IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 13TH DAY OF 'AUGUST. 2001
PRESENT
THEHON'BLE MR. P.V. REDDI, CHIEF JUSTICE 3 « A
AND
'THE HoN'BLE MR. JUSTICE-N:K;*PATTL Vf A
. 1sgsz/93 and ggza-34/1993
BE'|'WEEN: 0N.P.No.'32252!§8) k
Sri. G.K. Govinda Rao, » __ '-
Professor' of English (Retd.) '
No.161.(Upstairs), '- _ f
36-ACross.7"'B|ock,* *
Jayanagar. »
Bangalore-560 O82, 5;; A_ ~ «
' (Bysn. K. GopaIAvA!*?;5Bé»e::7'%}~dV;/3% '- '
N" V4
for petr.) """ - _ V _
1. State' of Kérnataxa 'by A A
|t§ Chief Secretary; " "
Vidhéaha Soudha,' . _____ H . '
Kamataka_«State_ Federation of
Advocates'f'_Asso¢iafion (Regc_l_.)
Represented by its Chairman
K.N; Subba 'Raddy. A
A A 4-" A BW_SSB'," Dauvery Bhavan.
' « Bangalore-9.
.BYi'xé Secretary - C.A.O. .
(By Sri. H.C. Raveendranath -Adv for R.2. V
A Esra. M.G. Kumar -- Adv. for R33 and l.A.V!I.
Srl. Amaranath -- Adv. for l.A.l|/2000
M341 ggrmous ug§.32232/A95,1A9s41$-TAT A
Sri. M.H. Motigi -- Adv. for R.3 and |.A.V|
Sri. MohanRao.M.S. - Adv. for R.2 & l.A.|V
Sri. A.N. Jayaram -- A.G.and
Sri. V. Sudish Pai -- AGA. For R.1.
Sri. M.R. Shailendra - Adv. for l.A.lX.
BETWEEN: (\N.P-.No. 1.9541/99)
Sri. Bimal N. Desai.
S/o. N.H.Desai,
Aged about 41 years.
No.51 ,SJP Road,
Bangalore-560 002. A
(By Sri.M.G. Kumar -- Adv.for Petr.) 1' ' _V
'1 AND
1. State of Karnataka, H
Byitschiefseqsretary, _ - '
Vldhana
Bangaloro~5600(3l1 'V .
2. Union__ofTlnidia,"' '«:.,__ _ " _ "
Ministry offinviron ant 8: Forest,
Byit'*.--svV_Se9:::--'eta'r$"~.."'~-., ' -
No.10. Paryavaran Bhavam
C.G.0.GompIex",» . '
New Delhi"... * V '
- 3. Di;ectof"ofvHorticuuure,
" , Cubbon Pack,
' 'BarfAag.»:-;4Ic':.'oA-5x60..o01.
:'BangHaVlou2*§g Supply & Sewerage Board.
By its Chairman,
Nc.19,.Cross,
Vasanthnagar,
Bangalore-560 O32.
. Principal Chief Conservator of Forest,
Aranya Bhavan,
' Mal|eswaram.18"' Cross,
Bangalore-560 003. .. RESPONDENTS
(By Sri. A.N. Jayaram -A.G.
and Sri. V. Sudish Pai -- GA -- for
R.1, R.3 and R.5)
sn. S.N. Keshava Murthy - Adv. for R.4)
BETWEEN: ' §_\A_I,P.No.18287/98)
Sri. Bimal Desai,
S/o.-- Natubhai H. Desai,
Aged about 41 years, .
Occ: President (Operations)
Desai Brothers (P) Ltd.,
No.51, SJP Road,
Bangalore-560001.
(By Sri. M.G. Kumar - Adv. for Petr.)
AND A
1. State of Kamataka, .
(Department of Horticulture',«-- --_
Vidhana Soudha, ' ' " '
Bangalore-560 O01 . H A _ A
. 2. Deputy Director e€Hortidulture." ~
Cubbon Park" .. " »
tBangalore€-56'O'£)01 » '
3. Kamataka Goxfemrnent Segretariatblub,
By itszseeretaryr-g«~.._» -- .
Cubbdn Park, . «.
Bangaloref580 1 ' RESPONDENTS A
(By Sri. Ma..skar;un.es. Am}. for R.3.
$_'t'i}.A.NV. Ja_yaram'~:V.A..G. and .
A err. v. 'SVud_ishA_Pai -- AGA - for Respts.
.A ;_v_vE% .P.Nos.8428-8434/98) A
W.P. 0 8/98 E
_ Age"; Major,
" V. S/o'; Venkateshappa,
A _ Dec: Pani Puri Stall.
" * " Near Museum Park,
Rlat. No.204, Double Road,
4"' Cross, Lalbagh Road, A .
