- 1 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 26TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ WRIT PETITION NO. 100720 OF 2025 (GM-CPC) BETWEEN: THE PROJECT ENGINEER NIRMITI KENDRA, GADAG, REPRESENTED BY SRI. SHARANAPPA S/O. SHIVAPPA GADDAD, AGE: 32 YEARS, OCC: ENGINEER, R/O. C/O: NIRMITHI KENDRA, GADAG, TQ: DIST: GADAG-582101 PETITIONER (BY SRI. K.L. PATIL AND SRI. ARAVIND D. KULKARNI, ADVOCATES AND: 1. JAGADISHWARAYYA S/O. ADAWAIYA HUBALIMATH, AGE: 74 YEARS, OCC: BUSINESS, R/O. AZAAD ROAD, NEAR JAIN TEMPLE, GADAG-582101. 2. CHANDRASHEKHAR S/O. RUDRAMUNISWAMY BHUSHANURMATH, AGE: 64 YEARS, OCC: BUSINESS, R/O. 7TH CROSS, K.C. RANI ROAD, GADAG-582101. 3. ADAVYYA S/O. PANCHAKSHARAYYA HUBALIMATH, AGE: 39 YEARS, OCC: BUSINESS, R/O. AZAAD ROAD, NEAR JAIN TEMPLE, GADAG-582101. 4. SHIRAJUDDIN Digitally signed by SHWETHA RAGHAVENDRA Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 S/O. ABDUL KAREEMSAB BAVIKATTI, AGE: 60 YEARS, OCC: BUSINESS, R/O. JAVALGALLI, GADAG-582101. 5. MAHAMMED HANEEF S/O. ABDUL KAREEMSAB BAAVIKATTI, AGE: 60 YEARS, OCC: BUSINESS, R/O. JAVALGALLI, GADAG-582101. 6. SUSHEELA W/O. CHANDRAPPA ANAVALA, AGE: 56 YEARS, OCC: TAILOR, R/O. #1574, JAVALGALLI, GADAG -582101. 7. FAREEDA BEGUM @ AMMAJAAN W/O. MEHABOOBSAB HUNAGUND, AGE: 63 YEARS, OCC: BUSINESS, R/O. JAVALGALLI, GADAG-582101. 8. CHANDSAB S/O RAJESAB BODLEKHAN, AGE: 54 YRS, OCC: BUSINESS, R/O. AZAAD ROAD, JAVALGALLI, GADAG-582101. 9. THE DEPUTY COMMISSIONER, GADAG, D.C.OFFICE, HUBLI ROAD, GADAG-582101. 10. THE COMMISSIONER, GADAG BETAGERI, CITY MUNICIPAL COUNCIL, GADAG-582101. 11. THE CHIEF EXECUTIVE OFFICER, KUWS AND DB BOARD, MULGUND ROAD, GADAG-582101. 12. ANWARSAB S/O. RASULSAB DODDAMANI, AGE: 46 YEARS, OCC: BUSINESS, R/O. JAVALGALLI, GADAG-582101. 13. ABDULRASUL S/O. TIPUSAB DODDAMANI, AGE: 84 YEARS, OCC: BUSINESS, R/O. JAVALGALLI, GADAG-582101. - 3 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 14. ABDUL KHADER M BANDAGI, AGE: 45 YEARS, OCC: BUSINESS, R/O. JAVALGALLI, GADAG-582101. 15. WAJEEB C. BODLEKHAN, AGE: 26 YEARS, OCC: BUSINESS, R/O. JAVALGALLI, GADAG-582101. 16. ILIYAAS S BODLEKHAN, AGE: 32 YEARS, OCC: BUSINESS, R/O JAVALGALLI, GADAG-582101. 17. RAJASHEKHAR S/O. CHANDRAPPA ANAVAL, AGE: 45 YEARS, OCC: BUSINESS, R/O. JAVALGALLI, GADAG-582101. 18. MANJUNATHA S/O. NEELAGOUDA PATIL, AGE: 36 YEARS, OCC: BUSINESS, R/O. JAVALGALLI, GADAG-582101. 19. RAHAMAN S/O. ABDUL GAFARSAB BODLEKHAN, AGE: 34 YEARS, OCC: BUSINESS, R/O. JAVALGALLI, GADAG-582101. 20. KRISHNA KUMAR S/O. KRISHNA MADIWALARA, AGE: 30 YRS, OCC: BUSINESS, R/O. JAVALGALLI, GADAG-582101. 21. BALARAM S/O VENKARAMA HAWALE, AGE: 45 YRS, OCC: BUSINESS, R/O. JAVALGALLI, GADAG-582101. 22. SALEEM R. BODLEKHAN, AGE: 38 YRS, OCC: BUSINESS, R/O. JAVALGALLI, GADAG-582101. 23. ASHFAQ S/O. AHEMAD NOORSAB SUNKAD, AGE: 38 YRS, OCC: BUSINESS, R/O. JAVALGALLI, GADAG-582101. - 4 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 24. ANILKUMAR S/O. PUNDALIKAPPA JIKANUR, AGE: 35 YRS, OCC: BUSINESS, R/O. JAVALGALLI, GADAG-582101. 25. MODIN M DANDIN, AGE: 31 YRS, OCC: BUSINESS, R/O. JAVALGALLI, GADAG-582101. 26. NAVEEN S/O NARAYANASA KHATAWATE, AGE: 50 YEARS, OCC: BUSINESS, R/O. JAVALGALLI, GADAG-582101. 27. NEELAVVA BHIMAPPA JALAWAYI, AGE: 64 YEARS, OCC: HOUSEHOLD, R/O. JAVALGALLI, GADAG-582101. 28. MUBEEN ASHFAQ SUNKAD, AGE: 30 YEARS, OCC: BUSINESS, R/O. JAVALGALLI, GADAG-582101. 29. RAJAMA S. BODLEKHAN, AGE: 32 YRS, OCC: BUSINESS, R/O. JAVALGALLI, GADAG-582101. 30. SHIVANAND S/O. CHANDRAPPA ANAVAL, AGE: 36 YEARS, OCC: BUSINESS, R/O JAVALGALLI, GADAG-582101. 31. KHASIMABI A.BODLEKHAN, AGE: 43 YEARS, OCC: BUSINESS, R/O JAVALGALLI, GADAG-582101. 32. RESHMA RAJESAB BODLEKHAN. AGE: 37 YEARS, OCC: BUSINESS, R/O. JAVALGALLI, GADAG-582101. 33. SUMITRA RAJASHEKHAR ANAVAL, AGE: 33 YEARS, OCC: BUSINESS, R/O. JAVALGALLI, GADAG-582101. 34. HASEENABI HUSSAINSAB MIRJI. AGE: 70 YEARS, OCC: BUSINESS, R/O. JAVALGALLI, GADAG-582101. 35. SHAALU ABDULSAB NILAGUND, - 5 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 AGE: 46 YEARS, OCC: BUSINESS, R/O. JAVALGALLI, GADAG-582101. 36. JAIBUNISA AJUBUDDIN KALADAGI, AGE: 61 YEARS, OCC: BUSINESS, R/O. JAVALGALLI, GADAG-582101. 37. BIBIJAAN ABDULRASUL DODDAMANI. AGE: 63 YEARS, OCC: BUSINESS, R/O. JAVALGALLI, GADAG-582101. 38. RAJIYABANU MAHAMMED GOUSE PATHAN, AGE: 30 YEARS, OCC: BUSINESS, R/O. JAVALGALLI, GADAG-582101. 39. SHAMASAD BEGUM DAWALSAB AKKI, AGE: 46 YEARS, OCC: BUSINESS, R/O. JAVALGALLI, GADAG-582101. 