Constitutional Anarchy supports Bangalore Metro Implementation

In a significant decision, Justice N. K. Patil and 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 overruled the fervent pleas of petitioners Environment Support Group and Others, 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 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 had contended 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 invited 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 Karnataka Government Parks, Playfields and Open Spaces (Protection and Regulation) Act, 1985, is unprecedented. It would have been appropriate for the Government to first seek an amendment to these acts before proceeding to acquire the land in Lalbagh in keeping with the Principle of Separation of Powers as envisaged in the Constitution.
The choice of utilising the KIADB Act to acquire Lalbagh is will result in converting the world famous Botanical Garden into an industrial area. This is in contravention of applicable laws and various judgments of the Hon'ble Supreme Court and the High Court of Karnataka. As is well known, acquisition per this Act also provides the beneficiary full rights to commercialise the land. This flies in the face of oft stated comments by various Metro officials and even the Hon'ble Chief Minister of Karnataka that Lalbagh has been taken only to locate a portion of the station. The Detailed Project Report of the Metro on the contrary clearly confirms that every station is potential zone for commercialising assets in order to recover the high capital cost of the project. In addition, there is an order of the Ministry of Railways that clearly makes it conditional for the State to ensure that every station is fully exploited to be developed into an inter-modal transport zone, and for revenue generation by exploiting its commercial value.
According to highly placed sources, 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.
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
The PIL had 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 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.
Following the honourable high court decision, 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. Failing to get an appropriate reply, the petitioners then approached the Private Secretary to His Excellency the Governor of Karnataka, hoping for a remedial view from the Governor.