Partly allowed

Sri Alwyn Jayakar Menon v. the Commissioner

Karnataka HC11 Dec 2023RSA/1065/2020

Case brief

AI extract

What is this about?

In a regular second appeal regarding an injunction suit over land acquisition for a water channel, the High Court allowed the appeal in part. It restrained the Corporation from interfering with 8.583 cents but dismissed the claim over the acquired 1.417 cents, setting aside lower court decrees.

What did the court decide?

Permanent injunction granted against interference with 8.583 cents of suit property; suit dismissed regarding the remaining 1.417 cents.

Sri Alwyn Jayakar Menon Vs the Commissioner — Land Acquisition | Karnataka HC (2023)

¶1

1 - NC: 2023:KHC:45205 RSA No. 1065 of 2020

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 11^TH DAY OF DECEMBER, 2023

¶4

BEFORE

¶5

THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM REGULAR SECOND APPEAL NO. 1065 OF 2020 (INJ)

¶6

BETWEEN:

¶7

SRI. ALWYN JAYAKAR MENON, S/O DEVAPAL MENON, AGED ABOUT 58 YEARS, R/AT MENON COMPOUND, NEAR SANGHANIKETANA, MANNAGUDDA, GANDHINAGARA, MANGALURU - 5750 03 (DK).

¶8

…APPELLANT

¶9

(BY SRI. M. SUDHAKAR PAI, ADVOCATE)

¶10

AND:

¶11

Digitally signed by ALBHAGYA Location: HIGH COURT OF KARNATAKA

¶12

THE COMMISSIONER, MANGALURU CITY CORPORATION, CORPORATION BUILDING, LALBAGH, MANGALURU - 575 003, D.K. DISTRICT.

¶13

…RESPONDENT (BY SRI. AJAY J.N, ADVOCATE)

¶14

THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 06.07.2020 PASSED IN RA.NO.54/2018 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE AND CJM, MANGALURU, D.K., DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE

¶15

2 - NC: 2023:KHC:45205 RSA No. 1065 of 2020

¶16

DATED 17.04.2018 PASSED IN O.S.NO.485/2007 ON THE FILE OF THE III ADDL. CIVIL JUDGE, AND JMFC, MANGALURU.D.K.

¶17

THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

¶18

JUDGMENT

¶19

The captioned Second Appeal is filed by the

¶20

unsuccessful plaintiff feeling aggrieved by the concurrent judgment and decree rendered by the Courts below wherein the plaintiff's suit seeking relief of injunction against the defendant-Corporation is dismissed by both the Courts.

¶21

For the sake of brevity, the parties are referred

¶22

as they are ranked before the Trial Court.

¶23

The facts leading to the case are as under:

¶24

Plaintiff has filed the present suit for injunction simpliciter against the defendant/Corporation. The plaintiff claims to be the owner of the non-agricultural property totally measuring 10 cents. The suit is filed by the plaintiff feeling aggrieved by the acquisition of the land

¶25

3 - NC: 2023:KHC:45205 RSA No. 1065 of 2020

¶26

by the defendant/Corporation for forming water channel by utilizing the plaintiff's property. Therefore, the plaintiff issued a legal notice calling the defendant not to encroach the suit schedule property. The present suit is filed alleging that inspite of legal notice and repeated request, the officials of the defendant/Corporation threatened the plaintiff and entered into the suit schedule property and tried to illegally construct revetment wall and laid cement slab to the water channel/drain.

¶27

Defendants on receipt of summons, tendered appearance and filed written statement and stoutly denied the entire averments made in the plaint. The defendant on the contrary claimed that it is not executing any work of constructing revetment wall to the open drain. The defendant further claimed that the project is being implemented under M.L.A.'s fund by the Deputy Commissioner through Nirmitha Kendra.

¶28

The plaintiff to substantiate his lawful possession over the suit schedule property examined

¶29

¶30

NC: 2023:KHC:45205 RSA No. 1065 of 2020

¶31

himself as PW.1 and examined five independent witnesses as PWs.2 to 6. The plaintiff also produced documents which were marked as Exs.P-1 to P-12. The defendantCorporation did not choose to lead any rebuttal evidence.

¶32

The trial Court taking cognizance of the evidence of Surveyor examined by the plaintiff himself found that the allegation of plaintiff that laying of a drainage water channel is by utilizing plaintiff’s property is not substantiated. The trial Court held that alleged encroachment as claimed by plaintiff is not proved and therefore, in absence of interference by defendantCorporation, trial Court proceeded to dismiss the suit and the same is confirmed by the appellate Court.

