Dismissed

Subhash S/O Anandappa Hubballi v. the Executive Engineer

Karnataka HC13 Jul 2023WP/103663/2023

Case brief

AI extract

What is this about?

Petitioners sought to quash an endorsement and direct respondents to construct a bund for road access via their ancestral land after a lake was formed. The Court held the matter involves disputed facts suitable only for a civil court since a suit is pending, dismissing the writ petition with liberty to pursue relief in the Civil Court.

What did the court decide?

Writ petition dismissed; liberty reserved to petitioners to agitate issues before the Civil Court or other appropriate forum.

Subhash S/O Anandappa Hubballi Vs the Executive Engineer — Property and Title | Karnataka HC (2023)

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1 - NC: 2023:KHC-D:7173 WP No. 103663 of 2023

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 13^TH DAY OF JULY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR

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WRIT PETITION NO. 103663 OF 2023 (GM-RES)

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BETWEEN:

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SUBHASH S/O. ANANDAPPA HUBBALLI, AGE: 48 YEARS, OCC: AGRICULTURE, R/O: BASAV NAGAR, MAHALINGAPUR, TQ: RABKAVI-BANAHATTI, DIST: BAGALKOT- 587 312.

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RAJU S/O. ANANDAPPA HUBBALLI, AGE: 36 YEARS, OCC: AGRICULTURE, R/O: BASAV NAGAR, MAHALINGAPUR, TQ: RABKAVI-BANAHATTI, DIST: BAGALKOTE- 587 312.

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…PETITIONERS

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(BY SRI GIRISH A. YADAWAD, ADVOCATE)

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AND:

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VIJAYALAKSHMI M KANKUPPI Digitally signed by VIJAYALAKSHMI M KANKUPPI Location: High Court of Karnataka, Dharwad

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THE EXECUTIVE ENGINEER, MINOR IRRIGATION AND GROUND WATER, DEVELOPMENT DIVISION, VIJAYAPUR, DIST: VIJAYAPUR-586 101.

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THE STATE OF KARNATAKA, REPRESENTED BY ITS PRINCIPAL SECRETARY, MINOR IRRIGATION AND GROUND WATER, DEVELOPMENT DIVISION,

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M.S. BUILDING, BENGALURU-560 001.

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THE ASSISTANT EXECUTIVE ENGINEER, MINOR IRRIGATION AND GROUND WATER, DEVELOPMENT SUB-DIVISION, MUDHOL, TQ: MUDHOL, DIST: BAGALKOTE-587 313.

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NC: 2023:KHC-D:7173 WP No. 103663 of 2023

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SRI MUTTAPPA S/O. ALLAPPA SANNAHATTI, AGE: 30 YEARS, OCC: AGRICULTURE, R/O. BELAGALI VILLAGE, TQ: MUDHOL, DIST: BAGALKOTE-587313.

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SRI DUNDAPPA S/O. VENKAPPA BARAMANI, AGE: 59 YEARS, OCC: AGRICULTURE, R/O. BELAGALI VILLAGE, TQ: MUDHOL, DIST: BAGALKOT-587313.

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SRI PANDIT S/O. BASAPPA PUJAR, AGE: 52 YEARS, OCC: AGRICULTURE, R/O. BELAGALI VILLAGE, TQ: MUDHOL, DIST: BAGALKOTE-587313.

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SRI NEELAKANT S/O. TAMMANAPPA SIADAPUR, AGE: 30 YEARS, OCC: AGRICULTURE, R/O. BELAGALI VILLAGE, TQ: MUDHOL, DIST: BAGALKOTE-587313.

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…RESPONDENTS

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(BY SRI PRASHANT V. MOGALI, HCGP FOR R.1 TO 3; SRI K.S. PATIL, ADVOCATE FOR PROPOSED R.4 TO 7)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT IN THE NATURE OF CERTIORARI TO QUASH THE IMPUGNED ENDORSEMENT DATED 27.01.2023 ISSUED BY THE RESPONDENT NO.3 IN NO. Sa.Ni.Am.Aa.Ee/Vi/Mudhol/Nya.Pra/2022-23/1026 VIDE ANNEXURE-K; ISSUE A WRIT OF MANDAMUS OR ANY SUCH WRIT OR DIRECTION TO DIRECT THE RESPONDENTS TO CONSTRUCT A BUND AS REQUESTED BY THE PETITIONERS VIDE REPRESENTATION DATED 20.03.2023 AT ANNEXURE-L, IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS PETITION, COMING ON FOR DICTATING ORDER, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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This petition is filed by the petitioners seeking to quash the impugned endorsement dated 27.01.2023 issued by respondent No.3 vide Annexure-K.

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It is the contention of petitioners that petitioners are the owner of land measuring 18 acres 32 guntas situated in R.S.No.96 of Belagali village in Mudhol taluk of Bagalkote district. Petitioners purchased the said land under the registered sale deed dated 22.07.2019. In the said sale deed it is specifically mentioned that the petitioners have a right to pass through the road situated on the western boundary of R.S.No.43 which is SouthNorth in direction by using truck, tractor, cart, cattle etc.,. Learned counsel further contends that certain lands were

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acquired with a view and purpose of forming a lake including R.S.No.43 of Belagali village, which was transferred to the State Government by way of registered sale deed dated 09.03.2021 by its erstwhile owner namely Smt. Harinakshi D/o Shantilal Somaiya, which was

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thereafter handed over to the respondents. Pursuant to which, respondents have formed a lake in the various lands including R.S.No.43 of Belagali village. It is the contention of learned counsel for the petitioners that their land is landlocked and has no direct access to the public road and that the only access road to the petitioners land is through the one situated in R.S.No.43. Therefore in view of formation of the lake in R.S.No.43, the road got submerged and the petitioners have lost their right to access the land.

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Learned counsel further contends that the petitioners have been transporting the sugarcane from field to the sugar factory. Due to submergence of the road

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in the formation of lake, there was no access to the petitioners other than the road situated in R.S.No.43. Petitioners submitted a representation to various authorities including respondent No.1 with a request to repair the road in R.S.No.43. It is also contended by learned counsel that there was an alternative road passing

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through R.S.No.99 to reach the public road on the other side, but in view of strained relationship with owner of RS.No.99, the said road came to be blocked, thereby the petitioners are left with no alternative access road to their property. Therefore, it is the contention of petitioners that in view of submergence of the only access through R.S.No.43 of the road, respondents are obligated to continue to honour the right of way of the petitioners in R.S.No.43 to their property at R.S.No.96. It is also contended that despite giving several representations to the respondents, the road has not been repaired and no efforts are made by respondents to repair the road, thereby causing severe hardship and financial difficulty to the petitioners.

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It is also the contended that the sugar factory crushing season would be for limited period till the end of June-2023. Therefore, it is the contention of learned counsel that petitioners themselves are ready and willing to repair the road to use the same to transport the

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sugarcane from their property to the main road. Due to inaction of respondents in not repairing the road, petitioners filed a writ petition before this Court in W.P.No.105814/2022, seeking for a direction to repair the road and to construct a bund. On hearing both the parties, the Coordinate Bench of this Court directed the respondents to consider the representation of the petitioners vide Annexure-G within three months and also held that petitioners should have an appropriate means of access to transport the crops that they have raised in their land. This Court vide order dated 16.12.2022 passed an order in favour of petitioners that the petitioners should have appropriate 'bunds' of access to transport the crops raised in their land and the petitioners were permitted to repair the road which is situated on the western boundaries of R.S.No.43 at their own cost and they were also permitted to lay a pipe temporarily for the purposes of enabling the transportation of the sugarcane from R.S.No.96 through R.S.No.43.

