SHRI BIMAL N. DESAI versus STATE OF KARNATAKA AND ORS.

Citation: [2003] 3 S.C.R. 913 · Decided: 25-04-2003 · Supreme Court of India · Bench: SHIVARAJ V. PATIL · Disposal: Disposed off

Judgment (excerpt)

SHRI BIMAL N. DESAI 
V. 
STATE OF KARNATAKA AND ORS. 
APRIL 25, 2003 
[SHIVARAJ V. PATIL AND ARIJIT PASAYAT, JJ.] 
Environmental law: 
The Karna/aka Government Parks (Preservation) Act, 1975: 
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 
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of Cubbon Park for purposes of Government 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 
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Government parks in the State, enacted the Karnataka Government Parks 
(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. 
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 
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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. 
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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: 
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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 
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maintain healthy and eco friendly atmosphere.1918-D-FI 
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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. 
M.G. Mumar, Mrs. Rajani K. Prasad for Tara Chandra Sharma, for the 
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B.N. DESAI v. STATE [SHIVARAJ V. PATIL, J.] 
915 
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