Shambulingayya vs The Chief Executive Officer

B.S. Patil, J.—Petitioner has constructed a shopping complex at Munnolli Village in Aland Taluk of Gulbarga District. According to the petitioner, there exists a 12 feet road abutting his shopping complex. Gram Panchayat has constructed a compound wall to the other side of the road. Panchayat issued a tender notification for construction of shopping complex in the area belonging to it

It is the apprehension of the petitioner that the Gram Panchayat is likely to demolish the compound wall with an intention to encroach upon the existing 12 feet road abutting the shopping complex of the petitioner. It is also the apprehension of the petitioner that the Gram Panchayat deliberately intends to open doors and shutters towards the existing shopping complex of the petitioner in order to cause hindrance and nuisance to the business of the petitioner, Hence, alleging that the anticipated action of the Gram Panchayat if permitted would infringe the right of the petitioner, the present writ petition is filed. Petitioner is seeking a writ of mandamus against the respondents to consider the representation submitted by him on 25.11.2013 vide Annexure-F and also to restrain the Panchayat from demolishing the existing compound wall.

Having heard learned Counsel for the petitioner and on perusal of the pleadings and the materials on record, I find that the writ petition is based on apprehensions of the petitioner regarding the anticipated action of the Panchayat to demolish the compound wall so as to encroach the public road measuring 12 feet abutting the shopping complex of the petitioner. If, indeed, there is in existence a public road, the same cannot be utilized either by the petitioner or by the Gram Panchayat. If any illegal encroachment were to be made by the Gram Panchayat, it will be open to the petitioner to challenge the action of the Gram Panchayat in accordance with law, as and when such encroachment takes place. In so far as the alleged infringement of the right of the petitioner is concerned, the examination of the same may arise only if the Panchayat indulges in such encroachment of the road. If the petitioner intends to prevent the injury or infringement of his right because of the anticipated action of the Panchayat in attempting to demolish the compound wall, it will open to the petitioner to approach the Civil Court by following the required procedure.

Writ petition cannot be a remedy for obtaining such a restraint order virtually in the nature of injunction because the matter requires examination of disputed facts with regard to the existence of public road and the attempt, if any, of the Gram Panchayat to encroach such a public road by demolishing the compound wall. Hence, reserving liberty to the petitioner to avail the alternative remedy, this writ petition is dismissed.