It is common knowledge that Residents Welfare Associations of the colonies generally do not permit the public/outsiders/non residents to use the parks of the colonies. There are  signboards by the RWA at the entrance of the parks  prohibiting outsiders to enter the parks.

There are private security guards posted at the entry gates who check the identity cards of the residents and allow only the residents. The RWA contend that outsiders cannot be permitted for safety reasons and also because the RWA incurs huge expenditure in terms of time, money & energy in maintaining the parks. 

Before we deal with the controversy in hand, it would be trite to mention that legislature has mandated the necessity of Parks in master planning of towns and colonies. Every state has its own governing Acts & rules in this regard. In the State of Uttar Pradesh under the U.P. Urban Planning and Development Act, 1973, there is a mandatory requirement of a park for the sanction of layout of a colony. 

The Apex Court in the case of Bangalore Medical Trust vs B.S. Muddappa And Ors 1991 AIR 1902 dealt with the importance of Public Parks in human life & observed thus :

"Public park as a place reserved for beauty and recreation was developed in 19th and 20th Century and is associated with growth of the concept of equality and recognition of importance of common man. Earlier it was a prerogative of the aristocracy and the affluent either as a result of royal grant or as a place reserved for private pleasure. Free and healthy air in beautiful surroundings was privilege of few.

But now it is a, `gift from people to themselves'. Its importance has multiplied with emphasis on environment and pollution. In modern planning and development it occupies an important place in social ecology. ........ but a park is a necessity not a mere amenity.......No town planner would prepare a blue print without reserving space for it. Emphasis on open air and greenery has multiplied and the city or town planning or development acts of different States require even private house-owners to leave open space in front and back for lawn and fresh air.

In 1984 the BD Act itself provided for reservation of not less than fifteen per cent of the total area of the lay out in a development scheme for public parks and playgrounds the sale and disposition of which is prohibited under Section 38A of the Act. Absence of open space and public park, in present day when urbanisation is on increase, rural exodus is on large scale and congested areas are coming up rapidly, may given rise to health hazard."

It would be equally apropos to refer to Allahabad High Court's judgment in D.D. Vyas And Others vs Ghaziabad Development AIR 1993 All 57 which emphasized the necessity of parks in modern living and observed thus:

"The legislative intent has always been the promotion and enhancement of the quality of life by preservation of the character and desirable aesthetic features of the town. No town is known for sky-scrapers, for myriad industries, for big commercial centres, for big monumental building, but for the attractive lay out of the town, for good land-scapes, for beautiful parks and lawns, for expansive verdant cover, and for perfect social ecology. Good parks expansively laid out are not only for aesthetic appreciation, I butin the fast developing towns having conglomeration of buildings, they are a necessity.

In crowded towns where a resident does not get anything but atmosphere polluted by smoke and fumes emitted by endless vehicular traffic and the factories, the efficacy of beautifully laid out parks is no less than that of lungs to human beings. It is the verdant cover provided by public parks and green belts in a town, which renders considerable relief to the restless public. Hence the importance of public parks cannot be under estimated. Private lawns or public parks are not a luxury, as they were considered in the past. A Public Park is a gift of modern civilization, and is & significant factor for the improvement of the quality of life.

Earlier it was a prerogative of the aristocracy and the affluent either as a result of royal grant or as a place reserved for private pleasure. Free and healthy air in beautiful surrounding was a privilege of few, but now in a democratic set up, it is a gift from the people to themselves. Open space for a public park is an essential feature of modern planning and development, as it greatly contributes to the improvement of social ecology."

An important question that arises for consideration is whether the action of the RWA not to allow entry of non residents in the parks of the colony is correct & legal in the eyes of law. It is undisputable that Park is meant for public purpose and therefore restriction impossible by the RWA is arbitrary & illegal and is violative of Article 21 of the Constitution.

Resident Welfare Association cannot restrict the entry of people of other colonies but it certainly has powers to control timings and make rules such as not allowing eating in the park, taking liquor & food items or sleeping or conducting large meetings, marriages etc.

The powers of the RWA  include maintenance  & improving the quality of services provided by the local bodies such as roads, parks, streets lights etc. and in case RWA tries to obstruct services provided by local Bodies to the common man the same shall be an infringement of fundamental rights and legal action is maintainable against the RWA. 

A park is necessarily & un-disputingly a public place and the RWA can in no case claim ownership or exclusivity over the park and therefore the attempt to restrain common man to enter and use the park is unlawful. It is a blatant discrimination not to allow non resident to enter into a park and is also clearly violative of Article 14 of the Constitution.

RWA ought to stop this discrimination as parks are public property and the RWA is not the owner of the park although it maintains the park under an agreement with the local authorities. It is true that many parks are being maintained on a public-private partnership basis, but that does not mean that the facility had been leased out to a society or RWA. Since the land is owned by public authority, adjoining residents can't be disallowed even if the park is maintained by RWA. 

It is relevant that the parks developed by private builders, which are generally 10-15% of the total area of the colony, are also handed over to the Municipal Corporation on completion of the development work of the colony and they cease to be property of the builder/developer and become public/government properties. It is mandated in that after obtaining completion from the concerned authorities, the Developer has to mandatorily transfer all such roads, open spaces, public parks and public health services free of cost to the Government or the local authority. 

In D.D. Vyas And Others vs Ghaziabad Development Authority (supra), the Allahabad High Court observed that by denial of Park & Green spaces to the people living in a particular area, fundamental right to live enshrined in Article 21 is being violated and in such cases the aggrieved can move to the jurisdictional High Court under Article 226 or before the Supreme Court under Article 32 of the Constitution. The Court observed thus:

"Right to live is a fundamental right under Article 21 of the Constitution and it includes the right of enjoyment of pollution free water and air for full enjoyment of life. If anything endangers or impairs that quality of life in derogation of laws, a citizen has a right to have recourse to Article 32 of the Constitution for removing the pollution of water or air, which may be detrimental to the quality of life."

It is relevant that the State of Uttar Pradesh has legislated the Uttar Pradesh Parks, Play-grounds and Open Spaces (Preservation and Regulation) Act, 1975 which is aimed at the Preservation & Regulation of Parks in the State of UP. There would be similar Acts for the said purpose in the other states also for the preservation & Regulation of Parks. 

There may be a case for the group housings, multi-storeyed buildings and gated community where entry even for the guests is not permitted without the consent of the resident. Similar is the position of gated floor complexes and senior living complexes. There can be an exception to such buildings/ complexes because of concerns of safety of goods & residents. Perhaps, the green spaces of the building might not even fall within the category of Public Parks. They are different to the colonies which have public parks and can be legally distinguished. 

It is no longer res integra that RWA are duty bound to maintain the parks but legally they are neither owners or lessees of the parks and therefore they cannot restrain the non residents from using such parks of the colonies. 

Written By: Inder Chand Jain
Email: [email protected], Ph No: 8279945021