¶33

This Court vide order dated 14.09.2020 has

¶34

admitted the appeal on following substantial question of law:

¶35

“Whether the First Appellate Court has committed gross error in adjudicating the regular appeal before it without considering Commissioner’s report, wherein it is stated that

¶36

5 - NC: 2023:KHC:45205 RSA No. 1065 of 2020

¶37

defendant has encroached portion of the suit schedule property?”

¶38

Learned counsel appearing for the defendantCorporation while filing vacating application has placed on record the preliminary notification issued by the State under Section 4(1) resolving to utilize 1.417 cents of portion of suit schedule property. The counsel has also placed on record the final notification issued under Section 6(1). The copy of mahazar taking possession under Section 16(2) and the award passed on 29.02.2008 is also placed on record. Referring to these significant details, the counsel appearing for the Corporation would point out that relief sought in the present suit would not survive for consideration as the State has resolved to acquire 1.417 cents of the suit property for laying a water channel. These copies are served on the counsel appearing for the appellant/plaintiff.

¶39

It is trite law that on account of subsequent developments if the cause of action does not survive for

¶40

¶41

NC: 2023:KHC:45205 RSA No. 1065 of 2020

¶42

consideration, this Court can take cognizance of the subsequent developments and pass appropriate orders. If an award is passed by the State, then the portion acquired and indicated in the award copy stands vested with the Government and therefore, the plaintiff’s suit seeking injunction simpliciter to an extent of 10 cents may not survive in entirety.

¶43

Learned counsel appearing for the

¶44

defendant/Corporation referring to the award details would point out that the defendant-Corporation intends to only utilize 1.417 cents of total extent measuring 10 cents. If these significant details are looked into, then this Court is of the view that defendant-Corporation pursuant to acquisition by the State intends to implement the project by forming a water channel. If 1.417 cents is already acquired by the State, the plaintiff cannot seek injunction and injunct the local authority from implementing the project. Equally, defendant-Corporation while implementing the project under the garb of forming a

¶45

7 - NC: 2023:KHC:45205 RSA No. 1065 of 2020

¶46

water channel, cannot encroach over plaintiff’s remaining extent.

¶47

Since counsel appearing for the defendantCorporation, on instructions, has made a statement before this Court that the defendant-Corporation will utilize only that portion which is acquired and an award is passed, the substantial question of law framed by this Court needs to be answered partly in the affirmative. The plaintiff is entitled for injunction to an extent measuring 8.583 cents. The plaintiff’s prayer seeking injunction in excess of 8.583 cents is denied. The defendant-Corporation is hereby restrained from interfering with suit schedule property measuring 8.583 cents.

¶48

It is made clear that before defendantCorporation proceeds to complete the project, it would be incumbent on the part of the technical officials of the defendant-Corporation to carve out the acquired portion measuring 1.417 cents and after demarcating the acquired portion, is at liberty to proceed and implement the project.

¶49

8 - NC: 2023:KHC:45205 RSA No. 1065 of 2020

¶50

Accordingly, I pass the following:

¶51

ORDER

¶52

(i) The second appeal is allowed in part;

¶53

(ii) The judgment and decree rendered by the appellate Court in R.A.No.54/2018 and the judgment and decree rendered by the trial Court in O.S.No.485/2007 are set aside;

¶54

(iii) Defendant/Corporation is hereby restrained by way of permanent injunction from interfering with plaintiff’s peaceful possession over the suit schedule property measuring 8.583 cents. However, relief of injunction sought in respect of remaining 1.417 cents is concerned, suit is dismissed;

¶55

(iv) Draw decree accordingly;

¶56

(v) The pending interlocutory application, if any, does not survive for consideration and stands disposed of accordingly.

¶57

NSU,CA List No.: 1 Sl No.: 46/CT: BHK

¶58

Sd/JUDGE

Sri Alwyn Jayakar Menon v. the Commissioner

Case brief

What is this about?

What did the court decide?

Sri Alwyn Jayakar Menon v. the Commissioner

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Smt Puttamma, Vs Kempamma Dead by Lrs Prakash

G M Siddalingaiah Vs Kariyappa

M Ramaiah Vs T. Ramadas

H v Padmanaba Gowda Vs Muniyamma

Smt. Savithramma Vs Sri. Putta

Smt. Alphan Vs Jayamma @ Jayalakshmi @ Biliyamma