Karnataka High Court
M/S Ashed Valmark vs State Of Karnataka on 15 November, 2022
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF NOVEMBER 2022
BEFORE
THE HON'BLE MR. JUSTICE R.NATARAJ
WRIT PETITION NO.1981 OF 2020 (LB-BMP)
BETWEEN:
1. M/S ASHED VALMARK
AN ASSOCIATION OF PERSON
REPRESENTED BY ITS ASSOCIATES
(a) M/S. ASHED PROPERTIES AND INVESTMENTS
PRIVATE LIMITED
REPRESENTED BY ITS
MANAGING DIRECTOR,
SRI. SAMEER KHAN
(b) M/S. VALMARK BUILDERS
A REGISTERED PARTNERSHIP FIRM
REPRESENTED BY ITS PARTNER
SRI NAKODA CONSTRUCTION LIMITED
REPRESENTED BY ITS
DIRECTOR
MAHAVEER GULECHA
BOTH ARE SITUATED AT
NO.133/1, 10TH FLOOR,
RESIDENCY, RESIDENCY ROAD,
BENGALURU - 560025.
2. REGENCY PINNACLE HEIGHTS
OWNERS ASSOCIATION
OFFICE SITUATED AT REGENCY PINNACLE HEIGHTS,
RACHENAHALLI, BENGALURU - 560077
REPRESENTED BY ITS AUTHORISED SIGNATORY
2
MR. H. RAJENDRA KAMATH
S/O K.SUBHASCHANDRA KAMATH
AGED ABOUT 40 YEARS
...PETITIONERS
(BY SRI. K. SHASHIKIRAN SHETTY, SENIOR COUNSEL ALONG
WITH SRI PANINI A.H., ADVOCATE)
AND:
1. STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY
DEPARTMENT OF REVENUE
VIDHANA SOUDHA
BENGALURU - 560 001
2. THE COMMISSIONER
BRUHAT BENGALURU MAHANAGARA PALIKE
N.R. SQUARE
BENGALURU - 560 001
3. EXECUTIVE ENGINEER
STORM WATER DRAIN DEPARTMENT
(YELAHANKA ZONE)
BRUHAT BENGALURU MAHANAGARA PALIKE
BENGALURU - 560 001
4. ASSISTANT DIRECTOR OF LAND RECORDS
BANGALORE EAST TALUK
BANGALORE - 560 036
5. THE SURVEYOR
OFFICE OF THE ASSISTANT DIRECTOR OF
LAND RECORDS
BANGALORE EAST TALUK
K.R. PURAM
BANGALORE - 560 036
6. CIVIL AVIATION LAYOUT RESIDENTS ASSOCIATION
NO.58, CIVIL AVIATION LAYOUT,
RACHENAHALLI, NEAR RPH APARTMENT,
3
BANGALORE-560 077
REP BY ITS SECRETARY
SMT. RUKMINI S.,
W/O D.M.RAJESH
AGED ABOUT 53 YEARS
7. BANGALORE DEVELOPMENT AUTHORITY
T. CHAWDAIAH ROAD,
KUMARA PARK WEST,
BANGALORE-560020
REP. BY ITS COMMISSIONER
...RESPONDENTS
(BY SMT. PRATHIMA HONNAPURA, ADDITIONAL GOVERNMENT
ADVOCATE FOR RESPONDENT NOS.1, 4 AND 5;
SRI. K.N.PUTTEGOWDA, ADVOCATE FOR RESPONDENT NOS.2
AND 3;
SRI. B.S.JEEVAN KUMAR, ADVOCATE FOR RESPONDENT NO.6
SRI D.N. NANJUNDA REDDY, SENIOR COUNSEL ALONG WITH
SRI K. KRISHNA, ADVOCATE FOR RESPONDENT NO.7
SRI H.C. SHIVARAMU, ADVOCATE FOR PROPOSED
RESPONDENTS IN I.A. NO.2/2022)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE COMMUNICATION DATED 28.10.2019 BEARING
NO.EE/SWD/BBMP/YZ/PR/105/19-20 ISSUED BY RESPONDENT
NO.3 DIRECTING THE PETITIONER NO.2 TO REMOVE
ENCROACHMENTS AND FACILITATE EARLY COMPLETION OF
STORM WATER DRAIN (ANNEXURE-A) AND ETC.
