Shri Bimal
N. Desai Vs. State of Karnataka & Ors [2003] Insc 252 (25 April 2003)
Shivaraj
V. Patil & Arijit Pasayat.
(Arising
out of S.L.P. (C) No. 3690 of 2002 SHIVARAJ V. PATIL J.
Leave
granted.
The
appellant in this appeal has questioned the validity and correctness of the
order dated 13.8.2001 passed by the High Court of Karnataka in Writ Petition
No. 19541 of 1999.
Few
writ petitions were filed purporting to serve public interest. The High Court
disposed of those writ petitions by the common order. One of the writ petitions
No. 19541 of 1999 had been filed by the appellant. The Notification dated
30.7.1998 issued in exercise of power under sub-sections (1) and (2) of Section
3 of the Karnataka Government Parks (Preservation) Act, 1975 (for brevity `the
Act') was under challenge in the said writ petitions; directions also had 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 adjoining
Legislators' Home and LRDE ( a Central Govt. organization). The Act is a short
one containing 4 Sections. Relevant Section for the purpose having bearing on
the controversy is Section 3 which reads:- "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 park."
The
laudable object of the Act was obviously to preserve parks in open spaces to
create and maintain healthy and eco-friendly atmosphere in addition to
providing recreational facilities to the public. A Notification dated 27.9.1983
had been issued under the Act in modification of the earlier Govt. Notification
dated 13.9.1975. In the said Notification of 1983, the buildings such as High
Court, Vidhan Soudha, Legislators' Home, Raj Bhawan, Tennis Stadium, LRDE
Campus etc. with surrounding areas were included. The famous "Cubbon Park" comes within the said area. The said park is a very
old park which has been developed as horticultural landscape and garden. There
was no dispute between the parties that the object of the Act is not to touch
or affect the existing buildings or structures and to preserve open space
around these important buildings. The question that came up for consideration
in the writ petitions before the High Court was whether the diminution of the
area notified in 1983 by virtue of the impugned Notification of 1998 was violative
of the provisions of the Act or any other statutory or constitutional
provisions such as Article 21 of the Constitution. From the Notification of
1998, it was clear that it was intended to facilitate two important
constructions, namely (i) Annexe building to the Legislators' Home and (ii)
construction of ground level reservoir in NRDE premises for facilitating supply
of water. It is stated that an extent of about half an acre is needed for
construction of additional block within the premises of Legislators' Home and
an area of 1.75 acres is required for the water reservoir. If these
constructions are to be taken up, 30 Ashoka trees and 15 old trees are required
to be removed. In the counter affidavit, it is specifically stated that in view
of the trees to be cut and removed, more number of trees will be planted in and
around the place and even after construction of ground level water reservoir,
the park area will be developed and nourished. In the Statement of Objections
and in the course of the arguments advanced by the learned Advocate General
before the High Court, it is pointed out that these constructions are
inevitable and needed. It was further pointed out that the exclusion of the
area from the notified area constitutes only 3 to 4 per cent of the total area
notified earlier and that there would be no further coverage of open area for
any purpose. It was also submitted by the learned Advocate General that the
State Govt. was conscious of preserving and developing the Cubbon Park, leaving intact as much open as possible.
On
behalf of the writ petitioners, it was urged that the impugned Notification
offended the provisions of the Act; Govt. having notified the limits of the Cubbon Park, factually recognizing existence of such park, had no power
to exclude any portion of the area;
neither
under Section 3 of the Act nor under Section 21 of the General Clauses Act, any
area could be deleted once it had been notified; exclusion of such area is
detrimental to the healthy environment and results in reduction of the park
area; the decision of the State Govt. in issuing the impugned notification was
arbitrary and was in disregard to the environmental needs of the city. The
submission was that the impugned Notification was liable to be struck down on
the ground that it violated Articles 14 and 21 of the Constitution and that the
proposed constructions should not be permitted.
The
learned counsel appearing for the respective parties before us in their
arguments reiterated the above submissions that were made before the High
Court.
As is
evident from the impugned judgment, the High Court after considering the
submissions made on behalf of the parties referring to the various decisions of
this Court cited and having due regard to the facts and circumstances of the
case, taking a holistic and pragmatic view, declined to quash the impugned
Notification. The High Court upheld the validity of the same and refused to
stop the proposed two constructions. However, sharing apprehensions expressed
on behalf of the writ petitioners that there could be further notifications
deleting some more areas and resorting to constructions over such areas
reducing the Cubbon Park area, directed that no further constructions other
than the two mentioned above shall be made covering the open area within the
limits of the Park specified in the impugned Notification without obtaining the
clearance from the High Court for proceeding with the fresh constructions.
It is
clear from the Statement of Objects and Reasons of the Act that it was enacted
with a view to preserve and maintain certain Government parks in the State of Karnataka as horticultural gardens and to
improve their utility as such parks. It is proposed to prohibit alienation of
any portion of land or building with such parks. The Preamble of the Act reads:-
"An Act to make provision to ensure the preservation of certain government
parks in the State of Karnataka.
Whereas
it is expedient in public interest to preserve certain parks vested in the
State Government in the State of Karnataka.
Be it
enacted by the Karnataka State Legislature in the Twenty-sixth Year of the Republic of India as follows." The title of the Act is "The
Karnataka Government Parks (Preservation) Act, 1975". Under Section 4 of
the Act, 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 to take
such action as may be necessary to improve the utility of such parks as such
gardens. Sub-section (2) of Section 4 reads:- "(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."
It is clear from sub-section (2) extracted above that there is an injunction
restraining alienation of land or building within the parks and issuing licence
for the use of any such land for use in contravention of the said Section. It
is also made clear that any alienation made or licence granted in contravention
of the said Section shall be null and void.
In
view of these clear statutory provisions made in the Act itself, we find some
force in the submissions advanced on behalf of the appellant. Under the
circumstances, although we are not inclined to disturb the impugned judgment
and order, in the given facts and circumstances of the case, we think it is
appropriate to keep the questions of law open.
Whether
the diminution of the area notified as an area within the limits of the Park is
violative of any of the provisions of the Act or any other statutory or
constitutional provisions; whether neither Section 3 of the Act nor Section 21
of the General Clauses Act can be pressed into service for deleting the land
and building once notified to defeat the very purpose and object of the Act of
preserving open space and whether issuing of notification to diminish the
preserved area will be ultra vires of the provisions of the Act when the
laudable object of the Act is to preserve parks in open spaces to create and
maintain healthy and eco- friendly atmosphere, in our view, require to be left
open. We have reservations in accepting the views of the High Court expressed
in this regard in the impugned judgment. Since we are not inclined to interfere
with the impugned judgment and order of the High Court, we do not propose to
examine these questions in this appeal any further.
In the
result, for the reasons stated above, while declining to interfere with the
impugned judgment and order, we leave the questions of law open to be decided
as and when occasion arises in future. The appeal is disposed of accordingly in
the above terms. No costs.
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