Writ Petition No. 5834 of 2025 · The High Court
Case Details
- 1 - NC: 2025:KHC:16926 WP No. 5834 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE S SUNIL DUTT YADAV WRIT PETITION NO. 5834 OF 2025 (LB-BMP) BETWEEN: 1. SRI B R DILIP KUMAR S/O LATE B.R.RANGASWAMY, AGED ABOUT 50 YEARS, R/A SNO.101, RAILWAY PARALLEL ROAD, K.P.WEST, BENGALURU-560 020 … PETITIONER (BY SRI. KUMARA K G., ADVOCATE) AND: 1. THE COMMISSIONER BRUHAT BENGALURU MAHANAGARA PALIKE, N.R.SQUARE, HUDSON CIRCLE, BENGALURU-560 002 2. THE ASSISTANT EXECUTIVE ENGINEER BRUHAT BENGALURU MAHANAGARA PALIKE, GANDHINAGAR DIVISION, BENGALURU-560 009
Legal Reasoning
Digitally signed by VIDYA G R Location: HIGH COURT OF KARNATAKA … RESPONDENTS
Legal Reasoning
(BY SRI. MALLIKARJUN REDDY K S., ADVOCATE FOR R1 & R2) THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ENDORSEMENT ISSUED BY THE R-2 ENDORSEMENT VIDE NO.N.K.A.(G.N)/PR/1299/24-25 DTD. 06.02.2025 (ANNEXURE- F) AND ETC. - 2 - NC: 2025:KHC:16926 WP No. 5834 of 2025 THIS PETITION COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE S SUNIL DUTT YADAV ORAL ORDER The petitioner has sought for issuance of writ of certiorari to set aside the endorsement at Annexure-F. In terms of the endorsement at Annexure-F, the 2nd respondent-BBMP has rejected the prayer of the petitioner to put up the structure/access between the petitioner's property and the road. The said endorsement observes that in public interest, such permission is rejected while observing that the petitioner could use access through Cottonpet Main Road. 2. The petitioner submits that in front of his building, respondent-BBMP has constructed a drain and has produced the copies of the photographs to evidence the drain that is constructed by the respondent-BBMP. 3. It is submitted that in light of height of the drain and retaining wall, the petitioner has lost access to his - 3 - NC: 2025:KHC:16926 WP No. 5834 of 2025 property as petitioner needs to climb over the retaining wall to reach the road. 4. The petitioner had made a representation at Annexure-E to the respondent-BBMP which is self- explanatory and reads as follows: ”I, B R Dilip Kumar, son of Late B R Rangaswamy, I am building a commercial building at No:8 G T Road (PID No:27-62-8), Bangalore-53. The said property is an ancestral property, front portion of which was given to our Maharaja of Mysore for road widening in the late 1930's by my grandfather without compensation. The said property was at the road level ever since, however over decades of road making the height of the road has increased to about 6 feet. The said property is of commercial purpose which we need multiple access to the main road which has a width of 3.5 feet at one end and 7 feet at the other, we intend to get the same connected to the road through a narrow bridge which will not hamper the movement of the conservancy lane (which is never used). - 4 - NC: 2025:KHC:16926 WP No. 5834 of 2025 We have been paying property taxes ever since. We have obtained sanctioned plan for commercial purpose, we need access from the main road to the business establishment. We have followed the same principle followed by our neighbours who have done the same and connected to the main road for commercial purpose. Would request you to grant us permission for the same. I have attached photographs with GPS locations of our adjourning buildings for your reference. Also according to the new circular, you have the authority to grant licence for the same. Would humbly request you would oblige us on the same principle. 5. Accordingly, the petitioner has assailed the endorsement at Annexure-F while relying on the Circular of the respondent-BBMP dated 09.12.2024 at Annexure-G. 6. It is submitted that the Circular is on the basis of power conferred under Section 237 (1) (c) which would enable the Zonal Commissioner to grant license subject to conditions and restrictions for construction of step or drain-cover necessary for access to the premises. - 5 - NC: 2025:KHC:16926 WP No. 5834 of 2025 7. Perused the endorsement. 8. The authorities have rejected the request of the petitioner on the ground that petitioner has access to his premises from Cottonpet Main Road and on the ground of public interest. 9. Section 237 of the BBMP Act, 2020 reads as follows: 237. Power to allow certain projections and erections;- (1) The Zonal 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. - 6 - NC: 2025:KHC:16926 WP No. 5834 of 2025 (2) The Zonal Commissioner may grant a licence subject to such conditions and restrictions as he may think fit for any temporary construction in any street or in any 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 Zonal Commissioner may, without notice, cause any projection or construction put up under subsection (1) or (2) to be removed, and the cost of so doing shall be recoverable in the manner 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: - 7 - NC: 2025:KHC:16926 WP No. 5834 of 2025 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 218 such, the Government may direct the Corporation to cancel or modify the lease and the Corporation shall thereupon cancel or modify the lease accordingly. 10. The Circular dated 09.12.2024 based on the power conferred under Section 237 (1) (c) provides that the Chief Engineer, BBMP, may after getting input from the Technical Committee and under his supervision may permit put up of pathway or access and in terms of Section 237 the Zonal Commissioner may grant licence. - 8 - NC: 2025:KHC:16926 WP No. 5834 of 2025 11. Accordingly, taking note of the admitted facts that the drain results in obstructing of access to the petitioner on the northern side, the application of the petitioner at Annexure- E may be reconsidered by the Zonal Commissioner and orders be passed. Petitioner to produce necessary documents, sketch to enable the parties to take a decision as regards the proposed construction to cover the drain/ put up steps. 12. Accordingly, the endorsement requires to be set aside noticing that the petitioner's right to access to the road and right to a 'frontage' for better enjoyment of commercial property may not be restricted on the ground that there is different access. Even Section 237 (1) provides for grant of permission to cover-drain or put up steps to access the road. 13. Accordingly, the endorsement at Annexure-F is set aside. the application at Annexure-E to be considered by the Zonal Commissioner and necessary orders be passed. 14. Taking note of the observations made above and the right of access under Section 237 (1) (c) of the Act, such decision to be taken regarding grant of licence within a period - 9 - NC: 2025:KHC:16926 WP No. 5834 of 2025 of two weeks from the date of submission of detailed plan as may be required. 15. Needless to state, the power as conferred is only to be exercised positively in light of the context of power conferred under Section 237 (1) by imposing conditions and no case is made out in the present case to reject the application. Sd/- (S SUNIL DUTT YADAV) JUDGE NP