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 13.09.2022 AND COMING ON FOR
PRONOUNCEMENT OF ORDER THROUGH VIDEO CONFERENCE
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AT DHARWAD BENCH THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
This Writ Petition is filed by petitioner No.1, who claims to be an Association of Persons represented by petitioner Nos.1(a) and 1(b), who apparently are developers and petitioner No.2, who is an Apartment Owners' Association. The petitioners claim that the land bearing Sy.No.102 of Rachenahalli village, K.R. Pura hobli, Bengaluru East Taluk, was converted for non-agricultural purpose on 10.01.2005 and 19.02.2005 while the land bearing Sy.No.100/4 was converted for non-agricultural purpose in terms of the notification dated 14.12.1993. The petitioners contend that an agreement dated 17.10.2006 was entered into between Sri B.Govindaraju, Sri Nakoda Construction Private Limited and the petitioner No.1(a) herein to develop 01 acre 26 guntas of land in Sy.No.100/4 and 02 acres 26 guntas of land in Sy.No.102. The petitioner No.1 claims to have purchased 01 acre 26 guntas of land in Sy.No.100/4 in terms of a deed of sale 5 dated 19.06.2007 and undertook joint development of 0- 14 guntas in Sy.No.100/4 in terms of two Joint Development Agreements (JDAs) of even date i.e., 14.03.2007. Likewise, petitioner No.1(b) represented by its then partners, namely, M/s. Sri Nakoda Constructions Private Limited and Sri B. Govindaraju purchased 01 acre 06 guntas in Sy.No.102 in terms of the sale deed dated 17.05.2006 and petitioner No.1 undertook joint development of 01 acre 20 guntas of land in Sy.No.102 in terms of the JDA dated 07.02.2007. They claimed that after obtaining all statutory clearances, the Bangalore Development Authority (BDA) had sanctioned a development plan on 22.05.2008 to construct a multi- dwelling residential apartment complex that was spread over the land/s in Sy.No.100/4 and Sy.No.102 measuring 4 acres 29 guntas and kharab area of 03 guntas. Following this, a Commencement Certificate was issued by the Joint Director of Town Planning, Bruhat Bengaluru Mahanagara Palike (BBMP) on 13.07.2009. The petitioners claim that the construction was completed in accordance with the 6 plan and the apartments were conveyed to various purchasers. Later, the Joint Director of Town Planning (North), BBMP issued an occupancy certificate in respect of Blocks 'A' and 'B' of the apartment complex on 19.10.2013. A deed of declaration as prescribed under the Karnataka Apartment Ownership Act, 1972 was registered on 01.08.2012. The petitioners claim that nearly after seven years of completion of the construction, the respondent No.3 addressed a letter dated 28.10.2019 directing the petitioner No.2 to remove the encroachment on the drain and facilitate the completion of the storm water drain. It was claimed in the notice that the respondent No.5 had visited the property on 07.08.2019 and had demarcated the portion that was allegedly encroached by the petitioner No.2. The petitioners contend that this was without notice to them and was therefore illegal. Besides, the petitioners contend that at the time of application for sanctioned plan, kharab land of 0-03 guntas was identified in Sy.No.102. The petitioners contend that the respondent No.4 had issued a memo on 23.07.2019 7 directing the respondent No.5 to survey the lands in Sy.Nos.99, 100, 101 and 102 of Rachenahalli village and demarcate the encroached portion. Based on this, the respondent No.5 conducted a survey on 07.08.2019, allegedly, without notice to the petitioners. The petitioners contend that the construction put up by them is in accordance with the plan sanctioned and as per the Comprehensive Development Plan (CDP), the drain flows adjoining the compound wall and not inside the property of the petitioners. Later the respondent No.3 has again issued a communication dated 11.11.2019 stating that the drain enters the north side compound wall of the apartment complex and exits at the west side compound wall and directed the petitioner No.2 to approach the respondent No.4 - Assistant Director of Land Records (ADLR) for any clarification. The petitioners contend that they have not encroached into any portion of the drain in Sy.Nos.100/4 and 102 as alleged in the communication dated 28.10.2019. They contend that the respondent No.3 had directed the petitioner No.2 to demolish the structures 8 demarcated which was without any basis. The petitioners contend that they had applied under the Right to Information Act, 2005 (for short, 'the R.T.I Act') to secure documents such as survey sketch, survey report and mahazar dated 07.08.2019 drawn by the respondent No.5. However, the officer concerned issued a reply dated 26.11.2019 stating that the survey and drawing of mahazar in respect of Sy.Nos.92, 100 and 102 of Rachenahalli village is still in process. The petitioners therefore contend that the action initiated by the respondent Nos.2 and 3 to demolish a portion of their property is without following the due process of law and violates Article 300-A of the Constitution of India.