40. KHALEEL S/O AKRAM M.R. AGE: 46 YEARS, OCC: BUSINESS, R/O. JAVALGALLI, GADAG-582101. 41. ATAAULLA N. HALAVARTI, AGE: 35 YEARS, OCC: BUSINESS, R/O. JAVALGALLI, GADAG-582101. 42. YAQUB ALI N. KALADAGI, AGE: 46 YEARS, OCC: BUSINESS, R/O. JAVALGALLI, GADAG-582101. 43. JAIMAULLABDAN RAHEMANSAB NAMAJI, AGE: 55 YEARS, OCC: MEMBER, MUNICIPAL COUNCIL, R/O. WARD NO.18, JAVALGALLI, GADAG-582101. 44. RAJESAB S/O. FAKRUSAB KANAVI, AGE: 63 YEARS, OCC: AGRICULTURE, R/O. WARD NO.18, AZAAD ROAD, GADAG-582101. 45. JHANGEER IBRAHIMSAB UMACHAGI, AGE: 57 YEARS, OCC: PRIVATE WORK, R/O. WARD NO.18, JAVALGALLI, GADAG-582101. - 6 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 46. SHIVAPPA S/O BASAPPA SHIRAHITTI, AGE: 59 YEARS, OCC: COOLIE, R/O. WARD NO.18, JAVALGALLI, GADAG-582101. 47. IBRAHIMSAB CHAMANSAB NADAF, AGE: 41 YEARS, OCC: AUTO DRIVER, R/O. WARD NO.18, JAVALGALLI, GADAG-582101. 48. SAVITA MALLESHAPPA KUMBARA, AGE: 31 YEARS, OCC: HOUSEWIFE, R/O. AZAAD ROAD, JAVALGALLI, GADAG-582101. 49. KHAMARSULTANA J NAMAJI, AGE: 45 YEARS, OCC: HOUSEWIFE, R/O. WARD NO.18, JAVALGALLI, GADAG-582101. 50. LALITA MARIYAPPA BHAJANTRI, AGE: 43 YEARS, OCC: HOUSEWIFE, R/O. WARD NO.18, JAVALGALLI, GADAG-582101. 51. JAHIDABEGUM SHIRAJ AHMED SHIRUGUPPI, AGE: 37 YEARS, OCC: HOUSEWIFE, R/O. WARD NO.18, JAVALGALLI, GADAG-582101. 52. DYAMAVVA MALLAPPA HADIMANI, AGE: 35 YEARS, OCC: HOUSEWIFE, R/O. WARD NO.18, JAVALGALLI, GADAG-582101. 53. SHAKEELA W/O. SALEEMSAB BETAGERI, AGE: 38 YEARS, OCC: HOUSEWIFE, R/O. WARD NO.18, JAVALGALLI, GADAG-582101. 54. YALLAVVA YAMANAPPA TAMMARAMATTI, AGE: 52 YEARS, OCC: HOUSEWIFE, R/O. WARD NO.18, JAVALGALLI, GADAG-582101. 55. HASEENA BEGUM - 7 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 W/O. ABDUL NABISAB KANAKANNAVARA, AGE: 50 YEARS, OCC: HOUSEWIFE, R/O. WARD NO.18, JAVALGALLI, GADAG-582101. 56. SABIYA BEGUM SIRAJ AHMAD PEERZADE, AGE: 26 YEARS, OCC: HOUSEWIFE, R/O. WARD NO.17, JAVALGALLI, GADAG-582101. 57. BIBIJAAN MAHAMMED RAFIQ ANNIGERI, AGE: 30 YEARS, OCC: HOUSEWIFE, R/O. WARD NO.18, JAVALGALLI, GADAG-582101. 58. RESHMA KHASIMSAB KAGGAL, AGE: 37 YEARS, OCC: HOUSEWIFE, R/O. JAVALGALLI, GADAG-582101. 59. RAJBI BUSANSAB HEBSUR, AGE: 60 YEARS, OCC: HOUSEWIFE, R/O. WARD NO.18, JAVALGALLI, GADAG-582101. 60. LAKSHMI SHANKAR UMACHAGI, AGE: 47 YEARS, OCC: HOUSEWIFE, R/O. JAVALGALLI, GADAG-582101. 61. RAJABI MOULASAB NADAF, AGE: 57 YEARS, OCC; HOUSEWIFE, R/O. JAVALGALLI, GADAG-582101. 62. FATIMA BADESAB NAREGAL, AGE: 55 YEARS, OCC: HOUSEWIFE, R/O. JAVALGALLI, GADAG-582101. 63. BHIMAPPA HULGAPPA BHAJANTRI, AGE: 60 YEARS, OCC: AGRICULTURE, R/O. WARD NO.17, JAVALGALLI, GADAG-582101. 64. JAINABI SHABBIRAHAMED SAYYED, AGE: 30 YEARS, OCC: HOUSEWIFE, R/O. WARD NO.18, JAVALGALLI, GADAG-582101. 65. RAJIYA BEGUM ALLABAKSHI BETAGERI, AGE: 60 YEARS, OCC: HOUSEWIFE, R/O. JAVALGALLI, GADAG-582101. - 8 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 66. SANIYA INAYATH LAKKUNDI, AGE: 29 YEARS, OCC: HOUSEWIFE, R/O. JAVALGALLI, GADAG-582101. 67. RIHANA DAWALSAB ANNIGERI, AGE: 33 YEARS, OCC: HOUSEWIFE, R/O. JAVALGALLI, GADAG-582101. 68. SADRUNNISA MOULASAB NARAGUND, AGE: 45 YEARS, OCC: HOUSEWIFE, R/O. WARD NO.18, JAVALGALLI, GADAG-582101. 69. RAJABI BABUSAB ANNIGERI, AGE: 62 YEARS, OCC: HOUSEWIFE, R/O. JAVALGALLI, GADAG-582101. 70. SALMA IMAMHUSSAIN MANIYAR, AGE: 20 YEARS, OCC: HOUSEWIFE, R/O. JAVALGALLI, GADAG-582101. 71. ISRATHABANU MALLIKSAB BAGALKOTI, AGE: 45 YEARS, OCC: HOUSEWIFE, R/O. JAVALGALLI, GADAG-582101. 72. PARIJAAN RAFIQ KURTAKOTI, AGE: 39 YEARS, OCC: HOUSEWIFE, R/O. JAVALGALLI, GADAG-582101. 73. FATHIMA CHANDSAB BAGODI, AGE: 65 YEARS, OCC: HOUSEWIFE, R/O. JAVALGALLI, GADAG-582101. 74. MAHAJAANSBI MOULASAB SANGAM, AGE: 50 YEARS, OCC: HOUSEWIFE, R/O. WARD NO.18, JAVALGALLI, GADAG-582101. …RESPONDENT/S (BY SRI. S.M. CHANDRASHEKHAR, SENIOR COUNSEL FOR SRI. M.M. PATIL, ADVOCATE FOR C/R1 TO R8 AND R12 TO R42; SRI. HARSH DESAI, ADVOCATE FOR R10; SRI. DAYANAND M. BANDI, ADVOCATE FOR R11; SRI. GANGADHAR J.M., AAG FOR SRI. V.S. KALASURMATH, AGA FOR R9; R43 TO R74 ARE DEFERRED V/O DATED 11.02.2025) - 9 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT OF CERTIORARI TO SET ASIDE THE ORDER DATED. 03/12/2024 PASSED BY THE PRL.SENIOR CIVIL JUDGE AND CJM, GADAG IN M.A. NO. 11/2023 PRODUCED AS ANNEXURE-G WHEREBY THE ORDER DATED. 