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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
SURAJ GOVINDARAJ, J.
Smt. V. Kamala W/o. Late M. Venkatesh & Ors. - Petitioners
Versus
Bruhath Bangalore Mahanagara Palike, By its Commissioner & Ors. - Respondents
Writ Petition No. 14685 of 2014 (LB-BMP)
Decided On : 20-04-2023
Karnataka Municipal Corporation Act, 1976 - Section 2(30), 285, 288-A, 2(31), 265, 280, 285, 287, 288, 505 (ii) - Code of Civil Procedure, 1908 - Order VII Rule 11 - Remove encroachment - Dismantle compound and gate - Direct 1st Respondent to implement Orders passed by its Assistant Executive Engineer, Respondent No.3, and thereby remove encroachment and dismantle compound and gate, illegally put up/installed in 40 feet Road portion shown in sketch Annexure-A, bifurcating property – Order of injunction would not come in way of court directing BBMP to remove compound wall and gate put up on a passage/street - Para 24.7.
Finding of the Court: It is required that robust system be established by Chief Commissioner for handling litigation of BBMP and a dashboard be prepared and made available to all concerned officers as regards notices issued by BBMP, caveats filed relating thereto both before civil courts and court, suits filed in relation thereto, writ petition filed in relation thereto etc - A road is taken into consideration by BBMP for issuance of katha, bifurcation of katha, issuance of plan sanction, building licence and collection of tax, it would be bounded duty of BBMP to maintain such roads which forms means of access to persons residing in and around road as also may be a thoroughfare was certain others - BBMP cannot in court considered opinion after taking into account existence of road for all above purposes and collecting tax thereon, abdicate liability to maintain road on ground that a formal relinquishment has not been made - A survey to be carried out within a period of four moths from today and report in that regard to be filed before Court - BBMP is directed to remove construction put up on street in form of a compound wall as also gate and keep entire passage/street measuring 40 feet by 159 feet free of any encroachments - BBMP is also directed to maintain said passage/street and enter same in its property register.
Result: Petition allowed.
ORDER :
1. The petitioner is before this Court seeking for the following reliefs :
(b) Grant such other relief/s as this Hon'ble Court deems fit to grant in the facts and circumstances of the case.
2. Petitioner No.1 is the sister of respondents No.4, 6 and deceased respondent No.5. Petitioner No.2 is the husband of petitioner No.1. Property bearing Corporation No.10, Ramamurthy Nagar, Banaswadi belonged to M. Venkataramaiah, S/o Muniswamappa, father of petitioner No.1 and respondents No.4 to 6. During his lifetime, Sri. M. Venkataramaiah bifurcated the above property into five portions, three of the portions viz., portion, 3, 4 and 5 were bequeathed in favour of respondents No.4, 5 and 6 and as regards remaining two portions, he had executed gift deeds in favour of petitioner No.1-Smt. V. Kamala and another daughter Smt. Sharada. There is no dispute raised by said Sharada in the present matter.
3. Upon the expiry of M. Venkataramaiah, respondents No.4 to 6 had applied to 1st respondent-BBMP for bifurcation of their katha, pursuant to which the same was done by way of special notice dated 4.01.2006. The original No.10 was retained for the property allotted to respondent No.4, the property allotted to the share of respondent No.5 was issued a new No.10/3, share allotted to respondent No.6 was allotted new No.10/4 and share allotted to the petitioner was given new No.10/1 by BBMP.
4. In terms of both the Will and the gift deed, a passage/road measuring 40 x 159 ft. leading from Ramamurthy Nagar main road has been shown as providing access to aforesaid properties which was being used by everybody.
5. The Respondent No.4 leased his property in favour of Respondent No.7 on 1.4.2006, Respondent No.5 had leased his property No.10/3 and 10/4 to Respondent No.7 on 1.02.2007 and 10.08.2006 respectively. Respondent No.6 obtained sanction from BBMP for construction of building on his property bearing No.10/4.
6. In the meanwhile, petitioner No.1 also constructed a commercial building in a portion No.10/1 measuring 4225 sq.ft in terms of the plan sanctioned by BBMP and thereafter gifted 50% undivided interest in the rear portion of her property No.10/1 to Petitioner No.2 - her husband under a gift deed dated 18.04.2009.
7. The petitioners had applied for bifurcation of front portion measuring 4225 sq.ft and backside portion of 2275 sq.ft, as regards which a special notice dated 29.10.2010 had been issued by the BBMP retaining property No.10/1 for the front portion and giving a new property No.10/5 for the rear portion.
8. At this stage, the petitioner alleges that respondents No.4 to 6 in collusion with Respondent No.7 had closed the passage/road measuring 40 x 159 Ft. which had been formed by her father and it was further alleged that respondents No.4 to 7 had put up a compound wall which had the effect of enclosing the property of the petitioners in property No.10/5 thereby depriving access to that property, as also resulting in encroachment of the entire road/passage measuring 40 x 159 ft. It is in that background that the petitioners lodged a complaint with respondent No.2 - Commissioner, BBMP which was forwarded to respondent no.3 - Asst. Executive Engineer, who being of the opinion that records indicate the same to be a public road, issued a notice on 3.03.2011 to respondents No.4 to 6 to remove the encroachment and dismantle the compound and gate put up.
9. Respondents No.4 to 6 replied to the same on 8.3.2011 contending that the passage is a common passage, only for the benefit
gpt-4
Section 265 of Act reads as vesting of public streets and their appurtenances in corporation.
The classification of a roadway as public or private under local laws necessitates resolution in civil court, with interim protections for public usage.
The court emphasized that public interest in access to a completed public road outweighs private claims, disallowing obstruction based on width specifications set by plaintiffs.
Property owners have an inherent right of access to public roads, irrespective of alternative routes; denial of access violates legal principles governing property rights.
Landowners adjacent to public roads maintain a fundamental right of access to their properties, regardless of alternate access points, supporting public interest and use.
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