2. The respondent Nos.2 and 3 have opposed the writ petition by filing their statement of objections and contended that the petitioners had encroached the storm water drain running in Sy.Nos.91, 92, 100 and 102 of Rachenahalli village that passed below the railway underpass and drained into Rachenahalli lake, resulting in 9 flooding of Thanisandra-Jakkur main road. Therefore, they took steps to remove the encroachment of the storm water drain in accordance with the direction issued by this Court in W.P.No.38401/2014. They contended that the residents of Rachenahalli village lodged a complaint with them on 12.06.2019 stating that few private land owners and residents had blocked the drain resulting in stagnation of water. Hence, the storm water division of BBMP., requested the respondent No.4 to survey the land and identify the path of the storm water drain. Consequently, the respondent No.4 allotted the survey work to the respondent No.5, who conducted a survey on 07.08.2019 in their presence and in the presence of few residents of Pinnacle Heights apartment complex / members of the petitioner No.2 and marked the encroached portion. On the same day, the Inspector of Police, Chikkajala Traffic Police Station, addressed a letter to Special Commissioner (Project), BBMP that they were closing the Rachenahalli road due to water logging. The respondent No.3 therefore addressed letters to the respondent No.4 to fix the 10 boundaries of Sy.Nos.100 and 102 of Rachenahalli village and furnish a sketch. The respondent No.4 replied that to fix the boundaries of the land in the said survey numbers, the respective owners should apply. Respondent Nos.2 and 3 contended that the petitioners had encroached the drain on the western side and therefore were bound to restore the same for the use of the general public. They contended that the petitioners have no right whatsoever in respect of the drain and therefore the encroachment of the drain has to be removed.
3. During the pendency of the writ petition, I.A. No.1/2022 was filed by Civil Aviation Layout Residents Association, an Association of owners of certain plots, apparently formed in Sy.No.92 of Rachenahalli village, and adjacent to petitioners' property in Sy. No.100/4, apprehending that the diversion of the storm water drain in Sy.No.100/4 would affect their right. The said application was allowed by this Court in terms of the Order dated 25.07.2022 and the applicant was permitted to 11 come on record as respondent No.6 in this petition. Since the issue involved the identification of the storm water drain, the BDA was also ordered to be arrayed as respondent No.7.
4. The learned Senior counsel representing the petitioners contended as follows:-
i. That the petitioners had not encroached the drain as alleged by the respondents. He submitted that the nala stood beyond the property of the petitioners and therefore, the action of the official respondents in proposing to draw the nala through the property of the petitioners is illegal.
ii. That the action of the official respondents is arbitrary and without following the principles of natural justice by not conducting an enquiry as required under law.
iii. That the Joint Director of Town Planning (North), BBMP, has issued an occupancy certificate thereby confirming that the construction put up by the petitioners is in accordance with law.12
iv. That when the development plan was sanctioned to put up construction over the property bearing Sy.Nos.100/4 and 102 of Rachenahalli village, the BDA did not indicate the existence of the storm water drain in the property of the petitioners.
