Karnataka High Court
Mr C N Kumar vs The Bruhat Bengaluru Mahanagara Palike on 16 December, 2015
Author: Subhro Kamal Mukherjee
Bench: Subhro Kamal Mukherjee
-: 1 :-
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16th DAY OF DECEMBER, 2015
-: PRESENT :-
THE HON'BLE MR.SUBHRO KAMAL MUKHERJEE,
ACTING CHIEF JUSTICE
AND
THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA
WRIT PETITION No.18873/2012 (LB-BMP-PIL)
BETWEEN:
MR. C.N. KUMAR,
S/O LATE MR. C.S. NARAYAN,
AGED ABOUT 57 YEARS,
RESIDING AT NO.18,
4TH CROSS, 10TH C MAIN,
1ST BLOCK, JAYANAGAR,
BANGALORE-560 011. ... PETITIONER
(BY SRI: ADITYA SONDHI, SENIOR ADVOCATE FOR MRS.
NIDHISHREE.B.V, & SRI. KARAN JOSEPH, ADVOCATES)
AND:
1. THE BRUHAT BENGALURU MAHANAGARA PALIKE,
N.R. SQUARE, BANGALORE-560 002,
REPRESENTED BY ITS COMMISSIONER.
2. KARNATAKA STATE FIRE AND EMERGENCY SERVICES,
NO. 1, ANNASWAMY MUDALIAR ROAD,
BANGALORE-560 042,
REPRESENTED BY DIRECTOR GENERAL OF
POLICE AND DIRECTOR.
3. THE BANGALORE WATER SUPPLY AND
SEWERAGE BOARD,
CAUVERY BHAVAN, BANGALORE-560 009,
-: 2 :-
REPRESENTED BY ITS CHAIRMAN.
4. THE BANGALORE ELECTRICITY SUPPLY COMPANY,
K.R. CIRCLE, BANGALORE-560 001,
REPRESENTED BY ITS MANAGING DIRECTOR.
5. M/S BYSANI DEVELOPERS,
M-04, SURAJ TOWERS, 216/13,
27TH CROSS, 9TH MAIN,
III BLOCK JAYANAGAR,
BANGALORE-560 011,
REPRESENTED BY ITS PARTNER.
6. KARNATAKA LOKAYUKTA,
M.S. BUILDING, BANGALORE-560 001.
REPRESENTED BY ITS REGISTRAR.
7. MR. C.S. DAKSHINA MURTHY,
S/O C. SESHADRI SHARMA,
AGED 67 YEARS,
RESIDING BYSANI SKYWAY APARTMENT,
MOUNTAIN ROAD, JAYANAGAR 1ST BLOCK,
BANGALORE-560 011.
8. MRS. VINUTHA V CHANAGIRI,
W/O VIKRAM CHANAGIRI,
AGED 36 YEARS,
RESIDING AT BYSANI SKYWAY APARTMENT,
MOUNTAIN ROAD, JAYANAGAR 1ST BLOCK,
BANGALORE-560 011.
9. MR. SRIDHAR RANED MURTHY,
S/O RJK MURTHY,
AGED 72 YEARS,
RESIDING AT BYSANI SKYWAY APARTMENT,
MOUNTAIN ROAD, JAYANAGAR 1ST BLOCK,
BANGALORE-560 011.
10. MR. G. CHANDRAKANT,
S/O S. GOPINATH,
AGED 62 YEARS,
RESIDING AT BYSANI SKYWAY APARTMENT,
MOUNTAIN ROAD, JAYANAGAR 1ST BLOCK,
-: 3 :-
BANGALORE-560 011.
11. MR. VIMAL JAIN,
S/O BHANWARILAL JAIN,
AGED ABOUT 40 YEARS,
RESIDING AT BYSANI SKYWAY APARTMENT,
MOUNTAIN ROAD, JAYANAGAR 1ST BLOCK,
BANGALORE-560 011.
12. MR. KIRAN SREEDHAR,
S/O S. SREEDHAR,
AGED ABOUT 33 YEARS,
RESIDING AT BYSANI SKYWAY APARTMENT,
MOUNTAIN ROAD, JAYANAGAR 1ST BLOCK,
BANGALORE-560 011.
13. MR. S. HARISH KRISHNAN,
S/O K.S. SUBRAMANIAN,
AGED ABOUT 35 YEARS,
RESIDING AT BYSANI SKYWAY APARTMENT,
MOUNTAIN ROAD, JAYANAGAR 1ST BLOCK,
BANGALORE-560 011.
