MRS JETHRONICA vs STATE OF KARNATAKA
- Court
- Karnataka High Court
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WP No. 8296 of 2015
C/W WP No. 7754 of 2018
®
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ST
DATED THIS THE 1 DAY OF JUNE, 2026
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 8296 OF 2015 (GM-BWSSB)
C/W
WRIT PETITION NO. 7754 OF 2018 (GM-BWSSB)
IN WP NO.8296/2015
BETWEEN
SRI T N CHANDRASHEKARGOWDA
AGED ABOUT 41 YEARS
S/O LATE NARAYANAGOWDA
R/AT THANISANDRA VILLAGE,
K R PURAM HOBLI-560 027,
BANGALORE EAST TALUK
...PETITIONER
(BY SRI. SAMPATH A., ADVOCATE)
AND
Digitally signed
by SHWETHA
RAGHAVENDRA
Location: HIGH
COURT OF
KARNATAKA
1. THE BANGALORE WATER SUPPLY
AND SEWERAGE BOARD
BY ITS COMMISSIONER,
KAVERI BHAVAN,
BANGALORE-560 001.
2. THE ASSISTANT EXECUTIVE ENGINEER
DEPARTMENT OF BWSSB
HBR LAYOUT SUB DIVISION,
BBMP, BANGALORE-560 001.
…. RESPONDENTS
(BY SRI. K.B. MONESH KUMAR., ADVOCATE FOR R1 & R2)
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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OR ORDER OR
DIRECTION DIRECTING THE RESPONDENTS TO REMOVE THE
SEWAGE PIPES LAID IN THE LAND OF THE PETITIONER BEARING
SY.NO.81/3 OF HENNUR VILLAGE KASABA HOBLI, BANGALORE
NORTH TALUK MEASURING 1 ACRE 11 GUNTAS AND ETC.
IN WP NO.7754/2018
BETWEEN
1. MRS JETHRONICA
AGED ABOUT 80 YEARS
W/O LATE MR GABRIEL
2. MR JOSEPH
AGED ABOUT 46 YEARS
S/O LATE MR GABRIEL
BOTH ARE RESIDING AT
NO.89, M M REDDY ROAD,
MARIYANNAPALYA H.A. FARM POST,
BANGALORE 560024
...PETITIONERS
(BY SRI. PUNEETH K., ADVOCATE)
AND
1. STATE OF KARNATAKA
BY ITS PRINCIPAL SECRETARY
DEPARTMENT OF LAW AND PARLIAMENTARY AFFAIRS
VIKASA SOUDHA
BANGALORE 560001
2. BANGALORE WATER SUPPLY AND SEWERAGE BOARD
BY ITS CHAIRMAN
JAL BHAVAN
BANGALORE 560001
…. RESPONDENTS
(BY SRI. M. SRINIVAS KUMAR., HCGP FOR R1;
SRI. K.B. MONESH KUMAR., ADVOCATE FOR R2)
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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OR ORDER
DECLARING S-77 OF THE BWSSB ACT AS UNCONSTITUTIONAL TO
THE EXTENT OF ENABLING THE RESPONDENTS TO LAY SEWER LINES
IN PRIVATE LAND WITHOUT ACQUIRING THE LAND AND WITHOUT
PAYING COMPENSATION AND ETC.
THESE WRIT PETITIONS COMING ON FOR ORDERS AND
HAVING BEEN RESERVED FOR ORDERS ON 19.02.2026, THIS DAY,
THE COURT PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
CAV ORDER
1. WP No.8296 of 2015, the Petitioner is before this
Court seeking the following reliefs:
i) Issue a writ or order or direction directing the
respondents to remove the sewage pipes laid in the land of
the Petitioner bearing sy.no.81/3 of Hennur Village, Kasaba
Hobli, Bangalore North taluk measuring 1 acre 11 guntas.
ii) Issue a writ or order or direction directing the
respondents to first survey and demarcate the land of the
Petitioner and thereafter install the sewage pipes.
iii) Issue a writ or order or direction directing the
respondents to compensate the petitioners for allowing the
soil erosion in an extent of 13 guntas in the land of the
Petitioner.
iv) Issue a writ or order directing the respondents to erect
a retaining wall enclosing the drain on the eastern side of
the property of the Petitioner so as to avoid soil erosion due
to the open drainage.
v) Issue a writ or order or direction directing the
respondent no.1 to compensate the Petitioner in a sum of
Rs. 10,00,000/- being the expenses towards restoring the
lands to its original status and to remove all the pipes and
other equipments laid by the respondents in the property of
the Petitioner.
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vi) Pass such other order or further orders as this Hon'ble
Court deems fit in the facts and circumstances of the case
and so as to meet the ends of justice and equity.
2. WP No.7754 of 2018, the petitioners are before this
Court seeking the following reliefs:
a) Issue a writ or order declaring S-77 of the BWSSB Act
as unconstitutional to the extent of enabling the
respondents to lay sewer lines in private land without
acquiring the land and without paying compensation.
b) Issue a writ or order or direction directing to pay the
compensation to the petitioners in accordance with
the Right to Fair Compensation, Transparency in Land
Acquisition, Rehabilitation and Resettlement Act,
2013.
c) Pass such other order or orders as this Hon’ble Court
deems fit to pass in the facts and circumstances of
the case and to meet the ends of justice.
3. Facts in WP No.8296/2015 :
3.1. The Petitioner claims to be the absolute owner
in possession of land bearing Survey No.81/3
situated at Hennur Village, Kasaba Hobli,
Bengaluru North Taluk, measuring 1 acre 11
guntas. Conversion of the said land for non-
agricultural purposes was granted under the
Official Memorandum dated 11.02.2003. The
Petitioner has produced the RTC extracts
pertaining to the said survey number along with
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Mutation Entry No.M.R.6/2003-04 in support of
title and possession.
3.2. It is the specific case of the Petitioner that on
the eastern side of the schedule property, there
exists an open drain admittedly belonging to
the Government. According to the Petitioner,
the said drain has no retaining wall and, on
account of continuous erosion over a period of
time, a portion of the Petitioner’s land
measuring approximately 13 guntas has been
washed away and merged with the adjoining
drain area.
3.3. The grievance of the Petitioner is that
respondent No.1 – Bangalore Water Supply and
Sewerage Board sought to lay sewage pipelines
of about 8 feet in diameter through the
aforesaid eroded portion by treating the same
as part of the drain belonging to the BWSSB.
The Petitioner objected to the said action,
contending that the land continued to form part
of the Petitioner’s property and that no pipeline
could be laid therein without acquisition or due
process of law.
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3.4. It is further averred that consequent upon such
objection, respondent No.2 – Assistant
Executive Engineer of the BWSSB lodged a
complaint before the jurisdictional police
alleging obstruction of the work and dumping of
soil in land belonging to the BWSSB. Aggrieved
by the action of the respondents in attempting
to lay the sewage pipeline in the Petitioner’s
land without acquisition or authority of law, the
Petitioner has approached this Court seeking
the reliefs prayed for.
4. Facts in W.P. No.7754/2018:
4.1. The petitioners claim to be the registered
owners and khatedars of land bearing Survey
No.59/3 situated at Nagavara Village,
Bengaluru East Taluk, measuring 1 acre 30
guntas, which is stated to be abutting a nala on
its northern side. According to the petitioners,
the said land was sought to be acquired by the
Government of Karnataka under Section 19 of
the Bangalore Development Authority Act,
1976, for the formation of the Arkavathi Layout
pursuant to the Final Notification dated
23.02.2004, which subsequently came to be
modified by notification dated 18.06.2014. It is
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stated that petitioner No.1 had questioned both
the original acquisition notification as well as
the modification notification in W.P.
No.8277/2015, wherein an order directing
maintenance of the status quo has been
granted by this Court.
4.2. The petitioners further contend that respondent
No.2 – Bangalore Water Supply and Sewerage
Board, without initiating proceedings in
accordance with the provisions of the BWSSB
Act, unlawfully entered upon the schedule
property and laid pipelines measuring about 5
feet in diameter without obtaining the consent
of the petitioners. It is also alleged that the
respondent authorities brought construction
materials to erect chambers of approximately 5
feet in dimension within the property.
4.3. According to the petitioners, when they
questioned the action of the respondents, they
were informed that the pipelines were intended
for carrying treated water from the Nagenahalli
Sewage Treatment Plant to Rampur near Malur,
and that the BWSSB was empowered to enter
upon any land and lay pipelines therein without
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obtaining consent of the landowner and without
payment of compensation. The respondents are
stated to have traced such authority to Sections
76 and 77 of the BWSSB Act. Aggrieved by the
aforesaid exercise of power and the alleged
unauthorised interference with the scheduled
property, the petitioners have approached this
Court seeking the reliefs prayed for.
5. The submission of Sri.A.Sampath, learned counsel for
the Petitioner in both the matters, is that,
5.1. The respondents – Bangalore Water Supply and
Sewerage Board, without conducting any
survey and without acquiring the lands of the
petitioners in a manner known to law, have
either attempted to lay or have in fact laid
sewerage pipelines through the respective
properties of the petitioners. According to the
petitioners, such action would result in
dispossession and substantial interference with
their proprietary rights without adherence to
due process of law and in the absence of
acquisition proceedings, thereby offending
Article 300A of the Constitution of India.
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5.2. It is further contended that the powers
available to the officers of the BWSSB under
the provisions of the BWSSB Act are confined to
entering upon private property only for the
purpose of carrying out temporary works and,
upon completion of such works, the authorities
are required to remove all equipment, pipes,
drainage structures and restore the land.
Therefore, the attempt made by the
respondents in W.P. No.8296/2015 to lay
drainage pipelines and the action already
undertaken in W.P. No.7754/2018 in laying such
pipelines are stated to be wholly contrary to
law. According to the petitioners, by such
unilateral acts, the respondents have unlawfully
interfered with the petitioners’ constitutional
and proprietary rights over the schedule
properties.
5.3. Learned counsel for the petitioners further
submits that though the BWSSB may possess
an absolute right to lay sewers under, along or
across lands belonging to the State or its
instrumentalities, no such unrestricted
authority is available in respect of privately
owned lands. It is contended that insofar as
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private properties are concerned, the
respondents are required to acquire the land or
obtain lawful rights in a manner recognised by
law before undertaking any permanent work
such as laying underground sewerage pipelines.
5.4. He refers to Section 127-A of the BWSSB Act,
which is reproduced hereunder for easy
reference:
127A. Acquisition of land .- (1) Subject to the
provisions of this Act and with the previous
approval of the State Government, the Board
may enter into an agreement with the owner of
any land or any interest therein situated within
or outside the Bangalore Metropolitan area on
such terms and at such price as may be
approved to purchase and hold such immovable
property or any interest therein for the purpose
of this Act.
(2) The State Government having powers of
acquisition under Land Acquisition Act,1894 or
any other Act for the time being in force may,
at the request of the Board procure the
acquisition of any immovable property and such
acquisition shall be deemed to be for public
purpose.
(3) For the purpose of sub-section (2) of section
50 of the Land Acquisition Act, 1894, the
Authority shall be deemed to be the Local
Authority concerned.
(4) After the land vests with the State
Government under section 16 of the Land
Acquisition Act, 1894, the Deputy Commissioner
shall upon payment of the cost of acquisition
and upon the Board agreeing to pay any further
costs which may be incurred on account of
acquisition transfer the land to the Board and
the land shall there upon vest with the Board.
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5.5. Learned counsel for the petitioners further
places reliance on Section 127A of the BWSSB
Act relating to acquisition of land by the Board.
By referring to the said provision, it is
contended that whenever the Bangalore Water
Supply and Sewerage Board requires any
private land for the purposes of the Act, the
same can be secured either by entering into an
agreement with the land owner with the prior
approval of the State Government or by
resorting to acquisition proceedings through the
State Government under the provisions of the
Land Acquisition Act. The provision further
contemplates vesting of the acquired land in
the Board upon payment of acquisition costs.
5.6. Placing emphasis on Section 127A of the
BWSSB Act, learned counsel submits that
whenever private land is sought to be utilised
by the BWSSB for laying pipelines or for any
other permanent infrastructure, compensation
in accordance with the provisions of the Right
to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement
Act, 2013 is required to be paid. It is contended
that failure to exercise the power of eminent
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domain in the manner known to law and the
omission to pay compensation would render the
action of the respondents arbitrary,
unconstitutional and violative of the petitioners’
right to property guaranteed under Article 300A
of the Constitution of India.
5.7. He refers to Section 39 of the BWSSB Act,
which is reproduced hereunder for ease
reference:
39. Power to lay mains .—(1) Notwithstanding
anything contained in the Karnataka Municipal
Corporations Act, 1976] 1 or any other law for
the time being in force, the Board may lay a
main whether within or without the local limits
of the Bangalore Metropolitan Area,—
(a) in any street or any land vested in the
Government, the Bruhat Bangalore Mahanagara
Palike or any other local authority or any
Corporation owned or controlled by the
Government;
(b) with the consent of every owner and
occupier of any land not forming part of a
street, in, over or on that land, and may, from
time to time, inspect, repair, alter or renew or
may at any time remove any main so laid
whether by virtue of this section or otherwise:
Provided that where a consent required for the
purpose of this sub-section is withheld, the
Board may, after giving the owner or occupier
of the land a written notice of its intention so to
do, lay the main in, over or on that land even
without such consent.
(2) Where the Board, in exercise of the powers
under this section, lays a main in, over or on
any land not forming part of a street or land
referred to in clause (a) of sub-section (1), or
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inspect, repair, alter, renew or remove a main
so laid down in, over or on any such land, it
shall pay compensation to every person
interested in that land for any damage done to,
or injurious affection of that land by reason of
the inspection, laying, repair, alteration,
renewal or removal of the main.
5.8. Learned counsel for the petitioners also places
reliance on Section 39 of the BWSSB Act
relating to the power of the Board to lay mains.
By referring to the said provision, it is
contended that though the Bangalore Water
Supply and Sewerage Board is empowered to
lay mains in streets and lands vested in the
Government, local authorities or Government-
controlled corporations, insofar as private lands
are concerned, the statute itself recognises the
rights of landowners and provides for payment
of compensation for any damage caused or
injurious affection occasioned to such land.
5.9. Learned counsel submits that Section 39
specifically contemplates payment of
compensation to the owner or interested
person whenever water mains are laid in, over
or upon private land not forming part of a
street. It is therefore contended that there
cannot be any distinction between laying of
water pipelines and sewerage pipelines so as to
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deny compensation in the latter case. According
to him, if compensation is statutorily payable in
respect of laying of water mains, the same
principle must equally apply to sewerage lines,
particularly when the laying of such pipelines
results in permanent restriction on the use and
enjoyment of private property.
5.10. It is further submitted that the expression
“damage” occurring in Section 39(2) is required
to receive a broad and purposive interpretation.
Learned counsel contends that once
underground water or sewerage pipelines are
laid beneath private land, the owner is
substantially deprived of full beneficial
enjoyment and unrestricted use of the property,
thereby causing continuing injury and
diminution in utility of the land. Such
deprivation, according to him, amounts to
“damage” or “injurious affection” within the
meaning of the provision and consequently
necessitates acquisition of the land or payment
of appropriate compensation in accordance with
law.
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5.11. Learned counsel additionally submits that apart
from the actual extent occupied by the
pipelines, further adjoining land is required to
be kept free for purposes of inspection,
maintenance, repair and access to the
pipelines. As a result, the landowner is
effectively deprived of the use and enjoyment
even of the surrounding area, thereby causing
further encroachment upon proprietary rights
for which due compensation is liable to be paid.
5.12. Referring once again to Section 127A of the
BWSSB Act, learned counsel for the petitioners
submits that the said provision specifically
provides a mechanism for acquisition of land
required for the purposes of the Act. According
to him, the very incorporation of Section 127A
in the statute clearly indicates the legislative
intent that whenever private land is required
for implementation of any scheme or
infrastructure work under the Act, including the
laying of water mains or sewerage pipelines,
such land is required to be acquired in
accordance with law.
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5.13. It is therefore contended that the respondents
cannot bypass the statutory mechanism
contemplated under Section 127A and proceed
to utilise private property without acquisition,
consent or payment of compensation. Learned
counsel submits that any contrary
interpretation would render the protection
afforded to private property rights under Article
300A of the Constitution illusory and would
permit the deprivation of property without
authority of law.
5.14. He refers to Sections 76 and 77 of the BWSSB
Act, which are reproduced hereunder for easy
reference:
76. Buildings and private streets not to be
erected or constructed over sewers
without permission .— (1)No private street
shall be constructed and no building, wall, fence
or other structure shall be erected on any Board
sewer constructed or maintained by, or vested
in the Board. Even where a structure is built
near a sewer there shall be a minimum
clearance of 1.0 meter or half the dia-meter of
the sewer (whichever is greater) from the edge
of the sewer or manhole on the sewer.
(2) If any private street be constructed or any
building, wall, fence or structure erected in
contravention of the above, the Board may
remove or otherwise deal with the same as it
thinks fit.]
(3) The expenses incurred by the Board in so
doing shall be paid by the owner of the private
street or of the building, fence, wall or other
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structure or, as the case may be, by the person
offending and shall be recoverable as an arrear
of charges payable under this Act.
77. Rights of user of property for sewers .—
(1) The Board may place and maintain sewers
over, under, along or across any immovable
property whether within or without the local
limits of the Bangalore Metropolitan Area,
without acquiring the same, and may at any
time for the purpose of examining, repairing,
altering or removing any sewers enter on any
property over, under, along or across which the
sewers have been laid:
Provided that the Board shall not acquire any
right other than a right of user in the property
over, under, along or across which any sewer is
laid.
(2) In the exercise of the powers conferred
upon it by this section, the Board shall cause as
little damage as may be possible, and shall
make full compensation for any damage caused
by it.
5.15. Learned counsel for the petitioners further
places reliance on Sections 76 and 77 of the
BWSSB Act relating to restrictions on
construction over sewers and the right of user
of property for laying sewers. Referring to the
said provisions, it is contended that though
Section 77 enables the Bangalore Water Supply
and Sewerage Board to place and maintain
sewers over, under, along or across immovable
property without acquisition of the land, the
said provision cannot be read in isolation and is
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required to be construed harmoniously with
Section 127A of the Act.
5.16. Learned counsel submits that Sections 76 and
77 must necessarily be read conjointly with
Section 127A, which specifically provides for
acquisition of land required for the purposes of
the Act. According to him, the provisions of
Sections 76 and 77 cannot be interpreted as
conferring an unrestricted authority upon the
BWSSB to permanently utilise private property
for laying water or sewerage pipelines without
acquisition or payment of compensation.
5.17. It is his submission that if Section 77 is
interpreted to mean that the BWSSB may,
without acquisition, permanently lay sewer
lines beneath private property and continue to
exercise rights of access, maintenance and
control over such land, the same would result
in arbitrary discrimination and would fall foul of
Article 14 of the Constitution of India. Learned
counsel contends that such an interpretation
would also amount to deprivation of property
without authority of law and thereby violate
Article 300A of the Constitution.
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5.18. According to him, the respondents cannot rely
upon Section 77 to circumvent the statutory
mechanism contemplated under Section 127A
for acquisition of land. He therefore submits
that Section 77 must either be read down as
conferring only a limited and temporary right of
user, subject to acquisition and payment of
compensation where permanent deprivation
occurs, or otherwise any broader interpretation
of the provision would render it constitutionally
vulnerable.
5.19. He refers to Section 63 of the BWSSB Act,
which is reproduced hereunder for easy
reference:
63. Vesting of sewers, etc., in Board.— (1)
On and from the date of coming into force of
this Chapter, all public sewers, all sewers in,
alongside or under any public street within the
Bangalore Metropolitan Area, and all sewage
disposal works whether constructed out of the
municipal fund of the Bruhat Bangalore
Mahanagara Palike of the Bruhat Bangalore
Mahanagara or otherwise, and all works,
materials and things appertaining thereto, shall
vest in the Board.
(2) All public and other sewers which are vested
in the Board are hereafter in this Act referred to
as Board sewers.
(3) For the purposes of enlarging, deepening or
otherwise repairing or maintaining any such
sewer or sewage disposal work so much of the
sub-soil appertaining thereto as may be
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necessary for the said purpose shall be deemed
also to vest in the Board.
(4) All sewers and ventilation-shafts, pipes and
all appliances and fittings connected with the
sewerage works constructed, erected or set up
out of the municipal fund of the Bruhat
Bangalore Mahanagara Palike in or upon
premises not belonging to the Bruhat Bangalore
Mahanagara Palike whether,—
(a) before or after the commencement of this
Act, and
(b) for the use of the owner or occupier of such
premises or not, shall, unless the Bruhat
Bangalore Mahanagara Palike has otherwise
determined, or does at any time otherwise
determine, vest in the Board.
5.20. Learned counsel for the petitioners also places
reliance on Section 63 of the BWSSB Act
relating to vesting of sewers and sewage
disposal works in the Bangalore Water Supply
and Sewerage Board. Referring to the said
provision, it is contended that all public sewers,
sewage disposal works and all works, materials
and things appertaining thereto vest in the
Board. Sub-section (3) further provides that so
much of the sub-soil as may be necessary for
purposes of enlarging, deepening, repairing or
maintaining such sewerage works shall also be
deemed to vest in the Board.
5.21. Placing reliance on the Section 63, learned
counsel submits that once sewer lines are laid
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beneath private property, the sewerage
infrastructure together with the necessary sub-
soil and incidental rights effectively vest in the
Board. According to him, the consequence of
such vesting is that the landowner is
substantially divested of full proprietary control
and beneficial enjoyment over the affected
portion of land.