v. That the respondent authorities have initiated action after nearly 7 years from the date of issuing the occupancy certificate and they have not taken action within reasonable time and hence their proposed action is illegal.
vi. That the respondent No.3 had issued the communication dated 28.10.2019 where it was stated that the respondent No.5 had visited the petitioners' property on 07.08.2019 and had conducted a survey and measured the alleged encroachment of the storm water drain and demarcated portions of the alleged encroachment. The learned senior counsel submitted that the inspection allegedly conducted on 07.08.2019 was without notice to the petitioners.
13vii. That though the respondent No.3 issued a communication dated 11.11.2019 that the storm water drain entered the north side compound of the apartment complex of the petitioners and exited at west side compound, he directed the petitioner No.2 to approach the respondent No.4-ADLR for clarification. viii. That when the petitioners sought for documents such as survey sketch, survey report and mahazar drawn on 07.08.2019 by the respondent No.5 under the R.T.I Act, a reply was sent to the petitioners that the survey and drawing of mahazar of the land in Sy.Nos.100, 92 and 102 of Rachenahalli was still under process. He, therefore, submits that the survey in respect of lands in Sy.Nos.100, 92 and 102 is not conducted till date and hence, the assumption of the respondent authorities that the petitioners have encroached into the storm water drain is without any basis.
ix. That when the petitioners filed an application for sanction of a development plan, kharab land was identified in Sy.No.100/4 and 3 guntas of kharab land was identified in 14 Sy.No.102 of Rachenahalli village. The building plan or development plan was approved by BDA and BBMP after factoring the kharab land in these two survey numbers and therefore, the intended action of the respondent authorities is wholly illegal.
x. That once a CDP is approved by the State Government for a local planning area, the same is conclusive and the official respondents cannot fall back upon the survey map to contend that the waterways, drains etc., demarcated in the CDP are incorrect. In this regard, he relied upon a judgment of a Coordinate Bench of this Court in Sobha Developers Limited v. Bruhat Bangalore Mahanagara Palike [2012 SCC OnLine KAR 2679]. He contended that the judgment rendered in the above case was complied by the respondent No.2 and therefore, it cannot now turn around and claim that the demarcation made in the CDP was incorrect."
5. The learned Additional Government Advocate for the respondent Nos.1, 4 and 5 submitted that kharab land did exist in Sy.No.100/4 and the sale deed dated 15 19.06.2007 under which the petitioner No.1 purchased it, indicated that a nala ran on the western side of the land in Sy. No.100/4. She therefore, submitted that since the petitioners have closed off the nala and have laid a compound across it up to the boundary line of Sy.No.92, it is clear that the petitioners have encroached the nala and therefore, are bound to restore it for the benefit of the larger public. She further submitted that the nala does not belong to the petitioners but has vested in the State and therefore, the petitioners are bound to vacate the encroachment of the nala. She also submitted that admittedly kharab of 03 guntas existed in Sy.No.102 where the petitioners have constructed one block of the apartment which too, deserves to be removed. She submitted that the grant of occupancy certificate would not regularize the encroachment of the nala on the western side of land in Sy.No.100/4 and therefore, the petitioners cannot contend that the respondent authorities have not initiated action within a reasonable time. She further submitted that the officials have conducted a survey on 16 07.08.2019 in the presence of few residents of the apartment complex and thereafter, again a survey was conducted in the presence of the residents, who all accepted the encroachment of the nala.
