Thursday, May 21, 2009

Constitutional Anarchy supports Metro Implementation

Constitutional Anarchy supports Metro Implementation
Karnataka High Court refuses to entertain pleas to stay Metro implementation in Lalbagh and Lakshman Rao boulevard

In a deeply disappointing decision earlier today, Mr. Justice N. K. Patil and Mr. Justice V. Jagannathan, constituting the Division Bench of the Hon'ble High Court of Karnataka granted Bangalore Metro Rail Corporation Ltd. (BMRCL) permission to fell trees in Lalbagh and Lakshman Rao boulevard after obtaining orders from the Tree Officer. In passing this direction, the Court disregarded fervent pleas of petitioners Environment Support Group and ors. seeking a stay of work on the southern reach of the Bangalore Metro, as it was based on an Ordinance which had lapsed and involved absolute lack of compliance with the provisions of the Karnataka Town and Country Planning Act, Government Parks (Protection) Act, Karnataka Parks, Open Spaces Playfields (Protection and Regulation) Act, Karnataka Preservation of Trees Act, and various other applicable laws.

The Petitioners strongly advanced the contention that the State or its instrumentality cannot carry on developmental works in disregard of existing laws. It was pointed out in the PIL that the ongoing work of the Metro in Lalbagh and on R. V. Road was shockingly in contempt of the honour of the Office of His Excellency the Governor of Karnataka and the Legislature, for the following reasons:

It has been claimed by BMRCL that they have absolutely followed all laws and procedures in implementing the Bangalore Metro project. However, close scrutiny of documents reveal that BMRCL and the State of Karnataka secured alienation of precious and irreplaceable parts of heritage public spaces such as Lalbagh in the most devious manner. Even prior to His Excellency the Governor of Karnataka passing Ordinance 4 of 2008 on 22 November 2008 to alienate a portion of Lalbagh (for Metro station) and Indira Gandhi Musical Fountain (for road widening) a preliminary Notification was issued per Sec 28 (1) of the Karnataka Industrial Area Development Board Act to acquire about 1189 sq. metres of Lalbagh along its western wall for locating a station by BMRCL. This Notification was issued on 20 November 2008, and must have obviously been preceded by a Cabinet decision.
Such a move to acquire Lalbagh which is especially protected under the Government Parks (Protection) Act, 1975, and in principle attracts the protection under the annexures).
Most interestingly, and disturbingly, it is learnt from highly placed sources that this KIADB Notification was not at all brought to the attention of His Excellency the Governor, when seeking his approval for amendment of the Government Parks Act 1975 by way of the Ordinance. It is apparent that the Governor would surely have not lent his support were he fully apprised of the fact that an industrial acquisition Notification had preceded his Act of causing such alienation by way of an Ordinance.
What follows, thereafter, are a further series of actions that amount to demonstrating contempt for the office of the Governor and the Legislature, while setting a stage for Constitutional Anarchy.

It is widely known that as per Article 213 of the Constitution of India, it is mandatory that the Ordinance, even if accepted for the present argument to be tenable, should have been placed in the form of a Bill before the Legislature within six weeks of the next Legislature Session. From the records it is evident that a L. A. Bill No. 11 of 2009 was in fact ready to be presented to the 2nd Session of the 13th Assembly. But for reasons best known to the Government, the Bill has been withheld. Consequently, the Ordinance having spent itself, has lapsed.

In light of this, it is sacrilegious that the portion of Lalbagh sought by BMRCL for the station, is in fact being sold at market rates based on a GO passed on 25 February 2009 invoking the Ordinance that has lapsed (a copy of this order is included with annexures). If Lalbagh can be sold, then there is no guarantee whatsoever that any other park, playfield or open space can be protected in future. The immediate pressing issue is whether portions of Lakshman Rao Park and K. R. Road park, have also been sold in a similar manner.

Based on these submissions in the PIL, it was argued that in the light of financial assistance being taken from Japan Bank, and there being a clause enabling BMRCL to mortgage property to foreign and Indian banks on first charge, the Petitioners sought to know if Lalbagh, Lakshman Rao boulevard and K. R. Road Parks have also been mortgaged. They sought a direction from the Court to BMRCL to come clean by placing all records before the Court. The Petitioners also opposed the direction that the Tree Officer would decide regarding tree felling, especially in light of such constitutional violations, and also in view of the absence of power of the Tree Officer to go into the larger questions raised by the Petitioners.

It was further brought to the notice of the Court that the Tree Officer was functioning under duress of senior governmental authorities, which made it impossible for him to exercise his independent discretion and power to taken an impartial decision.

Given all the above mentioned reasons, it was finally pleaded before the Court to post the matter before the regular Bench so that the deeper issues were fully appreciated and until then to pass an interim order of stay on work. But all these pleas were in vain as the Court relied merely on the claim of the Advocate General Mr. Udaya Holla that the Town and Country Planning Act does not apply to the Metro. The Court subsequently appears to have relied on this submission, and proceeded to allow tree felling in these precious parks based merely on the review of the Tree Officer.

It is well known that in blatant violation of all norms, laws, traditions and Constitutional obligations, and as well in total disregard to the sensitivity to heritage park spaces, the BMRCL officials engaged in the wanton act of destroying the western portion of Lalbagh on the night of 13/14 April 2009. Because of widespread public protests the issue has now assumed critical importance. It would seem appropriate in such circumstances, especially given the aforementioned illegalities and subterfuge employed by BMRCL, that the Government would take a clear and correct stand and restrain BMRCL from implementing the southern reach of the Metro. This particularly in light of the fact that Lakshman Park and K. R. Road parks, along with Lalbagh, are critical and irreplaceable public commons, and the State is expected to be a Trustee and Custodian to ensure their timeless protection.

Subsequent to this very disappointing decision by the High Court, Mrs. Dharma Somashekar and Mrs. Chandra Ravikumar of Sanmathi and Mrs. Kathyayini Chamaraj of CIVIC Bangalore approached Mr. Baligar, IAS, Principal Secretary to the Chief Minister, to seek the Government's reconsideration of its present stand to proceed with the implementation of the Metro in the southern reach. They were stunned when greeted with ridicule and scolded for coming to the Chief Minister's office when a final decision has already been taken to put the Metro through Lalbagh and Lakshman Rao Park. When questioned how the KIADB Notification could have preceded the Ordinance by the Governor, following a moment of hesitation, Mr. Baligar claimed that this was legal as the "KIADB was an independent authority and could do as they please". He threatened them of being in Contempt of Court by approaching the Chief Minister's and also of trying to influence the Chief Minister when the matter is sub judice. He rebuked them for wasting precious time of the Chief Minister's office for bringing such "useless" causes to his attention and taunted to contest elections to spearhead such causes.

If this is the view at the highest level of Government, which also is the highest appellate authority for the people of the State, there is little hope for the rule of law in protecting our parks and public spaces and ensuring that public projects are implemented in a planned and lawful manner.

Notwithstanding the above developments, the Petitioners met with the Private Secretary to His Excellency the Governor of Karnataka and have submitted the enclosed representation.

It is now our hope that the Governor will take a firm and clear view on the matter that will ensure the protection of the Honour of his office, the Legislature and thereby ensure the Metro project in not implemented in blatant disregard for the rule of law.

Leo F. Saldanha Sunil Dutt Yadav Vinay Sreenivasa
Coordinator Advocate Volunteer
Environment Support Group Hasiru Usiru


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