IN THE HIGH COURT OF KARNATAKA AT BANGALORE

I. A. No. in

W. P. No. 32232/98 (RES PIL GM)

Between:

G. K. Govinda Rao
161, 36 A Cross
Jayanagar 7^th Block
Bangalore 560 082 ………..Petitioner

And:

State of Karnataka

Vidhana Soudha

Bangalore 560 001

Represented by its Chief Secretary ……….Respondent

Environment Support Group
36, Reservoir Road
Basavanagudi
Bangalore 560 004
Represented by its Co-ordinator
Mr. Leo F. Saldanha …………Impleading Applicant

Application under Order I Rule 10 of CPC r/w Article 226 of the Constitution of India

Applicant above named states as follows:

1 The Impleading Applicant is a Public Interest non-profit voluntary organisation registered as a Trust. It is integrally involved with various progressive research initiatives with national and international organisations. It is consultant with the United Nations Economic and Social Commission for Asia and the Pacific (UN ESCAP) and the National Law School of India University on issues related to environmental law and policy. It has enabled various local communities in their Public Interest Litigation for environmental justice.

2 The Impleading Applicant is integrally involved in the ongoing “Save Cubbon Park Campaign”. It took a leading role in coordinating the collective effort of various people’s groups and thousands of individuals from all over Bangalore and the State, that spontaneously emerged in order to save Cubbon Park. It continues its initiative to broad base the efforts of the Campaign to include issues of wider concern to Bangalore. This includes raising the consciousness of all concerned to the extremely adverse implications that can befall the quality of life in the city should there be any lapse in adhering to sound principles of urban planning and design and the exhaustive provisions laid down in law in this regard.

3 In view of the above, the Impleading Applicant respectfully submits to this Honourable Court as follows:

Facts of the Impleading Application:

4 On 30 July 1998, the Government of Karnataka vide its notification No. AHD 138 HGM 97 (1) specified new boundaries to Shri Jayachamarajendra Park (popularly known as Cubbon Park). By this notification, the Government of Karnataka removed an approximate area of 46 acres from the legal limits of Cubbon Park. A true copy of this notification is enclosed as Annexure A.

5 In its suo moto action with regard to the conservation of Cubbon Park, the Honourable High Court of Karnataka has stayed the operation of the aforesaid Notification by its order dated 02 November 1998, keeping in view various representations made by citizens, including the Petitioner.

6 The Impleading Applicant wishes to draw the attention of the Honourable Court to certain statements made in this regard by the Honourable Minister for Law and Parliamentary Affairs of the Government of Karnataka, Mr. M. C. Nanaiah. In view of the massive protests from citizens from all walks of life against the Government’s decision to de-notify a part of Cubbon Park, Mr. M.C. Nanaiah has gone on record, repeatedly in the print media, to state that the “effective Cubbon Park” has not been touched. In a special live phone-in programme - “Hello Akashavani” - broadcast on All India Radio on 15 October 1998, he persisted in his efforts to clarify “misgivings” amongst the public about the Government’s intentions, by stating as follows:

"17.04 acres from the musical fountain (formerly LRDE/ADE/Defence area) has been made into a separate park. 17 acres of the Raj Bhavan has been brought under the care of the Governor. How can you call that (Raj Bhavan) Cubbon Park when you cannot walk in that area? 10.24 acres of the Legislators home is buildings and shops. 1.76 acres of the rock garden, has remained a garden. Where is the violation? I repeat, not a single inch of Cubbon Park has shrunk."

7 The Impleading Applicant respectfully submits to this Honourable Court that such a statement emerging from the High Office of the Law Minister of Karnataka is in fundamental violation of significant provisions of various laws protecting Public Parks and Urban Land Use and Planning.

8 The Karnataka Government Parks (Preservation) Act of 1975 was an “Act to make provision to ensure the preservation of certain Government Parks in the State of Karnataka”. Various sections of this Act clearly amplifies the signal role of the Government not only in according protection and maintenance of the Parks, but also in ensuring that no violations shall take place especially in the form of buildings. A photocopy of the said legislation is annexed at Annexure B.

Sec 3 (1) of the Act states that:

“This act shall apply to all 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”.

