Dismissed

M/S Sathyam Street Welfare Association v. the Joint Commissioner

Karnataka HC5 Dec 2018WP/10364/2016

Case brief

AI extract

What is this about?

This Court dismissed a writ petition filed as Public Interest Litigation regarding alleged encroachment on public roads. The High Court held that the dispute involves questions of fact determinable only by civil suit and did not proceed as PIL, distinguishing Mutreja based on factual differences.

What did the court decide?

The petition is dismissed and the matter is left open for appropriate remedies in regular civil proceedings.

M/S Sathyam Street Welfare Association Vs the Joint… — Property and Title | Karnataka HC (2018)

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W.P.No.10364/2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5^TH DAY OF DECEMBER, 2018

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PRESENT

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HON’BLE MR.JUSTICE DINESH MAHESHWARI, CHIEF JUSTICE

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AND

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HON’BLE MRS.JUSTICE S.SUJATHA

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WRIT PETITION NO.10364 OF 2016 (LB-UC) PIL

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BETWEEN:

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M/S SATHYAM STREET WELFARE ASSOCIATION REGD. NO.DRO/SIN/SOR/313/2015-16 MUNNEKOLALA, BANGALORE-560 037 REPRESENTED BY ITS MEMBERS

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SRI K. UMA MAHESHWAR RAO S/O K.N. PRASAD RAO, AGED ABOUT 75 YEARS,

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SRI SHASHIKUMAR S/O DAMODAR, AGED ABOUT 58 YEARS,

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SRI TULASIRAM N VICE PRESIDENT, S/O SRI DAMODAR REDDY, AGED ABOUT 43 YEARS,

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SRI GOPALA KRISHNA L.S. SECRETARY S/O LATE SIDDAPPA, AGED ABOUT 53 YEARS,

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SRI P. RAMESH BABU, JOINT SECRETARY, S/O K. PERUMAL,

W.P.No.10364/2016

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AGED ABOUT 59 YEARS,

SRI PRADEEP KUMAR K ORGANIZATION SECRETARY, S/O RAJA MOULI, AGED ABOUT 43 YEARS,

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SRI SHANKARACHARI TREASURER S/O D.N. MUNIVENKATACHARI, AGED ABOUT 59 YEARS,

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ALL THE ABOVE PETITIONERS ARE R/AT NO.23, SAI NILAYAM, 2^ND CROSS, SATYAM STREET, MUNNEKOLALA, BANGALORE - 560 037.

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... PETITIONERS

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(BY SRI STANLEY SAM, ADVOCATE)

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AND:

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THE JOINT COMMISSIONER BBMP, MAHADEVAPURA, BANGALORE - 560 066.

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THE ASSISTANT EXECUTIVE ENGINEER BBMP WHITEFIELD, BANGALORE - 560 066.

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THE ASSISTANT COMMISSIONER OF POLICE HAL POLICE STATION, BANGALORE - 560 037

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THE ASSISTANT EXECUTIVE ENGINEER BBMP WARD NO.149, VARTHUR HOBLI, BANGALORE – 560 087

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THE COUNCILOR, WARD NO.149 BBMP, MUNNEKOLALA VARTHUR BANGALORE – 560 087

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W.P.No.10364/2016

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SMT. CHANDRAKALA W/O SRI KODANDARAMA REDDY AGED ABOUT 53 YEARS NO.200, RENUKA NILAYAM 3^RD MAIN ROAD, HONGASANDRA NEAR AISHWARAYA PARADISE RESTAURANT BEGUR MAIN ROAD BANGALORE-68 MOBILE NO.9448846656

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SMT. S. VAJRAMMA W/O LATE KRISHNA REDDY AGED ABOUT 60 YEARS RAJASHREE LAYOUT 1^ST CROSS, MUNNEKOLALA VILLAGE MARATHAHALLI POST BANGALORE-560037 MOBILE NO.7795061348 8. SRI S KESHAVA MURTHY S/O LATE SRINIVASA REDDY AGED ABOUT 54 YEARS R/AT PADMA KISHORE NILAYA KODIGEHALLI, KODUGODI POST, BANGALORE-560066 MOBILE NO:9243460110

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...RESPONDENTS

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(BY SRI S.N. PRASHANTH CHANDRA, ADV. FOR R1, 2 & 4, SRI SHIVAPRABHU S. HIREMATH, AGA FOR R3 , SRI CHANDRASHEKAR C., ADV. FOR SRI B.V. MALLA REDDY, ADV. FOR R6, SMT. RUKMINI V.P., ADV. FOR R7 & R5 AND R8 ARE SERVED)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE RESPONDENTS NOS.1 TO 5 HEREIN TO INITIATE A QUICK ACTION, TO INSPECT THE SITE, CARRY OUT SURVEY AND CLEAR THE ENCROACHMENT OF THE ROAD AT ANNEXURE-D & ETC.

