Karnataka High Court
M/S. Samriddhi Petro Products Pvt Ltd vs The Commissioner, Bbmp on 26 November, 2024
Author: B M Shyam Prasad
Bench: B M Shyam Prasad
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NC: 2024:KHC:48385
WP No. 8131 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE B M SHYAM PRASAD
WRIT PETITION NO. 8131 OF 2020 (LB-BMP)
BETWEEN:
M/S. SAMRIDDHI PETRO
PRODUCTS PVT LTD
PLOT NO.359, 2ND FLOOR,
ROAD NO.80, JUBILEE HILLS,
HYDERABAD-500033
TELANGANA STATE INDIA
AUTHORISED FRANCHISEE OF
M/S. NAYARA ENERGY LTD
NO.12, 2ND FLOOR, MAYO CENTRE,
NEAR GARUDA MALLA, BANGALORE-560025
REP BY ITS AUTHORIZING SIGNATORY
SRI. SHARAN REDDY.
...PETITIONER
(BY SRI. ASHOK HARANAHALLI, SENIOR ADVOCATE
FOR SRI. YASHU BABA R MISHRA.,ADVOCATE)
AND:
Digitally
signed by
VANAMALA N
1. THE COMMISSIONER, BBMP
Location:
HIGH COURT BRUHAT BANGALORE
OF MAHANAGARA PALIKE
KARNATAKA HEAD OFFICE, N.R.SQUARE,
BANGALORE-560 002.
2. THE CHIEF ENGINEER
STORM WATER DRAIN,
BRUHAT BANGALORE
MAHANAGARA PALIKE,
9TH FLOOR, JAYANAGARA
SHOPPING COMPLEX, 4TH BLOCK,
JAYANAGAR, BENGLAURU-560011.
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NC: 2024:KHC:48385
WP No. 8131 of 2020
3. COMMISSIONER OF POLICE
BENGALURU CITY POLICE,
NO.1, INFANTRY ROAD,
BENGALURU-560 001.
4. THE STATION HOUSE OFFICER
HAL POLICE STATION, HAL,
BANGALORE-560004.
5. THE COMMISSIONER
BANGALORE DEVELOPMENT AUTHORITY
KUMARA KRUPA WEST, BENGALURU - 560 022.
6. SRI. S. MANOHAR
S/O LATE DEVID SAMUEL PAUL
AGED ABOUT 48 YEARS
RESIDING AT NO. 650/A
HANUMAN NAGAR LAYOUT
NEW THIPPASANDRA
BENGALURU - 560 075.
7. MRS. LIDYA MANOHAR
W/O SRI. MANOHAR
AGED ABOUT 46 YEARS
RESIDING AT NO. 650/A
HANUMAN NAGAR LAYOUT
NEW THIPPASANDRA
BENGALURU - 560 075.
...RESPONDENTS
8. SMT. SATHYAVANI
W/O SRI. SREEDHAR RAYADURGA
NO. 70, 2ND MAIN ROAD
TALACAUVERY LAYOUT
BASAVANAGAR, BENGALURU - 560 037.
9. SMT. GAYATHRI KAKDE
W/O RAJESH KAKADE
NO. 41, 2ND MAIN, 2ND CROSS
TALACAVERY LAYOUT
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WP No. 8131 of 2020
BASAVANAGAR, BENGALURU - 560 037.
10. SMT. MAHALAKSHMI N.R.
W/O K.N. RAJU
NO. 63/C, TALACAVERY LAYOUT
BASAVA NAGAR, BANGALORE - 560 037.
11. SADHANA TALAKAVEI WOMEN'S ASSOCIATION
REPRESENTED BY SMT. SATHYAVANI
NO. 70, 2ND MAIN ROAD
TALAKAVERI LAYOUT
BASAVANAGAR, BENGALURU - 560 037.
RESPONDENTS NO. 9 TO 11
ARE REPRESENTED BYRESPONDENT NO. 8
SMT. SATHYAVANI.
...PROPOSED RESPONDENTS
(BY SRI. N R JAGADEESWARA., ADVOCATE FOR R1 AND
R2; SRI. V.G. BHANU PRAKASH AAG A/W
SMT. CHANDINI S, HCGP FOR R3 AND R4;
SRI. K. KRISHNA, ADVOCATE FOR R5
SRI. INDRA KUMAR, ADVOCATE FOR
SMT. ANUPARNA BORDOLOI, ADVOCATE FOR
PROPOSED RESPONDENTS ON IA 1/2022;
SRI. S.K. VENKATACHALAPATHI, ADVOCATE FOR
R6 &R7 )
THIS W.P. IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE LETTER/ORDER BEARING NO.
