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Judgment
A.S Bopanna
The petitioners are before this Court seeking for the following reliefs;
a) Issue a Writ in the nature of Mandamus or any other writ, order or direction as the case may be, directing the First Respondent not to carry on any activity so as to change the user of land or engage in construction or other activity adjacent to the First Petitioner''s land on Bangalore Old Madras Road, Municipal No. 1-15, Bangalore by utilizing the lands acquired for the establishment of Metro Rail infrastructure for any commercial or other purpose other than, for locating such Metro Line infrastructure and not to permit any construction to he put up below or by the side of the Metro Via-Duct on either side of the Via-duct contrary to the provisions of the applicable laws and particularly The Metro Railways (Construction of Works) Act, 1978 as amended by the Metro Railways (Amendment) Act 2009 or in contravention of the law under which the First Respondent is established and the purpose for which the lands have been acquired by ''Third Respondent, by exercising the powers of Eminent Domain; and,
b) issue a Writ in the nature of Mandamus or any other writ or direction in the nature of Mandamus directing the First Respondent to demolish and remove the construction undertaken by the First Respondent in the Schedule Property for Commercial purpose.
c) Issue a Writ in the nature of Mandamus or any other writ or direction in the nature of Mandamus directing the Respondents to reinstate the excess land if any to the First Petitioner towards which the First Petitioner will forego its right of compensation to the extent, of the land reinstated.
d) pass such other and further orders as the Hon''ble Court deems fit and proper in the nature and circumstances of the case:
e) Award costs of this petition.
The petitioners purchased the property bearing Municipal No. 1-15 (Old Sy.Nos. 4/1B, 4/1C, 4/1D and 4/1E Binnamangala Manavarthekaval Village, Old Madras Road, Bangalore in all measuring 227000 Sq.ft. on 10.03.2006. However, prior to the said purchase i.e., on 17.01.2006 the Karnataka Industrial Areas Development Board (The KIADB for short.) issued a notification u/s 28(1) of the KIADB Act proposing to acquire an extent of 4367.04 Sq.mtrs out of the total extent for the benefit of the first respondent and the final notification in this regard was issued on 08.01.2007 u/s 28 (4) of the KIADB Act. Though the petitioners herein had assailed the said acquisition before this Court, in W.P.No.7706/2007, the petition was dismissed on 09.04.2008. The said petition was dismissed on the lack of locus standi to the petitioners to question the acquisition being a purchaser subsequent to the date of preliminary notification.
In the above backdrop, the challenge to the acquisition has attained finality. Accordingly, the first respondent who has secured the land from the KIADB has constructed the via-duct for laying of metro lines by installing pillars. To the said extent, the petitioners have no grievance, but what is being questioned by the petitioners is the exploitation of the area below the viaducts by putting up construction for commercial use. Firstly, it is contended that when the land is acquired for public purpose, it cannot be later used for commercial purpose. It is contended that the Metro Railways (construction of works) Act 1978 (the ''Metro Act'' for short) does not provide for such use nor is the first respondent established for that purpose. The reason which has lead to such challenge is that the petitioners intend to utilise their remaining land for putting up multi-storied commercial complex. The construction now proposed by the first respondent would obstruct the ''ingress'' and ''egress'' to the said complex. In that regard, apart from contending that the first respondent have no legal right for putting up construction, it is also the case of the petitioners that when they sought for sanction of the plan from the Bruhat Bangalore Mahanagara Palike (the ''BBMP'' for short), the BBMP by their letter dated 23.08.2004 had sought for ''no objection certificate'' (NOC for short) from the first respondent. The first respondent by their reply dated 29.10.2004 have issued such '' no objection'' whereupon the BBMP has approved the plan. The said plan indicates the ''entry'' and ''exit'' to and from the petitioners property to the Old Madras Road passing under the via-duct and as such the same cannot be blocked at this stage is the contention. The petitioners further contend that if such entry is not provided, it would render their remaining property useless and the right of way sought is an easement of necessity.
