N. Govindaraju vs The Secretary Department of Revenue and Others

D.V. Shylendra Kumar, J.—Writ petitions by a person claiming interest in land measuring 2 acres 37 guntas, excluding kharab land, in Sy. No. 3/1 of Kavalbyrasandra village, Kasaba hobli, Bangalore north taluk, which is also subject matter of OS No 1354 of 2002, on the file of city civil court, Bangalore, wherein the petitioner figured as plaintiff and respondents 5 and 6 herein figured as defendants. Petitioner also claims interest in another land to an extent of 2 acres 37 guntas in Sy. No. 1 of the very village and this land was subject matter of OS No. 8653 of 2003 before city civil court, Bangalore, a suit for permanent injunction against respondents 5 and 6 herein. It is the case of the petitioner that both suits have come to be decreed by the civil court as per the judgments and decrees dated 10-3-2010 and 23-3-2010 respectively. However, petitioner claims to be aggrieved by a subsequent notice dated 7-8-2010 [copy at Annexure-E to the writ petition] issued by the third respondent-technical assistant, where under the third respondent had directed fourth respondent-tahsildar to take steps to survey the lands in question and to demarcate the boundaries of the lands, which were subject matter of the suits.

Petitioner has approached this court complaining that respondents 5 and 6 and their officials have now filed RFAs 1247 and 1273 of 2010 challenging the judgments and decrees in OS No. 1354 of 2002 and OS No. 8653 of 2003 respectively and these appeals are as of now pending before this court and even during the pendency of the appeals, if the fourth respondent should go ahead with the survey work, it will be prejudicial to the interest of the petitioner. However, it is submitted at the Bar that there was an interim order granted in these appeals directing the parties to maintain status duo.

Petitioner has questioned the legality of the notice at Annexure-E and the direction issued to fourth respondent and for quashing this notice and has sought for a further writ of mandamus to direct the tahsildar not to take up survey work during the pendency of the two appeals referred to above.

Notice had been issued to the respondents. Respondents 5 and 6 are represented by Sri. Srinivas Murthy, advocate, and the other respondents are represented by Ms. S. Susheela, learned AGA. Detailed statement of objections has also been filed on behalf of the respondents 5 and 6.

It is, however, now pointed out by the learned counsel for respondents 5 and 6 that in the absence of any interim order of stay staying further proceedings pursuant to Annexure-E, survey had already been conducted, boundaries demarcated and in fact the respondents 5 and 6, on noticing that there is encroachment into some part of the land within the boundary of defence department, also issued notice to the encroacher i.e. writ petitioner for taking action under the provisions of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 [for short, the Act] and also submits that petitioner has questioned the legality of this notice by filing another suit in OS No. 5107 of 2011 and even during the pendency of this suit, petitioner has also filed a writ petition questioning the legality of the very notice and this court, noticing the subsequent development, has disposed of the writ petition; that implementation of the show case notice issued under the Act is suspended during the pendency of the suit. It is, therefore, submitted by the learned counsel for respondents 5 and 6 that these writ petitions have virtually become infructuous and nothing further remained to be examined.

Learned AGA also submits to the same effect that survey has already been conducted and boundaries demarcated and this action in fact will be to the benefit of all parties, as they will know what precisely is their respective positions.

Sri. Hanumanthappa B Haravigoudar, learned counsel for petitioner, on the other hand, submits that notice/order at Annexure-E is a preemptive action, even when the appeals are pending before this court; that respondents 5 and 6 have suffered an adverse order before the trial court and therefore should not be permitted to take undue advantage of the status quo order passed in the appeals and at any rate if the Annexure-E is quashed, all further actions will fall to the ground automatically and therefore it should be quashed etc.

Writ petitions have no legal basis, but only on the premise that such action is virtually in the nature of a preemptive action to the cause to be determined by this court in the pending appeals. It is made clear that determination by civil court, whether by trial court or this court exercising appellate jurisdiction, binds the parties and other authorities have to follow such determination by civil courts. In this view of the matter, if some developments have taken place, it is not necessary to interfere at this stage and these writ petitions are disposed of as not surviving for further examination, it is open to the petitioner to urge all grounds as are available in the pending appeals and pending suit also, if so advised. Writ petitions are disposed of accordingly.