6. The learned counsel for the respondent Nos.2 and 3 submitted that the residents of Rachenahalli village lodged a complaint on 12.06.2019 with the aforesaid respondents stating that the storm water drain from Rachenahalli Railway underpass to Rachenahalli lake was blocked by a few private land owners resulting in the rain water stagnating on the road. Hence, the Storm Water Division of respondent No.2 requested the respondent No.4 to survey the land bearing Sy. Nos.92, 100 and 102 of Rachenahalli village and identify the path of the storm water drain and fix its boundaries. Consequently, the respondent No.5 conducted a survey on 07.08.2019 based on the revenue records in the presence of respondent Nos.2 and 3 and few residents of the apartment complex. He submitted that this Court in W.P.No.38401/2014 had 17 issued specific directions to the respondent Nos.1, 4 and 5 to survey the area and identify the encroachment of storm water drain and fix its boundaries. He submitted that since the respondent Nos.4 and 5 had not submitted the survey sketch showing the encroachment in land bearing Sy.Nos.91, 92, 100 and 102, the respondent Nos.2 and 3 could not clear the encroachment.
7. The learned counsel for respondent No.6 submitted that the Civil Aviation Layout was formed in Sy.No.92 of Rachenahalli village. He submitted that the petitioners in collusion with the BDA had ensured the change in the course of the storm water drain. He submitted that this is evident from the survey maps as well as the Google Map, which indicates that the drain ran below the apartment complex constructed by the petitioners. He submitted that an attempt is now made by the petitioners in collusion with the officials of the BDA and the respondent No.2 to draw the storm water drain just abutting Sy.No.92. He submitted that if the same is 18 permitted, then the owners of the sites formed in Sy.No.92 would be affected by the buffer limits applicable to the storm water drain in view of the judgment of the Hon'ble Apex Court in Mantri Techzone Private Limited v. Forward Foundation and others [(2019) 18 SCC 494]. The learned counsel relied upon a working plan prepared by the BDA for the formation of the Arkavathi layout and for allotment of sites formed therein, which indicated that the storm water drain is drawn abutting Sy.No.92. Hence, he submits that the officials of the BDA have colluded with the petitioners in exposing the residents of layout formed in Sy.No.92 to the risk of setting apart buffer limits in their survey number.
8. Another application (I.A. No.2/2022) is filed seeking impleading on the ground that the impleading applicants are the owners of site Nos.1411 and 1309 formed in Sy.Nos.100/3 and 100/4 of Rachenahalli village. The learned counsel for the applicants submitted that the flow of the storm water in Sy.Nos.100/3 and 100/4 is 19 demarcated in the master plan and that the BDA had formed the layout of sites as per the master plan. They contend that if the storm water drain as found in the CDP is altered, then they would be affected.
9. The contentions urged by the learned counsel for the applicants in I.A. No.2/2022 are outside the scope and ambit of this writ petition and hence, I.A. No.2/2022 is rejected.
10. Since the petitioners have already completed the construction of the apartment complex in the year 2013, which were occupied by various owners, in order to explore an amicable resolution of the dispute, this Court in terms of the Order dated 10.06.2022, appointed the Director of Land Records and Survey Settlement to identify the storm water drain based on the revenue survey maps concerning Sy.Nos.91, 92, 100 and 102 of Rachenahalli village. The respondent Nos.2 and 3 were directed to place the CDP relating to Sy.Nos.91, 92, 100 and 102 of Rachenahalli village before the Director of Land Records 20 and Survey Settlement. He was directed to conduct a survey / inspection on 24.06.2022 and submit a report to the Court by 01.07.2022. The petitioners and their members were permitted to participate in the said process. Accordingly, the Commissioner, Survey Settlement and Land Records, inspected the spot on 24.06.2022 and submitted a report which indicated that an extent of 07 guntas was demarcated as kharab in Sy.No.100/4 where a storm water drain ran. In respect of Sy.No.102, he reported that 01 acre 16 guntas was identified as kharab of which 14 guntas was demarcated for halla and 01 acre 02 guntas for the rocky patch. He reported that "the location of drain formed by BBMP is different and shifted near to the edge of Sy.Nos.100/5, 100/3 and 100/4 as compared to Halla in survey map." He further reported that "Petitioners have constructed Apartment complex in a portion of Sy.No.100/4 and Sy.No.102. They have encroached the Halla by constructing the compound wall and Apartment complex in Sy.No.100/4 and Sy.No.102 and extent of encroachment is 03 guntas in Sy.No.100/4 21 and 04 guntas in Sy.No.102. The whole of that part of halla which falls in Petitioner's Apartment complex and compound wall has been encroached. The map gives the details of the same. As per the CDP submitted by AEE, BBMP on the Spot, there is a clear reference of Halla that passes through Sy.No.100 and Sy.No.102. A detailed legal sketch is attached herewith. Additionally, another superimposed sketch (map) is given on satellite image." 22
