Case Note & Summary
The High Court of Karnataka at Bengaluru heard a Public Interest Litigation filed by a resident of Thyagarajanagar, Bengaluru, who appeared in person. The petition raised concerns about unauthorized encroachments on public streets and footpaths by religious pandals erected by Panduranga Devalaya Samithi and by street vendors, causing obstruction to vehicular and pedestrian traffic. The petitioner sought a prohibition on such encroachments and a restraint on BBMP from granting permissions for temporary constructions that block public ways. The matter was heard by a Division Bench comprising Chief Justice Abhay S. Oka and Justice S.R. Krishna Kumar on September 27, 2019, along with an application for impleadment by the trustee of the Samithi. The main legal issue was the scope and limits of the Commissioner’s power under Section 288(2) of the Karnataka Municipal Corporations Act, 1976, to grant temporary construction licences on public streets. The petitioner argued that the practice of permitting pandals on roads and footpaths violated the right of citizens to free passage. BBMP defended its actions stating that permissions were granted subject to conditions and that encroachment removal was ongoing. The impleading applicant contended that pandals did not obstruct traffic and were meant for devotees’ protection during festivals. The court, after examining photographs and material, found that obstructions were indeed caused. It analyzed the provisions of the Karnataka Municipal Corporations Act, 1976, including the definition of ‘public street’ under Section 2(31) which includes footways; the mandatory duties of the Corporation under Section 58 to maintain streets and remove obstructions; the prohibition under Section 285 against encroachments; and the licensing power under Section 288(2). Relying on the Supreme Court decision in Sodan Singh v. New Delhi Municipal Committee, the court emphasized that the primary purpose of roads is movement, and no one has the right to cause unreasonable obstruction. It held that the power under Section 288(2) is not unrestricted and must be exercised consistently with citizens’ right to unimpeded passage. The court issued a slew of directions: BBMP shall not grant permission for any temporary structure that obstructs vehicular or pedestrian traffic; no erection of pandals, arches, or similar structures on public roads or footpaths is permitted; on footpaths, no construction is allowed except in extreme emergency with a clear passage of at least half the width; permissions shall be granted only sparingly and for limited duration; the Commissioner must issue a circular within three months incorporating these conditions; all existing licences under Section 288(2) must be reviewed within three months and those causing obstruction be revoked; and steps must be taken to regulate street vendors under the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014, and remove encroachments. The petition was disposed of with these directions, marking a significant reinforcement of the public’s right to unobstructed use of streets and a check on discretionary licensing that compromises that right.
Headnote
A) Municipal Law - Definition of Public Street - Section 2(31) includes footways and footpaths - Karnataka Municipal Corporations Act, 1976 - The court interpreted the wide definition of 'public street' to encompass footways and footpaths, thereby extending the protective provisions of the Act to pavements and ensuring they remain free for public use (Paras 8-9). B) Municipal Law - Mandatory Duties of Corporation - Sections 58(19) and (20) impose duties to maintain and remove obstructions on public streets - Karnataka Municipal Corporations Act, 1976 - The court noted that the Corporation has mandatory obligations to maintain public streets and remove obstructions and projections, which are consistent with the scheme of Chapter XIV of the Act. Held that these duties are not discretionary but mandatory (Paras 9-10). C) Municipal Law - Prohibition on Obstructions - Section 285 absolutely prohibits any obstruction or encroachment on public streets without statutory exception - Karnataka Municipal Corporations Act, 1976 - The court highlighted that the prohibition is subject only to exceptions provided elsewhere in the Act, such as under Section 288, reinforcing the primacy of unobstructed public passage (Para 11). D) Municipal Law - Commissioner's Licensing Power - Section 288(2) power is not unrestricted; must be exercised in consonance with citizens' rights - Karnataka Municipal Corporations Act, 1976 - The court held that although sub-section (3) does not expressly apply to sub-section (2), the power is not absolute and cannot be used to permit temporary constructions that unreasonably obstruct public streets or footpaths. The right of citizens to free passage limits the discretion (Paras 12-13, 15). E) Constitutional Law - Right to Use Public Streets - Citizens have the right of passage; no unreasonable obstruction permitted - Constitution of India, Article 21 - Relying on Sodan Singh v. New Delhi Municipal Committee, the court held that the primary purpose of roads is travel, and no one can create unreasonable obstruction; the right to use the street is subject to the equal rights of others to pass (Paras 16-18). F) Municipal Law - Temporary Constructions on Streets - Permissions under Section 288(2) cannot be granted for structures that obstruct vehicular or pedestrian traffic - Karnataka Municipal Corporations Act, 1976 - The court directed that BBMP shall not grant permission for erecting pandals, arches, or other structures that obstruct free flow of traffic; such permissions must be granted sparingly and only if no obstruction is caused (Paras 19-20). G) Municipal Law - Footpath Protection - Footpaths must be kept free; no structures permitted except in extreme emergency - Karnataka Municipal Corporations Act, 1976 - The court clarified that no permission shall be granted for any construction on footpaths; even in exceptional circumstances, a clear passage of at least half the width must be maintained (Para 21). H) Municipal Law - Review of Past Permissions - All existing permissions under Section 288(2) must be reviewed and those causing obstruction revoked - Karnataka Municipal Corporations Act, 1976 - The court directed the BBMP Commissioner to review all existing licences for temporary constructions within three months and revoke those violating the guidelines (Para 22). I) Municipal Law - Street Vendors - Regulation of street vendors and removal of encroachments under Street Vendors Act - Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014; Karnataka Municipal Corporations Act, 1976 - The court directed BBMP to take steps to regulate street vendors in accordance with the Act and to remove encroachments on footpaths and streets (Para 23).
Issue of Consideration
What is the scope of the Commissioner's power under Section 288(2) of the Karnataka Municipal Corporations Act, 1976, to grant temporary construction licences on public streets, and whether such power can be exercised to permit obstructions like religious pandals that interfere with citizens’ right of passage?
Final Decision
The court held that the power under Section 288(2) is not unrestricted and cannot be used to grant licences that cause unreasonable obstruction. It directed that BBMP shall not grant permission for erection of pandals/structures that obstruct vehicular or pedestrian traffic; no construction on footpaths except in extreme emergency with at least half width clear passage; all existing permissions under Section 288(2) to be reviewed and revoked within three months if causing obstruction; Commissioner to issue circular within three months incorporating these conditions; street vendors to be regulated under Street Vendors Act; and BBMP to file compliance report. Petition disposed of with directions.
Law Points
- Legal points not extracted
- Public street includes footways under Section 2(31) of Karnataka Municipal Corporations Act
- 1976
- Corporation has mandatory duty to maintain public streets and remove obstructions
- Power under Section 288(2) is not unrestricted and cannot be exercised to obstruct public passage
- Right of citizens to use public streets for passage is paramount
- Temporary structures cannot unreasonably obstruct vehicular or pedestrian traffic
- Permission for any construction on footpaths cannot be granted except in extreme emergency
- Licences under Section 288(2) must be subject to conditions ensuring unobstructed passage
- Existing licences causing obstruction must be reviewed and revoked
