Sri. M. Sanjeev Raju vs Sri M Dinesh
2023 Latest Caselaw 9820 Kant

Karnataka High Court

Sri. M. Sanjeev Raju vs Sri M Dinesh on 8 December, 2023

Author: S.G.Pandit

Bench: S.G.Pandit

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                                                             NC: 2023:KHC:44764
                                                           WP No. 25611 of 2023




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 8TH DAY OF DECEMBER, 2023

                                              BEFORE
                               THE HON'BLE MR JUSTICE S.G.PANDIT
                           WRIT PETITION NO. 25611 OF 2023 (GM-CPC)
                   BETWEEN:

                   1.   SRI. M. SANJEEV RAJU, AGED ABOUT 64 YEARS,
                        REPRESENTED BY HIS MANAGER,
                        LEA ASSOCIATES SOUTH
                        ASIA PRIVATE LIMITED,
                        SRI VENKATESWARA NILAYA,
                        I MAIN, I CROSS, NEAR R.T.O. OFFICE,
                        C.B. NAGAR, KOLAR - 563 101.

                   2.   SRI. M. SANJEEV RAJU, AGED ABOUT 64 YEARS,
                        CONTRACTOR, LEA ASSOCIATES SOUTH
                        ASIA PRIVATE LIMITED,
                        FRONT APARTMENT, NEAR JNCSAR CAMPUS,
                        OPP. RAHANAHALLI LAKE,
                        DASARAHALLI MAIN ROAD,
                        BENGALURU - 560 092.
                                                                     ...PETITIONERS
                   (BY SRI. G.V.SHASHIKUMAR, ADVOCATE FOR
Digitally signed
by SUCHITRA M          SMT. VANI H., ADVOCATE)
J
Location: High     AND:
Court of
Karnataka
                   SRI. M. DINESH S/O R.N.MOHAN,
                   AGED ABOUT 49 YEARS,
                   R/O AMBUJA NILAYA,
                   I MAIN, KURIBARAPET, KOLAR - 563 101.
                                                                     ...RESPONDENT
                   (BY SRI.S.VISWESWARAIAH, ADVOCATE FOR C/R)

                        THIS WP IS FILED UNDER ARTICLE 227 OF THE
                   CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
                   ORDER PASSED BY THE PRINCIPAL CIVIL JUDGE AND J.M.F.C.
                   KOLAR IN O.S. NO.38/2023 DATED 21/04/2023 IN ALLOWING I.A.
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                                            NC: 2023:KHC:44764
                                       WP No. 25611 of 2023




NO.I AND ORDER PASSED BY THE III ADDL. SENIOR CIVIL JUDGE
AND J.M.F.C. KOLAR, IN M.A. NO.21/2023 DATED 26/06/2023 VIDE
ANNEXURE - A AND B AND ALLOW THIS PETITION AND TO GRANT
ANY SUCH OTHER RELIEF/S OR ORDER/S AND ETC.

      THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:

                           ORDER

The petitioners, defendants in O.S.No.38/2023 on

the file of the Civil Judge and JMFC at Kolar, are before

this Court aggrieved by order dated 21.04.2023 in

O.S.No.38/2023, allowing I.A.No.1 and restraining the

petitioners-defendants from putting up further

construction of skywalk in the suit schedule property and

the judgment dated 26.06.2023 in M.A.No.21/2023 on the

file of the III Additional Senior Civil Judge and JMFC, Kolar,

confirming the order of the trial Court.

2. Heard Sri. G.V.Shashikumar, learned counsel

for Smt. Vani.H., learned counsel for the petitioners and

Sri. S.Visweswaraiah, learned counsel for the

caveator/respondent. Perused the writ petition papers.

3. The suit of the respondent-plaintiff was one for

declaration of title of the plaintiff and to remove the

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encroachment and for permanent injunction in respect of

the suit schedule property. It is the case of the

respondent-plaintiff that without acquiring the land, the

petitioners are constructing skywalk in the land belonging

to the respondent-plaintiff i.e., suit schedule property to

an extent of 02 guntas. Along with the suit, the

respondent-plaintiff also filed an application under Order

XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908

(for short 'CPC') to restrain the defendants i.e., petitioners

herein from proceeding with construction of skywalk,

which was allowed by the trial Court under impugned

order dated 21.04.2023. Against which, the petitioners

filed M.A.No.21/2023, which was dismissed, confirming

the order passed by the trial Court.

