Karnataka High Court
The Project Engineer Nirmiti Kendra vs Jagadishwarayya S/O Adawaiya … on 26 March, 2025
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 26TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 100720 OF 2025 (GM-CPC)
BETWEEN:
THE PROJECT ENGINEER NIRMITI KENDRA,
GADAG, REPRESENTED BY
SRI. SHARANAPPA S/O. SHIVAPPA GADDAD,
AGE: 32 YEARS, OCC: ENGINEER,
R/O. C/O: NIRMITHI KENDRA,
GADAG, TQ: DIST: GADAG-582101
PETITIONER
(BY SRI. K.L. PATIL AND
SRI. ARAVIND D. KULKARNI, ADVOCATES
AND:
1. JAGADISHWARAYYA
S/O. ADAWAIYA HUBALIMATH,
AGE: 74 YEARS, OCC: BUSINESS,
Digitally signed
by SHWETHA R/O. AZAAD ROAD, NEAR JAIN TEMPLE,
RAGHAVENDRA GADAG-582101.
Location: HIGH
COURT OF 2. CHANDRASHEKHAR
KARNATAKA S/O. RUDRAMUNISWAMY BHUSHANURMATH,
AGE: 64 YEARS, OCC: BUSINESS,
R/O. 7TH CROSS, K.C. RANI ROAD,
GADAG-582101.
3. ADAVYYA
S/O. PANCHAKSHARAYYA HUBALIMATH,
AGE: 39 YEARS, OCC: BUSINESS,
R/O. AZAAD ROAD, NEAR JAIN TEMPLE,
GADAG-582101.
4. SHIRAJUDDIN
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S/O. ABDUL KAREEMSAB BAVIKATTI,
AGE: 60 YEARS, OCC: BUSINESS,
R/O. JAVALGALLI, GADAG-582101.
5. MAHAMMED HANEEF
S/O. ABDUL KAREEMSAB BAAVIKATTI,
AGE: 60 YEARS, OCC: BUSINESS,
R/O. JAVALGALLI, GADAG-582101.
6. SUSHEELA
W/O. CHANDRAPPA ANAVALA,
AGE: 56 YEARS, OCC: TAILOR,
R/O. #1574, JAVALGALLI, GADAG -582101.
7. FAREEDA BEGUM @ AMMAJAAN
W/O. MEHABOOBSAB HUNAGUND,
AGE: 63 YEARS, OCC: BUSINESS,
R/O. JAVALGALLI, GADAG-582101.
8. CHANDSAB
S/O RAJESAB BODLEKHAN,
AGE: 54 YRS, OCC: BUSINESS,
R/O. AZAAD ROAD, JAVALGALLI, GADAG-582101.
9. THE DEPUTY COMMISSIONER,
GADAG, D.C.OFFICE, HUBLI ROAD,
GADAG-582101.
10. THE COMMISSIONER,
GADAG BETAGERI, CITY MUNICIPAL COUNCIL,
GADAG-582101.
11. THE CHIEF EXECUTIVE OFFICER,
KUWS AND DB BOARD,
MULGUND ROAD, GADAG-582101.
12. ANWARSAB
S/O. RASULSAB DODDAMANI,
AGE: 46 YEARS, OCC: BUSINESS,
R/O. JAVALGALLI, GADAG-582101.
13. ABDULRASUL
S/O. TIPUSAB DODDAMANI,
AGE: 84 YEARS, OCC: BUSINESS,
R/O. JAVALGALLI, GADAG-582101.
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14. ABDUL KHADER M BANDAGI,
AGE: 45 YEARS, OCC: BUSINESS,
R/O. JAVALGALLI, GADAG-582101.
15. WAJEEB C. BODLEKHAN,
AGE: 26 YEARS, OCC: BUSINESS,
R/O. JAVALGALLI, GADAG-582101.
16. ILIYAAS S BODLEKHAN,
AGE: 32 YEARS, OCC: BUSINESS,
R/O JAVALGALLI, GADAG-582101.
17. RAJASHEKHAR
S/O. CHANDRAPPA ANAVAL,
AGE: 45 YEARS, OCC: BUSINESS,
R/O. JAVALGALLI, GADAG-582101.
18. MANJUNATHA
S/O. NEELAGOUDA PATIL,
AGE: 36 YEARS, OCC: BUSINESS,
R/O. JAVALGALLI, GADAG-582101.
19. RAHAMAN
S/O. ABDUL GAFARSAB BODLEKHAN,
AGE: 34 YEARS, OCC: BUSINESS,
R/O. JAVALGALLI, GADAG-582101.
20. KRISHNA KUMAR
S/O. KRISHNA MADIWALARA,
AGE: 30 YRS, OCC: BUSINESS,
R/O. JAVALGALLI, GADAG-582101.
21. BALARAM
S/O VENKARAMA HAWALE,
AGE: 45 YRS, OCC: BUSINESS,
R/O. JAVALGALLI, GADAG-582101.
22. SALEEM R. BODLEKHAN,
AGE: 38 YRS, OCC: BUSINESS,
R/O. JAVALGALLI, GADAG-582101.
23. ASHFAQ
S/O. AHEMAD NOORSAB SUNKAD,
AGE: 38 YRS, OCC: BUSINESS,
R/O. JAVALGALLI, GADAG-582101.
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24. ANILKUMAR S/O. PUNDALIKAPPA JIKANUR,
AGE: 35 YRS, OCC: BUSINESS,
R/O. JAVALGALLI, GADAG-582101.
25. MODIN M DANDIN,
AGE: 31 YRS, OCC: BUSINESS,
R/O. JAVALGALLI, GADAG-582101.
26. NAVEEN S/O NARAYANASA KHATAWATE,
AGE: 50 YEARS, OCC: BUSINESS,
R/O. JAVALGALLI, GADAG-582101.
27. NEELAVVA BHIMAPPA JALAWAYI,
AGE: 64 YEARS, OCC: HOUSEHOLD,
R/O. JAVALGALLI, GADAG-582101.
28. MUBEEN ASHFAQ SUNKAD,
AGE: 30 YEARS, OCC: BUSINESS,
R/O. JAVALGALLI, GADAG-582101.
29. RAJAMA S. BODLEKHAN,
AGE: 32 YRS, OCC: BUSINESS,
R/O. JAVALGALLI, GADAG-582101.
30. SHIVANAND S/O. CHANDRAPPA ANAVAL,
AGE: 36 YEARS, OCC: BUSINESS,
R/O JAVALGALLI, GADAG-582101.
31. KHASIMABI A.BODLEKHAN,
AGE: 43 YEARS, OCC: BUSINESS,
R/O JAVALGALLI, GADAG-582101.
32. RESHMA RAJESAB BODLEKHAN.
AGE: 37 YEARS, OCC: BUSINESS,
R/O. JAVALGALLI, GADAG-582101.
33. SUMITRA RAJASHEKHAR ANAVAL,
AGE: 33 YEARS, OCC: BUSINESS,
R/O. JAVALGALLI, GADAG-582101.
34. HASEENABI HUSSAINSAB MIRJI.
AGE: 70 YEARS, OCC: BUSINESS,
R/O. JAVALGALLI, GADAG-582101.
35. SHAALU ABDULSAB NILAGUND,
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AGE: 46 YEARS, OCC: BUSINESS,
R/O. JAVALGALLI, GADAG-582101.
36. JAIBUNISA AJUBUDDIN KALADAGI,
AGE: 61 YEARS, OCC: BUSINESS,
R/O. JAVALGALLI, GADAG-582101.
37. BIBIJAAN ABDULRASUL DODDAMANI.
AGE: 63 YEARS, OCC: BUSINESS,
R/O. JAVALGALLI, GADAG-582101.
38. RAJIYABANU MAHAMMED GOUSE PATHAN,
AGE: 30 YEARS, OCC: BUSINESS,
R/O. JAVALGALLI, GADAG-582101.
39. SHAMASAD BEGUM DAWALSAB AKKI,
AGE: 46 YEARS, OCC: BUSINESS,
R/O. JAVALGALLI, GADAG-582101.
40. KHALEEL S/O AKRAM M.R.
AGE: 46 YEARS, OCC: BUSINESS,
R/O. JAVALGALLI, GADAG-582101.
41. ATAAULLA N. HALAVARTI,
AGE: 35 YEARS, OCC: BUSINESS,
R/O. JAVALGALLI, GADAG-582101.
42. YAQUB ALI N. KALADAGI,
AGE: 46 YEARS, OCC: BUSINESS,
R/O. JAVALGALLI, GADAG-582101.
43. JAIMAULLABDAN RAHEMANSAB NAMAJI,
AGE: 55 YEARS, OCC: MEMBER,
MUNICIPAL COUNCIL, R/O. WARD NO.18,
JAVALGALLI, GADAG-582101.