CE/SWD/PR/3865/2019-20 DATED 12.3.2020 ISSUED
BY THE R-2 (i.e ANNEXURE-A) AS ARBITRARY AND
ILLEGAL AND UNJUST; DIRECT THE RESPONDENTS
NOT TO HARASS AND TROUBLE THE PETITIONER
FROM CARRYING ON ITS LAWFUL ACTIVITIES OF
PUTTING UP THE PETROL BUNK IN THE SCHEDULE
PROPERTY MERELY BECAUSE THE R-2 HAS PASSED
AN ORDER DATED 12.3.2020 i.e ANNEXURE-A.
THIS PETITION, COMING ON FOR ORDERS, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
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NC: 2024:KHC:48385
WP No. 8131 of 2020
CORAM: HON'BLE MR JUSTICE B M SHYAM PRASAD
ORAL ORDER
The petitioner, a franchisee of M/s. Nayara Energy Ltd., has filed this petition calling in question the second respondent's Communication dated 12.03.2020 [Annexure-A]. The second respondent [the Chief Engineer, Storm Water Drain, Bruhat Bengaluru Mahanagara Palike], by this Communication, has informed the petitioner that the Executive Engineer, Storm Water Drain, Mahadevapura and others have confirmed construction on the site despite being told that any construction will be encroaching a Kaluve [a secondary canal] and that if the petitioner does not cease the construction activities, then proceedings under the Karnataka Land Grabbing Prohibition Act, 2011 will be instituted in the premise that there is connivance to grab the Government property.
2. As is obvious from the second respondent's impugned Communication, the -5- NC: 2024:KHC:48385 WP No. 8131 of 2020 controversy is because the authorities assert that a secondary canal runs through the sixth and seventh respondent's property in Sy No. 161 of Vibhuthipura Village, K. R. Puram Hobli, Bengaluru East Taluk [the Subject Property]. The petitioner has begun construction of a Petrol/LPG Bunk in this property, which measures 6,229 sq. ft. Further, the petitioner has the advantage of different licenses and approvals issued by the competent authority, including No Objection Certificates and approval by the concerned Departments and the authorized representative of the Ministry of Commerce and Industries Petroleum and Explosives Organization, Government of India.
3. This Court has directed a survey of the subject property and the surrounding area to resolve the controversy about a secondary canal running through the subject property. The first Report is filed by the Joint Director of Land Records and the Deputy Director [East], Town Planning, Bangalore -6- NC: 2024:KHC:48385 WP No. 8131 of 2020 Development Authority, Bengaluru. This Report, which is filed in the connected writ petitions in W.P. Nos. 14029/2022 and 18077/2022 (which are now de-tagged), reads as under as regards the subject property indicated in 'I'. The path of the canal in this property is shown in 'Blue'.
4. This Report shows that an extent of 356 sq feet of the larger property in the Sy. No.161 will be -7- NC: 2024:KHC:48385 WP No. 8131 of 2020 part of the secondary canal. The next Report is by the Assistant Director of Land Records with the participation of the other officers from the Department of Survey. This Report also affirms, without measurement, that a secondary canal should run through the subject property while setting forth that the larger property in Sy. No.161 measuring 1 acre 35 guntas of Vibhuthipura Village, K R Puram Hobli, Bengaluru East Taluk is converted from agricultural to dairy poultry and small industrial purposes on 01.09.1966 and an extent of 19 guntas of 'A' and 'B' Kharab, 16 guntas being reserved for 'B' Katha is reserved for a Road.
5. This Court must record that the third survey is more comprehensive, and this survey is by [a] the Joint Director [East], Town Planning, Bangalore Development Authority, [b] the Executive Engineer, Storm Water Drain, Mahadevapura Division, Bruhat Bengaluru Mahanagara Palike and -8- NC: 2024:KHC:48385 WP No. 8131 of 2020 [c] the Joint Director of Land Records, Bengaluru Division. The Sketch prepared as part of this survey shows that the subject property [identified as property No.62] comprises, as stated in the first survey, a small extent for secondary canal and the remaining extent would be buffer of 25 meters. The relevant portion of this Sketch reads as under: -9-
NC: 2024:KHC:48385 WP No. 8131 of 2020 This Court must observe that this Sketch also shows that the lands in Sy. No.160, 161, 162 and the other adjacent lands are between two tanks within Vibhuthipura Village, that there is a secondary canal between these two tanks and that there are constructions and encroachment of this canal.
