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Karnataka High Court · body

2001 DIGILAW 635 (KAR)

G. K. GOVINDA RAO v. STATE OF KARNATAKA

2001-08-13

N.K.PATIL, P.VENKATARAMA REDDI

body2001
REDDI, J. ( 1 ) THESE writ petitions are filed by way of public interest litigation. Writ petition No. 32232/98 has been taken up suo motu by this court on the basis of the letter sent by Sri g. k. govinda rao who is a resident of jayanagar, Bangalore. The other writ petitions are filed as pils by various other persons. In all these writ petitions the notification dated 30. 7. 1998 issued in purported exercise of power under sub-section (1) and (2) of Section 3 of Karnataka government parks (preservation) Act, 1975 (hereinafter referred to as 'the act') has been questioned. Directions have also been sought for to preserve and maintain cubbon park to the full extent as specified in the notification dated 27. 9. 1983 and not to allow any structures adjacent to legislators' home and lrde (a central government organisation) ( 2 ) THE impugned notification was issued in supersession of thenotification dated 27. 9. 1983. The notification dated 27. 9. 1983 was issued under the same Provisions in modification of the earlier government notification dated 30. 9. 1975. All these notifications purport to specify, for the purposes of Section 3 of the Act, lands and building within the limits of the park known as cubbon park (renamed as sri. Chamarajendra park ). The situation and limits of that park are specified with reference to the boundaries given in the schedule. In sum and substance, by the second notification of 1983, additional area was included within the limits of park and by the third notification (impugned notification) dated 30. 7. 1998, a part of the said area was deleted. At this stage, it may be pointed out that there are two notifications of the same date. By the second notification dated 30. 7. 1998, the lrde park area of about 17 acres (other than 1. 75 acres), which was excluded by the first notification, was tagged onto the park. The net result of the two notifications 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 bhavan and legislators' home and a small portion of lrde premises. ( 3 ) THE Karnataka government parks (preservation) Act, 1975 isa short enactment with four sections. To be more specific, the areas deleted are those constituting the premises of RAJ bhavan and legislators' home and a small portion of lrde premises. ( 3 ) THE Karnataka government parks (preservation) Act, 1975 isa short enactment with four sections. Let us refer to sections 3 and 4. "section 3: application of the act:- (1) this act shall apply to all the lands and buildings within the limits of such parks belonging to the state government as the state government May, from time to time, by notification in the official gazette, specify. (2) the notification referred to in sub-section (1) shall specify as nearly as possible, the situation and limits of such parks. Section 4: preservation of parks:- (1) it shall be the duty of the state government to preserve and maintain as horticultural gardens the parks to which this act is applicable and take such action as may be necessary to improve the utility of such parks as such gardens. (2) no land or building within the parks to which this act is applicable shall be alienated by way of sale, lease, gift, exchange, mortgage or 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: provided that the restriction under this sub-section to lease shall not apply in the case of buildings existing on the date of coming into force of this act. " ( 4 ) OBVIOUSLY, the said act was enacted with the laudable objectiveof providing parks and open spaces so as to create healthy and eco-friendly atmosphere apart from providing recreational facility to the public. The buildings such as high court, vidhana soudha, legislators' home, RAJ bhavan, tennis stadium etc. , lrde campus with surrounding areas were all included in 1983 notification. In this area, there is a traditional park which is popularly known as 'cubbon park' which has been developed as horticultural landscape and garden. It is common ground that the object of the act is not to touch or affect the existing buildings or structures and to develop parks in place of those structures. It is agreed by all the counsel that the idea is to preserve open space around these important buildings. It is common ground that the object of the act is not to touch or affect the existing buildings or structures and to develop parks in place of those structures. It is agreed by all the counsel that the idea is to preserve open space around these important buildings. The history of cubbon park which is said to be the pride of the city and a prime facility to the residents and tourists, has been narrated in some of the writ petitions and in the statement of objections filed in w. p. no. 32232/98 by the government. The question before us is whether the dimunition of the area notified as an area within the limits of the park by virtue of the impugned notification (first notification) dated 30. 7. 1998 is violative of any of the Provisions of the aforementioned act or any other statutory or constitutional Provisions such as article 21 of the constitution. There can be no gain saying that the impugned notification of 1998 was aimed at facilitating two important construction. (i) an annexe building to the legislators home; and (ii) construction of ground level reservoir in lrde premises for facilitating supply of drinking water. According to the details furnished by the learned Advocate general appearing for the state, an extent of about half-an-acre is needed for construction of additional block within the premises of legislators' home including the proposed construction adjoining the quadrangle. As far as the water reservoir is concerned, as already noted, 1. 