21/04/2023 PASSED ON I.A. NO.5/2023 IN O.S.NO.93/2023 BY THE PRINCIPLE CIVIL JUDGE AND JMFC, GADAG IS CONFIRMED, CONSEQUENTLY ALLOW THE MA NO. 11/2023 AND DISMISS THE I.A. NO. 5/2023. THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 19.02.2025., COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT MADE THE FOLLOWING: CORAM: THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ CAV ORDER (PER: THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ) 1. The Petitioner, who is Defendant No.4 in O.S.No.93/2023, is before this Court seeking for the following reliefs: I) Issue writ of certiorari to set aside the order dated 03/12/2024 passed by the Prl. Senior Civil Judge and CJM, Gadag in M.A. No.11/2023 produced as Annexure-G whereby the order dated 21/04/2023 passed on I.A.No.5/2023 in O.S.No.93/2023 by the Principle Civil Judge and JMFC, Gadag is confirmed, consequently allow the MA No.11/2023 and dismiss the I.A.No.5/2023. 2. 39 persons had filed a suit in O.S.No.93/2023 seeking for the following reliefs: - 10 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 1. It may be declared that the Plaintiffs and have right to approach their respective business premises consisted in suit properties Sl.No.1-10 by 'RIGHT TO WAY' as easement of necessity to by passing along the Azad Road over the Raja Kaluve; and 2. The construction carried out or proposed to be carried out by the Defendant no.4 over the Raja Kaluve as shown in the BCDEFGHLKJI region of hand sketch map may be declared as illegal & violative of easementary rights of Plaintiffs and others; and 3. As a consequence, the Defendants be restrained by an order of Permanent Injunction from employing/making any construction perpetually over the said BCDEFGHLKJI region of the hand sketch map affecting the easementary rights of Plaintiffs; and 4. The costs of the suit may kindly be awarded to the Plaintiffs; 5. Any other legal or equitable reliefs which this Hon'ble Court deems fit may kindly be awarded. Accordingly the suit of the Plaintiff be Decreed in the interest of Justice, Equity and Good Conscience. 3. In the said suit, the plaintiffs had filed an application in IA No.5 under Order 39 Rule 1 and 2 read with Section 151 of the Code of Civil Procedure (for short ‘CPC’), seeking for the following reliefs: Herein, the advocate for the Plaintiffs/Applicants, implore to apply as under: That for the reasons sworn in the accompanying affidavit, it is most humbly prayed that, this Hon'ble Court be pleased to an order ad-interim-exparte- injunction against this Defendant no.1-4/Opponent, restraining the Defendant no.1-4/Opponents, from - 11 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 making any further construction work by themselves and by their men/ contractors and also servants employed specifically for the construction in or over the suit RajaKaluve catchment area affecting the valuable easementary rights of the Plaintiffs to us use, approach and enjoy the suit schedule I Sl.No.1- 11 properties situated at Gadag, till the disposal of the top-noted suit in the interest of Justice, Equity and Good Conscience. 4. A memo had been filed on 23.02.2023 by the plaintiffs that the interlocutory prayer insofar as defendant No.1 being the Deputy Commissioner of Gadag in IA No.5 would not be pressed. 5. Written statement and objections have been filed before the Trial Court (Principal Civil Judge and JMFC Gadag). The Trial Court vide its order dated 21.04.2023 in O.S.No.93/2023, allowed the said interlocutory application restraining the defendants by way of a temporary injunction from making further construction by themselves or by their servants, agents or anybody on their behalf over the said Raja Kaluve till the disposal of the suit. - 12 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 6. An appeal having been filed by defendant No.4 therein, namely the petitioners herein, the Principal Senior Civil Judge and CJM at Gadag, vide its order dated 03.12.2024 in MA No.11/2023, dismissed the Miscellaneous Appeal and confirmed the order passed by the Trial Court. It is challenging the same, the petitioners are before this Court seeking for the aforesaid reliefs. 7. THE FACTS LEADING UP TO THE ABOVE MATTER ARE: 7.1. The plaintiffs claim to be absolute owners and in peaceful possession and enjoyment of the suit schedule 1 to 10 properties, which were commercial shops and open space premises situated in the local limits of Gadag-Betageri City Municipal Council. 