To say HC's role in Cubbon Park destruction, misleading

In the past few weeks, the issue pertaining to the reconstruction of the building which had been occupied by the Election Commission - which has been handed over to the High Court of Karnataka - has been making news and occupying a prime place in the news pages of your newspaper as well as social media. It is seen from the news items as well as the comments and discussions on the social media that there are misconceptions about the core issue. It is our endeavour to allay the misconceptions by placing the facts in the correct perspective.

It is a matter of common concern that the lung space in the city of Bengaluru which was considered as the city of gardens has been shrinking. With the intention of preserving the government parks, the State of Karnataka enacted the Karnataka Government parks (preservation) Act 1975.

The provisions of this enactment apply to all lands and buildings within the limits of parks belonging to the state government, as it may notify from time to time. The enactment required the state government to preserve and maintain parks as horticultural gardens. There is a prohibition from alienation from the sale, lease, gift, exchange, mortgage or any other license in respect of such parks.

However, the same enactment carves out various exceptions. Sri Chamarajendra Park, which is popularly known as Cubbon Park, is one such park which comes under the purview of the Act. The Act has been amended from time to time to add and also delete land from Cubbon Park.

When an exercise to delete a portion of Cuban Park area for the purpose of expansion of Legislators Home and construction of a water tank for drinking water purposes was mooted, the same was challenged in a batch of Public Interest petitions before the HC in the case of G K Govind Rao and Others. The HC, after the examination of the power of government to add or delete lands, upheld the action of the government indicating the action was in public interest.

During these proceedings, an apprehension was expressed that in future, there could be further notifications deleting more areas and resorting to constructions. It was in this background that the HC indicated in its order that no further construction shall be made covering the open areas within the limits of the Park specified under the Notification of 1998 without obtaining clearance from the HC before proceeding with the construction.

In the view of this specific direction, every entity of government which has intended to put up construction has approached HC from time to time seeking permission to undertake construction or reconstruction. Initially, a series of orders were passed in the very same public interest petition with regard to constructions.

However, the division bench, by its order dated 7.9.2010, indicated that any future requests for putting up construction should be by way of an independent petition. It was also clarified that such permission was required in case of reconstruction only if the proposed construction was exceeding the plinth of the construction which already exists.

In the case of proposed High Court Annexe extension, a writ petition was presented by the Register General of the HC by specifying the details of the proposed construction. It gave details of the proposed construction and the number of trees to be removed. The said writ petition had been pending for over four years during which time the proposal has undergone substantial change.

Originally, the proposal was to relocate roads and to remove 17 trees. After due deliberations with the government including the Horticultural Department, the plan was revised. The plan proposed was to be constructed within the plinth area of the existing building and there was no proposal for felling of any tree. The notification issued by the government also clearly specifies that the height of the building has to be on par with the building of General Post Office existing in the vicinity.

These aspects clearly indicate that there is no proposal to construct the building in any area where there is no building existing as on today. As stated above, the scrutiny of HC is limited for the examination of the issue as to whether the proposed construction by the HC or any other entity extends into the park. It is also to be noted that contrary to the statements being made, the building sought to be demolished for reconstruction is not a heritage building.

The HC having satisfied that no part of the parking area is being reduced, granted its approval for the plan. The construction would be done by the Public Works Department by following the relevant rules and regulations. It is to be borne in mind that the volume of litigation has gone up substantially and there is a dire need for increasing the infrastructure available to the HC.

Better utilisation

The proposal to utilise the area which is occupied by the Election Commission and to put the area into better use, is a welcome move and the same needs to be supported as it leads to better utilisation of available space in Bengaluru which is getting congested due to the pressure on the infrastructure and availability of space to house the infrastructure.

A general impression has been created that the HC is actually participating in the destruction of the Park and is acting in a partisan manner since the proposed building is for the judiciary, is, to say the least, completely misleading and borders on contempt of court. It is a well-settled proposition of law that the HC acts on the judicial side through benches constituted by the Honourable Chief Justice.

The instant case was allocated to the learned single Judge who had the roaster for this category of cases. The petition has been heard in open court with all the parties to the case expressing their views. The learned Single Judge, obviously, is satisfied that the proposed building will not adversely affect the area of the park as sufficient precautions and safeguards have been provided.

The proposal is to merely substitute a new building in the place of an old structure which is essential for housing the HC infrastructure and amenities. The Court found that the object of the HC retaining the power to judicially scrutinise the proposed new building as per the Govind Rao PIL had been subserved and the construction of the proposed building ought to been allowed in public interest.

Judiciary is an important arm of the state and the proposed building is not being put up for any personal use. However, it is for use of the judiciary of the state. These aspects have not been noticed in the shrill cacophony generated in the media and need correction.

(The writer is President, The Advocates’ Association, Bengaluru)