14. MR. R.K. RAGHAVENDRA,
S/O RJK MURTHY,
AGED ABOUT 74 YEARS,
RESIDING AT BYSANI SKYWAY APARTMENT,
MOUNTAIN ROAD, JAYANAGAR 1ST BLOCK,
BANGALORE-560 011.
15. MR. B. MADHU,
S/O V. BANGARASWAMY,
AGED ABOUT 45 YEARS,
RESIDING AT BYSANI SKYWAY APARTMENT,
MOUNTAIN ROAD, JAYANAGAR 1ST BLOCK,
BANGALORE-560 011.
16. MS. PRABHAMANI RAO,
W/O LT. COL. MSV RAO,
AGED 79 YEARS,
RESIDING AT BYSANI SKYWAY APARTMENT,
MOUNTAIN ROAD, JAYANAGAR 1ST BLOCK,
BANGALORE-560 011.
-: 4 :-
17. MR. SHYAM SUNDER RAO,
S/O LT. COL. MSV RAO,
AGED 55 YEARS,
RESIDING AT BYSANI SKYWAY APARTMENT,
MOUNTAIN ROAD, JAYANAGAR 1ST BLOCK,
BANGALORE-560 011.
18. MR. BALASUBRAMANYAM LS,
S/O SESHAGIRI RAO,
AGED 71 YEARS,
RESIDING AT BYSANI SKYWAY APARTMENT,
MOUNTAIN ROAD, JAYANAGAR 1ST BLOCK,
BANGALORE-560 011.
19. MR. V. SARVOTHAM,
S/O S. VEERABHADRA SETTY,
AGED 73 YEARS,
RESIDING AT BYSANI SKYWAY APARTMENT,
MOUNTAIN ROAD, JAYANAGAR 1ST BLOCK,
BANGALORE-560 011.
20. MR. P.M. AKSHAR,
S/O P.G. MANJUNATH,
AGED 30 YEARS,
RESIDING AT BYSANI SKYWAY APARTMENT,
MOUNTAIN ROAD, JAYANAGAR 1ST BLOCK,
BANGALORE-560 011.
21. MR. ANURAG,
S/O RAJGOPAL,
AGED 32 YEARS,
RESIDING AT BYSANI SKYWAY APARTMENT,
MOUNTAIN ROAD, JAYANAGAR 1ST BLOCK,
BANGALORE-560 011.
22. MR. CHETAN,
S/O P. VENUGOPAL,
AGED 45 YEARS,
RESIDING AT BYSANI SKYWAY APARTMENT,
MOUNTAIN ROAD, JAYANAGAR 1ST BLOCK,
BANGALORE-560 011.
-: 5 :-
23. MR. J. SANDEEP
S/O H.N. JAGADISH,
AGED ABOUT 39 YEARS,
RESIDING AT #541, 14TH MAIN,
26TH CROSS, BANASHANKARI 2ND STAGE,
BANGALORE-560 070.
24. MR. D.R. MURALI
S/O LATE D. RAMA RAO,
AGED ABOUT 55 YEARS,
RESIDING AT #216, 15TH MAIN,
24TH CROSS, BANASHANKARI 2ND STAGE,
BANGALORE-560 070.
25. MR. C.S. CHEKI (BABU),
S/O SHANKARAPPA,
AGED ABOUT 65 YEARS,
RESIDING AT #36A, 2ND MAIN,
29TH CROSS, 7TH BLOCK, JAYANAGAR,
BANGALORE-560 082.
26. MR. N. KANNAN,
S/O LATE R NAGARAJAN,
RESIDING AT #D2-2,
MANTRI GARDENS, MOUNTAIN ROAD,
MADHAVAN PARK, JAYANAGAR,
BANGALORE-560 011. ... RESPONDENTS
(BY SRI: K.N. PUTTEGOWDA, ADVOCATE FOR R1; MISS.
NILOUFER AKBAR, ADDITIONAL GOVERNMENT ADVOCATE FOR
R2; SRI. M.S. NARAYAN, ADVOCATE FOR R3; SRI. G. KRISHNA
MURTHY, SENIOR ADVOCATE FOR CHANDRAKANTH PATIL .K,
ADVOCATE FOR R4; SRI. K. SUMAN, ADVOCATE FOR R5; SRI.
G. DEVRAJ, ADVOCATE FOR R6; SRI. H. SUBRAMANYA JOIS,
SENIOR ADVOCATE FOR SRI. K.C. SHANTA KUMAR, ADVOCATE
FOR R7 TO R22; SRI. S.V. BHAT, ADVOCATE FOR R23 TO R26)
*****
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
SANCTIONED PLAN DTD.11.2.2005 SANCTIONED BY THE R1
VIDE ANNEX-B.
