While taking very strong exception to the locking gates of park and further also denying access to the public for whom it is meant, the Delhi High Court in a most learned, laudable, landmark, logical and latest judgment titled Mohd Arslan vs Govt of NCT of Delhi & Ors in W.P.(C) 5986/2022 that was pronounced as recently as on 17.11.2023 has directed the Municipal Corporation of Delhi (MCD) to assume possession of public parks near the Jama Masjid from the Waqf Board. It must be noted that the Delhi High Court condemned the act of locking gates and denying public access to parks. We had seen how earlier in April 2022, the Court had impleaded the Waqf Board as a party to the case after the MCD had submitted that the gates to the parks managed by the Municipal Corporation are being operated by the Waqf Board. Thereafter we also saw how the Court passed an order directing the Counsel for the Waqf Board to get instruction on whether the gates of the South and North Block of the park in question have been locked by the Waqf Board or not and whether access to the park in question to the public at large will be provided by the Waqf Board.

Needless to say, we must note that the Delhi High Court in this learned judgment has underscored unambiguously that the public trust doctrine imposes an obligation on the Government to safeguard natural resources, including air, sea, water and green covers. It must also be noted that the Court also made it amply clear that these resources should not only serve public purposes but should also remain accessible to the general public. It definitely merits mentioning here that this leading case pertained to the management and administration of the Gates to the North and South Park. These parks were adjacent to the Jama Masjid and were managed by the Wakf Board rather than the Municipal Corporation.

At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble The Acting Chief Justice Mr Manmohan and Hon’ble Ms Justice Mini Pushkarna sets the ball in motion by first and foremost putting forth in para 1 that:
On the last date of hearing, learned counsel for Shahi Imam/Managing Committee of Jama Masjid had sought time to seek instructions. However, even at the pass over stage, none is present for the Shahi Imam/Managing Committee of Jama Masjid.

On a serious note, the Division Bench then succinctly observes in para 2 of this commendable judgment specifying that:
Learned counsel for Municipal Corporation of Delhi states that the North Park and South Park abutting Jama Masjid despite being public parks are not in their possession. This is a serious issue.

Most significantly, most forthrightly and so also most commendably, the Division Bench then unfolds the heart and soul of this notable judgment in para 3 wherein it is propounded and mandated indubitably that:
The importance of maintenance of green cover in the present milieu needs no emphasis. The open spaces and green cover provide the much needed breathing zones for the people when the society as a whole is grappling with the hazardous scenario of ever increasing pollution. The parks are like an oasis in the concrete jungle that exist in cities. The move to lock the gates of a public park and denying access to the public is totally unacceptable. The public at large including the young and the old, need green spaces for playing, walking, exercising etc. Denial of this right would be infringement of Right to Life guaranteed under Article 21 of the Constitution of India.

While then also citing the most relevant and remarkable case law to underscore what it held, the Division Bench then hastens to add in para 4 stating precisely that:
Holding that protection of environment, open spaces and playgrounds for children are matters of great public concern, the Supreme Court in Bangalore Medical Trust vs. B.S. Muddappa and Others, (1991) 4 SCC 54 has held as follows:

24. Protection of the environment, open spaces for recreation and fresh air, playgrounds for children, promenade for the residents, and other conveniences or amenities are matters of great public concern and of vital interest to be taken care of in a development scheme. It is that public interest which is sought to be promoted by the Act by establishing the BDA. The public interest in the reservation and preservation of open spaces for parks and playgrounds cannot be sacrificed by leasing or selling such sites to private persons for conversion to some other user. Any such act would be contrary to the legislative intent and inconsistent with the statutory requirements. Furthermore, it would be in direct conflict with the constitutional mandate to ensure that any State action is inspired by the basic values of individual freedom and dignity and addressed to the attainment of a quality of life which makes the guaranteed rights a reality for all the citizens.

[ See Kharak Singh v. State of U.P., (1964) 1 SCR 332 : AIR 1963 SC 1295 : (1963) 2 Cri LJ 329; Municipal Council, Ratlam v. Vardhichand, (1980) 4 SCC 162 : 1980 SCC (Cri) 933 : (1981) 1 SCR 97; Francis Coralie Mullin v. Administrator, Union Territory of Delhi, (1981) 1 SCC 608 : 1981 SCC (Cri) 212 : (1981) 2 SCR 516; Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545; State of H.P. v. Umed Ram Sharma, (1986) 2 SCC 68 : AIR 1986 SC 847 and Vikram Deo Singh Tomar v. State of Bihar, 1988 Supp SCC 734 : 1989 SCC (Cri) 66 : AIR 1988 SC 1782].

While citing yet another very relevant and remarkable case law which cannot be left out, the Division Bench then further points out in para 5 stating that:
It has been held time and again by the Courts that the Public Trust Doctrine enjoins upon the government authorities to protect natural resources like air, sea, waters and green cover that must not only be used for a public purpose, but it must be available for use by the general public. Thus, in M.C. Mehta Versus Kamal Nath and Others, (1997) 1 SCC 388, the Supreme Court has held as follows:

25. The Public Trust Doctrine primarily rests on the principle that certain resources like air, sea, waters and the forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. The said resources being a gift of nature, they should be made freely available to everyone irrespective of the status in life. The doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. According to Professor Sax the Public Trust Doctrine imposes the following restrictions on governmental authority:

Three types of restrictions on governmental authority are often thought to be imposed by the public trust: first, the property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public; second, the property may not be sold, even for a fair cash equivalent; and third the property must be maintained for particular types of uses.

34. Our legal system - based on English common law - includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the sea-shore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership.

As a corollary, the Division Bench then further directs in para 6 of this brilliant judgment that:
In view thereof, this Court directs Municipal Corporation of Delhi to take action in accordance with law to take over the parks in question so that the same are utilised and available for use of the general public.

Be it noted, the Division Bench then directs in para 7 of this robust judgment that:
If any police assistance is asked for, the same shall be provided.

Adding more to it, the Division Bench then further observes in para 8 of this noteworthy judgment that:
After all, a statutory authority cannot lose possession of the public parks.

What’s more, the Division Bench then further also directs in para 9 of this laudable judgment that:
Let a fresh status report be filed within four weeks.

Finally, the Division Bench then concludes this learned judgment by directing aptly in para 10 that:
List on 21st December, 2023.

All said and done, we thus see that the Delhi High Court has made it crystal clear that locking gates and denying access to the public is totally unacceptable. We also see that the Delhi High Court in this leading case has directed the MCD to take over possession of parks near Jama Masjid from Waqf Board. There can be thus no gainsaying that the same must be certainly complied with by the MCD promptly as directed so by the Delhi High Court. There can be just no denying it!

Sanjeev Sirohi, Advocate
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh