Karnataka High Court
Smt V Kamala vs Bruhath Bangalore on 20 April, 2023
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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WP No. 14685 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF APRIL, 2023
BEFORE
R
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 14685 OF 2014 (LB-BMP)
BETWEEN:
1. SMT V KAMALA
W/O LATE M.VENKATESH,
AGED 56 YEARS,
2. SHRI M.VENKATESH
S/O LATE M.M.MUNISWAMAPPA,
AGED 65 YEARS,
RESIDING AT NO.105,
DAMODRA MUDALIAR STREET,
ULSOOR,
BANGALORE-560 008.
... PETITIONERS
(BY SRI. ARUN B.M., ADVOCATE)
Digitally signed AND:
by
NARAYANAPPA
LAKSHMAMMA 1. BRUHATH BANGALORE MAHANAGARA PALIKE
Location: HIGH N.R.SQUARE,
COURT OF BANGALORE-560 001,
KARNATAKA
BY ITS COMMISSIONER.
2. THE COMMISSIONER
BRUHAT BANGALORE MAHANAGARA PALIKE,
N.R.SQUARE,
BANGALORE-560 001.
3. ASSISTANT EXECUTIVE ENGINEER
BRUHAT BANGALORE MAHANAGARA PALIKE,
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WP No. 14685 of 2014
MARUTHI SEVANAGARA SUB-DIVISION,
BANGALORE.
4. SHRI.V.CHANDRASHEKAR
S/O LATE M.VENKATARAMAIAH,
AGED 55 YEARS,
RESIDING AT NO.9/1A,
GROVER ROAD, SARVAGNANAGAR,
COX TOWN,
BANGALORE-560 005.
5. SHRI.V.VASUDEV
SINCE DEAD BY LR's
a) SMT. GEETHA
WIFE OF LATE V. VASUDEV,
AGED ABOUT 50 YEARS
b) Ms. V. ZAINKAR
DAUGHTER OF LATE V. VASUDEV
AGED ABOUT 24 YEARS
c) MASTER V. VINAY
SON OF LATE V. VASUDEV
AGED ABOUT 19 YEARS
ALL ARE RESIDING AT NO. 9/1,
GROVER ROAD, SARVAGNANAGAR,
COX TOWN, BANGALORE-560 005.
6. SHRI V.VIJAYAKUMAR
S/O LATE M.VENKATARAMAIAH,
AGED 48 YEARS,
RESIDING AT NO.9,
GROVER ROAD, SARVAGNANAGAR,
COX TOWN, BANGALORE-560 005.
7. SRI.SATYANARAYANA EDUCATIONAL SOCIETY
(A SOCIETY REGISTERED UNDER KARNATAKA
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WP No. 14685 of 2014
SOCIETIES REGISTRATION ACT, 1960)
HAVING ITS OFFICE AT NO.10/4,
RAMAMURTHYNAGAR MAIN ROAD,
BANASWADI,
BANGALORE-560 033,
REPRESENTED BY ITS FOUNDER SECRETARY
MR.T.VENUGOPAL,
S/O LATE THIMMAIAH.
... RESPONDENTS
(BY SRI. B.S. SATYANANDA, ADVOCATE FOR R1 TO R3;
SRI. AJOY KUMAR, ADVOCATE FOR
SRI. GANESH BHAT.Y., ADVOCATE
FOR R4, R5 (A TO C), R6 AND R7)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 OF THE
CONSTITUTION OF INDIA PRAYING TO DIRECT THE 1ST
RESPONDENT TO IMPLEMENT THE ORDERS DATED 13.10.2011
(ANNEXURE-U) AND 18.11.2011 (ANNEXURE-V) PASSED BY ITS
ASSISTANT EXECUTIVE ENGINEER, THE Respondent No.3 HEREIN,
AND THEREBY REMOVE TEH ENCROACHMENT AND DISMANTLE THE
COMPOUND AND GATE, ILLEGALLY PUT UP/INSTALLED IN THE 40
FEET ROAD PORTION SHOWN IN THE SKETCH ANNEXURE-A,
BIFURCATING PROPERTY BEARING BBMP NOS. 10 (10A), 10/1, 10/3,
10/4 & 10/5, RAMAMURTHYNAGAR MAIN ROAD, BANASWADI,
BANGALORE-560043 AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS AND HAVING
BEEN RESERVED FOR ORDERS THIS DAY, THE COURT PRONOUNCED
THE FOLLOWING:
ORDER
1. The petitioner is before this Court seeking for the following reliefs:
a) Direct the 1st Respondent to implement the Orders dated 13.10.2011 (Annexure-U) and 18.11.2011 (Annexure-V) passed by its Assistant Executive -4- WP No. 14685 of 2014 Engineer, the Respondent No.3 herein, and thereby remove the encroachment and dismantle the compound and gate, illegally put up/installed in the 40 feet Road portion shown in the sketch Annexure-A, bifurcating property bearing BBMP Nos. 10 (10A), 10/1, 10/3, 10/4, 10/5, Ramamurthynagar Main Road, Banaswadi, Bangalore-560043.
b) Grant such other relief/s as this Hon'ble Court deems fit to grant in the facts and circumstances of the case.
2. Petitioner No.1 is the sister of respondents No.4, 6 and deceased respondent No.5. Petitioner No.2 is the husband of petitioner No.1. Property bearing Corporation No.10, Ramamurthy Nagar, Banaswadi belonged to M.Venkataramaiah, S/o Muniswamappa, father of petitioner No.1 and respondents No.4 to 6. During his lifetime, Sri. M.Venkataramaiah bifurcated the above property into five portions, three of the portions viz., portion, 3, 4 and 5 were bequeathed in favour of respondents No.4, 5 and 6 and as regards remaining two portions, he had executed gift deeds in favour of petitioner No.1-Smt.V.Kamala and another daughter Smt.Sharada. There is no dispute raised by said Sharada in the present matter. -5- WP No. 14685 of 2014
3. Upon the expiry of M.Venkataramaiah, respondents No.4 to 6 had applied to 1st respondent-BBMP for bifurcation of their katha, pursuant to which the same was done by way of special notice dated 4.01.2006. The original No.10 was retained for the property allotted to respondent No.4, the property allotted to the share of respondent No.5 was issued a new No.10/3, share allotted to respondent No.6 was allotted new No.10/4 and share allotted to the petitioner was given new No.10/1 by BBMP.
4. In terms of both the Will and the gift deed, a passage/road measuring 40 x 159 ft. leading from Ramamurthy Nagar main road has been shown as providing access to aforesaid properties which was being used by everybody.
5. The Respondent No.4 leased his property in favour of Respondent No.7 on 1.4.2006, Respondent No.5 had leased his property No.10/3 and 10/4 to Respondent No.7 on 1.02.2007 and 10.08.2006 respectively. Respondent No.6 obtained sanction from BBMP for -6- WP No. 14685 of 2014 construction of building on his property bearing No.10/4.