-: 6 :-
THE ORDER IN THIS PETITION HAVING BEEN RESERVED
ON 13/8/2015 AND IT BEING LISTED FOR PRONOUNCEMENT
TODAY, NAGARATHNA J., PRONOUNCED THE FOLLOWING:
ORDER
Petitioner claims to have filed this writ petition in public interest, assailing sanctioned plan bearing LP No.21/2004-05 dated February 11, 2005 issued by respondent No.1 - Bruhat Bengaluru Mahanagara Palike (BBMP) in respect of a building situated at No.14/1, Mountain Road, Byrasandra, Bengaluru-560 011 (hereinafter referred to as "the building in question"). The petitioner is also questioning partial occupation of the building in question without obtaining occupancy certificate and also to restore the roads abutting the building in question to its original condition.
2. According to the petitioner, the building in question is a high rise residential construction, -: 7 :- comprising of thirteen floors, which has been built in violation of the building regulations and fire safety norms. It is the case of the petitioner that several provisions of the Bengaluru Mahanagara Palike Building Bye-Laws, 2003, ('Building Bye-Laws' for short) have been violated in the sanctioning of the plan and also during the construction of the building in question having regard to the narrow road, on which the building is constructed, there being lack of minimum road width, facing the high rise building, which, according to the petitioner should be, 12 meters atleast. That the building has been constructed at the dead-end of the narrow road. Running parallel to the road, are the main water lines that carry water from River Cauvery to Bengaluru Water Supply and Sewerage Board's (BWSSB) ground level reservoir, very close to the site. That the road in front of the building is at two levels: one, at a higher -: 8 :- level, appurtenant to the building and the other, at a lower level, running parallel to the higher level road and embankment. Both these roads, which are at different levels are taken into consideration by respondent No.1 - BBMP to arrive at a road width of 19.3 metres as being sufficient for the purpose of sanctioning the building plan. According to the petitioner, the minimum single road width required for sanctioning a high rise building plan is 12 metres, which is not so in the instant case. Also, fire safety requirement as stipulated in clause 23 of the Building Bye-Laws, have not been complied with during the construction of the building and that there are several other violations committed by respondent No.1 - BBMP while sanctioning the plan for the building in question according to the petitioner, who has sought the aforesaid prayers.
-: 9 :-
3. Respondents have filed counter affidavits/statement of objections to the writ petition. Petitioner has filed his rejoinder.
4. The writ petition has been listed on several dates and the matter has been considered at length.
5. Learned senior counsel, Sri.Sondhi, appearing for the petitioner, has drawn our attention to several aspects involved in the construction of a high rise building on the road in question namely, Mountain Road, which is at two levels and highlighted that the building in question has been constructed in total violation of the building bye-laws. This is because the BBMP has sanctioned the plan in total violation of the Building Bye-Laws. That without occupancy certificate being granted by respondent No.1 - BBMP there is already partial occupation of the building. Respondent No.5 - builder has permitted -: 10 :- some of the flats being occupied by the purchasers, in the absence of any clearance given by BBMP. That fire safety norms have not been complied with during the construction of the building and thereafter, on completion thereof. That the inmates of the building would be at risk of life in case there is a fire mishap or an accident as no fire extinguisher or any such vehicle can move in the narrow road. That respondent No.2 Karnataka State Fire and Emergency Services could not have permitted such a building to be constructed as it is lacking in fire safety norms.
6. Per contra, learned counsel for the respondents, with reference to their affidavits and statement of objections, have contended that there is no merit in the writ petition and have sought dismissal of the writ petition. In this regard, it would be useful to refer to the respective pleadings of the respondents.
-: 11 :-
7. Respondent No.3, through the Assistant Executive Engineer, South West 4 Sub-Division has stated that on the road in question, a main water pipeline exists and through the said pipeline water is being supplied to Byrasandra Reservoir. But due to the road in question being spruced up as an approach road for the building in question, there was imminent danger to the main pipeline being damaged. That in this regard, communication was issued by respondent No.3 - BWSSB to respondent No.1- BBMP to issue directions to stop further construction being put up by respondent No.5 and to inform the latter to make use of the alternative road, which originates from Madhavan Park (Mountain Road), which actually connects the property of respondent No.5-developers and the proposed road on which the construction was contemplated to enure to the benefit of respondent No.5 to be stopped completely. This was because, -: 12 :- any damage caused to the pipeline would have resulted in disruption of water supply to the citizens of Bengaluru, as the pipeline is a feeder line and an important main line. Therefore, it was communicated to the concerned engineers of respondent No.3- BWSSB to take steps for safeguarding the pipeline. Respondent No.3 had brought to the notice of respondent No.1-BBMP, the adverse consequences of interfering with Mountain Road, opposite the building in question. In the circumstances, respondent No.3 - BWSSB has sought suitable directions to respondent No.1 - BBMP with regard to safe-guarding the water lines on Mountain Road and not to permit respondent No.5 - developers to take such steps, which would have an adverse impact on the water pipes thereby resulting in disruption of water supply to parts of Bengaluru City.