The respondents no doubt admit that a portion of the property in Sy.No.4/1 was acquired. The details of the manner in which the project is being implemented is also adverted to. The preparation of the Detailed Project Report (''the DPR'' for short) and the approval for the same and the equity participation of the State and Central Government is referred. The commercial development, of the property is an integral part of the approved project. It is contended that; the petitioners'' property is adjacent to Byappanahalli Depot and it is one of the properties acquired which included a plan for commercial development. It: is pointed out that there is no legal bar for putting up such construction under the viaduct. It is contended that the petitioners having failed in their attempt to challenge the acquisition, cannot attempt to re-agitate the same matter by contending that the acquisition is not for public purpose when the property acquired is put to use for the purpose for which it was acquired and the further development is made as per the DPR. The contention of promissory estoppel and easementary right is resisted by the first respondent. It is contended that no assurance has been given to the petitioners nor can the petitioners rely on the NOC dated 29.10.2004 to prevent any construction under the via-duct by the first respondent. It is pointed out that the said NOC clearly states that the marked portion in the plan i.e., the acquired area for Metro Roil should be excluded from the plan and even the excavation and construction in the area belonging to the petitioners is permitted as per the restriction indicated therein. In that view, the petitioners ought to hare modified the plan and if they have not done so it is at their own peril. Further the first respondent, cannot be held liable if the BBMP has wrongly approved the plan contrary to NOC. Even with regard to easement of necessity, it is pointed out that there are other roads abutting the property as noticed from the plan relied on by the petitioners and as such no relief can be granted. The contention of the other respondents is in support of the first respondent.
In the light of the rival contentions, I have heard Sri Suraj Govindaraj, learned counsel for the petitioner, Sri N.N. Harish, learned counsel for the first respondent, Sri Basavaraj Sabarad, Ms. M.C. Nagashree and Sri Omkaresh, respective learned counsel for the respondents No. 2 to 4 and perused the petition papers.
The contentions urged ''and the prayers (a) and (b) sought in the instant petition relates to the aspect as to whether the first respondent is prohibited in law from putting up any construction for commercial exploitation under the rail via-duct which has been constructed. Vide prayer (c) the petitioners are seeking for return of the excess land, which would depend on the relief on prayers (a) and (b). In that regard, whether the petitioners can be heard to object to the same by way of challenge to the acquisition and utilisation of the property subsequent to acquisition is the issue. Though the learned counsel for the petitioner has referred to Sections 19 and 21 of the Metro Act to contend that the construction cannot be put up, since no notification is referred to contend that the construction of present nature has been prevented, I do not see any bar for construction under the said provisions. Insofar as the aspect as to whether the first respondent can exploit the acquired property commercially or as to whether they can only construct the via-duct and lay lines for metro rail, the DPR in fact provides for property development to exploit the potential of commercial utilisation. In that backdrop, when the development by the first respondent is in the area which has been acquired and when construction is not prohibited by law, the question is as to whether the petitioners can complain that it is being used for a different purpose after having acquired it for a public purpose.
On that aspect of the matter, what is to be noticed is that the petitioners'' challenge to the acquisition notification was rejected by this Court in W.P.No.7706/2007 (LA-KIADB) on 09-04-2008 on the ground of lack of locus-standi for the petitioner to challenge the acquisition being a subsequent purchaser.
Such finding in my opinion would hold against them when the petitioners are challenging the acquisition on the ground that the property is being utilised for a different purpose from what it was acquired for. Once It is held that the petitioners have no right to challenge the acquisition, they would loose the right to challenge the manner of utilisation of the acquired property as well. Hence, the challenge to the construction below the via-duct as the main contention in the writ petition is liable to be rejected on that ground alone.
Despite the above, a further examination of the matter in any event would indicate that the acquisition is for development of the metro rail project as indicated from the notification at Annexure-A to the petition. The fact that the via-duct for the metro rail has been constructed on the acquired land is not in dispute. Therefore, there is no diversion of the land for any other purpose than for what it was acquired. In fact, the land in which the construction is being put up by the first respondent is not excess land either. Instead, after construction of the via-duct, the land beneath it is being better utilised and as such that cannot vitiate the acquisition in the present facts. It would also be beneficial to refer to the decision of the Hon''ble Supreme Court in the case of Gulam Mustafa and Others Vs. The State of Maharashtra and Others, relied en by the learned counsel for the first respondent, wherein if has been held as follows:
At this stage Shri Deshpande complained that actually the municipal committee had sold away the excess land marking them out into separate plots for a housing colony. Apart from the fact that a housing colony is a public necessity, once the original acquisition is valid and title has vested in the municipality, how it uses the excess land is no concern of the original owner and cannot be the basis for invalidating the acquisition. There is no principle of law by which a valid compulsory acquisition stands voided because long later the requiring authority diverts it to a public purpose other than the one stated, in the Section 6 (3) declaration.
In that view of the matter, the decision in the case of Premnath & others vs. State of Jammu and Kashmir and others (AIR 1960 J & K 78) relied on by the learned counsel for the petitioner would be of no assistance.