6. Sri Ashok Haranahalli, the learned Senior Counsel for the petitioner, submits that:
[i] the details as mentioned in the Report after the third survey would only show what could be, but the authorities, to resolve the difficulties of flooding as is complained by the residents [including the applicants who have filed their application for impleading], will have to identify measures required to remove the encroachment and to ensure that a buffer is maintained along the entire length of the area which is identified as a secondary canal,
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NC: 2024:KHC:48385 WP No. 8131 of 2020 [ii] the petitioner will keep both the area that is shown to be a secondary canal and the buffer open with no permanent structures subject to the construction of an underground storage tank that would be required for the outlet, [iii] as and when the authorities collate all the details for restoration of the canal with Buffer and Road network, and if the petitioner is granted a reasonable time, the petitioner will remove the temporary structures, and the underground storage tank as necessitated. Sri S K Venkatachalapathi, the learned counsel for the sixth and seventh respondents, endorses these submissions. Sri N R Jagadeeswara, the learned counsel for the first and second respondents, is heard in the light of these submissions.
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NC: 2024:KHC:48385 WP No. 8131 of 2020
7. Sri N R Jagadeeswara submits that, with the third survey conclusively establishing the path of a secondary canal through different properties, the concerned from the Bruhat Bengaluru Mahanagara Palike will have to take further action to remove the encroachments after considering the request for suitable access, and that this Court may permit the petitioner to operate the petrol/LPG outlet in the subject property subject to the condition that as and when the decision is taken to ensure that the secondary canal is freed of encroachment and the buffer is maintained, and the petitioner shall, within a reasonable time from the date of receipt of notice, remove even the temporary structures/underground storage tanks. Sri K Krishna, the learned counsel for the fifth respondent-the Bangalore Development Authority, concurs with the afore submissions.
8. Sri V G Bhanu Prakash, the learned Additional Advocate General, submits that the
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NC: 2024:KHC:48385 WP No. 8131 of 2020 petitioner could carry on the operation of the outlet but cannot impede or undertake execution of work to ensure that there is a secondary canal with the requisite buffer. Sri Indra Kumar, the learned counsel on behalf of the impleading applicants, is heard, and the learned counsel submits that the applicants' difficulty is because of the constant flooding resulting from the encroachment of the secondary canal in the locality and that this Court may, while permitting the applicants to implead in the other de-tagged petition, direct the authorities to expedite the execution of necessary work to ensure that the secondary canal is rendered free of encroachment with necessary buffer.
9. This Court must observe that the petitioner is categorical that, if it is ultimately shown with the coordinates that the subject property comprises a secondary canal, it will relocate its outlet, that until such time will operate the outlet without putting up any permanent structure and that
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NC: 2024:KHC:48385 WP No. 8131 of 2020 the only structure will be an underground storage tank with canopy for which permissions have been granted. This Court must next observe that the authorities, given the peculiarities and the measures that will have to be taken to ensure that the secondary canal is free of encroachment with necessary alternative access, are also consenting to the petitioner operating the retail outlet in the subject property provided there are no permanent structures and the petitioner does not impede any work that would be necessary to ensure the secondary canal.
10. The encroachment in the subject property which measures 6229 sq feet, even according to the multiple surveys as mentioned above, will be 356 sq feet and that this extent is one corner of this larger property. Therefore, this Court is of the considered view that the specifics of this case are peculiar and that the petition could be disposed of permitting the petitioner to operate the outlet on terms and without
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NC: 2024:KHC:48385 WP No. 8131 of 2020 prejudice to the authorities' jurisdiction to take measures as would be necessary to remove encroachment of secondary canal and ensure buffer is maintained. Hence, the following:
ORDER The petition stands disposed of permitting the petitioner to operate a retail outlet as licensed franchisee of M/s. Nayara Energy Limited in terms of the different approvals granted and further approvals that may be necessary subject to the following conditions:
[a] The petitioner shall not put up any permanent structure and the petitioner shall only put up such construction as would be necessary for an underground storage tank and a temporary canopy.
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NC: 2024:KHC:48385 WP No. 8131 of 2020 [b] The petitioner/sixth and seventh respondents, as and when informed about the measures that are being taken to remove the encroachment in the secondary canal [not just in the subject property but also in the other properties], shall remove the encroachment as shown, or permit the authorities to remove the encroachment within the subject property.
Sd/-
(B M SHYAM PRASAD) JUDGE AN/-