Disposed

Sri Shivarama v. the Superitending Engineer

Karnataka HC8 Nov 2022WP/7211/2022

Case brief

AI extract

What is this about?

A writ petition under Article 226/227 sought an ad-interim stay of an order rejecting an injunction application. The Court directed the petitioner to remove a fence obstructing respondents' canal access and restrained respondents from leveling the area, mandating maintenance of status quo until the final disposal of the underlying suit.

What did the court decide?

Petitioner directed to remove fence; both parties restrained from obstructing access or altering the nature of the disputed 'access' area until final disposal.

Sri Shivarama Vs the Superitending Engineer — Property and Title | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 08^TH DAY OF NOVEMBER 2022

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BEFORE

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THE HON’BLE MR. JUSTICE B. M. SHYAM PRASAD

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WRIT PETITION NO.7211/2022 (GM-CPC)

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BETWEEN :

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SRI SHIVARAMA AGED ABOUT 63 YEARS S/O LATE JAVARAPPA NALLURU SHIRANGALA VILLAGE KUSHALNAGAR HOBLI SOMWARPET TALUK KODAGU-571 235.

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... PETITIONER

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(BY SRI. ABHINAV R, ADVOCATE)

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AND :

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THE SUPERITENDING ENGINEER HARANGI PROJECT CIRCLE CAVERI NEERAVARI NIGAM LTD KUSHALNAGAR HOBLI SOMWARPET TALUK KODAGU-571 235.

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THE ASSISTANT EXECUTVIE ENGINEER CAVERI NEERAVARI NIGAM LTD., NO.1 HARANGI ANEKATTU SUB-DIVISION HULUGUNDA KODAGU-571234.

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EXECUTIVE ENGINEER HARANGI PUNRVASATHI DIVISION

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KUSHALNAGAR KODAGU-571 235.

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THE CHIEF ENGINEER IRRIGATION (SOUTH) CAVERI NEERAVARI NIGAM LTD., PUBLIC OFFICE BUILDING MYSORE-570 024.

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... RESPONDENTS

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(BY SRI. K.S. BHEEMAIAH, ADVOCATE FOR R1 TO R3; R4 SERVED UNREPRESENTED)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 22.03.2022 PASSED BY THE SENIOR CIVIL JUDGE AND JMFC, SOMVARPET IN M.A.NO.3/2022 AT ANNX-L AND CONSEQUENTLY GRANT AN EX-PARTE AD-INTERIM ORDER OF TEMPORARY INJUNCTION PENDING DISPOSAL OF THE APPLICATION FILED ALONG WITH THE APPEAL BY THE PETITIONER / APPELLANT UNDER ORDER XXXIX RULES 1 AND 2 READ WITH SECTION 151 OF THE CIVIL PROCEDURE CODE, 1908 AT ANNX-K BY ALLOWING THIS WRIT PETITION.

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THIS WRIT PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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This petition is by the plaintiff in O.S.No.20/2021 on the file of the Civil Judge and JMFC, Kushalnagar [for short ' the civil Court' ]. The civil Court by its impugned order dated 22.09.2021 has rejected the petitioner's application [ IA.3 ] for temporary injunction.

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The petitioner has called in question the civil Court's order in appeal under Order XLIII Rule 1 of the Code of Civil Procedure, 1908 [ CPC ] in M.A.No.3/2022 on the file of the Senior Civil Judge and JMFC, Somwarpet [for short, ' the appellate Court ']. The appellate Court by the impugned order dated 22.03.2022 has refused to grant ad interim order of injunction opining that the petitioner has not made out exceptional circumstances for the grant of such relief when the respondents have undertaken certain infrastructural activity. This Court on 13.04.2022, has directed the parties to maintain status quo till the disposal of the suit.

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The controversy between the petitioner and the officers of the Cauvery Neeravari Nigama Limited - the respondents - is in the backdrop of the following undisputed facts. The petitioner is the owner of land measuring 2 acres 42 cents in Sy.No. 36/A of Shirangala village, Somwarpet Taluk, Kodagu District,

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and appropriate notifications are issued on two occasions in the 1980s to acquire two parcels of this extent viz., 20 and 17 cents. These parcels are acquired for the purposes of constructing a canal with necessary ancillary facilities. The Niravari Nigam has constructed canal with certain facilities. The dispute is because the petitioner contends that the entire extent of 37 cents acquired is utilized by the respondents, and this is seriously contested by the respondents asserting that though the canal with certain facilities is constructed, the authorities have maintained a buffer on one side of the canal for purposes of ensuring access to maintain the canal and the ancillary facilities.