7.2. It is contended that the said suit properties were situated on the western side of the main - 13 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 road of Gadag City, along the ‘Azaad Road, connecting to ‘Station Road’ on the southern side to the ‘DC Mill Road’ on the northern side, the main drain was referred to as the Raja Kaluve from a long period of time. 7.3. The plaintiffs claiming to be occupants of their respective properties are engaged in business activities ranging from electrical, electronics, apparel, stationery, wholesale business, steel furniture, wardrobe making, metal scrap collection as also godowns. They were carrying out the said business without any obstruction and hindrance for a long period of time. They also claim that they were using the Azad Road abutting the Raja Kaluve on the eastern side as an approach road to their properties, the plaintiffs having a point of entry from Station Road to Azad Road, then passing over the Raja Kaluve to access their respective properties. - 14 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 7.4. They claimed that the Municipal Corporation had built a RCC slab over the Raja Kaluve in the year 2021 and thereafter, they have been using the said slab put up on the Raja Kaluve for parking and as an approach to the shops and enterprises. 7.5. Earlier to 2021, the Raja Kaluve was an open drain and at various spots in front of the suit properties, there were entry points that were existing in the form of temporary bridges built over the said Raja Kaluve, which provided access to the businesses of the plaintiffs. 7.6. With the increase in traffic and certain changes made by the police in terms of the parking of vehicles, there was inconvenience which had been caused to the plaintiffs. They claimed that in order to solve the parking problem, the local authorities had agreed to lay a concrete bed over the Raja Kaluve and the Azad Road to - 15 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 enable parking of vehicles and it is in that background that a concrete bed was laid during the Covid-19 period with a slab on top to be used for the purpose of parking. 7.7. In the year 2022, defendant No.4 i.e., the petitioner herein conducted a spot inspection of the Raja Kaluve area. Thereafter, it is claimed that without any permission from the Commissioner Gadag-Betageri City Municipal Council, defendant No.4 proceeded with making an illegal construction on the Raja Kaluve and it is only in the month of August-2022, it came to the knowledge of the plaintiffs that the space over the Raja Kaluve will be turned into a park and children's play utility area. 7.8. Thereafter, it is claimed that the plaintiffs had several meetings to decide about the course of action. They made representations to the Commissioner and President of Gadag-Betageri - 16 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 City Municipal Council, the Director Town Planning, Planning Director of the Karnataka Irrigation Department, as also to defendant No.4 requesting them to not put up the park and children's play area, contending that there are no permissions which have been obtained from the Gadag-Betageri City Municipal Council. Thereafter, the work came to a standstill. However, again in January 2023, defendant No.4 commenced the construction, installed metallic grills and created a children's play area over the Raja Kaluve. 7.9. The plaintiffs and certain others had also approached the officers of defendant No.1 and 2 giving representations, despite which the work carried on. The plaintiffs claimed that the plaintiffs represent several other persons, who are affected by these illegal activities and it is in that background that a suit was filed under - 17 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 Section 91 read with Order 1 Rule 8 of the CPC for the aforesaid relief as a representative suit. 7.10. Defendant No. 1 and 2 though appeared, did not file their objections to the application. Defendant No.3- Executive Engineer filed a written statement contending that defendant No.3 is not concerned with the subject matter of the suit. Defendant No.4 filed objections to the application contending that there is suppression of material facts. The park and play area is being created on the slab built over the Raja Kaluve, the earlier road which was in existence continues to be in existence. The road portion has not been used by defendant No.4 for any particular purpose. The project has been approved by the Municipal Council and funds have been released by the Karnataka Niravari Nigam Ltd., as per the direction of the Irrigation Department. The slab over the Raja - 18 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 Kaluve is being used, the plaintiffs cannot have any objection. 