4. Learned counsel for the petitioners would

submit that the trial Court as well as the Appellate Court

committed an error in granting injunction against the

petitioners from putting up skywalk and also the Appellate

Court committed an error in confirming the said order of

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injunction. Learned counsel further submits that the

petitioners-defendants in the suit are carrying out the

work entrusted by the National Highway Authority. The

National Highway Authority entrusted the petitioners to

construct skywalk adjacent to the National Highway so as

to enable the General Public to cross National Highway.

Learned counsel would further submit that the trial Court

ought not to have injuncted the petitioners from carrying

the work entrusted by the National Highway Authority.

More so, when the skywalk is being constructed for public

use and the injunction has prevented the construction of

skywalk, by which the public are put to hardship. Thus,

learned counsel for the petitioners would pray for allowing

the writ petition by setting aside the order passed by the

trial Court as well as the Appellate Court.

5. Per contra, learned counsel for the respondent-

plaintiff would support the order passed by the trial Court

as well as Appellate Court. Further, learned counsel would

submit that the plaintiff's land to an extent of 02 guntas is

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not acquired and he submits that without acquiring the

land, the petitioners or National Highway Authority could

not have proceeded to construct the skywalk. Thus, he

prays for dismissal of the writ petition.

6. Having heard the learned counsels for the

parties and on perusal of the writ petition papers, I am of

the view that both trial Court as well as Appellate Court

committed grave error in granting injunction and in

confirming the order of injunction. Admittedly, the

petitioners-defendants in the suit are proceeding with

construction at the instance of National Highway Authority.

The National Highway Authority is not a party to the suit.

The plaint averment at Paragraph Nos.4 and 5 reads as

follows:

"4) The Plaintiff humbly submit, that towards South of his land, previously there was a National Highway, and the Government of India i.e., National Highways Authority of India, in order to safe movement of the vehicles widened of the National Highway, and at the time of widening of the National Highway acquired the lands consisting of Highway

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and service road, and now towards South of the suit schedule property there is a service road, and at the time of acquisition the Plaintiffs land is not acquired, and National High is renumbered as NH75, and further NHAI in order to safe movement of the pediatricians intended to install a skywalk from South of National Highway to the North, and the NHAI has entrusted the installation of construction work of skywalk to the Defendants company, and is is submitted that there is no acquisition of land for construction of the skywalk, and the Defendant is excepted to construct the sky walk without encroaching anybodies land particularly the land belonging to the Plaintiff which is the suit schedule property.

5) The Plaintiff humbly submit, that the Defendant company being a civil contract company, who entrusted to erect the skywalk, without any permission from the Plaintiff and without any acquisition of Plaintiff's land, has is trying to erect the skywalk, and in order to do the same has erected 10 pillars for which bedding is laid towards South of Plaintiff's land by encroaching about 2 guntas of land about 10 days ago i.e., 23-12-2022, and when the Plaintiff came to know about the illegal acts of the Defendants approached them on 02-01-2023, near the land and questioned the illegal acts of laying bed for construction of pillars, and the Defendants have

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not given any specific reply, and gave evasive answers, and the Plaintiff requested them not to commit such illegal acts of laying bed in the property belonging to the Plaintiff, the Defendant threaten the Plaintiff with dire consequences, and to stop the illegal acts of the Defendant, the Plaintiff approached the jurisdictional police for help, but the jurisdictional police have not received the written complaint given by the Plaintiff, and instead of providing help to the Plaintiff, the jurisdictional police have warned the Plaintiff not approach them with any complaint against the Defendant, and as such the Plaintiff having no other alternative has approached this Hon'ble court for appropriate reliefs."

7. A perusal of the above paragraphs would make

it clear that the plaintiff himself has stated that National

Highway Authority entrusted the installation of

construction work of skywalk to the petitioners.

Construction of skywalk is for public purpose and for use

of public to cross the National Highway. When National

Highway Authority is not party to the suit, the trial Court

could not have injuncted the agency constructing skywalk

at the behest of National Highway Authority.

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8. Learned counsel for the respondent-plaintiff

would submit that the plaintiff has filed application to

implead National Highway Authority and notice is ordered

on the said application. If the land of the respondent-

plaintiff is not acquired, it is open for the respondent-

plaintiff to request to acquire the land and claim

compensation from the National Highway Authority.

Hence, the following:

ORDER

(i) Writ petition is allowed.

(ii) Impugned order dated 21.04.2023 in O.S.No.38/2023 on the file of the Principal Civil Judge and JMFC, Kolar and judgment dated 26.06.2023 in M.A.No.21/2023 on the file of the III Additional Senior Civil Judge and JMFC, Kolar, are set aside.

Sd/-

JUDGE SMJ