IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JANUARY, 2019 PRESENT HON’BLE MR.JUSTICE DINESH MAHESHWARI, CHIEF JUSTICE AND HON’BLE MR.JUSTICE ARAVIND KUMAR WRIT APPEAL NOS.11-12/2019 (LA-RES) BETWEEN:
SRI M. BABANNA S/O LATE P. MUNIVENKATAPPA AGED ABOUT 52 YEARS NO.1, 1ST A MAIN, 7TH CROSS BTM 2ND STAGE, MAHAKAVI KUVEMPU NAGAR BANNERGHATTA ROAD BANGALORE-560 076.
... APPELLANT (BY SRI D.N. NANJUNDA REDDY, SR. COUNSEL FOR SMT. KUSUMA R. PRASAD, ADVOCATE) AND:
1. STATE OF KARNATAKA REPRESENTED BY PRINCIPAL SECRETARY REVENUE DEPARTMENT VIKASA SOUDHA BANGALORE-560 001.
2. BRUHAT BANGALORE MAHANAGARA PALIKE REPRESENTED BY ITS COMMISSIONER N.R. SQUARE BANGALORE-560 002.
3. DEPUTY COMMISSIONER-CUM- SPECIAL LAND ACQUISITION OFFICER BRUHAT BANGALORE MAHANAGARA PALIKE N.R. SQUARE BANGALORE-560 002.
4. BANGALORE WATER SUPPLY & DRAINAGE BOARD REPRESENTED BY ITS CHIEF ENGINEER CAUVERY BHAVAN K.G. ROAD BANGALORE-560 009.
... RESPONDENTS (BY SRI, ADITYA SONDHI, SR. COUNSEL FOR SRI. B.L. SANJEEV, ADVOCATE FOR C/R4; SRI S.H. PRASHANTH, AGA FOR R1) THESE WRIT APPEALS ARE FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER DATED 12.12.2018 PASSED BY THE LEARNED SINGLE JUDGE ON I.A.NO.1 AND 2/2018 IN W.P.NOS.57994-995/2017.
THESE WRIT APPEALS COMING ON FOR PRELIMINARY HEARING THIS DAY, CHIEF JUSTICE DELIVERED THE FOLLOWING:
JUDGMENT These intra-court appeals are directed against the order dated 12.12.2018 passed by the learned Single Judge in W.P.Nos.57994-57995/2017, whereby the interlocutory application filed by the fourth respondent herein seeking permission to complete the work of the sewage lines in the petitioner’s property came to be allowed.
The petitioner, being the owner of the property bearing Sy.No.4 measuring 3 acres 36 guntas and Sy.No.17/8 situated at Roopena Agrahara Village, now part of the BBMP area, Bengaluru, has challenged the notification dated 20.11.2017 (Annexure-A) published in the Gazette on 07.12.2017 (Annexure- A-1) by the third respondent, whereunder the land to the extent of 3,257 sq. mtrs. and 311.71 sq. mtrs. respectively in the abovesaid survey numbers was sought to be acquired under Section 11(1) of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (‘the Act’) for the purposes of widening of the road and laying sewage pipes by invoking emergency clause under Section 40(1) of the Act. An interim order came to be passed on 21.12.2017 by the learned Single Judge that the petitioner should not be dispossessed from the subject property. However, the respondent Nos.1 to 3 were permitted to continue with the acquisition proceedings.
The fourth respondent filed an application under Section 151 of CPC seeking permission of the writ Court to enter upon the subject property to lay new sewage lines by pressing into service Section 77 of Bangalore Water Supply And Sewage Board Act, 1964 (‘BWSSB Act’) and while contending, inter alia, that the petitioner though having given consent for laying underground pipelines, was obstructing and not allowing the fourth respondent to complete the work of laying sewage pipes.
The said application came to be resisted by the petitioner by filing detailed statement of objections and the learned Single Judge, after considering the rival contentions, by order dated 12.12.2018, has allowed the application filed by fourth respondent for the reasons that the petitioner has given his consent; and that Section 77 of the BWSSB Act empowers the fourth respondent to enter any private land for laying, repairing or re-laying the sewage lines beneath the private property of the citizen even without any acquisition. Hence, these intra-court appeals have been filed by petitioner challenging the order dated 12.12.2018.
We have heard Shri D.N.Nanjunda Reddy, learned Senior Counsel appearing on behalf of Shri Chidanandayya for the appellant and Shri Adithya Sondhi, learned Senior Counsel appearing on behalf of Shri B.L.Sanjeev for the caveator/respondent No.4.
It is the contention of Shri D.N.Nanjunda Reddy, learned Senior Counsel appearing for the appellant-petitioner that when the respondents have issued notification for acquisition of the land, without taking recourse under the said Act by taking possession of the property; and without passing award or depositing the compensation for acquisition of the subject property; and without even putting the fourth respondent on terms, the learned Single Judge ought not to have permitted the fourth respondent to lay the sewage lines.
Per contra, Shri Adithya Sondhi, learned Senior Counsel appearing for the caveator/respondent No.4 would submit that though the interim order passed in the writ petition by the learned Single Judge on 21.12.2017 prohibited the respondents from dispossessing the petitioner, but that had not been of prohibiting the authorities from laying the sewage lines and as such, in the interest of public and also taking into consideration the consent given by the appellant, the said work was undertaken, which was sought to be obstructed by the appellant. It is submitted that by way of abundant caution, the application in question seeking permission of the writ Court was filed, which has been granted in the light of Section 77 of the BWSSB Act and there is no infirmity in the said order calling for interference. Hence, he prays for dismissal of the appeals.
Having heard learned counsel for the parties, we notice that under the order impugned, the fourth respondent has been permitted to lay the sewage lines in the subject property i.e., beneath the property of the appellant, while taking note of the fact that Section 77 of the BWSSB Act enables and empowers the authority to enter upon any private land for laying, repairing, altering or re-laying the sewage lines beneath the private property of the citizens, even without taking recourse to any acquisition proceedings; and in the event of any damage being caused during such task being undertaken, it only enables such citizen of seeking damages from the authority. However, payment of damages by way of compensation is not sine qua non for undertaking such task. In that view of the matter, we find no infirmity in the impugned order calling for interference.
However, it is made clear that the observations made in this order are relevant only for the purpose of disposal of these appeals and would have no bearing on merits of the case and the issues involved in the petitions. In other words, the contentions of the parties on the merits of the case are kept open, to be urged in the pending writ petitions.
Hence, the writ appeals are hereby dismissed with the observations foregoing and with no order as to costs.
The pending interlocutory application also stands disposed of.
SD/- CHIEF JUSTICE SD/- JUDGE sp