7.11. Insofar as the entries and exit and access to the properties of the plaintiffs is concerned, it had been stated that there are several locations where points for entry and exit, which would allow vehicles to ply have been identified and those entry and exits are always available for the plaintiffs to make use of. The slab built over the Raja Kaluve could not be used for the purpose of parking. There is no vested right of the plaintiffs to seek for such a relief. 7.12. The Raja Kaluve was an open drain until the year Covid-19 hit the Country. The open drain being a health hazard, in order to protect the interest of the citizens, the Raja Kaluve was closed with a concrete bedding and a slab so as to enable easy and covered flow of sewage. - 19 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 7.13. The Raja Kaluve is a drain carrying the sewage of Gadag-Betageri town and not just water or storm waterr. The construction of the slab having been done in the year 2021 and there being locations identified for ingress and egress, the relief as sought for by the plaintiffs in the suit are not maintainable. Consequently, the interlocutory relief is also not maintainable. Hence, the suit and the application are liable to be dismissed. 7.14. The Trial Court was of the opinion that easementary rights being claimed over the Raja Kaluve, there being no dispute as regards the plaintiffs being the owners of shops situated on the western side of the Raja Kaluve and carrying on their business, the said Raja Kaluve coming within the City Municipal Council's jurisdiction, taking into account a communication dated 19.09.2022 issued by the - 20 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 Gadag-Betageri City Municipal Council to defendant No. 4 to stop the construction of the Raja Kaluve and defendant No. 4 not having stopped the construction. It was held that the right of the plaintiffs to access their properties was disturbed and interfered with. The City Municipal Council not having approved the project, hardship would be caused to the plaintiffs and their livelihood. 7.15. It is in that background the Trial Court has negatived the contention of respondent No.4 that material has already been collected for carrying out the construction, the construction works already having commenced, the works could not be interfered with, allowed the application in IA No.5 under Order 39 Rule 1 and 2 of the CPC and granted an order of temporary injunction restraining the defendants from making any further construction by - 21 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 themselves or by their servants, agents or anybody on their behalf over the suit Raja Kaluve till such disposal of the suit. 7.16. 7.16. An appeal having been filed by respondent No.4, the Miscellaneous Appeal Court i.e., the Principal Senior Civil Judge and CJM at Gadag, by its order dated 03.12.2024 in MA No.11 of 2023, dismissed the said appeal. The Miscellaneous Appeal Court took into consideration the averment of the plaintiffs that they were using the open drain as an approach road, and after putting up the concrete bed over the Raja Kaluve by the Municipal authorities, plaintiffs have been using the same for parking. If the construction were permitted to be continued by defendant No. 4, visibility of the shops belonging to the plaintiffs could be lost. - 22 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 7.17. The access to the properties would be curtailed and taking into consideration the letter dated 19.09.2020 issued to defendant No. 4 to stop construction, came to a conclusion that even prior to the laying of the said bed over the Raja Kaluve, it was being used by the plaintiffs and other public at large as an access way and as a parking area. 7.18. Defendant No.4, without authority, has taken up the project work to make construction over the set way and concrete bed despite opposition by the general public. Taking into consideration that the Municipal Council President had directed to stop the project work, defendant No.4 could not go on with the said work. The Appellate Court rejected the contention that the project was for the benefit of persons belonging to the SC and ST category. The plaintiffs having used the same - 23 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 as a road, plaintiffs have a right of easement. There will be no other access to the property except over the slab. All these aspects being disputed questions of fact, would require trial. 