IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF JUNE 2017 BEFORE THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI W.P.NO.19796 OF 2013 [LB-BMP] AND W.P.NOS.46400-46402 OF 2013 C/W W.P.NO.22334 OF 2017 W.P.NO.19796/2013 & W.P.NOS.46400-46402/2013 BETWEEN M/S ESTEEM ENCLAVE, A REGISTERED PARTNERSHIP FIRM HAVING ITS PLACE OF BUSINESS AT NOS.32, 33 AND 34, S N S CHAMBERS NO.239, SANKEY ROAD, SADASHIVANAGAR BANGALORE – 560 080.
REPRESENTED BY ITS PARTNER MR.NARAINDAS BODARAM ... PETITIONER (BY:SRI C.P.JITENDRA, ADVOCATE) AND:
1. STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY HOUSING AND URBAN DEVELOPMENT DEPARTMENT VIDHANA SOUDHA BANGALORE – 560 001.
2. BRUHAT BANGALORE MAHANAGARA PALIKE N R SQUARE, BANGALORE – 560 002 REPRESENTED BY ITS COMMISSIONER 3. ASSISTANT EXECUTIVE ENGINEER ARAKERE SUB-DIVISION BRUHAT BANGALORE MAHANAGARA PALIKE N R SQUARE, BANGALORE – 560 002.
4. MR MUNINARAYAN SINCE DECEASED BY LR 4(a). SMT.MALINI W/O LATE MUNINARAYAN AGED ABOUT 50 YEARS R/AT 38/2, ARAKERE GATE OPPOSITE CORPORATION BANK BANNERGHATTA MAIN ROAD BANGALORE – 560 076. ... RESPONDENTS Amended vide Court order dt.19.6.17 (BY:SRI LAKSHMINARAYANA, AGA FOR R1;
SRI I G GACHCHINAMATH, ADVOCATE FOR R2 & R3; SRI V B SHIVAKUMAR, ADVOCATE FOR R4(A)) THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE R2 TO ACT ON THE REPRESENTATIONS OF THE PETITIONER AND THEREBY DIRECT THE R4 TO TAKE PRECAUTIONARY MEASURES IN A TIME BOUND MANNER AND RESTORE THE NORTHERN SIDE OF THE FRONT BLOCK AND THE WESTERN SIDE OF THE REAR BLOCK AND THE DRIVE WAY CONNECTING THE FRONT AND REAR BLOCKS PUT UP ON THE SCHEDULE PROPERTY BY FILLING IN SAND OR MUD OR APPROPRIATE MATERIAL IN ACCORDANCE WITH LAW.
W.P.NO.22334/2017 BETWEEN SRI H M SURESH, AGED ABOUT 60 YEARS S/O LATE L MUTHAPPA R/AT “SRIRAM NILAYA” HULIMAVU VILLAGE, BANNERGHATTA ROAD, BENGALURU – 560 076. ... PETITIONER (BY:SRI V B SHIVAKUMAR, ADVOCATE) AND:
1. BRUHAT BENGALURU MAHANAGARA PALIKE CORPORATION OFFICES, N R SQUARE, J C ROAD, BANGALORE – 560 002 REPRESENTED BY ITS COMMISSIONER 2. THE EXECUTIVE ENGINEER BRUHAT BENGALURU MAHANAGAR PALIKE BOMMANAHALLI RANGE BOMMANAHALLI BENGALURU – 560 098. ... RESPONDENTS (BY:SRI I G GACHCHINAMATH, ADVOCATE FOR R1 & R2) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH SHORT TERM TENDER NOTIFICATION DATED 08.05.2017, ISSUED BY THE RESPONDENTS INVITING TENDERS FOR CONSTRUCTION OF RCC RETAINING WALL ALONG SOUTHERN AND EASTERN SIDE OF SY.NO.38/2, ARAKERE VILLAGE BY THE SAID ESTEEM ENCLAVE APARTMENT, WARD NO.193, ARAKERE, VIDE ANNEXURE-A AND ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioner is seeking the mandamus to the second respondent Bruhat Bengaluru Mahanagara Palike (‘BBMP’ for short) to act on the representations of the petitioner and thereby direct the fourth respondent to take precautionary measures in a time-bound manner and restore the northern side of front block and the western sides of the rear block and the drive way connecting the front and rear blocks put up on the schedule property by filling in sand or mud or appropriate material in accordance with law.
2. It is the grievance of the petitioner that in its land, which is adjacent to the petitioner’s property, the respondent No.4 has dug up a pit measuring 30 feet deep and around 60,000 sq.ft in all. The petitioner has brought this illegal excavation to the notice of BBMP. On the BBMP showing inaction and laxity in the matter, the petitioner has approached this Court.
3. The respondent No.4, Sri Muninarayan died on 16.2.2017 and that his wife Smt.Malini is brought on record as respondent No.4(a). Pursuant to this Court’s interim order, dated 19.6.2017, the respondent No.4(a) has filed the affidavit, dated 23.6.2017 undertaking to put up a retaining protection wall to the entire property within three months.
4. Sri Jitendra C.P., the learned counsel for the petitioner submits that the petitioner would be content, if a direction is given to the respondent No.4(a) to put up a retaining protection wall within three months as undertaken by the respondent No.4(a).
5. Sri V.B. Shivakumar, the learned counsel for the respondent No.4(a) submits that work of putting up retaining protection wall to the entire property of the petitioner would be completed in three months time, as undertaken by the respondent No.4(a) in her affidavit filed on 23.6.2017. He submits that the pit is 30 feet away from the petitioner’s property and that it would not in any way endanger the petitioner’s structure if the retaining protection wall is erected. So far as filling up of the pit is concerned, he submits that he proposes to put up the construction after getting the building plan sanctioned by the BBMP.
6. Sri I.G. Gachchinamath, the learned counsel for the respondent Nos.2 and 3 submits that the respondent No.4(a) has to close the pit. He submits that the existence of the pit is threat to the safety of the people. He apprehends that the people, particularly the children, may fall in the pit.
7. These petitions are disposed of with a direction to the respondent No.4(a) to put up the retaining protection wall for the entire property of the petitioner within three months from 23.6.2017. The construction of the retaining protection wall shall be as per the specific instructions of the BBMP. As far as the existence of the pit is concerned, the BBMP shall issue notice and secure the filling up of the pit in accordance with law.
8. Sri V.B. Shivakumar, the learned counsel for the petitioner in W.P.No.22334/2017 submits that in view of the undertaking given in the connected matter (W.P.No.19796/2013) and the orders passed thereon, nothing survives for consideration of W.P.No.22334/2017. It is dismissed as having become unnecessary.
Sd/- JUDGE VGR/MD