5.22. It is therefore contended that if the
respondents seek to create permanent
sewerage infrastructure beneath private
property, coupled with continuing rights of
access, maintenance and control, such action
necessarily requires acquisition of the land or
creation of lawful rights in accordance with
Section 127A of the BWSSB Act and the
applicable land acquisition laws. Learned
counsel submits that the respondents cannot,
under the guise of exercising a mere “right of
user” under Section 77, permanently
appropriate private property while
simultaneously asserting vesting rights under
Section 63.
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5.23. Referring to Section 76 of the BWSSB Act,
learned counsel submits that wherever a sewer
line is laid, the statute mandates maintenance
of a minimum clearance of one metre or half
the diameter of the sewer, whichever is greater,
from the edge of the sewer or manhole, within
which no construction can be put up. According
to him, the restriction is therefore not confined
merely to the exact extent of land beneath
which the sewer pipeline passes, but also
extends to the adjoining buffer area which is
required to be kept permanently free from
construction activity.
5.24. It is contended that the effect of such statutory
restrictions is that the petitioners are effectively
deprived of full use and enjoyment not only of
the land directly occupied by the sewer line, but
also of the surrounding area over which
developmental and construction activities stand
prohibited. Learned counsel submits that such
deprivation substantially curtails the proprietary
and developmental rights of the landowners
and, in practical terms, results in permanent
appropriation of the affected portions of land.
According to him, once such restrictions are
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imposed and continuing rights of maintenance,
access and control are exercised by the
Bangalore Water Supply and Sewerage Board,
the affected area together with the adjoining
clearance area contemplated under Section 76
effectively stands vested with the Board in
terms of Section 63 of the BWSSB Act, thereby
necessitating acquisition and payment of
compensation in accordance with law.
5.25. Drawing a comparison with Section 16 of the
Indian Telegraph Act, 1885 and Section 10 of
the Petroleum and Minerals Pipelines
(Acquisition of Right of User in Land) Act, 1962,
learned counsel submits that in cases involving
laying of telegraph lines, electricity
transmission lines or petroleum and gas
pipelines, the statutes expressly contemplate
assessment and payment of compensation to
the landowner for the right of user acquired
over private property. However, according to
him, insofar as laying of sewer lines by the
BWSSB is concerned, the respondents seek to
exercise similar rights over private property
without any acquisition proceedings or
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structured mechanism for assessment and
payment of compensation.
5.26. It is therefore contended that such differential
treatment lacks any rational basis and results in
arbitrary and discriminatory classification,
thereby offending Articles 14 and 300A of the
Constitution of India. In support of the said
submission, learned counsel places reliance on
the decision of the Division Bench of this Court
in He refers to the decision of the Division
Bench of this court in Sri.D.Suresh Kumar
and another -v- Karnataka Power
1
Transmission Corporation Limited , more
particularly para 12 thereof, which is
reproduced hereunder for easy reference:
12. In the present case, the corporation has drawn
transmission lines and have erected a tower in an area
measuring 30ft x 40ft in the land of the land
losers/petitioners. On account of the overhead lines, the
land losers/petitioners are deprived of undertaking any
industrial activity below the overhead lines and therefore to
that extent, they are deprived of the usage and utility of
the land. This deprivation shall continue so long as the
overhead lines exist over the property of the land
losers/petitioners. Having regard to the judgment of the
Apex court in the case of Kerala State Electricity board
(Supra) it cannot be gainsaid that there is dimension of the
value of the property over which the overhead lines are
drawn. In the instant case, the property of the land
losers/petitioners lie adjacent to the NH-4 since a portion
of the land is acquired by the National Highway Authorities
1
WA No.373/2012 c/w WA No.550/2012 DD. 16.03.2021
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for the purpose of widening the Highway. Thus, the
property in question has a high potential and having regard
to the fact that the overhead line passes through the
middle of the land of the land losers/petitioners and having
regard to the fact that the National Highway Authority has
determined the market value at Rs.75/- per sq.ft., it is
appropriate in the present case too, having regard to the
peculiar facts and circumstances of the case, the market
value is determined at a sum of Rs.75/- per sq.ft. Since the
area covered by the overhead lines is around 24 guntas of
land and having regard to the fact that the land
losers/petitioners are deprived of the usage of this area
forever, they are entitled to compensation at the rate of
Rs.75/- per sq.ft. Since the tower is constructed within 24
guntas of land, the question of granting any compensation
towards the area occupied by the tower would not arise.
Thus the land losers/petitioners are entitled to a sum of
Rs.19,60,200/- as compensation towards the deprivation of
the use of 24 guntas of land belonging to them. The land
losers/petitioners are entitled to interest at rate of 12%
p.a. from the date of drawing the overhead lines till the
date of payment.
1
5.27. By Relying on Sri.D.Suresh Kumar’s case ,
learned counsel submits that whenever
statutory authorities substantially interfere with
proprietary rights by creation of permanent
infrastructure or restrictive user rights over
private land, compensation commensurate with
such deprivation is constitutionally required to
be paid.
5.28. On the basis of the aforesaid submissions,
learned counsel contends that the actions of
the respondents in entering upon the
petitioners’ lands and laying sewerage pipelines
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without acquisition, consent or payment of
compensation are wholly illegal and
unconstitutional. He therefore submits that the
reliefs sought for in the present writ petitions
are liable to be granted.
6. Shri. K.B.Monesh Kumar, learned counsel appearing
for the respondents would submit that,
6.1. Learned counsel for the respondents contends
that both the writ petitions are wholly
misconceived, not maintainable in law and are
liable to be dismissed in limine. Referring to
Section 26 of the BWSSB Act, he submits that
all works connected with the supply of water
and sewerage infrastructure vest with the
Bangalore Water Supply and Sewerage Board.
6.2. He refers to Section 39 of the BWSSB Act ,
which is reproduced hereunder for easy
reference:
39. Power to lay mains.
(1) Notwithstanding anything contained in
the City of Bangalore Municipal
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Corporation Act, 1949, or any other law
for the time being in force, the Board
may lay a main whether within or
without the local limits of the Bangalore
Metropolitan Area,-
(a) in any street or any land vested
in the Government, the
Corporation or any other local
authority or any corporation
owned or controlled by the
Government;
(b) with the consent of every owner
and occupier of any land not
forming part of a street, in, over
or on that land,
and may, from time to time, inspect,
repair, alter or renew or may at any time
remove any main so laid whether by virtue
of this section or otherwise:
Provided that where a consent
required for the purpose of this sub-section
is withheld, the Board may, after giving the
owner or occupier of the land a written
notice of its intention so to do, lay the main
in, over or on that land even without such
consent.
(2) Where the Board, in exercise of the
powers under this section, lays a main
in, over or on any land not forming part
of a street or land referred to in clause
(a) of sub-section (1), or inspect, repair,
alter, renew or remove a main so laid
down in, over or on any such land, it
shall pay compensation to every person
interested in that land for any damage
done to, or injurious affection of that
land by reason of the inspection, laying,
repair, alteration, renewal or removal of
the main.
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6.3. By referring to the said provision, learned
counsel submits that Section 39 begins with a
non-obstante clause and expressly empowers
the Board to lay mains within or outside the
Bangalore Metropolitan Area, including over
private lands. He submits that under Section
39(1)(b), the Board is authorised to lay mains
in, over or on private land and, even in cases
where consent is withheld by the owner or
occupier, the proviso empowers the Board, after
issuance of written notice, to proceed with
laying of the main notwithstanding such refusal
of consent.
6.4. Elaborating further on Section 39, learned
counsel submits that the statutory scheme
itself recognises and authorises the exercise of
such power by the Board and simultaneously
provides a complete mechanism for payment of
compensation. Referring to Section 39(2), he
contends that where the Board lays a main in,
over or on private land or undertakes
inspection, repair, alteration, renewal or
removal thereof, the Board is only required to
compensate the landowner or interested person
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for “damage done” or “injurious affection”
caused to the land on account of such activity.
6.5. It is therefore his submission that the statute
does not contemplate acquisition of the land
itself merely because pipelines are laid beneath
or across private property. According to him,
the right conferred upon the Board is only a
statutory right of user and not one of
acquisition or transfer of ownership. Hence, the
only compensation payable is compensation for
actual damage or injurious affection caused to
the land and not compensation equivalent to
compulsory acquisition of the property.
6.6. Learned counsel submits that so long as
compensation for any actual damage suffered is
paid in accordance with Section 39(2), the
action of the respondents cannot be termed
illegal or unconstitutional
6.7. Learned counsel for the respondents also places
reliance on Section 63 of the BWSSB Act to
contend that all sewerage works, sewers,
pipelines, materials and things appertaining
thereto vest in the Bangalore Water Supply and
Sewerage Board by operation of statute.
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According to him, once sewerage infrastructure
is laid by the BWSSB in exercise of powers
conferred under the Act, the same statutorily
vests with the Board together with all incidental
rights necessary for operation, maintenance
and repair.
6.8. It is therefore contended that the petitioners
cannot assert any proprietary claim over the
sewerage infrastructure or interfere with the
exercise of statutory powers by the BWSSB in
respect thereof. Learned counsel submits that
such vesting is not the result of acquisition of
ownership of the land itself, but only a
statutory consequence attaching to the
sewerage works executed by the Board, and
therefore the petitioners cannot seek to restrain
the respondents from exercising powers
expressly conferred under the BWSSB Act.
6.9. He refers to Section 64 of the BWSSB Act,
which is reproduced hereunder for easy
reference:
64. Control of sewers and sewage disposal
works .—(1) All Government sewers, all sewage
disposal works and all works, materials and
things appertaining thereto shall be under the
control of the Board.
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(2) The Board shall maintain and keep in repair
all Board sewers and sewage disposal works
and shall construct as many new drains and
sewage disposal works as may from time to
time be necessary for effectual sewerage and
sewage disposal of the Bangalore Metropolitan
Area.
6.10. Learned counsel for the respondents further
places reliance on Section 64 of the BWSSB Act
relating to control of sewers and sewage
disposal works. Referring to the said provision,
he submits that all Government sewers, sewage
disposal works and all works, materials and
things appertaining thereto are placed under
the control of the Bangalore Water Supply and
Sewerage Board. He further submits that the
statute casts a mandatory obligation upon the
Board to maintain, repair and expand sewerage
infrastructure and to construct new drains and
sewage disposal works as may be necessary for
effective sewerage and sewage disposal within
the Bangalore Metropolitan Area.
6.11. Placing reliance on Section 64, learned counsel
submits that the control and management of
sewerage infrastructure vest statutorily with
the BWSSB and such vesting is integral to
discharge of the public functions entrusted to
the Board under the Act. According to him,
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once sewerage works are laid and brought
under the control of the Board in exercise of
statutory powers, the petitioners cannot assert
any competing claim so as to obstruct or
restrain the functioning of the Board.
6.12. He submits that the vesting contemplated
under Section 64 is statutory in nature and
operates independent of any private claim over
the land across which the sewer lines pass.
Therefore, according to him, the petitioners
cannot challenge the authority of the Board to
lay, maintain and control sewerage
infrastructure in exercise of powers expressly
conferred under the BWSSB Act.
6.13. He refers to Section 92 of the BWSSB Act,
which is reproduced hereunder for easy
reference:
92. Power to enter land adjoining land in
relation to any work. —(1) The Chief
Engineer, the Water Supply Engineer, the
Sanitary Engineer or any officer authorised in
this behalf by the Board or empowered in this
behalf by or under any provision of this Act,
may enter on any land within fifty metres of
any work authorised by or under this Act with
or without assistants and workmen for the
purpose of depositing thereon any soil, gravel,
stone or other materials or for obtaining access
to such work or for any other purposes
connected with the execution of the same.
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(2) The person so authorised shall, before
entering on any such land, state the purpose
thereof, and shall, if so required by the owner
or occupier thereof, fence off so much of the
land as may be required for such purpose.
(3) The person so authorised shall, in exercising
any power conferred by this section, do as little
damage as may be, and compensation shall be
payable by the Board in accordance with
regulations made in this behalf to the owner or
occupier of such land or to both for any such
damage, whether permanent or temporary.
6.14. Learned counsel for the respondents further
places reliance on Section 92 of the BWSSB Act
relating to the power of entry upon lands
adjoining works undertaken by the Board.
Referring to the said provision, he submits that
the statute expressly authorises the Chief
Engineer, Water Supply Engineer, Sanitary
Engineer or any officer duly authorised by the
Bangalore Water Supply and Sewerage Board to
enter upon any land situated within a radius of
fifty metres from any work authorised under
the Act. Such entry, according to him, may be
undertaken with or without assistants,
labourers or workmen for purposes connected
with execution of the work, including depositing
soil, gravel, stones or construction materials,
securing access to the work site and carrying
out all ancillary activities connected with
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execution, inspection, maintenance and
completion of the project.
6.15. Learned counsel submits that Section 92 is
indicative of the broad statutory powers
consciously conferred upon the BWSSB by the
legislature in recognition of the practical
necessities involved in establishment and
maintenance of water supply and sewerage
infrastructure in a metropolitan city. He submits
that sewerage systems, trunk pipelines,
disposal lines and treatment infrastructure
necessarily traverse vast stretches of public and
private lands and, therefore, the legislature has
deliberately conferred extensive rights of
access and user upon the Board to ensure
effective implementation of public utility
projects without undue obstruction.
6.16. He further submits that Section 92 itself
incorporates safeguards protecting private
landowners inasmuch as the authorised officer
is required, prior to entering upon the land, to
disclose the purpose of entry and, if demanded
by the owner or occupier, to fence off the
required area. Sub-section (3) of Section 92
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additionally mandates that the authorities shall
cause as little damage as possible while
exercising such powers and further provides for
payment of compensation for any permanent or
temporary damage caused to the landowner or
occupier. According to him, the legislative intent
is therefore clear that the statute does not
contemplate acquisition of ownership rights in
every case where statutory works are
undertaken on or beneath private property, but
instead provides for a regulated statutory right
of entry and user coupled with compensation
for damage actually caused.
6.17. Elaborating further, learned counsel submits
that the powers conferred under Sections 39,
76, 77 and 92 of the BWSSB Act are required to
be construed harmoniously and purposively
keeping in view the object and scheme of the
enactment. According to him, the primary
object of the BWSSB Act is to enable planned
development, operation and maintenance of
integrated water supply and sewerage systems
for the Bangalore Metropolitan Area, which
constitutes an essential public utility and an
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indispensable component of urban governance,
sanitation and public health.
6.18. He submits that the interpretation canvassed
by the petitioners would render the statutory
scheme wholly unworkable and impracticable. If
the contention of the petitioners were to be
accepted, the Board would be compelled to
initiate compulsory acquisition proceedings
each time a sewer line, water main, trunk
pipeline or ancillary infrastructure is required to
pass beneath or across private property. Such a
requirement, according to him, would make
execution of city-wide sewerage and water
supply projects financially prohibitive,
administratively unmanageable and practically
impossible, thereby paralysing the discharge of
statutory obligations entrusted to the BWSSB.
6.19. Learned counsel submits that Sections 76 and
77 expressly recognise the authority of the
BWSSB to lay and maintain sewer lines over,
under, along or across immovable property
without acquisition of ownership rights. The
proviso to Section 77 specifically clarifies that
the Board shall not acquire any right other than
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a “right of user” in the property through which
the sewer line passes. According to him, the
legislature has consciously distinguished
between acquisition of ownership and
conferment of a limited statutory right of user.
Therefore, the attempt of the petitioners to
equate laying of sewer lines with compulsory
acquisition of land is contrary to the express
language employed by the statute itself.
6.20. He submits that the contention of the
petitioners that permanent works necessarily
require acquisition while temporary works alone
can be executed without acquisition finds no
support either in the text of the statute or in
the overall legislative scheme. According to
him, no such distinction is drawn anywhere
under Sections 39, 76, 77 or 92 of the BWSSB
Act. The statute merely recognises the Board’s
authority to execute works and simultaneously
obligates it to minimise damage and
compensate landowners for actual injury or
injurious affection caused to the land.
6.21. Learned counsel further submits that the
expression “compensation” occurring under
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Sections 39 and 92 cannot be artificially
expanded to mean market-value compensation
payable upon acquisition of ownership rights.
According to him, the compensation
contemplated under the Act is compensatory in
nature for actual physical damage, temporary
disturbance, loss of crops, diminished utility or
injurious affection suffered by the landowner
and not compensation for transfer of title, since
title itself continues to remain with the
landowner. He submits that the petitioners
continue to retain ownership over the lands in
question and only a limited statutory right of
user is exercised by the Board for public
purposes.
6.22. He further contends that the reliance placed by
the petitioners upon Article 300A of the
Constitution is misplaced. According to him,
deprivation of property within the meaning of
Article 300A would arise only where ownership
or possessory rights are taken away without
authority of law. In the present case, the
BWSSB is acting strictly in exercise of statutory
powers expressly conferred by the BWSSB Act,
which itself constitutes “authority of law” within
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the meaning of Article 300A. The statutory
scheme having provided both the source of
power and the mechanism for compensation,
the action of the respondents cannot be
characterised as unconstitutional.
6.23. Learned counsel also disputes the contention
regarding violation of Article 14 of the
Constitution. According to him, the comparison
sought to be made by the petitioners with the
provisions of the Indian Telegraph Act, 1885
and the Petroleum and Minerals Pipelines
(Acquisition of Right of User in Land) Act, 1962
is misconceived inasmuch as those enactments
operate in entirely different statutory contexts
and deal with different classes of infrastructure
and rights. Merely because other enactments
provide distinct mechanisms for determination
of compensation would not render the
provisions of the BWSSB Act discriminatory or
unconstitutional.
6.24. He submits that the powers conferred upon the
BWSSB are intended to secure larger public
interest by ensuring uninterrupted supply of
potable water and effective sewerage
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management to the residents of Bengaluru.
Sewerage and sanitation infrastructure directly
impact public health, environmental protection
and urban administration. Therefore, the
provisions of the BWSSB Act must receive a
practical and purposive interpretation that
advances the object of the legislation rather
than frustrates it.
6.25. Learned counsel therefore submits that the
actions undertaken by the respondents are fully
traceable to statutory authority under the
BWSSB Act, that no acquisition proceedings are
required for exercise of a mere right of user
contemplated under Sections 39 and 77, and
that the petitioners are, at best, entitled only to
compensation for actual damage or injurious
affection, if any, caused to their lands in
accordance with the provisions of the Act.
Consequently, he submits that the writ petitions
being devoid of merit are liable to be dismissed.
6.26. Learned counsel for the respondents further
submits that the provisions of the BWSSB Act
are enacted in furtherance of public interest
and constitute a beneficial piece of legislation
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intended to secure effective water supply and
sewerage management for the residents of the
Bangalore Metropolitan Area. According to him,
the powers conferred upon the Bangalore Water
Supply and Sewerage Board under the Act are
designed to facilitate creation and maintenance
of essential civic infrastructure and therefore
the same are required to receive a liberal and
purposive construction.
6.27. He submits that an individual landowner cannot
seek to frustrate or obstruct implementation of
public utility projects undertaken in larger
public interest merely on the ground that
pipelines or sewerage infrastructure pass
beneath or across private property, particularly
when the statute itself authorises exercise of
such powers and provides for compensation in
cases of actual damage or injurious affection.
According to him, public interest and individual
inconvenience are required to be balanced, and
in matters concerning essential urban
infrastructure, the larger public interest must
prevail.
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6.28. Learned counsel further submits that while
executing such projects, the officers and
engineers of the Board take all necessary
precautions to ensure that minimal disturbance
and damage are caused to the affected
properties. He submits that the Board adopts
technical safeguards and engineering measures
so as to minimise interference with the rights of
landowners and to ensure that the land
continues to remain usable to the maximum
extent possible even after laying of pipelines.
6.29. According to him, the statutory provisions
themselves obligate the Board to cause as little
damage as possible and to compensate affected
persons wherever damage is caused. Therefore,
it cannot be contended that the actions of the
respondents are arbitrary, high-handed or
violative of constitutional rights. He submits
that the exercise of statutory powers by the
BWSSB is guided by public necessity, technical
requirements and statutory safeguards and
hence does not warrant interference in exercise
of writ jurisdiction.
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6.30. He relies upon the daily order dated
20.12.2018 in M. Babanna vs. State of
2
Karnataka , more particularly para 8 and 10
thereof, which are reproduced hereunder for
easy reference:
8. The provisions of Section 77 authorise the
BWSSB to enter any private land for laying,
repairing or re-laying the sewage lines beneath
the private property of the citizens even without
any acquisition. However, for the damage
caused during the accomplishment of said task
to the private property of the citizen, the
Section provides for payment of compensation.
The payment of compensation is not and cannot
be a sine qua non for undertaking the task in
question. The compensation in the text and
context of this Section is nothing but the
damages for the loss caused to the owner of the
property and not for the apprehended loss. An
argument to the contrary would militate against
the content and intent of the said provision. No
ruling is cited to support an otherwise
construction of this provision or any perimateria
provision.
10. The BWSSB is a statutory public body. The
civic life of the city depends upon the functions
of this body. That is the reason why peculiar
and special provisions like Section 77 are made
in the Act. The difficulty of the BWSSB in the
absence of such a provision is easily
understandable. The public interest in which the
BWSSB functions has to have primacy over the
private interest of the persons. It is not that the
legal injury the citizen suffers by the operation
of the agencies of the BWSSB is without
remedy. The Section itself mentions the right
and remedy for its violation. Presently the work
of the BWSSB which is half way through is at
halt because of obstruction by the Petitioner,
2
WP No. 57994/2017, dated 20.12.2019
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presumably on the basis of the interim order
granted in his favour.