Notwithstanding the above conclusion that the first respondent is entitled to utilise the acquired land in the present manner there being no restriction in law, the crucial aspect for consideration in the instant facts is as to whether the petitioners'' right of "ingress'' and ''egress'' is to be protected by way of easementary right or in the circumstance of the plan being approved based on the NOC issued by the first respondent, by preventing such construction by the first respondent abutting the property belonging to the petitioners.
10 To claim easementary right by way of access to the Old Madras road which is a highway, the learned counsel for the petitioners has also relied on the decision of the Madras High Court in the case of K. Sudarsan and Others Vs. The Commissioner, Corporation of Madras and Others, ). Though the proposition enunciated therein is that even'' person has a right to use the highway, what is held therein is also that the right of access from a private premises to the highway and vice versa is a private right: but becomes a public right once he is on the highway. In any event, the point is examined in the said case in the light of the grievance made by the shop owners due to obstruction caused by the hawkers on the road side. The said decision is not of assistance to the case on hand where the property lying in between the highway and the petitioners land is the property which has been acquired in accordance with law and the right sought by the petitioners herein is to pass through such land belonging to the first respondent so as to access the highway.
On the other hand, the learned counsel for the first respondent has relied on the decision of the Hon''ble Supreme Court in the case of Hero Vinoth (minor) Vs. Seshammal, ) wherein it is held that an easement of necessity is one which is not merely necessary for reasonable enjoyment of the dominant tenement, but one where dominant tenement cannot be used at all without the easement. In that context, it is contended on behalf of the first respondent that the plan relied on by the petitioners at Annexure-H itself would indicate that the property in question abuts other roads from which access could be had to the property. But the contention on behalf of the petitioners is that the said roads are smaller lanes in private residential area and the exploitation of the property based on the floor area ratio (FAR) will depend on the width of the road and the enjoyment of the property would be possible only if there is direct access from Old Madras Road, in that regard., it is contended that the plan approved by the competent authority is after obtaining NOC from the first respondent to approve the plan as at Annexure-H and the indication of ''entry'' and ''exit'' only to Old Madras Road in the said plan has not been declined by the first respondent. Hence, there is consent. In order to appreciate these rival contentions, it would be appropriate to notice the view of the Hon''ble Supreme Court in the said decision in the case of Hero Vinoth, which reads as hereunder:
The question whether an easement is one acquired by grant (as contrasted from an easement of necessity) does not depend upon absolute necessity of it. It is the nature of the acquisition that is relevant Many easements acquired by grant may be absolutely necessary for the enjoyment of the dominant tenement in the sense that it cannot be enjoyed at all without it That may be the reason for the grant also. But easement of grant is a matter of contract between the parties. In the matter of grant the parties are governed by the terms of the grant and not by anything else. Easement of necessity and quasi-easement are dealt with in Section 13 of the Act. The grant may be express or even by necessary implication. In either case it will not amount to an easement of necessity u/s 13 of the Act even though it may also be an absolute necessity for the person in whose favour the grant is made. Limit of the easement acquired by grant is controlled only by the terms of the contract. If the terms of the grant restrict its user subject to any condition, the parties will be governed by those conditions. Anyhow the scope of the grant could be determined by the terms of the grant between the parties alone. When there is nothing in the term of the grant in this case that it was to continue only until such time as the necessity was absolute: in fact even at the time it was granted, it was not one of necessity. If it is a permanent arrangement uncontrolled by any condition, that permanency in user must be recognised and the servient tenement will be recognised and the servient tenement will be permanently burdened with that disability. Such a right does not arise under the legal implication of Section 13 not is it extinguished by the statutory provision u/s 41 of the Act which is applicable only to easement of necessity arising u/s 13.
An easement by grant does not get extinguished u/s 41 of the Act which relates to an easement of necessity. An easement of necessity is one which is not merely necessary for the reasonable enjoyment of the dominant tenement, but one where dominant tenement cannot be used at all without the easement. The burden of the servient owner in such a case is not on the basis of any concession or grant made by him for consideration or otherwise, but it is by way of a legal obligation enabling the dominant owner to use his land. It is limited to the barest necessity however inconvenient it is irrespective of the question whether a better access could be given by the servient owner or not. When an alternate access becomes available, the legal necessity of burdening the seruient owner ceases and the easement of necessity by implication of law is legally withdrawn or extinguished as statutorily recognized in Section 41. Such an easement will last only as long as the absolute necessity exists. Such a legal extinction cannot apply to an acquisition by grant and Section 41 is not applicable in such case.
Above being the position, the High Court was light in holding that, the parties clearly provided for a right of access to the backyard of the defendants house when the Partition deed was executed and shares were allotted to various sharers taking into account various factors and it is a matter of contractual an angement between them. In such a contract if a right of way is provided to a particular sharer, it cannot he extinguished merely because such sharer has other alternative way. The High Court''s reasoning and conclusions do not suffer from any infirmity to warrant interference.
