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Karnataka High Court

Sri K Rama vs The Assistant Commissioner on 26 February, 2013

Author: Mohan .M. Shantanagoudar

Bench: Mohan .M. Shantanagoudar

                            1


IN THE HIGH COURT OF KARNATAKA AT BANGALORE

 DATED THIS THE 26TH DAY OF FEBRUARY 2013

                        BEFORE

 THE HON'BLE MR.JUSTICE MOHAN .M. SHANTANAGOUDAR

          W.P.NOS.9756-9757 OF 2013 (GM-RES)

BETWEEN

 1      SRI K RAMA
        S/O LATE GOVINDA SHERIGAR,
        AGE 54 YEARS

 2      SMT SHARADA
        W/O VIJAYAKUMAR,
        AGED ABOUT 46 YEARS,

        BOTH RESIDING AT
        YADTHARE VILLAGE
        BYNDOOR HOBLI
        KUNDAPURA TALUK
         UDUPI TALUK-576 214.
                                     ... PETITIONERS

(By Sri:N. RAJASHEKAR, ADV., )

AND :

 1      THE ASSISTANT COMMISSIONER
        KUNDAPURA DIVISION,
        KUNDAPURA -576 201.

 2      THE DEPUTY COMMISSIONER
        UDUPI DISTRICT,
        UDUPI-576 101.

 3      THE PROJECT DIRECTOR
        NIRMITHI KENDRA,
                              2


     RAJATHADRI BUILDING,
     UDUPI
     UDUPI DISTRICT 576 101.

 4   THE SPECIAL TAHSILDAR
     BYNDOOR,
     KUNDAPURA TALUK,
     UDUPI DISTICT-576 214.
                                      ... RESPONDENTS

(By Smt:S. SUSHEELA, AGA )

     THESE WRIT PETITIONS ARE FILED UNDER ARTICLE
226 AND  OF THE CONSTITUTION OF INDIA PRAYING
TO     DIRECT THE RESPONDENTS TO EXECUTE
CONSTRUCTION OF THE MINI VIDHANA SOUDHA IN
SY.NO.334/3 MEASURING 1.92 CENTS, IN MR.NO.178/12-
13 DT.4.12.12 OF YADTHARE VILLAGE, BYNDOOR HOBLI,
KUNM TQ. UDUPI DIST. IN TERMS OF THE ORDER
PASSED BY THE ASSISTANT COMMISSIONER IN
MUTATION DT.4.12.12, VIDE ANN-D, WITHOUT CLOSING
OR DISTURBING THE EXISTING ROAD SITUATED IN THE
SAID LAND WHICH RUNS FRO NH17 TO TRAVELLERS
BUNGALOW FOR A DISTANCE OF 80 METRES.

     THESE WRIT PETITIONS COMING ON FOR
PRELIMINARY HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:-
                          ORDER

Smt. S. Susheela, learned Addl. Govt. Advocate is directed to take notice for respondent Nos.1 to 4.

The petitioners have sought for the following relief:-

i. issue a writ of mandamus directing the respondents to execute construction of the mini Vidhana Soudha in Sy.No.334/13 measuring 1.92 cents in M.R.No.178/12-13 dated 4.12.12 of Yadthare village, Byndoor Hobli, Kun:Taluk, Udupi District, in terms of the order passed by the Assistant Commissioner in mutation No.LND CR No.178/12-13 dated 4.12.2012 Annexure-D without closing or disturbing the existing road situated in the said land which runs from NH-17 to Travellers Bungalow for a distance of 80 metres, in the interest of justice and equity.

2. According to the petitioners, the proposed construction of Mini Vidhana Soudha at Yadthare Village, Byndoor Hobli, Kundapura Taluk, Udupi District may close/obstruct the existing road situated in the land bearing Sy.Nos.334/13 measuring 1.92 cents, which runs from National Highway No.17 to Travellers Bungalow for a distance of 80mt. The petitioners rely upon the judgment of the Civil Court passed in O.S.No.413/1988 passed by Prl. Civil Judge, Kundapura to argue that the petitioners has got right of way.

3. O.S.No.413/1988 is filed by Smt. Bibi Mahimoon, W/o M.M. Meeran for bare injunction. Said suit is decreed restraining the defendants therein i.e., The Sub-Divisional Officer, The Director of Telecommunications, 5 Mangalore Division, Mangalore and The Superintendent of Posts, Udupi Division and The Government of India, Department of Communications by way of permanent injunction not to obstruct the peaceful enjoyment of 14 ft width pathway from National Highway No.17 to the 'A' Schedule property. The petitioners cannot take advantage of the said decree. Neither the petitioners nor the respondents were parties to the said suit. If the petitioners still feel that they have got any right of way, they have to get right of easement declared. It is open for the petitioners to approach the Court by filing appropriate constituted suit.

3. The petitioner cannot ask this Court to interfere with the policy of the State Government 6 to construct Mini Vidhana Soudha at a particular place, particularly when such policy decision is not irrational. Admittedly, the property in question over which the building is sought to be constructed is a Government property. If it is so, it is open for the respondents to construct Mini Vidhana Soudha as per law.

However, it is needless to observe that if the petitioners have got right of way, it is open for the petitioners either to oppose or to file a civil suit. Accordingly, writ petitions fail and the same stand dismissed.

Sd/-

JUDGE *mn/-