Hunsagi Vs. North Eastern K.R.T.C.  INSC 748 (15 April 2009)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2554 OF 2009 (Arising
out of SLP (C) No.13824 of 2006) Mandal Panchayath Hunsagi ... Appellant Versus
North Eastern K.R.T.C. ...
S.B. Sinha, J.
before us is a Mandal Panchayat. Respondent is a Corporation constituted and
registered under the Road Transport Act, 1951. It filed a suit for grant of a
decree for mandatory injunction to demolish the shops constructed by the
appellant herein as also for a decree for grant of perpetual injunction
restraining them from proceeding with the illegal construction of shops over
the disputed space alleging that just behind the same, it runs a bus stand and
in the middle portion whereof, a PWD owned road is used for egress and ingress
of the passengers. It has two gates through which the buses enter into and exit
for their destination. For safety of the passengers, there exists a wicket
gate. The said open space is said to be belonging to and maintained by the PWD
It was contended that
the land over which the shops were being constructed by the appellant did not
belong to it and, thus, the same was totally illegal. Appellants, in their
written statement, accepted the topography but urged that the purported wicket
gate is not in use. It was stated that there existed a 30 ft. space belonging
to Mandal Panchayat in between the compound wall and the bus stand.
learned Trial Judge decreed the said suit holding that the Secretary of the
appellant-Panchayat having admitted in the cross- examination that they did not
have any document of title in respect of the land in suit and furthermore
having regard to the fact that the breadth of the major district road has to be
30 meters and, thus, appellant did not have any right, title or interest in or
over the suit land. It was furthermore held :
"If at all the
defendants wants to construct shopping complex, it should be beyond the 50'
from the centre of the road. It can be seen from 3 the sketch map Ex.D.7 that
the shops are being constructed by the defendants at a distance of 9 meters
from the centre of the road and the breadth of the shops upto the compound wall
of the bus stand is 5.60 meter. In other words the total area between the centre
of road upto the compound wall is 14.60 meters which is less than 15 meters
from the centre of the road and so it can be said that whatever area is
available from the centre of road upto the compound wall of the bus stand is
the area belongs to the main road shall be 30 meters. Besides it can be said
that 1 meter 3.3' and 14.60 meters 48.18' approximately and this area (48') is
less than 50' and under Ex.P.25 the defendants were permitted to raise the
construction of shopping complex beyond 50' from centre of the road, but now
the construction undertaken is 48-49' which is not permissible. In sum &
substance, it can be said tht there are cogent and convincing materials on
records to hold that the disputed area of 15' where upon the shopping complex
is being raised by the defendants between the compound wall of the bus stand
and the main road is the property belongs to PWD department rather than the
defence of the defendants that it is Gouthana property, and the plaintiff was
successful to discharge the duty imposed upon it in this regard. Having regard
to all these facts and circumstances of the case the present issued on had is
liable to be answered in affirmative and it is answered accordingly."
An appeal preferred
thereagainst by the appellant was allowed by a judgment and decree dated 16th
June, 2004 passed by the Civil Judge (Senior Division) Yadgir in R.A. No.55 of
1993. The Appellate Court in its judgment, inter alia, took into consideration
the contention raised on 4 behalf of the appellant that the shops were being
constructed for the welfare of the public under the Jawahar Rozgar Yojna, as
also the fact that the Chief Secretary of the Zilla Parishad by an order dated
9.8.1989 granted approval for the work directing the appellant to open a gate
where the `wicket gate' was situated.
It was furthermore
opined that as the PWD itself never claimed the ownership of the road, the
plaintiffs-respondents could not be permitted to do so. It was, however,
noticed that although sanction was obtained by the appellants for construction
of four shops, but, in fact, it started construction of six shops wherefor no
authorization was obtained by them from the PWD. It was opined that it was for
the plaintiff-respondent to prove that the right and interest of the public at
large would be affected by construction of the shops wherefor the suit was
required to be filed in terms of Section 92 of the Code of Civil Procedure. It
was furthermore held :
using of passage gate by the passengers and cause of action to file this suit,
I am of the view that in view of the conclusions arrived at by this Court,
those facts are not material facts. The plaintiff has no cause of action with
detailed reasons, the plaintiff cannot file this suit to get the grievances
redressed by the limited scope of the prayer as prayed in the relief column of
the plaintiff. At one stretch, it is contended that the public have got
easementary rights and at another stretch, it is contended that the passengers,
who are going to 5 the bus-stand, would put to inconvenience due to the
construction before the wicket gate. The nature of the rights, which are going
to be claimed by the plaintiff in this suit, are of different nature."
appeal was preferred thereagainst by the respondent which by reason of the
impugned judgment has been allowed by the High Court.