75 acres is required for the same, in the process of construction of legislators home, about 30 ashoka trees have to be cut and in the process of construction of ground-level water reservoir, some old trees numbering about 15, according to the counsel for bwssb have to be cut. It is stated in the counter affidavit that in lieu of the trees felled, more number of trees will be plated in and around the place and it is stated that even after the construction of the ground level water reservoir, the park area will be developed and nourished . The inevitable need for making such constructions is pointed out in the statement of objections and in the course of arguments^advanced by the learned Advocate general. The inevitable need for making such constructions 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 area is practically miniscule and it constitutes 3 to 4 percent of the total area earlier notified and there will not be further coverage of 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 open area as possible. ( 5 ) THE arguments on the legal front by the learned counselappearing for the petitioners are briefly stated thus: the impugned notification offends the Provisions of the Karnataka government parks (preservation) Act, 1975. It is submitted that the government having notified the limits of the cubbon park area, in factual recognition of existence of such park, has no power to exclude any portion of the area. It is submitted that neither Section 3 nor Section 21 of the General Clauses Act can be pressed into service for deleting the land and building once notified. It is the obligation of the state government to develop the entire notified area as horticultural garden and to improve its utility as park. Once the area is notified, it cannot be taken away, that too, by an order issued by executive. Learned counsel submit that the act does not contemplate the diminution of any area notified as a park under Section 3. It is commented that what is done by the impugned notification amounts to colourable exercise of power. It is submitted that the exclusion is detrimental to the healthy environment and results in further. Denudation of the park. The notification is assailed as being ultra vires and repugnant to the Provisions of the act. By issuing the impugned notification, it is submitted that the state government has taken an arbitrary decision alien to the purposes of the act and without due regard to the environmental needs of the city, learned counsel, therefore, submitted that the notification is liable to be struck down on the ground of violation of articles 14 and 21 of the Constitution and the proposed constructions should not be permitted thereon. Learned counsel have drawn our attention to various decisions of the Supreme Court, viz. , (i) Bangalore Medical Trust VS. Learned counsel have drawn our attention to various decisions of the Supreme Court, viz. , (i) Bangalore Medical Trust VS. B. S. Muddappa and others (ii) D. D. Was and others VS. Ghaziabad Development Authority, Ghaziabad and another (iii) M. C. Mehta VS. Kamal Nath and others (iv) M. I. Builders Pvt. Ltd. , VS. Radhey Shyam Sahu and others in support of their argument that the parks which are essential for healthy environment and recreation, cannot be allowed to be dwindled or degraded. A reference has been made to particular passages wherein the Supreme Court adverted to and expounded the environmental principles, viz. , procautionary 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 archaeological sites and remains Act, 1961 and the forest conservation acti according to the learned counsel, the Provisions of the said act have been violated by issuing the impugned notification. The Provisions of the Karnataka parks, play-fields and open spaces (preservation and regulation) Act, 1985 have also been infringed, according to the learned counsel. ( 6 ) WE are unable to accept the contentions of the learnedcounsel for the petitioners. We cannot say that the government lacked the power to alter the limits of the parks so as to diminish the area once notified to be within those limits as per the parks preservation act of 1975 or that such power has been exercised arbitrarily and in violation of the fundamental rights guaranteed under article 14 and 21 of the constitution. The undisputed facts reveal that in 1975 only the area west of vidhana veedhi (in between vidhana soudha and high court), north of nrupathunga road, west of kasturba road and south of queen's road and rajbhavan was notified. It includes the area in which the high court is situated and it also includes the traditional cubbon park area more particularly known as 'cubbon park'. In the year 1983, there was addition of much more area within the limits of park. It included vidhana soudha, rajbhavan, legislators' home, lrde premises and park. By issuing the impugned notification in the year 1998, part of the additional area to the tune of about 30 acres has been deleted, leaving the balance of about 240 acres which stands notified as park area. It included vidhana soudha, rajbhavan, legislators' home, lrde premises and park. By issuing the impugned notification in the year 1998, part of the additional area to the tune of about 30 acres has been deleted, leaving the balance of about 240 acres which stands notified as park area. The deleted area, as already noted, includes rajbhavan, legislators' home and a small strip of land to an extent of 1. 