44. RAJESAB S/O. FAKRUSAB KANAVI,
AGE: 63 YEARS, OCC: AGRICULTURE,
R/O. WARD NO.18, AZAAD ROAD,
GADAG-582101.
45. JHANGEER IBRAHIMSAB UMACHAGI,
AGE: 57 YEARS, OCC: PRIVATE WORK,
R/O. WARD NO.18, JAVALGALLI,
GADAG-582101.
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46. SHIVAPPA S/O BASAPPA SHIRAHITTI,
AGE: 59 YEARS, OCC: COOLIE,
R/O. WARD NO.18, JAVALGALLI,
GADAG-582101.
47. IBRAHIMSAB CHAMANSAB NADAF,
AGE: 41 YEARS, OCC: AUTO DRIVER,
R/O. WARD NO.18, JAVALGALLI,
GADAG-582101.
48. SAVITA MALLESHAPPA KUMBARA,
AGE: 31 YEARS, OCC: HOUSEWIFE,
R/O. AZAAD ROAD, JAVALGALLI,
GADAG-582101.
49. KHAMARSULTANA J NAMAJI,
AGE: 45 YEARS, OCC: HOUSEWIFE,
R/O. WARD NO.18, JAVALGALLI,
GADAG-582101.
50. LALITA MARIYAPPA BHAJANTRI,
AGE: 43 YEARS, OCC: HOUSEWIFE,
R/O. WARD NO.18, JAVALGALLI,
GADAG-582101.
51. JAHIDABEGUM SHIRAJ AHMED SHIRUGUPPI,
AGE: 37 YEARS, OCC: HOUSEWIFE,
R/O. WARD NO.18, JAVALGALLI,
GADAG-582101.
52. DYAMAVVA MALLAPPA HADIMANI,
AGE: 35 YEARS, OCC: HOUSEWIFE,
R/O. WARD NO.18, JAVALGALLI,
GADAG-582101.
53. SHAKEELA W/O. SALEEMSAB BETAGERI,
AGE: 38 YEARS, OCC: HOUSEWIFE,
R/O. WARD NO.18, JAVALGALLI,
GADAG-582101.
54. YALLAVVA YAMANAPPA TAMMARAMATTI,
AGE: 52 YEARS, OCC: HOUSEWIFE,
R/O. WARD NO.18, JAVALGALLI,
GADAG-582101.
55. HASEENA BEGUM
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W/O. ABDUL NABISAB KANAKANNAVARA,
AGE: 50 YEARS, OCC: HOUSEWIFE,
R/O. WARD NO.18, JAVALGALLI,
GADAG-582101.
56. SABIYA BEGUM SIRAJ AHMAD PEERZADE,
AGE: 26 YEARS, OCC: HOUSEWIFE,
R/O. WARD NO.17, JAVALGALLI, GADAG-582101.
57. BIBIJAAN MAHAMMED RAFIQ ANNIGERI,
AGE: 30 YEARS, OCC: HOUSEWIFE,
R/O. WARD NO.18, JAVALGALLI, GADAG-582101.
58. RESHMA KHASIMSAB KAGGAL,
AGE: 37 YEARS, OCC: HOUSEWIFE,
R/O. JAVALGALLI, GADAG-582101.
59. RAJBI BUSANSAB HEBSUR,
AGE: 60 YEARS, OCC: HOUSEWIFE,
R/O. WARD NO.18, JAVALGALLI,
GADAG-582101.
60. LAKSHMI SHANKAR UMACHAGI,
AGE: 47 YEARS, OCC: HOUSEWIFE,
R/O. JAVALGALLI, GADAG-582101.
61. RAJABI MOULASAB NADAF,
AGE: 57 YEARS, OCC; HOUSEWIFE,
R/O. JAVALGALLI, GADAG-582101.
62. FATIMA BADESAB NAREGAL,
AGE: 55 YEARS, OCC: HOUSEWIFE,
R/O. JAVALGALLI, GADAG-582101.
63. BHIMAPPA HULGAPPA BHAJANTRI,
AGE: 60 YEARS, OCC: AGRICULTURE,
R/O. WARD NO.17, JAVALGALLI, GADAG-582101.
64. JAINABI SHABBIRAHAMED SAYYED,
AGE: 30 YEARS, OCC: HOUSEWIFE,
R/O. WARD NO.18, JAVALGALLI, GADAG-582101.
65. RAJIYA BEGUM ALLABAKSHI BETAGERI,
AGE: 60 YEARS, OCC: HOUSEWIFE,
R/O. JAVALGALLI, GADAG-582101.
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66. SANIYA INAYATH LAKKUNDI,
AGE: 29 YEARS, OCC: HOUSEWIFE,
R/O. JAVALGALLI, GADAG-582101.
67. RIHANA DAWALSAB ANNIGERI,
AGE: 33 YEARS, OCC: HOUSEWIFE,
R/O. JAVALGALLI, GADAG-582101.
68. SADRUNNISA MOULASAB NARAGUND,
AGE: 45 YEARS, OCC: HOUSEWIFE,
R/O. WARD NO.18, JAVALGALLI, GADAG-582101.
69. RAJABI BABUSAB ANNIGERI,
AGE: 62 YEARS, OCC: HOUSEWIFE,
R/O. JAVALGALLI, GADAG-582101.
70. SALMA IMAMHUSSAIN MANIYAR,
AGE: 20 YEARS, OCC: HOUSEWIFE,
R/O. JAVALGALLI, GADAG-582101.
71. ISRATHABANU MALLIKSAB BAGALKOTI,
AGE: 45 YEARS, OCC: HOUSEWIFE,
R/O. JAVALGALLI, GADAG-582101.
72. PARIJAAN RAFIQ KURTAKOTI,
AGE: 39 YEARS, OCC: HOUSEWIFE,
R/O. JAVALGALLI, GADAG-582101.
73. FATHIMA CHANDSAB BAGODI,
AGE: 65 YEARS, OCC: HOUSEWIFE,
R/O. JAVALGALLI, GADAG-582101.
74. MAHAJAANSBI MOULASAB SANGAM,
AGE: 50 YEARS, OCC: HOUSEWIFE,
R/O. WARD NO.18, JAVALGALLI,
GADAG-582101.
...RESPONDENT/S
(BY SRI. S.M. CHANDRASHEKHAR, SENIOR COUNSEL FOR
SRI. M.M. PATIL, ADVOCATE FOR C/R1 TO R8
AND R12 TO R42;
SRI. HARSH DESAI, ADVOCATE FOR R10;
SRI. DAYANAND M. BANDI, ADVOCATE FOR R11;
SRI. GANGADHAR J.M., AAG FOR
SRI. V.S. KALASURMATH, AGA FOR R9;
R43 TO R74 ARE DEFERRED V/O DATED 11.02.2025)
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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT OF
CERTIORARI TO SET ASIDE THE ORDER DATED. 03/12/2024 PASSED
BY THE PRL.SENIOR CIVIL JUDGE AND CJM, GADAG IN M.A. NO.
11/2023 PRODUCED AS ANNEXURE-G WHEREBY THE ORDER DATED.
21/04/2023 PASSED ON I.A. NO.5/2023 IN O.S.NO.93/2023 BY THE
PRINCIPLE CIVIL JUDGE AND JMFC, GADAG IS CONFIRMED,
CONSEQUENTLY ALLOW THE MA NO. 11/2023 AND DISMISS THE I.A.
NO. 5/2023.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 19.02.2025., COMING ON FOR PRONOUNCEMENT
OF ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
CAV ORDER
(PER: THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ)
1. The Petitioner, who is Defendant No.4 in
O.S.No.93/2023, is before this Court seeking for the
following reliefs:
I) Issue writ of certiorari to set aside the order dated
03/12/2024 passed by the Prl. Senior Civil Judge and
CJM, Gadag in M.A. No.11/2023 produced as
Annexure-G whereby the order dated 21/04/2023
passed on I.A.No.5/2023 in O.S.No.93/2023 by the
Principle Civil Judge and JMFC, Gadag is confirmed,
consequently allow the MA No.11/2023 and dismiss
the I.A.No.5/2023.