6. In the meanwhile, petitioner No.1 also constructed a commercial building in a portion No.10/1 measuring 4225 sq.ft in terms of the plan sanctioned by BBMP and thereafter gifted 50% undivided interest in the rear portion of her property No.10/1 to Petitioner No.2 - her husband under a gift deed dated 18.04.2009.
7. The petitioners had applied for bifurcation of front portion measuring 4225 sq.ft and backside portion of 2275 sq.ft, as regards which a special notice dated 29.10.2010 had been issued by the BBMP retaining property No.10/1 for the front portion and giving a new property No.10/5 for the rear portion.
8. At this stage, the petitioner alleges that respondents No.4 to 6 in collusion with Respondent No.7 had closed the passage/road measuring 40 x 159 Ft. which had been formed by her father and it was further alleged that respondents No.4 to 7 had put -7- WP No. 14685 of 2014 up a compound wall which had the effect of enclosing the property of the petitioners in property No.10/5 thereby depriving access to that property, as also resulting in encroachment of the entire road/passage measuring 40 x 159 ft. It is in that background that the petitioners lodged a complaint with respondent No.2 - Commissioner, BBMP which was forwarded to respondent no.3 -Asst. Executive Engineer, who being of the opinion that records indicate the same to be a public road, issued a notice on 3.03.2011 to respondents No.4 to 6 to remove the encroachment and dismantle the compound and gate put up.
9. Respondents No.4 to 6 replied to the same on 8.3.2011 contending that the passage is a common passage, only for the benefit of respondents No.4 to 6, no one else has any interest thereon.
10. Respondent No.3 had also issued notice dated 3.3.2011 to respondents No.4 to 6 stating that the road is a public road, but however, subsequently issued an endorsement dated 20.05.2011 placing on -8- WP No. 14685 of 2014 record the opinion of the Deputy Law Officer that appropriate proceedings would have to be initiated before a Civil Court to determine the entitlement.
11. When the contradiction and fallacy in the same was allegedly pointed out by the petitioner, Respondent No.3 issued a notice on 13.10.2011 to respondents No.4 to 6 directing them to remove the encroachment and dismantle the compound and gate put up. Since respondents No.4 to 6 did not take any steps to remove the construction, Respondent No.3 requested for protection from the BMTF on 18.11.2011.
12. It is at this stage that Respondent No.7 filed a Suit in O.S. No.7544/2011 seeking for permanent injunction against respondents No.2 and 3 (BBMP) from interfering with its peaceful possession and enjoyment of the scheduled property. Respondents No.4 to 6 - owners were also arrayed as defendants No.3 to 5, respectively.
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13. The trial Court having issued an emergent notice, upon the appearance of all the respondents, respondents No.2 and 3, not having contested the matter, the trial Court ordered for status quo to be maintained. Respondents No.2 and 3 shockingly not having filed their written statement, respondents No.4 to 6 having filed written statement supporting the case of Respondent No.7, the trial Court decreed the suit injuncting respondents No.2 and 3 from interfering with the alleged possession of Respondent No.7.
14. It is in that background that when no action was taken by respondents No.2 and 3 on the earlier notice dated 13.10.2011 and 18.11.2011 that the petitioners have approached this Court alleging that respondents No.2 and 3 are not discharging their statutory duties, abdicated their responsibilities, there is negligence and dereliction of duty, lawbreakers like respondents No.4 to 7 are continuously breaking the law and going scot-free
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WP No. 14685 of 2014and no action having been taken, the petitioners have sought for issuance of mandamus to implement the order dated 13.10.2011 and 18.11.2011.
15. Sri.B.M.Arun, learned counsel for the petitioners, would submit that, 15.1. In terms of Para 7-A of the last Will and testament of Sri. M.Venkataramaiah, the Northern portion measuring east 61 ft, west 66 ft, North 10 ft. south 99 ft. bounded on the South by property allotted to B.Vasudev, Respondent No.5 with a passage of 40 x 159 ft. leading to Ramamurthy Nagar was allotted to V.Chandrashekhar-Respondent No.4. The southern portion measuring East 54+91 ft, west 159 ft, north 60 ft and south 55 ft bounded on west by common road leading to Ramamurthy Nagar was allotted to V.Vasudev, Respondent No.5. Another northern portion of the property measuring east 124 ft, west 127 ft, north 126 ft and wouth 130 ft, bounded on
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WP No. 14685 of 2014
the east by property allotted to
V.Chandrashekhar-Respondent No.4 and
passage of 40 x 159 ft. leading to Ramamurthy Nagar and south by property gifted to Mrs.Sharada and Mrs.Kamala.
15.2. By referring to the aforesaid properties and their boundaries, he submits that the extent of the property, as also the boundaries being defined and one of the boundaries being a road measuring 40 x 159 ft., the same having come into being in terms of the last Will and testament dated 22.04.2004, it is required to be given effect to.
15.3. Referring to the deed of gift executed by Sri.M.Venkataramaiah in favour of petitioner No.1, he submits that what has been gifted to petitioner No.1 is the property measuring East 100 ft, west- 100 ft. North-65 ft and south 65 ft, totally measuring 6500 sq.ft and is bounded on the east by common road measuring 40 x
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WP No. 14685 of 2014159 ft. leading to Ramamurthy Nagar main road. Thus, he submits that even the property of the petitioner has an access to or through the road measuring 40 x 150 ft. There was no dispute between the petitioner and respondents No.4 to 6 until Respondent No.7 entered the picture and sought to usurp the property, including that which is a common road for access by anybody.
15.4. The Respondent No.6 having obtained a plan sanction in respect of his property on the basis of the 40 ft. wide road, the said road is required to be preserved and maintained for all the parties and cannot be usurped by only respondents No. 4 to 6 in conspiracy with Respondent No.7.
15.5. Prior to the disputes happening, petitioner No.1 had also gifted a portion of the property to petitioner No.2, her husband with both of them having joint interest in said property and they
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WP No. 14685 of 2014had applied for sanction of plan to 2nd respondent which was so sanctioned on the basis of a passage measuring 9 mtr wide leading up to the road on the south measuring 18 mtrs i.e. road leading to Ramamurhty Nagar main road. A plan having been sanctioned by the respondent-BBMP on the basis of this passage, the same is a public road which is required to be protected by the respondents, instead of doing so, the BBMP has not stopped respondents No.4 to 6 in collusion with respondent No.7 putting up a compound wall enclosing the road thereby depriving the petitioner of her access to the road, as also right of the petitioners to access the back portion of the property through the said road. The compound wall having been built using hollow bricks and gate installed with security guard amounts to usurping public property
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WP No. 14685 of 2014which respondents ought to have taken action on.
15.6. Despite issuing order dt. 13.10.2011 and 18.11.2011, the respondents have not taken any action and it is in that background that the petitioners are seeking for a mandamus in that regard.
