Karnataka High Court
K T Dayananda vs The Chairman on 2 July, 2010
Author: V.Jagannathan
Bench: V.Jagannathan
IN THE I-{EGH COURT OF KAERNATAKA AT BANGALORE
Dated: This the 2nd day of July 2810
BEFORE
THE HONBLE MR.JUS'I'ICE VJAGANNATHAN.
M.F.A.No.4093/2010 (CPC}
BETWEEN:
SRI "K T DAYANANDA, A A
s/0 LATE K G THIMMAIAH,
AGED ABOUT 51
R/AT NO.610, 11 ND
KENGERI SATELLITE
BANGALORE-560,060. " '
V APPELLANT
(By Sri s SIDDAPPA, Any') "
U)
TI-1F:GI91AIfiM_AN.," A
, SUPPLY AND
~ SE'WERAGIE.BOAR{), CAUVERY BHAVAN.
'EANGALoRE~560 009.
. EXECUTIVE ENGINEER,
'1..VT«w;5_':;1msI0N, E W s s B.
KENGER1 UPANAGARA,
KENGERL BANGALORE-560 060.
M75 RADIANT ENCLAVE,
RADIANT STRUCTURE PVT LTD.
' BUNDI MUTT BADAVANE.
BNAGALORE»~56O 060.
REP BY ITS PARTNERS
RAGHAVENDRA REDDY AND
SRINIVASA REDDY.
4. VENKATESH IvIUR'rHY.
S /O THAMMAIAH.
AGED ASOST 50 YEARS,
NO.662, III RD MAIN,
LAKSHMI VENKATESWARA NJLAYA, '
KENGERI SATELLITE TOWN; ' '
EANGALORE--5S0 060. 'I
5. RADIANT ENCLAVE. _
M /S MAHAVEER ESTATE, "
No.48/49, 1ST FLOOR,
SARAKKI MAIN ROAD, ],V5T"PIfiIASl§3-,.._
J P NAGARA, BANG!ILORE;g56(;V.078;I _
REP BY ITS MANAGING RARrI"N_ER '
SR1 P SA'I'I1T.YASHE~I'LAR;. ' _ ' "
* '__';~RESPONDENTS
{By Sri B S C/R5.)
43 RULE 1(r) OF cpc,
AGAINS'1?L_TRLE 26.08.2010 PASSED ON IA
NO._.1_ 'IN O-;S;'NO.',77c3/2009 ON THE FILE OF XXVI}
ADDITIONAL CITY._.C.I.VIL JUDGE, BANGALORE [CCH--9).
_ 'L DISiI!1 S$ING--..THE IA FILED U/ORDER 39 RULES 1 3; 2
V' 'ORG
_ ":I--I'IS5'APPEAL COMING ON FOR ADMISSION THIS"
DAY, COURT DELIVERED THE FOLLOWING:
JUDGMENT
The plaintiff in the trial court has preferred this appeal aggrieved by the dismissal. of I.A.1 filed byvghirn seeking an order of injunction against the defen_da_nt;sy"
from digging the road which is mentioned,in.,th.e*suit l schedule as private road and!' sewerage Connection.
2. The trial court'viidisrnissed:T'the said appiication, but at ~-i.._t}1e " directed the defendants to .fo}lowA..th.ejfproceduresBWSSB Act with drainage, water supply etc., to the respond¢'r;i'ii £Radiar1t Enclave wherein. apalrtments arefllcvonsitructed by the 5th defendant. case of the plaintiff before the trial 'court is that the suit schedule property is a upriv'ate"layout called as 'Mythri layout' formed by if plaintiff in survey numbers mentioned in the Aisclhfedule and in the said layout the plaintiff has sold V "several sites and out of 273 sites, about 100 sites %' as have been sold and remaining sites are under his possession and control. He also stated in the suit that he had laid sanitary and sewerage lines layout for the benefit of the site owners defendant with the help of the has now taken up laying water iandpseweizragée' pipessppglsosi s that the occupants of the.ap_artInents in Enclave will get both these facilities. it action on the part of the the BWSSB authorities in takingV,t-lie. fprivat_e 'road"'5n1'ajntained by the pilaintifffiforllthe laying sanitary and sewerage' «pipes .th'e_refor'e not in accordance with thepyprovislionis 'of? the BWSSB Act and based on this foundation,' the 'plaintiff tiled the suit and sought for the V i'relief" ojfypermanent injunction restraining the de--fendan.tsk it from interfering with the plaintiffs possession of the private road which is indicated in it =._Ann:exure--A to the plaint and for other reliefs = .---including a direction to the defendants not to give any connection to the existing sanitary and sewerage }' pipes developed and maintained by the plaintiff in 'Mythri Layout' from the apartment of defendant.