2. 39 persons had filed a suit in O.S.No.93/2023
seeking for the following reliefs:
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1. It may be declared that the Plaintiffs and have
right to approach their respective business premises
consisted in suit properties Sl.No.1-10 by 'RIGHT TO
WAY' as easement of necessity to by passing along
the Azad Road over the Raja Kaluve; and
2. The construction carried out or proposed to be
carried out by the Defendant no.4 over the Raja
Kaluve as shown in the BCDEFGHLKJI region of hand
sketch map may be declared as illegal & violative of
easementary rights of Plaintiffs and others; and
3. As a consequence, the Defendants be restrained by
an order of Permanent Injunction from
employing/making any construction perpetually over
the said BCDEFGHLKJI region of the hand sketch map
affecting the easementary rights of Plaintiffs; and
4. The costs of the suit may kindly be awarded to the
Plaintiffs;
5. Any other legal or equitable reliefs which this
Hon'ble Court deems fit may kindly be awarded.
Accordingly the suit of the Plaintiff be Decreed in the
interest of Justice, Equity and Good Conscience.
3. In the said suit, the plaintiffs had filed an application
in IA No.5 under Order 39 Rule 1 and 2 read with
Section 151 of the Code of Civil Procedure (for short
'CPC'), seeking for the following reliefs:
Herein, the advocate for the Plaintiffs/Applicants,
implore to apply as under:
That for the reasons sworn in the accompanying
affidavit, it is most humbly prayed that, this Hon'ble
Court be pleased to an order ad-interim-exparte-
injunction against this Defendant no.1-4/Opponent,
restraining the Defendant no.1-4/Opponents, from
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making any further construction work by themselves
and by their men/ contractors and also servants
employed specifically for the construction in or over
the suit RajaKaluve catchment area affecting the
valuable easementary rights of the Plaintiffs to us
use, approach and enjoy the suit schedule I Sl.No.1-
11 properties situated at Gadag, till the disposal of
the top-noted suit in the interest of Justice, Equity
and Good Conscience.
4. A memo had been filed on 23.02.2023 by the
plaintiffs that the interlocutory prayer insofar as
defendant No.1 being the Deputy Commissioner of
Gadag in IA No.5 would not be pressed.
5. Written statement and objections have been filed
before the Trial Court (Principal Civil Judge and JMFC
Gadag). The Trial Court vide its order dated
21.04.2023 in O.S.No.93/2023, allowed the said
interlocutory application restraining the defendants
by way of a temporary injunction from making
further construction by themselves or by their
servants, agents or anybody on their behalf over the
said Raja Kaluve till the disposal of the suit.
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6. An appeal having been filed by defendant No.4
therein, namely the petitioners herein, the Principal
Senior Civil Judge and CJM at Gadag, vide its order
dated 03.12.2024 in MA No.11/2023, dismissed the
Miscellaneous Appeal and confirmed the order passed
by the Trial Court. It is challenging the same, the
petitioners are before this Court seeking for the
aforesaid reliefs.
7. THE FACTS LEADING UP TO THE ABOVE MATTER
ARE:
7.1. The plaintiffs claim to be absolute owners and
in peaceful possession and enjoyment of the
suit schedule 1 to 10 properties, which were
commercial shops and open space premises
situated in the local limits of Gadag-Betageri
City Municipal Council.
7.2. It is contended that the said suit properties
were situated on the western side of the main
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road of Gadag City, along the 'Azaad Road,
connecting to 'Station Road' on the southern
side to the 'DC Mill Road' on the northern side,
the main drain was referred to as the Raja
Kaluve from a long period of time.
7.3. The plaintiffs claiming to be occupants of their
respective properties are engaged in business
activities ranging from electrical, electronics,
apparel, stationery, wholesale business, steel
furniture, wardrobe making, metal scrap
collection as also godowns. They were carrying
out the said business without any obstruction
and hindrance for a long period of time. They
also claim that they were using the Azad Road
abutting the Raja Kaluve on the eastern side as
an approach road to their properties, the
plaintiffs having a point of entry from Station
Road to Azad Road, then passing over the Raja
Kaluve to access their respective properties.
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7.4. They claimed that the Municipal Corporation
had built a RCC slab over the Raja Kaluve in the
year 2021 and thereafter, they have been using
the said slab put up on the Raja Kaluve for
parking and as an approach to the shops and
enterprises.
7.5. Earlier to 2021, the Raja Kaluve was an open
drain and at various spots in front of the suit
properties, there were entry points that were
existing in the form of temporary bridges built
over the said Raja Kaluve, which provided
access to the businesses of the plaintiffs.
7.6. With the increase in traffic and certain changes
made by the police in terms of the parking of
vehicles, there was inconvenience which had
been caused to the plaintiffs. They claimed that
in order to solve the parking problem, the local
authorities had agreed to lay a concrete bed
over the Raja Kaluve and the Azad Road to
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enable parking of vehicles and it is in that
background that a concrete bed was laid during
the Covid-19 period with a slab on top to be
used for the purpose of parking.
7.7. In the year 2022, defendant No.4 i.e., the
petitioner herein conducted a spot inspection of
the Raja Kaluve area. Thereafter, it is claimed
that without any permission from the
Commissioner Gadag-Betageri City Municipal
Council, defendant No.4 proceeded with making
an illegal construction on the Raja Kaluve and it
is only in the month of August-2022, it came
to the knowledge of the plaintiffs that the space
over the Raja Kaluve will be turned into a park
and children's play utility area.
7.8. Thereafter, it is claimed that the plaintiffs had
several meetings to decide about the course of
action. They made representations to the
Commissioner and President of Gadag-Betageri
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City Municipal Council, the Director Town
Planning, Planning Director of the Karnataka
Irrigation Department, as also to defendant
No.4 requesting them to not put up the park
and children's play area, contending that there
are no permissions which have been obtained
from the Gadag-Betageri City Municipal Council.
Thereafter, the work came to a standstill.
However, again in January 2023, defendant
No.4 commenced the construction, installed
metallic grills and created a children's play area
over the Raja Kaluve.
7.9. The plaintiffs and certain others had also
approached the officers of defendant No.1 and
2 giving representations, despite which the
work carried on. The plaintiffs claimed that the
plaintiffs represent several other persons, who
are affected by these illegal activities and it is
in that background that a suit was filed under
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Section 91 read with Order 1 Rule 8 of the CPC
for the aforesaid relief as a representative suit.
7.10. Defendant No. 1 and 2 though appeared, did
not file their objections to the application.
Defendant No.3- Executive Engineer filed a
written statement contending that defendant
No.3 is not concerned with the subject matter
of the suit. Defendant No.4 filed objections to
the application contending that there is
suppression of material facts. The park and play
area is being created on the slab built over the
Raja Kaluve, the earlier road which was in
existence continues to be in existence. The road
portion has not been used by defendant No.4
for any particular purpose. The project has
been approved by the Municipal Council and
funds have been released by the Karnataka
Niravari Nigam Ltd., as per the direction of the
Irrigation Department. The slab over the Raja
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Kaluve is being used, the plaintiffs cannot have
any objection.
7.11. Insofar as the entries and exit and access to
the properties of the plaintiffs is concerned, it
had been stated that there are several locations
where points for entry and exit, which would
allow vehicles to ply have been identified and
those entry and exits are always available for
the plaintiffs to make use of. The slab built over
the Raja Kaluve could not be used for the
purpose of parking. There is no vested right of
the plaintiffs to seek for such a relief.
7.12. The Raja Kaluve was an open drain until the
year Covid-19 hit the Country. The open drain
being a health hazard, in order to protect the
interest of the citizens, the Raja Kaluve was
closed with a concrete bedding and a slab so as
to enable easy and covered flow of sewage.
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7.13. The Raja Kaluve is a drain carrying the sewage
of Gadag-Betageri town and not just water or
storm waterr. The construction of the slab
having been done in the year 2021 and there
being locations identified for ingress and
egress, the relief as sought for by the plaintiffs
in the suit are not maintainable. Consequently,
the interlocutory relief is also not maintainable.
Hence, the suit and the application are liable to
be dismissed.
7.14. The Trial Court was of the opinion that
easementary rights being claimed over the Raja
Kaluve, there being no dispute as regards the
plaintiffs being the owners of shops situated on
the western side of the Raja Kaluve and
carrying on their business, the said Raja Kaluve
coming within the City Municipal Council's
jurisdiction, taking into account a
communication dated 19.09.2022 issued by the
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Gadag-Betageri City Municipal Council to
defendant No. 4 to stop the construction of the
Raja Kaluve and defendant No. 4 not having
stopped the construction. It was held that the
right of the plaintiffs to access their properties
was disturbed and interfered with. The City
Municipal Council not having approved the
project, hardship would be caused to the
plaintiffs and their livelihood.
7.15. It is in that background the Trial Court has
negatived the contention of respondent No.4
that material has already been collected for
carrying out the construction, the construction
works already having commenced, the works
could not be interfered with, allowed the
application in IA No.5 under Order 39 Rule 1
and 2 of the CPC and granted an order of
temporary injunction restraining the defendants
from making any further construction by
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themselves or by their servants, agents or
anybody on their behalf over the suit Raja
Kaluve till such disposal of the suit.