11. The petitioners have filed their objections to this report contending that the report of the Commissioner is contrary to the revenue records and the survey sketch prepared at the time of de-notification of the land bearing Sy.No.100/4 by the BDA. It is stated that the total kharab available in Sy.No.100/4 is 02 guntas out of 05 acres 13 guntas while the petitioner No.1 is owner of 02 acres only. Likewise, the total kharab / halla in Sy.No.102 is 03 guntas as per the de-notification sketch prepared by the BDA. It is stated that the kharab is situate outside the property of the petitioners. The petitioners state that as reported by the Court Commissioner, the drain exists outside the boundary of the petitioners' property. The petitioners further contend that when the BDA formed residential sites, as per a working plan, it had changed the course of the drain and therefore, the official respondents were aware that the course of the drain was changed. It is stated that if the report of the Commissioner for Survey Settlement is perused, then it discloses that the drain passes through the sites formed by the BDA. 23
12. In the face of the report of the Commissioner for Survey Settlement, this Court in terms of the Order dated 12.07.2022, called upon the respondent Nos.2 and 3 to explore the possibility of installing concrete ducts/tubes through which the storm water can drain out and which could be covered by removable slabs to facilitate cleaning when necessary. The Executive Engineer, Storm Water Drain Division, Yelahanka, BBMP, submitted that he would suggest a solution that could be worked out. Consequent thereto, the property of the petitioners was inspected by the Executive Engineer, who reported that the storm water drain in Sy.No.102 was encroached by the petitioners over which they had constructed "Aspen Tower" and had erected parking slot in the kharab of Sy.No.100/4. They have furnished a longitudinal section of the road level and the existing level. The Executive Engineer, who was present in person submitted that the existing level does not permit concrete ducts to be installed as it is nearly 03 meters below the road level. The said sketch is extracted below:
24
13. Again an attempt was made to find out whether the petitioners have constructed in an area larger than what was permitted under the development plan. Hence, this Court directed the Additional Government Advocate to furnish the conversion file relating to Sy.No.100/4 of Rachenahalli. Accordingly, on 25.07.2022 the learned Additional Advocate General had placed on 25 record the conversion file relating to Sy. No.100/4 of Rachenahalli village. The same was ordered to be placed in safe custody with the Registrar (Judicial). On 27.07.2022, the BDA was directed to inspect the property of the petitioners and ascertain whether the construction put up by them is within the area as shown in the plan and whether the area which is enclosed by a compound wall by the petitioners is more than what is found in the plan/title deed. In response to this, the BDA inspected the spot and submitted a report stating that "the actual measurements at site have all tallied with the measurements mentioned in the approved as-built building plan. It is submitted that there is no deviation in measurement of plot with reference to approved as-built plan."
14. The learned Senior counsel representing the respondent No.7 submitted a proposal by which the dispute between the parties could be amicably resolved and furnished a sketch, which indicates a change in the alignment of the storm water nala in Sy.No.100/4 without 26 affecting the parking slot within the property of the petitioners. The sketch is extracted below: 27
15. The learned counsel for the respondent No.6 submitted that if the proposal of the BDA is accepted, then the nala would now run abutting Sy.No.92 and therefore, would affect the interest of the owners of plots in Sy.No.92. Hence, he prayed that the proposal of the respondent No.7 be rejected.
16. At this stage, the learned senior counsel for petitioners submitted that a layout in Sy.No.92 is already formed and abutting the nala is a road formed in Sy.No.92. Hence, he submitted that accepting the proposal of BDA would not cause any prejudice to the owners of sites in Sy.No.92. He invited the attention of this Court to the CDP which indicates that roads are formed in Sy.No.92. However, it is difficult to identify in the plan whether one of the roads so formed abuts the nala.
