KARNATAKA PARKS, PLAY-FIELDS AND OPEN SPACES (PRESERVATION AND REGULATION) ACT, 1985

16 of 1985

March 20, 1985

In view of the increasing demand for residential and commercial sites in the urban areas, a number of Parks, Playfields and open spaces are being converted into sites and for other such uses. In order to provide the necessary space for recreation to the residents of each absolutely necessary to preserve parks, playfields and open spaces and to put an end to the practice of converting such lands into other uses. Hence this Bill. (First published in the Karnataka Gazette, Extraordinary, on the Eighth day of May, 1985) (Received the assent of the Governor on the Seventh day of May, 1985) An Act to provide for the preservation and regulation of Parks, Playfields and Open Spaces in the State of Karnataka. Whereas, it is expedient to provide for preservation and regulation of Parks, Play-fields and Open Spaces in the State of Karnataka. Be it enacted by the Karnataka State Legislature in the Thirty-sixth year of the Republic of India as follows.

Section 1 Short title, extent and commencement.

(1) This Act may be called the Karnataka Parks, Play-fields and Open Spaces (Preservation and Regulation) Act, 1985.

(2) It extends to the whole of the State of Karnataka.

(3) It shall be deemed to have come into force on the 26th day of December, 1984 in the Cities of Bangalore, Belgaum, Gulbarga, Hubli-Dharwar, Mangalore and Mysore and in the local areas comprised within a City Municipality in the State and on such date and in such other local areas of the State as the Government may, by notification, specify and the Government may cancel or modify any such notification.

Section 2 Definitions

In this Act, unless the context otherwise requires.

(a) "Chief Controlling Authority" means, in the case of the Cities of Bangalore, Belgaum, Gulbarga, Hubli-Dharwar, Mangalore and Mysore, the Government, and in other cases the Commissioner;

(b) "Commissioner" means the Divisional Commissioner of the revenue division;

(c) "Executive authority" means the Chief Executive Authority of the Local Authority concerned who is vested with general executive powers under any law for the time being in force providing for the constitution of such Local Authority;

(d) "Government" means the State Government;

(e) "Local authority" means a municipal corporation, a municipal council, the Bangalore Development Authority, an improvement board, a sanitary board or a notified area committee or a town board constituted or continued under any law for the time being in force and such other authority as may be specified by the Government, by notification, as a local authority;

(f) "Open space" means any land on which there are no buildings or of which not more than one twentieth part is covered with buildings and the whole or the remainder of which is used or meant for purposes of recreation, air or light or set apart for civic amenity purposes;

(g) "Park" means a piece of land on which there are no buildings or of which not more than one twentieth part is covered with buildings, and the whole or remainder of which is laid out as a garden with trees, plants or flower beds or as a lawn or as a meadow and maintained as a place for the resort of the public for recreation, air or light;

(h) "Play-field" means a piece of land adapted for the purposes of play, game or sport and used by schools or colleges or clubs or general public and includes land set apart as a play-field by a Local Authority

CASE LAW Sections 2(f) and 8(1) "Open space" Definition of Means any land on which there are no buildings or of which not more than 1/20th part is covered with buildings and whole or remainder of which is used or meant for purposes of recreation, air or light or set apart for civic amenity purposes Corporation/Municipality to publish list of open spaces Construction of buildings or structures likely diminish utility of open space, prohibited Party alleging infringement of law to prove that land on which buildings are constructed is "open space" with reference to list published. A.B. Murgod, J., Held. Section 8(1) of the Karnataka Parks, Play-fields and Open Space (Preservation and Regulation) Act, 1985 prohibits construction of any building or structure likely to affect the utility of the park, play-field or open space specified in the list published under Section 4 or Section 5. "Open Space" as defined in clause (f) of Section 2 of the Karnataka Parks, Play-fields and Open Space (Preservation and Reglation) Act, 1985 means any land on which there are no buildings or of which not more than one twentieth part is covered with buildings and the whole or the remainder of whcih is used or meant for purposes of recreation, air or light or set apart for civic amenity purposes. It is for the petitioner to show that it is an open space as defined under the enactment and it is so included in the list prepared under Sections 4 and 5 of the Act. In the absence of such material, the argument is unsustainable. Smt. Lalitha Bai v City Corporation of Gulbarga and Others, 1996(3) Kar. L.J. 285-B.