Bangalore-27. _ .. PETITIONER
j1._'_:Bangai_orVe-2?.
Bangalore-560 046.
,4"' Cross. ammachamna Gordi;
W.P.No.8429/98
Syed Gaffar. .
Age: major,
Occ: Cotton Candy Stall,
Near Rani Circle. %
R/at. No.133, Old Pensioners Mohalla.
Mysore Road.
Bangalore-1 8.
fl.P.No,8430/9§ &
Mohd. Haneef.
Age: Major.
Slo. M. Masta Sab,
Occ: Cold-drink's Cart,
Near Bal Bhavan Railway Gate, '
R/at.No.41/B.2"' Cross, ' V _ ._ e .
Chinnappa Garden, ~ 1, ; '
-- _.. PETETICNER
W.P.No;3431Lg_§=:_ 3;
Shantamma. 5 " '
Occ:PanipuriSIal|, --- '-
NearBalBhav_an'in fro";tof'¥-:
Rai|wayGate.i __ . .
R/at, No.229, Do_ub!e Road," _ "
Lalbagh Road,
Bangalore-27. » _
V V = Z,/,"\\"fl-npnfl' o,8e§zé H flv
Snni\7a.\s}' . --
Age: ma:jo'r,--,_
Q '=8/o. Venkataramanappa,
Occ: Cucumber; Fruit Stall,
. .. No.42, Sam
K V A V ngi Ram Nagar,
4thMairrR.o_ad..'5 Cross. _
PETITIONER
fl.P.No.8433@§
.eAma;nsyea,
Age: major, V
Z ' A o J Cotton Candy stau,
' Near Railway Gate.
Bal Bhavan,
PETITIONER '
PETITIONER "
5
R/at. No.133, Old Pensioners Mohalla,
Mysore Road,
Bangalore-18. .. PETITIONER
> yl_I_,P.Ng.8434128
7. Sampangi.R.,
Age: major,
S/o. Ramalah,
Occ: Tiffan Stall on cycle.
Behind Museum.
R/at. 121/2. lll Block,
Thyagarajanagar,
Bangalore-560 028. .. n V -- ii.-"E1'.l_":l'4l.(')'l~lEi-"'v." f ; A'
' (By M/si. Sawant & Sawant--Adv.Vior:'i==etrs.)A'V' . '
AND
1. Commissioner of Pollcer"
Bangalorecity, " V
Bangalore-1.
2- Deputv Dire~%'i°f 1 i ll
Cubbon P:ark,_.- . V'
Bangalore-1 ' V1.,__ V
3. Asst;:Commiss§oner'of Police, -- I
Traffioqsub Division}. _.
VidhanaV.Soudha=,. * *
Bangalore'----1. -
. A 4. lnépectér of P§Iice.lr ooooo 14 .
. Cubbori Park Police Station.
' _ V 'Kasturba Reid,
5.' Uireotor.'
Karnateka Government Museum,
Venkatappa Art Gallery,
* Kasturba Road. V '
' _ . Bangalore. .. RESPONDENTS
* Sri. A.N. Jayaram - A.G.'--
and Sri. V.S. Sudish Pai - AGA -
_for Respts.)
'ix
6 .
, Writ Petition No.32232I98 is filed under Article '226 of the
Constitution of India praying that this Court be Pleased to quash the
impugned notification dated 30.7.1998 issued' bythe respondent-
Staté Government under sub-sections.(1) and (2) of Section 3 of
the Kamataka Government Parks (Preservation) Act, 1975.
. Writ Petition No.19541l99 ls filed under Article 226 of7the._
Constitution' oflndia praying that this Court be pleased to ci'eciare_ 7.,
the whole of Cubbon Park area as per the notification ANN-'d .AN_D~ ;_.
Map Ann-E, as -Forest Land subject to the Restriction..gVan'd . t
Protection under the Forest (Conservation) Act, 1980... _ pi = '
Writ Petition No. 18287/.998 is firedtluihderfhhttgieat 226 orthe' T
Constitution of India praying that this Court'-be :ple~aised~to"direct the
respondents to restore the playground land in wiongfulypossessio«n '
ofR.3 to the Cubbon Park. __ 'V V _ V __
Writ Petitions Nos. 8428 to are filed tinder Ztrticles
5 226' and 227 of the Constitution of India';-.rayirtg._ that this Court be
pleased direct the respondent .N_os._ 1,:2,3,'4«_and't5 by restraining
9 them not to interfere in the hawkingti'busines$t..ot'*the petitioner
around Cubbon Park and Bal Bhavan and;<_3ovt. Museum. And etc.,
These Writ for 'preiiminary hearing/final
hearing this day, '_THE'1'_HGNj'3|,..EV iii-liEF,V_JUSTlCE made, the
following: ' ' ._ ' ' V '
Jfhese Writ"i'Petitions: are filed by way of Public interest
No. 32232198 has ' been taken up suo motu y
of the letter sent by Sri. G.K. Govinda
_Raoiwho is' a -resident of Jayana_gar,V Bangalore. The other Writ'
' " 'A"--..Petitlons iarefiled as P|Ls byvarious other persons. In all' these
A Petitions, the Notification dated i30.7.1_9'9'8 issued in purported
-
exercise of power under Sub-‘section (1) 8. (2) of Section 3 of the
Kamataka Govemment Parks (Preservation) Act, 1975 (hereinafter
i referred to as ‘the Act’) has been questioned. Directions haveV.al?soe.. ‘
been sought for to preserve and maintain Cubbon Park
extent as specified in the notiiioation dated 27.9.1933) njotto i it
allow any structures adjacent to Legislatrlirsl lflome”.and
Central Government organisation) _ L
2. The impugned notitication tvas*iissued.in supersession of
the notification dated 27.9.1953. ;_’Th’e..t:ioiificatit)it..dated 27.9.1983
was issued under theisame provisiens.:ln.}ngdificzatiVon of the earlier
Government these notifications
– purport to V)sp.ec_’rfy,..fbrt1_e._pdrposes et:$_e{‘:tion :3 of the Act,.lands
and building within ‘the::..I:in:its”elithe park known as Cubbon ‘Park
(renamed as iChamaraiendra.’l5ark). The situation and limits of
that pari§are.specified reference to the boundaries given in the
and substance, by the second notification of
was included within the limits of park and by
it the third no_tificati’on._(lmpugned notification) dated 30.7.1998, _a part
‘ ” thegsaldvatea was deleted. At this stage, it may be pointed out
it gititatithetevare two notifications of the same date. By the second,
‘ V’ dated 30.7.1998, the LRDE park area of about 17 acres
.f'(other than 1.75 acres), which was excluded) bv the first notification, ‘
was tagged onto the park. The net result of the two notifications
M i ‘V , \
-s
issued on 30.7.1998 including the impugned notification of the
same date is that nearly 30 acres has been deleted from the limits
of Sri. Chamarajendra Park Area. To be more specific, the areas.
deleted are those constituting the premises of Raj Bhavanfland
Legislators’ Home and a small portion of LRDE Premises-;;”* I
3. The Karnataka Government;
1975 is a short enactment with_.four secticns. reie’rtovi*».,’
Sections 3 and 4.
“Section 3: Application of-the A_.c:lt:«-f(1);’l_’hls Act
shall apply to all the lands. andgbuildingstvithin the
limits of. such llarks _jbelong’i_ng the State
Governifnerflpas the State G_over’nirien’t may, from
time.-its titnefley notifF:cation”–‘in’*’the._official Gazette,
it ‘A(2)t.5The.ttotif4,:a”tii§n referred to in sub-section
<(1)–. shall -~n'e'arly as possible. the
situation and'li.ifnits'of_sucn parks. .
, Section "i4:._Presevwation of Parks:- (1) It shall be
the duty of thestate Government to preserve and
. 3 maintain as horticultural gardens the parks to
T 1; "which"this– Act is applicable and take such action
' * " . "as'~:n_ayjbe" necessary to improve the utility of such
pari'-.'sj_as' such gardens. i
.. _(2) No land or building within the parks to
x T which this Act is applicable shall be alienated by
way of sale, lease, gift, exchange, mortgage or
5 otherwise or no licence for the use of any such
land or building shall be granted and any
alienation made or , licence granted in
contravention of this section shall be null and
void:
ea
9
Provided that the restriction under this sub-
section to lease shall not apply in the caseof
buildings existing on the date of coming into force
of this Act.”
4. Obviously, the said Act was enacted with the laudable
objective of providing parks and open spaces so as to create””‘* T’
healthy and eco-friendly atmosphere apart from T provldin§.VV V 1:./.11′
recreational facility to the public. The buildings ae’«_Hig_nf
Court, Vldhana Soudha, Legislators’ Home, Raj Tennis A’ V
Stadium etc., LRDE campus with sunoundirlg’.»areas’were
included in 1983 notification. in this~..a_rea_,°there’ji3Vi”Va.tradition’ai
park which is popularly known as ‘Cubbcn
developed as horticultural , la~ridscapre’_A _:’gardén’.’_j_e. it is’: common
ground that the objectofAct’:isI_Vept’~~to’toucl-i.__or affect the
existing buildings rcri–structuresI::and ideveioppairks in place of
those structures. it is = agreed”bygjall.-the::_ccunsel that the idea is to
preserve open spaceareund _these.:’:i’rnportant buildings. The
rhistoryVofeCubbéi:n’VPark whiichais said!-lo be the pride of the City and
a prirrie faciiityto thegresidents and tourists, has been narrated in
some ofltlle in the statement of objections tiled
Vlri–:’lllliP,No.32232/98′ by Government. The question before us.
V the__dimuriition of the area notified as an area withinthe
V by virtue of the impugned notification (first
Edated 30.7.1998 is violative of any of the provisions of
fije”af§rememioned act or any other statutory or constitutional
provisions such as Article 21 of the Constitution. There can be no
gm/’
10
gain saying that the impugned notification of 1998 was aimed at
facilitating two important constructions:
(I) an annexe building to the Legislators’ Honrgg; .. ._
(ii) construction of ground ‘level reservoir’.
premises forfacilitatlng supply of
According to the details fumlshed by learned g.§dxrocate,’vGlerreral..g –
appearing for the State, an extenbof about ‘shatter:-acre is needed
for construction of additional”””blecire”‘within the “premises of l
. Legislators’ Home includlingtlhel pr3p:osed’Vccnstruction adjoining the
quadrangle. Asifar. as the water reservoir’ is: concerned, as already
noted, 11$’ ‘required_fo_rithegsame. In the process of
constructions? liegls|ators?_:VHorne,..a.’5out 3_0 Ashoka trees have to
be and lnV”Vtfi¢.. construction of ground-level water
resewoir,4_someV”old”Atrees”_.numbering about 15, according to the
counsel for have to be cut. it is stated in the counter-
‘ lieu of the trees felled, more number of trees will be
‘around the place and it is stated that even after the
Aconstruction of the ground level water reservoir, the park area will
AA . be developed and nourished. The inevitable need for making such
is ‘ «.cor’rstructions is pointed out in the statement of objections and in
the course of arguments advanced by the learned Advocate
General. The Advocate General points out that the exclusion of the i
area is practically miniscule and it constitutes 3 to 4 percent of the
total area earlier notified and there willnot be further coverage of
fl.
11
open area for any purpose. The learned Advocate-General
stressed that the Government is conscious of preserving and
developing the Cubbon Park, leaving in tact as much openvare_-alas”
possible.
5. The arguments on the legal front bygthel counisel’, if if
V appearing for the petitioners are briefly statedithusz
The impugned notification “”otfends the ‘off the
Karnataka Government i975. It is
submitted that the Govemment the limits of the
Cubbon Park ar:ea._;i:n’:facti;iAal existence of such park,
has no power: to”ofitheV_area. it is submitted that
neither of flaefieneral Clauses Act can be
pressedivinto -thelland and building once notified.
it is the obligation of 4Government to develop the entire
{area as”‘norticultural garden and to improve its utility as ,
the-..area is notified, it cannot be taken away, that too,
A i”‘by”a.n% executive. Learned Counsel submit that the
Act”doesgnotsontemplate the diminution of any area notified as a
Section 3. It is commented that what is done by the
–impugned notification amounts to colourable exercise of power. it
at _,v_i_s§submitted that the exclusion is detrimental to the healthy
fig/fl
,
12
environment and results’ ln- further denudation of the park. The
notification is assailed as being ultra vires and repugnant to the
provisions of the Act. By issuing the impuned notification,gitgis
submitted that the State government has taken 11/)
decision alien to the purposes of the Act and without
the environmental needs of the City. Learnedicotinselptherefolre,
submitted that the notification is liable to baattuckaatéza
ground of violation of Articles 14 and 2.1′ of the %
proposed constructions should not be_pe,rmitted thereon. vliearned
counsel have drawn our attention to vamjsil decisions of the
supremeCourt,viz.,._ ‘
(i) BAN.GALertE’jaiviEDIC:AI; 3.35 MUDDAPPA AND
OTHERS (Ala 1991 sa.c.p1iao2)g. i
(ii) D.D.tvvAe.ANi2;.Q1HERs v; EGNHAZIABAD DEVELOPMENT
AiJ’rHoRiTv. _’G’l.-lAZlAB_AD_ AND ANOTHER (AIR 1993
ALl_AHABAD”597)_.’ A A A
(iii) M.C. ili1EljlTA.v._K’itllIi;-1L’.i’*lAil’H AND OTHERS (1997) 1 sec
‘ A-(iv) .iVl.l_.—al:E’;UlLDEl§S PVT. LTD., v. RADHEY SHYAM SAHU AND
_, (.1 999) 6 SCC 464.
ln.Vsu’pport:of_..theirvatgument that the parks which are’ essential for
_ Vhealfny envlratiment and recreation, cannot be allowed to be
degraded. A reference has been made to particular
rpassages wherein the Supreme Court adverted to and expounded
M,
-13
the environmental” principles, viz., precautionary principle,
sustainable development and Public Trust doctrine. One of the
learned counsel has also relied on the provisions of the”‘Mysore
Ancient and Historical Monuments and Archaeologicaliih’$ites’~;.’land
Remains Act), 1961 and the Forest Conservation M ”
the learned counsel, the provisionsof Thea siaidi fl1avej’.be’en P
violated by issuing the impugned notification} it Thex * 5
Karnataka Parks, Play-fields open i’spacesl_(Preservaiion and” V
Reguilation) Act, 1985 have alsc—-heen”infringed,– vacceiiding to the
learned counsel.
6. \[ve§’~are§j:ijLnable.«to ‘contentions of the learned
counsel We say that the Government
lacked the pee-er«a1e«.anerl’the limits of the parks so as to diminish
the areeonce within those limits as per the Parks
Preservation of 1§?5ivor that such power has been exercised
.1 it _a”rbi:itr:ariAly and inviolation of the fundamental rights guaranteed.
and 121 of the Constitution. The undisputed facts
in 1975 only the area West of Vidhana Veedhl (in
betvveei: Vidhana Soudha and High Court), North of Nrupathunga
” West of Kasturba Road and South of Queen”s Roadand
Rajbhavan was notified. It includes , the area in which the High
m
Court is situated and itialso includes the traditional Cubbon Park
area more particularly known as ‘Cubbon Park’. In the year
there was addition of much more area within the limits of parts:
included Vldhan Soudha, Rajbhavan.’ Legislators’ Hom.e?.Li§D;Ej: fit _
premises and park. By issuing the impugned Notifioation~_..in”~tl1eAV
year 1998, part of the additional area to tt1e.;tune..4off’vabeut._30: acres it as ‘
has been deleted, leaving the balaneeof about’24O
stands’ notified as park area. ‘The”deleted_’area, as-already
includes Rajbhavan, Legislators’~-Homelandla striper land to
an extent of 1.75 acres in LRDla’._ rThus, the area
deleted is the one surreuridingA__Raibhavan ~.L§§t§slators’ Home in
which the public”gerieraliy’3have–rio_’access-tothe parks or gardens %
maintained s~the.-ems, Gavernmegnteea obviously felt that the
wholesale hart on _.within the Rajbhavan and
Legislators’ Home should’t.be’«:liited having due regard to the
~ sharacteit, andntopography of the land. By the Notification of
enclosed . areas within the premises of Rajbhavan and
Lelgislatorsi the public in general have no access
V were ratherextravaganfly included within the limits of the park for . A
i W H K purposeof Government Parks (Preservation) Act, 1975, This
a__nor_nai’y* was rectified by issuing the Notification in 1998, deleting a
‘:’_4’part–of that area i.e., about 30 acres. As already noticed, the
apparent idea behind exclusion of this area falling within the
rm
premises of the said important buildings is to facilitate the
construction to the extent it is found absolutely necessary: If we
I take stock of the subsequent-events. it transpires ‘Ce:-‘-“ia_yss
House has been constructed in Rajbhavan to hold.publicf
with the permission of the Court. Construction hasvvalsotakeniaplace V’ r
covering an area to the extent of 6.390 as=an~ the
Legislators’ Home after obtaining..permission of
remains to be constructed accordiriig.:to the presentvlfplans, as stated
by the learned Advocate_C£ene:ral,;_covers. area of about 19,500
sq.ft. (approximately abouthalf acre)’. ‘ ‘balance or left out
area even . after of and lawns inside the
Leglslatoris.v.is”sai:d:’:’to ..bev:Aabog;t”‘75%. Then, we have the
areav’dear§mar!€ed for construction. of ground level water reservoir in _
LRDE3parkV «acres; It is stated by the learned
Advocateéeneral ‘,and’v_als6’iV the counsel appearing for BWSSB that
said area has”-been chosen particularly on the basis of the
‘ committee as it was found to be more suitable
” of view’ of level, etc. it appears that already’ a
groundllevel” water reservoir exists_ within that area forming part of
3 ‘L-RDE”iParl'<. Coming to theother side of the picture, about fifteen ' i
oldtrees have to be felled for the purpose of construction of GLW
if Reservoir and about 30 Ashoka trees have to be cut off in the
Legislators' Home premises. The open space to the extent of
M
" is r'écori:l'ed." ~ . g_
16
about ‘half an acre will be lost by reason of proposed completion of
. the construction at Legislators’ home. We are only referring. to
these subsequent events relating to proposed
constructions only to highlight that the notification K
‘ area from the park limits has not been used’ ‘asalever
to fill up substantial portion of the .area.__vvlthA. ‘constifiictions.” .
overall public interest, especially,..t:’g:th.e augmentation “drinking_ ‘V
water to the public has to be necessari’ly- keptgin view’;-.The drinking
water supply is as importar’1ti__f not_Vr§iore as preservation
of trees. A statement has on of the learned
Advocate General vvill be planted both in
LRDE vpareavasww illflornelpremises so that the loss
of.trees_ wouldglba-Vadequately”.compensated. He also states that
efforts will akengoaaalsaegiana maintain park in LRDE campus
ever; after the construction of GLW Reservoir. The said statement
V regard to the facts _adverted to above including the
subseuuent events, and taking a holistic and pragmatic view, we
areurnot persuaded to accept the contention that the decision to
i. ‘V: delete the extent of about 30 acres from the ambit of the notification
issued under the Karnataka Government Parks(Preservation )Act is
arbitrary nor can it be said to be an instance of colourable exercise
of power.– We cannot accept the extreme contention advanced by
the learned counsel for the petitioners that no part of the area once
notified can be deleted. We are unable to find any legal basishifor
the argument that the power under Section 21 of the ”
General Clauses Act cannot be invoked to vary altier ‘
notification by way of deletion or additionrvotarea. counsel
for the petitioners cited decisions reported
‘ and A.l.R. 1991 SC 1117 A to support:’tl1.eir’argurn’entii1 relvationsjto
Section 21 of General Clauses Actffiie “ratio-»of the said decisions
have absolutely no application The language
employed in section:”3.__1woi.{i_id’ V_froma:..Vsection 21 of the
Karnataka General.’__(§lauses’:_Act’, …lencis1fsupportV to the plea of the
State GoVe[nlfient”tit.gt Vpiiarefiisjjpugneqy nofificafion is within their
authorilyI;_ Se_ctioxn’l’limits of parks to be specified by the
. State Governrnent i’frorn”tirne’to”tinie”. The words connote that the
donee pfpower can exercise such power not once but as and when
V. iitlieyéoccasion dernandsl llll mlihe specification of limits of parks from
in addition or deletion but it cannot be
contended.th’at:the power under section 3 can be resorted to only in
caseof “addition, but not deletion; The contention that the
«I. of area once notified cannot be exercised by the Executive
1′ isvequaliy untenable and has no legalbasis.
W,
18
8. In the light of’ the factual scenario depicted above and
the interpretation of section 3, we cannot sustainthe contention of i
the learned counsel for the petitioners that the impugned
notification is’ ultra vires the power conferred to. the ~ V.
under section 3 of the Government Parks (Presewafion)_:Act’eor M
the power has been exercised arbitrari!y;AA” The ‘_n’otification_ _can–notx7;
be said to offend any environmental for
When once the deletion of the.sarea-isconsidered tougbez ‘arbitrary
_ or offensive of the provisions of VtheV:’Act;”git is n’ot-.opeh to the
petitioners to invoke Article an_cl§_:;that the impugned
Notification violatess’-the rightto envi’ronrt.-efint. The facts of
the case as adveneiclfgito _above wouldjjrevealffififffthat the Notification A
‘ does not__have ~ impinging on the
fundamental including the right to healthy environment
and recreation, ltisf not that certain area reserved for
development has been diverted for a different purpose
. if to the. provisions of the existing law “. The area specified to
:;._’be.}vittrinj:ihe park at one point of time has been deleted for
relevant which cannot be said to frustrate per se the
‘*..objects” ‘ithe Act. in this background, the decisions cited by the
tiearned’ counsel for the petitioners expounding various
‘ environmental principles for the promotion’ of healthy environment ‘
if and ecological balance do not have much of relevance and
lab”
19
therefore there is no need to advert to each of the decisions in
detail.
9. The learned Advocate General has contended..fthat-« V.
‘ section 4 (2) of the Government Parks (Presewafion)-«’:Act,jtheixe
no prohibition against constructions Tl7:e’iiprescriptiorp.cor:tained¥inVi’3
sub-section (2) of section 4, it is poin’tedi.~’.out, isin’
alienation by way of sale, lease. gifttjietct or againstyggrant.iofiicence ” A
for the use of such land or bulldingA.i.–lnV:the ‘instant case, itis pointed
out that no licence to useland_vE§a:s}s been.:’ggranted to any third
party. When oncefflrve impugraid it upheld, it is not
necessary to… ‘Vvvhether the ban on
constructions by in Section 4. A
1(i[l!lIe next’vturn’cur’*attention to other enactments referred
to by;ti:e_|earned_’cou”nsei. .Karnataka Parks, Play fields, and
A it .sp:ac’es”(Preservation and Regulation) Act, prohibits the use of
e.._p”ar_l<." _j-open spaces specified in the list published under'
sectiyon any purpose other than the purpose for which it
'*.,was on the date of the commencement of the Act. Section 7
Xiimlfiioses an obligation on the local authority tomaintain in a clean
A and proper condition the Parks, Play fields and Open spaces
'belonging or vested in it and included in the list published
M…
under Section 4 or. 5. Section 8 prohibits constructionof any
building or structurelikely to affect the utility of the ;vPark,’_~l?la§~’;_l5ield
or Open spaces specified in the list published ti.nd_é!. 4?’ at
The obligation of the owner of Parks
list published under Section ,4_ or but not vested inlvthevtlocaal
authority, is laid down under Section 9. ‘There Ti-s no ayerment or’
any material placed before usAthat’v..tiieVV’éie_letedéareatalls within the
ambit of Park oropen space inv–tiie:’ list: under section 4 or
5 of the Act, Thereforfeiwe need that further probe into this aspect.
«««« ~1 tot the it provisions of Mysore Ancient and
Historical a:td”‘Archeological Sites and Remains Rules
1965. “we lfindwit ditficult’_.»etoVaccept the contention of the learned
, that ~~thev’lanc:l which has been deleted by the impugned
is to be treated as an ancient monumentwithin the
mean’inp_c§f’Vsection 2 of the Act. Moreover, we have no material to
A “‘<4hoid_'"tiiat7"'it falls either under section 3 or section 4.. Section 3
x contemplates that certain ancient and historical monuments and
" larcheological sites have been declared under the provisions of
certain earlier Acts. Section 4 contemplates the Notification to be
issued by the Government. No such Notification has been brought
cm
to our notice. Section 5 proyides for acquisition of rights in a .
protected monument and the procedure by which it should be done'.
No such acquisition of right has been brought to surf"
Therefore, we find that the reference to the provisions-of the _
Act is rather misconceived.
12. Let us now see whether tl:e:’ForestvhéanseniationAct has
any application and the Notificationi’o1’feridsV’that Act. ‘ According to
section 2 of the Act, no State _Cfaoyerninent’A’cr authority shall
‘ make, except _prio>:r”approval Central Government,
any order directing soles: Lander portion thereof may
, be used do not think that the land
coverediby the hlofificaticnyisituated in the heart of the City is forest
land. There inothiniginithedecision cited by the learned counsel
for petitloners’reported’ in A.l.R. 1997 SC3297 which supports ‘
inthis redard. The attributes and characteristics of
forest by the’ Forest Conservation Act are utterly
– lacking inythe. instant case.
M’ .
22o
K
‘ A reference has also been made to Sec.2_.1 of the Karnataka
9
Town & Country Planning Act. We do not understand how the said
provision affects the validity of a notification issued under Sec.3,’of_ A
the Kamataka Government Parks (Preservation) Act,W jt ”
_ Whetherany construction has been or is being made in violation: ‘
the Zoning ‘Regulations and the use to whichthe to
to ortbdf any building regulations are violatedjs 7.?
issue” in these writ petitions. Thei*efore, the’argument:”sought.to I
be built up on the basis of Sec.21 or ‘_’gi7own_»& cmrygplannang
Act has to be rejected. V to A ‘P V
In view of the validitylof
thegimpugned and further decline to
grant thegreliet ~proposed constructiongflfor the
‘purpose of* ground ._level_ -water reservoir and «extension of
Legislators Home; V.
V : An. a,o:prehe:nsion has been expressed by the learned
coun7eel”%tor ‘1.petitioners that in future, there could be further
‘notifications{deleting some_ more areas P and resorting to
I constructions over such areas and in course of time there is every
_ *–Atlikel’_i€hood of the’Cubbon Park area being diluted. ltis submitted
/mg
that the preservation of lung space in a busy city and-
maintenance of parks is essential for the health and recreation of
the public and there is no guarantee that the Government will
not resort to a subterfuge to overcome the provisions of the
Government Parks (Preservation) Act. Sharing the concern ol’~–._
the Petitioners for preservation of as much open space”as”g*«._f:._’
possible and the need to develop _the parks, we direct__that P.
. further constructions (other than those referred to ‘.¢_.l_.!.{_)l_;3’_).xVSi’A–‘l:all.._
be made covering the open area within thebligmits of
specified under the Notification of 199£_witnput iiobtaiiiiiiig :ne t.lj
clearance fromflproceedlng with g 5cc~nstructiona. ,._ 2
The Writ Petitions are dismissed ‘subject to-. above
direction. No costs. ‘ V ‘ . it
The Legal Services Authorityfat*whesei~-reduetst; the learned
Counsel Mr.Gopai Hegde..has appeared’, ‘”a sum of .
Rs.5′,0O0/- as fee to him oet-“(if the fun'[cls’;cf::theV .Authoritv.
if x W .
K.
P.N.g: lviarkllaiVcopy”of’vth’is Order to the Commissioner,Bangalore
1g’Mahanaga~ra’h-Pali”keT’_~and'”the Bangalore Development Authority
also.
By Order
fig
._(_3_J__ 65 NKPJ
4:
W..P.32232/1998
25-11-2005 . T ‘ T 7
T ‘ ORDER ON _I.A.NO.lI2005 ‘
By order dated 1d~8§200I this Court disposed of a _
petihons filed by way of puhlic interest litigations upholdiintjthe
of. the nofification dated 30th” Julny 1998′ issued’: of .
Karnataka $§;€Qi13iiBg the limits of Cubbon ‘ 3
had expressed their apprehension I .~fLi;I’£er’_’ ‘ dd
notifications. iesued by the Government to .A
d T-more areas from’.the’C11bbon over such a
“areas in’ the course of itself may get
diluted. The shared the “concern
‘_ of the petitionersvnforv Qfieh spaceas .posg,jb1¢ -and.
– the need to detveiop that no further constzuctions ‘ 1
. ‘shall’- be made the limits of ‘ the park T
specifieddin 1998 Without obtaining the clearance _ T
‘ I 1:; dixeetione issued .133} this Ciourt, the State.-‘
ddeévemment has 2005 seeI<ing';ieImis$io11 of the Court ' to
' two I Reeepfion Counters outside the limits of the park as
d Reception Counters near. Axnbedltar Statue andDevaraj
H V U13" Statue? the limits of the park bo1_1ndar.ies.- These Reception _
1 according to' the State Government, are 'necessary for the
of Vidhana Soudha and Vikasa Soudha azeas. It is stated that
an
the area whom Vidhana Soudha and Vikasa 'Soudha' ' located ie a
1:
‘high securitfir fisharea which __neet1s special j;)’rotectio1_1va?.r’1:.¢:i’;sec’11r:it;3r and
that in recent tjm_es, and militant 10:11 the
tncreetse and therefore the StafC_ ‘ Geverhméfli,
Iestricfions
_deeided_ to adcqfiately aproteet it f aaraa.-3’ _
– smlfiunttfilg Vidhana’ so1_1dha has been
‘made to .penriis’siorL:’to_: F’eeeptioh”Cot1nters. . , ‘ ‘ ‘
‘ .Wheh- the – _ hearing befoIe; us. ext ‘
.2ts.–10-2005, the.V1eéH=n§ed filed a memo stating that
hthne jmatter _.for Raj ]3havan’ “High T
of the Gpverrlrhent.
and _cha1r.b:er_ of the _c_:};.ie’r on. _. T
October decindeds in j to sfienfimen the T’
adequately in regard to ‘High Raj ‘I
Bhavan _Vas_wei1,_ It may be mehfioned that the High Court also.
Atiogatgatt adjoining Vidhafia Soudhal and viggasa _S_oudha-amill
M V _ theréfore..__it: was necessary “to make provisions for its Tseeuuritjr. It was .
h 5’ ” Jpoitltedh to the Court that–the Commissioner of Poliee would stiggest ‘
h T; measures for the bilildihgs incI’udi1’1gthe High Court after .A
.Qor1suh:;ing the Registrar General. a we then directed the Police
filommissioner to gilace beftjire the a co prehensive pmposal :i11
1;» 11~.o,..s_.;e.u:».:t;. aw>a»~g.<u«'n–«'t.:. 'ls '/Le 4% 76h… ;z..cf:.w. A5"i9.pg
regard befp1e_ permission could be granted to the State
I Government to rnake adequate security anarlgements in terms of the ..
J prayer made in the application. IJ'
. 'A.V_,¢%§.\k"'
' 3
__ In pursuance to the arm-said dixecfién isSue{1'b3f _V 1_;he_
Plincipal Séclttaiy, Hollie, conveiried,a_J11c:=;ti1_1g of Vdiflbnmnt
T' .Dcfiar't1nc;1ts inclundilrlg ihg Additional %o:%Lp§;;¢.; T
I _ some decisions -therein. copy of 't13gé
'M…S. a'11w2rV’c’:x’%e:Vr:,.vvv__;;;A.e:1:’i«:e it cllcarnn that tile State’.(.}ov¢=Lmn.1_ent will pot
flirther const1’ucti_6n cjthér than what is afisoiumly
_ of Rcccfition Coufiterg for up?”
V’ ; the fénce the High Cbuit bufldjfig aiong wiih the pmposedgatcs’.
Chief} Kusstice %% _ A Sd/' " Shh/~ I ' Judge been 'placed on the _'Iec',;oI'id" alongliwifh 4t'_.'ac '1.'«,1'you1.; of the _
HaVi_11’g.-pér’us_ed’ the. as the layout’ plan the _ “T I
by the St’:-ate ythe-T “T
2 Recépfion—–eeu§it¢}s’ a1§o._Vsi£uu1:g=qieous1y _iinp1emc1;t the layout plan % %