Full Judgment Text
REPORTABLE
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. …
Respondent
J U D G M E N T
S.B. Sinha, J.
1. Leave granted.
2. Appellant 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
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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 authorities.
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.
3. The 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
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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
th
judgment and decree dated 16 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
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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 :
“As regards 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
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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.”
4. An 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 consideration :
“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?”
5. It 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
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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.
6. Mr. Dipak Kumar Jena, learned counsel appearing on behalf of the
appellant, would submit :
(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.
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7. Mr. Hegde, learned counsel appearing on behalf of the respondent,
on the other hand, would support the impugned judgment.
8. Appellant 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.
9. It 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.
10. Section 274 of the 1983 Act reads as under :
“ 274. 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.
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(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.”
11. The 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 suit land.
12. Only 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.
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13. If 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.
14. For 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.
……………….…..………….J.
[S.B. Sinha]
..………………..……………J.
[Cyriac Joseph]
New Delhi;
April 15, 2009