15.7. In terms of Section 2(30) of the Karnataka Municipal Corporation Act, 1976 ['Act' for short], a 'private street' is defined as under:
(30) "private street" means any street, road, square, court, alley, passage or riding path, which is not a "public street" but does not include a pathway made by the owner of premises on his own land to secure access to or the convenient use of such premises;
15.8. Relying on the above provision, he submits that any street, road, square or court, alley or passage which is not a public street would become a private street. As a corollary he submits that if the public can use street, road
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WP No. 14685 of 2014or passage, then it necessarily has to be a public street.
15.9. By relying on the above provision, he submits that a public street being any street, road, square, court, alley, passage, or riding path over which the public have a right of way, would be a public street. In the present matter, when there are different portions of property which have been carved out and it is not only the family members but anyone else who are required to access the property being members of general public who could do so, then the said passage, as claimed by the respondents, would also be a public street.
15.10. By relying on the above provision, he submits that all public streets would vest with the BBMP. The distinction sought to be made by the respondents and or the BBMP that there is no transfer of the said land to the BBMP is only an abdication of responsibility. The BBMP having
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WP No. 14685 of 2014sanctioned plans on the basis of the said passages not only to the petitioners but respondents No.4 to 6, while considering the said passage to be the access, the BBMP cannot now contend that it is not a public street. 15.11. By relying on the above provision, he submits that the father of the petitioner and respondents No.4 to 6 had formed the building sites and bequeathed the same to the respondents No. 4 to 6 and gifted the property to petitioner No.1 and her sister. While doing so, the access in terms of the passage was clearly laid down and described in the boundaries. This being the obligation of the father of petitioner No.1 and respondents No.4 to 6, he having discharged the same, the said passage which gives access to the site or sites to an existing public or private street would also become a public street which requires to be preserved and maintained by the BBMP.
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WP No. 14685 of 201415.12. By relying on Section 285 of the Act, he submits that it is not only a public street, even as regards private street, no one can build any wall or erect any fence or obstruct the passage. The putting up of the compound wall, as also the gate, is an obstruction which is required to be cleared by the BBMP.
15.13. By relying on the above provisions, he submits that it is only when the Commissioner were to grant a licence for putting up projections and or erections can such projection or erections can be put up on the street. No such licence having been given by the Commissioner, the respondents could not have built the compound wall or put up a gate.
15.14. There is specific provision in terms of Section 288-A for erection of any wall, fence, rail, post, step or any other structure on a public street thereby, the provision would extend to the
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WP No. 14685 of 2014compound wall as also to the gate, which is required to be removed.
15.15. He relies on Section 2(31) to contend that the passage in the present case is one over which the public in general exercised right of way and as such the same cannot be closed by Respondent 4 to 7. Section 2(31) of the Act a 'public street' is defined as under:
(31) "public street" means any street, road, square, court, alley, passage or riding-path over which the public have a right of way whether a thoroughfare or not and includes,-
(a) the road-way over any public bridge or cause way,
(b) the foot-way attached to any such street, public bridge or causeway, and
(c) the drains attached to any such street, public bridge or causeway, and the land, whether covered or not by any payment verandah or other structure which lies on either side of the roadway up to the boundaries of the adjacent property, whether that property is private property or property belonging to the Government or the corporation;
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WP No. 14685 of 201415.16. By relying on Section 265 he submits that the BBMP having taken into account the passage for bifurcation of Khatha, allocation of new municipal numbers, issuance of plan sanction, the passage for all practical purposes being a public street, the powers under the said section have to be exercised by the commissioner. of Section 265 of the Act reads as under:
265. Vesting of public streets and their appurtenances in corporation.- (1) All public streets in the corporation reserved under the control of the Government, with the pavements, stones and other materials thereof and all work materials, implements and other things provided for such streets, all sewers, drains, drainage works, tunnels and culverts whether made at the cost of the corporation fund or otherwise, in or alongside or under any street, whether public or private, and all works, materials, implements and other things appertaining thereto and all trees not being private property growing on public streets or by the side thereof, shall vest in the corporation.
(2) The Government may, after consulting the corporation by notification withdraw any such street, sewer, drain, drainage work, tunnel, culvert or tree from the control of the corporation
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WP No. 14685 of 201415.17. By relying on Section 280 he submits that father of Petitioner No.1 and respondents 4 to 6 while forming the sites, was under an obligation to make a street, more so while disposing the same under a will or gift, the same having been done by the father, the obligation has been discharged and the BBMP has to treat the road as a public Street. Section 280 of the Act reads as under:
280. Owner's obligation to make a street when disposing of land as building sites.- If the owner of any land utilises, sells, leases or otherwise disposes of such land or any portion or portions of the same as sites for the construction of buildings, he shall, save in such cases as the site or sites may about on an existing public or private street, layout and make a street or streets or road or roads giving access to the site or sites and connecting with an existing public or private street.
15.18. By relying on Section 285 he submits that there is a prohibition for anyone to obstruct a street, private or public. Section 285 of the Act reads as under:
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285. Prohibition against obstructions in streets.- No one shall build any wall or erect any fence or other obstruction or projection or make any encroachment in or over any street or any public place the control of which is vested in the corporation except as hereinafter provided.
15.19. By relying on Section 287 he submits that is the obligation of the BBMP to remove any encroachment on a private or a public street.
Section 287 of the Act reads as under:
287. Removal of encroachment.- (1) The Commissioner may, by notice require the owner or occupier of any premises to remove or alter any projection, encroachment or obstruction (other than a door, gate, bar or ground-floor window) situated against or in front of such premises and in or over any street or any public place the control of which is vested in the corporation.
(2) If the owner or occupier of the premises proves that any such projection, encroachment or obstruction has existed for a period sufficient under the law of limitation to give him a prescriptive title (or where such period is less than thirty years, for a period of thirty years), or that it was erected with the consent of any municipal authority duly empowered in that behalf, and that the period, if any, for which the consent is valid has not expired, the corporation shall make reasonable compensation to every person who suffers damage by the removal or alteration of the same.
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WP No. 14685 of 201415.20. By relying on Section 288 he submits that no projection or erection can be made on a private or public street without permission of the BBMP, the same not having been sought for let alone obtained the compound wall and gate could not have been constructed. Section 288 of the Act reads as under:
288. Power to allow certain projections and erections.- (1) The Commissioner may grant a licence subject to such conditions and restrictions as he may think fit to the owner or occupier of any premises,-
(a) to put-up or continue to have verandahs, balconies, sun-shades, weather frames and the like to project over a street; or
(b) in streets in which the constructions of arcades has been sanctioned by the corporation to put up or continue to have an arcade; or
(c) to construct any step or drain-covering necessary for access to the premises.
(2) The Commissioner may grant a licence subject to such conditions and restrictions as he may think fit for any temporary construction in an street or in any
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public place the control of which is vested in the corporation.
(3) No licence shall be granted under sub-section (1) if the projection or construction is likely to be injurious to health or cause public inconvenience or otherwise materially interfere with the use of the road as such.
(4) On the expiry of any period for which a licence has been granted under this section or after due communication of an order of suspension or revocation of such licence the Commissioner may, without notice, cause any projection or construction put up under sub-section (1) or (2) to be removed, and the cost of so doing shall be recoverable in the manner provided in section 470 from the person to whom the licence was granted.