Section 3 Preparation and submission of list of parks, play-fields and open spaces by executive authorities

(1) The executive authority of every local authority shall, not later than six months from the date on which this Act comes into force in the area within the jurisdiction of the Local Authority concerned, prepare and submit for the approval of the Government a correct and complete list with plans and maps with dimensions of all the parks, play-fields and open spaces in the area aforesaid containing such other particulars as may be prescribed.

(2) The Government shall, as soon as may be, after the receipt of the list and other documents referred to in sub-section (1), publish the list together with a notice of the date (not being less than three months from the date of publication) before which representation in connection therewith may be submitted in the prescribed manner and such publication shall state at what place and time the plans, maps and documents aforesaid will be available to the public for inspection: Provided that if any private land is included in any park, play-field or open space specified in the list, a copy of the list with the concerned plans and maps shall cause to be served on the owner of that private land.

Section 4 Approval of list by Government

(1) Any person interested, may submit his representations, objections or suggestions in writing in respect of anything contained in or relating to the list, to the Government, Within the time specified in the publication of the list under sub-section (2) of Section 3.

(2) The Government may, after considering the representations, objections and suggestions, if any, and making such inquiry as it thinks fit, approve the list with or without modifications.

(3) The order of the Government approving the list under sub-section (2) together with the list approved shall be published in the prescribed manner and such publication shall state at which place and time particulars relating to the matter mentioned in the list will be available to the public for inspection.

Section 5 Inclusion of new lands

(1) The Government may at any time either suo moto or at the instance of the Local Authority concerned or of any person interested include new lands in the list.

(2) Before including such new lands the Government shall publish in the prescribed manner a draft notification proposing such inclusion together with a notice specifying a date on or after which such draft will be taken into consideration, and shall consider any objection or suggestion which may be received in respect of such draft from the Local Authority concerned or any person interested before the date so specified.

Section 6 Prohibition of the use of parks, play-fields and open spaces in certain cases

No park, play-field or open space specified in the list published under Section 4 or Section 5 shall be used for any purpose other than the purpose or purposes for which it was used on the date of commencement of this Act in such area.

Section 7 Maintenance of parks, play-fields and open spaces

The Local Authority concerned shall maintain in a clean and proper condition all parks, play-fields and open spaces belonging to or vested in it and included in the list published under Section 4 or Section 5.

Section 8 Prohibition of construction of buildings etc

(1) No person shall construct any building or put up any structure likely to affect the utility of the park, play-field or open space or make any encroachment in or over any park, play-field or open space specified in the list published under Section 4 or Section 5: Provided that the executive authority may, subject to such rules as may be prescribed, permit the construction of such buildings or putting up of such structures as may be necessary for the improvement or more beneficial utilisation of the park, play-field or open space.

(2) No land or buildings within a park, play-field or open space specified in the list published under Section 4 or Section 5 shall be alienated by way of sale, lease, gift, exchange mortgage or otherwise and no licence for the use of any such land or buildings for any other purpose shall be granted and any alienation made or licence granted in contravention of this section shall be null and void.

Section 9 Obligation of owner of parks and play-fields

(1) In the case of parks and play-fields not vested in the Local Authority but included in the list published under Section 4 or Section 5, the executive authority, may, by notice, require the owner or the person or authority in occupation of such park or play-field.

(i) to maintain such park or play-field in a clean condition;

(ii) to remove or alter any projection, encroachment or obstruction in or over any such park or play-field or to execute such repairs to any building in such park or play-field as the executive authority may consider necessary within the date specified in the notice.

(2) If the owner or the person or authority in occupation fails to comply with the notice under sub-section (1), the executive authority shall itself arrange to.

(i) maintain such park or play-field in a clean and proper condition;

(ii) remove or alter the projection, encroachment or obstruction;

(iii) execute such repairs as it may consider necessary and the cost of such maintenance, removal, alteration or repairs shall be recoverable from the owner or the person or authority in occupation in such manner as may be prescribed.

(3) Any dispute as to the amount of cost shall be decided by the Government and its decision shall be final.

