Karnataka High Court
Sohams Bicester Village Block B vs Bangalore Water Supply And on 9 December, 2022
Author: Krishna S.Dixit
Bench: Krishna S.Dixit
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 9TH DAY OF DECEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
WRIT PETITION NO.13445 OF 2021(GM-BWSSB)
BETWEEN:
SOHAMS BICESTER VILLAGE BLOCK'B',
APARTMENT OWNERS ASSOCIATION,
2ND CROSS, THIMMA REDDY COLONY,
JEEVAN BHEEMA NAGAR,
BENGALURU - 560 075.
REPRESENTED BY ITS PRESIDENT,
SRI.NEELAKANTA RAO KULKARNI,
S/O SHRI RAMA RAO KULKARNI,
AGED ABOUT 57 YEARS,
...PETITIONER
(BY SRI.H N SHASHIDHAR, SENIOR COUNSEL A/W
SRI.H S SUHAS, ADVOCATE)
AND:
1. BANGALORE WATER SUPPLY AND
SEWERAGE BOARD, 1ST FLOOR,
CAUVERY BHAVAN, K G ROAD,
BENGALURU - 560 009.
REPRESENTED BY ITS CHAIRMAN.
2. THE EXECUTIVE ENGINEER,
WATER SUPPLY & SANITARY DIVISION,
SOUTH EAST-1,
BANGALORE WATER SUPPLY & SEWERAGE BOARD,
10TH MAIN, 1ST CROSS,
INDIRANAGAR II STAGE,
BENGALURU - 560 038.
2
3. THE ASSISTANT EXECUTIVE ENGINEER,
SOUTH EAST-2 SUB DIVISION,
BANGALORE WATER SUPPLY & SEWERAGE BOARD,
10TH MAIN, 7TH CROSS, INDIRANAGAR,
HAL II STAGE, BENGALURU - 560 038.
4. THE POLICE INSPECTOR,
B M T F, POLICE STATION,
BRUHATH BENGALURU MAHANAGARA,
N R SQUARE, BENGALURU - 560 002.
5. AHSRAYA APARTMENTS,
OWNERS ASSOCIATION
(REGD NO.397:97-98)
SY.NO.52/2, KODIHALLI VILLAGE,
F-3 LANE, JEEVAN BHIMA NAGAR,
BENGALURU - 560 075.
REPRESENTED BY ITS
SECRETARY-MR.SHINJAN PAL,
S/O LATE SAMIR KUMAR PAL,
AGED ABOUT 45 YEARS,
6. LAA RESIDENCY,
OWNERS ASSOCIATION
(REGD NO.DRO/SJN/SOR/276/13-14)
SY.NO.52/2, KODIHALLI VILLAGE,
F-3 LANE, JEEVAN BHIMA NAGAR,
BENGALURU - 560 075.
REPRESENTED BY ITS
AUTHORISED SIGNATORY,
S/O LATE C M CHENGAPPA,
AGED ABOUT 43 YEARS,
7. BRUHAT BENGALURU MAHANAGARA PALIKE,
HUDSON CIRLCE, N R SQUARE,
BENGALURU - 560 002.
REPRESENTED BY ITS COMMISSIONER.
...RESPONDENTS
(BY SRI. MONESH KUMAR K B, ADVOCATE FOR R1 TO R3;
SRI. P N MANMOHAN, ADVOCATE FOR R5 & R6;
SRI. B L SANJEEV, ADVOCATE FOR R7;
R4 SERVED AND UNREPRESENTED)
3
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE COMMUNICATION DATED 30.06.2021 ISSUED BY
THE R2 VIDE ANNEXURE-A AND ETC.,
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDER, THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
ORDER
Petitioner, a registered Association of apartment owners, is knocking at the doors of Writ Court for assailing the seeking invalidation of 2nd Respondent's communication dated 30.06.2021 at Annexure-A, which is to the effect that laying of UGD lines and construction of Machine Holes in the subject property cannot be accomplished because of pendency of certain cases and also the objection of BDA engineer thereto. Petitioner has also sought for a Writ of Mandamus to the 2nd Respondent-BWSSB and for a direction to the 4th Respondent-Police to give protection to the workers so that such accomplishment fructifies.
