Holding

The suit was maintainable; the corporation had locus standi, Section 92 CPC was not attracted, and the Panchayat’s construction was illegal and must be demolished.

Summary

The North Eastern K.R.T.C., a statutory road transport corporation, filed a suit for permanent injunction to stop the Mandal Panchayat from constructing shops on land that formed part of a public road maintained by the PWD, thereby obstructing a wicket gate used for passenger egress at a bus stand. The Panchayat argued that the construction was for public welfare under the Jawahar Rozgar Yojna and had been approved by the Zilla Parishad. The trial court decreed in favour of the corporation; the first appellate court set aside the decree on the ground that the corporation lacked locus standi and that the suit should have been filed under Section 92 of the CPC. The High Court reversed that decision, holding the suit maintainable. The Supreme Court dismissed the appeal, ruling that the corporation had locus standi, Section 92 CPC was not applicable, the Panchayat had no title over the land, and the construction violated the statutory 30‑metre road width requirement, thus must be demolished.

Issues considered

Whether the Road Transport Corporation had locus standi to sue despite the land being owned by the PWD.
Whether the suit should have been filed under Section 92 of the Code of Civil Procedure, 1908.
Whether approval by the Zilla Parishad confers a right to construct on the disputed land.
Whether construction within 30 metres of the centre of the road violates statutory requirements.
Whether the wicket gate easement for passengers creates a public right enforceable by the corporation.

Legislation cited

Code of Civil Procedure, 1908s. 92

Subjects

permanent injunctionlocus standiSection 92 CPCpublic purposeeasement of necessityroad width requirementZilla Parishad approvalMandal PanchayatRoad Transport CorporationPublic Works Department

Judgment

....., [2009] 6 S.C.R. 353
~

MANDAL PANCHAYATH HUNSAGI A
v.
NORTH EASTERN K.R.T.C.
(Civil Appeal No. 2554 of 2009)
APRIL 15, 2009
B
[S.B. SINHA AND CYRIAC JOSEPH, JJ.]
...., ·~
Suit - For permanent injunction by Road Transport
Corporation - Seeking restraint against defendant -
Panchayat from constructing shops on the land owned by c
another agency of Government - Defendant stating the
construction to be for welfare of public and being sanctioned
by Zilla Parishad - Suit decreed - First appellate court setting
aside decree on the ground that the plaintiff had no locus
standi to maintain the suit as the suit land did not belong to D
it, and that suit was required to be filed u/s. 92 CPC - High
Court decreed the suit - On appeal, held: The suit was
maintainable by the plaintiff - Filing of suit in terms of s. 92
CPC not required - Code of Civil Procedure, 1908 - s. 92.
·- E
A suit seeking mandatory injunction and perpetual
injunction was filed by respondent-Road Transport
Corporation, against appellant-Manda! Panchayat. It was
alleged that the. respondent was constructing shops on
the land maintained by PWD, behind which it was running
the bus stand and in the middle portion whereof, the road
F
owned by PWD was used for egress and ingress of
passengers.

There also existed wicket gate for the safety of
~
.I
passengers. Appellant-defendants stated that the wicket G
gate was not in use; that the shops were being
constructed for the welfare of the public under Jawahar
Rozgar Yojna; and that the construction was after
approval of Chief Secretary, Zilla Parishad. Trial Court
353 H
354 SUPREME COURT REPORTS [2009] 6 S.C.R.

"1
r
A decreed the suit. First appellate court set aside the decree
holding that the construction was for public purpose
after approval; and that the respondent had no locus
standi to maintain the suit as the land in dispute
belonged to PWD. It opined that the suit was required to
B be filed u/s. 92 CPC. High Court, in second appeal
decreed the suit setting aside order of first appellate
court. Hence the present appeal.
t
Dismissing the appeal, the Court