75 acres in lrde building campus. Thus, the area deleted in the one surrounding rajbhavan and legislators' home in which the public generally have no access to the parks or gardens maintained therein. The government obviously felt that the whole sale ban on constructions within the rajbhavan and legislators' home should be lifted having due regard to the character, user and topography of the land. By the notification of 1983, the enclosed areas within the premises of rajbhavan and legislators' home to which the public in general have no access were rather extravagantly included- within the limits of the park for the purpose of government parks (preservation) Act, 1975, this anomaly was rectified by issuing the notification in 1988, deleting a part of that area i. e. , about 30 acres. As already noticed, the apparent idea behind exclusion of this area falling within the premises of the said important buildings is to facilitate the construction to the extent it is found absolutely necessary. If we take stock of the subsequent events, it transpires that a glass house has been constructed in rajbhavan to hold public functions, with the permission of the court. Construction has also taken place covering an area to the extent of 6,300 sq. ft. As an annexe to the legislators' home after obtaining permission of the court. What remains to be constructed according to the present plans, as stated by the learned Advocate general, covers an area of about 19,500 sq. ft. (approximately about half an acre ). The balance or left out area even after the construction of parks and lawns inside the legislator's home is said to be about 75%. Then, we have the area ear-marked for construction of ground level water reservoir in lrde park covering 1. 75 acres. ft. (approximately about half an acre ). The balance or left out area even after the construction of parks and lawns inside the legislator's home is said to be about 75%. Then, we have the area ear-marked for construction of ground level water reservoir in lrde park covering 1. 75 acres. It is stated by the learned Advocate general and also the counsel appearing for bwssb that the said area has been chosen particularly on the basis of the reports of expert committee as it was found to be more suitable from the point of view of level, etc. It appears that already a ground level water reservoir exists within that area forming part of lrde park. Coming to the other side of the picture, about fifteen old trees have to be felled for the purpose of construction of glw reservoir and about 30 ashoka trees have to be cut off in the legislators' home premises. The open space to the extent of 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 or completed constructions only to highlight that the notification deleting certain area from the park limits has not been used as a lever by the state to fill up substantial portion of the area with constructions. The overall public interest, especially, the augmentation of drinking water to the public has to be necessarily kept in view. The drinking water supply is as important if not more important as preservation of trees. A statement has been made on behalf of the learned Advocate general that more number of trees will be planted both in lrde area as well as legislators' home premises so that the loss of trees would be adequately compensated. He also states that efforts will be taken to develop and maintain park in lrde campus even after the construction of glw reservoir. The said statement is recorded. He also states that efforts will be taken to develop and maintain park in lrde campus even after the construction of glw reservoir. The said statement is recorded. ( 7 ) HAVING regard to the facts adverted to above including thesubsequent events, and taking a holistic and pragmatic view, we are not persuaded to accept the contention that the decision to 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 basis for the argument that the power under Section 21 of the Karnataka General Clauses Act cannot be invoked to vary or alter the notification by way of deletion or addition of area. Learned counsel for the petitioners cited decisions reported in AIR 1976 SC 714 and AIR 1991 SC 1117 to support their argument in relation to Section 21 of General Clauses Act. The ratio of the said decisions have absolutely no application in the present case. The language employed in Section 3 would itself, apart from Section 21 of the Karnataka General Clauses Act, lends support to the plea of the state government that the impugned notification is within their authority. Section 3 speaks of limits of parks to be specified by the state government "from time to time". The words connote that the donee of power can exercise such power not once but as and when the occasion demands. The specification of limits of parks from time to time may result in addition or deletion but it cannot be contended that the power under Section 3 can be resorted to only in the case of addition, but not deletion. The contention that the deletion of area once notified cannot be exercised by the executive is equally untenable and has no legal basis. The contention that the deletion of area once notified cannot be exercised by the executive is equally untenable and has no legal basis. ( 8 ) IN the light of the factual scenario depicted above and theinterpretation of Section 3, we cannot sustain the contention of the learned counsel for the petitioners that the impugned notification is ultra vim" the power conferred to the government under Section 3 of the government parks (preservation) act or that the power has been exercised arbitrarily. The notification cannot be said to offend any environmental principles or imperatives. When once the deletion of the area is considered to be not arbitrary or offensive of the Provisions of the Act, it is not open to the petitioners to invoke article 21 and contend that the impugned notification violates the right to healthy environment. The facts of the case as adverted to above would reveal that the notification does not have the effect of substantially impinging on the fundamental right to lie, including the right to healthy environment and recreation. It is not the case that certain area reserved for development as part has been diverted for a different purpose contrary to the Provisions of the existing law. The area specified to be within the limits of part at one point of time has been deleted for relevant reasons which cannot be said to frustrate per se the objects of the act. In this background, the decisions cited by the learned counsel for the petitioners expounding various environmental principles for the promotion of healthy environment and ecological balance do not have much of relevance and therefore there is no need to advert to each of the decisions in detail. ( 9 ) THE learned Advocate general has contended that undersection 4 (2) of the government parks (preservation) Act, there is no prohibition against constructions. The prescription contained in sub-section (2) of Section 4, it is pointed out, is in respect of alienation by way of sale, lease, gift, etc. Or against grant of licence for the use o! Such land or building. In the instant case, it is pointed out that no licence to use the land has been granted to any third party. When once the impugned notification is upheld, it is not necessary to examine the question whether the ban on constructions by the government is implied in Section 4. Such land or building. In the instant case, it is pointed out that no licence to use the land has been granted to any third party. When once the impugned notification is upheld, it is not necessary to examine the question whether the ban on constructions by the government is implied in Section 4. ( 10 ) WE next turn our attention to other enactments referred toby the learned counsel. The Karnataka parks, play fields and open spaces (preservation and regulation) Act, prohibits the use of park, play fields or open spaces specified in the list published under Section 4 or 5 for any purpose other than the purpose for which it was used on the date of the commencement of the act. Section 7 imposes an obligation on the local authority to maintain in a clean and proper condition the parks, play fields and open spaces belonging or vested in it and included in the list published under suction 4 or 5. Section 8 prohibits construction of any building or structure likely to affect the utility of the park, play field or open spaces specified in the, list published under Section 4 or 5. The obligation of the owner of parks and play fields included in the list published under Section 4 or 5, but not vested in the local authority, is laid down under Section 9. There is no averment or any material placed before us that the deleted area falls within the ambit of park or open space in the list published under Section 4 or 5 of the act. Therefore, we need not further probe into this aspect. ( 11 ) COMING to the Provisions of Mysore ancient and historicalmonuments and archeological sites and remains rules 1965, we find it difficult to accept the contention of the learned counsel that the fand which has been deleted by the impugned notification is to be treated as an ancient monument within the meaning of Section 2 of the act. Moreover, we have no material to hold that it falls either under Section 3 or Section 4. Section 3 contemplates that certain ancient and historical monuments and archeological 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 to our notice. Moreover, we have no material to hold that it falls either under Section 3 or Section 4. Section 3 contemplates that certain ancient and historical monuments and archeological 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 to our notice. Section 5 provides for acquisition of rights in a protected monuments and the procedure by which it should be done. No such acquisition of right has been brought to our notice. Therefore, we find that the reference to the Provisions of the said act is rather misconceived. ( 12 ) LET us now see whether the forest conservation act hasany application and the notification offends that act. According to Section 2 of the Act, no state government or other authority shall make, except with the prior approval of the central government, any order directing that any forest land or any portion thereof may be used for any non forest purpose. We do not think that the land covered by the notification situated in the heart of the city if forest land. There is nothing in the decision cited by the learned counsel for the petitioners reported in AIR 1997 SC 3297 which supports his contention in this regard. The attributes and characteristics of forest land covered by the forest conservation act are utterly lacking in the instant case. A reference has also been made to Section 21 of the Karnataka town and country planning act. We do not understand how the said provision affects the validity of a notification issued under Section 3 of the Karnataka government parks (preservation) Act, 1975. Whether any construction has been or is being made in violation of the zoning regulations and the use to which the land could be put to or any building regulations are violated, is not in issue in these writ petitions. Therefore, the argument sought to be built up on the basis of Section 21 of the town and country planning act has to be rejected. In view of the foregoing discussion, we uphold the validity of the impugned notification dated 30. 7. 1998 and further decline to grant the relief of stopping the proposed constructions for the purpose of ground level water reservoir and the extension of legislators home. In view of the foregoing discussion, we uphold the validity of the impugned notification dated 30. 7. 1998 and further decline to grant the relief of stopping the proposed constructions for the purpose of ground level water reservoir and the extension of legislators home. An apprehension has been expressed by the learned counsel for the petitioners that in future, there could be further notifications deleting some more areas and resorting to constructions over such areas and in course of time there is every likelihood of the cubbon park area being diluted. It is submitted 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 of the petitioners for preservation of as much open space as possible and the need to develop the parks, we direct that no further constructions (other than those referred to supra) shall be made covering the open area within the limits of the park specified under the notification of 1998 without obtaining the clearance from this court for proceeding with fresh constructions. The writ petitions are dismissed subject to the above direction. No costs. The legal services authority, at whose request, the learned counsel Mr. Gopal hegde has appeared, shall pay a sum of Rs. 5,000/- as fee to him out of the funds of the authority. --- *** --- .