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

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

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

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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

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