IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 1ST DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE S. G. PANDIT WRIT APPEAL No.3179 OF 2016 (LB-BMP) BETWEEN:
1. JAYESH LAXMICHAND NAGDA @ JAYESH L M NAGDA AGED ABOUT 54 YEARS SON OF MR.L M NAGDA RESIDING AT FLAT NO.I-204 PURVA FAIRMONT APARTMENTS 24TH MAIN ROAD, SECTOR-2 HSR LAYOUT, PARANGIPALYA BENGALURU - 560 102.
2. MR. JAYANTH L NAGDA AGED ABOUT 52 YEARS SON OF MR.L.M.NAGDA HAVING RESIDING AT 705, ONDINA DRIVE FREEMONT, CA-94539, USA REPRESENTED BY HIS REGISTERED GENERAL POWER OF ATTORNEY AGENT MR.JAYESH LAXMICHAND NAGDA ... APPELLANTS (BY SRI.GANAPATHI HEGDE, ADVOCATE FOR SRI SHRIKARA P.K, ADVOCATE) AND:
1. STATE OF KARNATAKA REVENUE DEPARTMENT REPRESENTED BY ITS SECRETARY VIKASA SOUDHA BENGALURU - 560 001 2. THE TAHSILDAR BENGALURU EAST TALUK K.R.PURAM BENGALURU – 560 036 3. BRUHAT BENGALURU MAHANAGARA PALIKE BBMP HEAD OFFICE CORPORATION CIRCLE HUDSON CIRCLE BENGALURU – 560 002 REPRESENTED BY ITS COMMISSIONER ... RESPONDENTS (BY SRI.LAXMINARAYANA, AGA FOR RESPONDENT Nos.1 AND 2 SMT. SUMANGALA SIMIMATH, ADVOCATE FOR SRI. I.G. GACHCHINAMATH, ADVOCATE FOR RESPONDENT No.3) THIS APPEAL FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION NO.38375/2016 DATED 18/07/2016.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, RAVI MALIMATH J., DELIVERED THE FOLLOWING:
JUDGMENT Aggrieved by the order dated 18.07.2016 passed by the learned Single Judge in Writ Petition No.38375 of 2016, in dismissing the writ petition, the writ petitioners have preferred this appeal.
2. The plea of the writ petitioners is that the respondents – authorities are digging drainage beside their property in order to form a drain (Nala) and that, a portion of the property of the petitioners has also been dug up. Therefore, the instant writ petition was filed seeking for a mandamus to restore the schedule property to its original state and close the drain (Nala) through the schedule property and the culvert in front of the schedule property and form the drain (Nala), if required, outside the schedule property etc.
3. By the impugned order the learned Single Judge was of the view, that the remedy for the petitioners is to file a civil suit as such this type of questions do not deserve to be gone into, in a petition under Article 226 of the Constitution of India,.
4. On considering the contention of the appellants, we do not find any reason to interfere with the order passed by the learned Single Judge. The plea of the appellants is that the drain (Nala) is running beside his property, but the authorities have dug up the drain (Nala) within the property of the petitioners. The apparent case of the respondents is that, if at all the petitioners were to succeed with regard to the fact that the drain (Nala) has been dug up in the petitioners’ property, such questions will necessarily have to be gone into in a civil suit, and decided on adducing evidence. A writ Court could not go into this dispute.
5. For the aforesaid reasons, the writ appeal is dismissed. We find no good ground to interfere with the well reasoned order passed by the learned Single Judge. The learned Single Judge was justified in holding invoking writ jurisdiction of the Court under the given circumstances, was inappropriate.
Pending I.A is rejected.
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JUDGE JUDGE NG* CT:bms