Developers Can't 'Strong-Arm Law': Karnataka High Court Rejects Pleas Against BBMP Notices For Removing Encroachment Over Storm Water Drains

Karnataka High Court has recently dismissed a batch of petitions challenging notices issued by the Bruhat Bengaluru Mahanagara Palike (BBMP) between 2014 and 2019 for the removal of encroachments put up over storm water drains in the city's Gubbalala area in the guise of land development.The petitions were filed by Mantri Developers, its Apartment Owners Association and Royal Palms Residents Welfare Association at Gubbalala who had sought a direction to the municipality not to interfere with their occupation and not to demolish the residential complex. A Single Bench of Justice R. Nataraj held that once a water body or drain is vested in the State under the Karnataka Land Revenue Act, its status cannot be 'divested' merely because a planning authority like the Bengaluru Development Authority (BDA) failed to reflect it in a Master Plan. “…This trend if allowed would set a bad precedent for all times to come as it would be handy to developers and the real estate mafia to strong arm the law and collude with the planning authorities to efface these arteries of water bodies in the master plan and obtain development plan and construct buildings over drains, etc….any stipulation in the master plan prepared by BDA is not binding upon the Department of Revenue”, the court observed that allowing developers to ignore existing natural drains based on faulty master plan maps would set a 'bad precedent' that benefits the 'real estate mafia'. The court noted that it has come to the conclusion that there has been encroachment on the public stormwater drains, which, in turn, impeded the free flow of water into the nearby Subramanyapura Lake. The court based its conclusion on the old village map, multiple survey reports and a hydrological study of Subramanyapura lake, which confirmed that the drains have been built over.The land developers were alleged to have constructed apartment buildings, compound walls, and basement parking directly over storm water drains in Gubbalala village that feed into the Subramanyapura Lake. The residential associations and the developer argued before the court that the projects had obtained the requisite sanctions from Bangalore Development Authority (BDA) and Bruhat Bengaluru Nagar Palike (BBMP).The petitioner associations also contended that the Comprehensive Development Plan (CDP) of 1995 by the authorities did not reflect any stormwater drains passing through their construction area. The court clarified that a master plan under Section 12 of the Karnataka Town and Country Planning Act, 1961 is a 'vision document' that would outline its present and future uses with street pattern and not necessarily water bodies or storm water drains.Though the petitioners relied heavily on the 'master plan', the court was of the opinion that developers often work hand in glove with the planning authorities and obtain development permits.“Yet another common-sense fact that we cannot ignore is that regardless whether the storm water drain is mentioned in the CDP or not, when it rains, water flows from the higher level to the lower level and when there is a deluge, it takes with it, whatever comes in its way or inundate other low lying areas…”, the court further observed.The court laid down in unequivocal terms that any proposed development should be within the confines of public utilities already in place. "Every Bengalurean was of the impression that there can be no flooding... The administration woke up only when an upscale/rich locality where the rich and famous lived came under water and several vehicles worth hundreds of crores were found floating", Justice Nataraj noted. The court also added that the petitioner-developers can be given another opportunity to suggest an alternate mode of restoration of stormwater drains. If they fail to do so, the current developments that have encroached upon the drains should be removed, and the drains must be secured preferably with RCC retaining walls, the court ordered. Subramanyapura is a live lake and the catchment area of Gubbalala comes around a square kilometre, therefore, the larger public interest must be preserved, the court remarked.The court has ordered that the deadline for such steps to be taken would be around March 15.“…We have to thank the British for the topographical survey and the great Trigonometrical survey of India which they did on donkeys back using basic equipments and giving us a document that continues to be a beacon for survey and revenue administration for over a hundred years. It is unfortunate that despite the technological advancement, we are unable to conduct a second general survey in the State of Karnataka…”, the court further held that when an area is included within the limits of a planning authority and a master plan is to be introduced for such area, the reference point is always a village map.The Court clarified that any development must occur around existing public utilities, not by systematically excluding or damaging them.The ...

Developers Can't 'Strong-Arm Law': Karnataka High Court Rejects Pleas Against BBMP Notices For Removing Encroachment Over Storm Water Drains

Sebin James

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