Writ Petition No. 52861 of 2016 · The High Court
Case Details
- 1 - NC: 2025:KHC:4332 WP No. 52861 of 2016 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR JUSTICE N S SANJAY GOWDA WRIT PETITION NO. 52861 OF 2016 (LB-RES) BETWEEN: 1. ANSAL FORTE APARTMENT OWNERS ASSOCIATION REPRESENTED BY ITS PRESIDENT, MR UDAYA BOSE, AT 16/2A, RUPENA AGRAHARA, HOSUR ROAD, BENGALURU 560068 (BY SRI. NIKIT BALA., ADVOCATE) AND: …PETITIONER Digitally signed by KIRAN KUMAR R Location: HIGH COURT OF KARNATAKA 1. STATE OF KARNATAKA REPRESENTED BY CHIEF SECRETARY, NO.3RD FLOOR R.NO.320, VIDHANA SOUDHA, SECRETARIAT, BANGALORE 560001 2. DEPUTY COMMISSIONER DC OFFICE BUILDING REVENUE COMPLEX, K G ROAD, BENGALURU 560009 3. BANGALORE DEVELOPMENT AUTHORITY REPRESENTED BY ITS COMMISSIONER, SANKEYS ROAD NEAR 5TH MAIN RD, KUMARAPARK WEST, GUTTAHALLI, BENGALURU, KARNATAKA 560020 4. BRUHAT BANGALORE MAHANAGARA PALIKE REPRESENTED BY ITS COMMISSIONER N R SQUARE, BANGALORE CITY, BANGALORE 560002 - 2 - NC: 2025:KHC:4332 WP No. 52861 of 2016 5. BANGALORE METROPOLITAN TASK FORCE POLICE REPRESENTED BY ITS SUPERINTENDANT OF POLICE, N R SQUARE, BANGALORE CITY, BANGALORE 560002 6. THE CHIEF ENGINEER STORM WATER DRAINS BRUHAT BANGALORE MAHANAGARA PALIKE, N R SQUARE, BANGALORE CTIY, BANGALORE 560002 7. THE EXECUTIVE ENGINEER STORM WATER DRAINS BRUHAT BANGALORE MAHANAGARA PALIKE, N R SQUARE, BANGALORE CITY, BANGALORE 560002
Legal Reasoning
(BY SRI. BOPANNA BELLIAPPA., AGA FOR R-1 & R-2; SRI. GOUTHAMDER.C.ULLAL., ADVOCATE FOR R-3; SRI.T.M.VENKATA REDDY., ADVOCATE FOR R-4 TO R-7) …RESPONDENTS THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF IDNIA., PRAYING TO DIRECT THE RESPONDENTS TO RECOGNIZE THE NEW STORM WATER DRAIN CONSTRUCTED BY THE BRUHAT BENGALURU MAHANAGAR PALIKE ON LAND BEARING SY.NO. 16/2A SITUATED AT ROOPENA AGRAHARA VILLAGE, BEGUR HOBLI, BANGALORE SOUTH TALUK AS A LAWFUL STORM WATER DRAIN, BY ISSUING A WRIT OF MANDAMUS OR ANY OTHER WRIT OR AN ORDER IN THE NATURE OF A WRIT AGAINST THE RESPONDENTS, ETC. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 3 - NC: 2025:KHC:4332 WP No. 52861 of 2016 CORAM: HON'BLE MR JUSTICE N S SANJAY GOWDA ORAL ORDER 1. The prayer in this Writ Petition is as follows- “A. Direct the respondents to recognize the new storm water drain constructed by the Bruhat Bengaluru Mahanagara Palike on land bearing Sy.No.16/2A situated at Roopena Agrahara Village, Begur Hobli, Bangalore South Taluk as a lawful Storm Water Drain, by issuing a writ of mandamus or any other writ or an order in the nature of a writ against the respondents.” B. Direct the respondents not to initiate any coercive proceedings, including any steps for demolition of the residential apartments under the name and style of Ansal Forte, or any part or precincts thereof constructed on Sy.No.16/2A situated at Roopena Agrahara village, Begur Hobli, Bangalore South Taluk by issuing a Writ of mandamus and or any other writ or an order in the nature of a writ against the respondents.” 2. It is the case of the petitioner that the Planning Authority i.e., the BDA had approved the - 4 - NC: 2025:KHC:4332 WP No. 52861 of 2016 construction of an apartment complex in the year 1995 and also accorded approval to its modification in the year 1998 and in accordance with this sanction plan an apartment called ‘Ansal Forte’ was constructed, to which the BDA had also granted an occupancy certificate in the year 2003. 3. It is the further case of the petitioner that thereafter it was noticed that the apartment complex had been erected by using a portion of the land which was earmarked for drain to an extent of 8ft. and therefore, after negotiations, the owners of the land on which the apartment was put up voluntarily relinquished an alternate land measuring about 2000 sq.ft. in the adjoining survery number which they owned for the purpose of making a rajakaluve. 4. It is their case that pursuant to this registered relinquishment deed executed by owners of the property, the Corporation has, in fact, constructed a - 5 - NC: 2025:KHC:4332 WP No. 52861 of 2016 storm water drain in that particular place, and therefore, there is a free flow of storm water. 