(5) The corporation shall have power to lease road sides and street margins vested in the corporation for occupation on such terms and conditions and for such period as it may fix:
Provided that no such road sides and street margins shall be leased out for any term exceeding three years without prior sanction of the Government:
Provided further that if the Government consider that any occupation of a road side or street margin under a lease granted by the corporation under this section is likely to be injurious to health or cause public inconvenience or otherwise materially interfere with the use of the road side or street margin as such, the Government may direct the corporation to cancel or modify the lease and the corporation shall thereupon cancel or modify the lease accordingly.
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15.21. For the same purpose, he relies on Section 288-
A and submits that no wall fence or other structure an be put up on a public street. Section 288-A of the Act reads as under:
288A. Prohibition of structures or fixtures which cause obstruction in public streets.- No person shall except with the written permission of the Commissioner under section 288 erect or set up any wall, fence, rail, post, step, booth or other structures or fixtures in or upon any public street or upon or over any open channel, well or tank in any street so as to form an obstruction to, or an encroachment upon or a projection over, or to occupy any portion of such street, channel, drain, well or tank.
15.22. By relying on Section 288D he submits that the commissioner is vested with an obligation to remove any encroachment on a private or public street. Section 288D of the Act reads as under:
288D. Commissioner may without notice remove encroachment.- Notwith-standing anything contained in this Act, the Commissioner may, without notice, cause to be removed,-
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(a) any wall, fence, rail, step, booth or other structure or fixture which is erected or set up in contravention of the provisions of section 288A;
(b) any stall, chair, bench, box, ladder, bale, or any other thing whatsoever, placed or deposited in contravention of section 288B;
(c) any article, whatsoever, hawked or exposed for sale in any public place or in any public street in contravention of section 288C and any vehicle, package, box, board, shelf or any other thing in or on which such article is placed, or kept for the purpose of sale.] 15.23. He relies on the Judgment in M/s Gobind Pershad Jagdish Pershad vs. New Delhi Municipal Committee1, more particularly para Nos. 1, 7, 8 and 10 thereof, which are reproduced hereunder for easy reference:
1. The short question for consideration is whether the New Delhi Municipal Committee (the Committee) was justified in declaring the verandah in front of the shop, owned by the appellant, in Connaught Circus, New Delhi, as "public street" under Section 171(4) of the Punjab Municipal Act, 1911 (the Act). The trial court answered the question in the affirmative and dismissed the suit filed by the appellant-plaintiff. The 1 (1993) 4 SCC 69
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appeal against the said order was dismissed by the Senior Subordinate Judge on February 13, 1967. The second appeal was also dismissed by a learned Single Judge of the Delhi High Court. Finally, the Letters Patent Appeal preferred by the appellant was dismissed by the Division Bench of the High Court on March 12, 1982. This appeal by way of special leave is against the judgment of the Division Bench of the High Court.
7. We agree with the learned counsel for the appellant that before a space can be held to be a "street" under the Act, there must be a dedication by the owner to the public. It is contended that there is no evidence on the record to prove animus dedicandi.
8. It would be useful to refer to the following paragraph from Halsbury's Laws of England, 3rd Edn., Vol. 19 at page 49:
"The fact that a way has been used by the public so long and in such a manner that the owner of the land, whoever he was, must have been aware that the public believed that the way had been dedicated, and has taken no steps to disabuse them of that belief, is evidence (but not conclusive evidence) from which a court or jury may infer a dedication by the owner."
10. We see no ground to differ with the concurrent findings of the courts below and hold that the appellant has dedicated the verandah in dispute to the public use. It is being used for passing and repassing by the public at large and as such is a "street" in terms of Section 3(13)(a) of the Act. The appellant has, thus, surrendered his rights in the property for the benefit of the public. The user of the property is and always shall be with the public. Any space, passage, verandah, alley, road or footway
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WP No. 14685 of 2014dedicated to public by the owner for passing and repassing, partakes the character of a "street" and no longer remains under the control of the owner. The owner has no right at all times to prevent the public from using the same. When the owner of the property has, by his own volition permitted his property to be converted into a "street", then he has no right to claim any compensation when the same property is made a "public street" under Section 171(4) of the Act. The "streets" are meant for public use. It is necessary that the "streets" which are being used by the public are frequently repaired and are also saved from public abuse. It is common knowledge that in the absence of any regulatory control, the hawkers and squatters are likely to occupy the "streets" thereby creating nuisance for the public. In a situation like this it is necessary for the Committee to step in and exercise its powers under Section 171(4) of the Act. The Committee exercises regulatory control and is responsible for the repair and upkeep of the "public streets". The verandah in dispute is a "street". It has been declared as a "public street" for the better enjoyment of the public-right in the said street. We hold that when a "street" is declared as 'public street' the owner, of the property comprising the said "street", has no right to claim compensation. 15.24. Relying on the above, he submits that the road being a public road, it is the responsibility of the BBMP to preserve the same. He submits that the entire property of the father of the petitioner measured 49613 sq.ft, from and out of which betterment charge were paid to the
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WP No. 14685 of 2014extent of only 43253.75 sq.ft leaving out the passage of 40 x 159 sq.ft which amounts to 6360 sq.ft, the betterment charges having been paid only in respect of the properties allotted to petitioners, her sister and respondents No.4 to 6, there is no betterment charge paid in respect of passage/road and as such, this road vests with the BBMP irrespective of whether any order has been passed in this regard or not. 15.25. The katha which has been issued to the petitioner and respondents No.4 to 6 is on the basis of the extents of this road measuring 40 x 159 ft, without such road being in existence, the katha would not have been issued. The special notice which has been issued allocating different municipal numbers to the property of the petitioners and respondents No.4 to 6, is also on the basis of the said road. The plan sanction which has been issued to both in favour of Respondent No.6 and petitioner No.1
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WP No. 14685 of 2014is on the basis of the said road. Thus, all documents reflecting the existence of a road and respondent having acted on the said premise and issued order dated 13.10.2011, it was required of the respondents to take necessary action relating thereto. 15.26. The respondents No.2 and 3 having not contested the Suit in O.S. No.7549/2011 resulting in an order of status-quo, and the suit being decreed, the respondents No.2 and 3 are not discharging their statutory functions thereby putting at risk the rights and interest of the petitioner and it is in that background he submits that the prayers which are sought for are required to be granted.
16. Sri.Ajoy Kumar Patil, learned counsel for respondents No.4 to 6 would submit that, 16.1. There is no passage/road measuring 40 x 159 ft., hence, the question of the same vesting with the BBMP under Section 265 of the Act
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WP No. 14685 of 2014does not arise. The alleged public passage/road is a private property exclusively belonging to and owned by respondents No.4 to 6 and as such, earmarked for the purpose of ingress and egress to the respective portions of the property bequeathed by M.Venkataramaiah in favour of respondents No.4 to 6.
16.2. Even the passage of 40 x 159 ft. claimed by the petitioners has been bequeathed to respondent No.4 to 6, the petitioners have no right in the said passage since her property is on the eastern boundary. If at all the petitioners claim any right on the said passage, the same can only be determined in a properly instituted civil suit. The petitioner cannot seek to make use of the official respondents to achieve her private purposes.
16.3. A suit in O.S. No.7544/2011 having been filed by Respondent No.7, the petitioner being aware of the said suit, having entered appearance and
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WP No. 14685 of 2014collected the copies, the writ petition has been filed more than a year thereafter only to harass respondents NO.4 to 7.
16.4. Respondent No.7 is running an educational institution which is for the benefit of the people around the locality which is sought to be disturbed by the petitioners. Respondents No.4 to 6 have respectively executed lease deeds in favour of Respondent No.7, since the entire property has now been leased to Respondent No.7, it has enclosed the property and put up a compound wall in the place where there was a old compound wall which has become dilapidated. The said construction being lawful cannot be sought to be interfered by either the petitioners or the other respondents. 16.5. The compound wall which has been constructed around the passage is for the purpose of protection of the school children and inmates of the hostel. The said passage is not a public
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WP No. 14685 of 2014road, it belongs to respondents No.4 to 6 which has been leased to Respondent No.7 and has never vested with 1st respondent. 16.6. Mere fact that the old dilapidated wall has been demolished and new compound wall has been constructed would not give any cause of action to try and stop the construction and or lay a claim on the passage which belongs to respondents NO.4 to 6.
16.7. The petitioner and respondent NO.2 have colluded with each other and for extraneous consideration, had issued a letter dated 13.10.2011 addressed to respondents No. 4 to 6 marking copy to Respondent No.7. The Respondent No.7 being apprehensive of interference with the usage of the internal private passage/road had filed a suit in O.S. No.7544/2011 wherein an order of injunction was been granted restraining the respondents from interfering with the possession and
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WP No. 14685 of 2014enjoyment of the properties by Respondent No.7. Thereafter the said injunction was confirmed and a decree was passed in favour of Respondent No.7 which has become final, as such, the prayers which have been sought for cannot be granted.
16.8. The intention of the father ought to be looked into. He had gifted the property measuring 65 x 100 ft to the petitioner, the said property having frontage towards Ramamurthy Nagar main road, there is no need for any other access, both the daughters were given properties facing the main road, whereas the sons were bequeathed properties behind and in order to access those properties, an internal passage had been shown. This passage inures only to the benefit of the respondents NO.4 to
6. The petitioner has become avaricious and is seeking to create legal obstacles.
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WP No. 14685 of 201416.9. The private passage/road would not come within the definition of Section 2(31) of the Act, since same not being a public road, the BBMP cannot have right over the same.
16.10. The construction of the compound wall and concreting the passage does not require any permission to be obtained from the BBMP, hence the question of violation being committed by respondents No.4 to 6 or Respondent No.7 would not arise. The entire proceedings undertaken by the petitioner are with an ulterior motive for extraneous reasons which cannot be countenanced in law. 16.11. Though petitioner No.1 was owner of the entire property, only to try and make out a right over the common passage, petitioner No.1 has gifted 50% of undivided interest on the back of the property to petitioner No.2, her husband, the said gift and claim laid thereon are only for the purposes of causing harm and injury to
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WP No. 14685 of 2014respondents No.4 to 7. This court ought to take note of the said fact and dismiss the petition. 16.12. Respondents No.1 to 3 having no jurisdiction to initiate any proceedings against respondents No.4 to 7 under the Act. They would have only powers over a public street transferred to the BBMP since here there is no such transfer or vesting, the claim of the petitioner being entirely baseless is required to be dismissed.
17. Sri.B.S.Satyananda, learned counsel for the BBMP would submit that, 17.1. The BBMP will abide by the orders passed by this Court. He, however, submits that on 20.05.2011 the Asst. Executive Engineer had issued an endorsement that 40 ft. road does not belong to BBMP and it was for the private parties to sort out their differences. 17.2. On 13.10.2011 the Asst. Executive Engineer had issued a notice directing respondents No.4
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WP No. 14685 of 2014to 6 to remove the encroachment of compound and gate put up on the 40 ft. road since needful was not done, the same was informed to the BMTF on 18.11.2011 to take necessary action.
17.3. Noticing that there is conflict in the true position, he submits that to clear the ambiguity and ascertain the actual facts on 30.09.2011 the Asst. Executive Engineer visited the spot and conducted an inspection and found that there is no public road.
17.4. The issue between the petitioner and respondents 4 to 6, the petitioner No.1 being the sister and respondents No.4 to 6 being brothers, it is for them to sort out the matter amongst themselves and they have unnecessarily dragged in the BBMP in the matter. The BBMP would get a right only if there is a public street within the meaning of Section 2(31) of the Act. The road in question
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WP No. 14685 of 2014is not found in the road register of the BBMP. The BBMP is also not maintaining the said road. There has to be an order of vesting which is required to be made to vest any road with the BBMP. Unless such an order of vesting is made, the BBMP would not have any power or authority over a road formed by private individuals.
17.5. In the present case, the BBMP not having formed a road, there being no acquisition of land to that effect and or the said road not being transferred to the BBMP, the BBMP cannot exercise any power in respect of the said road.
17.6. A suit in O.S. No.7544/2011 having been filed, an order of injunction passed by the Civil Court, the suit ended in a decree in favour of the plaintiff therein, the BBMP today is unable to take any action as it would have to follow the judgment rendered by the trial Court.
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WP No. 14685 of 201417.7. On that basis, he submits that any order passed by this Court be implemented by the BBMP.
18. Heard Sri.Arun.B.M, learned counsel for the petitioners, Sri.B.S.Satyanand, learned counsel for respondents No.1 to 3, Sri.Ajoy Kumar, learned counsel for Sri.Ganesh Bhat.Y.H, learned counsel for respondents No.4, 5(a-c), 6 and 7. Perused papers.
19. The points that would arise for consideration are:
i. Whether the BBMP can take a contradictory stand on the one hand saying that it does not have right over the property and on the other hand issuing notice calling upon respondents No.4 to 6 to remove the construction put up?
ii. Whether the BBMP after considering the passage for the purpose of sanction of plan to petitioner No.1 and 2 on the backside of their property, as also for the purpose of sanction of plan to respondents No.4 to 6, can now contend that the said passage is not a public road?
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WP No. 14685 of 2014iii. Whether respondent No.7 could have filed a civil suit virtually challenging the notice/order issued by the Respondent No.3 dated 13.10.2011?
iv. Whether the BBMP can now contend that since there is an order of injunction passed in the said suit, BBMP cannot do anything and whether the stand of BBMP is proper and correct?
v. What order?
20. I answer the above points as under:
21. ANSWER TO POINT NO.1: Whether the BBMP can take a contradictory stand on the one hand saying that it does not have right over the property and on the other hand issuing notice calling upon respondents No.4 to 6 to remove the construction put up?
22. ANSWER TO POINT NO.2: Whether the BBMP after considering the passage for the purpose of sanction of plan to petitioner No.1 and 2 on the backside of their property, as also for the purpose of sanction of plan to respondents No.4 to 6, can now contend that the said passage is not a public road? 22.1. Since both Points No.1 and 2 are connected, the same are taken up together for consideration.
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WP No. 14685 of 201422.2. In the present matter, initially the BBMP had issued orders on 13.10.2011 and 18.11.2011 stating that the respondents No.4 to 7 had encroached on the public street and/or the property of the BBMP. It is thereafter that an affidavit came to be filed by the Assistant Executive Engineer sating that it is only if the land had been relinquished and/or transferred in favour of the BBMP that the BBMP would get a right over the said land/passage/road. Since no such relinquishment has been executed, BBMP has no right over the road and as such, the earlier notice which had been issued has not been acted upon.
22.3. It is rather strange that such diametrically opposite stand has been taken by the BBMP. The reason for the same is not directly forthcoming but can be ascertained on the basis of the circumstances. The concerned Assistant Executive Engineer who had taken
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WP No. 14685 of 2014the earlier stand and the concerned Assistant Executive Engineer who has taken the subsequent stand are different people. 22.4. Infact, after the first notice on 13.10.2011 was issued, a civil suit had been filed by respondent No.7 which is not contested by the BBMP. The same being required to be contested by the Assistant Executive Engineer. Though vakalathnama was filed, the suit was not contested resulting in injunction order being made absolute against the BBMP restraining the BBMP from demolishing the compound wall and/or the gate put up. It is therefore required to ascertain as to which stand of the BBMP is legally correct.
22.5. It is not in dispute that the property bearing Corporation No.10, Ramamurthy Nagar, belonged to M.Venkataramaiah and during his lifetime, he bifurcated the above property into 5 portions. Portion No.3, 4 and 5 were
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WP No. 14685 of 2014bequeathed in favour of respondents No.4, 5 and 6 and Portion No.1 and 2 were gifted to petitioner No.1 and her sister Sharada. 22.6. The entire property measuring 49613 sq.ft., betterment charges were paid only to an extent of 43253.75 sq.ft. and no betterment charges were paid in respect of the passage measuring 40 x 159 ft. i.e., 6360 sq.ft. It is this 40 x 159 ft. passage which is shown as boundary to the property allotted to petitioner No.1 and respondents No.4, 5 and 6. It is on the basis of the said passage that there was a bifurcation of the katha which is effected by the BBMP. The original No.10 was retained to the property allotted to respondent No.4, property allotted to respondent No.5 was issued with a new No.10/3, property allotted to respondent No.6 was issued with a new No.10/4, the petitioner was allotted with a new No.10/1 and her sister was allotted with a New No.10/2. All this
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WP No. 14685 of 2014allocation of new number was on the basis of the passage measuring 40 x 159 ft. The sister not having raised any dispute the reason for the same is clearly apparent in that the said sister does not share any boundary with he passage/street, but is situate away from the passage/street.
22.7. In terms of Section 505 of the Karnataka Municipal Corporation Act, 1976 (for short, 'KMC Act'), the BBMP is required to act in conformity with the provisions of Karnataka Town and Country Planning Act, 1961 (for short, 'KTCP Act').
22.8. Section 505 of the Karnataka Municipal Corporations Act, 1976 is reproduced hereunder for easy reference:
505. Exercise of powers by a corporation to be in conformity with the provisions of the Karnataka Town and Country Planning Act, 1961.- Notwithstanding anything contained in this Act, a corporation or any officer or other authority required by or under this Act to exercise any power, or perform any function or discharge any duty,-
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WP No. 14685 of 2014
(i) with regard to any matter relating to land use or development as defined in the Explanation to section 14 of the Karnataka Town and Country Planning Act, 1961, shall exercise such power, or perform such function or discharge such duty with regard to such land use or development plan or where there is no development plan, with the concurrence of the Planning Authority;
(ii) shall not grant any permission, approval or sanction required by or under this Act to any person if it relates to any matter in respect of which compliance with the provisions of the Karnataka Town and Country Planning Act, 1961 is necessary unless evidence in support of having complied with the provisions of the said Act is produced by such person to the satisfaction of the corporation or the officer or other authority, as the case may be. 22.9. In terms of Section 505 (ii) of KMC Act, the Corporation shall not grant any permission, approval or sanction unless there is a compliance with the provisions of the KTCP Act. 22.10. In terms of Section 17 of KTCP Act, there is a sanction required for sub-division of plot or formation of a layout or laying of a private street. Section 17 of KTCP Act as it stood in the year 2006 when the Special notice dated 04.01.2006 was issued, reads as under:-
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17. Sanction for sub-division of plot or lay-out of private street. (1) The State Government shall by rules prescribe the standards to be followed and minimum extent of Land to be considered for approval of Layout for sub dividing a plot and prescribe the minimum extent of area to be earmarked for park, open spaces and civic amenity sites and laying out roads. Every person who intends to sub divide his plot by making a layout on or after the date of the publication of the declaration of Local Planning Area under section 4-A, shall submit detailed plan of the layout of his plot showing layout of roads, sub-divided plots and earmarking area for park and open spaces and civic amenities to such extent and in such manner, as prescribed.
(2) The Planning Authority may, within the prescribed period, sanction such plan either without modification or subject to such modifications and conditions as it considers expedient or may refuse to give sanction, if the planning authority is of the opinion that such plan is not in any way consistent with the proposals of the Master Plan. Provided that where the Master Plans are not finally approved, in such cases the Planning Authority may sanction the layout plan as per the guidelines issued by the Government from time to time. (2A) If the Authority decides to sanction the layout plans under sub-section (2), it shall sanction provisional layout plan in accordance with such rules as may be prescribed for demarcation and development purposes showing the sites, street alignment, park and civic amenity area and any other infrastructure facility including the arrangement to be made for leveling, paving,
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WP No. 14685 of 2014metalling, flagging, channeling, sewering, draining, street lighting and water supply to the satisfaction of the Planning Authority and local authority. One copy of such plan shall be marked to the jurisdictional local authority. The owner shall relinquish the roads, parks to the local authority and Civic Amenity areas to the Planning Authority through registered relinquishment deed free of cost without claiming any compensation. (2B) The Planning Authority shall ensure the completion of all development works including all infrastructure facilities as mentioned in sub-section (2A) under the supervision of the concerned Authority/Agency/Department. On obtaining the certificate of completion from the concerned Authority/Agency/Department on having completed all the development works and on relinquishment of the roads, parks to the local authority and Civic Amenity areas to the Planning Authority and handing over the same, the Planning Authority may issue the final layout plan affixing the seal of the Planning Authority for registration purpose. Provided that no Commencement Certificate or licence shall be sanctioned or issued for buildings on sites in the layout unless the final layout plan is issued.
(3) No compensation shall be payable for the refusal or the insertion, imposition or modification or conditions in the grant of sanction. (4) If any person does any work in contravention of sub-section (1) or in contravention of the modifications and conditions of the sanction granted under sub-section (2) or despite refusal for the
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WP No. 14685 of 2014sanction under the said sub-section (2), the Planning Authority may direct such person by notice in writing to stop any work in progress and after making an inquiry in the prescribed manner, remove or pull down any work or restore the land to its original condition.
(5) Any expenses incurred by the Planning Authority under sub-section (4) shall be a sum due to the Planning Authority under this Act from the person in default.
(6) Any person aggrieved by the decision of the Planning Authority under sub-section (2) or sub- section (4) may, within thirty days from the date of such decision appeal to such authority as may be prescribed.
(7) The prescribed authority may after giving a reasonable opportunity of being heard to the appellant and the Planning Authority, pass such order as it deems fit, as far as may be, within four months from the date of receipt of the appeal.
22.11. Thus, from a reading of Section 17 of KTCP Act, it is clear that no one can sub-divide a plot or a lay a private street without the permission of the Planning Authority. In the present case, there is no such permission under Section 17 of KTCP Act which has been obtained by
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WP No. 14685 of 2014M.Venkataramaiah nor such permission has been produced. Be that as it may, the BBMP has acted on the basis of the bequest made by M.Venkataramaiah as also the gift deed executed by him and allotted Municipal Nos.10/1 to 10/4 to the newly formed plots retaining the original No.10 to the property allotted to respondent No.4. Thus, the BBMP way back in the year 2006 has taken into account the intention of the testator and the donor to allot new numbers and while doing so, the passage measuring 40 x 159 ft. has also been given effect to.
22.12. When an applications for building plans and licences were made by respondents No.4, 5 and 6, the BBMP has taken into account the said road measuring 40 x 159 ft. to sanction plans for such plots and issued building licence. Infact, upon petitioner No.1 gifting 50% of the hind portion of her property and on an
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WP No. 14685 of 2014application being made for plan sanction, the BBMP has taken the road into consideration and sanctioned the plan in favour of petitioners No.1 and 2. In all the above actions, the road having been taken into account, the BBMP cannot now contend that the road has not been transferred to the BBMP and therefore, the BBMP has no administrative jurisdiction over the said road.
22.13. Though no particular permission under Section 17 of KTCP Act had been taken by M.Venkataramaiah before the sub-division of the plots, unfortunately, without insisting on such permission, the BBMP has bifurcated the katha and issued plan sanction on the basis of the said road. If at all the submission of the BBMP now being taken is to be believed and countenanced then the bifurcation of the katha could not have happened nor could the building
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WP No. 14685 of 2014plan sanction be issued by the BBMP to respondents No.4, 5 and 6.
22.14. These actions taken in the year 2006, I am of the considered opinion that the same need not be upset now but would have to be read harmoniously inasmuch as these actions taken by the BBMP would have to be in terms of Section 505 of KMC Act be held to have been taken by recognizing the street made by M.Venkataramaiah.
22.15. The BBMP having bifurcated Khatha, issued plan sanction and collected taxes as regards the said properties, the BBMP cannot now abdicate its responsibilities and duties on the ground that the said passage/street has not been handed over to the BBMP under a relinquishment deed, such a stand now taken up in my considered opinion is a dishonest stand by the BBMP and is as such deprecated.
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WP No. 14685 of 201422.16. Looked at from another angle, what has been bequeathed by M.Venkataramaiah are the plots covered under Municipal Nos.10, 10/3, 10/4 and what has been gifted are the property covered under 10/1 and 10/2. These properties are separate properties, having separate measurements and none of these municipal numbers take within itself the passage/road measuring 40 x 159 ft. The said road stands on a completely different and independent footing and has to be regarded as such. Not being part of any of the municipal numbers allotted to the properties belonging to petitioners or respondents 4,5 and 6.
22.17. Thus, neither petitioner No.1 nor respondents No.4, 5 and 6 let alone respondent No.7 lessee can claim independent right, title or interest over the said road so as to put up a compound wall around it as also a gate preventing access thereto. Respondents 4 to 6 could not have
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WP No. 14685 of 2014leased and infact have not leased the passage/street to Respondent No.7. 22.18. The said passage/street belonging to the father has neither been bequeathed nor gifted to anyone, looked at from another angle the property being the individual property of the father, Petitioner No.1 and Respondents 4 to 6 along with the other sister would have equal rights in the lands covered by the said passage/street.
22.19. In the above background, I answer Points No.1 and 2 as under:-
22.20. The BBMP cannot take a contradictory stand on the one hand having considered the road/passage for the purpose of sanction of plan to the petitioners, respondents No.4 to 6, issuing separate municipal numbers to the respective properties by way of a special notice bifurcating the katha and thereafter contend
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that the BBMP has no administrative jurisdiction over the said road.
22.21. The BBMP having bifurcated Khatha, issued plan sanction and collected as also continuing to collect taxes as regards the said properties, the BBMP cannot now abdicate its responsibilities and duties on the ground that the said passage/street has not been handed over to the BBMP under a relinquishment deed.
23. ANSWER TO POINT NO.3: Whether respondent No.7 could have filed a civil suit virtually challenging the notice/order issued by the Respondent No.3 dated 13.10.2011?
24. ANSWER TO POINT NO.4: Whether the BBMP can now contend that since there is an order of injunction passed in the said suit, BBMP cannot do anything and whether the stand of BBMP is proper and correct?
24.1. Points No.3 and 4 being connected to each other are taken up together for consideration:
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24.2. As soon as the notice came to be issued by the BBMP on 13.10.2011 to the respondent No.7, respondent No.7 filed a suit in O.S.No.7544/2011 on 21.10.2011 seeking permanent injunction restraining the BBMP and its officials from interfering with the peaceful possession and enjoyment of the plaintiff (respondent No.7) in the suit schedule property. In the said suit, a false submission was made that item No.1 to 3 of the suit schedule property forms a composite contiguous unit and the plaintiff (respondent No.7) had constructed a compound wall within the property over which it has got the lease hold rights and there is a 40 f.t internal road/passage for the usage of the school children and inmates of the hostel. Item No.1 to 3 cannot be said to be composite or contiguous unit inasmuch as there are three different properties having three different
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municipal numbers which had been allotted thereto. Admittedly there is no amalgamation of khatha carried out, in absence thereof it cannot be said that the properties are composite, at the most they can be said to be contiguous.
24.3. A perusal of the boundaries to the said items would indicate that item No.1 is bounded on the west by 40 ft. internal road, item no.2 is bounded by a passage of 40 x 159 ft. Thus, this 40 x 159 ft. being a separate property and not belonging to any of respondents No.4 to 6 as held supra, the description given by respondent No.7 in the plaint is totally false. 24.4. In para 10 of the plaint, plaintiff (respondent No.7) had categorically stated that defendant No.2 (Assistant Executive Engineer, BBMP) had issued a letter/notice dated 13.10.2011 to remove the compound wall and the gate constructed by the plaintiff (respondent No.7)
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WP No. 14685 of 2014immediately and further called upon them to give an explanation for having laid the concrete for the 40 ft. internal road/passage and in that background, in Para 11, it is contended that the defendant No.2 has exceeded the powers by issuing a letter dated 13.10.2011 and had contended that defendant No.2 using men and machineries is likely to demolish the compound wall and remove the gate. The cause of action in para No.13 was attributed to the notice dated 13.10.2011 and it is in that background that the relief for permanent injunction was sought for. Thus, the entire basis of the suit was the issuance of the notice and allegation made against defendant No.2 therein namely BBMP.
24.5. In the said suit, defendant No.3 to 5 (respondents No.4 to 6) filed a written statement supporting the case of plaintiff (respondent No.7) therein. Emergent notice
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WP No. 14685 of 2014having been issued to the respondents, on vakalathnama being filed by all the defendants, the trial Court directed for maintenance of status-quo, which apparently has not been objected to by the lawyer for the BBMP on 26.10.2011. On 18.01.2012, the written statement of defendants No.1 and 2 (BBMP) was taken as not filed and the matter posted for issues. Even thereafter, defendants No.1 and 2 (BBMP) failed to file their written statement. Defendants No.3 to 5 filed their written statement supporting the case of respondent No.7. Defendants No.1 and 2 (BBMP) did not adduce any oral or documentary evidence nor did they cross examine the plaintiff. Defendant No.3 to 5 also did not cross examine the plaintiff and submitted that they had no evidence of their own. It is in that background that the suit
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WP No. 14685 of 2014proceeded for judgment and came to be decreed.
24.6. A reading of the above leads to a very sorry state of affairs in the BBMP. Despite notice having been received by the BBMP and vakalathnama undertaken to be filed on 26.5.2011, the said suit was not contested by the BBMP and finally, a decree came to be passed on 29.11.2012. Having issued a notice on 13.10.2011, which is the cause of action for the suit, it was for the BBMP to have defended the notice and defended the suit. Without doing so, the BBMP has virtually succumbed to the decree in the said suit and now it is contended that in view of the injunction order which had been passed, the BBMP cannot do anything. This in my considered opinion is a highly malafide statement made on part of the BBMP and is deprecated.
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WP No. 14685 of 201424.7. The order of injunction would not come in the way of this court directing the BBMP to remove the compound wall and gate put up on a passage/street which is deemed to have been vested with the BBMP on account of the Respondents No. 4 to 6 having obtained bifurcation of Khatha, they along with Respondent no.7 having obtained plan sanction. BBMP also having recognized and taken the passage/street into account for bifurcation of khatha and issuance of plan sanction as also collecting taxes cannot abdicate its responsibility in preserving the said passage/street.
24.8. The manner in which the officers of the BBMP have acted after issuing the notice dated 13.10.2011 and have in my considered opinion colluded with respondent No.7 in the suit leading to its decree would require a proper investigation by concerned officers of the BBMP
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WP No. 14685 of 2014towards which the Chief Commissioner is directed to initiate necessary enquiry in accordance with law.
24.9. Once a notice had been issued on 13.10.2011, no effort has been made by the BBMP to even file a caveat before the trial court or this coirt, so as to contest any suit that may be filed by the noticee upon a receipt of a notice. Apart from not contesting the injunction application and/or not filing written statement, the BBMP also did not bring to the notice of the Court that the suit is barred by law inasmuch as a notice having been issued by the BBMP it can only be challenged by way of an appellate remedy or before this Court.
24.10. The trial Court has also not considered these aspects and without considering the nature of the relief sought for in the suit and the cause of action thereof has proceeded to decree the suit. The trial Court should have taken into account
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WP No. 14685 of 2014the applicability of Order VII Rule 11 of Code of Civil Procedure and ought to have rejected the plaint of its own accord.
24.11. Whenever any suit is filed against municipal corporations alleging that the corporation is proposing to demolish any construction and there is a mention made of a notice issued by the corporation, the trial court ought to examine this issue before granting any order of injunction or the like, if any such notice has been issued, the trial court should stay its hands and call upon the plaintiff to reply to the notice, if it is show cause notice or relegate the plaintiff to appellate proceedings if the same is a final confirmatory order cum notice. 24.12. Be that as it may, the decree would not come in the way of this court issuing necessary directions, as also would not come in the way of the BBMP taking necessary action in furtherance of such directions.
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WP No. 14685 of 201424.13. It is required that the robust system be established by the Chief Commissioner for handling the litigation of the BBMP and a dashboard be prepared and made available to all concerned officers as regards the notices issued by the BBMP, caveats filed relating thereto both before the civil courts and this court, suits filed in relation thereto, writ petition filed in relation thereto etc. 24.14. Whenever any notice is issued by the BBMP, it is also be required for caveats to be filed by the BBMP before the jurisdictional civil court as also this court, so as to enable the BBMP to place its position before orders are passed by the Court of law.
24.15. Necessary responsibility would also have to be affixed on the concerned officers and the lawyers of the BBMP to contest the matter in the Court of law and not let the matter go
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WP No. 14685 of 2014
uncontested like that done in
O.S.No.7544/2011.
24.16. In view of the submission made by Sri. B.S. Satyananda., that the BBMP is not exercising any jurisdiction over the roads which have not been relinquished, it would be in order for the Chief Commissioner to cause a survey of all the properties in Bangalore where roads have been formed and determine whether the BBMP would exercise its jurisdiction and superintendence over the road. This being for the reasons that a road is taken into consideration by the BBMP for issuance of katha, bifurcation of katha, issuance of plan sanction, building licence and collection of tax, it would be the bounded duty of the BBMP to maintain such roads which forms the means of access to the persons residing in and around the said road as also may be a thoroughfare was certain others. The
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WP No. 14685 of 2014BBMP cannot in my considered opinion after taking into account the existence of the road for all the above purposes and collecting tax thereon, abdicate the liability to maintain the road on the ground that a formal relinquishment has not been made. A survey to be carried out within a period of four moths from today and report in that regard to be filed before this Court.
24.17. Hence, I answer Points No.3 and 4 by holding that a civil suit could not have been filed by respondent No.7 virtually challenging the notice/order issued by respondent No.3 dated 13.10.2011. The trial Court could not have exercised its jurisdiction on such a suit which is barred under law. The trial Court could have suo moto considered this aspect while considering interlocutory applications. 24.18. The Order of injunction will not come in the way of this court issuing necessary directions.
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25. ANSWER TO POINT NO.5: What order?
25.1. In view of the above reasoning, I pass the following:
ORDER i. Respondent No.1 is directed to implement the order/notice dated 13.10.2011 and 18.11.2011 vide Annexures - U and V, respectively.
ii. The BBMP is directed to remove the construction put up on the street in the form of a compound wall as also the gate and keep the entire passage/street measuring 40 feet by 159 feet free of any encroachments. BBMP is also directed to maintain the said passage/street and enter the same in its property register.
iii. Accordingly, the Writ Petition is allowed.
Sd/-
JUDGE LN,PRS List No.: 1 Sl No.: 105