IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF NOVEMBER 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.13729 OF 2018 (GM-CPC) BETWEEN:
HOSABETTU VILLAGE PANCHAYATH HOSABETTU VILLAGE, MANGALURU TALUK REPRESENTED BY ITS P.D.O.
MR. MARCEL D’SOUZA S/O LATE LAWRENCE D’SOUZA AGED ABOUT 60 YEARS ERMAGE HOUSE, IRA VILLAGE AND POST BANTWAL TALUK, D.K.
(BY MR. SANATH KUMAR SHETTY K, ADV.) AND:
FORTUNE PROMOTORS’ (R) MOODABIDRI REPRESENTED BY ITS, PARTNER.
1. MAHENDRAVARMA JAIN S/O NABIRAJA HEGDE AGED ABOUT 33 YEARS FLAT NO.2, GARDEN VIEW APARTMENTS JYOTHINGAR, MOODABIDRI MANGALURU TALUK.
2. MR. DENNIS PERRIERA S/O LATE PETER PERRIEARA AGED ABOUT 44 YEARS POSAKAL HOUSE NARAVI POST, BELTHANGADY TALUK D.K.-575001 (BY MR. K.C. ARIGA, ADV., FOR C/R1 & R2) - - -
… PETITIONER … RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO INTERFERE WITH THE ORDER DATED 24.2.2018 IN M.A.NO.50/2017 ON THE FILE OF III ADDL. SENIOR CIVIL JUDGE, MANGALURU, D.K. (ITINERARY AT MOODABIDRI) BY SETTING ASIDE THE SAID ORDER AT ANNEXURE-A AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Mr.Sanath Kumar Shetty K., learned counsel for the petitioner.
Mr.K.C.Ariga, learned counsel for the respondent Nos.1 and 2.
2. The petition is admitted for hearing. With consent of the learned counsel for the parties, the same is heard finally.
3. In this petition under Article 227 of the Constitution of India, the petitioner has assailed the validity of the order dated 24.02.2018 passed by the Appellate Court by which the appeal filed by the respondent under Order 43 Rule 1(r) of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘the Code‘ for short) has been allowed and the parties have been directed to maintain status quo.
4. Facts giving rise to the filing of this writ petition briefly stated are that the respondent filed a suit seeking the relief of permanent injunction. The claim in the suit is based on the ground that adjoining to the land of the plaintiff, a Government land is situated which inturn adjoins a public road. It is further been averred that the plaintiff has the right to use the Government land in order to access the public road. However, the Gram Panchayat started raising construction on the Government land in violation of law. Thereupon, the plaintiff, while seeking the relief of prohibitory injunction, along with suit had also filed an application for temporary injunction. The petitioner herein filed a reply and opposed the prayer for injunction inter alia on the ground that the State Government is not a party and in the absence of implementation of the State, the right of the plaintiff cannot be adjudicated.
5. The Trial Court passed an order on 21.09.2017 by which the application for injunction filed by the respondent was rejected. Being aggrieved, the respondent preferred an appeal under Order 43 Rule 1(r) of the Code. The Appellate Court, vide impugned judgment dated 24.02.2018, has allowed the appeal and has directed the parties to maintain status quo during the pendency of the suit.
6. Learned counsel for the petitioner submitted that in the absence of impleadment of the State Government, the right of the plaintiff to use the Government land cannot be adjudicated in the suit which has been filed by him. It is further submitted that the plaintiff has merely filed a suit seeking the relief of prohibitory injunction and the order passed by the Appellate Court is vague inasmuch as it only grants relief of status quo. It is also argued that the petitioner is entitled to raise construction on the Government land in accordance with law. The aforesaid aspect of the matter has not been fairly opposed by the learned counsel for the respondent. However, the learned counsel for the respondent submitted that in case the construction is permitted, the right of the respondent would also be affected and therefore, he should be given an opportunity of hearing before permission is granted.
7. I have considered the submissions made on both sides. In view of submission made at the Bar, I deem it appropriate to permit the petitioner to raise construction strictly in accordance with law after obtaining necessary permission from the competent authority as well as the zoning regulations. Needless to state that while dealing with the application which may be filed by the petitioner seeking to grant permission to raise construction, the respondent shall also be afforded an opportunity of being heard as his rights are likely to be adversely affected in case permission is granted.
Sd/- JUDGE RV