PIL sought to restrain construction on Kasturba Garden and Band Bungalow land at Nazarbad, Mysore, demarcated as park/open space. The court noted assurances in affidavits that 5,970 sq.mtrs. remained landscaped open space with free public access, held these served the public interest, and laid the lis to rest.
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NC: 2024:KHC:11784-DB WP No. 9086 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF MARCH, 2024
PRESENT
THE HON'BLE MR N. V. ANJARIA, CHIEF JUSTICE
AND
THE HON'BLE MR JUSTICE KRISHNA S DIXIT
WRIT PETITION NO. 9086 OF 2015 (GM-RES)
BETWEEN:
Digitally signed by CHETAN B C Location: HIGH COURT OF KARNATAKA
…PETITIONERS
(BY SRI. VINEET BHAT., ADVOCATE)
AND:
…RESPONDENTS
(BY SMT.NILOUFER AKBAR., AGA FOR R1 & R4; SMT. M P GEETHADEVI., ADVOCATE FOR R2; SRI. S V DESAI., ADVOCATE FOR R3)
THIS WRIT PETITION FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO[A] DIRECT THE R-2 TO REJECT THE REPRESENTATION OF THE R-4 IN RELATION TO CHANGING THE NATURE OF THE SAID LAND viz., KASTURBA GARDEN AND BAND BUNGALOW AS IT IS ILLEGAL AND BEUOND THE PURVIEW OF THE LAW AND [B] DIRECT THE RESPONDENT TO NOT CHANGE THE NATURE OF THE LAND USE OF THE SAID LAND viz., KASTURBA GARDEN AND BAND BUNGALOW AT NAZARBAD, MYSORE AND [C] DIRECT THE RESPONDENTS TO RESTORE THE NATURE OF THE SAID LAND viz., KASTURBA GARDEN AND BAND BUNGALOW AT NAZARBAD, MYSORE, TO ITS ORIGINAL CONDITION PRIOR TO CONSTRUCTION.
THIS WRIT PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, KRISHNA S DIXIT.J., MADE THE FOLLOWING:
ORDER
Petitioners are invoking the PIL jurisdiction of this Court
principally for the following prayers:
“[a] Direct the Respondent No.2 to reject the representation of the Respondent No.4 in relation to changing the nature of the Said Land viz., Kasturba Garden and Band Bungalow as it is illegal and beyond the purview of the law.
[b] Direct the Respondents to not change the nature of the land use of the Said Land viz., Kasturba Garden and Band Bungalow at Nazarbad, Mysore.
[c] Direct the Respondents to restore the nature of the Said Land viz., Kasturba Garden and Band Bungalow at Nazarbad, Mysore, to its original condition prior to construction.”
land should not be entertained by the 2nd respondent-Mysore City Corporation.
“We have heard learned Advocate General in support of the application moved by the State Government. We have also heard the learned counsel appearing for the petitioners.
2. The prayer in this petition, in substance, is for directing the respondents not to change the nature of the land use of Kasturba Garden and Band Bungalow at Nazarbad, Mysuru. The second prayer is to restore the nature of the said land to its original condition. The land is more particularly described in paragraph No.7 of the petition.
3. We have perused the orders passed by this Court
from time to time in this petition. The order dated 20th October 2016 records the statement of the Mysuru Urban Development Authority that in the revised master plan, this area has been shown as for public and semi-public area. The grievance made by the learned counsel appearing for the petitioners is recorded in the said order that the construction is in progress though there is no sanctioned building plan. The same order records the statement of the learned counsel appearing for the Municipal Corporation that the application for sanction of the building plan was pending. The statement of the learned Additional Government Advocate is recorded that the construction has started. Therefore, the Court adjourned the matter for four weeks and directed the Municipal Corporation to sanction the building plan immediately. Till such time, the further construction was stayed. Therefore, in the petition filed by the petitioners themselves there was a direction issued by this Court to the Municipal Corporation to sanction the building plan and a limited interim order was passed staying the construction till the plan was sanctioned. No other interim order is shown to us. It appears that on 7th December 2016, the Mysuru City Corporation granted permission for building construction which was in force for two years.
4. In the affidavit filed in support of I.A.No.1/2020, it is stated that construction of the building for accommodating the office of the Commissioner of Police, Mysuru, has come up and the construction has been completed. It is stated that in view of the pendency of the petition, the second respondent is not inclined to issue Completion/Occupancy Certificate. The prayer in the I.A. is for issuing a direction to the second respondent for issue of Completion Certificate to enable the fourth respondent to occupy the building.
5. The learned counsel appearing for the petitioners submits that in fact there was a tacit understanding reached before the Court which required the State Government to come up with the remedial measures
ensuring that a garden is available for the benefit of the members of public.
6. Our attention is invited to the counter affidavit of the State Government dated 26th March, 2018 in which the following facts have been disclosed:
(a) Total area of the property is 25729.94 sq. mtrs.; (b) There is one heritage building known as “Band Bungalow”, which occupies an area of 8325 sq. mtrs.; (c) In the remaining land, office building for the fourth respondent is constructed in an area of 4106.09 sq. mtrs.; and
(d) In the remaining open space of 5970 sq. mtrs., the landscaping, plantation of 59 trees and 2080 horticultural plants and maintaining of the lawn will be undertaken and the tender process has already commenced.
7. It is further stated that adjacent to the office of the fourth respondent, there is an open space in which a park exists covering an area of 57 acres to which the members of the public have an access. It is stated that in fact there are three parks in the area of 57 acres. The first one is “Nishadhabag park” (Kuppanna Park), the second one is “Gandhivana Park” and the third park is in South-West direction which is not named. It is stated that maintenance of “Gandhivana Park” is being looked after by the Commissioner’s office.