4. in the written statement . 1.3"' u defendant which is adopted b}}1.,:4the~A5ih was contended that in respect laypod"L1:tv:._QfV tihevd plaintiff, there was no sanc:ti-o:n--..obtai1}el_dfi froirn the BDA and the Iayoutvplani been approved by Kengeri Village ZpanchayathllAxtherefore has no sanctity. __ It also stated in] the Written statement that the spent huge sums of money for getting 'for connecting the Radiant to the existing sanitary and sewerage '» VIv'1n_es as 25 families are residing in the H was also contended by referring to variotisrgseotions of the BWSSB Act, 1964 that it is the Water "Supply Board which will have control over staying the sanitary and sewerage lines and therefore i the question of plaintiff continuing to maintain the kt' 7 did not accept the contention of the appellant that it is the private road maintained by the appellant. Apart from this, the trial court also opined thatlthe 5m defendant will be deprived of providin~g'.'"
amenities to the persons who res.ide""»e.Vit:.l.:" the apartments and as such, the caused to the defendants yviil 'Vhe""more"'V'i't;han plaintiff, and in fact the gone} on to hold that the n:ot;;_suffer.. hardship. It is on this reas_0ning'.....th_e» tr~ia.§_ court''- dismissed the applications... hoi2i;fever'._"Vdirected the authorities underV"the«.BV\)\«*\S:VSl3jto * the procedures prescribed in the }tXct\za'h.'ileA"v.1a'3}ing connection to the 3"? ., _ Radiantffinclave.
Ifhvhave heard learned counsel for the pa.rties'V..an.d perused the order of the trial court as 'V V' 3 ;,.;e11. assthe documents produced by both sides.
7. Learned counsel Sri.S.Siddappa for the Vwappellant submitted that the appellant has % 3 maintained a private road in the middle of the layout formed by him and therefore the BWSSB authorities without foilowing the procedure prescribed in cannot lay down sanitary, water and sewerage" ~ and in this connection 1eam_ed._couiiseI"'d.ieW' A' attention to Sections 57 and 78:'of 7-:
contend that, before any" the authorities under act;iaireiireiiiiiredit'ta git;/e the owner of the immoyabie' reasonable opportunity __of: t the instant case, con1p'iiance'-.i§s_Vp th_e'r_e"as,Was required under sections of the said Act.
._8. i4""'1¥'her.efore., Vsnbmission made is that the coi1r'chaving"'he1d in the operative portion of its o1fde1' BWSSB authorities are required to followv_.the:'.procedure before laying the sanitary and pseweragie lines. such observation of the trial court
7..Vitse.li" is sufficient indication of no procedure being A followed by the BWSSB authorities. Learned counsel % 9 therefore argued that the plaintiff has got a case which vvill have to go for trial and as such, grant of injunction could not have been denied by th.e~..:t1=ta1._ court.
9. In support of the said'tsub1nission;'iearI1ed counsel for the appellant decision in the case of SVS Ethicon Limited (1975i.1pLR .42'e)'t.§aa&iei Short Nantes 132 of 1977(1) Kar.L.J. 't'o"E'"that once a serious ques~tion'p1'for t_ria__i mad.e--.o_1itf; the trial court could', not Vh'a.ve_V"dec1_i'ried -to grant an order of injunction. " V "As far the memo filed by the T 1jes;s}maen:._ seeking disrnissai of the appeal is 1 concerned, submission made is that the said memo lacks 1jaerit~v'3oecause it does not contain the details as towhat ;was the sanitary line laid and no date is given does not make reference to any sewerage lines it heing laid and apart from that, it is for the BWSSB to .3"/., say as to what is the stage of the work and more importantly, the memo is also not supported by statement by the 5"? defendant, as such ' lacks merit in it. The appeal th€I'€fQI'€:iS the submission made.
11. Reference was 1nad'e.V_ given by the has undertaken court in letter and rules and reguiations if V 12,!' = learned counsel Sri. B.S_.Radhanandan for the respondents took this court though>th'e.pprovisions of various enactments viz., The P:a:'nLataka Town and Country Planning Act.
