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Judgment
This Application seeks review of order of this Tribunal dated 19.07.2022 passed in O.A No. 232 of 2022. By the said order, the Tribunal considered the grievance against construction of a mobile tower in Sadbhawna Park, Opposite Gulmohar Enclave Gate No. 4, Gautam Nagar, Ward No. 62/S, New Delhi. The Tribunal sought a factual report from a joint Committee comprising of Delhi Pollution Control Committee (DPCC) and District Magistrate, South Delhi and considering the report filed by the DPCC that the matter was referred to SDMC for further action, the Tribunal required the Commissioner, Municipal Corporation and DPCC to file to file action taken report. Report filed by the MCD is that the review applicant has been directed not to use the park for mobile tower.
The review applicant has submitted that the issue of radiation is not in the jurisdiction of this Tribunal. As per policy of the SDMC, mobile towers can be set up on public lands owned by the SDMC, including parks.
Though as per Rules, review applicant is to be considered by circulation unless directed otherwise, the mater was directed to be listed in open court with intimation to the counsel. Yesterday i.e. on 19.09.2022, the matter was argued on behalf of the review applicant by Ms. Kanika Agnihotri, Advocate. After arguments, on counsel’s oral request, hearing was directed to continue today. However, instead of Ms Agnihotri continuing, Shri Gopal Jain, Senior Advocate wanted to argue afresh which is not permissible. Once the matter has been substantially heard, another counsel cannot be allowed to enter appearance to argue the matter afresh.
We are unable to accept the contention that this Tribunal has no jurisdiction to consider issue of park being allowed to be used for a commercial purpose in violation of law laid down inter alia in M.C. Mehta v. Union of India, (2009) 17 SCC 683 and orders of Delhi High Court dated 03.08.2018 in W.P.(C) 7266/2017 in Rishu Kant Sharma Vs. Union of India And Ors and order dated 02.09.2009 in W.P.(C) 501/2006 Patanjali Shiksha Sansthan Delhi (Regd.) Vs. Lt. Governor and ors. It cannot be said that no environmental issue is involved. Reference may be made only to Aam Admi Manch (2021) 11 SCC 566, Mantri Techzone, (2019) 18 SCC 494 to the effect that this Tribunal can be pass preventive and remedial orders for protection of environment.
As regards permissibility of installing mobile towers in parks, it has been categorically held that doing so is non conforming use. The parks can be used only for recreational purpose as per master plan. Relevant extracts from the order of the Hon’ble Supreme Court in M.C. Mehta v. Union of India (supra) is as follows:-
“4. The second point raised by Mr Mehta is that a large number of parks in the city are being used for construction of marriage pandals and for hosting other functions, etc. According to Mr Mehta, the frequent use of parks for such purposes, is bound to degrade the environment and the utility of the parks as a recreation for the public.
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We agree with Mr Mehta that the recreational and other aesthetic uses of the parks cannot be curtailed. Mr Mehta is also correct that the permitted use of the parks being recreation under the master plan, it cannot be permitted for any other use …. .. …”
Relevant extract from the order of the Delhi High Court in Rishu Kant Sharma (Supra) is as follows:-
“…recreational and aesthetic uses of district parks ought not to be curtailed, by permitting them to be used for social, cultural, commercial or other functions etc., for the reason that the same has the effect of degrading the environment and undermining the utility of such parks as a source of recreation for the general public; the DDA is restrained from permitting activities such as social, cultural, commercial, marriage or other functions etc. in the subject district park, till further orders.”
Further, in Patanjali Shiksha Sansthan Delhi (Regd.) (supra), it was held:-
“Delhi Development Authority has filed an affidavit in which it has stated that it has presently about 3000 parks under its jurisdiction and out of the said parks, DDA is using only 24 parks for marriage and social functions. In the said affidavit, it has been further stated that as on date, DDA has constructed 60 community halls and it is in the process of constructing another 41 additional community halls out of which 17 are under construction and 24 are under different stages of planning. Keeping in view the aforesaid facts, we direct that beyond 31st December, 2014 the said 24 parks under DDA’s jurisdiction shall not be used for social, cultural and marriage functions.”
In Bangalore Medical Trust v. B.S. Muddappa, (1991) 4 SCC 54, it was observed:
“Public park as a place reserved for beauty and recreation was developed in 19th and 20th century and is associated with growth of the concept of equality and recognition of importance of common man. Earlier it was a prerogative of the aristocracy and the affluent either as a result of royal grant or as a place reserved for private pleasure. Free and healthy air in beautiful surroundings was privilege of few. But now it is a, ‘gift from people to themselves’. Its importance has multiplied with emphasis on environment and pollution. In modern planning and development it occupies an important place in social ecology. …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”
Again, in Lal Bahadur vs. UP, (2018) 15 SCC 407, same view was taken referring to public trust doctrine and precautionery principles of environment law.
In view of above, we do not find any merit in the review application which is dismissed.
M.A. No. 64/2022 & M.A. No. 65/2022 have been filed by the Vasant Vihar Welfare Association after disposal of the present matter in respect of mobile tower at a different location which is not the subject matter of the present matter. The same being not maintainable is dismissed as withdrawn on prayer of learned Counsel for the applicant in the said MAs.