8. It appears that permission for constructing the office of the fourth respondent (the Commissioner of Police) has been granted pursuant to the aforesaid direction issued in this petition. In any case, the construction of the building for the office of the fourth respondent and the user thereof will be subject to the final outcome of the petition. As the building has come up, there will not be any impediment in the way of the second respondent in considering the application made by the fourth respondent or the State Government for grant of Occupancy Certificate /Completion Certificate. If such Certificate is issued, the fourth respondent can start
user of the building office subject to final outcome of the petition.
9. However, the State Government will have to make good the assurance given in paragraph No.4 of the affidavit dated 26th March 2018. The State Government will have to disclose whether the area of 5970 sq. mtrs. is developed as assured and whether the members of the public have access to the same.
10. Accordingly, we dispose of the application (I.A.No.1/2020) by passing the following order:
(i) Notwithstanding the pendency of the writ petition, the second respondent shall decide the application made by the fourth respondent for grant of Completion Certificate in accordance with law;
(ii) If such Completion Certificate is granted, the fourth respondent can always start user of the building for running the office;
(iii) As the construction of the building is subject to the final outcome of the petition, the grant of Completion Certificate and occupation thereof by the fourth respondent will be also subject to the outcome of the petition;
(iv) A responsible Officer of the State Government will file an affidavit reporting compliance with the assurances given in paragraph 4 of the affidavit dated 26th March 2018. The photographs showing development of an area of 5970 sq. mtrs. shall be placed on record along with the affidavit. The affidavit will state whether the members of the public have entry to the said area of 5970 sq. mtrs. The affidavit will also state the present condition and status of the three parks which are referred in the paragraph 5 of the counter affidavit.
(v) Such an affidavit shall be filed by the State on or before 8th September, 2020.
11. The petition shall be listed on 10th September, 2020 for considering the said affidavit. The petition shall be listed under the caption of ‘orders’.”
Subsequently, another order came to be passed on 6.10.2020,
wherein the following observation appears:
“The learned counsel appearing for the petitioners states that even as of today, the State Government has not supplied to him a copy of the affidavit dated 25th September, 2020.
I.A. No.1 of 2020 filed by the State Government was disposed of by the order dated 19th August, 2020. In clause (iv) of paragraph 10 of the said order, this Court directed the State Government to file an affidavit stating whether members of the public have an entry to an area of 5,970 sq. metres. The affidavit filed by the State Government of Shri H.N.Vinay, police inspector holding charge of Devaraj Traffic Police Station, Mysuru City records that the said area of 5,970 sq.metres comprising of lawn area, plantation, pathways and car parking is open to the members of the public. Photographs are annexed to the said affidavit.
We direct the learned Additional Government Advocate to supply a copy of the affidavit to the counsel for the petitioners within two days from today. If the petitioners are of the view that the averments made in the affidavit are not factually correct, we grant liberty to them to move this Court for an appropriate relief. No further orders are required to be passed in the disposed of application.”
The matter was further considered by us on 11.03.2024 and that the learned Additional Government Advocate appearing for the answering respondents had assured us of reverting after securing further instructions. Accordingly, an affidavit sworn to by the Commissioner of Police on 20.03.2024 has been filed, wherein, paragraphs 2 to 4 read as under:
“2. I humbly submit that the land situated in Ward No.64 & 65 having Khata No.800 NI and 675 N2 (City Survey Number 544) totally measures 25729.94 sq.mts. In this extent, there exists to an extent of 8325 sq.mtrs, a heritage building known as "Band Bungalow", which is surrounded by a huge open area/space. In the remaining space, i.e., in an area of 4106.09 sq.mtrs, a new Office Building for the Commissioner of Police, Mysuru to house its subordinate offices and administrative blocks have been constructed from where we are presently working. An area of 5970 sq.mtrs. is left as an open space where neat landscaping is done with various varieties of trees and horticulture plants. A huge lawn has also been laid for people to enjoy. Our new office and the public park which is maintained by Mysuru City Commissionerate is located in one premises.
3. I submit that the park is open to the public, who have free access to it from the main entrance of our new office. In fact, a Board displaying "Entrance" has been displayed at the entrance of my Office. Public, including the aged and young ones are allowed into the park without any restrictions. Apart from the people living in the immediate vicinity and in the locality, who visit the park either for a walk or for fresh air for enjoyment of the park need have any fear since my office is here. Public who visit my office and the Crime,
Economic and Narcotic Police Station housed in my office to submit their grievance and complaints, also use this park for relaxation.
4. I further humbly submit that the garden/park in front of my office has been maintained well by the Police Department and the said park is open to the members of the public at all time during the day. Residents, public and tourists are allowed to come and spend their time freely in the park. To evidence the same, I am producing herewith few photographs taken on 18.03.2024, which clearly establish the fact that the public are using the park in my office premise. ”
administrative blocks. A board displaying entrance has been put and that the public at large including aged & young will have unrestricted access to the park/open space at all times, subject to usual regulation. Both garden and park are being maintained by the police department. Residents, public and tourists can have free access to the same. Photographs are also produced to vouch the development and well maintenance of the area in question.
In the above circumstances and with the above observations,
this lis is laid to rest.
Costs made easy.
Sd/CHIEF JUSTICE
Sd/JUDGE
cbc
List No.: 1 Sl No.: 29
1 issue framed by the court
Whether land use of Kasturba Garden and Band Bungalow at Nazarbad, Mysore could be changed for construction of the Commissioner of Police office, and whether public park access would be preserved.
1 provisions across 1 enactments
C Ravish
M.R. Ashok Kumar
Mohan Kumar V
State of Karnataka
Mysore City Corporation
Mysore Urban Development Authority
N. V. Anjaria
Krishna S Dixit
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
