J.—The petitioner, asserting himself to be interested in any activity affecting the tourism in particular and people of Udaipur in general, has filed the present writ petition styling the same as a Public Interest Litigation alleging that four parks viz. Sajjan Niwas Bagh (Gulab Bag), Nehru Garden in Fatehsagar Lake, Sukharia Memorial Park and Mohta Park situated at Udaipur are being transferred to the Municipal Council, Udaipur; then considering the other engagement of the said Municipal Council and the fact that they lack the essential and necessary expertise of gardening, the conditions of all the four parks will further deteriorate and has, therefore, sought the intervention of this Court against the decision dt. 26.02.2013 (Annexure-16) in this regard and has prayed that the said decision dt. 26.02.2013 be quashed and set aside and further directions be issued for the purpose of maintenance and protection of the parks in question. It has been alleged that one of the parks in question, which presently belong to the Public Works Department, Government of Rajasthan were handed over to the Municipal Council, Udaipur for maintenance by order dt. 22.01.2007 for a period of five years vide Annexure-6, which resulted in the alleged deteriorated condition of the park and is allegedly being misused against the provisions of the Public Parks Act, 1956 (''the Act'').

The petitioner has prayed in the petition that:--

It is, therefore, respectfully prayed that this writ petition may kindly be allowed and by an appropriate writ, order or direction the impugn decision dt. 26.02.2013 Annexure-17 so far as it is applicable to the Sajjan Niwas Bagh, Nehru Park, Mohta Park and Mohanlal Sukharia Memorial Park may kindly be declared illegal and be accordingly quashed and set aside. The direction may further be issued to the respondent No. 1 and 2 to:--

To ensure that Gulab Bagh is restored to its original shape and form by removing all the improper constructions raised as per the Major Plan Annexure-2 by ensuring the proper plantation of trees etc. by bounding the park with proper wall and adequate security arrangement.

To ensure that no portion of the Gulab Bagh is unauthorizedly transferred to any person. Institution, society etc in violation of Act of 1956 and Rules of 1959 and to resume the portions already handed over for the purpose of maintenance. Respondents may further be directed to maintain the very Gulab Bagh in its shape as it is available today.

To ensure that Nehru Park, Mohta Park and Mohanlal Sukharia Memorial Park is maintained and protected properly and by any means the shape of park is changed by alienating or using the park properly for foreign purpose.

Any other relief to which petition deserves may kindly also be passed in favour of the petitioner.

The learned counsel appearing for the petitioner attempted to argue that the decision to transfer the parks vide Annexure-15 was contrary to Section 4 of the Act, inasmuch as, such transfer to local authority can take place only by Notification in the official Gazette and reiterated that the experience of last five years, whereby, one of the park is being maintained by Municipal Council, Udaipur is that the same is to the detriment of the said parks and, therefore, the decision deserves to be quashed and set aside and a direction deserves to be issued to the respondents to return the parks to their old glory.

We find the submissions as made, the pleadings as taken in the petition and documents as filed falling short of making out a case of Public Interest Litigation.

Admittedly, the park is being maintained by the Municipal Council, Udaipur for last more than five years and the petitioner has not questioned the same for all these years. Further, a bare look at the decision Annexure-15, which is a proceedings of the meeting dt. 02.07.2012 attended by the Principal Secretaries, Urban Development Department & Horticulture Department and Secretary to L.S.G.D. and Public Works Department etc., in which, apparently a policy decision was taken that 12 parks named therein alongwith their ownership rights be permanently transferred from the Public Works Department to Urban Development Department. The relevant portion of the said minutes reads thus:--

It would be noticed that by the said decision it has been specifically indicated that the employees of Public Works Department working presently at the parks would continue to perform their duties and their pay and emoluments would be born by Public Works Department only, which clearly indicates that presently though the ownership of parks is being transferred to the Urban Development Department, the personnel presently working at the said parks, who belong to Public Work Department would continue to perform their duties at the said parks and, therefore, the apprehension about lack of expertise with the Municipal Council is wholly unfounded.

In pursuance of the policy decision aforesaid, the order dt. 26.02.2013 was issued by the Senior Superintendent of Parks, Public Works Department, Udaipur to the Municipal Council, Udaipur merely indicating that the parks were already in possession of the Municipal Council, Udaipur and the same is being maintained by it and, therefore, it should now continue to do so.

Provisions of Section 4 of the Act reads thus:--

Control of parks and functions and duties of Superintendent.--(1) Subject to the control of the State Government, the Superintendent of each park shall be the authority to control, manage and maintain such park, and for that purpose may with the previous sanction of the Government:--

(a) construct such roads, bridges, buildings and fences and carry out such other works as he may consider necessary for the purpose of such park;

(b) make necessary arrangements for the preservation of scientific objects in such park;

(c) take such steps as will ensure the security of animals in such park;

(d) permit the erection of buildings for the accommodation of visitors or of shops or other undertakings.

(2) The State Government may, by notification in the [official Gazette] direct that the control, management and maintenance of any part shall vest in a local authority within the jurisdiction of which such park may be situated; and in every such case the duties of a Superintendent under this Act shall in respect of such park, be exercised by such local authority and the proceeds, if any, from such park shall also vest therein.

The said Section contemplates publication of notification in a case where the ownership rights are sought to be transferred to a local authority, however, in the present case, it is a mere transfer from one department of the Government i.e. Public Works Department to another department i.e. Urban Development Department. When the parks in terms of Annexure-15 have been transferred to the Urban Development Department, it cannot be said that such a transfer has been made to the local authority and, consequently, there is no question of any violation of provisions of Section 4 of the Act. The generalized grievances of alleged irregularities and non-maintenance of the parks without any specific particulars cannot be taken up for adjudication or inquiry. Questioning a policy decision which is at the preliminary stage of implementation based on mere apprehensions cannot be a ground to entertain a petition of this nature. Therefore, the cause sought to be espoused by the petitioner on the grounds raised in the writ petition being bereft of any substance, we are unable to find a specific case for entertaining this matter as a Public Interest Litigation.

Consequently, the writ petition stands rejected. No costs.