6.31. By relying on M.Babanna , he submits that this
Court has already interpreted Section 77 of the
BWSSB Act and recognised the authority of the
Bangalore Water Supply and Sewerage Board to
enter upon private lands for the purpose of
laying, repairing or re-laying sewerage lines
even without resorting to acquisition
proceedings.
6.32. Learned counsel submits that the aforesaid
decision clearly holds that the compensation
contemplated under Section 77 is only
compensation for actual damage caused during
execution of the work and not compensation for
acquisition of land or for any speculative or
apprehended loss alleged by the landowner.
According to him, the Court has specifically
observed that payment of compensation is not
a condition precedent for undertaking sewerage
works and that any interpretation requiring
acquisition of land before laying sewer lines
would defeat the very object and purpose of
the statutory provision.
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6.33. Learned counsel submits that this Court in M.
Babanna has recognised the BWSSB as a
statutory public utility body discharging
essential civic functions upon which the life of
the city depends. This Court has also observed
that provisions such as Section 77 have been
consciously incorporated by the legislature to
enable effective execution of public
infrastructure projects and that larger public
interest must prevail over purely private
interests.
6.34. Learned counsel submits that the controversy
involved in the present petitions is no longer
res integra. According to him, the decision in
M. Babanna clearly affirms the authority of the
BWSSB to lay sewerage lines through private
property in exercise of statutory powers under
Section 77 without undertaking acquisition
proceedings, subject only to payment of
compensation for actual damage or injurious
affection caused during execution of the work.
6.35. He submits that the principles laid down in
M.Babanna squarely apply to the facts of the
present case and completely answer the
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challenge raised by the petitioners under
Articles 14 and 300A of the Constitution.
According to him, the petitioners cannot insist
upon compulsory acquisition merely because
sewerage pipelines pass beneath their lands,
nor can they obstruct execution of public utility
works undertaken by the BWSSB in larger
public interest. He therefore submits that the
writ petitions are liable to be dismissed in terms
of the law laid down in the aforesaid decision.
6.36. He submits that the aforesaid judgement when
taken on appeal the Hon’ble division Bench
dealt with in vide Judgment dated 10.01.2019
3
in M.Babanna vs. State of Karnataka , more
particularly unnumbered para at page No.6
thereof, which is reproduced hereunder for easy
reference:
These intra-court appeals are directed against
the order dated 12.12.2018 passed by the
learned Single Judge in W.P.Nos.57994-
57995/2017, whereby the interlocutory
application filed by the fourth respondent herein
seeking permission to complete the work of the
sewage lines in the Petitioner’s property came
to be allowed.
The Petitioner, being the owner of the property
bearing Sy.No.4 measuring 3 acres 36 guntas
and Sy.No.17/8 situated at Roopena Agrahara
Village, now part of the BBMP area, Bengaluru,
3
WA No.11-12 of 2019 DD 10.01.2019
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has challenged the notification dated
20.11.2017 (Annexure-A) published in the
Gazette on 07.12.2017 (Annexure-A-1) by the
third respondent, whereunder the land to the
extent of 3,257 sq. mtrs. and 311.71 sq. mtrs.
respectively in the abovesaid survey numbers
was sought to be acquired under Section 11(1)
of Right to Fair Compensation and Transparency
in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 (‘the Act’) for the
purposes of widening of the road and laying
sewage pipes by invoking emergency clause
under Section 40(1) of the Act. An interim order
came to be passed on 21.12.2017 by the
learned Single Judge that the Petitioner should
not be dispossessed from the subject property.
However, the respondent Nos.1 to 3 were
permitted to continue with the acquisition
proceedings.
The fourth respondent filed an application under
Section 151 of CPC seeking permission of the
writ Court to enter upon the subject property to
lay new sewage lines by pressing into service
Section 77 of Bangalore Water Supply And
Sewage Board Act, 1964 (‘BWSSB Act’) and
while contending, inter alia, that the Petitioner
though having given consent for laying
underground pipelines, was obstructing and not
allowing the fourth respondent to complete the
work of laying sewage pipes.
The said application came to be resisted by the
Petitioner by filing detailed statement of
objections and the learned Single Judge, after
considering the rival contentions, by order
dated 12.12.2018, has allowed the application
filed by fourth respondent for the reasons that
the Petitioner has given his consent; and that
Section 77 of the BWSSB Act empowers the
fourth respondent to enter any private land for
laying, repairing or re-laying the sewage lines
beneath the private property of the citizen even
without any acquisition. Hence, these intra-
court appeals have been filed by Petitioner
challenging the order dated 12.12.2018.
We have heard Shri D.N.Nanjunda Reddy,
learned Senior Counsel appearing on behalf of
Shri Chidanandayya for the appellant and Shri
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Adithya Sondhi, learned Senior Counsel
appearing on behalf of Shri B.L.Sanjeev for the
caveator/respondent No.4.
It is the contention of Shri D.N.Nanjunda
Reddy, learned Senior Counsel appearing for
the appellant-petitioner that when the
respondents have issued notification for
acquisition of the land, without taking recourse
under the said Act by taking possession of the
property; and without passing award or
depositing the compensation for acquisition of
the subject property; and without even putting
the fourth respondent on terms, the learned
Single Judge ought not to have permitted the
fourth respondent to lay the sewage lines.
Per contra, Shri Adithya Sondhi, learned Senior
Counsel appearing for the caveator/respondent
No.4 would submit that though the interim
order passed in the writ petition by the learned
Single Judge on 21.12.2017 prohibited the
respondents from dispossessing the Petitioner,
but that had not been of prohibiting the
authorities from laying the sewage lines and as
such, in the interest of public and also taking
into consideration the consent given by the
appellant, the said work was undertaken, which
was sought to be obstructed by the appellant. It
is submitted that by way of abundant caution,
the application in question seeking permission
of the writ Court was filed, which has been
granted in the light of Section 77 of the BWSSB
Act and there is no infirmity in the said order
calling for interference. Hence, he prays for
dismissal of the appeals.
Having heard learned counsel for the parties,
we notice that under the order impugned, the
fourth respondent has been permitted to lay the
sewage lines in the subject property i.e.,
beneath the property of the appellant, while
taking note of the fact that Section 77 of the
BWSSB Act enables and empowers the
authority to enter upon any private land for
laying, repairing, altering or re-laying the
sewage lines beneath the private property of
the citizens, even without taking recourse to
any acquisition proceedings; and in the event of
any damage being caused during such task
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being undertaken, it only enables such citizen of
seeking damages from the authority. However,
payment of damages by way of compensation is
not sine qua non for undertaking such task. In
that view of the matter, we find no infirmity in
the impugned order calling for interference.
6.37. By relying on the Division Bench Judgement in
3
M.Babanna , he submits that the Hon’ble
Division Bench, affirmed the view taken by the
learned Single Judge. Referring to the
observations made by the Hon’ble Division
Bench, learned counsel submits that the
appellate Court, after considering the scope and
effect of Section 77 of the BWSSB Act,
categorically held that the provision empowers
the Bangalore Water Supply and Sewerage
Board to enter upon private property for laying,
repairing, altering or re-laying sewerage
pipelines beneath private lands even without
initiating acquisition proceedings.
6.38. Learned counsel submits that the Hon’ble
Division Bench specifically noticed that though
acquisition proceedings had independently been
initiated under the provisions of the Right to
Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement
Act, 2013 for road widening and sewerage
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purposes, the authority of the BWSSB to lay
sewerage lines under Section 77 stood on an
independent statutory footing and did not
depend upon completion of acquisition
proceedings.
6.39. He submits that the Hon’ble Division Bench
accepted the contention advanced on behalf of
the BWSSB that the interim order restraining
dispossession did not prohibit laying of
underground sewerage lines and that Section
77 conferred an independent statutory right
enabling the Board to execute such works in
public interest. Learned counsel points out that
the Hon’ble Division Bench expressly observed
that Section 77 enables the authority to lay
sewerage lines beneath private property “even
without taking recourse to any acquisition
proceedings” and that compensation for
damages is not a sine qua non for undertaking
such work.
6.40. Learned counsel further submits that the
Hon’ble Division Bench also took note of the
fact that the right preserved to the landowner
under Section 77 is essentially a right to seek
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damages or compensation for any injury caused
during execution of the work and not a right to
prevent execution of the project itself.
According to him, the Hon’ble Division Bench
has therefore authoritatively interpreted
Section 77 as creating a statutory right of user
in favour of the BWSSB distinct from acquisition
of ownership rights over the land.
6.41. Relying upon the aforesaid judgment of the
Hon’ble Division Bench in M.Babanna , learned
counsel submits that the controversy involved
in the present writ petitions is squarely covered
against the petitioners. According to him, the
Hon’ble Division Bench has unequivocally
upheld the authority of the BWSSB to enter
upon private lands and lay sewerage pipelines
without resorting to acquisition proceedings and
has further held that the landowner’s remedy is
confined only to seeking compensation for
actual damage caused during execution of the
work.
6.42. He submits that the interpretation sought to be
placed by the petitioners upon Sections 39, 76,
77 and 127A of the BWSSB Act stands directly
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contrary to the law declared in the aforesaid
judgment. According to him, once the Hon’ble
Division Bench has recognised the validity and
enforceability of the statutory right of user
created under Section 77, the petitioners
cannot contend that acquisition proceedings are
mandatory whenever sewer lines are laid
beneath private property.
6.43. Learned counsel therefore submits that the
challenge mounted by the petitioners under
Articles 14 and 300A of the Constitution is
wholly misconceived and contrary to binding
precedent. He submits that the statutory
powers exercised by the BWSSB are in
furtherance of public interest and are protected
by the express provisions of the BWSSB Act as
interpreted by this Court. Consequently, he
prays that the writ petitions be dismissed.
6.44. He relies on the order dated 14.12.2016 of the
Hon'ble Supreme Court in The Power Grid
Corporation of India Limited -v- Century
4
Textiles & Industries Limited and others ,
more particularly paragraphs 14, 19, 20, 21
4
Civil Appeal No.10951/2016
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and 28 thereof, which are reproduced
hereunder for easy reference:
14) It is also of significance that the Division
Bench has not differed with the aforesaid
factual position, including the fact that the
project in question is in public interest and,
therefore, allowed the completion of the
project. Notwithstanding these findings of the
High Court, both by the Single Judge as well as
the Division Bench, argument of the writ
petitioner is that the erection of two towers on
the mining area leased out to the writ petitioner
is going to render a large chunk of mining area
unusable. It is not only going to affect the
supply of limestone to the writ petitioner for the
manufacture of cement, thereby causing
financial loss to the writ petitioner, even the
State Government would be suffering financially
in the form of royalty. It is, thus, argued that
such a loss is also of public nature not only in
financial terms, but in making the valuable
mineral available for production of cement,
which is an essential commodity. On this basis,
it is argued that realignment of the two towers
is a better option, which would sub-serve both
the competing public interests, one projected by
the writ petitioner and the other by the Power
Grid, as cost of realignment of the overhead
lines was barely ₹4.50 crores as against the
loss to the State Exchequer in the sum of ₹120
crores and to the writ petitioner in the
neighbourhood of ₹690 crores and, therefore,
action of the Power Grid is arbitrary, unjust and
unfair as well. It is further submitted that there
is violation of Sections 68 and 69 of the
Electricity Act, 2003 as well as Rules 3 and 10
of the Works of Licensees Rules, 2006
(hereinafter referred to as 'Rules, 2006') in
laying down the overhead lines and, therefore,
the High Court erred in law in permitting the
same.
18) Another submission made was that
permission of the writ petitioner was not
obtained which was needed as per Rule 3 of the
Rules, 2006. Rule 3(a) reads as under:
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“3. Licensee to carry out works. - (1) A licensee
may -
(a) carry out works, lay down or place any
electric supply line or other works in, through,
or against, any building, or on, over or under
any land whereon, whereover or whereunder
any electric supply-line or works has not
already been lawfully laid down or placed by
such licensee, with the prior consent of the
owner or occupier of any building or land.”
19) In the instant case, the aforesaid Rule is
not applicable in view of Section 164 of the
Electricity Act, 2003, which reads as under:
“164. Exercise of powers of Telegraph Authority
in certain cases.-The Appropriate Government
may, by order in writing, for the placing of
electric lines or electrical plant for the
transmission of electricity or for the purpose of
telephonic or telegraphic communications
necessary for the proper co-ordination of works,
confer upon any public officer, licensee or any
other person engaged in the business of
supplying electricity under this Act, subject to
such conditions and restrictions, if any, as the
Appropriate Government may think fit to
impose and to the provisions of the Indian
Telegraph Act, 1885 (13 of 1885), any of the
powers which the telegraph authority possesses
under that Act with respect to the placing of
telegraph lines and posts for the purposes of a
telegraph established or maintained, by the
Government or to be so established or
maintained.”
20) It is not in dispute that in exercise of
powers under the aforesaid provision, the
Appropriate Government has conferred the
powers of Telegraph Authority vide notification
dated December 24, 2003 exercisable under
Indian Telegraph Act, 1885 upon the Power
Grid. It may also be mentioned that a Central
Transmission Utility (CTU) is a deemed licensee
under the second proviso to Section 14 of the
Electricity Act, 2003. Power Grid is a Central
Transmission Utility and is, therefore, a deemed
licensee under the Electricity Act, 2003. This
coupled with the fact that Power Grid is treated
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as Authority under the Indian Telegraph Act,
1885, it acquires all such powers which are
vested in a Telegraph Authority under the
provisions of the Indian Telegraph Act, 1885
including power to eliminate any obstruction in
the laying down of power transmission lines. As
per the provisions of the Indian Telegraph Act,
1885, unobstructed access to lay down
telegraph and/or electricity transmission lines is
an imperative in the larger public interest.
Electrification of villages all over the country
and availability of telegraph lines are the most
essential requirements for growth and
development of any country, economy and the
well-being/progress of the citizens. The
legislature has not permitted any kind of
impediment/ obstruction in achieving this
objective and through the scheme of the Indian
Telegraph Act, 1885 empowering the licensee to
lay telegraph lines, applied the same, as it is,
for laying down the electricity transmission
lines. Powers of the Telegraph Authority
conferred by Sections 10, 15 and 16 of the
Indian Telegraph Act, 1885, stand vested in and
are enjoyed by the Power Grid. These
provisions are reproduced below:
“10. Power for telegraph authority to place and
maintain telegraph lines and posts.— The
telegraph authority may, from time to time,
place and maintain a telegraph line under, over,
along, or across, and posts in or upon, any
immovable property:
Provided that—
(a) the telegraph authority shall not exercise
the powers conferred by this section except for
the purposes of a telegraph established or
maintained by the Central Government, or to be
so established or maintained;
(b) the Central Government shall not acquire
any right other than that of user only in the
property under, over, along, across, in or upon
which the telegraph authority places any
telegraph line or post; and
(c) except as hereinafter provided, the
telegraph authority shall not exercise those
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powers in respect of any property vested in or
under the control or management of any local
authority, without the permission of that
authority; and
(d) in the exercise of the powers conferred by
this section, the telegraph authority shall do as
little damage as possible, and, when it has
exercised those powers in respect of any
property other than that referred to in clause
(c), shall pay full compensation to all persons
interested for any damage sustained by them
by reason of the exercise of those powers.” xx
xx xx “15. Disputes between telegraph
authority and local authority.— (1) If any
dispute arises between the telegraph authority
and a local authority in consequence of the local
authority refusing the permission referred to in
section 10, clause
(c), or prescribing any condition under section
12, or in consequence of the telegraph authority
omitting to comply with a requisition made
under section 13, or otherwise in respect of the
exercise of the powers conferred by this Act, it
shall be determined by such officer as the
1[Central Government] may appoint either
generally or specially in this behalf.
(2) An appeal from the determination of the
officer so appointed shall lie to the Central
Government; and the order of the Central
Government shall be final.” “16. Exercise of
powers conferred by section 10, and disputes as
to compensation, in case of property other than
that of a local authority.— (1) If the exercise of
the powers mentioned in section 10 in respect
of property referred to in clause (d) of that
section is resisted or obstructed, the District
Magistrate may, in his discretion, order that the
telegraph authority shall be permitted to
exercise them.
(2) If, after the making of an order under sub-
section (1), any person resists the exercise of
those powers, or, having control over the
property, does not give all facilities for their
being exercised, he shall be deemed to have
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committed an offence under section 188 of the
Indian Penal Code, 1860 (45 of 1860).
(3) If any dispute arises concerning the
sufficiency of the compensation to be paid
under section 10, clause (d), it shall, on
application for that purpose by either of the
disputing parties to the District Judge within
whose jurisdiction the property is situate, be
determined by him. (4) If any dispute arises as
to the persons entitled to receive compensation,
or as to the proportions in which the persons
interested are entitled to share in it, the
telegraph authority may pay into the court of
the District Judge such amount as he deems
sufficient or, where all the disputing parties
have in writing admitted the amount tendered
to be sufficient or the amount has been
determined under sub-section (3), that amount;
and the District Judge, after giving notice to the
parties and hearing such of them as desire to
be heard, shall determine the persons entitled
to receive the compensation or, as the case
may be, the proportions in which the persons
interested are entitled to share in it.
(5) Every determination of a dispute by a
District Judge under sub-section (3), or sub-
section (4) shall be final:
Provided that nothing in this sub-section shall
affect the right of any person to recover by suit
the whole or any part of any compensation paid
by the telegraph authority, from the person who
has received the same...”
21) Section 10 of the Indian Telegraph Act,
1885 empowers the Telegraph Authority to
place and maintain a telegraph line under, over,
along or across and posts in or upon any
immovable property. The provision of Section
10(b) of the Indian Telegraph Act, 1885 makes
it abundantly clear that while acquiring the
power to lay down telegraph lines, the Central
Government does not acquire any right other
than that of user in the property. Further,
Section 10(d) of the Indian Telegraph Act, 1885
obliges the Telegraph Authority to ensure that it
causes as little damage as possible and that the
Telegraph Authority shall also be obliged to pay
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full compensation to all person interested for
any damage sustained by them by reason of
the exercise of those powers.
28) CIVIL APPEAL NO. 8342 OF 2009
The appellant in this case also raised the issue
of taking prior consent from it, as the owner of
the land, before laying electricity transmission
lines. This argument has been rejected by us
while dealing with the appeal of Century
Textiles & Industries Limited. Accordingly, this
appeal is also dismissed.
6.45. By referring to Century Textiles case, he
submits that the Hon’ble Supreme Court, while
dealing with the powers of the Power Grid
Corporation under the provisions of the
Electricity Act, 2003 read with the Indian
Telegraph Act, 1885, has recognised the
principle that statutory authorities engaged in
execution of essential public utility
infrastructure may exercise a statutory “right of
user” over private property without acquisition
of ownership rights in the land.
6.46. Learned counsel submits that the Hon’ble
Supreme Court, in the aforesaid judgment, has
categorically held that where statutory powers
akin to those conferred under Sections 10 and
16 of the Indian Telegraph Act are vested in a
public utility authority, prior consent of the
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landowner is not an indispensable requirement
and the authority is entitled to enter upon
private lands and execute infrastructure works
in larger public interest. According to him, the
Hon’ble Supreme Court recognised that such
powers are necessary to facilitate uninterrupted
development of essential public infrastructure
and that insistence upon acquisition
proceedings in every case would defeat the
object of the legislation.
6.47. Referring particularly to paragraphs 20 and 21
of the judgment, learned counsel submits that
the Hon’ble Supreme Court has explained the
distinction between acquisition of ownership
rights and conferment of a mere “right of user”.
The Hon’ble Supreme Court observed that the
authority exercising powers under the Indian
Telegraph Act does not acquire title over the
land, but only obtains a limited statutory right
to place and maintain infrastructure under, over
or across the property, coupled with an
obligation to cause minimal damage and
compensate affected persons for actual loss
sustained.
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6.48. Learned counsel submits that the scheme of
Sections 39, 76 and 77 of the BWSSB Act is
substantially analogous to the statutory scheme
considered by the Hon’ble Supreme Court in
Century Textiles. According to him, Section 77
of the BWSSB Act similarly creates a statutory
right of user enabling the Bangalore Water
Supply and Sewerage Board to lay and
maintain sewerage lines beneath or across
private property without acquisition of
ownership rights, while simultaneously
obligating the Board to compensate landowners
for actual damage caused.
6.49. He submits that the ratio laid down by the
Hon’ble Supreme Court clearly supports the
proposition that exercise of statutory right of
user for execution of public infrastructure
projects does not amount to compulsory
acquisition of land and therefore does not
require payment of acquisition compensation
equivalent to market value of the land.
According to him, the only enforceable right
preserved in favour of the landowner is the
right to seek compensation for actual damage,
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diminution or injurious affection caused during
exercise of such statutory powers.
6.50. Placing strong reliance on the judgment in
Power Grid Corporation of India Limited v.
Century Textiles & Industries Limited ,
learned counsel submits that the contentions
advanced by the petitioners stand fully
answered by the principles laid down by the
Hon’ble Supreme Court. According to him, the
Hon’ble Supreme Court has expressly
recognised the primacy of public interest in
matters concerning establishment of essential
infrastructure such as electricity transmission
networks and has held that individual
objections cannot be permitted to obstruct
implementation of public utility projects
authorised by statute.