-: 13 :-
8. Respondent No.1 - BBMP has also filed its statement of objections contending that the Plan Scrutiny Committee after verification of the documents produced by respondent No.5 - developers and after spot inspection and verification of the road width and also considering the 'No Objection Certificate' issued by respondent Nos.2 and 3, sanctioned the plan for the construction of building in question as per the prevailing Building Bye-Laws on 11/2/2005, comprising of ground + 13 upper floors, in two blocks consisting of 72 flats.
9. Referring to clause 2.79 of the Building Bye-Laws of 2003, which defines 'road width', it is averred that the road in question namely, Mountain Road is at a split level, drains are located on the northern edge of the upper portion and southern edge of lower portion of the road, which is located between them and the properties are built adjacent to the said -: 14 :- drainage. That the entire road as a single road, measured 19.30 metres, having regard to the said road being considered as a single road and not two roads running parallel to each other.
10. By referring to the definition of 'street' in clause 2.82 of National Building Code of India, 2005, it is averred that the width of the road is 19.30 metres, as a single road. That even as per the records of the BBMP, Mountain Road is considered to be a single road. That the officials of the BBMP, while sanctioning the plan of the building in question, have taken note of the Revised Comprehensive Development Plan- 1995, now called as Revised Master Plan-2015, wherein the road is shown as a single road.
11. That on the instructions of the Hon'ble Lokayukta issued by letter dated 22/2/2008 (Annexure-R4), the sanctioned plan was withdrawn by -: 15 :- order dated 31/3/2008. The order of withdrawal of the sanctioned plan was questioned by respondent No.5 - developers in W.P.No.5934/2008. Hon'ble Single Judge of this Court allowed the writ petition in part and directed respondent No.1-BBMP to treat the order dated 31/3/2008 as a show-cause notice and permit respondent No.5 to file its explanation and thereafter, directed the respondent No.1 - BBMP to consider and pass an appropriate order in accordance with law. Respondent No.5 submitted a detailed reply to BBMP on 6/8/2008. The latter wrote to the Director of Town Planning and the Commissioner, Bangalore Development Authority, to ascertain about the width of the road and as to whether the plan sanctioned was in order. Both authorities held that although the road is a split level road, it must be treated as a single road and that the plan sanctioned by BBMP was in order. -: 16 :- Subsequently, the cancellation of the plan was withdrawn by order dated 3/8/2009.
12. When the matter stood thus, once again the Hon'ble Lokayukta passed an order on 15/12/2009 directing withdrawal of the aforesaid order dated 3/8/2009 passed by BBMP and thereby directed respondent No.5 - developers not to continue with the construction work. This order of the Lokayukta was assailed by respondent No.5 in W.P.No.38091/2009 before this Court, which was allowed by a Hon'ble single Judge, by order dated 23/6/2010. Aggrieved by that order, the Hon'ble Lokayukta had preferred W.A.No.3212/2010, which was dismissed by order dated 16/1/2012 by a Division Bench of this Court.
13. In the meanwhile, petitioner herein who had addressed a letter dated 17/9/2008 to BBMP, raising objections to sanction of plan in favour of -: 17 :- respondent No.5, also raised objections with regard to occupation of building without occupancy certificate. It is admitted that BBMP has not issued any occupancy certificate to respondent No.5 - developers as the latter has not produced 'No Objection Certificate' from respondent No.2 - Karnataka State Fire and Emergency Services Department. In substance, by contending that the width of the road in question is over 12 metres, whereas the minimum access required for the road is only 12 metres and that the plan sanctioned for the construction of the building by respondent - BBMP was in accordance with Building Bye-Laws, respondent No.1 - BBMP has sought dismissal of the writ petition.
