Brief Facts
Perusal of the orders passed from time to time will show that Bruhat Bengaluru Mahanagara Palike (BBMP) had assured the Court toremove the illegal structure of the temple on thefootpath. 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 noticesissued by BBMP. He has stated that the structureof the temple is on a footpath. A status reportwas filed on 8th January 2020 recording that theAssistant Executive Engineer, BBMP hasaddressed a letter to the local police station on6th January 2020. It is further recorded that asthe police were unable to give protection, thedemolition could not take place. There was anundertaking/assurance given in the memo dated8th January 2020 by BBMP, assuring that BBMPwill initiate demolition work with the assistanceof the police.
For one reason or the other, theillegal structure of the temple has not beenremoved notwithstanding the grant of time onseveral occasions. In fact, on 11th December2019, an undertaking of BBMP was recorded thatin terms of the order dated 17th February 2010issued by the State Government that they will dothe needful by demolishing the structure. Theorder dated 17th February 2010 was passed bythe Government on the basis of the directions issued on 7th December 2009 by the Apex Courtin the Special Leave to Appeal No.8519/2006.Notwithstanding the said assurance, till today,action has not been taken. Thereafter, on 28thJanuary 2020, the learned AdditionalGovernment Advocate stated before the Courtthat the jurisdictional police will rendernecessary help, assistance and protection to theofficers of BBMP for carrying out demolition onthe date fixed by BBMP.
On 4th March 2020, I.A.No.1/2020 was movedby the General Secretary of the Confederation ofAll Residents Welfare Association. In paragraph2 of the order dated 4th March 2020, thestatement of the General Secretary ofConfederation of All Residents WelfareAssociation who was the applicant in I.ANo.1/2020 was recorded that prior to 2009, a newstructure 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 thereceipt of payment of donation shall beforwarded to the Registrar (Judicial) of this Courtwithin a period of six weeks from today.