(emphasis supplied)
The perusal of the above would indicate that an easement acquired by grant does not get extinguished even if alternate access is available. It is also held that a grant may be express or even by necessary implication. In the instant case, though there is no agreement of grant between the petitioners and the first respondent relating to easement, the petitioners are strongly relying on the communication dated 29.10.2004 (Annexure-G) between the first respondent and the BBMP by way of NOC for approval of plan (Annexure H) for the construction of commercial complex by the petitioners. The first respondent would however contend that the NOC issued was subject to the condition that the sanction should be granted leaving out the boundary shown in red colour. The red colour referred is marked in the copy of the plan (Annexure H) and it encompasses the path to ''entry'' and ''exit;'' points. The said NOC no doubt sets down two conditions namely,
i) The excavation line for foundation/ basement/retaining wall should be beyond the Metro boundary.
ii) The retaining wall for foundation/ basement should be designed to take the additional live load of 150t towards movement of construction materials/ crane/launching girders etc.
and further states
Kindly ensure that no construction is taken up in the land required for Metro project A copy of the sanctioned plan may please be sent to this office for reference.
The above noticed contents of the NOC would indicate that conditions were imposed relating to construction being permitted beyond the extent of land of Metro Rail and restriction relating to excavation even in the land which is admittedly that of the petitioners. The BBMP was also requested to ensure that no construction is taken up in the land required for the Metro project. However, the issue herein relates to the ''entry'' and ''exit'' point shown in the plan (Annexure-H) which had been marked by the first respondent as passing through the area of the Metro rail which was indicated in red colour. Marked portion as "Metro Rail land" clearly encloses the said ''entry'' and ''exit'' point denoted in the plan.
In that regard, it is also true that the petitioners purchased the property under sale deed dated 10.03.2006 and the said transaction was completed after the plan was sanctioned on 24.05.2005. The sanctioned plan indicates the ''entry'' and ''exit'' point to the Old Madras Road after passing through the property acquired for Metro rail. The tact that the BBMP has sanctioned the plan cannot be in dispute though the final approved plan does not indicate endorsement: of the first respondent. Nor is there any material at this juncture to indicate that a copy of the final approved plan was made available to the first respondent since the NOC letter dated 29.10.2004 (Annexure-G) indicates that a copy of it was to be furnished to the first respondent. Further there is no other material on record to suggest that the first respondent was aware of the final sanctioned plan and they had conceded to the same. Be that as it may in any event, the plan (Annexure-H) attached to the NOC letter though indicated the ''entry'' and ''exit'' point, only to Old Madras Road and no other provision was made for ''exit'' and ''entry'' in the other directions in the plan furnished to them and the first respondent had marked that area in Red Colour as their property. Despite the same if the BBMP were to approve the plan in the manner done, there ought to have been consent from the first respondent by way of grant of easement. Presently, the petitioners have written letters as at Annexure-M series seeking for their right of ''entry'' and ''exit''. However, the prayer sought in the instant petition is not limited to the easementary right confined to the ''entry'' and ''exit'' portion but it is to prevent the entire construction, activity of the first respondent, under the via-duct and to reinstate the excess land if any. The said relief cannot be granted in the instant writ petition for the reasons stated above.
On the other hand, in view of the above conclusion, if the petitioners are still desirous of establishing that they are at least entitled to ''ingress'' and ''egress'' from their property to the Old Madras Road by passing through the property belonging to the first respondent by way of easementary right, the same will require a factual determination in its correct perspective in an appropriate proceedings. In such event, what will have to be determined is as to whether the sanction of the plan in a particular manner by the BBMP would bind the first respondent so as to establish as to whether the same would act as a grant for use of the easementary right. In the alternative, even if the same is not construed as a grant of the easementary right by the first respondent, whether it should be considered as an easement of necessity. To that extent, the possibility of having similar ''entry'' and ''exit'' points from other directions to the properly belonging to the petitioners and the appropriateness of the same requires determination. In such event, the question would also be as to whether the existence of alternate approach would extinguish the right of easement of necessity as claimed by the petitioners. All the above said questions can only be determined on the basis of oral as well as documentary evidence since a dispute has been raised on these aspects by the first respondent and such disputed questions of fact cannot, be decided in a writ petition. Hence, the contentions on those aspects are left open to be considered in an appropriate proceedings, if the parties choose to resort to the same.
In the result, the petition fails and the same is accordingly dismissed. No costs.