6.51. He submits that the same principle squarely
applies to the present case, since sewerage and
water supply infrastructure constitute essential
civic amenities directly connected with public
health, sanitation and urban administration.
According to him, if transmission lines for
national infrastructure projects can be laid
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across private lands on the basis of a statutory
right of user without acquisition of ownership
rights, there is no reason why a similar
statutory mechanism under the BWSSB Act
enabling laying of sewerage pipelines should be
construed differently.
6.52. Learned counsel therefore submits that
Sections 39 and 77 of the BWSSB Act are
constitutionally valid and operate in the nature
of statutory easements or rights of user created
in public interest. Such provisions, according to
him, neither violate Article 14 nor Article 300A
of the Constitution, since the statute itself
provides authority of law for exercise of such
powers and also preserves the right of the
landowner to seek compensation for actual
damage suffered. He therefore submits that the
petitioners are not entitled to seek prohibition
against laying of sewerage lines or insist upon
compulsory acquisition of the lands in question.
6.53. He refers to the order dated 13.04.2016 in
G.Chandrashekhar vs. Karnataka Power
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5
Transmission Corporation Limited , more
particularly, para 2 thereof, which is reproduced
hereunder for easy reference:
2. Though writ petition is liable to be dismissed
at the threshold, in view of the power available
to respondent to draw electric lines by entering
upon lands of private citizens for the purpose of
placing of electric supply lines, appliances and
apparatus for the transmission of energy
without consent of owners of such lands as held
by this Court in NAGARAJU vs MAHALINGAPPA
reported in ILR 1990 KAR 1515, this Court is of
the considered view that it would suffice for the
present, if memo filed by respondent is placed
on record and writ petition being disposed of
accordingly, in the light of said memo,
whereunder it is stated by the respondent that
it has executed a scheme of construction of 66
KV D/C line from existing 220/66 KV Sarjapura
Station to link existing 66 KV Chandapura –
Dommasandra S/C Line near Muttanallur village
limits by enclosing the sketch to the said memo
indicating the towers in Location Nos.34, 34A
and 35 which is situated at northern side of the
land bearing Sy.No.17 of Gopasandra Village,
Sarjapura Hobli, Anekal Taluk. Said memo also
indicates that respondent has already erected
tower in Location No.34 and stubbing work in
Location Nos.34A and 35 has been completed.
5
6.54. By referring to G.Chandrasekhar's case, he
submits that a co-ordinate bench of this Court,
while dealing with the powers of the Karnataka
Power Transmission Corporation Limited to
draw electric transmission lines through private
lands, reiterated the settled principle that
5
WP No.19886/2016 & 21770/2016 dd 13.04.2016
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statutory authorities engaged in execution of
public utility infrastructure possess the
authority to enter upon private property and
carry out such works even without obtaining
the consent of the landowner.
6.55. Learned counsel points out that in the said
decision, reliance had been placed upon the
earlier judgment of this Court in Nagaraju vs.
6
Mahalingappa , wherein it was held that the
competent authority possessed statutory power
to enter private lands for placing electric supply
lines, towers, appliances and apparatus
necessary for transmission of electricity.
According to him, the Court recognised that
exercise of such powers is an incident of
statutory authority conferred in public interest
and that individual objections cannot override
execution of essential infrastructure projects.
6.56. He submits that the aforesaid judgment once
again affirms the distinction between
acquisition of ownership rights over land and
conferment of a limited statutory right to use
the land for execution of public utility works.
6
ILR 1990 KAR 1515
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According to him, the reasoning adopted in the
said decision squarely applies to the present
case involving laying of sewerage pipelines by
the Bangalore Water Supply and Sewerage
Board.
6.57. By relying upon the decision in
5
G.Chandrashekhar , learned counsel submits
that the legal position is well settled that where
statutory powers are conferred upon public
utility authorities for execution of infrastructure
projects, prior consent of the landowner is not
an indispensable prerequisite unless expressly
mandated by the statute. According to him, the
authority of the BWSSB under Sections 39 and
77 of the BWSSB Act stands on the same
footing as the powers exercised by electricity
transmission authorities under the Electricity
Act and the Indian Telegraph Act.
6.58. He submits that the petitioners cannot seek to
prevent or stall execution of sewerage projects
merely because the pipelines traverse private
lands, particularly when the statute itself
confers a right of user upon the BWSSB and
provides a mechanism for payment of
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compensation for actual damage caused.
Learned counsel therefore contends that the
petitioners are not entitled to the reliefs sought
for and that the writ petitions deserve to be
dismissed.
6.59. He refers to the decision of the judgment of the
High Court of Judicature at Madras in
Ponnusamy and others -v- The Union of
7
India and others , more particularly para 13
at page No.53, 14 at page No.54 and again
Para 14 at page No.66, thereof, are reproduced
hereunder for easy reference:
13. Section 10 that grants authority only for
the limited purpose of establishing or
maintaining a telegraph. It does not provide
any other right to the telegraph authority. It is
only a user in respect of the property over,
which a telegraph line passes. By exercising
such power, the authority does not become
owner of the property and all that it gets is
right of user of the property. The Section does
not contemplate any notice or hearing before
exercising such power to draw a telegraph line,
although it envisages payment of
compensation. However, it would not make
exercise of power under Section 10, arbitrary or
violative of the principles of Natural Justice as
contemplated under Articles 14 and 21 of the
Constitution. The right to property under Article
300A is a Constitutional right. It is not absolute
and it can be taken away by authority of law.
7
WP No.19113/2020 and W.M.P. Nos.23689 & 23693 of 2020 DD
10.03.2021
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14. But Section 10 of the Telegraph Act, 1885,
does not take away any right to property. It
only creates some restrictions on the enjoyment
of right to property by creating a right of user in
the telegraph authority. Proviso (a) to Section
10 restricts the power of the telegraph authority
only to the draw a telegraph line. It does not
grant the Authority provision to use the power
for any other purpose. The object is to provide
to the Government or to any other licensee to
place telegraph lines and posts which are
projects, eminently in public interest. Further,
under Proviso (d) the Authority should cause as
little damage as possible while undertaking the
work. It also mandates that the Authority must
pay compensation to the affected person for the
damage caused by reason of exercise of the
power. Thus, Section 10 prescribes a just and
fair procedure for placing limitations on full
enjoyment of property. It therefore, cannot be
said to be arbitrary and violative of Articles 14
and 21 or 300-A of the Constitution of India,
just because it does not contain any provision
for issuance of notice or giving hearing to
affected person before the work is undertaken.
14. But Section 10 of the Telegraph Act, 1885,
does not take away any right to property. It
only creates some restrictions on the enjoyment
of right to property by creating a right of user in
the telegraph authority. Proviso (a) to Section
10 restricts the power of the telegraph authority
only to the draw a telegraph line. It does not
grant the Authority provision to use the power
for any other purpose. The object is to provide
to the Government or to any other licensee to
place telegraph lines and posts which are
projects, eminently in public interest. Further,
under Proviso (d) the Authority should cause as
little damage as possible while undertaking the
work. It also mandates that the Authority must
pay compensation to the affected person for the
damage caused by reason of exercise of the
power. Thus, Section 10 prescribes a just and
fair procedure for placing limitations on full
enjoyment of property. It therefore, cannot be
said to be arbitrary and violative of Articles 14
and 21 or 300-A of the Constitution of India,
just because it does not contain any provision
for issuance of notice
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https://www.mhc.tn.gov.in/judis/ or giving
hearing to affected person before the work is
undertaken.
7
6.60. By referring to Ponnusamy’s case, he
submits that the Hon’ble Madras High Court,
while interpreting Section 10 of the Indian
Telegraph Act, 1885, has categorically held that
the statutory power conferred upon the
telegraph authority does not amount to
acquisition of ownership rights over the land
but merely creates a limited “right of user” in
favour of the authority for the purpose of
establishing and maintaining telegraph lines.
6.61. Learned counsel submits that the said
judgment recognises that the telegraph
authority does not become owner of the
property over which the lines pass and acquires
no rights beyond the limited statutory user
contemplated under the enactment. The Court
further held that though Section 10 does not
contemplate prior notice or hearing before
exercise of such powers, the provision cannot
be regarded as arbitrary or violative of Articles
14, 21 or 300A of the Constitution, since the
statute itself constitutes authority of law and
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simultaneously provides safeguards requiring
minimal damage and payment of
compensation.
6.62. Learned counsel submits that the Hon’ble
Madras High Court specifically observed that
Section 10 of the Telegraph Act does not divest
the landowner of proprietary rights but merely
imposes limited restrictions upon enjoyment of
the property in larger public interest. The
Hon’ble Madras High Court also recognised that
the object of such statutory provisions is to
facilitate execution of public utility
infrastructure projects and that the statutory
obligation to cause as little damage as possible
and pay compensation for actual damage
suffered constitutes a fair and reasonable
safeguard protecting the rights of affected
landowners.
6.63. By relying upon the aforesaid decision in
7
Ponnusamy , learned counsel submits that the
principles laid down therein squarely apply to
the interpretation of Sections 39 and 77 of the
BWSSB Act. According to him, the statutory
right conferred upon the Bangalore Water
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Supply and Sewerage Board to lay sewerage
pipelines beneath or across private lands is
likewise only a limited right of user and does
not amount to acquisition of ownership rights
over the property.
6.64. He submits that merely because the
landowner’s unrestricted enjoyment of the
property is subjected to certain statutory
limitations, it cannot be contended that there is
unconstitutional deprivation of property
attracting compulsory acquisition. According to
him, the BWSSB Act itself provides sufficient
safeguards by obligating the Board to minimise
damage and compensate affected persons for
actual injury or injurious affection caused
during execution of the work.
6.65. Learned counsel therefore submits that
Sections 39, 76 and 77 of the BWSSB Act
constitute valid statutory provisions enacted in
larger public interest for facilitating essential
civic infrastructure and cannot be struck down
or read down merely because they do not
provide for acquisition of ownership rights or
payment of acquisition compensation in every
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case where sewer lines are laid beneath private
property.
6.66. He refers to the decision of the Hon’ble
Supreme Court, dated 2.02.2023 in Ashwini
Kumar Upadhyay vs. Union of India and
8
Another , more particularly para 11 and 12
thereof, which are reproduced hereunder for
easy reference:
11 A statutory provision can be challenged
before the Court either on the ground that it
has been made by a legislature which lacks
legislative competence to enact a law or on the
ground that there is a violation of a
Fundamental Right in Part III of the
Constitution. The former is not in issue.
12 Permitting a candidate to contest from more
than one seat in a Parliamentary election or at
an election to the State Legislative Assembly is
a matter of legislative policy. It is a matter
pertaining to legislative policy since, ultimately,
Parliament determines whether political
democracy in the country is furthered by
granting a choice such as is made available by
Section 33(7) of the Act of 1951. A candidate
who contests from more than one seat may do
so for a variety of reasons not just bearing on
the uncertainty which the candidate perceives
of an election result. There are other
considerations which weigh in the balance in
determining whether this would restrict the
course of electoral democracy in the country.
This is a matter where Parliament is legitimately
entitled to make legislative choices and enact or
amend legislation. The Law Commission and the
Election Commission may at the material time
have expressed certain viewpoints. Whether
they should be converted into a mandate of the
8
WP (Civil) No.967/2017
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law depends on the exercise of Parliamentary
sovereignty in enacting legislation. Absent any
manifest arbitrariness of the provision so as to
implicate the provisions of Article 14 or a
violation of Article 19 , it would not be possible
for this Court to strike down the provision as
unconstitutional.
8
6.67. By referring to Ashwini Kumar Upadhyay’s
case, he submits that learned counsel submits
that the Hon’ble Supreme Court has reiterated
the settled principle that a statutory provision
can be invalidated only on limited constitutional
grounds, namely, lack of legislative competence
or violation of fundamental rights guaranteed
under Part III of the Constitution.
6.68. Learned counsel submits that the Hon’ble
Supreme Court has further emphasised that
matters involving legislative policy fall primarily
within the domain of the legislature and that
Courts ordinarily do not interfere with such
policy choices unless the provision is shown to
be manifestly arbitrary or violative of
constitutional guarantees. According to him, the
Hon’ble Supreme Court recognised that where
the legislature has consciously made a policy
determination balancing competing public
interests, judicial review remains limited and
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the wisdom of the legislative choice cannot
ordinarily be substituted by judicial opinion.
6.69. By relying upon the aforesaid decision in
8
Ashwini Kumar Upadhyay , learned counsel
submits that the provisions contained in
Sections 39, 76 and 77 of the BWSSB Act
represent a conscious legislative policy evolved
to facilitate creation and maintenance of
essential water supply and sewerage
infrastructure in the Bangalore Metropolitan
Area. According to him, the legislature, while
enacting the BWSSB Act, has consciously
chosen to confer a statutory right of user upon
the Bangalore Water Supply and Sewerage
Board instead of mandating compulsory
acquisition of ownership rights in every case
where pipelines or sewerage infrastructure are
laid beneath private lands.
6.70. He submits that such legislative policy decisions
are based upon practical considerations
concerning urban planning, public sanitation,
financial feasibility and effective discharge of
civic functions and therefore cannot be lightly
interfered with in exercise of writ jurisdiction.
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According to him, unless the petitioners
establish manifest arbitrariness or direct
violation of constitutional guarantees, the
statutory scheme cannot be declared
unconstitutional merely because the petitioners
may prefer a different policy framework
involving compulsory acquisition and payment
of market-value compensation.
6.71. Learned counsel contends that the BWSSB Act
itself contains safeguards requiring the Board to
minimise damage and compensate affected
landowners for actual injury or injurious
affection. Therefore, the statutory framework
cannot be characterised as arbitrary or
confiscatory so as to offend Articles 14 or 300A
of the Constitution. He accordingly submits that
the constitutional challenge mounted by the
petitioners is devoid of merit and liable to be
rejected.
6.72. He refers to judgment dated 9.12.2022 in
Sohams Bicester Village Block ’B’
Apartment Owners Association vs.
Bangalore Water Supply And Sewarage
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9
Board , more particularly para 5, 6 and 7, the
operative portion of the order is reproduced
hereunder for easy reference:
5. Having heard the learned counsel for the
parties and having perused the Petition Papers,
this Court is inclined to grant conditional
indulgence in the matter inasmuch as the
BWSSB being a statutory authority, is
empowered under Sections 77 & 78 of the 1964
Act to lay sewage and water supply lines in any
property whether private or public, as rightly
argued by learned Sr. Advocate
Mr.H.N.Shashidhar appearing for the Petitioner
and the learned Sr. Panel Counsel
Mr.B.L.Sanjeev appearing for the BBMP. The
text of Sections 77(1) & 78(1) of the 1964 Act,
is as under:
“77. Rights of user of property for sewers.—(1)
The Board may place and maintain sewers over,
under, along or across any immovable property
whether within or without the local limits of the
Bangalore Metropolitan Area, without acquiring
the same, and may at any time for the purpose
of examining, repairing, altering or removing
any sewers enter on any property over, under,
along or across which the sewers have been
laid:
Provided that the Board shall not acquire any
right other than a right of user in the property
over, under, along or across which any sewer is
laid.
78. Power of owner of premises to lay sewer
through land belonging to other persons.—(1) If
it appears to the Board that the only or most
convenient means of sewerage of any premises
is by laying any sewer over, under, along or
across the immovable property of another
person, the Board may, by order in writing,
authorise the owner of the premises to lay or
carry such sewer over, under, along or across
such immovable property:
9
WP No.13445 of 2021 dd 09.12.2022
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Provided that before making any such order the
Board shall give to the owner of the immovable
property a reasonable opportunity of showing
cause within such time as may be prescribed by
regulations made in this behalf as to why the
order should not be made:
Provided further that the owner of the premises
shall not acquire any right other than a right of
user in the property over, under, along or
across which any such sewer is laid.”
6. The provisions of Section 77 authorise the
BWSSB to enter any private land for laying,
repairing or re-laying the sewage lines beneath
the private property of the citizens even without
any acquisition. However, for the damage if
caused during the accomplishment of said task,
to the private property of the citizen, the
Section provides for payment of compensation.
The payment of compensation is not and cannot
be a sine qua non for undertaking the task in
question. The compensation in the text and
context of this Section is nothing but the
damages for the loss caused to the owner of the
property and not for the apprehended loss. The
section does not indicate the anticipatory
compensation. An argument to the contrary
would militate against the content & intent of
the said provision. No law or Ruling is cited by
the counsel for the contesting Respondents to
support an otherwise construction of this
provision. The BWSSB is a statutory public
body. The civic life of the city depends upon the
functions of this body. That is the reason why
peculiar and special provisions like Section 77
are made in the Act. The difficulty of the
BWSSB in the absence of such a provision is
easily understandable. The public interest in
which the BWSSB functions has to have
primacy over the private interest of the
persons. It is not that the legal injury the
citizen suffers by the operation of the agencies
of the BWSSB is without remedy. The Section
itself mentions the right and remedy for its
violation. Presently the work of the BWSSB
which is half way through is at halt because of
obstruction by the quarters that be.
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7. The apprehension of counsel for the
Respondent Nos.5 & 6 that there is a traditional
well which may get polluted or damaged by
virtue of likely seepage of water/sewage line
causing health hazard, also cannot be
overlooked. This is agreed to be addressed by
the BWSSB with the concurrence of the
Petitioner by filing a Memo dated 8.12.2022
which reads as under:
“The Respondents No.1 to 3 submit that there is
a WELL in the vicinity of the Respondent No.5 &
6 Apartment Blocks.
The Respondents No.1 to 3 have initiated the
task of providing Sewerline to the Petitioner
Association. In this regard the Respondents
No.1 to 3 submit that they will undertake
periodical maintenance of the sewer lines to
ensure that there is no leakage of sewage. It is
submitted that in the event of any sewage
leak/overflow inspite of regular maintenance,
the Respondents No.1 to 3 shall ensure
correctional measures no sooner it is brought to
their knowledge.
It is further prayed that this Hon’ble Court be
pleased to permit the Respondents No.1 to 3 to
make use of their men, material, machinery
through the Road where the sewer lines are
now being laid in the interest of justice &
equity.”
6.73. By referring to Sohams Bicester Village
9
Block ’B’ Apartment Owners Association’s
case, he submits that a Co-ordinate bench of
this Court has once again recognised the
statutory authority of the Bangalore Water
Supply and Sewerage Board under Sections 77
and 78 of the BWSSB Act to lay sewerage and
water supply lines through private as well as
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public properties without resorting to
acquisition proceedings.
6.74. Learned counsel submits that in the said
judgment, this Court specifically interpreted
Section 77 as conferring power upon the
BWSSB to enter upon private lands for laying,
repairing or re-laying sewerage pipelines even
without acquisition of the property. The Court
further held that the compensation
contemplated under Section 77 is compensation
for actual damage caused during execution of
the work and not anticipatory compensation for
speculative or apprehended loss alleged by the
landowner. According to him, the Court
categorically rejected the contention that
payment of compensation is a condition
precedent for undertaking sewerage works.
6.75. He further submits that this Court, in the
aforesaid decision, also recognised the
overriding public interest underlying the
statutory scheme and observed that the civic
life of the city substantially depends upon the
efficient functioning of the BWSSB. The Court
accordingly held that the public interest served
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by sewerage infrastructure projects must
receive primacy over individual objections,
particularly when the statute itself provides a
remedy by way of compensation for actual
injury suffered by the affected landowner.
6.76. Learned counsel points out that the Court
additionally balanced the concerns of nearby
residents regarding possible pollution or
seepage from sewer lines by recording the
undertaking furnished by the BWSSB assuring
periodic maintenance, rectification of leakages
and preventive safeguards. According to him,
the said decision demonstrates that while the
Court protects legitimate concerns of affected
citizens, it nevertheless recognises and upholds
the statutory authority of the BWSSB to
proceed with public utility projects in
accordance with Sections 77 and 78 of the Act.
6.77. By relying upon the judgment in Sohams
Bicester Village Block ‘B’ Apartment
9
Owners Association’s case, learned counsel
submits that the legal position concerning the
scope of Sections 77 and 78 of the BWSSB Act
is now well settled. According to him, the said
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provisions expressly authorise the BWSSB to
create and maintain sewerage infrastructure
beneath or across private property by
exercising only a limited right of user and
without acquiring ownership rights over the
land.
6.78. He submits that the judgment clearly holds that
the compensation contemplated under the Act
is restricted to actual damage or injurious
affection caused during execution and
maintenance of the work and does not extend
to compulsory acquisition compensation or
anticipatory damages based on hypothetical
future restrictions. According to him, the
petitioners’ attempt to construe Sections 39, 76
and 77 as mandating acquisition proceedings is
directly contrary to the ratio laid down in the
aforesaid decision.
6.79. Learned counsel therefore submits that the
statutory provisions under challenge have
repeatedly been upheld and interpreted by this
Court in a manner recognising the primacy of
public interest, the limited nature of the right of
user created in favour of the BWSSB and the
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restricted compensatory mechanism
contemplated under the Act. Consequently, he
submits that the petitioners are not entitled to
any of the reliefs sought for in the present writ
petitions.