(4) The Executive Authority, may, instead of or in addition to taking action as indicated in sub-section (2), proceed to acquire the land under the Land Acquisition Act, 1894 for the purpose of effective management of the land as a park or play-field.

Section 10 Submission of annual returns

The executive authority shall submit to the Government through the Commissioner in such form and with such particulars as may be prescribed, an annual return in respect of the parks, play-fields and open spaces which are situated within the limits of the local authority concerned and which are specified in the list published under Section 4 or Section 5. The return shall also contain a list of the parks and play-fields in respect of which action was taken under sub-section (2) of Section 9 together with particulars as regards the nature of the action taken in respect of them and the steps taken in regard to their proper maintenance.

Section 11 Penalties

Whoever contravenes the provisions of Section 6 or Section 8 or throws any rubbish into any park, play-field or open space specified in the list published under Section 4 or Section 5 shall be punishable with imprisonment for a term which may extend to six months or with fine or with both.

Section 12 Offences by companies

(1) Where an offence under this Act is committed by a company, the company, as well as every person in charge of and responsible to the company for the conduct of its business at the time of the commission of the offence, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any such person liable to any punishment if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent commission of such offence.

(2) Notwithstanding anything contained in sub-section (1) where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or that the commission of the offence is attributable to any neglect on the part of, any director, manager, secretary, or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded agained and punished accordingly. Explanation. For the purpose of this section.

(a) "company" means a body corporate and includes a firm or other association of individuals;

(b) "director" in relation to a firm means a partner in the firm.

Section 13 Control

(1) If the Chief Controlling Authority is satisfied, after giving the Executive Authority an opportunity of being heard, that the Executive Authority has failed to enforce effectively the provisions of this Act or to execute any work which under this Act the Executive Authority is required to execute, it may order the Local Authority concerned to do all things necessary for enforcing the provisions of this Act effectively or for executing any work which under this Act the Executive Authority is required to execute.

(2) For the purposes of this section, the Chief Controlling Authority shall have the same powers of calling for records, causing inspection to be made, and of enforcing its orders by appointing persons to enforce them as the Government has under Sections 94, 96 and 97 of Karnataka Municipal Corporations Act, 1976 (Karnataka Act 14 of 1977).

Section 14 Power to make rules

(1) The Government may by notification, and after previous publication, make rules for the purpose of carrying out the provisions of this Act.

(2) In particular and without prejudice to the generality of the foregoing provisions such rules may provide for. (a) Controlling or regulating the admission of persons to, and the conduct of persons in, and in the vicinity of parks, play-fields and open spaces; (b) restricting or prohibiting the admission of animals or any class of animals to any park, play-fields or open space; (c) conditions subject to which permission may be granted to construct buildings under Section 8; (d) the time within which the annual return under Section 10 shall be submitted to the Government; (e) all matters expressly required or allowed by this Act to be prescribed.

(3) All rules made, all notifications issued and all lists of parks, playfields and open spaces published under this Act shall, as soon as may be after they are made or published be laid before each House of the State Legislature while it is in session for a total period of thirty days which may be comprised in one session or in two or more successive sessions and if, before the expiry of the session in which it is so laid or the session immediately following both Houses agree in making any modification in such rule, notification or list, or both Houses agree mat such rule, notification or list should not be made or published, such rule, notification or list shall thereafter have effect only in such modified form or be of no effect, as the case may be, so, however, that any such modification or annulment shall be without prejudice to the validity of anything done under that rule, or notification or list.

Section 15 Repeal and Savings

(1) The Karnataka Parks, Play-fields and Open spaces (Preservation and Regulation) Ordinance, 1984 (Karnataka Ordinance No. 19 of 1984) is hereby repealed.

(2) Notwithstanding such repeal anything done or any action taken under the said Ordinance, shall be deemed to have been done or taken under this Act.

