The Gauhati High Court has dismissed a Public Interest Litigation (PIL) seeking a recreational ground on the open land of the abandoned Municipal Water Treatment plant, Kol Ghor Ground, at Water Works Road, Silchar and to prohibit dumping of garbage on the said land.
It is the case of the petitioner (Ali Reja Osmani), a Masters in Law, that the open land, popularly known as Kol Ghor Ground, was formally used as a Municipal Water Treatment Plant during the pre-independence days. It is the only open land where neighbourhood children find space for sprinting and elderly persons come together for doing community yoga and exercise. It is, therefore, the case of the petitioner that the same should be used for the purpose of recreational ground.
The land which was earlier used as Municipal Water Treatment Plant, had been abandoned and the said plant has been shifted to another area in Silchar. The petitioner has referred to and relied upon the representation dated 02.03.2020 filed by one NGO, namely, Nagarik Swartharaksha Sangram Parishad and another representation of even date filed by Samaj Bandhab NGO. The petitioner has also relied upon a further representation dated 27.01.2021 filed by him before the Deputy Commissioner, Cachar and has contended that the land in question should be available for recreational purpose.
It is also averred by the petitioner that the land in question is situated at a distance of only 50 Meters from a renowned L.P. School which was established in 1936 and, therefore, the plot in question should be used as a playground for 300 students, who are being imparted education in the said School.
It is alleged by the petitioner that instead of developing the open land as recreation ground, the same is being used as a dumping ground. On the aforesaid contentions, the PIL is preferred by the petitioner.
In response, the Silchar Municipal Board said in its affidavit that the petition is not a genuine public interest litigation but is filed for extraneous consideration. It is contended by the respondent No.3 that the petitioner has abused the jurisdiction of this Court by filing the instant public interest litigation and has denied the contentions raised in the petition.
The Board contended that the Water Treatment Plant has been shifted to Sadarghat and the plot in question was kept vacant. It is the case of the respondent that the land in question has never been declared as a recreational area as the particular area is highly dense and is in commercial zone as even admitted by the petitioner. It is contended by the respondent No.3 that as the plot is left vacant for a long period, the people of that locality have started to use the plot as a garbage dumping ground.
The Board also contended that there are numerous recreational areas in the proximity of the locality and the land in question being in commercial zone, the authority intends to develop the same to earn some revenue.
It is contended by the Board (respondent No.3) that on one hand the petitioner asserted that the land in question should be used for recreational ground for senior citizens and in the later part of the petition, the petitioner asserted that it should be used as a playground for the students of L.P. School.
The respondent No.5, the Director of Assam Town & Country Planning, has also filed an affidavit-in-opposition and has stated that as per the proposed Master Plan of Silchar for 2016 and as per the newly proposed Draft Master Plan of Silchar, 2045, which is prepared under AMRUT Mission, the land in question is designated in commercial zone.
Having heard the counsels for the parties and on perusal of the documents available on record, the Division Bench of Chief Justice R.M. Chhaya and Justice Achintya Malla Bujor Barua noted that the land in question is situated in the midst of the town. Use and development of any public properties, like the land in question, has to be as per the provisions of the Master Plan. “It is a matter of fact that the land in question is situated in commercial zone and as per the statements made on oath by the respondent No.3, the land in question is to be developed by constructing semi RCC structure for establishing a Vegetable Market. Even considering the provisions of Regulation 6.2 of the 2000 Regulation, if the land is developed for the Vegetable Market, the same is not a prohibited use, as it would not fall within wholesale shops. Establishment of a Vegetable Market also is an inevitable facility, which an authority is supposed to create for the citizens at large. Even considering the provisions of the Twelfth Schedule of the Constitution of India, such a use would be permissible,” observed the Court.
Therefore the bench held that S. Dutta, senior counsel appearing for the respondent No.3, is correct in contending that the petitioner also is not sure whether the land should be used as a recreation ground for senior citizens or as a playground for the school children.
The Court is of the considered opinion that as per the zoning regulation applicable, the land in question falls within the commercial zone and its development as a Vegetable Market by creating stalls would increase such facility for the citizens of that area. The authorities have also brought on record the fact that there are other places, which are used for recreation purpose in the nearby proximity of the locality. It is not the case of the petitioner that the plot in question is being used for any nonconforming use and in light of the aforesaid as the land in question is earmarked for the purpose of Vegetable Market, which is situated in a commercial zone, would not mean that the authorities desire to put it to any prohibited or non-conforming use.
In facts of this case, however, the Bench further observed from the record that the open land is without any boundary and, therefore, even as per the respondent authorities the general public dump garbage in the said open plot. Such use is not permissible.
Though in the affidavit-in-opposition filed by the respondent No.3, it is averred that steps are taken to remove the garbage, the Bench deemed it fit to direct the respondent No.3, i.e. the Executive Officer, Silchar Municipal Board, to remove the garbage within a period of seven days . The respondent No.3 is further directed to put barbed wire fencing on the open plot after the garbage is removed, and shall protect the open plot from any such use till the same is developed for the purpose of which it is now earmarked by the respondent No.3.
The respondent No.2, i.e. the Director of Municipal Administration, Assam, is hereby directed by the Court to see that the respondent No.3 executes this order. It is further provided that the respondent No.3 and the concerned authorities shall use the plot in question as per the statement made on oath before the Court, i.e. for constructing semi RCC structure for starting Vegetable Market.
“Accordingly, the petition is dismissed. However, even while dismissing the petition, the respondent No.3 and the authorities concerned shall carry out the directions issued by this Court,” the order reads.