7.19. The First Appellate Court held that the Trial Court has not given a finding in respect of the plaintiffs or the defendant, but has only protected the rights of the plaintiffs to access their property. If the construction were to be proceeded with, it would become irreversible and as such, confirmed the order passed by the Trial Court. It is challenging both these orders, the petitioner-defendant No.4 is before this Court. 8. Sri. K.L. Patil., learned counsel appearing for the petitioner, would submit that; 8.1. There is no easementary right, which the plaintiffs can claim over the Raja Kaluve. Even - 24 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 as per the admission of the plaintiffs, it was an open sewage drain called as Raja Kaluve and the construction of the concrete bed and the slab was completed only in the year 2021. Thus, prior to the year 2021, there was neither a concrete bed nor a slab, which could be used either for parking or for use as a right of way. Thus, the question of an easement being claimed on account of the alleged use of the slab from 2021 to 2023 when the suit was filed, would not arise. No such right has been created in favour of the plaintiff or acquired by the plaintiffs by way of prescription and as such, the very relief which had been sought for not being maintainable, the Trial Court and the First Appellate Court ought not to have granted an order of injunction. The project has been indeed approved by the Municipal Council. - 25 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 8.2. The President on the basis of a representation submitted by the plaintiffs, had issued oral instructions to the Commissioner and it is in furtherance of the said oral instruction that the Commissioner had directed defendant No.4 to stop the construction. Subsequent thereto, the Commissioner has recalled the said order and permitted the petitioner to put up construction. The suit is not in the public interest or in a representative capacity but is filed only to further the personal interest of the plaintiffs. The plaintiffs, by way of the suit, want to usurp the public property inasmuch as the drain has been covered by using Municipal funds, and the same cannot be claimed to be a parking area by the plaintiffs. 8.3. The admitted fact being that the slab was constructed in the year 2021, prior to the same, it could not be used for parking since it - 26 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 was an open drain. The Trial Court has erred in believing the submission of the plaintiffs. If such submission is taken on face value, then the parking would have to be done in the drain since there was no slab put up thereon. His submission is that the project has been taken up for the beautification of the city of Gadag- Betageri. 8.4. This is in the interest of the common citizen, who can now make use of the said area for purposes of walking, exercising, recreation and the like, which would better the quality of life of the persons in the surroundings. The plaintiffs with selfish interests are coming in the way of the development of this area. This fact has not been taken into account by the Trial Court or the First Appellate Court and solely on the basis of a letter issued by the Commissioner on 19.09.2023 and on the basis of the oral - 27 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 instructions of the then President, the work was directed to be stopped. Subsequently, the work has been permitted to be continued. Thus, the plaintiffs cannot have any grievance in relation thereto. 8.5. His submission is that the work, which is being carried out, is not any private work, but is a public work with due sanction in terms of the works to be carried out as also the financial requirement thereof. The entire procedure has been followed, and the project is in the interest of the general public. The plaintiffs are coming in the way of the development of the property, which the Trial Court and the First Appellate Court has not looked into. If they had considered these aspects more particularly by taking into account that the slab was put up only in the year 2021, the Trial Court and the First Appellate Court would have to come to a - 28 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 conclusion that the imaginary easementary rights claimed by the plaintiffs could not be so agitated in a period of two years and therefore, ought to have rejected the interlocutory application. 