RULE:

KARNATAKA PARKS, PLAY-FIELDS AND OPEN SPACES (PRESERVATION AND REGULATION) RULES, 1985

Whereas, draft of the Karnataka, Parks, Play-fields and open spaces (Preservation and Regulation) Rules, 1985 was published in Notification No. HUD 47 MIE 85, dated 6th June, 1985 in Part IV, Section 2-C(i) of the Karnataka Gazette, Extraordinary, dated the seventh day of June, 1985 inviting objections and suggestions to the said draft from persons likely to be affected thereby, within a period of fifteen days from the date of publication of the said draft in the Karnataka Gazette. And, whereas, the said Gazette was made available to the Public on the seventh day of June, 1985. And, whereas, the objections and suggestions received have been considered by the State Government. Now, therefore, in exercise of the powers conferred by sub-section (1) of Section 14 of the Karnataka Parks, Play-Fields and Open Spaces (Preservation and Regulation) Act, 1985 (Karnataka Act 16 of the 1985) the Government of Karnataka hereby makes the following rules, namely.

Rule 1 Title and commencement

(1) These rules may be called the Karnataka Parks, Play-fields and Open Spaces (Preservation and Regulation) Rules, 1985.

(2) They shall come into force at once.

Rule 2 Definitions

In these rules unless the context otherwise requires.

(a) "Act" means the Karnataka Parks Play-fields and Open Spaces (Preservation and Regulations) Act, 1985 (Karnataka Act 16 of 1985);

(b) "Section" means section of the Act.

Rule 3 Submission of Lists of Parks, Play-fields and Open Spaces

The executive authority shall indicate in the list submitted to Government under sub-section (1) of S.3 of the Karnataka Parks Play-fields and Open Spaces (Preservation and Regulations) Act, 1985, the name and address of the owner and the details and nature of the buildings, if any, already existing in each of the parks play-fields and open spaces as on the date of its submission.

Rule 4 Publication of List

The list submitted to Government under sub-section (1) of S.3 of the Karnataka Parks Play-fields and Open Spaces (Preservation and Regulations) Act, 1985 shall be published.

(i) by affixing on the notice board of the office of the concerned local authority;

(ii) by exhibition in all reading rooms and such other conspicuous places within the concerned local authority;

(iii) by affixing on the notice board of the office of the Tahsildar of the taluk; and

(iv) by affixing on the notice board of the office of the.

(a) Bangalore Development Authority in case the concerned local authority is situated within the jurisdiction of Bangalore Development Authority; or

(b) Deputy Director of Town Planning Bangalore Metropolitan Region in case the concerned local authorities are situated in Bangalore District excluding the area within the jurisdiction of the Bangalore, Development Authority; or

(c) Assistant Director of Town Planning within whose jurisdiction the concerned local authority, in Districts other than Bangalore is situated.

Rule 5 Publication of approved List etc

The order of the Government and the approved list under sub-section (3) of S.4 of the Karnataka Parks Play-fields and Open Spaces (Preservation and Regulations) Act, 1985 and the proposal to include new lands in the list under sub-section (2) of S.5 of the Karnataka Parks Play-fields and Open Spaces (Preservation and Regulations) Act, 1985 shall be published in the same manner as specified in the Rule 4.

Rule 6 Construction of other structures in the Parks, Play-fields and Open Spaces

(1) The executive authority may permit construction of a well, pumphouse, benches for the visiting public to sit and quarters for the watchmen in any park play-fields or open space.

(2) Notwithstanding anything in sub-rule (I).

(a) no permission to construct quarters for the watchmen shall be granted were the total area of the park, play field or open space is less than two hectares;

(b) in other cases, not more than two quarters may be permitted to be constructed and the area of any such quarters shall not exceed thirty square metres.

Rule 7 Collection of Cost

(1) Where the cost payable under S.9 of the Karnataka Parks Play-fields and Open Spaces (Preservation and Regulations) Act, 1985 is due from any person the executive authority shall cause to be served upon or sent to such person a bill for the sum due before proceeding to enforce the provisions of Rule 8.

(2) A bill under sub-rule (1) shall be signed by the executive authority and shall contain.

(a) the particulars of the demand; and

(b) notice of the liability which may be incurred in default of payment.

Rule 8 Distraint

(1) If the amount due on account of the cost is not paid within fifteen days from the service of the bill and if the person from whom the cost is due has not shown cause to the satisfaction-of the Executive authority why it should not be paid, the executive authority may recover by distraint under his warrant and sale of the movable property of the defaulter:

Provided always that movable property described in the proviso to sub-section (1) of S.60 of the Code of Civil Procedure, 1908 (Central Act 5 of 1908), shall not be liable to distraint.

