Gajanan v. Deputy Commissioner

B. Manohar, J.:— The petitioner in this writ petition has sought for direction to the respondents to desist from demolishing the compound wall structure and residential house in land bearing sy. no. 19B, plot no. 6B, measuring 4 guntas and 12 annas situated at Kodibag village in Karwar Taluk and also dispossessing the petitioner and his family members.

2. The grievance of the petitioner is that he claims to be the owner of land bearing sy. no. 19B plot no. 6B measuring 4 guntas and 12 annas situated at Kodibag village. He has put up construction of two floored house surrounded by compound wall. However, the respondents forcibly demolished the compound wall. In view of the same he filed a suit in O.S No. 216/2014 seeking for permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the suit schedule properties. Learned Civil Judge at Karwar by order dated 22.11.2014 on I.A No. 1 filed under Order XXXIX Rule 1 and 2 of CPC granted on order of temporary injunction restraining the defendants from interfering with the peaceful possession. Inspite of the same, the respondents in the guise of widening the road, demolished the compound wall. Further, the petitioner also filed Miscellaneous Petition No. 6/2015 invoking the provisions of Order XXXIX Rule 2A r/w Sec. 151 of CPC for disobedience of the injunction order. When the said matter is pending, the respondents once again tried to demolish the compound wall. Hence, he filed the present writ petition seeking direction to the respondents not to demolish the compound wall.

3. Learned Additional Government Advocate appearing for respondent nos. 1 to 3 submits that the petitioner has encroached upon the road portion. The respondents are taking steps only for removal of encroachment. Apart from that, against the order dated 22.11.2014 in O.S No. 216/2014 on I.A No. 1, the City Municipal Council, Karwar, preferred M.A No. 23/2014 which was disposed of on 06.07.2015 modifying the injunction order granted on 22.11.2014 wherein it is directed the respondents to take action strictly in accordance with law. Hence, sought for dismissal of the writ petition.

4. I have carefully considered the arguments addressed by the Advocate for the parties and perused the orders impugned and other relevant records.

5. On an allegation of demolition of the compound wall, the petitioner has already approached the Civil Court in O.S No. 216/2014 and obtained the injunction order, against which, the City Municipal Council, Karwar, preferred M.A No. 23/2014, which was disposed of with the following modification. The operative portion of the order reads as under:

This Misc. Appeal filed by the Defendant-appellants is partly allowed as follows:

The order passed by the Trial court on I.A No. 1 is modified as follows:

The defendants are restrained from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property in any manner till disposal of the suit, otherwise than due process of law.

The order will not come in the way of development of existing road as per the comprehensive development plan.

If any encroachment is found, the defendant shall proceed only in accordance with law.

6. Now the matter is pending before the Civil Court. In view of the pendency of the suit, both parties shall abide by the order passed by the Civil Court. A reading of the order made in M.A No. 23/2014 is very clear that the injunction order will not come in the way of development of existing road as per the comprehensive development plan. Further, it was observed that if encroachment is found, the defendant shall proceed only in accordance with law. In view of the specific direction of the Civil Court, the respondents must act strictly in accordance with law. When the disputed issue is pending before the Civil Court, this Court can not interfere with the same. If there is disobedience of the order, the parties to approach the Civil Court.

7. With the aforesaid observations, the writ petition is disposed of.