17. Since every attempt made by this Court to amicably resolve the dispute between the parties proved futile, this Court felt it appropriate to decide the case on merits.
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18. It is evident from the village map of Rachenahalli that land/s in Sy.No.100 and Sy.No.102 lie adjacent to each other and a drain runs through Sy.No.100 (Sy. No.100/4 to be precise) as well as Sy.No.102. For the sake of easy understanding, the relevant portion of the village map is extracted below:
29
19. It is clear from the village map that Sy.No.92 lies on the western side of Sy.No.100 (Sy.No.100/4 to be precise) and the storm water drain does not run through or adjacent to Sy.No.92, but it runs through Sy.No.100 (Sy. No.100/4 to be precise). The survey tippani of Sy.No.100 also indicates the same and is extracted below:-
30
20. The CDP 2015 concerning Sy. NOs.100/4 and 102 of Rachenahalli village shows the storm water drain which is extracted below:
21. The conversion file, which was secured indicates that an extent of 7 guntas is kharab in Sy.No.100/4 and an extent of 01 acre 16 guntas is kharab 31 in Sy.No.102 of Rachenahalli village. The kharab in Sy.No.100/4 lies on the western side.
22. The sale deed dated 19.06.2007 by which the petitioner No.1 purchased 01 acre in Sy.No.100/4 of Rachenahalli village indicates that it was bound on the western side by a nala. Curiously, a sketch prepared by the surveyor attached to the office of the Land Acquisition Officer discloses that there is no kharab lying within 02 acres of land in Sy.No.100/4 for which the petitioners had sought a development plan. But he mentioned that 02 guntas in Sy.No.100/4 was the kharab appropriated towards the storm water drain. He, however, indicated in the sketch that the storm water drain ran through Sy.No.100/4 on the western side of Sy.No.100/4 but within the boundary of Sy.No.100/4. In addition, the CDP 2015 in respect of Sy.Nos.100/4 and 102 of Rachenahalli village shows that a storm water drain ran through land in Sy.Nos.100/4 and 102.32
23. It is clear from the above that the storm water drain runs through Sy.No.100/4 of Rachenahalli village and the drain runs far away from Sy.No.92. If the petitioners have constructed the building and have covered the entire plot till the land in Sy.No.92, it is clear that the petitioners have closed the storm water drain lying on the western side of the property. The petitioner No.2 in its letter dated 27.09.2019 addressed to the Chief Engineer, Storm Water Drain Division, BBMP, has in a way admitted this fact by stating as follows:
"You had instructed your staff to get the survey done for providing continuity for the storm water drain behind the Regency Pinnacle Heights apartment complex and we expected that the work will be taken up in right earnest. It has been raining these days and as temporary connectivity has been provided for flow of water from the water logged site on the Rachenahalli Jakkur road, the water has been stagnating by the side of north western compound wall of Regency Pinnacle Heights apartment complex. This has been resulted in the compound wall absorbing the moisture which has resulted in weakening the 33 compound wall. This will definitely result in endangering the structural stability of compound wall.
In the view of facts stated above we request in that immediate action be taken to provide continuity to the flow of stagnated water into the storm water drain to ensure easy flow and protection of our compound wall."
24. In response to the above, respondent No.3 addressed a letter to the petitioner No.2 on 11.11.2019 stating that the respondent No.5 inspected the property of the petitioners on 06.11.2009 and found "As per the revenue survey marking, 2.5 Meters wide storm water drain enters north side compound of Regency Pinnacle Heights (back side car parking area) and exits at west side compound wall."
25. It is therefore, clear that the petitioners have encroached the nala lying on the western side of Sy.No.100/4 of Rachenahalli village and therefore, they are bound to remove the encroachment made thereon. Likewise, as per the CDP 2015, the petitioners have 34 encroached into the nala lying in land bearing Sy.No.102 of Rachenahalli village which also is liable to be evacuated.
