Karnataka High Court
U Raghurama Mayya vs Udyavara Grama Panchayath on 6 June, 2009
Author: A.S.Bopanna
Bench: A.S.Bopanna
IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 067 DAY OF JUNE 2009
BEFORE -
THE HON'BLE MR, JUSTICE A S BOPANKA
REGULAR SECOND APPEAL NO.62. OF 2006 -
BETWEEN :
U RAGHURAMA MAYYA
AGE ABOUT 50 YRS :
S/O LATE U VASUDEVA
MAYYA, R/O MELPETE.
OF UDYAVARA VILLAGE,
UDUPI TALUE AND DISTRICT-S76 101
.. APPELLANT
{BY gpI SAMPAT ANAND sHETIY, ADV)
AND:
UDYAVARA GRAMA PANCHAYATH
-. REPRESENTED BY iTS SECRETARY
_ UDYAVAPA VILLAGE
- Ubu PI TALUK AND DISTRICT-576101
. RESPONDENT
'Br r sk N Y SHANTKUMAR, ADV FOR A ANANDA \ SHETTY)
, "THIS RSA iS FILED U/S. 100 OF CPC AGAINST THE
"JUDGEMENT & DECREE = DT.27.7. 2005, PASSED IN
_ RA.NO.114/1999 ON THE FILE OF THE ADDITIONAL CIVIL
JUDGE (SR.DN.}, UDUPI DISMISSING THE APPEAL AND
CONFIRMING THE JUDGEMENT AND DECREE DT. 10.2.1999
PASSED IN O.S.NO, 35/1997 ON THE FILE OF THE PRL. CIVIL
JUDGE (JR.DN.), UDUPI.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
0.38.N0.35/97, The suit in question waa, \ filed against 1 'the defendant for the relief of mandaiory and _perpetual Injunction.
2. The parties are 'referred to in' tire same rank as assigned to them before the Trial Court for the purpose of convenience and clarity.
3. 'The (case 'of the plaints before the Trial Court is that the plaints w were the absolute owners of the immovable _ properties described in sc chedule 'A' to 'F'. It is their further | " contention that im order to approach their property they have also formed a 10 ft wide pathway for their use and as such, the said pathway is also a private pathway for the beneficial os enjoyment of the properties belonging to the plaintiffs. The grievance with which they approached the Trial Court was . _ that the respondent-Panchayat had encroached upon their ' property and had used the same for laying a pipeline by digging the soil and therefore their right of exclusive enjoyment of the pathway has been interfered withs by the . ., defendant and the laying of the pipeline without either .
acquiring the land in accordance with law 'by. compensating :
the plaintiffs or with their consent cannot be sustained and therefore, by way of mandatory injunction, they shiould be directed to remove the pipeline and alse to restrain them from interfering with the plaintifls properiy. |
4. The defendant, however, opposed the prayer made in the suit uit by contending that the same is a connecting road and the plaintifis have | DO "exclusive right over the said property. At the first instance, they had contended that the es same is 4 panchayat.road.
- "Se "The, Trial Court after considering the rival 7 contentions has dismissed the suit by its judgment dated . 10.62.1998. The plaintiffs were therefore, before the Lower _. Appellate Court in R.A.No.114/1999. The Lower Appellate Court after re-appreciating the evidence and noticing the same contentions has affirmed the findings of the Trnal Court | and has dismissed the appeal by its judgment . dated io 27.07.2005. In that context, one of the plaintiffs viz., the fourth plaintiff before the Trial Court is. before this. Court in ; this appeal, while the other plaints, have not chosen to | challenge the said judgment and decree and the © approval of the same by the Lower Appellate Court,
6. On heaving the leax sened_ counsel for the parties, insofar as the properties | 'situate in schedule 'A' to 'F' being the private properties of the plaintiffs is not seriously in dispute. The dispute however, is with regard to the 10 ft.
passage leading | to the: * said properties, wherein the defendant has laid the pipeline. In this context, what : ~ requires to he. noticed is, before the Trial Court the detendant at the first instance, had contended that 10 ft. suit passage was a. panchayat road, connecting the road which was | "leading to the Temple. However, on perusing the report a submitted by the Commissioner and the analysis of the . 'evidence, the Trial Court has come to the conclusion that the said road is not panchayat road, but it is a common rad, ' which is being used by the plaintiffs as well as other - persons. The question therefore, is when the defendant had not acquired the property nor was it "indicated as a :
panchayat road, whether the defendant was entitled to > lay | the pipeline and in that context, whether the : mandatory injunction sought for was "required, to be granted. Since, only this aspect of the matter i is sequived to be considered if made out as a substantial question of law tor consideration, the learned rounsel for the appellant in support of the same would contend that the Lower Appellate Court has not properly" appreciated. the Jodgment reported in the case of STATE OF "KARNATAKA VS. BASALINGAPPA | reported in ve 1989(2) KLR 189 which. was cited before the Lower Appellate O Court. The Warned counsel would point out that im the said case also ¢ a . similar question of the Government usurping the _ property 0 of. a 'citizen without exercising its power of eminent
- ~ domain came for consideration and would contend that the | . manner of grant of mandatory injunction as made by the . 'Trial Court was approved by this Court and therefore, the said decision would apply to the present facts of the case.4 7
7. In this regard, it is no doubt true, that not only tie - position of law as laid down in the 'said decision. but in ; several other decisions as repeatedly "enunciated by ihe | Hon'ble Supreme Court, the power. of eniinent domain would have to be exercised when the private 'property is sought to be made use for Government or public parposes and in that context, the question is Whether in the instant case, merely because the "said "power bas not been. exercised or the panchayat, has ; net proved that it is a panchayat road, whether the said. decision: should be made applicable for grant of mandatory "injunction, it is no doubt true, the position of law 'as emunciated in the said decisions cited by "the learned counsel would apply to an extent to the present | case. "However, while noticing that aspect of the matter, this Court will aiso have to notice that while granting the
-.. @iseretionary relief of injunction, the Court will also have to _ xeep in view the irreparable injury and whether the balance ; of convenience would lie in favour of the parties seeking for an injunction. If that is also kept in view and the said.
decision is perused, this Court had approved the order of J grant of injunction in a situation where the Courts 'elow = had granted the injunction and had restrained . thie unauthorized use of the land belonging private. persons ; without acquisition before the. peneficial use wad made. "In the instant case, when the plantits had approached the Court, the pipeline had elready been hid. 'Though it may not lead to acquisence, in such a circumstance when the said pipeline had been: laid for public use, the power of grant of mandatory injunction and permanent injunction alone need not be exercised "since other avenues are also open. Therefore, both the Courts below were justified in rejecting the relief The discussion shade above would indicate that if
-_ the appellant is still aggrieved that his property has been
- " usurped by. the Governmental agencies for public purpose witho ut appropriately compensating him, the relief need not ~_ only be for mandatory injunction and therefore, the mere a » yejection of the relief will not preclude the appellant from a approaching the appropniate authorities or the forum making outa grievance in this regard and to that extent the finding in favour of the plaintiff, as claimed could be made use of.