7.16. An appeal having been filed by respondent
No.4, the Miscellaneous Appeal Court i.e., the
Principal Senior Civil Judge and CJM at Gadag,
by its order dated 03.12.2024 in MA No.11 of
2023, dismissed the said appeal. The
Miscellaneous Appeal Court took into
consideration the averment of the plaintiffs that
they were using the open drain as an approach
road, and after putting up the concrete bed
over the Raja Kaluve by the Municipal
authorities, plaintiffs have been using the same
for parking. If the construction were permitted
to be continued by defendant No. 4, visibility of
the shops belonging to the plaintiffs could be
lost.
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7.17. The access to the properties would be curtailed
and taking into consideration the letter dated
19.09.2020 issued to defendant No. 4 to stop
construction, came to a conclusion that even
prior to the laying of the said bed over the Raja
Kaluve, it was being used by the plaintiffs and
other public at large as an access way and as a
parking area.
7.18. Defendant No.4, without authority, has taken
up the project work to make construction over
the set way and concrete bed despite
opposition by the general public. Taking into
consideration that the Municipal Council
President had directed to stop the project work,
defendant No.4 could not go on with the said
work. The Appellate Court rejected the
contention that the project was for the benefit
of persons belonging to the SC and ST
category. The plaintiffs having used the same
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as a road, plaintiffs have a right of easement.
There will be no other access to the property
except over the slab. All these aspects being
disputed questions of fact, would require trial.
7.19. The First Appellate Court held that the Trial
Court has not given a finding in respect of the
plaintiffs or the defendant, but has only
protected the rights of the plaintiffs to access
their property. If the construction were to be
proceeded with, it would become irreversible
and as such, confirmed the order passed by the
Trial Court. It is challenging both these orders,
the petitioner-defendant No.4 is before this
Court.
8. Sri. K.L. Patil., learned counsel appearing for the
petitioner, would submit that;
8.1. There is no easementary right, which the
plaintiffs can claim over the Raja Kaluve. Even
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as per the admission of the plaintiffs, it was an
open sewage drain called as Raja Kaluve and
the construction of the concrete bed and the
slab was completed only in the year 2021.
Thus, prior to the year 2021, there was neither
a concrete bed nor a slab, which could be used
either for parking or for use as a right of way.
Thus, the question of an easement being
claimed on account of the alleged use of the
slab from 2021 to 2023 when the suit was filed,
would not arise. No such right has been created
in favour of the plaintiff or acquired by the
plaintiffs by way of prescription and as such,
the very relief which had been sought for not
being maintainable, the Trial Court and the First
Appellate Court ought not to have granted an
order of injunction. The project has been indeed
approved by the Municipal Council.
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8.2. The President on the basis of a representation
submitted by the plaintiffs, had issued oral
instructions to the Commissioner and it is in
furtherance of the said oral instruction that the
Commissioner had directed defendant No.4 to
stop the construction. Subsequent thereto, the
Commissioner has recalled the said order and
permitted the petitioner to put up construction.
The suit is not in the public interest or in a
representative capacity but is filed only to
further the personal interest of the plaintiffs.
The plaintiffs, by way of the suit, want to usurp
the public property inasmuch as the drain has
been covered by using Municipal funds, and the
same cannot be claimed to be a parking area
by the plaintiffs.
8.3. The admitted fact being that the slab was
constructed in the year 2021, prior to the
same, it could not be used for parking since it
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was an open drain. The Trial Court has erred in
believing the submission of the plaintiffs. If
such submission is taken on face value, then
the parking would have to be done in the drain
since there was no slab put up thereon. His
submission is that the project has been taken
up for the beautification of the city of Gadag-
Betageri.
8.4. This is in the interest of the common citizen,
who can now make use of the said area for
purposes of walking, exercising, recreation and
the like, which would better the quality of life of
the persons in the surroundings. The plaintiffs
with selfish interests are coming in the way of
the development of this area. This fact has not
been taken into account by the Trial Court or
the First Appellate Court and solely on the basis
of a letter issued by the Commissioner on
19.09.2023 and on the basis of the oral
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instructions of the then President, the work was
directed to be stopped. Subsequently, the work
has been permitted to be continued. Thus, the
plaintiffs cannot have any grievance in relation
thereto.
8.5. His submission is that the work, which is being
carried out, is not any private work, but is a
public work with due sanction in terms of the
works to be carried out as also the financial
requirement thereof. The entire procedure has
been followed, and the project is in the interest
of the general public. The plaintiffs are coming
in the way of the development of the property,
which the Trial Court and the First Appellate
Court has not looked into. If they had
considered these aspects more particularly by
taking into account that the slab was put up
only in the year 2021, the Trial Court and the
First Appellate Court would have to come to a
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conclusion that the imaginary easementary
rights claimed by the plaintiffs could not be so
agitated in a period of two years and therefore,
ought to have rejected the interlocutory
application.
9. Shri Harsh Desai., learned counsel, who appears for
respondent No.10-the Commissioner, Gadag-
Betageri submits that;
9.1. An administrator has been appointed to the
said Council insofar as the contention regarding
the letter dated 19.9.2022 is concerned. He
submits that the Commissioner had issued the
said letter on the oral instructions of the then
President. The Council has passed no
resolution to stop the work. The Commissioner
had issued the letter as aforesaid only on the
basis of the oral instructions of the President of
the Municipal Council, which is reflected in the
said letter itself.
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9.2. His further submission is that subsequent
thereto another letter dated 7.10.2022 has
been issued, in which the Commissioner has
directed the Town Planning Authority to ensure
that all cooperation is extended for the
purposes of carrying out the work by defendant
No.4 in an expeditious manner.
9.3. His submission is that there is no objection on
the part of the Council through the
Administrator as also through the
Commissioner for the works to be carried out
and that these works are in the interest of the
city. The works which have been envisaged is
for the benefit of all the residents of the area.
The residents of the area would require
necessary facilities like a garden, gym,
children's play area, utility and toilets, pergolas
under which people can set up a small event
area, which has been created for the purposes
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of holding public events, a water fountain to
beautify the area as also a public swimming
pool. All of which would be for the benefit of
the citizens of Gadag-Betageri.
9.4. His submission is that the area being developed
will not only beautify the city but also provide
the much needed recreation facilities for the
citizens of Gadag-Betageri. There will be a
seating area for people to sit, the equipment
which have to be installed for the gym would
provide free facility for the citizens to make use
of so as to enable them to get their physical
fitness necessities.
9.5. Insofar as the aspect of easement is concerned,
he reiterates that until the year 2021, there
was an open drain, which was a health hazard
for all the citizens. In view of Covid-19, taking
into account that this drain could cause more
harm and injury to the citizens, the drain was
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closed on a war footing by putting up a
concrete bed and slab. Prior to that, there were
one or two bridges which had been built for
access from one side to the other.
9.6. The constructions of the said bridges were also
made with the permission of the Council and
they were to be handed back to the council.
Now that the council has made arrangements
for construction of a concrete bed and putting
up of a slab, there have been certain areas,
which have been designated for providing
access from one side to the other. In all, ten
(10) such locations have been provided. The
same is much more than the two (2) bridges
which were in existence earlier. The public
area which is now being developed from Station
Road to DC Mill road is in a proper planned
manner, which would thus be beneficial for all
concerned parties.
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9.7. It was further noticed that on the construction
of the slab over the drain being complete,
certain persons were making use of the drain-
slab for parking of trucks, vehicles, etc., the
slab which has been constructed cannot
withstand that kind of a load and there was also
a danger of the slab collapsing because of the
load.
9.8. The slab has not been constructed with the
purpose of providing a parking area but, was
only constructed during the Covid-19 period for
health and safety concerns of the citizens.
Apart from beautifying the area, the
construction of gym, park area, etc., ensure
that the said slab area is not used for parking,
thereby safeguarding the slab. In the event of
the slab being used for parking as claimed by
the plaintiffs, there is a danger of the slab
collapsing. Thus, putting at risk the lives of the
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citizens in the event of anybody being in the
cart, truck, minivan or any other vehicle at the
time when the slab collapses. Apart from injury
to those persons, there could also be death,
which could be caused.
9.9. He submits that there is a further danger if the
slab collapses, the entire drain would be
blocked, putting to a standstill the flow of
sewage in the entire area, which could also
result in overflow of sewage, which in turn
would further result in more hazardous health
damages to all the persons in the area.
9.10. The submission therefore is that the project as
conceived and as being implemented by the
petitioner is for the benefit of the citizens of the
Gadag-Betageri twin cities and in view of the
injunction, which has been granted, there is a
danger of the slab being used for parking,
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which would create all the hazards as indicated
above.
