Balbir Singh & Ors. v. Municipal Corporation, Faridabad

Mr. A.S. Chadha, Advocate for respondent No.6. CORAM:HON'BLE MR. JUSTICE K. KANNAN

1. Whether Reporters of local papers may be allowed to see the judgment ? Yes

2. To be referred to the Reporters or not ? Yes 3. Whether the judgment should be reported in the Digest? Yes K. KANNAN J.(ORAL) -.-

1. The writ petition challenges the action of the Municipal Corporation, Faridabad for its purported alteration of lay out/demarcation plan to the detriment of the petitioners. The petitioners' contention is that the 5th respondent, who was a colonizer for a large lay out of residential plots, in contravention of reservation of the property as a park, is now attempting to put up C.W.P. No.2560 of 2008 -2- construction of a school, which is impermissible. The property has become vested with the Municipal Corporation for a public use to be left as a park but the authorities in active connivance with the 5th respondent are trying to allow for establishment of a school through the 6th respondent-society.

2. In support of the contention of the petitioners that the property had been reserved as an open space and park, learned Senior Counsel, Sh. Jain refers to the sale deeds, which have been executed by the 5th respondent to the petitioners and to yet another party referring to the present disputed property as lawn. The learned counsel also refers to the lay out plan and the demarcation plan which show this property as lawn. It is also contended that the Municipal Corporation itself had used the property only as a park and they had raised a compound wall and trees have also been planted with large fanfare. Referring to the office order issued by the Chief Administrator, Fraidabad Complex Administration on 09.02.1984, the contention of the petitioners is that the ownership of the roads, open spaces, parks and other areas earmarked for public amenities were to vest with the Faridabad Complex Administration, Faridabad. The petitioners have obtained to themselves right of air and light and any construction put up at the property will infringe their easementry right. The developers who had shown the property as a lawn cannot derogate from such grant and it will constitute an estoppel against them.

3. Learned Senior Counsel, Sh. Chopra appearing for respondent No.5 would urge that the petitioner was merely making C.W.P. No.2560 of 2008 -3- a wrong reading of the plan, for even at the time when the lay out plan had been submitted and approved by the Government, the disputed property was shown alongside a lawn and reserved for "PS", which according to him means Primary School. He also refers to the same plan elsewhere, still further west of the location of the disputed property, a place reserved for "HSS", which term was to mean Higher Secondary School. The demarcation plan demarcates several areas as lawn and while the lay out plan correctly describes the actual mode of user that is intended, the demarcation plan merely traces out the outer boundaries. The places shown as vacant that include the places shown as locations for primary school and the higher secondary school, are significantly absent in the demarcation plan, for they are merely intended to demarcate areas that would show the location of private houses and properties which shall be used for any other form of public use. Even the agreement, which the colonizer had entered into with the Director, Town Planning as early as on 26.07.1967 specifies that the colonizer was responsible for the upkeep of public health services for a period of five years and that the colonizer shall transfer all roads, public spaces and public parks free of cost to the Government. The said agreement also enjoins that the colonizer should construct, at its own cost, schools, hospitals, community centres and other community buildings on the land set apart for the specified purposes.

4. It must be noticed that there has been no transfer of the disputed property in favour of the Corporation. Even vesting of a C.W.P. No.2560 of 2008 -4- right in the Corporation could take place only through an instrument or an act of statute and cannot be done through an office order. It will be wrong to read into the office order the effect of acquisition of property of a private individual or a colonizer. At best, what could be urged is that the character of property which is reserved in a particular fashion for use for a public purpose cannot be altered. In my view, the reference to the disputed property as lawn merely describes the nature of property at the time when the colony was established and when the properties were sold. It will be unrealistic to describe in the boundaries to a sale deed a contemplated user of the property as a school unless the school had already been established. The mode of reservation of the property is available through the lay out plan which significantly refers to the property as lawn as well as primary school. I have already referred to the terms of the agreement between the colonizer and the Corporation that requires the colonizer to establish schools, hospitals etc. The fact that a compound wall had been built or tree saplings had been planted by the Municipality cannot mean that they are any acts in derogation of the user of the property as a school. Unless the petitioners show that the property was to be used as a park and it was always required to be reserved as an open space, the petitioner can have no relief in the manner sought for in the writ petition.

5. The claim of the petitioner for right of easement or a plea of estoppel are equally without basis. The estoppel is founded on a public policy that a person, who makes a statement on the C.W.P. No.2560 of 2008 -5- basis of which another person alters his position and suffers a deteriment, shall be bound by the statement. The detriment complained of is his loss of convenience by withdrawal of a gratuituous promise. The requirements for proof of estoppel are absent in this case. Again, a right of open space is not always to be understood as will be made available for the same quantum. The rights of easement relating light and air shall be understood to accommodate normal intrusions in public life through urbanisation. The eerie silence of a village and what a villager can hope to obtain through clean air though may be a desired goal for all places including urban area and cities, it cannot still support an all time interdict against development in an urban area. Redefining development and urbanization without compromising on environmental degradation have been the greatest modern day challenges. Between a school and open space, what is better? Or do we have open spaces in schools, with children sheltered under trees and not tought in concrete buildings? A happy knit of trees and buildings in the same place shall alone by the answer. The lay out plan contemplates the establishment of a primary school and the agreement which the colonizer has made with the Government shows that the colonizer was required to develop schools and hospitals in places reserved as public property.

6. The petitioners, therefore, are not entitled to the relief of a restraint against the public authorities from permitting the respondent Nos.5 and 6 to establish a school. It is only hoped that the childeren that will be taught in this school will imbibe the spirit C.W.P. No.2560 of 2008 -6- of a green environment and will continue to have a lawn and trees in their campus. The writ petition is dismissed but there shall be, however, no direction as to costs. March 25, 2010 Pankaj* (K. KANNAN) JUDGE