26. Under Section 67 of the Karnataka Land Revenue Act, 1964 (for short, 'the Act of 1964'), the nala in question lying in land bearing Sy.Nos.100/4 and 102 of Rachenahalli village has vested in the State. None of the petitioners have made any claim or exercised any right over the nala. As a matter of fact, the petitioners claim that they have not encroached into the nala. Therefore, the question of conducting a formal enquiry as contemplated under Section 67 of the Act of 1964 does not arise. It is not the case of the petitioners that the use of this nala is extinguished as provided under Section 68 of the Act of 1964. Since, the official respondents are merely restoring the nala found in the Revised Master Plan 2015, the petitioners should have no qualms and cannot oppose the same.
27. In that view of the matter, the petition deserves to be dismissed and is accordingly dismissed. 35
28. Before parting, it is relevant to note that these nalas are natures creations to drain out water from a higher range into a lake. Once these nalas are incorporated in the village map, by deeming fiction, they vest in the State Government by virtue of Section 67 of the Act of 1964. The Town Planning Authority, which in the present case is the Bangalore Development Authority is vested with the power to formulate a CDP for the development of the Local Planning Area. The BDA is bound to take into consideration the revenue survey maps while preparing the CDP. In order to ascertain how the CDP in respect of Sy. Nos.100/4 and 102 of Rachenahalli village was formulated, this Court called upon the BDA to furnish the objections received pursuant to the publication of the draft notification. However, the BDA has deliberately not furnished any details in this regard. It is clear from the CDP 2015 that the course of the storm water drain running through Sy.Nos.100/4 and 102 is changed for the first time in the CDP 2015, which came into effect from 25.06.2007. The petitioner No.1 has purchased the land measuring 01 36 acre 26 guntas in Sy.No.100/4 in terms of the sale deed dated 19.06.2007 and have entered into two Joint Development Agreements in respect of the said property on 14.03.2007, which is prior to the CDP coming into force. Likewise, the sale deed in respect of the land measuring 01 acre 06 guntas in Sy.No.102 is executed in favour of petitioner No.1 on 17.05.2006 and a Joint Development Agreement was executed on 07.02.2007 which is prior to the CDP 2015 coming into force. It is therefore, more than evident that the course of the storm water drain is changed to suit the development of the land in Sy.Nos.100/4 and 102 of Rachenahalli village. An innocuous attempt by the Municipal Corporation to restore a tertiary storm water channel has opened up a can of worms indicating the unholy nexus between the developers of real estate and the planning authorities, thereby compromising the interest of the general public.
29. The development plan sanctioned to the petitioner No.1 does not indicate the existence of drain on 37 the western side of land in Sy.Nos.100/4 and 102. These facts clearly show an unholy nexus between the petitioner Nos.1(a) and (b) as well as the Planning Authorities. This Court therefore, feels it appropriate that an enquiry be conducted in this regard by the Karnataka Lokayukta under Section 12 of the Karnataka Lokayukta Act, 1984 and submit a report to this Court and also to the State Government for needful action. Until the enquiry is concluded, the respondent No.7 - BDA is directed not to settle the terminal benefits of all those employees in the respondent No.7, who were instrumental in preparing the CDP 2015 in respect of Sy.Nos.100/4 and 102 of Rachenahalli village, Bengaluru East Taluk, and also who sanctioned the development plan to construct a residential apartment complex on land in Sy.Nos.100/4 and 102 of Rachenahalli village.
30. This Court has seen from the photographs placed on record that the rain water has stagnated on the road due the blockage of the storm water drain. Hence, 38 this Court considers it appropriate to direct the respondent Nos.2 and 3 to remove the encroachment of the storm water drain by the petitioners in land in Sy.No.100/4 and Sy.No.102 of Rachenahalli village forthwith and ensure the smooth flow of water and report the same before this Court at the earliest.
Registry is directed to forward a copy of this order to the Karnataka Lokayukta for action.
List on 06.01.2023 for compliance by the respondent Nos.2 and 3 as well as respondent no.7.
Sd/-
JUDGE sma