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Sri Abhinav R and Sri K.S. Bheemaiah,

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learned counsels for the parties, are heard in the light of the afore insofar as regards the interim injunction/ arrangement that must prevail, and the records, including the photographs relied upon by both the

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petitioner and respondents, are perused. The petitioner has erected fence, obstructing "access ", and this is seen from the following photographs produced by the respondents.

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Sri Abhinav R submits that the petitioner is constrained to erect a barricade in the extent of 10 feet x 200 metres to prevent the authorities from taking measures to metal the " access " which is within the petitioner’s property because, despite this Court’s status quo orders, the authorities are attempting to metal the access; the petitioner otherwise is categorical that he is not interested in preventing either the respondents or the others from using the " access " subject to the outcome of the suit. In fact, Sri Abhinav R submits that the petitioner, on his own volition, would remove the fence constructed within a period of one week and this Court must protect the petitioner's interest in directing the respondents not to metal this " access " which is within the petitioner’s property to form a public road. He emphasizes that with the local elections there is a keenness amongst the authorities, including the respondents, to metal this " access ".

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Sri K.S. Bheemaiah, on behalf of the

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respondents, denies every assertion in these regards and contends that the canal constructed and the buffer which is a non-metaled road, is the respondents' property. He argues rather vehemently that the " access " is part of the acquired portions in Sy.No.36/A of Shirangala village, Somwarpet Taluk, Kodagu District and the adjacent lands, and the respondents must have access to this extent, which is now barricaded, to maintain the canal and the ancillary facilities.

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In the light of these rival submissions, the question for consideration is:

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What should the interim arrangement be, and should such interim arrangement continue until disposal of the suit or the pending miscellaneous appeal in M.A.3/2022?

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As of now, there is nothing on record to indicate the width of the area that is acquired by the

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respondents in the land in Sy.No.36/A of Shirangala village, Kushalnagar Hobli, Somwarpet Taluk, Kodagu District though it is undisputed that a total extent of 37 cents in this land is acquired and some part of this acquired extent is utilized for construction of canal with certain facilities. If there is any metaling, as apprehended by the petitioner, there could be a fait accompli closing the questions that are thrown up for decision after the evidence his let, and the petitioner cannot prevent the respondents from using the " access " to carry maintenance work. As such, the interim arrangement has to be made by this Court.

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measure/arrangement, Sri Abhinav R admits without much ado, that the petitioner must remove the fencing as now undertaken. The petitioner must not only remove such fencing but also file an affidavit in this regard with the civil Court within one week without

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waiting for a certified copy of this order. The respondents, for reasons already recorded, cannot undertake any metaling but must have unhindered and undisturbed access to carry out maintenance and repair of the canal. This arrangement would keep the property in dispute as it exists today for final decision without any change being made. Therefore, the parties must maintain status quo of the disputed area viz., the " access " that abuts the canal and the ancillary facilities constructed in the land in Sy.No.36/A of Shirangala village, Kushalnagar Hobli, Somwarpet Taluk, Kodagu District without the petitioner barricading and the respondents without metaling or otherwise changing the nature of this " access " as it exists today.

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As regards the tenure for which this arrangement must prevail, the appeal in M.A.No.3/2022 will not address the questions that will have to be decided finally as the parties have to lead evidence on

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the width of the extent that is acquired in Sy.No.36/A of Shirangala village, Kushalnagar Hobli, Somwarpet Taluk, Kodagu District. Therefore, the aforesaid arrangement must prevail until relevant questions are decided in the pending suit. In these circumstances, it would be just and reasonable to reserve liberty to both the petitioner and the respondents to place a certified copy of the order in the pending appeal in M.A.3/2022 for necessary closure. Hence the following:

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ORDER

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[1] The petition is disposed of directing both the petitioner and the respondents not to change the nature of the disputed area viz ., the " access " that abuts the canal and the ancillary facilities constructed in the land in Sy.No.36/A of Shirangala village, Kushalnagar Hobli, Somwarpet Taluk, Kodagu District and there shall be access without any impediment and hindrance to each other.

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[2] The petitioner shall not obstruct the respondents’ access to the disputed area for the purposes of maintenance and repair of the canal work. The respondents shall not carry out any metaling of the " access ". This arrangement shall prevail until the final adjudication in the suit unless varied by specific orders.

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[3] The petitioner shall file an affidavit before the civil Court within a week from today stating that the fencing/ barricade is removed.

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[4] The appellate Court, if a copy of this order is placed on its file, shall dispose of the appeal in the light of this order.

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[5] It is needless to observe that all questions

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are left open for consideration.

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Sd/JUDGE

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Sri Shivarama v. the Superitending Engineer

Case brief

What is this about?

What did the court decide?

Sri Shivarama v. the Superitending Engineer

Case brief

What is this about?

What did the court decide?

What the court decided

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