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Being aggrieved by the orders passed in the aforementioned writ petition, respondents preferred Writ Appeal No.100213/2023, but the said Writ Appeal came to be disposed of on the ground that the road which was ordered to be formed was a temporary road and petitioners have cut and transported the sugarcane crops, thereby interim arrangement which this Court permitted vide order dated 23.03.2023, no longer survives. However, permitted the petitioners therein i.e., petitioners herein to avail appropriate remedy against said communication. The endorsement issued by respondents dated 27.01.2023 is questioned before this Court and so also petitioners sought writ of mandamus for a direction to the respondents to construct a bund as requested by the petitioners vide their representation dated 20.03.2023 vide Annexure-C. It is the vehement contention of learned counsel for the petitioners that the impugned endorsement issued by respondent No.3 is illegal, arbitrary and contrary to the law. The same is unsustainable and requires to be quashed. Further, respondents deliberately have not

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considered the representation of the petitioners and therefore, they have sought for a direction to the respondents to construct a bund. It is the contention of learned counsel for the petitioners that respondents are bent upon harassing the petitioners to coerce the petitioners to sell the land to the respondents as the other adjacent land owners have sold the property to the respondents.

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As a method of strategic malafide tactics, action is initiated by respondents, which is illegal, highly arbitrary and it is violative of the principles of natural justice and also constitutional right provided to the petitioners to enjoy his property. The creation of lake by acquisition of the property adjacent to the road i.e., R.S.No.43 and other adjacent lands would thereby takeaway then existing road and render the petitioners without access from their property to the main road, thereby they are not able to transport the sugarcane which they were earlier using the road by way of interim order. Therefore, it is the

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contention of learned counsel for the petitioners that the existing road be permitted to be used by the petitioners. Hence, they have filed this present petition.

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Per contra , learned HCGP representing State

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and the impleading applicants who have sought to come on record as respondent Nos.4 to 7 being none other than the villagers and owners of the adjacent lands through the learned counsel K.S.Patil, vehemently contends that the impugned order questioned by the petitioners does not call for interference as the same is not shown to be illegal, perverse or arbitrary.

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It is the contention of learned counsel for the respondents that there is an alternative road for access to the petitioners from the Northern side, he can use the said road to transport the sugarcane and also any other movement of the cart to access from the main road to his property. It is further contended by learned HCGP that writ petition itself totally misconceived and deserves to be rejected with exemplary cost on the ground that the

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property belonging to the petitioners is in Sy.No.96 and there is access to the main road through a public road which is situated on the North-West corner in R.S.No.99 going towards Mahalingapur and the other side towards Belagali town. It is also contended that the present road formation made by the petitioners in Sy.No.43 was by way of temporary arrangement made after filing of Writ Petition No.105814/2022 only for the purpose of transporting the sugarcane from their lands by means of either truck or cart by repairing the road. He further contends that this interim order was granted as a one time measure and this one time measure which was granted as temporary measure cannot be made use of by the petitioners for a permanent solution of use of the road. It is further contended by learned HCGP that the percolation tank near Belagali town was constructed in the year 20222023 by the Minor Irrigation and Ground Water Development Department. The submergence area of tank is around 85 acres, out of which 54 acres are already acquired by the department by way of direct purchase and

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the remaining areas are yet to be acquired and the acquisition proceedings are in process.

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It is also contended by learned HCGP that the villagers have given several representation during the year 2018-2019 to rejuvenate the existing tank at Belagali town in order to overcome the scarcity of water and to fulfill the requirements of the villagers, animals of the water scarcity. In view of such representation, the department has decided to rejuvenate the existing tank by constructing a new tank in order to overcome the water scarcity during summer season. It is further contended by learned HCGP that the petitioners trying to utilize the tank-bund for transportation and laying of road, is objectionable and the laying of tank-bund would destroy the tank and containments, which is daily used by villagers for themselves and the animals for domestic purpose. The entire villagers are in favour of establishment of the water

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tank and they are all agreeable to use alternative road available other than the one which is going through

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R.S.No.43, which is now being used by petitioners by

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virtue of an order by this Court on a temporary basis.

