Ramanath K.T. vs L. Sathyanarayana and Others

Anand Byrareddy, J.—Heard the learned counsel for the appellant and the learned counsel for the respondents.

The appellant was the defendant before the Trial Court who had purchased a site through a House Building Co-operative Society which had formed a layout and pursuant to such allotment, he was put in possession and had constructed a house. It was the case of Respondent No. 1 who was the plaintiff before the Trial Court that according to the sanctioned plan of the layout, there is a 30 feet road along with a culvert in existence, on the Southern side of the defendant''s property. However, it was the case of the plaintiff that the defendant had encroached upon the road and culvert to an extent of 2'' x 20'' and had constructed his house, which no doubt has been conveyed to him under a sale deed. The plaintiffs case was that by virtue of such encroachment, the width of the road has been substantially reduced and has imposed an impediment for free movement not only to the plaintiff, but all persons living in the locality and since the authorities had not taken any action in this regard, as a public spirited citizen and in his own interest, had filed a suit seeking appropriate reliefs. The plaintiff had arrayed the State though the Housing and Urban Development Department as Defendant No. 1, the Bangalore Development Authority (BDA) as Defendant No. 2, the Bruhat Bangalore Mahanagara Palike (BBMP) as Defendant No. 3 and the House Building Society which has formed the layout as Defendant No. 4. Though the said parties had entered appearance through counsel, there were no pleadings filed and they had not contested the suit. However, Defendant No. 5 had filed his pleadings and had contested the suit. Ultimately, the court below having come to a conclusion that there was indeed encroachment of the road to the extent of 2'' x 20'', has decreed the suit. It is that which is under challenge in the present appeal.

As candidly stated by the learned counsel for the respondent - plaintiff, the other defendants had not participated in the proceedings and there was no material produced insofar as the factum of the road being 30 feet wide and the Defendant No. 5 having constructed his property by encroaching the road by 2'' x 20''. To establish that there was such encroachment, the width of the road ought to be established with reference to the sanctioned plan and it is then that the court could conclude that there was indeed any such encroachment. In the absence of any such authentic evidence or documents produced on record by the authorities concerned, to proceed on the premise that there was a road of 30 feet width and further to hold that there was an encroachment of the first defendant, solely on the say of the plaintiff, would result in a miscarriage of justice.

However, it is found from the provisions of the Municipal Corporations Act, 1976, that there are ample provisions under which the local authority is required to take action in respect of such encroachment of public property and it is appropriate if such action is initiated in the first instance. Therefore, in order to ensure that there is complete justice and there is no unfair deprivation of property, even if there is any alleged encroachment, without a prior enquiry with reference to the official documents, it would be premature to hold that there is indeed any such encroachment.

Consequently, it is for Respondent No. 4 to take appropriate action in the matter by addressing the issue as to whether there is encroachment of a public road and hence, Respondent No. 4 is directed to take such steps with expedition, in any event, within a period of four weeks from the date of receipt of a copy of this judgment.

However, the learned counsel for Respondent No. 1 would submit that there is no guarantee of any such action being initiated by the fourth respondent - BBMP, going by its conduct earlier, which was the circumstance which prompted the plaintiff to file a suit in the first place and hence, any such direction issued may or may not be complete, and the plaintiff will be left with no remedy insofar as the illegal and unlawful act of the first defendant is concerned. In this regard, if Respondent No. 4, the BBMP should fail to take any steps and pass appropriate orders in accordance with law, it is open for the plaintiff - Respondent No. 1 to pursue appropriate remedies even by approaching this Court in its writ jurisdiction for appropriate directions, for it is the public duty cast on the BBMP to take prompt action in respect of the encroachment of public properties.

With that observation, the appeal is disposed of. The judgment of the court below is set aside.