The High Court, inter
alia, formulated the following substantial questions of law for its
"1. Whether the
lower appellate court was justified in reversing the well considered and
reasoned judgment and decree of the trial court which appears to have been
passed in public interest on the pleadings of the appellant which is a part of
the State Road Transport Corporation?
2. Whether the lower
appellate Court was correct in rejecting the claim made by the plaintiff
contending that the right to the path way for the public is an easementary
right for the public to pass to the road from the bus stand?
3. Whether the lower
appellate Court was correct in holding that the plaintiff has no locus-standi
to maintain the suit?"
was held that the plaintiff-respondent had a locus standi to maintain the suit
as by reason of the constructions raised by the defendant-appellant, their
right of easement of necessity had been 6 affected. Noticing that the distance
between boundary wall of the bus stand and the centre of the road is less than
50 feet and the wicket gate unless opened for facilitating the passengers to
enter into the bus stand, the entry meant for egress and ingress of the buses,
would be blocked and, thus, the Appellate Court committed a serious error in
passing its judgment.
Dipak Kumar Jena, learned counsel appearing on behalf of the appellant, would
(i) The High Court
committed a serious error in interfering with the judgment of the First
Appellate Court insofar as it failed to take into consideration the fact that
the land in suit being admittedly not belonging to the plaintiff-respondent, it
was not entitled to any relief.
(ii) The validity of
the order passed by the Chief Secretary of the Zilla Parishad dated 2.9.1992
under Section 274 of the Karnataka Zilla Parishads, Taluk Panchayat Samithis,
Mandal Panchayats and Nyaya Panchayats Act, 1983 (hereinafter referred to as
`the 1983 Act') having not been questioned by any of the parties, the same was
binding on the plaintiff.
Hegde, learned counsel appearing on behalf of the respondent, on the other
hand, would support the impugned judgment.
does not claim any right, title and interest over the suit land. Indisputably,
the suit land in a part of the main road belongs to PWD. It has not been
disputed before any of the courts below that no construction could have been
raised within 30 meters from the centre of the road. A finding of fact had been
arrived at to that effect by the learned trial Judge. The said finding of fact
has not been reversed by the learned First Appellate Court.
is in that view of the matter, the High Court, in our opinion, rightly held
that the wicket gate constructed within 50 ft. of the centre of road for
facilitating the egress and ingress of the passengers to enter the bus stand
could not have been blocked.
274 of the 1983 Act reads as under :
Revision.--(1) The Zilla Parishad may call for and examine the record of any
proceedings under this Act of any subordinate officer of the Zilla Parishad or
the Mandal Panchayat and after such inquiry as is deemed fit if the Zilla
Parishad is satisfied that the order of such subordinate officer is contrary to
law and has resulted in miscarriage of justice, pass such orders thereon as the
Zilla Parishad deems just.
(2) No order under
sub-section (1) shall be made to the prejudice of any party unless he has had
an opportunity of being heard."
Chief Secretary of the Zilla Parishad in his order dated 2.12.1992 has not and
could not have entered into the disputed question of title in respect of the
because the Zilla Parishad has granted approval for the constructions, the same
by itself would not come in the way of the respondent's right to maintain a
suit. It was not necessary for it to file a suit in terms of Section 92 of the
Code of Civil Procedure. The very fact that the Chief Secretary, Zilla
Parishad, Gulbarga himself had directed for opening a passage to the wicket
gate which order has not been questioned by the appellants is a clear pointer
to show that even the revisional authority did not arrive at a finding that
they have a lawful title over the land so as to enable them to raise
construction over the suit land in their own right. The constructions raised by
the appellant, thus, being illegal, the same should have been directed to be
demolished. The Court of first appeal, in our opinion, committed a serious
illegality insofar as it, for all intent and purport, dismissed the
respondent's suit on the question of locus standi.
the provisions of Section 92 of the Code of Civil Procedure were not attracted;
the suit by the Corporation which is also a statutory corporation, in our
opinion was maintainable.
the reasons aforementioned, there is no merit in the appeal. It is dismissed
accordingly. However, in the facts and circumstances of the case, there shall
be no order as to costs.