Karnataka High Court
M P Nanjappa vs State Of Karnataka on 9 January, 2025
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W.A. No.1065/2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JANUARY, 2025
PRESENT
THE HON'BLE MRS. JUSTICE ANU SIVARAMAN
AND
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
WRIT APPEAL NO.1065/2016 (LB-UC)
BETWEEN:
1. M.P. NANJAPPA
S/O LATE BASAPPA
AGED 75 YEARS
OCCUPATION: BUSINESS
R/O. PATIL BUILDING, B.H.ROAD
SHIVAMOGGA-577201.
Digitally signed
by ARSHIFA 2. SMT. LEELA .P
BAHAR KHANAM D/O LATE CHANNABASAPPA
Location: HIGH AGED 66 YEARS
COURT OF
KARNATAKA OCCUPATION: HOUSEWIFE
R/O. KASETTY BUILDING, B.H.ROAD
SHIVAMOGGA-577201.
3. MOHAMMED SHARIFF
SINCE DECEASED REP. BY HIS LR'S.
a) H.M. VASIULLA SHARIFF
S/O LATE H. MOHAMMED SHARIFF
AGED 47 YEARS
OCCUPATION: BUSINESS
R/OF NO.66, SAVIPALYA
SHIVAMOGGA CITY-577201.
4. K.B. NAGARAJ
S/O LATE BENAKAPPA
AGED 76 YEARS
OCCUPATION: BUSINESS
R/O KBN COMPLEX
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W.A. No.1065/2016
PWD QUARTERS ROAD
SHIVAMOGGA CITY-577201.
5. K. SUMATHI NAYAK
SINCE DECEASED REP. BY HER LR'S.
a) K. MOHAN DAS NAYAK
S/O LATE LAKSHMINARAYAN NAYAK
AGED 55 YEARS
OCCUPATION: BUSINESS
R/O. 1ST CROSS, N.T.ROAD
SHIVAMOGGA-577201.
6. SHIVAKUMAR .K
S/O LATE M.B. KASETTY
AGED 52 YEARS
MANAGING PARTNER
M/S. KASETTY & COMPANY
B.H.ROAD, SHIVAMOGGA-577201.
7. M/S. ANANTHA ENTERPRISES
A PARTNERSHIP FIRM
REPRESENTED BY ITS PARTNER
SRI. B. RAGHAVENDRA
S/O B. ANANTHAIAH
AGED 46 YEARS
1ST CROSS, N.T.ROAD
SHIVAMOGGA CITY-577201.
8. K. UPENDRA NAYAK
SINCE DECEASED REP. BY HIS LR'S.
a) K. ANANTHA NAYAK
AGED 55 YEARS
R/O. 1ST CROSS, N.T.ROAD
SHIVAMOGGA-577201.
9. VIMALA BAI
SINCE DECEASED REP. BY HER LR'S.
a) K. RAMANAND NAYAK
AGED 51 YEARS
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W.A. No.1065/2016
R/O. 1ST CROSS, N.T.ROAD
SHIVAMOGGA-577201.
...APPELLANTS
(BY SRI. UMESH MOOLIMANY, ADV., FOR
SRI. S.V. PRAKASH, ADV.,)
AND:
1. STATE OF KARNATAKA
BY ITS SECRETARY TO GOVERNMENT
DEPARTMENT OF URBAN DEVELOPMENT
VIDHANA SOUDHA
BENGALURU-560001.
2. SHIVAMOGGA MUNICIPAL CORPORATION
SHIVAMOGGA-577201
REPRESENTED BY ITS COMMISSIONER.
3. THE DEPUTY COMMISSIONER
SHIVAMOGGA DISTRICT
SHIVAMOGGA-577201.
4. EXECUTIVE ENGINEER
KARNATAKA RURAL INFRASTRUCTURE
DEVELOPMENT LTD.,
100 FEET ROAD, OPP. LIC OFFICE
GOPALAGOWDA EXTENSION
SHIVAMOGGA-577205.
...RESPONDENTS
(BY SRI. DEVARAJ C.H. GOVT., ADV., FOR R1 & R3
SRI. RAVISHANKAR, ADV., FOR
SRI. A.V. GANGADHARAPPA, ADV., FOR R2
R4 SERVED AND UNREPRESENTED)
THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA
HIGH COURT ACT, PRAYING TO SET ASIDE THE INTERIM
ORDER GRANTED BY THE LEARNED SINGLE JUDGE DATED
07.04.2016 IN W.P.NO.16784-16788/2016 AND W.P.No.16789-
16792/2016 AND GRANT THE INTERIM ORDER AS PRAYED FOR
IN THE WRIT PETITION BY ALLOWING THIS WRIT APPEAL IN
THE ENDS OF JUSTICE & ETC.
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W.A. No.1065/2016
THIS APPEAL, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS. JUSTICE ANU SIVARAMAN
and
HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL) The petitioners in W.P.No.16784/2016 have filed this appeal challenging the interim order dated 07.04.2016 passed by the learned Single Judge.