2. Learned Sr. Advocate appearing for the Petitioner-Association argues that the work of the kind 4 falls u/s 77 of Bangalore Water Supply and Sewerage Act, 1964; it is open to the BWSSB to lay sewage lines and water pipes in any property, whether private or public sans acquisition and that nobody can object to the same. However, owner of the private land can seek damages/compensation if there is any damage occasioned by such laying. There being already sanction for undertaking the work in question for which the Petitioner has already paid Rs.2,45,087.78/-, the work in question needs to be accomplished on a war footing especially when heavens open and rains would lash in Bangalore & around, being unpredictable.
3. After service of notice, learned panel Counsel appears for the Respondent Nos.1, 2 & 3; learned AGA appears for the 4th Respondent-Police; learned private advocate appears for Respondent Nos.5 & 6 namely the other apartment owners, who have filed the Statement of Objections on 17.10.2022 opposing the Writ Petition. Sr. Panel Counsel appears for 7th Respondent-BBMP. The 5 Panel advocates appearing for the BWSSB & BBMP, broadly support the case of Petitioner contending that the provisions of Sections 77 & 78 of the 1964 Act authorizes laying of sewage/water lines even in the private property. Sr. Panel Counsel Mr.B.L.Sanjeev contends that the subject road belongs to BBMP and therefore, the private Respondent Nos.5 & 6 cannot object.
4. Learned counsel appearing for the private Respondents resist the Writ Petition vehemently contending that the subject road belongs to the ownership of his clients; case of the Petitioner arguably falls in Section 78 of the 1964 Act and therefore, unless the conditions precedent such as inevitability and feasibility of the private property being used for the purpose in question, the subject work cannot be accomplished, to the prejudice of his clients. To assuage the apprehension of these Respondents, the Petitioner- Association and the 2nd Respondent-BWSSB have filed Memos which will be adverted to in due course. 6
5. Having heard the learned counsel for the parties and having perused the Petition Papers, this Court is inclined to grant conditional indulgence in the matter inasmuch as the BWSSB being a statutory authority, is empowered under Sections 77 & 78 of the 1964 Act to lay sewage and water supply lines in any property whether private or public, as rightly argued by learned Sr. Advocate Mr.H.N.Shashidhar appearing for the Petitioner and the learned Sr. Panel Counsel Mr.B.L.Sanjeev appearing for the BBMP. The text of Sections 77(1) & 78(1) of the 1964 Act, is as under:
"77. Rights of user of property for sewers.--(1) The Board may place and maintain sewers over, under, along or across any immovable property whether within or without the local limits of the Bangalore Metropolitan Area, without acquiring the same, and may at any time for the purpose of examining, repairing, altering or removing any sewers enter on any property over, under, along or across which the sewers have been laid:
Provided that the Board shall not acquire any right other than a right of user in the property over, under, along or across which any sewer is laid.7
78. Power of owner of premises to lay sewer through land belonging to other persons.--(1) If it appears to the Board that the only or most convenient means of sewerage of any premises is by laying any sewer over, under, along or across the immovable property of another person, the Board may, by order in writing, authorise the owner of the premises to lay or carry such sewer over, under, along or across such immovable property:
Provided that before making any such order the Board shall give to the owner of the immovable property a reasonable opportunity of showing cause within such time as may be prescribed by regulations made in this behalf as to why the order should not be made:
Provided further that the owner of the premises shall not acquire any right other than a right of user in the property over, under, along or across which any such sewer is laid."