9.11. Lastly, he submits that the very suit being one
for claim of easement, no easement could have
been claimed by the plaintiffs in as much as the
concrete bed and slab having been constructed
in the year 2021. Prior to that, there was an
open drain with two bridges at two different
places. At the most, the easement could have
been claimed only in respect of those two
bridges and or those two areas. There could not
have been any claim made by the plaintiffs as
regards easement on the entire slab
construction. Even if the contention were to be
accepted at face value, his submission is that
the construction of the slab having been done
in the year 2021, the question of any easement
being acquired in the short period of three
years, would not arise.
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9.12. As regards the parking area, it is for the council
to determine the locations where parking could
be made. A citizen cannot take the law into his
own hands and on the basis of convenience
claim that a particular location is convenient to
a particular citizen or set of citizens and seek
for an injunction against the council from
carrying out much needed development
activities.
9.13. This, he submits had been brought to the notice
of the Trial Court and the First Appellate Court,
a memo with all the documents having been
filed, the Trial Court as also the First Appellate
Court by taking into account the letter dated
19.09.2022 has rejected the contentions of the
petitioner, the State and the Council, which is
not in accordance with law. The Council and
the State having brought to the notice that the
letter dated 19.09.2022 is subsequently
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superseded or overridden by the letter dated
07.10.2022. The Trial Court and the First
Appellate Court ought to have considered these
aspects. Thus, he submits that the order of
injunction passed by the Trial Court and the
First Appellate Court is required to be vacated.
10. Sri Gangadhar G.M., learned Additional Advocate
General appearing for Respondent No.9-the Deputy
Commissioner, who was Defendant No. 1 before the
Trial Court would submit that;
10.1. There has been proper planning, which has
been made by the authorities concerned. A
memo dated 18.02.2025 has been filed by him
enclosing the documents pertaining to the
matter, which had also been produced before
the Trial Court and the First Appellate Court.
His submission is that a detailed project plan
has been prepared, the authorities concerned
have applied their mind as regards the need for
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the project, the benefit from the project and
the manner of implementation of the project. A
sum of Rs.1 Crore is being spent on the present
project. The funds being sourced from the
Karnataka Neeravari Nigam Limited from their
CSR funds, there being a large population of
persons belonging to scheduled caste and
scheduled tribe category residing in and around
the project area, this would further better their
quality of life and the said CSR funds are being
used for their benefit.
10.2. On inquiry as to how the Karnataka Neeravari
Nigam Limited would be expending monies for
such a project on the basis of CSR funds, the
learned Additional Advocate General upon
instructions submits that though the utilization
of funds is proper and adequate. If necessary,
the funds would be sourced from other sources
like the Government sources and the funds
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expended by Karnataka Neeravari Nigam
Limited, will be returned to the said Karnataka
Neeravari Nigam Limited in the event of excess
amounts remaining, so that this aspect would
also not come in the way of the implementation
of the project.
10.3. He submits that the council, the Deputy
Commissioner and the Government have
applied their mind and are of the categorical
opinion that there is an immediate requirement
for the said action to be taken, so as to avoid
any future damage, incident and or accident. If
on the basis of the injunction being passed, the
plaintiffs were to use the slab for parking of the
vehicles, then as submitted by Sri. Harsh Desai,
all those issues could arise.
10.4. He further reiterates that there are eight (8)
locations on the slab where access has been
provided, two of them being a proper roads, the
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other locations enabling access by walk. Thus
being provided to enable the access from one
end to the other, will facilitate the plaintiffs in
as much as there is a need for organised
development of the area catering to all issues,
that could arise therefrom this being apart from
the roads perpendicular to the project, thus
providing 10 access points.
10.5. An enquiry as to whether all these were
brought to the notice of the Trial Court and the
First Appellate Court, he submits that they
indeed were placed and refers to paragraph 17
of the order of the First Appellate Court, where
the arguments of the DGP have been indicated.
10.6. Insofar as the judgment of the Trial Court, he
submits that the Trial Court has also taken note
of these contentions, but has negatived the
same on the only basis of the communication
dated 19.09.2022. He reiterates that there is
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no resolution passed by the council to stop the
work. The said instruction was given on the
basis of the oral directions of the President of
the Municipal Council, the Municipal Council has
now been superseded, and an administrator is
appointed for the same in furtherance of
Section 315 of the Act.
11. Sri S.M. Chandrasekhar., learned Senior Counsel,
who appears for the plaintiffs would submit that;
11.1. The plaintiffs have been residents of the said
area and have established their shops on the
western side of the said drain. They have been
conducting their businesses for decades and
access for the same has been created over the
drain.
11.2. On enquiry as to whether the access was
through the drain or if there were any points,
which had been fixed for the same, he
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submitted that the plaintiffs had at their own
cost put up two bridges and it is those bridges,
which were being used by the plaintiffs to
access their shops. Apart from the plaintiffs, the
said bridges were being used by their
customers and the general population of the
area.
11.3. He submits that when there were such bridges
which had been built, now by way of the
proposed development, the entire area will be
closed thereby depriving the plaintiffs of their
access to their shops so also that of the
customers and it is on that basis that
easementary rights have been claimed.
11.4. He again reiterates that there is no parking
facility available on Azad Road. Therefore, the
plaintiffs were using the concrete slab for the
purpose of parking of the goods vehicle to load
and unload material. If the plaintiffs were
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stopped from using the same, grave loss, harm
and injury would be caused to them, which fact
has been taken into consideration by the Trial
Court and the First Appellate Court. As such,
this Court ought not to intercede in this matter.
11.5. He relies upon the Karnataka Parks,
Playgrounds and Open Spaces Preservation and
Regulation Act 1985 (hereinafter referred to as
'Act of 1985' for brevity) and submits that
without a park being designated and or notified
under the said Act, no park could be set up.
11.6. In the present case, there being no notification,
the authorities are riding roughshod over the
interests of the plaintiffs by creating a park on
the concrete slab, which would cause harm and
injury to the plaintiffs apart from being in
violation of the Act of 1985.
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11.7. He questions as to how a park could be built on
a concrete slab and a swimming pool be
established on a concrete slab and as such, he
submits that the project is completely ill-
planned and has been initiated at the behest of
certain vested interests, the same is not for the
benefit of the populace of Gadag-Betageri.
11.8. The President of the Municipal Council taking
note of these facts had issued instructions to
the Commissioner and the Commissioner had
acted on the said instructions directing the
petitioner/defendant No.4 to stop the
construction. This fact has also been taken into
account by the Trial Court and the First
Appellate Court. Therefore, this Court would not
be required to intercede in the matter. There
being a concurrent finding of both the Trial
Court and the First Appellate Court while
granting an order of injunction.
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11.9. He submits that on the western side of the Raja
Kaluve, there exists both commercial and
residential properties which would have to have
access through this slab. The plaintiffs have
been making payment of taxes in respect
thereto and as such they cannot be deprived of
access.
11.10. Plaintiff No.1 had obtained permission to
construct an additional bridge to approach the
property, which was so permitted and the
bridge was constructed at the cost of the
residents and was 10 to 15 feet wide. The
construction having been put up long ago, the
plaintiffs have acquired easementary rights
over the same. In that background, he submits
that the Trial Court has considered these
aspects in a proper manner and held that there
is an easementary right, which is required to be
considered.
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11.11. In view of the construction of the concrete bed
and the concrete slab, the space between the
properties and the slab has been reduced and
as such, the plaintiffs have been using the slab
for purposes of travel and parking. Now that
defendant No.4 is putting up construction. The
interest of the plaintiffs has been adversely
affected.
11.12. The works which have been so carried out in an
unscientific manner blocking the right of way of
the plaintiffs and impinging on their livelihood
in terms of Article 21 and 19 (1) (g) of the
Constitution of India. The Commissioner of the
Municipal Council could not have acted contrary
to the Act of 1985. Relevant provisions under
the 1985 Act, which are required to be
followed, the same not having been followed,
the claim of defendant No.4 to put a park on
the concrete slab is not sustainable.
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11.13. He then relies upon Section 81 of the Karnataka
Municipalities Act 1964, which is reproduced
hereunder for easy reference.
