Holding

The Supreme Court dismissed the appeal, upheld the High Court’s validation of the 1998 notification, and left the above questions of law open for future determination.

Summary

The appellant challenged a 1998 government notification that excluded a small portion of Cubbon Park for construction, arguing it violated the Karnataka Government Parks (Preservation) Act, 1975 and the Constitution’s right to life. The High Court upheld the notification, limiting future constructions without further court clearance. On appeal, the Supreme Court affirmed the High Court’s order, finding no basis to disturb it, but expressly left unresolved several questions about whether reducing the notified park area breaches the Act, whether Section 3 of the Act or Section 21 of the General Clauses Act can prevent such reductions, and whether such notifications are ultra vires. Consequently, the appeal was dismissed and the legal questions were kept open for future consideration.

Issues considered

Whether the diminution of the area notified as part of Cubbon Park violates any provision of the Karnataka Government Parks (Preservation) Act, 1975
Whether Section 3 of the Karnataka Government Parks (Preservation) Act, 1975 or Section 21 of the General Clauses Act, 1897 can be invoked to prevent deletion of land or buildings once notified
Whether issuing a notification to reduce the preserved park area is ultra vires of the Act
Whether the notification infringes Articles 14 and 21 of the Constitution of India

Legislation cited

Constitution of Indias. Article 14, s. Article 21
General Clauses Act, 1897s. 21

Subjects

environmental lawKarnataka Government Parks (Preservation) ActGeneral Clauses ActArticle 21public interest litigationpark preservationland alienationultra viresconstitutional law

Judgment

SHRI BIMAL N. DESAI A
V.

STATE OF KARNATAKA AND ORS.

APRIL 25, 2003

B
[SHIVARAJ V. PATIL AND ARIJIT PASAYAT, JJ.]

Environmental law:

The Karna/aka Government Parks (Preservation) Act, 1975: c
Ss. 3 and 4(2)-Notification dated 27.9. 1983, notifying the area of
Cubbo11 Park-Another Notification dated 30. 7. I 998 excluding certain area
of Cubbon Park for purposes ofGovernment construction-Validity of-Held,
judgment of High Court declining to stop proposed construction, not inte1fered
with-However, question whether neither s.3 of the Act nor s.21 of General D
Clauses Act can be pressed into service for deleting land and building once
notified as prescribed area, left open-General Clauses Act, 1897-s.2 /-
Constitl'tion of India-Article 21.

The Legislature of Karnataka, in order to ensure preservation of certain
Government parks in the State, enacted the Karnataka Government Parks E
(Preservation Act) 1975 and restrained alienation of lands or buildings within
the limits of such parks. By notification dated 27.9.1983 issued under the
Act, the buildings of High Court, Vidhan Sabha, Legislators' Home, Raj
Bhawan, Tennis Stadium etc. with surrounding areas which included the
Cubbon Park, were brought within the purview of the Act Subsequently, by F
another notification dated 30.7.1998 issued in exercise of power under sub-
sections (I) and (2) of s.3 of the Act, certain portion of the Cubbon_ Park
covered under the notification dated 27.9.1983 was excluded for construction
of a water reservoir and an additional block within the premises of Legislators'
Home.
G
Writ petitions in public interest were filed before the High Court
challenging the notification dated 30.7.1998 as arbitrary and in disregard of
the environmental need of the city and liable to be struck down being violative
of Article 21 of the Constitution. It was contended that having notified the
limits of the Cubbon Park, the Government had no power to exclude any portion H
913
>

914 SUPREME COURT REPORTS (2003] 3 S.C.R.

A of the area either under s.3 of the Act or under s.21 of the General Clauses
Act. Directions were sought to preserve and maintain the Cubbon Park to
the full extent as specified in Notification dated 27.9.1983 and not to allow
any structure within the notified area of the park. The stand of the Government
before the High Court was that the proposed constructions were inevitable
B and exclusion of the land from the notified area constituted only 3-4 per cent
of it and that there would be no further coverage of open area for any purpose.
The High Court upheld the validity of the Notification dated 30.7.1998 and
declined to stop the proposed constructions. Aggrieved, the writ petitioner
filed the present appeal.

c Disposing of the appeal, the Court

HELD: I. It is clear from sub-section (2) of s.4 of the Karnataka
Government Parks (Preservation) Act,1975 that there is an injunction
restraining alienation of land or building within the parks and issuing licence
for the use of any such land in contravention of the said Section. It is also
D made clear that any alienation made or licence granted in contravention of
the said Section shall be null and void. However, in the facts and circumstances
of the case, the judgment passed by the High Court declining to stop the
proposed construction is not disturbed. 1918-CI

2. Under the given fact and circumstances of the case, it would be
E appropriate to keep the following 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
F 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

G
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.1918-D-FI
-
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3714 of2003.

From the Judgment and Order dated 13.8.2001 of the Karnataka High
Court in W.P. 19541of1999.
H M.G. Mumar, Mrs. Rajani K. Prasad for Tara Chandra Sharma, for the
B.N. DESAI v. STATE [SHIVARAJ V. PATIL, J.] 915
Appellant. A
Sanjay R. Hegde, Satya Mitra, Anil K. Mishra and K.R. Nagaraja, for the
Respondents.

The Judgment of the Court was delivered by
B
SHIV ARAJ 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. 19541of1999.

Few writ petitions were filed purporting to serve public inter\!St. The
c
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-sect\ons (!)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 D
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 wliich reads:- E

"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 F
official Gazette, specify;
(2) The notification referred to in sub-section (I) 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 G
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 H
916 SUPREME COURT REPORTS (2003] 3 S.C.R.

A 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
B 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)
C 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
D 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
E 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
F of preserving and developing the Cubbon Park, leaving intact as much open
as possible.

On behalf of the writ pet111oners, 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
G 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
H the impugned Notification was liable to be struck down on the ground that
B.N. DESAI v. STATE [SHIVARAJ V. PATIL, J.] 917

it violated Articles 14 and 21 of the Constitution and that the proposed A
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.
B
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 C
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 D
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 E
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.
F
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."
G
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:- H
918 SUPREME COURT REPORTS (2003] 3 S.C.R.

A "(2) No land or building within the parks to which this Act is applicable
shall be alienated by way of sale, lease, gift, exch.ange, 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:
•
r

B 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
C 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 nu II 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.
D Under the circumstances, although we are not inclined to disturb the impugned
judgment and order, i,n 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
E 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
F 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,
G 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.
H R.P. Appeal disposed of.