(2) Under a special order in writing of the executive authority, any Officer charged with the execution of a warrant of distress may between sunrise and sunset, break open any outer or inner door or window of a building in order to make the distress, if he has reasonable ground for believing that such building contains property which is liable to seizure and if, after notifying his authority and purpose, and duly demanding admittance, he cannot otherwise obtain admittance:

Provided that such Officer shall not enter or break open the door of any apartment appropriated to women until he has given three hour's notice of his intention and has given such woman an opportunity to withdraw.

(3) The Officer charged with the execution of a warrant shall, before making a distraint, demand payment of the cost due. If the cost due is paid no distraint shall be made or else be shall.

(a) seize such movable property of the defaulter as he may think necessary;

(b) make an inventory of the property seized; and

(c) give to the person in possession of the property seized at the time of seizure a copy of the inventory and the notice of sale:

Provided that a period of seven days shall be allowed for paying the amounts due and redeeming the property seized.

(4) The distress shall not be excessive, that is to say the property distrained shall be as nearly as possible equal to the value of the cost due by the defaulter.

Rule 9 Sale

(1) If the amount due by the defaulter on account of cost payable under S.9 of the Karnataka Parks Play-fields and Open Spaces (Preservation and Regulations) Act, 1985 and expenses incidental to the detention of the property are not paid within the period of seven days mentioned in the notice given under Rule 8 and if the distraint warrant is not suspended by the executive authority, the property seized or a sufficient portion thereof, shall be sold by public auction under the orders of the executive authority who shall apply the proceeds of the sale to the payment of the amount due on account of cost payable under S.9 of the Karnataka Parks Play-fields and Open Spaces (Preservation and Regulations) Act, 1985 and the expenses incidental to the detention and sale of the property and shall return to the person in whose possession the property was at the time of seizure any property which may remain after the sale and the application of the proceeds thereof as afore said, if application is made by such person within three years from the date of the sale. If no such application is made, the property so remaining shall be forfeited to the local authority concerned. If the proceeds of the sale are insufficient for the payment of the amount due on account of the cost and expenses incidental to the detention and sale of the property the executive authority may again proceed under Rule 8 in respect of the sum remaining unpaid.

(2) Then the property seized is perishable or subject to speedy and natural decay or if the expenses of keeping it well, together with the amount of cost, exceed the value of the property, the executive authority may sell it any time before the expiry of the said period of seven days unless the amount due is sooner paid.

(3) The executive authority shall consider any objections to the distraint of any property which are made within the said period of seven days and may postpone the sale pending investigation thereof. If the executive authority decides that the property attached was not liable to distraint, he shall return it or if it has already been sold the proceeds of the sale shall be paid to the person appearing to be entitled thereto and again may proceed under Rule 8, and all expenses connected with the first distraint and sale shall be recoverable from the defaulter if it shall appear to the executive authority that he wilfully permitted distraint of the property when to his knowledge it was not liable to distraint.

Rule 10 Executive authority etc. not to purchase

Neither the executive authority not any Officer or servant of the local authority shall directly or indirectly purchase any property at any sale of distrained property held under the foregoing rules.

Rule 11 Submission of annual returns

The executive authority shall submit to the Government annual returns with all the particulars in the Form appended to these rules.

APPENDIX 1 FORM

FORM

[See Rule 11]

FORM

[See Rule 11]

Annual

Returns in Respect of Parks, Play-Fields and Open Spaces City Corporation/City

Municipal Council............

Return from the

period from January 19. to the end of December, 19..

SI. No. Name of Parks, Play-fields, open spaces as on 31st March of the previous year Total of sub-columns 2(a), 2(b) and 2(c) No. of new parks, play fields and open spaces that have come up during the year Parks (a) Play Fields (b) Open Spaces (c) Parks (a) Play Fields (b) Open Spaces(c) 1 2 3 4

No. and details of

cases in which, action has been taken during the year under Section 9(2) of the

Act

The Total of Columns 3 and 4 Name of the Park Play Field /Open spaces LCs. S. No./S.T.C. No. Nature of action taken Steps taken for their maintenance 5 6 7 8 9

Date:

Signature

Place:

(Name in Capitals)

(Seal of the local

authority)

Designation