Case Note & Summary
The writ petition concerned a family property dispute in Bengaluru involving a 40-foot wide passage/road that provided access to several subdivided plots. The property originally belonged to M. Venkataramaiah, who divided it among his children via a Will and gift deeds, creating a common road for access. After his death, the BBMP bifurcated the katha for the various portions, and the petitioner No. 1 (a daughter) built on her portion. Later, the respondent brothers and a tenant educational society enclosed the road with a compound wall and gate, blocking access to the petitioner's rear portion. The BBMP initially issued notices treating the road as public and directing removal of the encroachment, but subsequently failed to act, citing a legal opinion to approach the civil court. In the meantime, the tenant society filed a suit for injunction against BBMP, which was decreed ex parte as BBMP did not contest. The petitioners then approached the High Court seeking a mandamus to compel BBMP to implement its own orders. The matter was argued on the nature of the road as a public street under Section 2(30) of the Karnataka Municipal Corporation Act, 1976, and the duty of BBMP to remove encroachments. The court reserved judgment, and the available text does not contain the final decision or reasoning.
Issue of Consideration
Whether the passage/road measuring 40 x 159 ft. shown in the sketch is a public street vesting in BBMP; whether the BBMP is bound to implement its orders for removal of encroachment despite a civil court injunction obtained by a private party
Law Points
- Definition of public street and private street under Section 2(30) of Karnataka Municipal Corporation Act
- 1976
- duty of BBMP to remove encroachments
- effect of a civil decree obtained without contest on BBMP's statutory duty
Case Details
2023 LawText (KAR) (04) 28
WRIT PETITION NO. 14685 OF 2014 (LB-BMP)
Arun B.M. for petitioners; B.S. Satyananda for R1-R3; Ajoy Kumar for Ganesh Bhat Y. for R4, R5(a-c), R6, R7
Smt. V. Kamala and Shri M. Venkatesh
Bruhat Bangalore Mahanagara Palike (BBMP) and Others (including relatives and society)
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Writ petition under Article 226 seeking mandamus to BBMP to implement its orders for removal of encroachment on a road/passage claimed as public street.
Remedy Sought
Petitioners sought direction to BBMP to implement orders dated 13.10.2011 and 18.11.2011 passed by its Assistant Executive Engineer and remove the encroachment and dismantle the compound and gate illegally put up in the 40 feet road portion.
Filing Reason
BBMP failed to take action on its own orders despite respondents 4 to 7 putting up a compound wall and gate enclosing the road, depriving petitioners of access, and obtaining a collusive civil court injunction.
Previous Decisions
BBMP's Assistant Executive Engineer initially noticed the road as public and issued notices on 3.3.2011 and later 13.10.2011 to remove encroachment; respondent 7 filed O.S. No.7544/2011 and obtained decree of permanent injunction against BBMP from interfering with possession; BBMP did not contest, so the decree was passed in favor of respondent 7.
Issues
Whether the 40 x 159 ft. passage is a public street vesting in BBMP under the Karnataka Municipal Corporation Act, 1976.
Whether BBMP is bound to implement its encroachment removal orders despite a civil court decree obtained by a private party.
Whether the civil decree is binding on BBMP when it was not contested and was collusive in nature.
Submissions/Arguments
Road was created under the Will and gift deed as a 40 ft. passage for access to all portions.
BBMP sanctioned plans based on this road, indicating it is a public street.
Respondent 7 colluded with family members to enclose the road and deprive access.
BBMP's own notices recognized the road as public and directed removal, but later failed to act.
Civil decree obtained by respondent 7 without contest from BBMP is not binding and cannot override statutory duties.
Section 2(30) defines public street as one over which public has right of way; the road in question is a public street.
Judgment Excerpts
the petitioners are seeking for issuance of mandamus to implement the order dated 13.10.2011 and 18.11.2011
a passage/road measuring 40 x 159 ft. leading from Ramamurthy Nagar main road has been shown as providing access to aforesaid properties
respondents No. 4 to 6 in collusion with Respondent No.7 had closed the passage/road
Respondent No.3 issued a notice on 13.10.2011 to respondents No.4 to 6 directing them to remove the encroachment
the trial Court decreed the suit injuncting respondents No.2 and 3 from interfering with the alleged possession of Respondent No.7
Procedural History
Property originally owned by M. Venkataramaiah, who divided it among his children by Will and gift deeds. Upon his death, BBMP bifurcated katha in 2006. Petitioner No. 1 constructed on her portion and later gifted half to her husband. Petitioners sought bifurcation, and BBMP issued special notice on 29.10.2010. Respondents allegedly encroached on the road, prompting a complaint to BBMP. Assistant Executive Engineer issued notice on 3.3.2011 directing removal; respondents replied on 8.3.2011 denying. Engineer issued endorsement on 20.05.2011 suggesting civil court. Later, on 13.10.2011, a fresh notice was issued to remove encroachment; on 18.11.2011, protection from BMTF was requested. Meanwhile, respondent 7 filed O.S. No.7544/2011 and obtained an injunction decree as BBMP did not contest. Petitioners filed the present writ petition seeking mandamus.
Acts & Sections
- Karnataka Municipal Corporation Act, 1976: Section 2(30)