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W.P.No.10364/2016

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THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, CHIEF JUSTICE MADE THE FOLLOWING:

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ORDER

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Having heard learned counsel for the parties and having perused the material placed on record, we are not persuaded to continue with this matter as a public interest litigation (‘PIL’) any further.

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This petition is filed by the petitioners seeking to allege encroachment over public road by the private respondents i.e., the respondent Nos.6, 7 and 8.

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It is noticed that the respondent No.6 earlier filed a writ petition, being W.P.No.19437/2016, in relation to this very dispute when the notices were served upon her by the Bruhath Bengaluru Mahanagara Palike (‘BBMP’) alleging that she had encroached over the public land. The contention on the part of respondent No.6, who was the petitioner in the said petition, had been that she had not encroached over any portion of public land and on the contrary, a portion of her property was used for laying of the public road.

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W.P.No.10364/2016

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The said petition was decided by the order dated 13.12.2017, wherein, the learned Single Judge found that the questions involved in the matter could be resolved only by way of civil suit in the competent Court and hence, the parties were relegated to their remedies in the competent Civil Court by way of civil suit. It is pointed out that after decision of the aforesaid writ petition, the respondent No.6 though did not file any civil suit, but removed the alleged encroachment over 9.14 sq.mtrs. of land.

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On behalf of the BBMP also, it is submitted that the respondent No.6 has removed such encroachment over the public road. However, the fact as to whether the removed portion fell within the road or not is sought to be disputed by the respondent No.6.

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On the other hand, the fact as to whether the alleged removal had been of the entire encroachment over the road is sought to be disputed on behalf of the petitioners.

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Noticeable it is that the learned Single Judge, by the order dated 13.12.2017 in W.P.No.19437/2016, declined to exercise writ jurisdiction in the matter while leaving it open for

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W.P.No.10364/2016

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the parties to take remedies in the competent Civil Court by way of civil suit. The learned Single Judge observed, inter alia, as under:

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“Looking into the nature of controversy involved in the present case, this Court is of the considered opinion that the Writ jurisdiction under Article 226 of the Constitution of India cannot be invoked by the petitioner in the matter and the said dispute about the actual extent of encroachment either by the petitioner or of the property of the petitioner deserves to be resolved only by way of a civil suit in the competent Civil Court. The parties are therefore relegated back to seek their remedies in the competent Civil Court by way of civil suit.”

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The position aforesaid, for all practical purposes,

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applies to the present litigation too.

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Taking note of the rival stands and the overall circumstances, it is but clear that the matter involves several such questions of fact which cannot be determined in the writ jurisdiction of this Court. Hence, it appears just and proper that such questions be left open to be agitated in the regular proceedings in accordance with law.

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Learned counsel for the petitioners has attempted to argue that any encroachment over public road deserves to be

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W.P.No.10364/2016

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dealt with in the PIL jurisdiction and has referred to the decision of the Hon’ble Supreme Court in the case of K.K. Mutreja vs. Union of India and Ors.: (2010) 15 SCC 774 .

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It remains indisputable that the encroachment on public road cannot be countenanced. However, in the case of K.K.Mutreja (supra), the factual aspect had been that the officers of the Municipal Corporation, Delhi were found wanting in action for removing the encroachment on public roads despite specific orders to that effect. In the said case, questions of fact were not involved as to whether there had been any encroachment and if so, the extent thereof. However, in the present matter, several basic questions of fact are involved which need to be determined before concluding, if the respondents have made any encroachment on the public road and if so, to what extent. Such questions, by their very nature, cannot be determined in the writ jurisdiction of this Court. Therefore, the aforesaid decision does not make out a case for continuing with this petition filed as a PIL.

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W.P.No.10364/2016

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However, as observed hereinabove, in the interest of justice, we would leave it open for the petitioners and for that matter, any aggrieved party, to take recourse to appropriate remedies in accordance with law.

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While closing the matter, it is also considered appropriate to observe that we have not pronounced on the merits of the contentions urged by the parties as regards the alleged encroachment or the removal thereof and all such aspects are left open to the determined in the regular proceedings in accordance with law.

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Subject to the observations foregoing, this petition

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stands dismissed.

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The pending interlocutory application also stands disposed of.

Sd/-

CHIEF JUSTICE

Sd/JUDGE

M/S Sathyam Street Welfare Association v. the Joint Commissioner

Case brief

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M/S Sathyam Street Welfare Association v. the Joint Commissioner

Case brief

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