Karnataka HC: Stating that the State and Bruhat Bengaluru Mahanagara Palike (BBMP) must take all plausible steps to lessen the time required for making COVID-19 test reports available, the High Court of Karnataka on July 20, 2020, instructed the state to issue instructions to laboratories and hospitals to notify those taking the swab test about their duty to start home isolation until the report is issued.
Facts
Perusal of the orders passed from time to time will show that Bruhat Bengaluru Mahanagara Palike (BBMP) had assured the Court to remove the illegal structure of the temple on the footpath. Perusal of the record will show that on11th December 2019, Sri P.T. Prasanna Kumar, Assistant Executive Engineer, Jayanagar Sub-Division of BBMP has filed on record the notices issued by BBMP. He has stated that the structure of the temple is on a footpath. A status report was filed on 8th January 2020 recording that the Assistant Executive Engineer, BBMP has addressed a letter to the local police station on6th January 2020. It is further recorded that as the police were unable to give protection, the demolition could not take place. There was an undertaking/assurance given in the memo dated8th January 2020 by BBMP, assuring that BBMP will initiate demolition work with the assistance of the police.
For one reason or the other, the illegal structure of the temple has not been removed not with standing the grant of time on several occasions. In fact, on 11th December 2019, an undertaking of BBMP was recorded that in terms of the order dated 17th February 2010 issued by the State Government that they will do the needful by demolishing the structure. The order dated 17th February 2010 was passed by the Government on the basis of the directions issued on 7th December 2009 by the Apex Courtin the Special Leave to Appeal No.8519/2006. Not with standing the said assurance, till today, action has not been taken. Thereafter, on 28thJanuary 2020, the learned Additional Government Advocate stated before the Court that the jurisdictional police will render necessary help, assistance and protection to the officers of BBMP for carrying out demolition on the date fixed by BBMP.
On 4th March 2020, I.A.No.1/2020 was moved by the General Secretary of the Confederation of All Residents Welfare Association. In paragraph2 of the order dated 4th March 2020, the statement of the General Secretary of Confederation of All Residents Welfare Association who was the applicant in I.ANo.1/2020 was recorded that prior to 2009, a new structure had been erected.
Submission of the BBMP
The learned counsel appearing for BBMP states that the demolition was fixed on 25th June 2020. However, the police could not give assistance / protection on that day. He submitted that without the assistance of the police, demolition could not have taken place as there was a likelihood of mass opposition. He states that thereafter, 6th July 2020 was fixed as the date of demolition. The demolition could not happen as the police assistance was not available. Therefore, he submits that a reasonable time may be granted as from 15th July 2020, the city will be under lock-down.
Submission of the Petitioner
The learned counsel appearing for the petitioner submits that for one reason or the other, the action of demolition has been postponed though a solemn undertaking has been given by BBMP.
Submission of the Applicant
The learned Senior Counsel appearing for the applicant in I.A. No.3/2020 states that initially, the construction was not on a road or a footpath. As the road was widened, that day it may be on the footpath. As can be seen from the photographs on record, the correctness of which is not disputed, the construction appears to be a new construction right on the footpath. Even assuming that such a construction is made prior to the cut-off date 29th September 2009 fixed by the Apex Court, the construction being on the footpath can never be protected especially, when in I.A.Nos.1/2020 and 3/2020, no material is placed on record to show that the construction has been made after obtaining the permission of the competent authority.
Prayer of the Petitioner
This writ petition has been filed inviting the attention of the Court to the failure of BBMP to demolish the unauthorized temple constructed on a footpath more particularly described in the petition.
Observation of the Court
The Court observed that the applicant is a member of the Residents Welfare Association. As a citizen, the applicant should be interested in ensuring that all the structures in the area are constructed after obtaining due permission from BBMP. A residents’ Association cannot support the illegality especially, when the subject illegal construction carried out is on a footpath. The duty of the citizens is to assist the Authorities like BBMP to ensure that no illegal constructions come up and the same are demolished. The footpaths are meant for walking by citizens and not for constructing temples. Therefore, I.A.No.1/2020 is rejected.They, therefore, direct the Officer In – charge of the jurisdictional police station to provide adequate police protection by deploying even the female constables at the site to ensure that BBMP performs its obligation by demolishing the illegal structure. The police protection shall be provided on the date mentioned by the officer of BBMP in his requisition addressed to the Officer In-charge of the jurisdictional police station. Compliance report shall be filed by BBMP by 27th March 2020.
The fundamental right under Article 25 of theConstitution of India does not extend to offeringworship or prayers at each and every place.Surely, the fundamental right under Article 25 ofthe Constitution of India cannot be invoked forprotecting an illegal structure of a temple whichis on a footpath. The right to constructunauthorized temple and that also on a footpathcannot be said to be an essential part of anyreligion or religious practice which can beprotected under Article 25 of the Constitution ofIndia.
The Court noted oneafter the other, that applications are being filed by thecitizens. The duty of the citizens is to see that noillegal structure and especially, illegal religiousstructure comes up in their locality. But theywant to protect a temple which has come up on afootpath. In fact, that was the preciseobservation made in paragraph 5 of the orderdated 4th March 2020. If the intention of theapplicants was really bona fide, long back, theycould have applied for relocation of the templefrom the footpath. But their intention appears tobe to protect the illegality. We do not think thatany god or religion will support an illegalreligious structure which is on a footpath. Areligious structure cannot become an obstacleon a footpath which is meant for walking. Evenassuming that what is stated in the application iscorrect, at highest, the applicants will be justifiedin applying for relocation of the said temple.After one applications of the residents wasrejected, this is the second application forintervention which cannot be entertained. Inparagraph 6 of the application, it is claimed that the temple was in established in 1854. Thephotographs of the structure clearly show thatthe statement is false and the structure appearsto be a newly constructed structure.
Direction of the Court
The Court directed the applicants to paya sum of Rs.25,000/- to the Chief Minister’sCovid-19 Relief Fund. A scanned copy of the receipt of payment of donation shall be forwarded to the Registrar (Judicial) of this Court within a period of six weeks from today.
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