81. Municipal property.--(1) Every
municipal council may for the purpose of this
Act, acquire and hold property both movable
and immovable, whether within or without the
limits of the 1 [municipal area]
(2) All property of the nature herein specified,
and not being specially reserved by the
Government, shall be vested in and belong to
the municipal council and shall, together with
all other property of whatsoever nature or
kind not being specially reserved by the
Government, which may become vested in the
municipal council, be under its direction,
management and control and shall be held
and applied by it as trustee, subject to the
provisions and for the purposes of this Act,
that is to say,--
(a) all public town-walls, gates, markets,
slaughter houses, manure and night-soil
depots, and public buildings of every
description;
(b) all public streams, tanks, reservoirs,
cisterns, wells, springs, aqueducts, conduits,
tunnels, pipes, pumps and other water works
and all bridges, buildings, engines, works,
materials and things connected herewith, or
appertaining thereto, and also any adjacent
land not being private property appertaining
to any public tank or well;
(c) all public sewers and drains, and all
sewers, drains, tunnels, culverts, gutters and
water courses, in, alongside or under any
street, and all works, materials and things
appertaining thereto, as also all dust, dirt,
dung, ashes, refuse, animal matter or filth or
rubbish of any kind collected by the municipal
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council from the streets, houses, privies,
sewers, cess-pools or elsewhere;
(d) all public lamps, lamp-posts and apparatus
connected therewith, or appertaining thereto;
(e) all lands and buildings transferred to it by
the Government, by gift or otherwise, for local
public purposes;
(f) all public streets and the pavement, stones
and other materials thereof and also all trees,
erections, materials, implements and things
provided for such streets:
Provided that lands transferred to the
municipal council by the Government under
clause (e) shall not, unless otherwise
expressly provided in the instrument of
transfer, belong by right of ownership to the
municipal council but shall vest in it subject to
the terms and conditions of the transfer, and
on the contravention of any of the said terms
or conditions, the lands with all things
attached thereto, including all fixures and
structures thereon, shall vest in the
Government and it shall be lawful for the
Government to resume possession thereof.
(3) It shall be competent to the Government
from time to time, by notification, to take over
any property vested or vesting in the
municipal council under this section on such
terms as the Government may determine.
11.14. By relying on Clause-(c) Subsection (2) of
Section 81 of the Karnataka Municipalities Act
1964, he submits that all the drains etc. belong
to the Municipal Council and it is only the
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Municipal Council who can maintain and control
the said property.
11.15. In terms of Section 84 of the Karnataka
Municipalities Act, he submits that defendant
No.4 has not obtained any permission from the
Municipal Council. The President, acting under
Section 43(2) and (3) of the Municipalities Act,
had directed the Commissioner to stop, prevent
defendant No.4 from putting up any garden,
kids' play area, etc. That order has been passed
by the competent authority and it is for the
Commissioner to implement the same. Section
43 of the Karnataka Municipalities Act is
reproduced and ended for easy reference.
43. Functions of president.--(1) Subject to the
provisions of Chapter XIV, it shall be the duty of
the president of a municipal council to,--
(a) preside, unless prevented by reasonable
cause, at all meetings of the municipal council
and subject to the provisions of the rules for the
time being in force under clause (a) of sub-
section (2) of section 323, to regulate the
conduct of business at such meetings;
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(b) watch over the financial and executive
administration of the municipal council;
(c) perform all the duties and exercise all the
powers specifically imposed or conferred upon
him by, or delegated to him under and in
accordance with this Act;
(d) furnish within a period of a fortnight to the
Commissioner or to such other officer as the 1
[Director of Municipal Administration]1 shall
from time to time nominate in this behalf, a
copy of every resolution passed at any meeting
of the municipal council; and
(e) furnish any extract from the minutes of the
proceedings of the municipal council or of any
committee or other document or thing which
the 1 [Director of Municipal Administration]1 or
other officer calls for under section 304.
[(2) The President of a municipal council may,
in cases of emergency direct the execution or
stoppage of any work or the doing of any act
which requires the sanction of the municipal
council, and the immediate execution or doing
of which is, in his opinion, necessary for the
service or safety of the public, and may direct
that the expenses of executing such work or
doing such act shall be paid from the municipal
fund:
Provided that,--
(a) he shall not act under this section in
contravention of any order of the municipal
council prohibiting the execution of any
particular work or the doing of any particular
act, and
(b) he shall report forthwith the action taken
under this section and the reason therefor to
the standing committee at its next meeting.]
[(3) The President shall have the following
additional powers, namely:--
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(a) to issue directions to the 2 [Municipal
Commissioner] or the Chief Officer to implement
the resolutions of the Council or the Standing
Committees;
(b) to require the Administration Report and the
Annual Report of the Council prepared and
placed before the end of the year;
(c) to issue directions to the concerned officers
to comply with the points made out in the audit
report;
(d) to undertake inspection and supervision of
the works taken up by the Council; and
(e) to call for any record but the same to be
returned within one month.
(4) The President shall ex-officio be a member
of all the standing committees but without the
power of vote on any question.
(5) The [Municipal Commissioner] or the Chief
Officer shall, whenever they address
communications to Government, simultaneously
forward copies thereof to the President.
11.16. In the background of the above submissions,
Sri S.M. Chandrashekhar, learned Senior
Counsel submits that the actions on part of the
answering respondents/official respondents is
contrary to law, is violative of the rights of the
plaintiffs and taking all these aspects into
consideration, the Trial Court had injuncted the
official defendants, which injunction order on
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appeal by defendant No.4 has been confirmed
by the First Appellate Court. There being
concurrent findings of both the Courts, he
submits that this Court ought not to intercede,
but dismiss the writ petitions. All the issues will
be thrashed out during Trial.
12. Heard Sri. K.L.Patil, learned Senior counsel appearing
for the petitioner/defendant No.4, Sri. G. M.
Gangadhar, learned Additional Advocate General
appearing for respondent No.9/defendant No.1,
Sri. Harsh Desai, learned counsel appearing for
respondent No.10/defendant No.2 and Sri. S.M.
Chandrashekar., learned counsel appearing for
caveator respondent No.1 to 8 and 12 to
42/plaintiffs. Perused the papers.
13. The points that would arise for the consideration of
this Court are:
1) Whether the plaintiffs have exfacie
established any easementary right
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over the concrete slab which has been
put up, requiring an order restraining
the defendants from carrying out any
development works thereon?
2) Whether the order passed by the
Municipal Commissioner in pursuance
of the oral directions issued by the
President continues to be subsisting?
3) Whether the claim of the plaintiffs to
make use of the subject property for
parking and or access to their
properties is sustainable?
4) Whether the respondents cannot put
up a park without the same being
designated as a park under the
Karnataka Parks, Play-Fields and Open
Spaces (Preservation and Regulation)
Act, 1985?
5) Whether an injunction order was
required to be passed by the Trial
Court and confirmed by the First
Appellate Court or do the said orders
suffer from legal infirmity requiring
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intervention at the hands of this
Court?
6) What order?
14. I answer the above points as under.
15. Answer to Point No.1: Whether the plaintiffs
have exfacie established any easementary right
over the concrete slab which has been put up,
requiring an order restraining the defendants
from carrying out any development works
thereon?
15.1. The prayer which has been sought for in the
plaint is as under:
It is most humbly prayed and submitted that:
1. It may be declared that the plaintiffs and have
right to approach their respective business
premises consisted in suit properties Sl.No.1-
10 by 'RIGHT TO WAY' as easement of
necessity to by passing along the Azad Road
over the Raja Kaluve; and
2. The construction carried out or proposed to be
carried out by the Defendant no.4 over the
Raja Kaluve as shown in the BCDEFGHLKJI
region of hand sketch map may be declared as
illegal and violative of easementary rights of
Plaintiffs and others; and
3. As a consequence the Defendants be restrained
by an order of Permanent Injunction from
employing/making any construction perpetually
over the said BCDEFGHLKJI region of the hand
sketch affecting the easementary rights of
plaintiffs; and
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4. The costs of the suit may kindly be awarded to
the plaintiffs;
5. Any other legal or equitable reliefs which this
Hon'ble Court deems fit may kindly be
awarded.
Accordingly the suit of the plaintiff be decreed
in the interest of justice, Equity and Good
Conscience.
15.2. The prayer which has been sought for in the
Interlocutory Application is as under:
Application U/O XXXIX, R 1 & 2, R/W S.151 of
CPC.
Herein, the advocate for the
plaintiffs/applicants, implore to apply as under.
That for the reasons sworn in the
accompanying affidavit, it is most humbly
prayed that, this Hon'ble Court be pleased to
an order ad-interim-exparte-injunction against
this Defendant No. 1-4/Opponent, restraining
the Defendant No. 1/4/Opponents, from
making any further construction work by
themselves and by their men/contractors and
also servants employed specifically for the
construction in or over the suit Raja Kaluve
catchment area affecting the valuable
easementary rights of the Plaintiffs to use,
approach and enjoy the suit schedule I Sl.No.1-
11 properties situated at Gadag, till the
disposal of the top-noted suit in the interest of
justice, equity and good conscience.