c HELD: 1. 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 trial
Judge. The said finding of fact has not been reversed by
D the first appellate court. It is in that view of the matter, the
High Court 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. [Para 8] [359-G, H; 360-A]
E 2. The Chief Secretary of the Zilla Parishad has not
and could not have entered into the disputed question
of title in respect of the suit land. Only because the Zilla
Parishad has granted approval for the constructions, the
same by itself would not coine in the way of the
F respondent's right to maintain a suit. It was not necessary
for it to file a suit in terms of Section 92 CPC. If the
provisions of Section 92 CPC were not attracted, the suit
by the Corporation which is also a statutory corporation,
was maintainable. [Paras 11, 12 and 13] [360-E; 360-F;
G 361-8] .. ...
3.The very fact that the Chief Secretary, Zilla Parishad
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
H
MANDAL PANCHAYATH HUNSAGI v. NORTH 355
,,,, EASTERN K.R.T.C.
)-
revisional authority did not arrive at a finding that they A
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 committed a serious B
illegality insofar as it, for all intent and purport; dismissed
the respondent's suit on the question of locus standi.
........ ~ [Paras 12] [360-G, H; 361-A]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2544
of 2009.
c
From the Judgment & Order dated 17.01.2006 of the High
Court of Karnataka at Bangalore in R.S.A. No. 537 of 2001.

Dipak Kumar Jena for the Appellant. D
-~
R.S. Hegde and P.P. Singh for the Respondent.

The Judgment of the Court was delivered by

S.B. SINHA, J. 1. Leave granted. E
-~
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 F
injunction restraining them fro[t 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 G
.I . 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.
H
356 SUPREME COURT REPORTS [2009] 6 S.C.R.

A 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
B ft. space belonging to Mandal 1nchayat in between the
0

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
~- -
c 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 :

D "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 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
E 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
F
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
G
centre of the road, but now the construction undertaken is
48-49' which is not permissible. In sum & substance, it can
.....
be said that 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
H
MANDAL PANCHAYATH HUNSAGI v. NORTH 357
EASTERN K.R.T.C. [S.B. SINHA, J.]
... .. between the compound wall of the bus stand and the main A
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 B
..... issued on had is liable to be answered in affirmative and
it is answered accordingly."
..... -'i 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
c
of 1993. The Appellate Court in its judgment, inter a/ia, took
into consideration the contention raised on 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 D
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 E
.. 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 F
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 G
1 ..I 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
H
358 SUPREME COURT REPORTS [2009] 6 S.C.R.

A 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 the bus-stand, would put to inconvenience
B due to the construction before the v.icket 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 t -
fespondent which by reason of the impugned judgment has
c been allowed by the High Court.

The High Court, inter alia, formulated the following
substantial questions of law for its consideration :

D "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?
E
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
F 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?"
G 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 affected. Noticing that the distance between boundary
wall of the bus stand and the centre of the road is less than 50
H
MANDAL PANCHAYATH HUNSAGI v. NORTH 359
EASTERN K.R.T.C. [S.B. SINHA, J.]

feet and the wicket gate unless opened for facilitating the A
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.
B
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 witt:i the judgment of the First Appellate
Court insofar as it failed to take into consideration C
the fact that the land in suit being admittedly not
belonging to the plaintiff-respondent, it was not
entitledto any relief.

(ii) The validity of the order passed by the Chief o
Secretary of the Zilla Parishad dated 2.9.1992
under Section 274 of the Karnataka Zilla Parishads,
Taluk Panchayat Samithis, Manda! Panchayats and
Nyaya Panchayats Act, 1983 (hereinafter referred
to as 'the 1983 Act') having not been questioned E
by any of the parties, the same was binding on the
plaintiff.

7. Mr. Hegde, learned counsel appearing on behalf of the
respondent, on the other hand, would support the impugned
judgment. F

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 G
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.
H
360 SUPREME COURT REPORTS [2009] 6 S.C.R.

9. It is in that view of the matter, the High Court, in our ...
A --;.
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.
B
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 Manda!
c 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.
D
(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 :
E 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 r-
F
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
G
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
H
MANDAL PANCHAYATH HUNSAGI v. NORTH 361
EASTERN K.R.T.C. [S.B. SINHA, J.]
~ >< opinion, committed a serious illegality insofar as it, for all intent A
and purport, dismissed the respondent's suit on the question
of locus standi.

13. If the provisions of Section 92 of the Code of Civil
Procedure were not attracted; the suit by the Corporation which 8
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. C

K.K.T. Appeal dismissed.