9. Shri Harsh Desai., learned counsel, who appears for respondent No.10-the Commissioner, Gadag- Betageri submits that; 9.1. An administrator has been appointed to the said Council insofar as the contention regarding the letter dated 19.9.2022 is concerned. He submits that the Commissioner had issued the said letter on the oral instructions of the then President. The Council has passed no resolution to stop the work. The Commissioner had issued the letter as aforesaid only on the basis of the oral instructions of the President of the Municipal Council, which is reflected in the said letter itself. - 29 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 9.2. His further submission is that subsequent thereto another letter dated 7.10.2022 has been issued, in which the Commissioner has directed the Town Planning Authority to ensure that all cooperation is extended for the purposes of carrying out the work by defendant No.4 in an expeditious manner. 9.3. His submission is that there is no objection on the part of the Council through the Administrator as also through the Commissioner for the works to be carried out and that these works are in the interest of the city. The works which have been envisaged is for the benefit of all the residents of the area. The residents of the area would require necessary facilities like a garden, gym, children's play area, utility and toilets, pergolas under which people can set up a small event area, which has been created for the purposes - 30 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 of holding public events, a water fountain to beautify the area as also a public swimming pool. All of which would be for the benefit of the citizens of Gadag-Betageri. 9.4. His submission is that the area being developed will not only beautify the city but also provide the much needed recreation facilities for the citizens of Gadag-Betageri. There will be a seating area for people to sit, the equipment which have to be installed for the gym would provide free facility for the citizens to make use of so as to enable them to get their physical fitness necessities. 9.5. Insofar as the aspect of easement is concerned, he reiterates that until the year 2021, there was an open drain, which was a health hazard for all the citizens. In view of Covid-19, taking into account that this drain could cause more harm and injury to the citizens, the drain was - 31 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 closed on a war footing by putting up a concrete bed and slab. Prior to that, there were one or two bridges which had been built for access from one side to the other. 9.6. The constructions of the said bridges were also made with the permission of the Council and they were to be handed back to the council. Now that the council has made arrangements for construction of a concrete bed and putting up of a slab, there have been certain areas, which have been designated for providing access from one side to the other. In all, ten (10) such locations have been provided. The same is much more than the two (2) bridges which were in existence earlier. The public area which is now being developed from Station Road to DC Mill road is in a proper planned manner, which would thus be beneficial for all concerned parties. - 32 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 9.7. It was further noticed that on the construction of the slab over the drain being complete, certain persons were making use of the drain- slab for parking of trucks, vehicles, etc., the slab which has been constructed cannot withstand that kind of a load and there was also a danger of the slab collapsing because of the load. 9.8. The slab has not been constructed with the purpose of providing a parking area but, was only constructed during the Covid-19 period for health and safety concerns of the citizens. Apart from beautifying the area, the construction of gym, park area, etc., ensure that the said slab area is not used for parking, thereby safeguarding the slab. In the event of the slab being used for parking as claimed by the plaintiffs, there is a danger of the slab collapsing. Thus, putting at risk the lives of the - 33 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 citizens in the event of anybody being in the cart, truck, minivan or any other vehicle at the time when the slab collapses. Apart from injury to those persons, there could also be death, which could be caused. 