5. It is also stated that subsequently the Association i.e., the petitioner sought for permission to close the drain and the Bruhat Bengaluru Mahanagara Palike ('the BBMP') also accorded its approval for closing the drain and an agreement in that regard was also entered into on 04.08.2007. But, nevertheless, despite these facts, an attempt was made by the authorities to take action against the petitioner on the ground that the land earmarked for rajakaluve had been appropriated unlawfully. 6. The BBMP has, today, filed statement of objections in which it is stated as follows – “4. As per the Relinquishment Deed dated: 09/03/2006 1. Smt. Parvathi PR W/o late HR Rajashekar Reddy, 2. HR Ravichandra S/o of late Rajashekar Reddy, 3. Sri. K M Lakshmi W/o Sri. G Prasad Reddy and 4. Smt. H K Anupama W/o of Ramanaprasad Reddy (First - 6 - NC: 2025:KHC:4332 WP No. 52861 of 2016 party Sl. No.1 to 4) have executed the relinquishment deed in favour of Bangalore Development Authority represented by Executive Engineer, East Division BDA (Second party). As per the Relinquishment Deed, the first party is the owner of the land bearing No.16/2A in Sy No. 16/2A and have also constructed an apartment known as "Ansal Forte". There already existed Rajakaluve in the first party's land in Sy. No. 16/2A, in which out of 16 ft. of drain, the first party unknowingly have acquired 8 Ft of land and have constructed a Ansal Forte Apartment building in the remaining 8 Ft of land, the building is existing. The people residing at Ansal Forte, without damaging the apartment building have provided an alternate land, i.e., the first party have surrendered portion of the land measuring to extent of 2400 Sqft in Sy. No. 17/9A and 4600 Sqft in Sy. No. 16/2A for the purpose of making of Rajakaluve to enable free flow of water in the interest of public. The Second party, i.e., BDA has permitted first party use, the said relinquished land has passage by covering with slab. The first party has handed over / relinquished an extent of 7000 sqft of land in survey No. 17/9A and 16/2A situated at Roopena Agrahara village, - 7 - NC: 2025:KHC:4332 WP No. 52861 of 2016 Begur Hobli, Bangalore South Taluk to the Bangalore Development Authority for free of cost. The same is registered as document No. 19006 of 2005-06 before the Senior Sub- registrar, Bangalore South Taluk. 5. As BDA was not able to undertake the construction work of widening the drain in the relinquished land as per the letter issued by Executive Engineer, Koramangala Valley BBMP, the work of re-modelling of Storm Water Drains from Madiwala waste weir up to culvert in NH-7 near Central Silkbord Junction had been tendered to Sri. CH Chandrappa, in the said work, the drain proposed for re-modelling inside the premises of Ansal Forte apartment, in which the existing covered drain inside the apartment would be widened and Two Vent box drain of 2 Mtrs each will be provided to carry the SWD and to prevent flooding and damaging the flood prone areas. As per the tender, the work has been executed and presently there exists a drain of 4x2.5 Mtrs, in the premises of Ansal Forte Apartment. 6. An agreement executed on: 04/08/2008 between first party i.e., Executive Engineer, Koramangala Valley BBMP and second party - 8 - NC: 2025:KHC:4332 WP No. 52861 of 2016 Mr. Atul Tiwari, Secretary of Ansal Forte apartment Owner's Association, Roopena Agrahara. Whereas upon giving the permission to close the portion of 110 M. long portion of Storm Water Drain situated adjacent to No.16/2A, Roopena Agrahara, Hosur road with R.C.C. Slab, for the following conditions, that Mahanagara Palike retains the power to cancel the same, the Second Party has agreed: a. On the said storm water drain, to displace name board as Major Water Canal, B.B.Μ.