1961, fKarnataka Municipal Corporation Act, well as the BWSSB Act, 1964 to contend that if very suit of the plaintiff itself will not be * »-rinafntainable before the triai court and as far as the sanitary and sewerage lines are concerned, the 3:7"
11
power vests with the Board under the BWSSB Act and particular reference was made to Sections 59 and 63(4) to contend that all sewers, pipesv~.V_etcd;;.Vv whether erected before or after commencement ~ BWSSB Act shall vest with the Board it it this, the K.M.C.Act provisions ."are1/:aiso ddatti'actedd_d"'to7.S the instant case and referring to" the "of "private street" in Section K;M,.Cvv.iAct as well as to the definitionlofl' in Section 2(31), it is eentengggefii r as which the appellant a dplriirate road no longer remains at-private ~ . it .~ J3. 'Under.theselcircumstances, the trial court }ti.sti'fied in "" "rejecting the LA. filed by the 'Reference was also made to Section 265 of the to contend that all public streets and all sewers, drains, drainage works, whether made at it --..Vtl*1e..:'cost of the corporation fund or otherwise. in or = »v.--alongside or under any street, whether public or y Q I 12 private, shall vest in the Corporation. To reinforce his arguments that the suit schedule property within BBMP Limits, iearned counsel also . my perusal the sale deed along with theeiidoirsetnent if ._ renewing the plaint. Therefore; sttbmission that the trial court has taken-._note'ofV'al1 ti1}:esVe"vfactors f and has rightly opined . be caused to the respofiden.t'f'. than to the piaintiff 4€_3t1'1(}.1 the' has any interest he does not resideyflat hiivfffvtesides elsewhere as couldfvhevffseenifrorin title to the piaint. 14i.4""'Le'arn.edf"v. counsel also relied on the ;1ef¢isi:m_s.t:ep§ttec1'f in 2001(3) Kar.L.J.176 and to contend that the Board under the Act has the authority to lay down the sanitary} and sewerage lines and except the Board if Vandfthe Corporation, the question of the plaintiff i.e. = ...--appeilant herein contending that he alone can E» W' 13 maintain the road where there exists sanitary and sewerage iines, does not arise. Once the road in which the sanitary and sewerage lines have beeniaid and once the persons who have purchased""the;_~"sited and constructed the house in the lay "
starts making use of the roadain the». .' road no longer remains at p_rivat'e,_r'0ad ':Jiit_:it_V_Hve_stsh with the Board. Therefore, the'-appeal'bedisrnissed is the submission put déthpletlearned counsel for the respondent Nc~;'5'.~».« if V ' both sides, I do not find appeal for the foliowing reasons.
"The first one is that, it is not disputed by already there exists sanitary and seweravgeiines in the road which the appellant claims "toc.¥;_)e private road. Having regard to the provisions "referred by the learned counsel for the respondent V' "No.5, in particular, Section 59 of the swsss Act, }~ ,1 34 Section 63(4) of the sarne Act coupled with Section £7:-'xe, tr 265 of the K.M.C.Act 1% no doubt as tojthe authorities, which will have control over the whether public or private, where t sewerage lines are laid. Section-p26:S4gojf the' _ requires to be reproduced here an'd._it'-is asunder: u
265. Vesting their appurteua'n_ces" CorV§oration.'i--'AVV( 1} All public streets' 'tin?' idorporatiori reserved under " " ' it t of the Goverf:rner1t_, with the ..Vp--.airenie;r1ts, stones othergwg thereof and all Work riiaterilal-sgi and other things prolvidedi streets, all sewers, lvclrainsl "drainage Works, tunnels and V . whether made at the cost of the or fund or otherwise, in or H A or under any street, whether z or private, and all works, materials, iinplernents 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. 92/.' win (2) The Government may, after consulting the Corporation, by notification withdraw any such street, sewer, drain,--'--..
drainage work, tunnel, culvert or tree froin. the control of the Corporation. "
17. The trial court has aforesaid provisions and has observed"
para.36 that if one takes irittiaccofint thpe"iprOiVi'sions of Section 66(2) of the sizttrssts Act as '' weiivas the provisions of the BDA'AQt, it which gets jurisdic'tio.n:'i¥i;he BWSSI-3 Act comes into the question of the aPP§lianti'c1aivming to still the owner of said drain, * rcads,3_.water s1ipplv~etc., does not arise. court in the decision reported in 2oo1(3'jiKet.L.J.176 has also held that the Board i.e. 'Industrial Areas Development Board cannot remove "hoardings put up by licensee under iicence granted it the Corporation as the Corporation alone has the last word in the matter and in this connection this E' $.-
:5 court also referred to section 265 of the then existing Municipal Corporation Act.
19. in another decision in the case Advertising Vs Union of India & ' Kar.I...J.358) this court has gciieon .te"'_,hoi;d whoever might have been the".vo\:7nl1er of ,Vpu'if):lic footpath before, once the is hxused-._a"s, footpath, the rights the""'previon_s onirn'eer,~-if any thereon, stand extinguished, vests in the State.
__'the aforesaid decisions, in the instanthh cas'e~._a;1so,«...'iihe appellant cannot prevent aiitherities from going ahead and laying Vsar1itaqfia.nd'seWerage lines so as to provide facilities .to,__"thev_resi_dents of the Radiant Enclave. Even the decisions referred to by the learned counsel for the a.ppel1ant cannot be made use of to assist the ___appellant as the trial court has rightly observed that the appellant can no longer claim to be the owner of fix.
the road in question wherein there exists sanitary and sewerage lines. In view of the trial couJrtL'a.1S*0 having directed the BWSSB authorities . procedure before laying the 1i_:1,e,s__ in ;qL1es:t.f1oo';'~ it"
reply given by the BWSSB authoéritiesivvvéhich enclosed by the appe1ia,n'ttt__V'a1:eo the said authorities have alsovAoco:Ifnvmitted themseives in letter and spirit to follow"théétildifeéi-tions of the tria} court as we11_:'as_ i*egtiietions of the BWSSB I__ t«hisv_3ppea1. The appeal is rejected'; -- if'. _ it :71 Sd/~ FUDGE