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15.3. Essentially what the plaintiffs have sought for is
to have a right to approach their respective
business premises, consisted in the suit
property Sl.No.1 to 10 by right to way as
easement of necessity to by passing along the
Azad road over the Raja Kaluve and it is in
furtherance thereof that the ad interim
injunction has been sought for to restrain
defendants No.1 to 4 from making any further
constructions on or over the suit Raja Kaluve
affecting the valuable easement rights of the
plaintiffs to use, approach and enjoy the suit
schedule Sl.Nos.1 to 11 properties.
15.4. It is in the above background that it was
required to be examined by the Trial Court, the
First Appellate Court and now to be examined
by this Court whether there is any easement
right which the plaintiffs can claim over the said
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Raja Kaluve. The facts and contentions have
been detailed out hereinabove.
15.5. Admittedly the Raja Kaluve was an open drain
until COVID-19 and it is only thereafter that
with AN intention to clean up the existing drain
and maintain a clean atmosphere, the Raja
Kaluve being an open sewer drain, the
Municipal Council came up with a proposal to
close the drain and as such a concrete bed was
laid at the bottom to enable easy flow of the
sewage, pillars were constructed and a concrete
slab built thereon, thus enclosing the open
sewage drain by way of a box drain in terms of
the aforesaid concrete bed at the bottom,
pillars on the side and slab on the top. Prior to
2021, the drain was an open drain with certain
bridges built across. According to the plaintiffs
there were 2 bridges, according to the
defendants, there was 1 bridge to cross over
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the said Raja Kaluve to reach the Azad road
where the shops of the plaintiffs are stated to
be located. Thus until 2021, admittedly, there
were even, according to the plaintiffs, 2 bridges
and, as indicated above, according to the
defendants, 1 bridge. The Raja Kaluve/storm
water drain and as claimed by the plaintiffs
themselves the gutter was not enclosed but
was an open sewage drain. Hence, the Trial
Court and the First Appellate Court ought to
have first considered whether there are any
easementary rights which the plaintiffs could
have claimed on the concrete slab which has
been constructed in the year 2021. Since
admittedly the said concrete slab has been
constructed only in the year 2021. The Trial
Court and the First Appellate Court have
completely erred in taking into consideration
that the plaintiffs have their shops situated next
to Azad road and therefore they have an
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easementary right over the concrete slab which
has been put up in the year 2021. The slab not
being in existence for the prescribed period, the
question of the plaintiffs obtaining any
prescriptive rights over the said concrete slab
would not arise.
15.6. Coming to the aspect of easement of necessity,
even as per the plaintiffs, the plaintiffs had
access to their shops on Azad road from across
the road over 2 bridges which they claim to
have built by themselves. The documents
which have been placed on record by the
Municipal Council indicate that it was a
temporary license which had been granted to
them and the bridges would have to be
surrendered to the Municipal Council. Now that
due to COVID-19, a box drain has been put up.
On the box drain being completed, the plaintiffs
had started using the box drain for parking as
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also for loading and unloading goods vehicles.
It is not that there is no other access which is
available to the shops of the plaintiffs but the
contention is that it is easier to cross over from
one side to the other side on the box drain and
therefore there would be lesser distance to be
covered and it is on that basis that a right of
passage is sought for.
15.7. The project plan which has been placed on
record indicates that there are several locations
where there is access from one side of the road
to the other on the concrete slab which has
been constructed and there are also roads
indicated in the said plan. Thus, insofar as
access by pedestrians to the shops of the
plaintiffs and or access by the plaintiffs
themselves, such access is available in terms of
the plan which has been placed on record at
least at 6 locations and two roads has been
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indicated apart from access through Station
Road and D.C.Mill Road which is always
available. Thus, it cannot be said that there is
no access to the properties of the plaintiffs or
the customers of the plaintiffs inasmuch as
there are 6 locations where access to
pedestrians is provided.
15.8. Easement of necessity would only arise if there
was no access available to the plaintiffs to their
shops. Admittedly the plaintiffs' shops being
located on Azad Road which connects Station
Road on one side and DC Mill Road on the other
side have access from those two roads and
therefore, it cannot be contended that there is
any easement of necessity that is required to
be granted to the plaintiffs.
15.9. The concrete slab which had been put up in the
year 2021 was started to be used by the
plaintiffs for the purpose of parking of their
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vehicles and loading and unloading of goods
vehicles. The concrete slab not being designed
to carry such a load. Apart from for
beautification of the City for the purpose of
preventing such usage of the concrete slab
which could endanger the said concrete slab,
the Municipal Council has come up with a
proposal to use the same as a recreation area
so that no parking could be resorted to in the
said area. The plaintiffs have approached the
Trial Court only for the purpose of using the
concrete slab for their parking purposes and
usage of access to their properties.
15.10. The aspect of access has already been dealt
with hereinabove. Insofar as parking is
concerned, the concrete slab on the drain has
not been put up for the purposes of parking nor
is it a designated parking space. Merely
because it is convenient to the shop owners to
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use the concrete slab for the purpose of parking
and or loading and unloading the goods vehicle,
the same would not confer any legal right on
them to use the said concrete slab for that
purpose.
15.11. In my considered opinion, the Suit has been
filed, and the relief as sought are completely
misconceived. The plaintiffs have sought to
usurp the properties of the City for their own
interest of parking, which ought not to have
been permitted by the Trial Court or the First
Appellate Court and as such, will not be
permitted by this Court.
15.12. In that view of the matter, I answer Point No.1
by holding that the plaintiffs have not
established any easementary right over the
concrete slab which has been put up in the year
2021 requiring the Trial Court to have ordered
an injunction and or the First Appellate Court to
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confirm the said injunction restraining the
developmental works being carried out therein.
16. Answer to Point No.2: Whether the order
passed by the Municipal Commissioner in
pursuance of the oral directions issued by the
President continues to be subsisting?
16.1. Much has been made of the letter issued by the
Commissioner of the Municipal Council dated
19.9.2022. A perusal of the said letter would
categorically indicate that the Municipal
Commissioner has in the very said letter stated
that the said letter has been issued on the oral
instructions of the President. There is no
particular resolution passed by the Council in
that regard. It is only on the basis of the oral
instructions of the President that the
Commissioner had called upon defendant No.4
to stop the construction activities. Subsequent
thereto, an Administrator having been
appointed, the Commissioner has issued a
letter dated 7.12.2022 calling upon defendant
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No.4 to complete the construction at the
earliest. These facts would indicate that the
letter dated 19.9.2022, even if validly issued,
has been overridden and superseded by the
letter dated 7.10.2022. Both the Trial Court
and the First Appellate Court have ignored the
letter dated 7.10.2022 and placed reliance on
the earlier letter dated 19.9.2022, which ought
not to have been the case. The Trial Court and
the First Appellate Court ought to have taken
into consideration the subsequent events and
thereafter passed necessary orders.
16.2. In the present case, the Deputy Commissioner
being the State is represented by the Additional
Advocate General and the Municipal Council is
represented by its own counsel. The petition,
however, is filed by the contractor. The
submission of the Additional Advocate General
and the Counsel for the Municipal Council is
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that they support the project now being carried
out by defendant No.4. The submission of
learned Additional Advocate General is also that
the funds would now be internally sourced and
the funds of KNNL will not be used. That being
the case, the project being supported by the
State and the Council, this Court would have to
take cognizance of the said facts in the face of
which the letter dated 19.9.2022 would pale
into insignificance inasmuch as the said letter
has already been overridden and superseded by
letter dated 7.10.2022 and the stand of the
Municipal Commissioner has been vindicated
and reiterated by the State.
16.3. Thus, I answer Point No.2 by holding that the
order passed by the Municipal Commissioner
dated 19.9.2022 in pursuance of the oral
direction issued by the President cannot be said
to be subsisting for the Trial Court or the First
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Appellate Court or for this Court to refer to and
rely upon.
17. Answer to Point No.3: Whether the claim of the
plaintiffs to make use of the subject property
for parking and or access to their properties is
sustainable?
17.1. This point has partly been answered in answer
to Point No.1 above. Suffice it to say that the
plaintiffs have been making use of the subject
property, that is, the concrete slab, for the
purpose of parking and access to their
properties.
17.2. Insofar as access is concerned, there have been
6 locations where pedestrians could approach
the properties/shops of the plaintiffs. The right
to access is not disturbed.
17.3. Insofar as access to goods vehicle and or other
vehicles, there are 2 roads which have been
made above the concrete slab. Apart
therefrom, the Azad Road has access from
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Station Road and DC Mill Road. Therefore,
even the question of right to access by way of
vehicles is not impinged upon by the project.