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Learned HCGP further contends that the matter requires detailed hearing as it involves disputed questions of fact and law and the rights of the parties to use the road if inexistence which would require recording of evidence and the same cannot be agitated before this Court in the writ jurisdiction under Article 226 of the Constitution of India. Further, petitioners are seeking an easementary right of way over the land R.S.No.43 to approach his property to the main road for transportation of the sugarcane produced in his field. The use of tankbund on temporary basis as road would effect the tankbund and the raising water would further damage the entire tankbund and the temporary road was made only as a temporary interim measure and not a permanent solutions. It is also contended by learned HCGP that petitioners suppressed before this Court with regard to filing of original suit for similar relief as easementary right

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and the fact remains that original suit is filed for similar relief agitated before this Court. On these grounds, he seeks to dismiss the petition in toto.

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The facts remains that petitioners are not the owner of R.S.No.43. But they claim to be having ownership of R.S.No.96 and they are seeking right to use of way through R.S.No.43 which was permitted to them by way of temporary arrangement in the earlier round of writ petition and they seek to continue the same as that is not going to hamper or disturb the other adjacent owners and villagers. It is also a fact that there is a road by way of approach to R.S.No.96 belonging to the petitioners from R.S.No.99 and there is a metal road laid out on this R.S.No.99 which can be approached by petitioners to go to the main road and so also to his property which is the road that can be used by the petitioners to have access to their property from the main road.

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On perusal of the order in the earlier writ petition, paragraph No.7 reads that "However an interim

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measure, since there is a sugarcane crop already raised by the petitioners, the petitioners are permitted to repair the road which is situated on the western boundary of R.S.No.43 at their own cost, so as to enable the transportation of the sugarcane from their land by means of either a Truck or a cart". Further, paragraph No.8 reads that "It would be open to the petitioners to lay a pipe temporarily for the purpose of enabling the transportation of the sugarcane from R.S.No.96 through R.S.No.43". A liberty was given to the petitioners to make a representation to the respondents to construct the bund for the purpose of transportation of crops grown in the petitioners land. The said writ petition was challenged in the appeal by the respondents and the appeal came to be disposed of on the ground that interim arrangement made by coordinate bench of this Court would no longer survive and accordingly dispose of the writ appeal.

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Admittedly, there is a metal road accessed from Sy.No.99 to all the villagers of the adjacent areas

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including the petitioners in R.S.No.96 for access to main road from his property. The matter for consideration before this Court Under Article 226 of the Constitution of India, is very limited. This Court cannot go into the disputed questions of fact and where the matter involves detailed trial and neither can this Court hold a roving enquiry in the writ jurisdiction to find out as to viability, availability of the road and what is good and bad for the neighboring villagers and so also for the rights of the petitioners with regard to use of the road.

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Admittedly, petitioners have also instituted a suit seeking similar relief as sought herein with regard to easementary right of use of way of road through R.S.No.43. Therefore, on such being the case it would not be appropriate for this Court to dissect into the disputed questions of fact and to opine or give a finding without providing suitable opportunities to all the parties concerned. It is also apparently clear without ambiguity that in the earlier round of litigation at the instance of the

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petitioner that he would repair the road at his cost. As a interim temporary measure, he was permitted to do so. The same cannot be assumed to be a permanent solution without adjudication of the rights of the parties. Considering all these above issues and in view of the discussions herein above, this Court is of the opinion that the petitioner's remedy would lie before the Civil Court where original suit has been initiated for similar relief and this Court cannot interfere in the orders passed vide Annexure-K dated 27.01.2023. Under the circumstances, I pass the following:

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ORDER

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i) Writ petition is dismissed.

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ii) However, liberty is reserved to the petitioners

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to agitate all issues before Civil Court or other appropriate forum.

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iii) It is made clear that this Court has not

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expressed any opinion with regard to merits or demerits of the case on either side.

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iv) All contentions of the parties are kept open to

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be adjudicated before the appropriate forum.

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v) In view of disposal of the petition, impleading

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applications would not survive for consideration and the same placed into insignificance.

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Sd/JUDGE

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AM List No.: 1 Sl No.: 29

Subhash S/O Anandappa Hubballi v. the Executive Engineer

Case brief

What is this about?

What did the court decide?

Subhash S/O Anandappa Hubballi v. the Executive Engineer

Case brief

What is this about?

What did the court decide?

What the court decided

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