Sec 4 further amplifies this provision as follows:

“Sec 4 (1) It shall be the duty of the State Government to preserve and maintain as Horticultural garden the parks to which this Act is applicable and take such action as may be necessary to improve the utility of such parks and such gardens.”

“Sec 4 (2) No land or building within the parks to which this is applicable shall be alienated by way of sale, lease, gift, exchange, mortgage or otherwise or no license for the use of the such or building shall be granted and any alienation or license granted in contravention of this section shall be null and void.”

9 Considering the above and the fact that despite all the strength of these provisions there were repeated attempts to seek land for construction within the legal limits of Cubbon Park, the Government of Karnataka issued an order No. AAH 264 AHM __ Bangalore dated 14^th November 1979 to prevent such encroachments. This order states:

“Frequent requests are being received from various organisations and Associations for allocation of space in the Cubbon Park and Lalbagh areas for purposes of construction of buildings. The Bal Bhavan authorities have also been requesting for allocation of additional space for putting up temporary structure etc. According to the provision of Karnataka Government Park (Preservation) Act, 1975, no additional land can be granted for construction purposes, in these parks. The entire question is, however examined with regard to the preservation of unique atmosphere in these areas and the Government have decided not to allow any more construction by any of the organisation or individuals in both Cubbon Park and Lalbagh.

Order:

Accordingly, it is directed that neither any land should be granted to nor any further constructions be permitted whether temporary or permanent by any organisation or individuals in the Cubbon Park and Lalbagh areas except the constructions taken up by the Horticulture Department in furtherance of the objectives of the department.”

10 It is clear from the above that the Government anticipated all future pressures, and in protecting the lung space for all times decided to issue the above order. A true copy of the order is annexed at Annexure C.

11 Given that by then several buildings and structures had already come up along the margins of the Cubbon park, and some within the Park as well, in 1983, the Government of the time, decided to put at rest all doubts with regard to the future of this Park. This was achieved by issuing a notification No. AAH 381 AHM 83 dated 27^th September, 1983,

Ø clearly delineating the limits of the Park,

Ø adding an area of over 80 acres to the Park, including the presently de-notified area, and

Ø renaming Cubbon Park as Sri Jayachamarajendra Park.

12 It is the very strong contention of the Impleading Applicant, that the impugned notification fundamentally reverses the extraordinary resolve and purpose of the 1983 notification to protect Cubbon Park and its surrounding landscapes. Reverses such rationale and resolve that particularly intended to refuse any sort of physical development that might potentially destroy the aesthetic quality of the area, and consequently lead to the degradation of the environment in the city center.

13 As a matter of fact, the intention of the Government to protect the Park from all sorts of pressures for all times, as has been expressed in the 1983 notification, was re-confirmed in the 1984 Comprehensive Development Plan (CDP). In this, the Cubbon Park area has been clearly classified as coming under the “Parks and Open Spaces” category of land use. The CDP was prepared by the BDA as per the Bangalore Development Authority Act 1976, and the Karnataka Town and Country Planning Act, 1961.

14 It is clear from the above that emerging with the 1975 Karnataka Parks (Preservation) Act, Government after Government has only strengthened the legal protection accorded to Cubbon Park. The impugned notification, thereby, comes as a jarring contradiction to all that has been achieved over 23 years in protecting Cubbon Park and its surrounding landscapes.

15 The Impleading Applicant alleges that the impugned notification is an attempt on the part of the respondent State to release from all legal hurdles the de-notified areas for various forms of physical and commercial development in contravention to the principles of sound urban planning, development and environmental protection. More specifically, this is an attempt to accord a legally correct status to the land upon which the Annexe to the Legislators Home is being constructed since 1996. This land has been a part of Cubbon Park till the date of the impugned notification.

16 The Impleading Applicant further avers, that the breaking down of the de-notified area into pockets under varying land use classification, is a strategic attempt on the part of the respondent state to guide the attention of the public away from the Government’s motive to gradually shrink the area of Cubbon Park.

17 The same is evidenced by the fact that on the very day the Respondent State issued the impugned notification, they also issued another notification No. AHD 138 HGM 97 (ii) defining the boudaries of the LRDE area consisting of 17.04 acres but excluding a rectangular area measuring 70 mts x 100 mts facing Millers Road, the purpose to which this land will be used not being explicated at all. A true copy of this notification is annexed at Annexure D.

