"Every citizen has a fundamental right to fresh air": P&H HC stays Haryana government's move to convert a park to a residential area

On Tuesday, the Punjab and Haryana High Court emphasised that every citizen has a fundamental right to fresh air (Jan Kalyan Samiti v. State of Haryana and others)..The declaration came in response to a petition filed against the Government of Haryana’s move to convert open spaces and parks in the Faridabad Industrial Township to residential areas. Finding the State’s action to be of questionable legality, the Court ruled that the move was prima facie unconstitutional and contrary to law..“We are of the prima facie view that action of the respondents in converting public park into residential area is unconstitutional and contrary to law. The residents of the Society have a fundamental right to free air and to enjoy the public amenities.”Punjab and Haryana High Court."The respondents are bound to preserve and save the open spaces. Every citizen has a fundamental right to fresh air. The ecology and environment of the area would be affected drastically if the parks are converted into residential area. The aesthetic characterstics of the city must be promoted and preserved", the Court added..A Division Bench comprising Justices Rajiv Sharma and Harinder Singh Sidhu was hearing a petition moved by the Jan Kalyan Samiti..The petitioner-society had approached the High Court against illegal encroachments upon open spaces and parks in the Faridabad Industrial Township. During the course of hearings, it was revealed that the Government of Haryana proposed to convert these spaces into residential areas..Describing the State’s new proposal as a nullification of the Court's orders, the Court stated:.“It was expected from the respondents to evict the illegal encroachers from the public land instead of nullifying the orders passed by this Court from time to time by converting the park into residential areas.”.In their pleadings, the residential society had termed the new plan proposed by the State as unreasonable, arbitrary, and violative of Articles 21 and 48 of the Constitution..The Court agreed that the State took a U-Turn while proposing to convert parks into residential areas and cited Supreme Court rulings in similar fact situations. In one case, the Supreme Court had ruled:.“Reservation of open spaces for parks and play grounds is universally recognised as a legitimate exercise of statutory power rationally related to the protection of the residents of the locality from the ill effects of urbanisation.”Bangalore Medical Trust v BS Muddappa and others.In the same case, the Supreme Court went on to opine:."Any reasonable legislative attempt bearing a rational relationship to a permissible state objective in economic and social planning will be respected by the courts. A duly approved scheme prepared in accordance with the provisions of the Act is a legitimate attempt on the part of the Government and the statutory authorities to ensure a quiet place free of dust and din where children can run about and the aged and the infirm can rest, breath fresh air and enjoy the beauty of nature. These provisions are meant to guarantee a quiet and healthy atmosphere to suit family needs of persons of all stations.".A similar stance was taken in Virender Gaur and others v. State of Haryana and others, which connected the need for open spaces to the State’s mandate to protect the environment..In view of these observations as well, the Punjan and Haryana High Court stayed the State’s proposal to convert parks into open areas till further orders..The case is expected to be taken up next on November 19, 2020..Read the Order here: