India: BBMP Demolition Drive On SWD / Rajakaluve Encroachments In Bengaluru

I. Overview

In the month of August 2022, the city of Bengaluru during its monsoon season, particularly experienced heavy rainfall leading to congested roads and floods resulting in the displacement of infrastructural facilities located within and at the extended areas of the city. The reason however, for such a situation was not entirely connected to heavy rainfall, it was also attributed to the building structures which were laid down on the storm water drains, the mismanagement of resources and haphazard administration of the governing bodies responsible for the maintenance of such storm water drains, thereby obstructing the flow of rainwater which rendered the city in a handicapped state of affairs. The Bruhat Bangalore Mahanagara Palike ("BBMP"), carried out anti-encroachment drives in its attempt to arrive at a solution for the intense flood conditions and one such incident was on 17 August 2022, wherein the BBMP released a notification¹, issued by the Joint Commissioner listing 15 (fifteen) different real estate developers as well IT Parks in specific to the Mahavedpura constituency as entities who had encroached the areas of the storm water drains ("SWD") also termed as 'Rajakaluve'. The management and use of SWDs is interconnected in various ways to governance as well as the implications on the occupants, land developers which need to be considered in terms of its impact on the environment.

II. The statutory requisites in relation to SWD or the Rajakaluve

The statutory provisions pertaining to the management of SWD or Rajakaluves are primarily governed through byelaws. Drains, and particularly SWDs have been defined under the Karnataka Panchayat Raj (Management of Solid Waste) Model Bye-laws, 2020. The provisions are mentioned in brief in the table below:

III. Challenges regarding management of SWDs and encroachment activities

1. The first challenge is in relation to the discrepancies between the master plan of drains collated by the BBMP as well as the master plan of the Bangalore Development Authority ("BDA"). While both the master plans lay down an intricate map, detailing the lines of the various kinds of drains that fall within the pathways and roads of the city, the Rajakaluves remain out of clear focus and particularly, the indications of buffer zones are overlooked entirely. The BDA master plan although demarcates the SWD network under the primary and secondary and tertiary drains, however, omits the requirement to indicate the type of drain that SWD falls within amongst the three types mentioned therein. On the other hand, with respect to BBMP master plan, the map has omitted the markings and layout plan of tertiary drains or SWDs entirely. The result of the discrepancy amongst the 2 (two), collectively leads to a deprivation of comprehensive master plan.
   
   
2. Secondly, the Comptroller and Auditor General ("CAG") Report of 2021 on storm water management, delivers detailed chapter wise observations regarding the mismanagement and shortcomings of the BBMP as well as other state government authorities with respect to SWD. The report highlights rampant encroachment activities² due to the significant increase in building structures as the city has observed a drastic increase in its population over the last few years. From failure of adherence of regulatory framework under the central and the state government to its poor execution with respect to planning and financial management, the report also emphasizes on the fallacies of the authorities to devise a mechanism which accommodates a structure that is beneficial in the interest of the public at large. The imbalance between rapid increase of infrastructure – ranging from tech parks to large scale housing projects within Bengaluru developed by encroaching on improper drainage systems, and the limited land area has resulted in environmental damage, leading to floods, overcrowding, and interruption with the operations of the city – all of which remains the crucial takeaway from the audit report.
   
   
3. Lastly, the challenge also remains with respect to the non-compliance with relevant orders and pronouncements by the Hon'ble High Court of Karnataka. The appellate court, in the form of writ petitions and public interest litigations has expressed the need to regulate and prevent encroachments particularly on the SWDs. The courts recognise that the situation of flooding and damage to the city is due to such encroachments and that structures erected on or in the pathways of such drains not only has led to rainwater to be drained into sewage systems but has also contaminated drinking water facilities and blockage of drains due to silt collection in drainage systems. In the unresolved, yet ongoing dispute before the principal bench at the High Court of Karnataka³, the court noted its dissatisfaction over the neglect and defiance of the state government and the BBMP to comply with the previous order of the court dated 18 June 2019, regarding "storm water drains and removal of encroachments on the drains". The recent orders of the High Court in the case of Citizens Action Group vs State of Karnataka, dated 21 October 2022, the High Court observed that "steps are to be taken for removal of encroachments on storm water drains as well as steps taken to ensure for prevention of dumping of garbage and all other wastes on all storm water drains" – the details on such actions taken shall be provided to the court before the next date of hearing, which is awaited in the forthcoming days.

IV. Conclusion

It is concluded from the challenges that there exists a need of a detailed and comprehensive plan in relation to the drainage systems. Non-adherence to pre-requisites while obtaining approvals, licenses and sanction plans for building structures while developing housing projects, commercial spaces, and tech parks within the city of Bengaluru not only leads to breakdown of such civic amenities but also puts at risks the welfare of citizens within the city. The National Green Tribunal in 2016, delivered an order⁴ instructing revised measurements of buffer zones and imposing a penalty on the entities – Mantri Tech Zone and Core Mine Software encroaching the Rajakaluves. The Supreme Court⁵ however, quashing the order on revised buffer zones, retained and imposed the hefty penalty of 117.35 crores and 13.5 crores respectively. Thus, the vigorous and continuous efforts of the judiciary instructing the state government and the BBMP to conduct timely checks and inspections as well as to carry out anti-encroachment drives concerning management of drainage systems has proven to be a proactive step towards de-congesting the situation in the city of Bengaluru.

Footnotes

1. Notification No AEE/SWD/MDP/PR/185/22-23, Assistant Executive Engineer, Storm Water Drain (Mahadevpura), Bruhat Bangalore Mahanagara Palike, 'List of SWD Encroachments done by IT Parks and Developers in Mahadevpura Constituency', (17 August 2022).

2. Report No 2, Government of Karnataka, Report of the Comptroller and Auditor General of India, Performance audit of Management of storm water in Bengaluru Urban Area, List of Appendices, No 5.1, Pg 119 (2021), attached here.

3. Citizens Action Group v. State of Karnataka, W.P No 38401/2014.

4. Forward Foundation and Others v. State of Karnataka and Others, 2016 SCC OnLine NGT 1409.

5. Mantri Techzone Private Limited v. Forward Foundation and others, (2019) 18 SCC 494.

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