18 Additionally, the Impleading Applicant wishes to draw the attention of this Honourable Court to the1995 CDP of the Bangalore Development Authority (BDA) which reportedly shows the entire Legislators Home complex as being reserved for “Public and Semi-public use”. This in contradiction to the “Park” classification accorded to the area by the aforesaid 1983 notification and the 1984 CDP. Thereby, the BDA stands accused of violating the Karnataka Parks (Protection) Act. Consequently, the BDA has further violated Sec 14 A of the Karnataka Town and Country Planning Act, as the mandated process of public review by issuing advertisements in newspapers, has not preceded the change of land use accorded to the said area. Further, this change is not conforming to the wider public use mandated by the legislation in effecting such a change.

19 The Impleading Applicant wishes to submit to this Honourable Court that the most damning evidence of violation of law by the Government has emerged from the fact that the construction of the Annexe has begun without a building license. This has been done in blatant violation of Sections 299 of the Karnataka Municipal Corporations Act.

20 In as much as having permitted the Government of Karnataka to proceed with the construction of the Annexe to the Legislators Home without the due building license, the Bangalore Mahanagara Palike has committed gross dereliction of duty, and blatantly violated the Karnataka Municipal Corporations Act, particularly Sections 300, 321, and 461.

21 In allowing such developments to proceed without registering protest, the Bangalore Urban Arts Commission has grossly failed in its duty as prescribed to it in the Bangalore Development Authority Act.

22 In making funds available from the public exchequer for the construction of the Annexe, a project whose public purpose and need has never been acceptably defined, the State of Karnataka has fundamentally breached the confidence that has been reposed in them by the people of Karnataka in ensuring transparent and good governance. Such concerns are heightened as the project continues to be developed in contravention to the provisions of the law and the respected opinion of the Court in this matter.

23 Such developments establish very wrong precedents from the points of view of conforming to principles of urban planning and environmental protection and ensuring the Rule of Law. The Respondent State draws its legitimacy to comprehensive planning processes from the local community, and has thereby no overriding interests as well as powers with regard to the matter on hand. It is upon the State of Karnataka to prove that the decision to de-notify approximately 46 acres of the Cubbon Park by way of the impugned order and its administrative decision to allow the construction of the Annexe to the Legislators Home is in the wider public interest. And also that it has comprehensively addressed the implications of such actions are not confrontational to the goals of improving the quality of life of the local constituency and the local environment.

Prayer

The Impleading Applicant advances the interest of the public at large, and of the future generations in ensuring that Cubbon Park and its surrounding landscapes are protected and improved qualitatively for all times to come. This will allow the present and future generations to cherish the heritage of Bangalore and enjoy the benefits of its conservation. No hardship will be caused either to the petitioner or to the respondents by impleading this applicant as petitioner. Instead it will enable this Honourable Court to base its findings more effectively and judiciously. Wherefore, it is respectfully prayed of this Honourable Court that the applicant be impleaded as Petitioners in the aforementioned Writ Petition in the interest of justice and equity.

Date:

Place: Advocate for Applicant

Address for Service:

H. C. Ravindranath

173, 6^th Cross

Gandhinagar

Bangalore 560 009

Tel: 2261731

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

Writ Petition No. 32232 of 1998 (RES PIL GM)

Between

G. K. Govinda Rao .............Petitioner

And

State of Karnataka ...........Respondent

Affidavit Verifying the Petition

I, Leo Francis Saldanha, son of S. J. Saldanha, aged 30 years, resident at 153, 5^th Main, 4^th Block, Banashankari 3^rd Stage, 2^nd Phase, Bangalore 560 085, do hereby solemnly affirm on oath and state as follows:

1. I am the Coordinator of Environment Support Group and am authorised to swear to this affidavit on behalf of the Impleading Applicant.

2. I say that averments made in paras 1 to 23 of the application accompanying this affidavit are true to the best of my knowledge, belief and information.

3. I state that Annexures A, B, C and D are true copies of the originals.

Identified by: DEPONENT

Advocate

Bangalore.

Dated:

No. Of Corrections:

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

Impleading Application

I. A. No. in

W.P. No. 32232/98 (RES PIL GM)

G. K. Govinda Rao ………………….Petitioner

And

State of Karnataka ……………… .Respondent

INDEX