6.80. He refers to the decision of the Hon'ble Apex
court in Goa Glass Fibre Ltd. & Anr vs. State
10
of Goa and Anr , more particularly
paragraphs 24, 25 and 26 thereof which are
reproduced hereunder for easy reference:
24. It is no doubt true that the Judgment dated
19/24.04.2001 is in appeal before this Court in
a batch of Special Leave Petitions and the
validity of the impugned Act does not depend
upon the result of the said Special Leave
Petitions. In our opinion, the Act must stand or
fall on its own strength. It cannot also be said
that the Act seeks to give effect to the
judgment dated 19/24.04.2001 of the High
Court having regard what the State aims at or
seeks to achieve by it. It is a well settled law
that the legislature can render the judicial
decision ineffective by enacting a valid law on
the subject within its legislative field by
removing the base on which the decision was
rendered. The impugned Act meets and satisfies
the Constitutional Test completely. The Act also
satisfies parameters laid down by this Court in
various judgments. Further the competence of
the State Legislature to enact the Act impugned
is traceable to Entry No. 38 in List III to the VII
Schedule of the Constitution of India. The
petitioners have not challenged the competence
of the State Legislature to enact the Act
impugned. Therefore, the challenge made by
10
[(2010) 5 SCR 970]
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the petitioners to the constitutionality of the Act
on this ground must fall.
25. The next contention urged by the
petitioners is that, the Act does not seek to
validate any action which has been held to be
invalid by any Court of Law, but only seeks to
nullify the judgment of this Court. This
contention should also fail for the reasons
already explained in the preceding paragraphs.
26. The next contention of the petitioners is
that the impugned Act is unconstitutional,
because it seeks to take away the fundamental
rights guaranteed to the petitioners under
Article 14 and 19(1)(g) of the Constitution of
India. While the argument based on Article
19(1)(g) of the Constitution of India was not
urged seriously by the petitioners and rightly
so, as no citizen is before this Court with a
complaint that his fundamental rights
guaranteed under this Article of the Constitution
is violated by the State under the Act
impugned. As regards the challenge to the
validity of the Act on the allegations of violation
of Article 14 of the Constitution of India, the
petitioners have laid no basis thereof. There is
nothing in the Act which suggests invidious
discrimination, unreasonable classification or
manifest violation of equality clause. In the
absence of any valid ground under Article 14 of
the Constitution of India, the Writ Petition under
Article 32 itself is not maintainable and liable to
be dismissed.
10
6.81. By referring to Goa Glass Fiber Ltd. case, he
submits that the Hon’ble Supreme Court has
reiterated the settled principles governing
constitutional challenges to statutory
enactments and has held that a legislation must
be tested on the touchstone of legislative
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competence and violation of constitutional
guarantees, particularly fundamental rights.
6.82. Learned counsel submits that the Hon’ble
Supreme Court in the said case observed that a
statutory enactment must stand or fall on its
own strength and that the legislature is
competent to enact laws within its legislative
field so long as the enactment satisfies
constitutional requirements. The Hon’ble
Supreme Court further held that a challenge
founded upon Article 14 of the Constitution
cannot succeed in the absence of any material
demonstrating invidious discrimination,
unreasonable classification or manifest
arbitrariness.
6.83. He further submits that the Hon’ble Supreme
Court also emphasised that unless a clear
constitutional infirmity is established, Courts
ought not to invalidate legislative measures
enacted in public interest. According to him,
mere disagreement with legislative policy or
dissatisfaction with the consequences of the
statutory scheme cannot furnish a valid ground
for striking down a statutory provision.
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6.84. By relying upon the aforesaid decision in Goa
10
Glass Fibre Ltd’s case , learned counsel
submits that the constitutional challenge
mounted by the petitioners against Sections 39,
76 and 77 of the BWSSB Act is wholly
unsustainable. According to him, the petitioners
have neither questioned the legislative
competence of the State Legislature to enact
the BWSSB Act nor established any manifest
arbitrariness, hostile discrimination or
unconstitutional classification so as to attract
Article 14 of the Constitution.
6.85. He submits that the statutory provisions merely
create a regulated right of user in favour of the
Bangalore Water Supply and Sewerage Board
for the purpose of establishing and maintaining
essential civic infrastructure and simultaneously
provide safeguards requiring minimisation of
damage and payment of compensation for
actual injury caused. According to him, such a
statutory framework cannot be characterised as
confiscatory or unconstitutional merely because
it does not contemplate compulsory acquisition
and payment of market-value compensation in
every case.
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6.86. Learned counsel therefore contends that the
petitioners have failed to lay any factual or
legal foundation demonstrating violation of
Articles 14 or 300A of the Constitution. He
submits that the challenge is founded
essentially upon disagreement with legislative
policy and the manner in which the statute
balances public interest with private property
rights, which by itself cannot constitute a
ground for declaring the provisions
unconstitutional. Consequently, he submits that
the writ petitions are liable to be dismissed.
6.87. His submission, therefore, is that there being a
statutory right under Section 76 and 77 of the
BWSSB Act, recognised for the purposes of
laying of sewage pipe on a private property
without compensation, said right being
conferred on the BWSSB in the larger public
interest of providing water and sewerage
connection, a private interest has to yield to a
larger public interest and therefore, it cannot
be contended that such power is in violation of
the Constitution of India rendering Section 76
and 77 ultra vires the Constitution. His
submission is that the writ petitions making out
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no grounds, it is required to be dismissed in
limine .
7. Heard Sri.Sampath.A, learned counsel for the
Petitioner, Sri.K.B.Monesh Kumar, learned counsel for
respondents No.1 and 2 in W.P. No.8296/2015 and
Sri.Puneeth.K, learned counsel for the Petitioner,
Sri.M.Srinivas Kumar, learned HCGP for respondent
No.1 and Sri.K.B.Monesh Kumar, learned counsel for
respondent No.2 in W.P. No.7754/2018. Perused
papers.
8. The points that would arise for consideration are:
i. Whether the Bangalore Water Supply
and Sewerage Board is empowered
under Sections 39, 76, 77 and 92 of the
BWSSB Act, 1964 to lay and maintain
sewerage pipelines over, under, along
or across private property without
acquiring ownership rights over such
land?
ii. Whether the “right of user”
contemplated under Section 77 of the
BWSSB Act amounts to deprivation or
acquisition of property so as to attract
compulsory acquisition proceedings
and payment of compensation under
the Right to Fair Compensation and
Transparency in Land Acquisition,
Rehabilitation and Resettlement Act,
2013?
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iii. Whether Sections 39, 76 and 77 of the
BWSSB Act, insofar as they permit
laying of sewerage infrastructure
through private property without
acquisition, are violative of Articles 14
and 300A of the Constitution of India?
iv. Whether the compensation
contemplated under Sections 39(2),
77(2) and 92(3) of the BWSSB Act is
confined only to actual damage or
injurious affection caused to the land,
or whether the landowners are entitled
to compensation equivalent to the
acquisition of the affected land?
v. Whether the restrictions imposed
under Section 76 of the BWSSB Act
relating to non-construction and
maintenance clearances around sewer
lines result in such substantial
deprivation of proprietary rights as to
necessitate the acquisition of the land?
vi. Whether Section 127A of the BWSSB
Act mandates compulsory acquisition
of private lands whenever sewerage
pipelines or related infrastructure are
laid beneath or across such lands?
vii. Whether the actions of the
respondents in the facts of W.P.
No.8296/2015 and W.P. No.7754/2018
are arbitrary, illegal or
unconstitutional and violative of the
petitioners’ rights under Article 300A
of the Constitution of India?
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viii. Whether the petitioners are entitled to
the reliefs sought for in the present
writ petitions?
ix. What Order?
9. This Court answers the above points as under:
10. Answer to Point No (i): Whether the Bangalore
Water Supply and Sewerage Board is
empowered under Sections 39, 76, 77 and 92 of
the BWSSB Act, 1964 to lay and maintain
sewerage pipelines over, under, along or across
private property without acquiring ownership
rights over such land?
10.1. Sri Sampath A., learned counsel for the
petitioners, submitted that the respondents
cannot enter upon private lands and either
attempt to lay or actually lay sewerage
pipelines without first acquiring the affected
lands in accordance with law. According to him,
such action would seriously interfere with
proprietary rights protected under Article 300A
of the Constitution of India. He contended that
the powers conferred under the BWSSB Act are
powers of entry and execution intended only for
limited purposes and cannot be construed as
authorising the creation of permanent
infrastructure beneath private lands without
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acquisition or some equivalent lawful transfer of
rights.
10.2. Learned counsel relied upon Section 127A of
the BWSSB Act and submitted that wherever
private land is required for purposes of the Act,
the statute itself prescribes the appropriate
mechanism, namely acquisition through the
State or consensual purchase with prior
Government approval. Therefore, the Board
cannot bypass that statutory route by invoking
general powers under other provisions. Reliance
was also placed upon Section 39 to contend
that even while permitting laying of mains upon
private lands, the Act expressly recognises the
rights of landowners by providing compensation
for damage and injurious affection, thereby
indicating that private property cannot be
treated as freely available for public utility
works.
10.3. He further relied upon Sections 76 and 77 and
submitted that these provisions cannot be read
in isolation from Section 127A. According to
him, Section 77 cannot be interpreted as an
unrestricted charter permitting the creation of
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permanent sewerage infrastructure beneath
private lands, as such an interpretation would
authorise continuing invasion of private
property without acquisition, consent, or
constitutionally adequate compensation.
Reliance was also placed upon Section 63 to
contend that once the Board asserts vesting of
sewerage works and of the sub-soil necessary
for maintenance, the resulting burden upon the
landowner is substantial enough to
demonstrate that the arrangement is not
merely one of temporary access but creates a
serious legal encumbrance upon the property.
10.4. Per contra, Sri K.B. Monesh Kumar, learned
counsel appearing for the BWSSB, submitted
that the statutory scheme expressly empowers
the Board to lay mains and sewers over, under,
along or across private property and
consciously distinguishes between acquisition of
ownership and acquisition of a limited right of
user. Referring to Section 39, he submitted that
the Board is authorised to lay mains even over
private lands and, where consent is withheld,
the proviso enables the Board to proceed after
issuing written notice.
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10.5. He further relied upon Sections 63, 64 and 92
and submitted that sewerage works and their
control vest in the Board in furtherance of its
statutory obligation to maintain sewerage
infrastructure for Bengaluru. According to him,
the legislature has intentionally conferred broad
powers of access and execution while
simultaneously imposing obligations to
minimise damage and compensate for any loss
caused.
10.6. It was further submitted that Sections 39, 76,
77 and 92 must be construed harmoniously and
purposively having regard to the object of the
BWSSB Act, namely effective water supply and
sewerage management as an essential public
utility. Learned counsel argued that the
petitioners’ interpretation would render city-
wide sewerage projects practically unworkable
by requiring compulsory acquisition every time
a pipeline crosses private land. Reliance was
placed upon M. Babanna v. State of
3
Karnataka , including the affirming judgment
of the Division Bench, and upon Power Grid
4
Corporation of India Limited to contend
that a statutory right of user for essential public
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infrastructure may be exercised without
acquisition of ownership.
10.7. The answer to this point must begin with the
relevant statutory provisions relied upon by
both parties. Section 39 empowers the Board to
lay a main within or outside the Bangalore
Metropolitan Area, including over or upon
private lands, and further authorises the Board
to proceed after written notice, even where
consent is withheld. Section 39(2) separately
provides compensation to every person
interested in the land for damage done or
injurious affection caused by laying, inspection,
repair, alteration, renewal or removal of such
mains.
10.8. Section 77 assumes central significance. It
expressly authorises the Board to place and
maintain sewers over, under, along or across
any immovable property without acquiring the
same and permits entry upon the property for
purposes of examination, repair, alteration or
removal of such sewerage works. The proviso
to Section 77(1) expressly restricts the Board
to the acquisition of no right beyond a right of
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user in the property through which the sewer
passes. Section 77(2) simultaneously imposes
obligations upon the Board to cause as little
damage as possible and to make full
compensation for any damage caused.
10.9. Section 76 complements Section 77 by
regulating activities over sewerage
infrastructure and prescribing minimum
clearances, while Section 92 separately
authorises entry upon adjoining lands for
access, materials and ancillary activities
connected with the work. That provision also
incorporates corresponding obligations to
minimise damage and provide compensation.
10.10. Read together, Sections 39, 76, 77 and 92
reveal a clear legislative scheme comprising
powers of access, execution, maintenance and
control, coupled with procedural and
compensatory safeguards. The statutory
framework, therefore, distinguishes between
the acquisition of ownership and the
conferment of a limited right of user for public
utility purposes.
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10.11. The petitioners are correct in contending that
private property cannot be dealt with by public
authorities except in accordance with law and
that Article 300A protects citizens against
arbitrary deprivation of property. Their reliance
upon Section 127A is also justified to the extent
that the provision contemplates acquisition or
consensual purchase where land itself is
required for purposes of the Act.
10.12. However, Section 127A cannot be interpreted in
a manner that renders Section 77 otiose.
Section 77 expressly authorises the Board to
place and maintain sewers without acquiring
ownership and specifically limits the rights
acquired to a right of user alone. If the
legislature intended acquisition of ownership to
be mandatory in every case where a sewer line
traversed private property, Section 77 would
have been unnecessary in its present form.
10.13. The proper reconciliation between Sections 39,
77 and 127A, therefore, is this: where the
Board requires ownership of land or such
extensive and exclusive dominion as cannot be
accommodated within a limited statutory right
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of user, it must proceed under Section 127A.
Conversely, where the statute itself
contemplates only a limited, non-possessory
right of user for laying and maintaining mains
and sewers, the Board may proceed under
Sections 39 and 77, subject always to the
statutory safeguards and compensatory
obligations.
10.14. A right of user is conceptually distinct from
acquisition of ownership. Ownership ordinarily
includes rights of possession, exclusion,
enjoyment and disposition, whereas a right of
user creates only a restricted statutory
entitlement for a specified purpose without
transfer of title or possession. The legality of
the exercise therefore, depends upon the
burden remaining confined within those
statutory limits.
10.15. The respondents' submissions stand fortified by
the judgment in M.Babanna v. State of
3
Karnataka , wherein it was held that Section
77 authorises entry upon private land for laying
or re-laying sewerage lines even without
acquisition proceedings and that compensation
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for damage is not a condition precedent for
undertaking the work itself. The Hon’ble
Division Bench, affirming that decision,
reiterated that Section 77 enables laying of
sewerage lines beneath private property
without acquisition, subject to compensation for
damage caused.
10.16. The decision in Power Grid Corporation of
4
India Limited , though arising under a
different enactment, is relevant for the limited
principle distinguishing acquisition of ownership
from conferment of a statutory right of user.
Similar principles have also been recognised in
7
Ponnusamy and others v. Union of India
and others and Sohams Bicester Village
Block 'B' Apartment Owners Association v.
Bangalore Water Supply and Sewerage
9
Board .
10.17. Merely because the title remains with the
owner, however, does not conclude the
constitutional enquiry under Article 300A. The
Court must examine whether the extent of
interference remains within the limits of a
statutory right of user or whether it effectively
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amounts to a substantial deprivation of the
ordinary incidents of ownership. Where the
practical consequence of the work substantially
impairs meaningful use and enjoyment of the
property, the authority may be required to
proceed by way of acquisition under Section
127A.
10.18. Equally, the respondents are correct in
contending that compulsory acquisition cannot
be treated as a mandatory precondition in
every case where a sewer or main traverses
private land. Sewerage systems are network-
based public infrastructure requiring continuity
of alignment over extensive urban and peri-
urban areas. Requiring the acquisition of title
for every crossing would substantially impair
the statutory object of planned sewerage and
sanitation.
10.19. At the same time, the statutory provisions and
the authorities relied upon by the respondents
do not permit the Board to act as though
private rights are devoid of value. The
legislative scheme consistently links power with
restraint by requiring minimal damage, limiting
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the Board to a right of user and mandating
compensation for injury caused.
10.20. Accordingly, this court answers Point No. (i) by
holding that Sections 39, 76, 77 and 92 of the
BWSSB Act confer statutory authority upon the
Board to lay and maintain sewerage pipelines
over, under, along or across private property
without acquisition of ownership, where only a
limited right of user is required. Such authority,
however, remains subject to strict compliance
with the statutory safeguards, including
observance of procedural requirements,
minimisation of injury, and payment of
compensation for damage or injurious affection.
Where the extent of interference substantially
exceeds a limited right of user and effectively
results in deprivation of ordinary enjoyment of
the property, the Board would be required to
proceed under Section 127A.
11. Answer to Point No (ii): Whether the “right of
user” contemplated under Section 77 of the
BWSSB Act amounts to deprivation or
acquisition of property so as to attract
compulsory acquisition proceedings and
payment of compensation under the Right to
Fair Compensation and Transparency in Land
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Acquisition, Rehabilitation and Resettlement
Act, 2013?
11.1. Sri Sampath A., learned counsel appearing for
the petitioners, submitted that the so-called
right of user contemplated under Section 77 of
the BWSSB Act is neither nominal nor
temporary in nature. According to him, once
sewerage lines are placed beneath private
property, the Board acquires continuing rights
of access, inspection, repair, alteration, removal
and operational control. Further, Section 76
imposes restrictions concerning construction
activities and prescribes clearance requirements
around sewer lines and related structures. He
submitted that the cumulative effect of these
provisions substantially diminishes the owner's
freedom of use, development potential and
beneficial enjoyment of the affected property.
11.2. Learned counsel argued that such continuing
restrictions effectively deprive the landowner of
full dominion over the property and adjoining
areas. According to him, the consequences
extend beyond temporary inconvenience and,
in substance, amount to compulsory acquisition
or deprivation of property, thereby attracting
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acquisition proceedings and compensation in
terms of the law governing compulsory
acquisition, including the provisions of the 2013
Act.
11.3. Reliance was also placed upon Section 63 to
contend that statutory vesting of sewerage
works and the sub-soil necessary for
maintenance demonstrates that the effect upon
the owner is neither insignificant nor transitory.
According to him, the combined operation of
Sections 63, 76 and 77 results in permanent
appropriation of the affected strip and
surrounding clearance area and that the Board
cannot avoid acquisition merely by describing
the burden as a statutory right of user.
11.4. Per contra, Sri K.B. Monesh Kumar, learned
counsel appearing for the BWSSB, submitted
that Section 77 expressly excludes acquisition
of ownership and preserves only a limited right
of user in favour of the Board. He submitted
that ownership and title continue to vest in the
landowner and that the Board merely acquires
a restricted statutory entitlement necessary for
discharging an essential public utility function.
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11.5. He further submitted that compensation
contemplated under Sections 39, 77 and 92
relates to actual damage, injurious affection,
temporary disturbance or diminution resulting
from execution of the work and not
compensation equivalent to acquisition value,
since title in the property itself is never
divested. Reliance was placed upon M.
3
Babanna v. State of Karnataka , the
affirming judgment of the Hon'ble Division
Bench in the same matter, Power Grid
Corporation of India Limited v. Century
4
Textiles Industries Limited , Ponnusamy
7
and others v. Union of India and others
and G. Chandrashekhar v. Karnataka
5
Power Transmission Corporation Limited .
11.6. The rival submissions raise an important issue
concerning the distinction between the legal
character of a statutory right and the practical
consequences arising from its exercise. The
petitioners' case, in substance, is that
irrespective of the terminology employed by the
statute, the actual burden imposed upon the
property is so substantial and continuing in
nature that it should be treated as an
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acquisition in law. The respondents, on the
other hand, contend that the legislature itself
has consciously maintained a distinction
between ownership and user and that such a
distinction cannot be ignored.
11.7. The Court is of the view that the issue cannot
be answered merely by reference either to
statutory language in abstraction or solely by
reference to practical consequences divorced
from legislative intent. While the Court cannot
ignore the real impact of a statutory burden
upon proprietary rights, it equally cannot
disregard the express language employed by
the legislature. The function of the Court,
therefore, is to ascertain the true legal
character of the right created by the statute
and determine whether its practical
consequences remain within the limits of that
statutory design.
11.8. At the outset, it must be noticed that Article
300A of the Constitution protects citizens
against deprivation of property except by
authority of law. Though no longer a
fundamental right, the right to property
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nevertheless remains a valuable constitutional
and legal right which cannot be interfered with
except through a valid statutory process. The
requirement of "authority of law" under Article
300A does not merely contemplate the
existence of a statutory provision; it equally
requires that such statutory power be exercised
within the boundaries contemplated by law and
not in an arbitrary or disproportionate manner.
11.9. Therefore, where legislation creates a statutory
right of user over private property,
constitutional scrutiny cannot cease merely
because title technically remains with the
owner. The Court must examine whether the
burden imposed remains a limited burden
incidental to a defined public purpose or
whether, in practical effect, it substantially
destroys the ordinary incidents of ownership.
The constitutional enquiry, therefore, concerns
substance as well as form.
11.10. At the same time, constitutional interpretation
cannot proceed upon assumptions that
disregard express statutory language. Section
77 assumes central significance in this regard.
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The provision expressly authorises the Board to
place and maintain sewers over, under, along or
across immovable property without acquiring
the same. More importantly, the proviso to
Section 77(1) expressly states that the Board
shall acquire no right other than a right of user
in the affected property.
11.11. The legislative intent could scarcely have been
expressed in clearer terms. The statute itself
consciously distinguishes between acquisition of
ownership and conferment of a limited
statutory right of user. The expression "right of
user" therefore cannot be treated as an empty
phrase or merely a matter of legislative
description.
11.12. Ownership ordinarily carries with it the bundle
of rights relating to possession, exclusion,
enjoyment and disposition of property. A right
of user, on the other hand, creates a limited
statutory entitlement permitting use of
another's property for a specific purpose while
leaving title and ownership with the landowner.
Thus, the enquiry is not whether some burden
is imposed upon the property, because every
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right of user necessarily creates some burden;
the enquiry is whether the burden imposed
substantially extinguishes the incidents of
ownership itself.
11.13. The statutory framework of the BWSSB Act
itself demonstrates that the legislature has
recognised this distinction. Section 127A
contemplates situations where the acquisition
or purchase of land becomes necessary.
Sections 39, 77 and 92, however, proceed on
an entirely different basis. Those provisions
contemplate execution of public utility works
through creation of a limited burden upon land,
accompanied by corresponding obligations
regarding compensation and minimisation of
injury.
11.14. The significance of this distinction becomes
apparent when the practical realities of public
utility infrastructure are considered. Sewerage
systems function as integrated networks
extending across large geographical areas and
require continuity of alignment. Their design
depends upon topography, engineering
requirements, gravity flow, public health
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considerations and urban planning needs. If
acquisition of ownership were treated as
mandatory each time a sewer line crossed
private property, even a narrow underground
alignment traversing multiple properties would
require fragmented acquisition proceedings in
respect of every affected parcel of land.
11.15. Such an interpretation would substantially
impede the execution of essential public
infrastructure and frustrate the object sought to
be achieved by the legislation. Public utility
enactments necessarily seek to strike a balance
between individual proprietary rights and larger
public interest considerations. Excessive
emphasis upon either at the complete expense
of the other would defeat the statutory
purpose.
11.16. At the same time, public necessity cannot
become a justification for unrestricted intrusion
upon private rights. The existence of statutory
power does not imply unregulated power. Every
provision relied upon by the respondents
simultaneously imposes corresponding duties
and limitations. Section 77 requires the
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authority to cause as little damage as possible
and to make full compensation for damage
caused. Section 39 separately recognises
compensation for damage and injurious
affection, while Section 92 similarly
incorporates obligations concerning
minimisation of injury and compensation.
11.17. These safeguards are not incidental provisions
of minor significance but constitute integral
limitations upon the exercise of statutory power
itself. The authority cannot invoke the power
while disregarding the accompanying
obligations.
11.18. This Court is also unable to accept the
proposition that compensation under Sections
39 and 77 should be narrowly confined to
visible physical damage arising during
execution of the work. Such an interpretation
would substantially dilute the protection
intended by the statute itself.
11.19. The expression "full compensation for any
damage caused" occurring in Section 77(2) and
the expression "damage done to or injurious
affection of land" occurring in Section 39(2)
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cannot be understood in a restrictive sense.
Damage caused to property is not limited to
surface injury. It may include diminution in
value, impairment of utility, adverse impact
upon future use, reduction in beneficial
enjoyment and other measurable consequences
resulting from the work undertaken.
11.20. Consequently, where an underground sewer
alignment materially affects basement
construction, redevelopment potential,
structural planning, commercial utility, future
expansion, marketability or other incidents of
beneficial enjoyment, such consequences
cannot be disregarded merely because
ownership formally continues with the
landowner.
11.21. This Court therefore finds merit in the
petitioners' submission to the limited extent
that the burden created by a right of user
cannot be treated as insignificant or merely
theoretical. Continuing underground utility
alignments may, in individual cases, create
serious and enduring consequences for owners.
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11.22. However, the seriousness of the burden by itself
does not alter the legal nature of the right
created by statute. Section 77 itself
contemplates that ownership remains with the
landowner while a defined burden is imposed
for a specified public purpose. The owner loses
part of the unrestricted freedom of use, but
does not lose the title itself.
11.23. The judgments relied upon by the respondents
reinforce this distinction. M. Babanna v. State
3
of Karnataka and the affirming Division Bench
decision recognise that Section 77 authorises
laying of sewerage lines beneath private
property without acquisition proceedings while
preserving the owner's right to compensation.
Similarly, Power Grid Corporation of India
Limited v. Century Textiles Industries
4
Limited , Ponnusamy and others v. Union
7
of India and others and G.
Chandrashekhar v. Karnataka Power
5
Transmission Corporation Limited
recognise the distinction between acquisition of
ownership and a legislatively created right of
user for public infrastructure.
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11.24. Nevertheless, those authorities do not support
any proposition that compensation should be
illusory or confined merely to temporary
inconvenience. Rather, they reinforce the
principle that while ownership may not be
acquired, actual prejudice caused to the
landowner must be meaningfully addressed.
11.25. This Court, therefore, cannot accept either of
the two extreme positions urged before it. It
cannot hold that every underground sewer line
necessarily results in compulsory acquisition
requiring proceedings under the 2013 Act.
Equally, it cannot accept a proposition that only
temporary inconvenience or surface disturbance
is compensable while ignoring continuing
prejudice to the owner.
11.26. Section 127A also does not compel a contrary
conclusion. The provision applies where the
acquisition of land itself or rights equivalent to
ownership becomes necessary. It does not
override the independent statutory right
expressly created under Section 77. To hold
otherwise would substantially render Section 77
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ineffective and reduce the phrase "without
acquiring the same" to redundancy.
11.27. The Court is also conscious that a writ Court
cannot decide abstractly every conceivable
future consequence divorced from factual
evidence. Whether a particular alignment
through a particular survey number results in
minimal impact, moderate impact or severe
prejudice is necessarily a factual issue to be
considered in the process of determining
compensation.
11.28. The issue before this Court is therefore
narrower, namely, whether the right of user
under Section 77, by its very nature and in
every case, amounts to compulsory acquisition
requiring proceedings under the 2013 Act. On
that legal issue, the answer must be in the
negative.
11.29. Accordingly, this court answers Point No. (ii) by
holding that the statutory right of user
contemplated under Section 77 does not,
merely because it creates continuing
restrictions or inconvenience to the owner,
amount in law to compulsory acquisition of
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property attracting mandatory acquisition
proceedings and market-value compensation
under the 2013 Act in every case. The right
remains a limited statutory right of user distinct
from the acquisition of ownership. However,
where exercise of such right causes substantial
and measurable prejudice affecting utility,
development potential, beneficial enjoyment or
value of the property, compensation for
damage and injurious affection must be
assessed realistically and meaningfully with
reference to the actual impact suffered by the
landowner.
12. Answer to Point No (iii): Whether Sections 39,
76 and 77 of the BWSSB Act, insofar as they
permit laying of sewerage infrastructure
through private property without acquisition,
are violative of Articles 14 and 300A of the
Constitution of India?
12.1. Sri Sampath A., learned counsel appearing for
the petitioners, contended that if Sections 39,
76 and 77 of the BWSSB Act are interpreted as
permitting permanent sewerage infrastructure
beneath private property without acquisition
proceedings and without compensation
commensurate with the actual burden imposed,
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such interpretation would render the provisions
arbitrary and constitutionally infirm.
12.2. According to learned counsel, such
interpretation would violate Article 300A of the
Constitution because property would effectively
stand burdened or appropriated without lawful
acquisition and without adequate protection of
proprietary rights. It was further submitted that
such an interpretation would offend Article 14
because other public utility enactments,
including the Indian Telegraph Act and the
Petroleum and Minerals Pipelines legislation,
provide structured statutory mechanisms
recognising and compensating user rights,
whereas the respondents seek to deny
equivalent protection under the BWSSB Act.
12.3. Learned counsel further submitted that the
Board cannot rely upon Sections 39, 76 and 77
as a means of bypassing the acquisition
mechanism contemplated under Section 127A
and that unless Section 77 is construed in a
restricted manner, the provision itself would
become constitutionally vulnerable.
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12.4. Per contra, Sri K.B. Monesh Kumar, learned
counsel appearing for the BWSSB, submitted
that the constitutional challenge proceeds upon
an erroneous understanding of the statutory
framework. According to him, the BWSSB Act
itself constitutes the "authority of law"
contemplated under Article 300A and expressly
creates the power, limits the nature of the right
acquired and simultaneously incorporates
compensatory safeguards.
12.5. Learned counsel further submitted that the
challenge under Article 14 is unsupported by
any material establishing hostile discrimination,
unreasonable classification or manifest
arbitrariness. Reliance was placed upon Goa
10
Glass Fibre Ltd. v. State of Goa , Ashwini
8
Kumar Upadhyay v. Union of India , Power
Grid Corporation of India Limited v.
4
Century Textiles Industries Limited , M.
3
Babanna v. State of Karnataka and the
affirming judgment of the Hon'ble Division
Bench.
12.6. The challenge raised by the petitioners requires
examination with constitutional discipline and
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judicial restraint because the Court is dealing
with a statutory framework enacted to secure
and regulate an essential public utility.
Constitutional adjudication in such matters
cannot proceed on the basis that another
legislative arrangement may appear more
beneficial or fairer to affected individuals. Nor
can a statutory provision be invalidated merely
because another legislative model may provide
broader safeguards or more generous
compensation.
12.7. As noticed by the respondents through
Ashwini Kumar Upadhyay v. Union of
8
India and Goa Glass Fibre Ltd. v. State of
10
Goa , legislative choices ordinarily remain
matters of policy and judicial intervention
becomes warranted only where the enactment
suffers from constitutional incompetence,
manifest arbitrariness, hostile discrimination or
clear violation of constitutional guarantees.
12.8. In the present case, the petitioners do not
challenge the legislative competence of the
State to enact the BWSSB legislation. Their
challenge is narrower and proceeds on the
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footing that Sections 39, 76 and 77 permit
excessive interference with private property
while providing inadequate protection to
owners. That concern undoubtedly requires
careful examination; however, the existence of
such concern by itself does not establish
constitutional invalidity.
12.9. Article 300A: Authority of Law and Nature
of Deprivation
12.10. Article 300A protects citizens from deprivation
of property except by authority of law. Though
the right to property no longer enjoys the
status of a fundamental right, it nevertheless
remains a valuable constitutional and legal right
and cannot be interfered with except through a
valid statutory process.
12.11. The requirement of "authority of law" under
Article 300A does not merely contemplate the
existence of a statutory provision permitting
State action. It equally requires that the law
itself operate within constitutional boundaries
and that powers conferred under such law are
exercised within the limits contemplated by the
legislature.
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12.12. However, the Court is unable to accept the
proposition that Article 300A necessarily
requires acquisition proceedings whenever a
statutory burden is imposed upon property. The
constitutional requirement is not that every
interference with property rights must assume
the form of compulsory acquisition. What
Article 300A insists upon is lawful authority,
absence of arbitrariness and adherence to the
statutory framework.
12.13. Constitutional adjudication in matters involving
property rights also requires recognition of an
important distinction between the regulation of
property and the extinction of property rights.
Not every restriction upon ownership amounts
to deprivation of ownership itself. Modern legal
systems recognise that ownership rights exist
within a structured legal order and may be
regulated in aid of larger societal interests.
12.14. Development regulations, zoning restrictions,
planning controls, environmental requirements
and utility easements frequently impose
burdens upon property without extinguishing
ownership itself. Such measures may reduce
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the extent of unrestricted use but do not
necessarily amount to acquisition or
confiscation.
12.15. Therefore, the constitutional inquiry under
Article 300A cannot proceed upon the
assumption that every burden upon land
amounts to deprivation of property. Equally, the
Court cannot accept the opposite proposition
that mere retention of title automatically
concludes the constitutional inquiry.
Constitutional courts are concerned not merely
with formal labels but with actual legal
consequences.
12.16. A statutory provision cannot escape
constitutional scrutiny merely because it
describes a measure as a "right of user" if, in
practical operation, it produces consequences
equivalent to total appropriation. The inquiry,
therefore, concerns substance as well as form.
Statutory Scheme and Legislative Design
12.17. In the present case, the authority of law is
expressly found within the statute itself.
Section 77 authorises the Board to place and
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maintain sewers without the acquisition of
ownership and expressly limits the Board to a
right of user. Section 77(2) requires the
authority to cause as little damage as possible
and mandates full compensation for damage
caused. Section 39(2) separately recognises
compensation for damage and injurious
affection, while Section 92 incorporates
corresponding safeguards.
12.18. The statutory scheme, therefore, does not
contemplate unrestricted occupation or
appropriation of land. The legislature has
consciously created a limited statutory burden
accompanied by obligations and restrictions
governing the exercise of power.
12.19. Acquisition of ownership and creation of a right
of user are conceptually distinct legal
arrangements. Acquisition ordinarily results in
the transfer of title or extinguishment of
ownership rights, whereas a right of user
creates a limited statutory burden while
preserving ownership with the landowner.
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Public Purpose and Proportionality
12.20. The Court is conscious that urban sewerage
infrastructure is not a matter of mere
convenience. It constitutes an essential civic
necessity directly linked with public health,
sanitation, environmental protection and
planned urban development.
12.21. Sewerage systems function as interconnected
networks extending across large geographical
areas and their design is frequently dictated by
engineering requirements, topographical
realities, gravity-based flow considerations and
planning necessities. If acquisition proceedings
were made mandatory every time a sewer line
crossed private land, the practical consequence
would be fragmentation of infrastructure
projects and substantial impairment of the
implementation of essential civic works.
12.22. The Court therefore finds force in the
respondents' submission that public utility
legislation necessarily requires practical
operational flexibility. However, operational
flexibility cannot be permitted to become legal
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absolutism. The existence of statutory power
does not imply unrestricted power.
12.23. Every provision relied upon by the respondents
simultaneously imposes corresponding duties
and limitations. The duty to minimise injury and
provide compensation is not incidental or
ornamental. Those obligations constitute
substantive limitations upon the power itself.
12.24. In constitutional terms, such safeguards
perform an important function because they
preserve proportionality between the public
objective sought to be achieved and the burden
imposed upon individual landowners.
12.25. Though proportionality is ordinarily discussed in
the context of fundamental rights, the
underlying principle that State action should
maintain a rational relationship between
objective and burden remains relevant even
while examining action affecting rights
protected under Article 300A.
Article 14 Analysis
12.26. The challenge under Article 14 also does not
succeed on the material placed before the
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Court. The petitioners compare the BWSSB Act
with other enactments, such as the Telegraph
Act and the Petroleum and Minerals Pipelines
legislation and contend that those enactments
provide more elaborate compensation
structures.
12.27. Mere differences in legislative drafting or
regulatory design across enactments operating
in different sectors do not by themselves
establish hostile discrimination. Different
legislative frameworks frequently adopt
different methods for achieving distinct
statutory objectives.
12.28. The constitutional inquiry under Article 14 is
not whether another enactment adopts a
preferable model but whether the impugned
legislation itself is irrational, manifestly
arbitrary or based upon impermissible
classification.
12.29. No material has been placed before this Court
demonstrating that the statutory framework
creates arbitrary distinctions between similarly
situated persons or that the legislative
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classification bears no rational relationship to
the object sought to be achieved.
12.30. The authorities relied upon by the respondents
reinforce this understanding. Power Grid
Corporation of India Limited v. Century
4
Textiles Industries Limited , M. Babanna v.
3
State of Karnataka , the affirming Division
Bench judgment, and the other authorities cited
proceed upon the principle that legislatively
created user rights for public infrastructure may
validly coexist with continuing ownership.
12.31. At the same time, these authorities cannot be
understood as sanctioning unrestricted
interference with private property without
corresponding legal accountability. Their
reasoning proceeds upon the assumption that
compensation remains meaningful and that
exercise of power remains confined within the
legislative framework.
12.32. Therefore, the Court cannot accept either
extreme position advanced before it. It cannot
hold that every statutory user right necessarily
amounts to compulsory acquisition, attracting
proceedings under the 2013 Act. Equally, it
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cannot accept any proposition that
compensation should be reduced to a nominal
payment confined merely to physical excavation
damage.
12.33. The expressions "damage caused" and
"injurious affection" occurring in Sections 39
and 77 are of wider legal import and are
capable of including measurable consequences
affecting value, utility, development potential,
marketability and beneficial enjoyment of
property.
12.34. Consequently, where a particular alignment
demonstrably results in substantial and
continuing prejudice affecting ordinary use and
enjoyment of property, such consequences
must necessarily enter the compensation
assessment process.
12.35. If the Board were to exceed statutory limits,
occupy more land than reasonably necessary,
deny compensation for demonstrable prejudice
or otherwise act beyond the legislative
framework, the infirmity would arise from the
implementation of the statute and not from the
validity of the statute itself.
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12.36. Accordingly, this court answers Point No. (iii) by
holding that Sections 39, 76 and 77 of the
BWSSB Act, insofar as they authorise laying of
sewerage infrastructure through private
property without acquisition of ownership, are
not violative of Articles 14 and 300A of the
Constitution of India. The provisions constitute
a constitutionally valid statutory framework
creating a limited statutory right of user,
accompanied by procedural and compensatory
safeguards. Their constitutional validity,
however, is sustained on the understanding
that such safeguards are applied meaningfully
and that compensation remains real and
responsive to the actual prejudice suffered by
affected landowners.
13. Answer to Point No (iv): Whether the
compensation contemplated under Sections
39(2), 77(2) and 92(3) of the BWSSB Act is
confined only to actual damage or injurious
affection caused to the land, or whether the
landowners are entitled to compensation
equivalent to the acquisition of the affected
land?
13.1. Sri Sampath A., learned counsel appearing for
the petitioners, submitted that the provisions
relating to compensation under the BWSSB Act
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must receive a broad, realistic and purposive
construction. According to him, once sewerage
pipelines are laid beneath private land and
statutory restrictions arise concerning use of
the affected land and adjoining areas, the
owner suffers a continuing burden extending
beyond immediate physical disturbance. Such
consequences, according to him, include
diminished utility, impairment of development
potential and restrictions upon beneficial
enjoyment of the property, all of which
constitute damage or injurious affection within
the meaning of the statute.
13.2. Learned counsel further submitted that where
the practical effect of such burden is substantial
and permanent, fairness and constitutional
principle require compensation commensurate
with the actual injury suffered by the owner.
According to him, compensation cannot be
confined merely to temporary excavation
damage or physical disturbance during
execution of the work because the owner
continues to suffer limitations affecting future
use and enjoyment of the property.
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13.3. Per contra, Sri K.B. Monesh Kumar, learned
counsel appearing for the BWSSB, submitted
that the Act does not contemplate
compensation equivalent to acquisition value
where ownership of land continues to remain
with the owner. According to him, Sections
39(2), 77(2) and 92(3) contemplate
compensation only for actual damage, injurious
affection, temporary disturbance, diminished
utility or other real injury resulting from
execution and maintenance of the work.
13.4. Reliance was placed upon M. Babanna v.
3
State of Karnataka , the affirming judgment
of the Hon'ble Division Bench in the same
matter, Power Grid Corporation of India
Limited v. Century Textiles Industries
4
Limited , Ponnusamy and others v. Union
7
of India and others and Sohams Bicester
Village Block B Apartment Owners
Association v. Bangalore Water Supply and
9
Sewerage Board , to contend that
compensation under such statutory frameworks
is compensation for actual injury caused and
not compensation arising from transfer of
ownership or hypothetical future claims.
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13.5. The dispute concerning compensation lies at
the very centre of the present controversy
because the legal sustainability of a statutory
right of user substantially depends upon the
adequacy and meaningfulness of the
compensatory safeguards accompanying such
right. The respondents are correct in
contending that the statutory scheme does not
contemplate acquisition-value compensation in
every case because ownership in the land is not
transferred to the Board. Equally, the
petitioners are correct in contending that the
statutory expressions employed by the
legislature cannot be reduced to nominal or
token payment confined merely to immediate
physical disturbance.
13.6. The Court considers it necessary to emphasise
that where legislation permits a public authority
to utilise private property without acquisition of
ownership, compensation assumes significance
beyond that arising in ordinary cases of
temporary disturbance. In a conventional
acquisition proceeding, the conflict between
public need and private ownership is resolved
by transfer of title accompanied by market-
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value compensation and associated statutory
benefits. The present statutory arrangement
adopts a different approach. Ownership remains
with the landholder while a continuing statutory
burden is imposed for public purposes.
13.7. In such a statutory framework, compensation
becomes the principal mechanism through
which fairness is introduced into the legislative
process. The compensatory provisions cannot,
therefore, be viewed as incidental or peripheral
matters. Rather, they constitute an integral
component of the legal and constitutional
sustainability of the statutory scheme itself.
13.8. This conclusion follows from the structure of the
enactment. The statute confers a right of user
on one hand and simultaneously imposes
obligations concerning minimisation of damage
and payment of compensation on the other. The
authority to interfere with private property and
the obligation to compensate for resulting
injury are inseparable parts of the same
legislative arrangement.
13.9. The starting point of the inquiry must
necessarily be the language employed by the
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statute. Section 39(2) provides compensation
for "any damage done to, or injurious affection
of that land". Section 77(2) requires the Board
to "make full compensation for any damage
caused by it". Section 92(3) separately
contemplates compensation for damage
"whether permanent or temporary".
13.10. These expressions are deliberately broad in
their formulation and cannot be restricted
merely to visible physical injury. The legislature
has consciously avoided narrow expressions
limited to excavation damage, crop loss or
temporary inconvenience and instead adopted
wider concepts such as "full compensation",
"injurious affection" and "permanent damage".
13.11. The expression "injurious affection" assumes
particular significance in this context. In legal
understanding, the expression extends beyond
direct physical injury and includes diminution in
value, impairment of utility, reduction in
developmental potential, adverse effect upon
future use and other measurable consequences
arising from the statutory burden placed upon
property.
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13.12. Therefore, the Court is unable to accept an
interpretation which confines compensation
merely to broken surfaces, removed vegetation,
temporary obstruction or damage arising during
excavation activity. Such an interpretation
would substantially dilute the protection
consciously embedded by the legislature itself.
13.13. Property rights are not confined merely to the
physical dimensions of land. Ownership carries
with it practical utility, developmental
possibilities and the ability to derive beneficial
enjoyment from property. Consequently, where
the exercise of statutory power materially
restricts those incidents of ownership, the
resulting prejudice cannot be ignored merely
because no visible physical damage has
occurred.
13.14. Once an underground sewer alignment is
created beneath private property, the
consequences upon the owner are not
necessarily confined to the precise strip
occupied by the infrastructure in engineering
terms. The existence of the sewer line may
affect the manner in which adjoining portions of
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the property can be utilised. Restrictions arising
under Section 76, structural considerations,
maintenance requirements, limitations upon
future construction and practical constraints
upon redevelopment may affect the utility of a
larger area.
13.15. In urban properties particularly, such
consequences may assume significant
importance. Basement construction, structural
loading, future redevelopment, commercial
utilisation and expansion possibilities may all be
affected by the existence of underground utility
infrastructure. These consequences are neither
speculative nor imaginary and may constitute
continuing and measurable prejudice to the
owner.
13.16. The Court therefore finds considerable force in
the petitioners' submission to the extent that
the burden imposed by a statutory right of user
cannot be treated as trivial or merely
incidental. A continuing burden affecting
ordinary use and enjoyment of property must
necessarily receive meaningful reflection within
the compensation process.
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13.17. However, recognition of these consequences
does not justify treating the affected property
as though ownership itself had vested in the
Board. The Court must remain conscious of the
distinction between the existence of a burden
and the extinction of ownership.
13.18. Ownership continues with the landholder. Rights
of possession, transfer, inheritance and general
enjoyment remain intact, albeit subject to the
statutory burden. The existence of continuing
restrictions may affect the value and utility of
ownership, but does not extinguish ownership
itself.
13.19. It therefore follows that compensation must
reflect the practical burden imposed upon
ownership without proceeding upon the legal
assumption that ownership itself has been
acquired. The measure of compensation should
correspond to the degree of impairment
suffered and not proceed on the fiction that the
title has entirely vested in the authority.
13.20. The authorities relied upon by the respondents
reinforce this distinction. M. Babanna v. State
3
of Karnataka and the affirming Division
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Bench judgment proceeds on the basis that
compensation under Section 77 concerns
damage caused and not compensation for the
acquisition of title. Likewise, Power Grid
Corporation of India Limited v. Century
4
Textiles Industries Limited recognises the
distinction between transfer of ownership and
imposition of a statutory burden for public
infrastructure.
13.21. However, these authorities cannot be
understood as sanctioning nominal or illusory
compensation. Their reasoning necessarily
proceeds upon the assumption that
compensation remains real, effective and
responsive to actual prejudice suffered by the
landowner.
13.22. The Court is therefore unable to accept either
of the two extreme positions urged before it. It
cannot hold that compensation under the
BWSSB Act must invariably be equivalent to full
market value as in compulsory acquisition
proceedings. Equally, it cannot accept any
proposition that compensation should be
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confined merely to temporary surface damage
or minor physical disturbance.
13.23. The distinction between the nature of the right
and the measure of compensation assumes
critical significance. A statutory right of user
may remain a right of user in legal character
while simultaneously imposing consequences
sufficiently serious to justify substantial
compensation.
13.24. Compensation must therefore bear a rational
relationship to the actual burden created. Such
burden may include measurable diminution of
utility, restrictions upon construction, reduced
development potential, impairment of beneficial
enjoyment and other continuing consequences
arising from the existence and maintenance of
sewerage infrastructure.
13.25. The Court is also conscious that exact
quantification of continuing prejudice may not
always admit precise mathematical
determination. The effect upon development
potential, utility and future use may vary
considerably from property to property and
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frequently cannot be measured with complete
precision.
13.26. Courts are therefore occasionally required to
adopt a practical and equitable approach
capable of translating broad statutory principles
into meaningful relief. Such exercise does not
substitute judicial policy for legislative policy;
rather, it gives practical effect to the legislative
requirement of full compensation.
13.27. In the facts of the present case, the Court is of
the considered view that the burden imposed
extends significantly beyond transient
construction damage and creates a continuing
restriction upon ordinary use and enjoyment of
the affected area. At the same time, ownership
itself remains with the petitioners and the
statutory framework does not contemplate
acquisition of title.
13.28. In these circumstances, compensation
quantified at 50% of the market value of the
total affected land area represents a fair and
reasonable measure in the present facts. Such
quantification recognises that ownership rights
continue to remain with the petitioners while
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simultaneously acknowledging that the burden
imposed is substantially greater than temporary
inconvenience or surface disturbance.
13.29. The percentage adopted by this Court is not
intended as a rigid principle of universal
application but is adopted as an equitable
judicial measure on the facts presently
available, intended to translate the statutory
requirement of full compensation into a
practical and realistic monetary result where
exact quantification of continuing prejudice may
otherwise prove difficult.
13.30. The relevant date for determination of market
value shall be the date on which the pipeline
was laid. Where laying has not yet taken place
and survey or quantification remains
incomplete, the respondents shall complete
such exercise within the period stipulated by
this order and determine compensation
accordingly.
13.31. Accordingly, this court answers Point No. (iv) by
holding that compensation under Sections
39(2), 77(2) and 92(3) of the BWSSB Act is not
equivalent, as a matter of course, to
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compensation payable upon acquisition of
ownership because the statutory framework
does not effect transfer of title. However, such
compensation is not confined merely to
immediate physical damage but extends to
actual and measurable injury, whether
temporary or permanent, including injurious
affection, diminution of utility, impairment of
development potential and continuing burdens
arising from construction restrictions and
maintenance requirements. Upon the facts of
the present case, compensation is justly
quantified at 50% of the market value of the
total affected area, subject to survey and
determination in accordance with this order.
14. Answer to Point No (v): Whether the
restrictions imposed under Section 76 of the
BWSSB Act relating to non-construction and
maintenance clearances around sewer lines
result in such substantial deprivation of
proprietary rights as to necessitate the
acquisition of the land?
14.1. Sri Sampath A., learned counsel appearing for
the petitioners, strongly relied upon Section 76
of the BWSSB Act and submitted that the
statutory restrictions contained therein
substantially alter the nature and extent of the
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burden imposed upon private property.
According to him, the minimum clearance
requirement of one metre or half the diameter
of the sewer, whichever is greater, together
with the prohibition against construction over
Board sewers, has the practical effect of
sterilising the affected area for developmental
purposes.
14.2. Learned counsel submitted that the burden
created by Section 76 is not confined merely to
the exact physical alignment of the
underground pipeline. According to him, its
effect extends to adjoining portions of land
which are required to remain free from
construction and available for inspection, repair
and maintenance activities. It was therefore
contended that the resulting burden is
permanent and substantial and, in practical
effect, amounts to a deprivation serious enough
to require acquisition proceedings.
14.3. Per contra, Sri K.B. Monesh Kumar, learned
counsel appearing for the BWSSB, submitted
that Section 76 merely regulates activities in
the vicinity of Board sewers so as to ensure
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proper functioning, safety and maintenance of
the sewerage system. According to him, such
restrictions do not transfer ownership or require
acquisition of land but constitute regulatory
limitations incidental to the statutory right of
user created under Section 77.
14.4. Learned counsel further submitted that
ownership and title continue to remain with the
landowner and that the land may continue to
be utilised subject only to reasonable statutory
restrictions, with compensation remaining
available for actual injury caused.
14.5. Section 76 assumes particular significance in
the present controversy because it effectively
translates what initially appears to be a
subsurface engineering intervention into a
continuing legal restraint operating upon the
future use and enjoyment of property. The
grievance of the petitioners substantially arises
from this consequence because the impact of a
sewer line beneath land is not exhausted
merely by reference to the dimensions of the
pipe itself.
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14.6. The Court finds considerable force in the
petitioners' submission to the extent that the
legal effect of an underground sewer cannot be
measured merely by the physical diameter of
the pipeline. Section 76 prohibits construction
upon Board sewers and prescribes minimum
clearances where structures are proposed in
the vicinity of sewer lines and related
infrastructure. Therefore, the practical and legal
consequences necessarily extend beyond the
narrow strip physically occupied by the
infrastructure.
14.7. The Court considers it necessary to examine
more closely the juridical nature of the
restrictions created under Section 76. The
provision does not merely regulate conduct
during execution of sewerage works; it creates
a continuing legal restraint affecting the future
use of the burdened property. The restrictions
imposed are not temporary conditions
associated only with construction activity but
enduring limitations attached to the affected
land so long as the infrastructure remains in
existence.
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14.8. The significance of this feature cannot be
understated. In many urban and semi-urban
properties, the practical and economic value of
land is closely linked to its developmental
potential. The ability to construct, redevelop,
commercially utilise or structurally expand land
frequently constitutes one of the principal
incidents of beneficial ownership.
14.9. Consequently, where legislation restricts the
owner's ability to build over or near a
substantial portion of the property, the resulting
impact may extend beyond the precise physical
dimensions of the infrastructure itself. A
restriction measured in engineering terms by
reference to pipe diameter may, in practical
terms, influence the usability and planning
potential of a materially larger area.
14.10. Basement construction, structural planning,
redevelopment feasibility, commercial
utilisation, future expansion and other incidents
of beneficial use may all be affected by the
existence of underground utility infrastructure
and associated restrictions. These
consequences are neither speculative nor
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illusory and may, in an appropriate case, create
substantial and continuing prejudice.
14.11. The Court therefore accepts the petitioners'
submission to the limited extent that the
burden created by Section 76 is not symbolic or
insignificant. It may materially affect present
use, future planning and developmental
potential and therefore constitutes a continuing
burden of practical significance.
14.12. However, recognition of the seriousness of the
burden does not conclude the legal enquiry. The
crucial distinction lies between a restriction
regulating the exercise of ownership rights and
a measure extinguishing ownership itself.
14.13. Constitutional and property jurisprudence have
consistently recognised that ownership may
continue to exist subject to restrictions,
easements, servitudes and regulatory burdens.
Development controls, zoning regulations,
environmental restrictions and utility
easements frequently regulate the manner in
which ownership rights are exercised without
resulting in transfer or extinction of title.
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14.14. The existence of restrictions, even substantial
restrictions, therefore does not automatically
compel the conclusion that ownership stands
acquired in law. If every serious regulatory
burden were treated as compulsory acquisition,
the distinction between regulation and
acquisition, which remains deeply embedded in
property jurisprudence, would substantially
disappear.
14.15. At the same time, the Court cannot accept an
interpretation that treats restrictions under
Section 76 as mere incidental inconvenience.
Such an approach would fail to recognise the
true operational effect of the statutory
framework and would reduce the compensatory
safeguards contained within the legislation to
near meaninglessness.
14.16. The Court is therefore required to maintain
equilibrium between two competing legal
realities. The first is that ownership formally
and legally remains with the landholder. The
second is that the practical incidents of
ownership may nevertheless be materially
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burdened by the continuing restrictions created
under Section 76.
14.17. This balance is reflected within the statutory
framework itself. Section 77 expressly
preserves ownership while confining the Board
to a right of user. Section 76 simultaneously
recognises that effective maintenance,
operational integrity and safety of sewerage
infrastructure require restrictions upon
adjoining land use. The legislature has
therefore consciously created a model under
which ownership survives subject to operational
burdens necessary for preserving public
infrastructure.
14.18. These provisions cannot be read in isolation.
The Court cannot permit one provision to nullify
the other. If Section 76 were interpreted as
automatically requiring acquisition in every
case where construction restrictions arise, the
distinction consciously drawn by Section 77
between acquisition and user would become
substantially ineffective.
14.19. Conversely, if the Court were to minimise the
consequences arising from Section 76 and treat
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such restrictions as insignificant, the
interpretation would fail to recognise the real
burden imposed upon affected owners and
would substantially dilute the statutory
protections embedded within the legislation.
14.20. The proper reconciliation, therefore, lies in
recognising that Section 76 materially
strengthens the landowner's claim to realistic
and substantial compensation where the
statutory restrictions measurably reduce utility,
beneficial enjoyment or developmental
potential. The more serious the practical impact
arising from such restrictions, the stronger
becomes the claim for compensation reflecting
diminution of utility and injurious affection.
14.21. The Court also considers it important to
emphasise that the compensable burden cannot
always be confined to the exact strip physically
occupied by the sewer line. In practical terms,
the utility impact may extend into adjoining
areas rendered functionally restricted because
of statutory clearances, maintenance access
requirements or structural limitations arising
from the existence of the infrastructure.
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14.22. Consequently, where evidence establishes that
a broader impact zone has suffered measurable
prejudice affecting construction potential or
beneficial enjoyment, such consequences may
legitimately be considered while determining
the compensable area and assessing
compensation.
14.23. The Court is equally conscious that public utility
legislation of this nature necessarily involves
balancing private proprietary rights against
larger societal interests concerning sanitation,
environmental protection and urban
infrastructure. A statutory framework
permitting continuity of sewerage alignment
across multiple properties serves an important
public purpose and cannot be rendered
unworkable by insisting upon acquisition in
every case irrespective of the nature of the
burden imposed.
14.24. Yet public necessity cannot become a basis for
disregarding the seriousness of restrictions
imposed upon private ownership. The
constitutional legitimacy of the statutory
arrangement substantially depends upon
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meaningful safeguards ensuring that the
burden imposed upon individual landowners
remains proportionate and compensable.
14.25. It is for this reason that the reasoning adopted
while considering compensation under Point No.
(iv) assumes direct relevance. If the Court were
to recognise the continuing and substantial
nature of restrictions under Section 76 while
simultaneously awarding only nominal
compensation, the statutory balance between
public necessity and private rights would
collapse in practical operation.
14.26. Equally, if every restriction arising under
Section 76 were automatically treated as
compulsory acquisition, the Court would
effectively erase the legislative distinction
between ownership and user consciously
embodied within the BWSSB Act.
14.27. The Court therefore concludes that the legal
effect of Section 76 lies not in transforming
every sewer alignment into compulsory
acquisition but in significantly intensifying the
compensable burden imposed upon ownership.
The seriousness of the restriction affects the
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degree and measure of compensation payable
rather than the juridical character of the right
itself.
14.28. Accordingly, this court answers Point No. (v) by
holding that the restrictions imposed under
Section 76 may, in a given case, cause
substantial prejudice to use, enjoyment and
developmental potential of property and such
consequences must necessarily be taken into
account while determining compensation for
damage and injurious affection. However, such
restrictions do not, by themselves, transform
the statutory right of the user into compulsory
acquisition or require acquisition of land as a
matter of law in every case.
15. Answer to Point No (vi): Whether Section 127A
of the BWSSB Act mandates compulsory
acquisition of private lands whenever sewerage
pipelines or related infrastructure are laid
beneath or across such lands?
15.1. Sri Sampath A., learned counsel appearing for
the petitioners, submitted that Section 127A
reflects a clear legislative intention that
whenever private land is required for the
purposes of the BWSSB Act, the Board must
either purchase such land by agreement or
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seek acquisition through the State. According
to him, the very existence of Section 127A
demonstrates that permanent public utility
infrastructure beneath or across private
property cannot ordinarily be sustained without
acquisition proceedings or consensual transfer
of rights.
15.2. Learned counsel argued that once sewerage
infrastructure creates continuing rights of
access, maintenance obligations and
restrictions affecting development and
enjoyment of property, the burden ceases to
remain a mere right of user and enters the field
of acquisition. According to him, permitting the
Board to avoid acquisition in such
circumstances would substantially dilute the
protection intended to be afforded to private
property.
15.3. Per contra, Sri K.B. Monesh Kumar, learned
counsel appearing for the BWSSB, submitted
that Section 127A applies only where the Board
requires the acquisition of land itself or rights
substantially equivalent to ownership.
According to him, the provision does not
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override Sections 39 and 77, which
independently authorise laying of mains and
sewers through a limited statutory right of user
without acquisition.
15.4. Learned counsel submitted that the
interpretation advanced by the petitioners
would render Sections 39 and 77 substantially
redundant because every sewer alignment
across private property would automatically
require acquisition proceedings, thereby
defeating the distinction consciously maintained
by the legislature between acquisition and user.
15.5. The Court considers it necessary at the outset
to examine the place occupied by Section 127A
within the overall statutory framework of the
BWSSB Act. The provision authorises the
Board, subject to previous approval of the State
Government and in accordance with the
provisions of the Act, to purchase land by
agreement or seek acquisition of immovable
property through the State for purposes of the
Act.
15.6. The provision therefore undoubtedly recognises
that in appropriate cases the Board may require
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ownership of land or a more complete
proprietary interest for execution of its
statutory obligations. The very existence of
Section 127A demonstrates that the legislature
contemplated situations where acquisition may
become necessary.
15.7. However, the issue before the Court is not
whether the power of acquisition is available
under the Act. The real question is whether
Section 127A converts acquisition into a
mandatory prerequisite whenever sewerage
infrastructure traverses private property.
15.8. The Court is unable to accept such an
interpretation.
15.9. The starting point must necessarily be the
language employed by the statute itself.
Section 127A authorises the acquisition where
land is required for purposes of the Act. The
provision does not state that acquisition shall
be mandatory whenever infrastructure passes
across private land. Equally, it contains no
language expressly overriding Sections 39 or
77.
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15.10. In contrast, Section 77 expressly authorises the
Board to place and maintain sewers over,
under, along or across private property “without
acquiring the same” and specifically limits the
Board to acquisition of no right other than a
right of user.
15.11. The significance of this language cannot be
overlooked. Had the legislature intended
acquisition to be compulsory in every case
where a sewer line crossed private property,
Section 77 would necessarily have been framed
in substantially different terms. Instead, the
legislature consciously enacted both an
acquisition mechanism and a right-of-user
mechanism within the same enactment.
15.12. The existence of both provisions within the
same statutory framework indicates that the
legislature contemplated more than one legally
permissible route depending upon the nature
and extent of the rights required.
15.13. The Court must therefore adopt an
interpretation that gives meaningful operation
to both provisions simultaneously rather than
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permit one provision to substantially nullify the
other.
15.14. Harmonious construction is not merely a
technical principle of interpretation but a
necessary consequence of legislative
coherence. Where two provisions of the same
enactment are capable of operating together,
the Court must avoid an interpretation that
renders one of them ineffective, redundant or
otiose.
15.15. Acceptance of the petitioners' submission would
effectively transform Section 127A from an
enabling provision into a mandatory provision
and would reduce Section 77 into a provision of
little practical consequence. Such an
interpretation would be inconsistent with
established principles governing the
interpretation of statutes.
15.16. Equally, however, the Court is unable to accept
an interpretation reducing Section 127A to
insignificance. The respondents' interpretation
cannot be understood as meaning that the
Board may invariably resort to a right of user
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irrespective of the degree of burden imposed
upon property.
15.17. The Court considers it necessary to examine
the issue from a broader perspective. The
petitioners' argument proceeds upon the
assumption that whenever private land
becomes affected by a public project,
acquisition must necessarily follow. However,
such a proposition neither emerges from the
statutory text nor can it be accepted as a
universal principle of law.
15.18. Infrastructure legislation and property
legislation frequently operate through different
legal mechanisms depending upon the nature
of the interest required by the authority. In
some cases, public purposes can be achieved
only through the transfer of ownership or
possession. In other situations, the objective
may be accomplished through a more limited
legal entitlement such as a right of passage,
easement, servitude or statutory right of user.
15.19. The distinction between these legal
mechanisms is not merely a matter of
legislative drafting. It reflects recognition of an
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important practical reality that not every public
purpose requires complete acquisition of
ownership and not every burden imposed upon
land extinguishes proprietary rights.
15.20. Section 127A itself reflects this legislative
understanding. The provision does not declare
that the Board shall acquire land whenever land
becomes affected for purposes of the Act.
Rather, it merely creates a legal mechanism
through which acquisition may be undertaken
where circumstances require such acquisition.
15.21. The significance of the language employed
assumes importance. The provision is framed in
enabling terms. It authorises the Board to
purchase land or seek acquisition through the
State Government. It does not compel the
Board to resort to acquisition in every situation,
irrespective of the nature of the project or the
degree of interference involved.
15.22. Had the legislature intended acquisition to be
mandatory in every case where infrastructure
traversed private property, the enactment could
easily have employed explicit language to that
effect. Instead, the statute consciously
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preserves independent provisions enabling
execution of public works through a right-of-
user model.
15.23. Courts cannot convert an enabling provision
into a mandatory requirement merely because
another regulatory model may appear more
advantageous to affected individuals.
15.24. The Court is also unable to overlook the
practical consequences that would follow from
the interpretation suggested by the petitioners.
Sewerage systems function as integrated
networks extending across multiple properties
and are frequently designed according to
engineering requirements, topographical
realities, gravity-flow considerations and public
health requirements.
15.25. If acquisition proceedings were made
mandatory every time a pipeline crossed
private land, even for limited subsurface
alignments involving minimal interference, the
practical result would be a multiplication of
acquisition proceedings across numerous
parcels and a substantial impediment to the
execution of essential infrastructure.
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15.26. Such an interpretation would not merely create
administrative difficulty. It may substantially
impair the statutory object itself and frustrate
implementation of public infrastructure
intended to serve wider societal interests
concerning sanitation, public health and urban
planning.
15.27. However, administrative convenience cannot
become the sole determinant of legal
interpretation. Public necessity cannot justify
unrestricted intrusion upon private rights. The
fact that an acquisition may involve complexity
does not permit the authority to rely upon a
right of user in circumstances where the
practical burden imposed substantially exceeds
its legitimate boundaries.
15.28. It is in this context that Section 127A assumes
continuing significance. The provision performs
an important limiting function within the
statutory framework because it recognises that
circumstances may arise where a limited right
of user becomes inadequate and acquisition of
a fuller proprietary interest becomes necessary.