14. Respondent No.5, in its statement of objections has submitted that the writ petition is not maintainable as it is hit by principles of delay and laches as the construction of the building in question -: 18 :- is already completed. It is also contended that the writ petition has not been filed in public interest by the petitioner as he has filed the same for the purpose of harassing and vexing respondent No.5 with an ulterior motive and goal. It is submitted that the building in question was completed long ago pursuant to sanctioned plan, issued by BBMP in the year 2005. That, apart from the petitioner, no other person has any grievance about the construction of the building in question. That the petitioner is not a neighbour residing in the locality. That he has made false complaints before various authorities including Hon'ble Lokayukta and not being successful before those authorities, has filed this writ petition, which is not in public interest. That the petitioner sought impleadment in W.P.No.5934/2008, which was filed by respondent No.5, but his application I.A.No.1/2008 filed in the said writ petition was dismissed, which -: 19 :- order has remained unchallenged. Therefore, the petitioner is estopped from filing this petition in public interest, is the contention of respondent No.5. It is also averred that the petitioner had filed a contempt of Court case before this Court in CCC.No.77/2009 against the officers of the BBMP as well as the partners of respondent No.5 firm, alleging that his representation had not been considered by BBMP. The contempt proceedings were dropped by this Court. Thus, the grievance of the petitioner came to an end on 13/4/2009 when the order was passed in the contempt proceedings. Thereafter, the petitioner has resorted to filing this writ petition in the year 2012, which according to respondent No.5 is not maintainable.
15. As far as the width of the road is concerned, it is averred that the same is 19.3 metres. That 1st Cross, Byrasandra Village, Jayanagar, -: 20 :- Bengaluru, on which the building in question is situated is called "Park Street" or "Mountain Street" or "Mountain Road" or "Mount Road", is at two levels. A portion of the road at the lower level has higher traffic flow than the portion of the road at the upper level. The latter road is wider than the portion of the road at the lower level and is at a height of about 2 metres above the portion of the road at the lower level. That the road is at split level for some distance and then merges at a particular point and continues further as a single road at the same level. That the BBMP after considering the site and location of the building and taking into consideration the Building Bye-Laws sanctioned the plan by order dated 11/2/2005 for construction of multistoried residential apartment comprising 72 flats with adequate car parking space. That commencement certificate was issued by BBMP on 24/12/2005 (Annexure-R5) and construction of the -: 21 :- apartment complex with two blocks i.e., ground floor + 13 floors of both the blocks have been completed. It is stated that having regard to the National Building Code and Bye-Laws, the width of the road is over 12 metres, which is the requisite width and not 8 metres, as contended by the petitioner. That on the said Mountain Road, there are other apartments such as 'Mantri Pride' and other huge constructions, but the petitioner has singled out respondent No.5 with an ulterior motive, by filing this writ petition with false accusations.
16. Referring to the definition of road width in Bye-Law No.2.70 of Building Bye-Laws - 2003, it is contended that though the road in the instant case had a split level, it has to be considered as one road as the split level is only for a short distance. That in order to meet fire safety norms, respondent No.5 has -: 22 :- maintained a set back of 13 metres, whereas only 6 metres is required for a fire engine to pass. That there is no impediment for fire engines or emergency vehicles to move on the road or for entering the area where building in question is situated and therefore, allegations regarding fire safety norms being violated by respondent No.5 are incorrect, is the averment.
17. It is also contended that the water lines passing on the road are in no way adversely affected by the construction of the building in question and therefore, respondent No.3 - BWSSB need not have any apprehension in that regard. Hence, respondent No.5 has sought dismissal of the writ petition.
18. During the pendency of the writ petition, several orders have been passed. The three orders dated 2/8/2013, 11/8/2014 and 9/9/2014 are relevant for the purpose of deciding the case. -: 23 :-
(a) Order dated 2/8/2013 reads as under:
"By order dated 07.08.2012, this Court had directed that status-quo be maintained as regards water pipes till the next date of hearing. The said order has been continued on subsequent dates till today.
We have heard learned counsel for the parties and perused the material on record particularly, Annexures-R.10 and R.12 annexed to the statement of objections filed by Bangalore Water Supply and Sewerage Board (for short 'the BWSSB).
Learned counsel for BWSSB states that in order to protect the water lines that are laid on Mountain Road on 26.06.2012, an estimate for the construction of certain works has been sent by BWSSB to Bruhat Bangalore Mahanagara Palike (for short 'the BBMP), but the BBMP has not yet responded to the said proposal of BWSSB. -: 24 :-
We also note that status quo order in effect would not be in the interest of protection of water pipes which are on Mountain Road, inasmuch as any proposed works for the protection of the water pipes is now stalled. Under the circumstances, the interim order granted earlier stands vacated.
