Dismissed

Sri B Madhusudan Rao v. the Commissioner

Karnataka HC5 Jul 2023WP/4919/2023

Case brief

AI extract

What is this about?

The petitioner challenged a notice to demolish construction encroaching on a Storm Water Drain. The court examined fresh survey reports conducted in the petitioner's presence which confirmed the encroachment, dismissing the petition and permitting the authorities to clear the drain.

What did the court decide?

The writ petition was dismissed. The respondent authorities are permitted to proceed with clearing the Storm Water Drain against the petitioner's construction.

Sri B Madhusudan Rao Vs the Commissioner — Municipal and Town Planning | Karnataka HC (2023)

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NC: 2023:KHC:23079 WP No. 4919 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF JULY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE R DEVDAS

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WRIT PETITION NO. 4919 OF 2023 (LB-BMP)

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BETWEEN:

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SRI B MADHUSUDAN RAO S/O LATE B SRINIVAS RAO, AGED ABOUT 77 YEARS, NO 8, 11^TH A CROSS, PARAPPANA AGRAHARA VILLAGE,. ELECTORNIC CITY, BANGALORE 560100

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…PETITIONER

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(BY SRI. KESHAV R AGNIHOTRI., ADVOCATE)

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AND:

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Digitally signed by DHARMALINGAM Location: HIGH COURT OF KARNATAKA

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THE COMMISSIONER

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BRUHAT BENGALURU MAHANAGAR PALIKE,(BBMP) N R SQUARE, BANGALORE 560002

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THE ASSISTANT EXECUTIVE ENGINEER, (AEE) BRUHAT BENGALURU MAHANAAR PALIKE,(BBMP) BEGUR SUB DIVISION, DEVARACHIKKANAHALLI MAIN ROAD, BEGUR, BENGALURU 560114

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THE TAHASILDAR BANGALORE SOUTH TALUK,

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NC: 2023:KHC:23079 WP No. 4919 of 2023

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KANDHAYA BHAVAN, K G ROAD, BANGALORE 560009

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…RESPONDENTS

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(BY SRI. JAGADEESWARA N R., ADVOCATE FOR R1 & R2 SRI. NITHYANANDA K.R., AGA FOR R3)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE ENTIRE RECORDS ON THE FILE OF THE RESPONDENTS WITH REGARD TO THE REMOVAL OF ENCROACHMENT IN SY.NO. 12 OF PARAPPANA AGRAHJARA VILLAGE, BEGUR HOBLI, BANGALORE SOUTH TALUK, BANGALORE AND ETC.,

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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R.DEVDAS J., (ORAL):

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This is the second round of litigation at the hands of the petitioner. Earlier the petitioner had filed W.P.No.19124/2022 aggrieved of the action taken at the hands of the respondent - BBMP which had issued notice calling upon the petitioner to demolish the construction put up by the petitioner on a Storm Water Drain. This Court by order dated 28.09.2022, in a batch of writ petitions bearing W.P.No.18842/2022 and connected

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3 - NC: 2023:KHC:23079 WP No. 4919 of 2023

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matters directed the Tahasildar concerned and the Assistant Director of Land Records to conduct a survey of the building properties after notifying the owners and also concerned authorities. It was further directed that upon conducting survey, if it is found that the constructions are

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put up by encroaching the Storm Water Drain, the respondent - BBMP shall take appropriate action after issuing notice to the petitioners. It was also directed that till the report is submitted, the respondent - BBMP authorities shall not take any coercive action.

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As directed by this Court, a survey was

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conducted and thereafter the impugned notice dated 23.02.2022 at Annexure-M was issued by the Assistant Executive Engineer, Begur Sub-division, BBMP notifying the petitioner regarding the encroachment on the Storm Water Drain. A survey sketch was also appended to the notice clearly showing that property No.1, belonging to the petitioner as shown in the sketch was fully within the Storm Water Drain in Sy.No.12 of Parappana Agrahara,

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4 - NC: 2023:KHC:23079 WP No. 4919 of 2023

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Begur Hobli, Bangalore South Taluk. The sketch also shows that five (5) other constructions were found to have been put up on the Storm Water Drain.

