- (1.) Hari Ram Sharma and four other owners of the houses situate near the disputed park filed a suit for permanent injunction to restrain the Faridabad Complex Administration, and Employees State Insurance Corporation (for short 'ESI'), from raising construction in the park, which according to the plan published by the Faridabad Complex Administration in pursuance of Section 29(3) of the Faridabad Complex (Regulation and Development) Act, 1971 (for short 'the Act'), was to remain an open park. A prayer for mandatory injunction was also made for demolition of the construction raised in the park. In view of the interim order passed, the ESI did not raise the construction of ESI Hospital in the park and some boundary wall was raised before the interim order was passed. The suit was opposed by the defendants. The trial Court decreed the suit but on appeal by the ESI, the suit was dismissed. This is second appeal by the plaintiffs.
(2.) After hearing the learned counsel for the parties and on perusal of the record, I am of the view that this appeal deserves to succeed. Plan at page 27 of the record shows that the houses of the plaintiffs surround the park. The park is 3.25 acres in area, whereas the ESI Hospital was proposed to be set up on one side in about one acre area. The case of the plaintiffs is that they had purchased the plots surrounding the park in view of the existence of the park in the Master Plan published by the Faridabad Complex Administration under the Act, and the open park had to be used as such and could not be converted to any other use and, therefore, the hospital could not be constructed. Before this argument is considered, it would be useful to notice whether the existence of park has any statutory basis or not. In this behalf, reference has been invited to Section 29(3)(b) and (d) of the Act. For facility of reference Section 29(3) deserves to be reproduced :- "29. Declaration of controlled area. - (1) Notwithstanding any law for time being in force, the Chief Administrator may, with the previous approval of the State Government by notification declare the whole or any part of the area within the Faridabad Complex including an area within a distance of 8 kilometers on the outer sides of the boundaries of Faridabad Complex as a controlled area. (3) Without prejudice to the generality of the powers specified in sub-section (2) above, the plans may provide for any one or more of the following matters; namely :- (a) the division of any site into plots for the erection or re-erection of any building and the manner in which such plots may be transferred to intending purchasers or lessors; (b) the allotment or reservation of land for roads, open spaces, gardens, recreation grounds, schools, markets and other public purposes; (c) the development of any site into a colony and the restrictions and conditions subject to which such development may be undertaken or carried out; and (d) the erection or re-erection of buildings on any site and the restrictions and conditions in regard to the open spaces to be maintained in or around buildings and the height and character of building;" Section 29(1) prescribes for publishing a plan with the previous approval of the State Government and in that plan, sub-section (3) empowers for providing open spaces etc. as reproduced above. The matters which are provided under sub-section (3) of Section 29, may be approved by the State Government with or without modification as provided by sub-section (4) of Section 29 and under sub-section (5) the plan is published for inviting objections. Under sub-section (6) the objections are to be filed within 30 days and under sub-section (7) after considering the objections, suggestions and representations, if any, and the recommendation of the Chief Administrator thereon, the State Government has to decide about the final plan showing the controlled area etc. Therefore, it is clear that the Master Plan ultimately published has a statutory base and is not a simple plan without any statutory base. Thus, the argument raised on behalf of the plaintiffs that they were aware of the park in dispute when they purchased the plots as owners is correct. The argument raised on their behalf that they are entitled to open air and light and the use of the park in view of the Master Plan has also force. There was a similar position in regard to the leaving of open spaces and parks in Chandigarh on the basis of Master Plan published under the statutory provisions applicable to Chandigarh Under the Capital of Punjab (Development and Regulation) Act (27 of 1952). A Division Bench of this Court in Daya Swarup Nehra and others v. The State of Punjab and others, 1964 AIR(P&H) 533, took similar view in regard to open spaces and it was held that they could not be brought under construction. Hence, I hold that the park has to remain as it is and no part of it can be brought under construction. The lower appellate Court did not keep this aspect of the matter in view and was in error in reversing the well considered judgment of the trial Court.
(3.) On behalf of the ESI, an argument was raised that the hospital would be for the benefit of the residents of the locality. That may be so, but if they do not want hospital and want to remain with the open park they cannot be forced to have the ESI Hospital. The Government or the Faridabad Complex Administration has to find out some other suitable place for the construction of the ESI Hospital.;