In case of failure to obtain some clearances could even make the BDA and the government liable for contempt of court.

Is Bengaluru steel flyover legal Environmentalists say many clearances still pendingImage: Picture from steel flyover protest
news Steel Flyover Thursday, October 27, 2016 - 16:39

The Karnataka government is all set to go ahead on November 1 with the laying of the foundation stone for the steel flyover from Basaveshwara circle to Esteem Mall. 

With the government eager to get construction started on the flyover as soon as possible, the BDA issued a letter of acceptance on Wednesday to Larsen and Toubro, and the work order is likely to be issued by the first week of November. 

However, according to environmentalists who are in vocal opposition to the project, the Siddaramaiah government has not only turned a blind eye to protestors, but has not yet obtained all the clearances necessary for the project.

Speaking to The News Minute, Co-ordinator for the Environment Support Group, Leo Saldanha says that a failure to obtain some clearances could even make the BDA and the government liable for contempt of court. 

Metropolitan Planning Committee bypassed

Saldanha says that the manner in which the project has been spearheaded by the BDA without taking on board the Metropolitan Planning Committee is a fundamental flaw since the BDA does not technically have the competency to plan and execute the project on its own. 

The BDA, he says, was an Emergency era agency that bypasses local government in favour of the state government’s vision of the city, and such an exercise of planning powers is against the law.  

“In Karnataka, BDA was an agency created during the Emergency by the then chief minister Devaraj Urs. It is undemocratic that the BDA was not dissolved after the Emergency was called off. It continued to be undemocratic as it is in violation of the Nagarpalika Act that was passed in 1992. BDA should have been wound up as the Metropolitan Planning Committee alone has the powers to plan. This is a constitutional mandate,” asserts Saldanha. 

The BMPC was constitutionally mandated by the 74th Amendment to the Constitution, enacted in 1992, but was constituted only in September 2014, after the Karnataka High Court ordered the government to do so. 

Observing that the BDA was formed by subordinate legislation, and that state law and the Constitution rank above that, Saldanha asks, “When there is a Metropolitan Planning Committee how can the BDA be the planning agency?” 

Forest clearance

Another major clearance that the steel flyover requires is from the Forest Department, since the project mandates the felling of an estimated 812 trees. This is required by orders passed by a Supreme Court bench led by Chief Justice JS Verma in the Godvarman case in 1996, says Saldanha. 

“Appu Rao, the Deputy Conservator of Forests (DCF), has said the right thing when he said that he would be forming a tree committee when the BDA comes for clearance for the project. If not he will be filing a criminal case against BDA,” Saldanha said. 

Earlier, the DCF had said that he had not yet received any applications from the BDA seeking permission to cut trees.

 “As the issue is to cut more than 812 trees, permission is required. Before that, I will be forming a tree committee, which includes local elected representatives and environmentalists. This committee will take a final call on providing permission to cut the trees,” the DCF said.

Land-use change

Saldanha adds that the project also requires multiple changes in land-use for which permission should be sought according to the Karnataka Town and Country Planning Act, 1962. The granting of permissions requires involvement of the public in the planning of the project at the stage of conceptualisation, approval and costing of an urban infrastructure project. 

Environmental clearance with an EIA notification

The State Environmental Impact Assessment Authority (SEIAA) cleared the steel flyover project claiming that a steel flyover is not among the list of infrastructural projects that needs clearance, adds Saldanha. However, some members of Authority have reportedly objected, saying that the project should have been returned without clearance if it did not fall within the purview of the Authority.

The SEIAA reportedly wants to approach the Ministry of Environment and Forests (MoEF) for a relook at the project, although it seems unlikely that this will be possible before the November 1 deadline. 

No Buffer Zone around lake

Finally, says Saldanha, as the steel flyover, in its current alignment, necessitates construction in the Hebbal lake bund, this violates rules regarding lake zones. “The map shows that a part of the ramp will come on the Hebbal lake bund. Since the bund won’t be strong enough to hold the steel flyover, naturally it will have to be drained out,” he said. 

The High Court, in a 2011 order, made it mandatory for all construction projects to abide by NGT guidelines on buffer zones around lakes. The NGT in its May 4, 2016 order stated that the buffer zone should be at least 75m. Thus, the BDA and the state government will be in contempt of court if they flout the rules, he says.

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