The respondent-BBMP as well as BWSSB to jointly inspect the area
concerned and make a joint proposal for protection of water pipes. Any construction of or on the road therein should keep in mind Sections 28 and 29 of the Bangalore Water Supply and Sewerage Act, 1964. Also, any further construction in front of the premises constructed by respondent No.5 should be after the Report is submitted by the joint inspection and the proposals as stated therein. The joint inspection shall be made on an expeditious date and a Report submitted to this Court by the next date of hearing.
-: 25 :-
List this matter on 26.08.2013.
A copy of this order to be made available to learned counsel for the respective parties."
(b) Order dated 11/8/2014 reads as under:
"Without prejudice to the rights and contentions of the parties it was agreed among learned counsel for the petitioner, Mr.K.N.Putte Gowda appearing for R1 and learned counsel Mr.K.Suman appearing for R5 that the parties concerned shall hammer out a solution in respect of the width of the road in front of the multistoried construction in question so as to protect the pipelines operating in the present case as a median dividing the road as also to provide free and easy access to the fire fighters in case of need. It was stated at the Bar that keeping in view the analysis and observation made by learned Single Judge in the order dated 26th March 2013 in W.P.No.49732/2012, the kind of -: 26 :- access need to be devised so as to ensure that the total width of the road in front of the construction in question is more than 12 mtrs. or in case the road remains divided by the pipelines, there are such access points between two lanes of the road that a fire fighter can access both sides of the road particularly at the point where the construction in question is abutting the road.
Learned counsel jointly submitted that they will prepare an agreed plan of action specifying the measures required to be taken and the party concerned shall make necessary alteration on the road in respect of the levelling and construction of some kind of bridges on the pipelines laid in the middle of the road so as to allow servicing of the pipelines as well. We hope that the parties concerned shall cooperate in arriving at a constructive solution to the problem which is created on account of -: 27 :- strict and correct application of fire safety requirements at the road in question.
Hearing is adjourned to 1st September 2014 at the request of the learned counsel appearing on either side. The petition may not be required to be argued on legal issue, as the parties would come forward with an agreed solution which would ensure compliance with the fire safety measures as interpreted in the aforesaid judgment of learned Single Judge".
(c) Order dated 9/9/2014 is as under:
"Pursuant to the previous order dated 11.8.2014 the parties have made their proposals and counter proposals in respect of necessary changes required to be brought about particularly from the point of view of fire safety. However, they have not been able to arrive at a constructive solution as expected but the site has been jointly inspected as per the direction dated -: 28 :- 28.8.2014 and a report has been submitted to suggest required charges for permitting the construction named as Bysani Skyway Apartments to be put to use in a legal manner. According to that report respondent No.5 is required to deposit Rs.90 Lakhs.
On the other hand, learned Senior Counsel Mr.Aditya Sondhi, appearing for petitioner has filed a memo detailing objections and reasons as to why the proposal made through inspection memo should not be accepted. The main issue raised on behalf of petitioner is that any fire department official has not been involved in preparing the report for proposing a solution.
Under that circumstance, learned counsel Mr. Puttegowda, appearing for respondent No.1-BBMP, on instructions,
proposes to prepare details of proposed changes in the road and the pipe line in question so as to comply with the legal -: 29 :- requirements and obtain concurrence of Fire Department. Such a proposal is proposed to be prepared within two weeks and forwarded to the Chief Fire Officer- Respondent No.2, who, according to learned AGA, will examine the proposal and send his approval and/or suggestion within a period of one week. Therefore, time of three weeks is sought for carrying out the aforesaid process.
Accordingly, hearing is adjourned to 14.10.2014."
In the said orders, this Court directed respondent Nos.1 and 3 to submit a proposal to safeguard the water pipes and thereafter directions were issued to BBMP to visit the spot and measure the road width and submit a Report to this Court. Joint Inspection Report of BWSSB reads as under: -: 30 :-
"Joint inspection report as per the Direction of the Hon'ble High Court of Karnataka in W.P.No.18873/2012 (LB-BBMP) On 28-8-2014 At 10.00 AM BWSSB OFFICERS PRESENT:
1. Sri. T. Venkataraju, E.I.C
2. Sri. H.R. Narayanappa, ACE(M)-II
3. Sri. H.P. Gopala Gowda, EESW
4. Sri. Rajeev, AEE(SW)-4 BBMP Officers Present:
1. Sri. P.S. Ramesh, Chief Engineer (South)
2. Sri. Rajesh, EE, Chickpete Division
3. Sri. Rukkanna, M.B, AEE, Hombegowdanagara Sub-division
4. Sri. Sandeep, BC, AE, Ward No.153 The Hon'ble High Court of Karnataka in its order dated: 2-8-2013 had directed that, "the respondent - BBMP as well as BWSSB to jointly inspect the area concerned and make a joint proposal for protection of water supply pipes. Any construction of or on the road therein should keep in mind Sections 28 and 29 of the Bangalore Water Supply & Sewerage Act, 1964. Also, any further construction in front of the premises constructed by respondent No.5 should be after the report is submitted by the joint inspection and the proposals as stated therein. The joint inspection shall be made on an expeditious date and a report submitted to this court by the next date of hearing."-: 31 :-
The site was jointly inspected by BWSSB and BBMP officers once again on 28-8-2014 and it was observed that, there is no change in the decision taken in the previous joint inspection dated: 28-9-2013, 26-8-2013, 4-2- 2012 towards replacing the existing C.I line with M.S. pipeline to the tune of Rs.1.63 Crores under deposit out of BBMP.