2. Heard the learned counsel for the appellants, learned counsel for the respondent Nos.1 & 3 and learned counsel for respondent No.2.
3. Learned counsel for the appellants submits that the appellants have been served with the notice by the Corporation alleging that they have encroached the conservancy lane in contravention of the provisions of the Karnataka Municipal Corporations Act, 1976, (for short, 'KMC Act').
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4. It is submitted that the writ petitions are filed seeking directions to respondent No.2- Corporation to maintain the conservancy lane situated in ward No.29 in front of KSRTC bus stand and behind Ashoka Hotel, Shivamogga City free from any type of construction. It is further submitted that the respondent- Corporation proposed to put-up construction in the said conservancy lane for the purpose of establishment of food court, fruit & vegetable stalls and parking. It is also submitted that the appellants-petitioners are the owners of the small houses adjacent to the conservancy lane and if the conservancy lane is covered with the structure, the appellants would be put to hardship and the action of the Corporation is in contravention to the provisions of the KMC Act.
5. It is contended that the learned Single Judge in W.P.No.45645/2015 on 16.10.2015 has granted interim order directing respondent Nos.2 to 4 - Corporation to stop all further constructions in the conservancy until -6- NC: 2025:KHC:852-DB W.A. No.1065/2016 further orders and the said interim order was continued and similar interim orders were also passed in the case of appellants.
6. It is further contended that the learned Single Judge, without considering the merits of the case has passed the impugned interim order dated 07.04.2016 permitting the respondent-Corporation to proceed with the construction in the conservancy lane and it has directed not to allot the constructed shops to the petitioners. Such an order of the learned Single Judge would make the writ petitions infructuous, hence, the appellants-petitioners are compelled to file the present appeals seeking protection till the disposal of the writ petitions.
7. Per contra, learned counsels appearing for the respondents submit that the matter requires detailed consideration with regard to usage of the conservancy lane. It is submitted that this Court, vide order dated 30.08.2019 has directed the Corporation not to use the conservancy lane for any purpose except as a public street -7- NC: 2025:KHC:852-DB W.A. No.1065/2016 and the said interim order is in force. It is also submitted that in view of the said interim order, the Corporation has not proceeded with the construction activity in the said conservancy lane. It is contended that the writ petitions are required to be disposed of on merits. Hence, they seek to dispose of the present appeals.
8. We have heard the arguments of the learned counsel appearing for the parties and perused the material available on record.
9. The material available on record indicates that the appellants-petitioners and similarly placed persons are contending that they are the adjacent owners of the conservancy lane which passes in ward Nos.18 and 29 of Shivamogga City and in the said conservancy lane, respondent No.2-Corporation intends to put up construction for the purpose of establishment of food court, fruit & vegetable stalls and parking. The issue with regard to alleged encroachment of said conservancy lane by the appellants-petitioners and usage of conservancy -8- NC: 2025:KHC:852-DB W.A. No.1065/2016 lane for the purpose of construction of food court, fruit & vegetable stalls and parking, etc., is required to be considered in the pending writ petitions on their merits. This Court, in order to protect the interest of the parties has passed the interim order on 30.08.2019 which reads as under:
"The first issue which arises for consideration is whether the conservancy lanes will be covered by the definition of sub-section 31 of Section 2 of the Karnataka Municipal Corporation Act, 1976 (for short 'the said Act of 1976). The second issue which arises for consideration is whether the conservancy lanes can be used by the Corporation established under the said Act of 1976 for allowing the vendors to sit thereon or for parking of the vehicles.
These issues will have to be gone into. We, therefore, direct that these matters shall be placed for final disposal.
Let the matters be listed on 26th September 2019.
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NC: 2025:KHC:852-DB W.A. No.1065/2016 We make it clear that till the matters are heard by this Court, the Corporation shall not use the conservancy lanes for any purpose except as a public street within the meaning of sub-section 31 of Section 2 of the said Act of 1976 especially in the light of the stand taken by the State Government (Deputy Commissioner) that the conservancy lanes are covered by the definition of public street."
10. In view of the aforesaid interim order, we are of the considered view that the interest of the appellants is protected during the pendency of the writ petitions and the pending writ petitions are required to be considered and disposed of on merits. Hence, we are of the view that the interim order dated 30.08.2019 granted in this appeal is required to be continued till the disposal of the W.P.No.16784-16788/2016 & 16789-16792/2016 filed by the appellants-petitioners and other similarly placed persons. The respondents are directed not to use conservancy lane for any other purpose except as a public street as observed in the aforesaid interim order.
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11. We are of the considered view that the interest of justice would be met if we request the learned Single Judge to dispose of the pending writ petitions on merits as early as possible. It is also made clear that we have not expressed any opinion on the merits of the case.
12. With the above observations and direction, writ appeal is disposed of.
No order as to costs.
Sd/-
(ANU SIVARAMAN) JUDGE Sd/-
(VIJAYKUMAR A. PATIL) JUDGE BSR List No.: 1 Sl No.: 6