17.4. Insofar as parking is concerned, as rightly
contended by Sri.Harsh Desai, learned counsel
appearing for the Municipal Council that the
earlier gutter had been closed by a box drain.
The closure of the gutter was to maintain a
hygienic atmosphere. The concrete slab was
never built for the purpose of being used for
parking. The Municipal Council is also
apprehensive that if the said area is used for
parking, the slab could collapse, resulting in
injury to the occupants of the vehicle when the
slab collapses, apart from the entire flow of
sewage in the twin city of Gadag Betagiri
coming to a standstill on account of blockage of
the drain, which could also result in overflow of
the sewage water to neighbouring areas. This
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being the fact situation as contended by the
Municipal Council, I am of the considered
opinion that the plaintiffs not having had any
access or right to make use of the concrete slab
for the purpose of parking prior to 2021 since
there was no such slab which had been
constructed before that date, there cannot be
any right which could be said to be vested in
the plaintiffs from 2021 to 2023 when the
project commenced to confer any easement
right on them.
17.5. As indicated above, the slab not being built for
parking, not capable of carrying the load of
such vehicles, the question of plaintiffs making
use of the slab for parking when the said area
is not a designated parking area could also not
arise.
17.6. Insofar as access is concerned, there are 6
locations indicated in the plan for pedestrian
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access, 2 roads which have been indicated on
the concrete slab for access to make use apart
from Station Road and DC Mills Road.
Therefore, the interest of the plaintiffs are
adequately protected by the existence of these
access points and roads.
17.7. Hence, I answer Point No.3 above by holding
that the claim of the plaintiffs to make use of
the concrete slab for parking is not sustainable
and or maintainable.
18. Answer to Point No.4: Whether the respondents
cannot put up a park without the same being
designated as a park under the Karnataka
Parks, Play-Fields and Open Spaces
(Preservation and Regulation) Act, 1985?
18.1. The Statement of Objects and Reasons of the
Act, 1985 are as under:
STATEMENT OF OBJECTS AND REASONS
Act 16 of 1985.- In view of the increasing
demand for residential and commercial sites in
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the urban areas, a number of Parks, Play-fields
and open spaces are being converted into sites
and for other such uses. In order to provide
necessary space for recreation to the residents
of each locality it is necessary to preserve parks,
play-fields and open spaces and to put an end to
the practice of converting such lands into other
uses.
Hence this Bill.
(Published in the Karnataka Gazette
(Extraordinary) Part IV-2A, dated 20-3-1985 as
No. 154 at page 11.)
18.2. A perusal of the said Statement and Objects
would indicate that a number of parks, play
fields and open spaces being converted into
sites and for other uses, in order to provide
necessary space for recreation to the residents
of each locality, it is necessary to preserve
parks, playgrounds and open spaces and to put
an end to the practice of converting such land
into other uses. It is in that background that
under Section 3, a list of parks, playfields and
open spaces is required to be prepared.
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18.3. Section 3 the Karnataka Parks, Play-Fields and
Open Spaces (Preservation and Regulation) Act,
1985 is reproduced hereunder for easy
reference:
3. Preparation and submission of list of parks,
play-fields and open spaces by executive
authorities. (1) The executive authority of every local
authority shall, not later than six months from the
date on which this Act comes into the force in the area
within the jurisdiction of the local authority concerned,
prepare, and submit for the approval of the
Government a correct and complete list with plans and
maps with dimensions of all the parks, play-fields and
open spaces in the area aforesaid containing such
other particulars as may be prescribed.
(2) The Government shall, as soon as may be, after
the receipt of the list and other documents referred to
in sub-section (1), publish the list together with a
notice of the date (not being less than three months
from the date of publication) before which
representation in connection therewith may be
submitted in the prescribed manner and such
publication shall state at what place and time the
plans, maps and documents aforesaid will be available
to the public for inspection:
Provided that if any private land is included in any
park, play-field or open space specified in the list a
copy of the list with the concerned to be served on the
owner of that private land. led plans and maps shall
cause
18.4. A perusal of Section 3 would indicate that it is
the existing parks, playfields and open spaces
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which are to be listed by the Executive
Authorities along with correct and complete
plans and maps with dimensions of all the
parks, playfields and open spaces. A list
thereof is required to be published in terms of
subsection (2) of Section 3, inviting objections
if any. If any park, playfield or open space is in
a private land, notice is to be issued to the
private landowner also. It is thereafter on
receipt of any objections, suggestions,
representation, considering those objections,
representations and suggestions, orders would
have to be passed by the Government
approving the list in the manner it deems it and
the list as approved is required to be published.
Under section 5, before inclusion of any lands in
the said list, the Government is required to
publish a draft notification inviting objections
and thereafter pass necessary orders after
hearing the person interested. It is in
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furtherance thereof that in terms of Section 6,
there is a prohibition imposed on usage of any
land designated for parks, playfields and open
spaces for any other purpose than that for
which it was designated.
18.5. Section 7 provides for maintenance; Section 8
provides for prohibition of construction on the
park; Section 9 provides for obligation of owner
of parks and playfields etc.
18.6. Thus, the very object of the Act is to prevent
the use of existing park, playfield or open
spaces for purposes other than that of park,
playfield and open spaces and it is due to the
restriction imposed under Section 6 and 8 of
the Act that a public notice is issued inviting
objections and thereafter on consideration of
objections, representations, suggestions, orders
are to be passed by the Government. This
being so, since once a particular park, playfield
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or open space is included in the list by the
Government, the restriction under Sections 6
and 8 would come into play, which would not
apply if a park, playfield or open space is not in
the approved list by the Government.
18.7. This being the scheme of the Act, I am afraid I
am unable to accept the submission of
Sri.S.M.Chandrashekar, learned Senior counsel
that without a list being approved by the
Government, no area can be designated as
park, playfield or open space. The same is akin
to putting the cart before the horse which
cannot be accepted. It is only after a park
comes into existence that the State may decide
to include it in the list under the Act of 1985 or
not. It is not prior to a park being formed that
the same has to be included in the list in terms
of Section 4 of the Act of 1985.
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18.8. Thus, I answer Point No.4 by holding that for
the creation of a new park, open space or
playfield, it is not required that the same has to
be in the list approved by the Government
under Section 4 of the Act of 1985. It is only
after the park, playfield or open space has
come into being and if the State were of the
opinion that it needs to be protected that the
procedure under the Act of 1985 has to be
followed.
19. Answer to Point No.5: Whether an injunction
order was required to be passed by the Trial
Court and confirmed by the First Appellate
Court or do the said orders suffer from legal
infirmity requiring intervention at the hands of
this Court?
19.1. In view of my answers to Point Nos.1 to 3
above, there being no easementary right, which
has been established by the plaintiffs, nor could
any easementary right be established by the
plaintiffs over a concrete slab which had been
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built in the year 2021, the Trial Court and the
First Appellate Court have completely
misapplied themselves by considering the
earlier bridges across the gutter. Even if those
bridges were to be considered as access points,
even according to the plaintiffs, there are 2
bridges, now there are 6 access points which
have been provided over the concrete slab.
Thus, the interest of the plaintiffs and or the
other citizens are adequately safeguarded by
such access points being provided. These
aspects in the plan have not been considered
by the Trial Court and the First Appellate Court.
19.2. Both the courts have proceeded on the basis of
the letter dated 19-09-2022 issued by the
Municipal Commissioner on the oral instructions
of the President without adverting to the
subsequent events. Therefore, in my
considered opinion the Trial Court and the First
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Appellate Court have completely misapplied
themselves requiring intervention at the hands
of this Court.
19.3. Hence, I answer Point No.5 by holding that
there is no prima facie case which has been
made out by the plaintiffs of the right of
easement over the concrete slab. The balance
of convenience is in favour of the respondent -
Municipal Council who has taken up the
developmental works. Irreparable injury would
be caused to the Municipal Council and the
State if the concrete slab is unauthorisedly used
for parking when it is not so constructed for
parking.
20. Answer to Point No.6: What order?
20.1. In view of my answer to all the points above, I
am of the considered opinion that the order
passed by the Trial Court and the First
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Appellate Court are not sustainable. As such, I
pass the following:
ORDER
i) The Writ Petition is allowed.
ii) The order dated 21-4-2023 passed on
I.A.No.5/2023 in O.S.No.93/2023 by the
Principal Civil Judge and JMFC., Gadag as also
the order dated 3-12-2024 passed by the
Principal Senior Civil Judge and CJM, Gadag in
M.A.No.11/2023 are hereby set aside.
iii) Consequently IA No.5 of 2023 is dismissed.
SD/-
(SURAJ GOVINDARAJ)
JUDGE
AM/PRS
List No.: 19 Sl No.: 1
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