The BBMP in their letter dated: 13-9- 2013 had requested BWSSB to allow them to provide an RCC deck slab over SSM side walls on the existing water supply pipes by providing sufficient free board to the water supply pipes and also for providing cement concrete to roads at the tendered cost of Rs.20,98,740/-
As the Hon'ble High Court of Karnataka has clearly indicated in the above para to make joint proposal for protection of water supply pipelines, the proposal of construction of size stone masonry with RCC Deck Slab will not fulfill the object of protecting the WS pipelines. The proposal of BBMP is also not technically feasible for the following reasons;
1. The existing earth cushion over the pipeline varies from 0.3mtr to 0.4mtrs where it is proposed to construct RCC Deck slab and also there is steep gradient in the corner to the end of the T-junction of Service Road and Mountain Road.
-: 32 :-
2. There are number of joints in the pipelines at the proposed deck slab location.
3. As proposed, if an RCC deck slab is provided at the said location, in the event of any future leaks occurrences in the joints, the deck slab & size stone masonry has to be completely dismantled and removed to attend the regular maintenance work. In order to avoid this, it is technically feasible to provide M.S pipelines with RCC encasing at the said location either at the cost of BBMP or by the Beneficiaries (M/s Bysani Sky Way Apartments.)
4. After observing real depth of earth cushion on the existing pipeline which varies from 0.3 to 0.4 meter cushion to an extent of 100 RMT and remaining, portion earth cushion of more than 1.00 to 1.50 Mtrs, it is finally concluded to take up the work of replacement of C.I water supply pipeline by M.S. water supply pipelines for a length of 70.00Rmt with RCC encasing at a cost of Rs.90.00 Lakhs instead of 250Rmt at Rs.1.63 Crores and to give clearance for formation of road.
5. During the inspection the authorities opined that, the road is exclusively beneficial to Bysani Sky Way -: 33 :- Apartment only. If the beneficiary had deposited the amount of Rs.90.00 Lakhs the work could have been taken up to solve the problem and protecting water supply line without any hindrance for future maintenance.
6. After receipt of the funds from the concerned work will be taken up as per KTTP Act and will be completed within 8 to10 months."
19. Inspection Report has been submitted by the BBMP indicating that the width of the road is 19.3 metres. It reads as under:
"As per the direction of the Hon'ble Court in Writ Petition No.18873/2012 (LB-BBMP) dated 25/9/2013. We, the following officers inspected the mountain road, 1st Block, Jayanagar in front of Bysani Apartment on 28/09/2013 at 10.30 a.m. We have taken the measurement of the road width in front of Bysani Apartment drain to drain and found that, the measurement of the road width in front of Bysani Apartment is 19.30 mtrs."-: 34 :-
20. Respondent No.5 - builder has measured the road in the presence of the officials of the Fire Safety Department and indicated that the width of the road is 12 metres.
21. In response to the proposal of the BWSSB, this Court directed respondent No.5 - builder to deposit a sum of Rs.90.00 lakh. Further, this Court directed respondent No.1 - BBMP to submit a proposal regarding the changes to be made to the road to enable the fire extinguishers to move on the said road in case of a fire emergency and also, to protect the water lines on the road.
22. Respondent No.5 - developer has filed a memorandum along with acknowledgement of respondent No.3 - BWSSB stating that a sum of Rs.90.00 lakh has been deposited and accepted. -: 35 :-
23. Respondent No.2 - Fire Force Department has also filed a Report stating that the building is safe and can be utilized. The relevant extract is as under:
"So far as the movement of Fire Fighting vehicle on the underground pipe is concerned, it will not cause harm to the underground pipe. The movement of the Fire Fighting Vehicle into the Bysani Apartment is concerned; the upper Mountain Road is suitable and accessible to the building in question in case of Fire Emergency.