6. The provisions of Section 77 authorize the BWSSB to enter any private land for laying, repairing or re-laying the sewage lines beneath the private property of the citizens even without any acquisition. However, for the damage if caused during the accomplishment of said task, to the private property of the citizen, the Section provides for payment of compensation. The payment of compensation is not and cannot be a sine qua non for 8 undertaking the task in question. The compensation in the text and context of this Section is nothing but the damages for the loss caused to the owner of the property and not for the apprehended loss. The section does not indicate the anticipatory compensation. An argument to the contrary would militate against the content & intent of the said provision. No law or Ruling is cited by the counsel for the contesting Respondents to support an otherwise construction of this provision. The BWSSB is a statutory public body. The civic life of the city depends upon the functions of this body. That is the reason why peculiar and special provisions like Section 77 are made in the Act. The difficulty of the BWSSB in the absence of such a provision is easily understandable. The public interest in which the BWSSB functions has to have primacy over the private interest of the persons. It is not that the legal injury the citizen suffers by the operation of the agencies of the BWSSB is without remedy. The Section itself mentions the right and remedy for its violation. Presently the work of the BWSSB which is half 9 way through is at halt because of obstruction by the quarters that be.
7. The apprehension of counsel for the Respondent Nos.5 & 6 that there is a traditional well which may get polluted or damaged by virtue of likely seepage of water/sewage line causing health hazard, also cannot be overlooked. This is agreed to be addressed by the BWSSB with the concurrence of the Petitioner by filing a Memo dated 8.12.2022 which reads as under:
"The Respondents No.1 to 3 submit that there is a WELL in the vicinity of the Respondent No.5 & 6 Apartment Blocks.
The Respondents No.1 to 3 have initiated the task of providing Sewerline to the Petitioner Association. In this regard the Respondents No.1 to 3 submit that they will undertake periodical maintenance of the sewer lines to ensure that there is no leakage of sewage. It is submitted that in the event of any sewage leak/overflow inspite of regular maintenance, the Respondents No.1 to 3 shall ensure correctional measures no sooner it is brought to their knowledge.
It is further prayed that this Hon'ble Court be pleased to permit the Respondents No.1 to 3 to make use of their men, material, machinery through the Road where 10 the sewer lines are now being laid in the interest of justice & equity."
8. The apprehension of private Respondents that once the sewage/water lines are laid in the subject road, the members of Petitioner-Association or other owners of the said building may throng on the said road as a thoroughfare and that would generate a lot of tumult disturbing the inmates of Petitioner's building, need not go unaddressed. The Petitioner-Association through its authorized signatory has also filed a MEMO OF UNDERTAKING dated 8.12.2022 which assures the Court that such things will not happen and that the road in question shall not be used by the inmates of Association building. The said memo reads as under:
"The members of the Petitioner association have never used the F3 road as thoroughfare. The undersigned herewith states that the members of the Petitioner association will not use the F3 road as thoroughfare. The same may be taken on record to dispose of the matter in the interest of justice and equity."
In view of the above, I make the following:
ORDER 11
1. Writ Petition is disposed off directing the Respondent-BWSSB to accomplish the task in question, in terms of subject Work Orders/Revised Orders on a war footing, without interference from anyone but in accordance with law and after taking all due care and caution so that no damage is caused to the buildings around.
2. If there is any damage to the buildings, it is open to the aggrieved including Respondent Nos.5 & 6 to seek redressal by taking up appropriate proceedings in accordance with law and in that connection, all contentions are kept open.
3. The undertaking given by the Petitioner and by the Respondent-BWSSB for protecting the traditional well in question, at the cost of Petitioner, is placed on record. The said undertaking shall be scrupulously adhered to, without any excuse and within a reasonable period and further, at the cost of those who gave the undertaking.
4. Petitioner's undertaking that the inmates of its buildings/flats/apartments shall not make use of the subject road, except for repairs, etc., shall be scrupulously observed.
5. It hardly needs to be stated that if the aforesaid undertakings that are structured on a tripartite arrangement are not adhered to, the same may amount to contempt of this court, since this judgment is inter alia structured on those undertakings. However, nothing is opined 12 as to the subject road being private or public road.
6. Should the Respondent Nos.6 and/or 7 lay a challenge to this judgment, it is open to the Petitioner and the Respondent-BWSSB to unconditionally withdraw the above undertaking given by them, on the suggestion of this Court.
This court appreciates the presence and participation of BBMP Assistant Engineer Mrs. Shilpashree. The registry shall share a copy of this order with the said gentle lady.
Costs made easy.
Sd/-
JUDGE cbc