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During the course of these proceedings, an interim order was passed on 01.03.2023 based on the submissions of the learned counsel for the petitioner that no notice was issued to the petitioner before carrying out the survey and therefore the impugned order was stayed while calling upon the respondents to place necessary documents to show that notice was issued to the petitioner. Thereafter, by another order dated 27.03.2023, this Court deemed it necessary to direct the Assistant Director of Land Records to carry out one more survey in the presence of the petitioner. For that purpose, a date and time was fixed by this Court directing the petitioner to be present at the spot while survey was conducted by the ADLR. A report was also directed to be furnished to this Court on the factual inspection of the property in question. Accordingly, a fresh report of the

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5 - NC: 2023:KHC:23079 WP No. 4919 of 2023

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Assistant Director of Land Records along with a sketch showing the existence of the construction put up by the petitioner was furnished to this Court on 05.06.2023. A copy of the same was also served on the learned counsel for the petitioner. Objections have been filed to the report.

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Learned counsel for the petitioner seeks to

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contend that the survey was not conducted properly. It was found that the Assistant Director of Land Records was not able to locate the survey stone and therefore the report should not be accepted. Attention of this Court was drawn to the photographs furnished along with I.A.No.1/2023 which was filed by the petitioner for raising additional grounds. Photographs taken through a Drone camera were also produced along with the application. Learned counsel while pointing out to the photographs submits that admittedly there is a drain running behind the property in question and therefore there is a Storm Water Drain and the storm water is flowing without any obstruction at the hands of the petitioner. It is therefore

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6 - NC: 2023:KHC:23079 WP No. 4919 of 2023

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sought to be contended that taking note of the existence of the Nala behind the property in question, a direction may be issued to the respondent authorities not to demolish the construction put up by the petitioner.

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Having heard the learned counsel for the petitioner, the learned counsel for the respondent - BBMP and on perusing the petition papers, this Court is of the considered opinion that on the previous occasion, at the asking of the petitioner and several such petitioners, this court had directed the Assistant Director of Land Records and the Tahasildar to conduct a fresh survey in the presence of the parties and thereafter if it was found that constructions were put up in the Storm Water Drain or encroaching the portion of the Storm Water Drain, then appropriate action was directed to be taken to remove the encroachment on the Storm Water Drain. This Court is also aware of the fact that from the past few years, due to the incessant rains, the city of Bangalore was under floods. Public interest litigations were filed which were

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considered by the Hon’ble Division Bench and directions were issued to the State Government and its authorities including the Commissioner of the BBMP to take immediate action to clear all storm water drains from encroachments. As a consequence of the directions issued by the Hon’ble Division Bench, the Officers of the BBMP and the Tahasildar sprung into action and issued notice to all such owners of the property who had put up constructions encroaching upon the Storm Water Drain. This case is also arising out of such action initiated by the respondent - Corporation to carryout the directions issued by the Hon’ble Division Bench.

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6. During the course of these proceedings, as

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noticed hereinabove, a fresh survey was conducted since it was contended by the petitioner that the survey was conducted in the absence of the petitioner and no notice was issued to the petitioner. It cannot now be denied by the petitioner that a fresh survey was conducted in the presence of the petitioner. The report clearly shows that

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the construction put up by the petitioner is in the Storm Water Drain. Merely because a thin Storm Water Drain is running behind property in question, that will not meet the requirement of clearing the Storm Water Drain. This Court would take judicial notice of the fact that there are mainly three types of Storm Water Drains and as per the Revised Master Plan – 2015 and Zonal Regulations. The width of

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the drain are required to be maintained without any reduction in their size. Of-course, buffer zone is also required to be left on both the sides of the drain. However, this is not a case where the authorities are complaining of the non-leaving of the buffer zone. In the present case, the entire construction of the house is on the Storm Water Drain as could be seen from the report and the sketch. That being the position, no fault can be found in the action of the respondent authorities in issuing notice to the petitioner and calling upon the petitioner to demolish the construction or the authorities would themselves demolish the construction.

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NC: 2023:KHC:23079 WP No. 4919 of 2023

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Having found that there is no merit in the writ

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petition, this Court proceeds to dismiss the writ petition. Accordingly, the writ petition is dismissed . The respondent authorities are permitted to go ahead, clearing the Storm Water Drain in terms of the impugned notice.

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Ordered accordingly.

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Sd/JUDGE

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KLY

Sri B Madhusudan Rao v. the Commissioner

Case brief

What is this about?

What did the court decide?

Sri B Madhusudan Rao v. the Commissioner

Case brief

What is this about?

What did the court decide?

What the court decided

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