3. During the present inspection it is also observed that the Wet Riser cum down comer system is in good working condition and the manual operated Fire alarm System is in good working condition. Similarly the automatic sprinkler system is also in good working condition and the public address system is also in good working condition. Over all, the Fire Disaster Management System at Bysani -: 36 :- Apartment is satisfactory and there is no room for panicking."
24. We have heard the learned counsel for petitioner and learned counsel for the respondent - authorities as well as learned counsel for respondent No.5 at length on the directions issued by this Court as well as the Reports submitted by them.
25. On a detailed discussion of the matter, what emerges is that this writ petition which is filed as a public interest litigation has a chequered history. Initially, the petitioner had approached the Hon'ble Lokayukta, assailing the plan sanctioned in favour of respondent No.5. The order of sanction was withdrawn on 31/03/2008 by respondent - B.B.M.P. The same was questioned in W.P.No.5934/2008. The order of cancellation of the plan was withdrawn by another order dated 3/08/2009. When the matter stood thus, once again, Lokayukta passed an order on -: 37 :- 15/12/2009, directing withdrawal of the aforesaid order dated 03/08/2009. That order was assailed by respondent No.5 in W.P.No.38091/2009, which was allowed by order dated 23/06/2009. The Hon'ble Lokayukta had preferred W.A.No.3212/2010 against the said order which appeal was dismissed by a Division Bench of this Court on 16/01/2012.
In W.P.No.5934/2008 filed by respondent No.5 herein, petitioner had sought impleadment by filing I.A.No.I/2008. That application was dismissed and the order of dismissal has remained unchallenged. Therefore, the petitioner had approached this Court in his private capacity in a writ petition filed by respondent No.5. Thereafter, petitioner had filed Contempt of Court Case before this Court in CCC.No.77/2009 against the officers of the B.B.M.P. as well as the partners of respondent No.5 - firm, alleging that his representation had not been -: 38 :- considered by B.B.M.P. The contempt proceedings were dropped by this Court on 03/04/2009. It is subsequently, that this writ petition which has been filed as a public interest litigation.
We really doubt as to whether the writ petition is indeed in public interest, as initially, the petitioner had approached in his personal capacity in earlier proceedings, detailed supra.
26. As far as the concerns of the B.W.S.S.B., B.B.M.P. and Fire Department is concerned, the discussion made herein would clearly bring out the fact that the concerns of the said Departments have been substantially considered and sought to be remedied in this writ petition. In fact, respondent No.5 has deposited a sum of Rs.90,00,000/- [Rupees ninety lakhs only], for the purpose of protection of water lines of Mountain Road. The Report of the Fire -: 39 :- Safety Department is also in substantial compliance of the requirements. The stand of the B.B.M.P. is that Mountain Road is 19.30 meters in width and not as suggested by the petitioner to the effect that it is less than 12 meters. In the circumstances, we find that ends of justice would be sub served by issuing certain directions in the matter.
27. Thus, we find that respondent - authorities as well as respondent No.5 have substantially removed the objections raised by the petitioner in the construction of the building in question with regard to the fire safety aspects in the said building. We, also, find that the direction issued by this Court on 9/9/2014 to respondent No.5 - developer to deposit a sum of Rs.90.00 lakh for the purpose of protection of the water lines on Mountain Road, has been complied with and the said sum has been deposited with respondent No.3 - BWSSB.
-: 40 :-
28. Also, the Reports submitted by respondent No.1 - BBMP as well as respondent No.2 - Fire Force Department disclose that, in the existing circumstances, there has been substantial compliance concerning the protection of the water lines that run on the Mountain Road as well as on the safety of the residents of the building.
29. In the circumstances, we issue the following directions:
i) Respondent No.3 BWSSB to utilize the amount deposited by respondent No.5 -
developer for the purpose of protection of the water lines on Mountain Road.
ii) Respondent No.1 - BBMP is directed to ensure that Mountain Road is kept in good repair and condition so as to not adversely affect the water lines that run in the middle of the said road.
-: 41 :-
iii) Respondent No.5 - developer is directed to take all necessary measures for the safety of the inmates of the building including fire safety.
iv) Respondent - B.B.M.P. to consider the case of the respondent No.5, for grant of Occupancy Certificate, in accordance with law and in an expeditious manner.
30. With the aforesaid directions, the writ petition is disposed, without any order as to costs.
Sd/-
ACTING CHIEF JUSTICE Sd/-
JUDGE S*