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15.29. The Court therefore considers Section 127A not
merely as an acquisition provision but also as
an interpretative indicator reflecting legislative
recognition of graded forms of interference with
private property.
15.30. The statutory framework does not proceed
upon a binary assumption that either there
must always be an acquisition or there must
never be an acquisition. Rather, the structure of
the Act indicates a spectrum of legally
permissible interference depending upon the
nature and extent of the rights required.
15.31. At one end of that spectrum lies temporary
entry and limited access for specified purposes.
At another lies a statutory right of user for
execution and maintenance of infrastructure. At
the far end lies acquisition, where ownership or
a substantially greater proprietary interest
becomes necessary.
15.32. The Court is of the considered view that this
graded structure provides the most coherent
understanding of the Act because it gives
meaningful effect to all relevant provisions
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without reducing any one of them to
redundancy.
15.33. The petitioners are therefore correct to the
limited extent that the Board cannot
mechanically rely upon Section 77 in every
situation, irrespective of the actual burden
imposed. The nature, extent and practical
consequences of the burden remain relevant
considerations.
15.34. Equally, the respondents are correct in
contending that the mere existence of Section
127A does not convert every sewer alignment
into a case requiring compulsory acquisition.
15.35. The proper enquiry, therefore, is not whether a
project affects private land, because every
sewer alignment crossing private property
inevitably affects land in some manner. The
relevant enquiry is whether the nature and
extent of the rights required remain capable of
being accommodated within a limited statutory
right of user.
15.36. Where the practical effect of the project
substantially exceeds the ordinary incidents of
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a right of user and approaches a level of
interference inconsistent with meaningful
ownership, the authority may be required to
resort to acquisition under Section 127A.
15.37. Conversely, where the statutory purpose can
reasonably be achieved through a limited right
of user accompanied by meaningful
compensation and procedural safeguards,
Sections 39 and 77 remain fully operative.
15.38. The Court therefore concludes that Section
127A strengthens rather than weakens the
conclusions already reached while considering
the earlier points. The Act recognises different
degrees of interference with private property
and provides different legal mechanisms
corresponding to those differing degrees of
interference.
15.39. Accordingly, this court answers Point No. (vi) by
holding that Section 127A of the BWSSB Act is
an enabling provision authorising acquisition
where land itself or a more substantial
proprietary interest is required for purposes of
the Act. It does not mandate compulsory
acquisition whenever sewerage pipelines or
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related infrastructure are laid beneath or across
private land. Sections 39 and 77 continue to
operate independently where the statute
contemplates execution through a limited right
of user. However, where the burden imposed
substantially exceeds the nature of a limited
user right and materially impairs meaningful
ownership, recourse to acquisition under
Section 127A may become necessary in an
appropriate case.
16. Answer to Point No (vii): Whether the actions
of the respondents in the facts of W.P.
No.8296/2015 and W.P. No.7754/2018 are
arbitrary, illegal or unconstitutional and
violative of the petitioners’ rights under Article
300A of the Constitution of India?
16.1. In W.P. No.8296/2015, Sri Sampath A., learned
counsel appearing for the petitioner, submitted
that the respondents attempted to lay an eight-
foot sewage pipeline through the petitioner's
land by treating an eroded portion adjoining a
Government drain as though it formed part of
the drain area itself, without undertaking any
survey, demarcation, acquisition proceedings or
lawful determination of the affected land.
According to him, despite the petitioner's
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assertion of title and specific grievance
regarding soil erosion affecting approximately
thirteen guntas of land, the respondents
proceeded on assumptions unsupported by any
formal exercise identifying the actual extent of
land affected.
16.2. In W.P. No.7754/2018, learned counsel
appearing for the petitioners submitted that the
BWSSB unlawfully entered the petitioners'
property, laid a five-foot pipeline and proposed
chambers without following the statutory
framework and without consent or
compensation. It was argued that while the
respondents sought to trace their authority to
Sections 76 and 77 of the BWSSB Act, such
provisions could not legitimise arbitrary
exercise of power or dispense with procedural
fairness.
16.3. The petitioners, therefore, contended that the
respondents proceeded as though private
property could be utilised as of right without
first lawfully identifying the affected area and
without undertaking any meaningful exercise
for the determination of compensation.
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According to them, such action amounted to an
arbitrary exercise of power violative of Article
300A of the Constitution.
16.4. Per contra, Sri K.B. Monesh Kumar, learned
counsel appearing for the BWSSB, submitted
that the actions complained of are traceable to
statutory authority under Sections 39, 77 and
92 of the BWSSB Act and therefore cannot be
characterised as unconstitutional merely
because acquisition proceedings were not
initiated.
16.5. Learned counsel argued that the statutory
obligation of the Board is to minimise damage
and compensate actual injury and not
necessarily to acquire land. Reliance was placed
3
upon M. Babanna v. State of Karnataka ,
the affirming Division Bench judgment and
the authorities already discussed to contend
that public interest in sewerage and sanitation
cannot be obstructed merely because the
project traverses private land.
16.6. The issue arising under this Point requires a
distinction of fundamental significance, namely
the distinction between the existence of
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statutory power and the legality of the manner
in which such power is exercised. The validity of
a statutory provision does not automatically
validate every individual action purportedly
taken under it. Equally, the existence of power
does not immunise its exercise from judicial
scrutiny.
16.7. The Court has already concluded while
answering the earlier points that the BWSSB
Act does confer authority upon the Board to
place and maintain sewerage infrastructure
through private property without compulsory
acquisition of ownership, subject to the
limitations, safeguards and compensatory
obligations embodied in the statute.
16.8. Therefore, the actions complained of cannot be
termed unconstitutional merely because
acquisition proceedings were not initiated. The
challenge raised by the petitioners cannot
succeed at the level of statutory competence
because the source of power itself is traceable
to express provisions of the enactment.
16.9. However, the conclusion that the Board
possesses statutory authority does not
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conclude the inquiry. The more important
question concerns whether such authority was
exercised in accordance with the conditions
attached by law and consistent with procedural
fairness.
16.10. In public law, legality extends beyond the
existence of authority and equally concerns the
manner of its exercise. A statutory authority
cannot rely upon the existence of power while
disregarding the limitations accompanying that
power. Exercise of power contrary to statutory
safeguards may become arbitrary even where
the source of authority itself remains valid.
16.11. The Court considers it necessary to examine
more closely the legal consequences arising
where statutory authority is exercised without
adequate factual determination. A statutory
power does not operate in a factual vacuum.
Every exercise of power necessarily
presupposes the existence of objective facts to
which the statutory provision is intended to
apply.
16.12. Therefore, the authority of law contemplated
under Article 300A is not satisfied merely
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because the statute exists. The statutory power
must also be exercised upon ascertainable facts
and within the limits contemplated by the
enactment.
16.13. Where exercise of power depends upon
identification of the land affected, the extent of
the burden imposed or the precise alignment
proposed, those matters cannot be left to
assumption or administrative approximation.
16.14. Survey and demarcation, therefore, assume
significance not merely as technical exercises
intended for administrative convenience. They
perform a more fundamental legal function
because they establish the factual basis upon
which the statutory right of user itself comes
into existence.
16.15. Unless the land affected is accurately identified,
several legal consequences become uncertain.
The authority itself may remain uncertain
regarding the precise area over which it claims
user rights. Equally, the landowner may remain
uncertain regarding the extent of restrictions
imposed upon the use and enjoyment of
property.
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16.16. Uncertainty at this stage inevitably affects the
determination of compensation because
compensation cannot meaningfully be assessed
in the abstract. Quantification of damage,
injurious affection, diminution of utility and
continuing prejudice necessarily requires
identification of the actual extent and nature of
the burden imposed.
16.17. It is in this context that the grievance raised in
W.P. No.8296/2015 assumes particular
significance. The petitioner does not merely
complain regarding the existence of a sewerage
project. The complaint concerns the factual
premise upon which the project alignment itself
is sought to be justified.
16.18. If the respondents proceed on the assumption
that an eroded portion adjoining an existing
drain forms part of public land or drain land
without first undertaking a lawful exercise of
survey and identification, the resulting action
may suffer from a defect going to the root of
the decision-making process itself.
16.19. The Court cannot ignore the practical
implications of such a course. Land boundaries,
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particularly where erosion, drains, water
channels and adjoining public areas are
involved, may become matters of considerable
factual complexity. Minor assumptions at the
stage of identification may ultimately produce
substantial consequences affecting ownership
rights and compensation entitlements.
16.20. Therefore, where the identity, extent or
ownership of the land traversed is disputed,
procedural fairness requires that proper survey
and demarcation precede implementation of the
statutory power.
16.21. Procedural fairness in this context does not
arise merely from abstract notions of natural
justice. It emerges directly from the statutory
framework itself. The scheme of the Act
repeatedly links the exercise of power with
corresponding obligations concerning
minimisation of injury and payment of
compensation.
16.22. Those obligations necessarily presuppose prior
identification of the property affected and
assessment of the burden created. It would be
internally inconsistent to hold on one hand that
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compensation must reflect actual injury and on
the other permit the authority to proceed
without identifying the area affected.
16.23. Similar considerations arise in relation to W.P.
No.7754/2018. The petitioners complain that
pipelines were already laid and chambers
proposed or constructed without consent and
without compensation.
16.24. To the extent the challenge is founded solely
upon the absence of consent, the respondents
are supported by the statutory provisions and
authorities already discussed because consent
does not constitute an indispensable condition
precedent for the exercise of the statutory right
of user under Section 77.
16.25. However, the absence of consent cannot be
conflated with the absence of accountability.
The statutory power under Section 77 does not
create a zone of unreviewable discretion.
16.26. Even where prior consent is unnecessary,
exercise of power remains subject to procedural
discipline and legal accountability. The Court is
unable to accept an interpretation under which
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the authority may lawfully enter upon private
property, execute permanent infrastructure and
indefinitely postpone questions concerning
compensation or identification of affected
areas.
16.27. Such an interpretation would substantially
weaken the balance consciously embedded by
the legislature between public necessity and
private rights and may permit the right of user
to assume characteristics approaching
unrestricted occupation.
16.28. The Court is equally conscious of the limits of
writ jurisdiction in such matters. Judicial review
does not ordinarily extend to the substitution of
technical decisions concerning engineering
feasibility, route alignment or infrastructure
design undertaken by specialised authorities.
Nor can the Court prohibit public utility projects
merely because private lands are affected.
Sewerage and sanitation projects involve
broader public interests and frequently require
technical evaluation beyond the institutional
competence of a writ Court.
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16.29. However, judicial restraint cannot be confused
with judicial abdication. Courts remain under a
constitutional obligation to ensure that the
exercise of statutory power remains anchored
to legality, factual certainty and procedural
fairness.
16.30. The present case illustrates this distinction. The
Court does not sit in appeal over engineering
decisions nor does it redesign the project itself.
The Court intervenes only to ensure that
implementation proceeds upon verified facts
and with meaningful compliance with statutory
safeguards. Such intervention does not obstruct
public projects; rather, it strengthens their legal
legitimacy by ensuring that the burden of public
infrastructure is distributed through lawful
procedures rather than unilateral assumptions.
16.31. The Court therefore concludes that the defect
alleged by the petitioners, insofar as it concerns
survey, demarcation and compensation
assessment, relates not to the absence of
statutory authority but to the manner of
implementation of that authority.
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16.32. Accordingly, this court answers Point No. (vii)
by holding that the respondents' actions cannot
be held unconstitutional merely because
acquisition proceedings were not undertaken,
since the statutory framework authorises laying
of sewerage infrastructure through a right-of-
user model. However, the actions become
vulnerable to judicial correction to the extent
the respondents failed to undertake proper
survey and demarcation where factual disputes
regarding the affected area arise, or failed to
assess and determine compensation for actual
damage and injurious affection in accordance
with the Act. The challenge under Article 300A,
therefore, fails at the level of statutory power
but succeeds to the limited extent of requiring
lawful and procedurally fair implementation of
that power.
17. Answer to Point No (viii): Whether the
petitioners are entitled to the reliefs sought for
in the present writ petitions?
17.1. The petitioners sought multiple and distinct
reliefs in the present proceedings. In W.P.
No.8296/2015, the petitioner sought removal of
the sewerage pipeline, prior survey and
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demarcation of the land, compensation for
alleged injury caused and construction of a
retaining wall. In W.P. No.7754/2018, the
petitioners sought a declaration that Section 77
of the BWSSB Act is unconstitutional to the
extent challenged and further sought
compensation under the provisions of the 2013
Act.
17.2. The foundation of the petitioners' case was that
the respondents could not lawfully burden
private property through sewerage
infrastructure without first acquiring the land or
obtaining consensual transfer of rights and that
the Court should grant complete protection
against such interference.
17.3. Per contra, the respondents opposed the
substantive reliefs sought and contended that
the writ petitions are liable to be dismissed
because the Board's actions are traceable to
statutory authority. According to them, the
petitioners, at the highest, may only be entitled
to compensation for actual damage or injurious
affection if established in accordance with law.
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17.4. This Court has already held while answering the
preceding points that the BWSSB Act authorises
laying and maintenance of sewerage
infrastructure beneath or across private
property through a statutory right-of-user
framework without compulsory acquisition of
ownership in every case. The Court has also
held that Sections 39, 76 and 77 do not suffer
from constitutional infirmity and that
acquisition under the 2013 Act is not an
invariable prerequisite whenever sewerage lines
traverse private land.
17.5. Those conclusions necessarily govern the
nature and extent of relief that may now be
granted. Once the Court has upheld the
statutory power and rejected the proposition
that acquisition is mandatory in every case,
relief cannot be granted in a manner that
indirectly defeats those conclusions.
17.6. Consequently, the petitioners are not entitled to
a declaration that Section 77 is
unconstitutional, nor are they entitled to a
direction that acquisition proceedings under the
2013 Act become mandatory whenever
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sewerage pipelines are laid beneath private
property. Equally, the petitioners cannot seek
removal of pipelines already laid or proposed to
be laid merely upon the general premise that
private property cannot be burdened without
acquisition. However, rejection of the broader
constitutional and acquisition-based challenges
does not automatically result in dismissal of the
petitions in their entirety.
17.7. The Court has already concluded that while the
statutory power itself is valid, exercise of that
power remains subject to procedural
safeguards, factual determination and
meaningful compensation.
17.8. The distinction between rejection of the
principal legal challenge and entitlement to
consequential relief assumes significance in the
present case. A litigant may fail in establishing
invalidity of the statute while nevertheless
succeeding in demonstrating that
implementation of statutory power requires
corrective intervention.
17.9. The Court considers it necessary to examine
more closely the nature of relief that ought to
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follow from the conclusions already reached.
Grant of relief in writ jurisdiction is not a
mechanical consequence of identifying some
legal infirmity, nor does rejection of a principal
challenge necessarily require dismissal of all
consequential claims.
17.10. Public law adjudication frequently requires a
calibrated approach because disputes may
involve several distinct layers of challenge,
including constitutional validity of legislation,
legality of administrative action and
consequential injury arising from
implementation.
17.11. The present proceedings illustrate precisely
such a situation. The petitioners have
challenged both the legal framework and the
manner of implementation. While the broader
challenge to the statutory framework has failed,
the Court has simultaneously recognised
deficiencies concerning survey, identification of
affected areas and compensation
determination.
17.12. The Court therefore considers it necessary to
mould relief in a manner that preserves
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coherence between legal principle and practical
outcome.
17.13. The present dispute, in essence, concerns the
manner in which the burden of public
infrastructure is distributed. Public benefit
derived from infrastructure projects cannot be
achieved through unilateral transfer of
disproportionate burdens upon a limited class
of affected landowners without adherence to
statutory safeguards. The proper judicial
approach lies in ensuring that public
infrastructure proceeds while simultaneously
requiring compliance with the conditions which
the legislature itself has attached to exercise of
power.
17.14. In W.P. No.8296/2015, the grievance regarding
the disputed portion adjoining the drain
assumes significance because factual
identification of the affected area forms the
foundation upon which all subsequent rights
and obligations rest. Without such
identification, the extent of the burden imposed
remains uncertain and compensation
determination necessarily becomes speculative.
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17.15. Therefore, before further work is undertaken in
the disputed portion, the respondents shall
conduct a proper survey and demarcation
exercise after issuing notice to the petitioner so
that the exact alignment, ownership position
and precise land affected are formally
identified. Such direction does not obstruct the
execution of the project itself. Rather, it ensures
that implementation proceeds upon factual
certainty and lawful identification of the
affected area.
17.16. The petitioner's claim concerning erosion and
retaining measures cannot be granted in the
broad form presently sought because the
material placed before the Court does not
permit definitive adjudication regarding
causation and quantification.
17.17. Nevertheless, such a grievance cannot be
disregarded altogether. The respondents shall
examine and determine any claim concerning
actual damage attributable to execution of
sewerage work, including claims relating to
erosion, soil displacement or consequential
injury, in accordance with the statutory
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framework and findings emerging from the
survey exercise.
17.18. In W.P. No.7754/2018, the petitioners are not
entitled to compensation under the 2013 Act as
though ownership of land stood compulsorily
acquired because the Court has already
rejected that legal premise.
17.19. However, they remain entitled to the
determination of compensation for actual
damage and injurious affection under Sections
39(2), 77(2) and 92(3) of the BWSSB Act.
17.20. The Court has already held that compensation
under the statutory framework is not confined
merely to immediate physical injury and may
extend to diminution of utility, impairment of
developmental potential, restrictions upon
beneficial enjoyment and other continuing
consequences where established.
17.21. Therefore, the respondents shall undertake an
exercise to identify the direct alignment area
together with the restricted or affected area
arising from statutory limitations and determine
compensation accordingly.
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17.22. The Court also considers it necessary to
address the question of interest. Compensation
awarded after a substantial delay, without
accounting for the period during which the
landowner has already suffered the burden,
may not fully restore the position intended by
the statutory framework.
17.23. The rationale for awarding interest does not
arise by way of penalty upon the authority but
by way of restitution because the owner suffers
continuing deprivation of the monetary
equivalent of the injury already sustained.
17.24. Accordingly, where pipelines have already been
laid and compensation remains unpaid, the
respondents shall pay compensation together
with interest from the date of laying of the
pipeline until payment.
17.25. In cases where compensation requires fresh
determination pursuant to this judgment, the
respondents shall complete the exercise within
the period stipulated in the operative portion of
this order and failure thereafter shall attract
interest from the date of default.
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17.26. Such distinction appropriately aligns relief with
the stage at which compensable injury arises
and maintains consistency between legal
principle and practical implementation.
17.27. The Court therefore concludes that the
appropriate remedy is neither complete
prohibition of the project nor complete rejection
of the petitions. The remedy must preserve the
public utility project while simultaneously
ensuring lawful implementation, factual
certainty and meaningful compensation.
17.28. Accordingly, the writ petitions deserve to be
partly allowed to the limited extent of ensuring
due survey and demarcation where necessary,
identification of affected areas, assessment and
determination of compensation for actual
damage and injurious affection and payment of
compensation in accordance with the statutory
scheme and findings recorded in this judgment.
17.29. The broader challenge to the constitutional
validity of the statutory provisions and the
insistence upon compulsory acquisition as the
exclusive lawful route stand rejected.
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18. Answer to Point No (ix): What Order?
18.1. In view of the answers to Point No. (i) to Point
No.(ix), this Court passes the following:
ORDER
i. W.P. No.8296/2015 and W.P.
No.7754/2018 are partly allowed in the
following terms.
ii. The challenge to the constitutional validity
of Section 77 of the BWSSB Act, and to
Sections 39, 76 and 77 on the grounds
urged in these petitions, is rejected.
iii. It is declared that the Bangalore Water
Supply and Sewerage Board is empowered
under Sections 39, 76, 77 and 92 of the
BWSSB Act to lay and maintain sewerage
pipelines over, under, along or across
private property without acquiring
ownership rights over such land, but only
as a limited statutory right of user and
subject to the obligations contained in the
Act.
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iv. It is further declared that the petitioners
are not entitled, as a matter of course, to
compensation under the Right to Fair
Compensation and Transparency in Land
Acquisition, Rehabilitation and
Resettlement Act, 2013 merely because
sewerage lines are laid beneath or across
their lands under Section 77 of the
BWSSB Act.
v. In W.P. No.8296/2015, before undertaking
any further work in the disputed portion
adjoining the drain, the respondents shall
conduct a proper survey and demarcation
of the petitioner’s land with due notice to
the petitioner and shall thereafter proceed
strictly in accordance with such
demarcation and the BWSSB Act.
vi. In both writ petitions, the competent
authority of the BWSSB shall assess,
determine and pay compensation, if any,
payable to the respective petitioners for
actual damage, whether permanent or
temporary, and for injurious affection
caused to the land by reason of laying,
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existence, access, maintenance, repair,
alteration or renewal of the mains or
sewers, in accordance with Sections
39(2), 77(2) and 92(3) of the BWSSB Act.
vii. Such exercise shall be completed by a
reasoned order, after affording an
opportunity to the concerned petitioners
to place their materials on the nature and
extent of damage or injurious affection,
within an outer limit of four months from
the date of receipt of a certified copy of
this order.
viii. The prayer for removal of sewerage
pipelines, the prayer for declaration that
Section 77 is unconstitutional, and the
prayer for acquisition-based compensation
under the 2013 Act stand rejected.
ix. All pending interlocutory applications, if
any, stand disposed of in the above terms.
Sd/-
(SURAJ GOVINDARAJ)
JUDGE
LN
List No.: 1 Sl No.: 96