Ρ. b. The entire cost applicable to the said work have to be borne by yourself. (i.e. Ansal Forte Apartment Owners) c. The work has to be commenced as per the approved plan from Bruhath Bangalore Mahanagara Palike, as per the direction of Mahanagara Palike. d. If the storm water drain is having 6 (six) meter wide, in the interior middle portion, no any poles, retainers shall be erected. If it is more than 7 meter, in the middle portion of the drain to construct 30 cms, Thick R.C.C. wall only (for any reason, the middle portion wall should not be more than 30 cms.) e. In view of maintenance, as per the approved plan from Bruhath Bangalore Mahanagara - 9 - NC: 2025:KHC:4332 WP No. 52861 of 2016 Palike, to form pit (to arrange to open and close). f. The drain portion permitted, has to be cleaned with your own cost, to maintain a least once in 6 months. Later, to arrange inspection of Palike, to see that no hindrance to natural flow of drain water (To submit the document to the Palike). g. At the time of execution of work, after the work, for safety and protection of drain of the Palike, to see that no any type of vehicular traffic is moved on the said R.C.C. lid. h. Soon after the work is completed, in the said place without the permission of the Palike, no any type of commercial business should be made. i. The Mahanagara Palike is having the power to cancel the permission or to change anything. j. At the time of execution of work, work should be carried in the manner that no any type of damages are caused to storm water drain of the Palike property or the public property. k. At the time of execution of work, if any changes are to be made, obtain the permission from the Mahanagara Palike. l. In case in future days, if widening of drain or any work has to be done from the Mahanagara Palike, the Mahanagara Palike got the power to - 10 - NC: 2025:KHC:4332 WP No. 52861 of 2016 remove the R.C.C. deck slab, modify the said constructions without issue of any notice. m. The said drain portion and the R.C.C. deck slab to be constructed by you is also the property of Mahanagara Palike, to see that no any encroachment is made on this. n. This permission is valid for six months period, within that time, the work has to be commenced and each details of work has to be intimated to the Palike from time to time. As per the agreement mentioned above and approved drawing the work had been executed. At present the photo showing the flow of water inside the SWD in the premises of Ansal Forte Apartment (enclosed). 7. The BDA being the competent authority for the planning of Bangalore has given all necessary permissions and also permission to occupancy certificate in vide letter No. DBA/AS/KS-3/T/115/2002-3, Dated: 21/03/2003 to Sri. S. P. Oberoi, GPA holder Ansal Build well Ltd, 3rd floor, Jubliee Building, No.45, Museum Road, Bangalore-560025. Further, the land owners have handed over / relinquished extent of 7000 Sqft of land in Sy. No. 17/19A and Sy No. 16/2A situated at - 11 - NC: 2025:KHC:4332 WP No. 52861 of 2016 Roopena Agrahara Village, Begur Hobli, Bangalore South Taluk to the Bangalore Development Authority for free of cost for the construction of Rajakaluve. The same is registered as document No. 19006 of 2005-06 before the Senior Sub-registrar, Bangalore South Taluk. Wherefore, the Respondents No.4 prays that this Hon'ble court be pleased to dismiss the above petition with costs in the interest of justice and equity.” 7. In the light of this stand of the BBMP, it is clear that though the owners of the land had utilized 8ft. of land which was earmarked for rajakaluve, but they have voluntarily handed over 2400sq.ft. of land under a registered relinquishment deed and the authorities have, in fact, constructed a drain in this relinquished portion. It is, therefore, obvious that both the BBMP as well as the BDA have recognized the slight shift in the rajakaluve and had secured an alternative land from the owners of the land on which the apartment is constructed. - 12 - NC: 2025:KHC:4332 WP No. 52861 of 2016 8. It is, therefore, clear that neither the BDA nor the BBMP nor the State authorities would have any right to make a claim in respect of the land on which the apartment is constructed on the premise that, that land forms part of the rajakaluve. Writ Petition is, accordingly, allowed. 9. In view of the disposal of the petition, all pending
Decision
interlocutory applications, if any, stand disposed of. Sd/- (N S SANJAY GOWDA) JUDGE HNM List No.: 1 Sl No.: 57