9.9. He submits that there is a further danger if the slab collapses, the entire drain would be blocked, putting to a standstill the flow of sewage in the entire area, which could also result in overflow of sewage, which in turn would further result in more hazardous health damages to all the persons in the area. 9.10. The submission therefore is that the project as conceived and as being implemented by the petitioner is for the benefit of the citizens of the Gadag-Betageri twin cities and in view of the injunction, which has been granted, there is a danger of the slab being used for parking, - 34 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 which would create all the hazards as indicated above. 9.11. Lastly, he submits that the very suit being one for claim of easement, no easement could have been claimed by the plaintiffs in as much as the concrete bed and slab having been constructed in the year 2021. Prior to that, there was an open drain with two bridges at two different places. At the most, the easement could have been claimed only in respect of those two bridges and or those two areas. There could not have been any claim made by the plaintiffs as regards easement on the entire slab construction. Even if the contention were to be accepted at face value, his submission is that the construction of the slab having been done in the year 2021, the question of any easement being acquired in the short period of three years, would not arise. - 35 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 9.12. As regards the parking area, it is for the council to determine the locations where parking could be made. A citizen cannot take the law into his own hands and on the basis of convenience claim that a particular location is convenient to a particular citizen or set of citizens and seek for an injunction against the council from carrying out much needed development activities. 9.13. This, he submits had been brought to the notice of the Trial Court and the First Appellate Court, a memo with all the documents having been filed, the Trial Court as also the First Appellate Court by taking into account the letter dated 19.09.2022 has rejected the contentions of the petitioner, the State and the Council, which is not in accordance with law. The Council and the State having brought to the notice that the letter dated 19.09.2022 is subsequently - 36 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 superseded or overridden by the letter dated 07.10.2022. The Trial Court and the First Appellate Court ought to have considered these aspects. Thus, he submits that the order of injunction passed by the Trial Court and the First Appellate Court is required to be vacated. 10. Sri Gangadhar G.M., learned Additional Advocate General appearing for Respondent No.9-the Deputy Commissioner, who was Defendant No. 1 before the Trial Court would submit that; 10.1. There has been proper planning, which has been made by the authorities concerned. A memo dated 18.02.2025 has been filed by him enclosing the documents pertaining to the matter, which had also been produced before the Trial Court and the First Appellate Court. His submission is that a detailed project plan has been prepared, the authorities concerned have applied their mind as regards the need for - 37 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 the project, the benefit from the project and the manner of implementation of the project. A sum of Rs.1 Crore is being spent on the present project. The funds being sourced from the Karnataka Neeravari Nigam Limited from their CSR funds, there being a large population of persons belonging to scheduled caste and scheduled tribe category residing in and around the project area, this would further better their quality of life and the said CSR funds are being used for their benefit. 10.2. On inquiry as to how the Karnataka Neeravari Nigam Limited would be expending monies for such a project on the basis of CSR funds, the learned Additional Advocate General upon instructions submits that though the utilization of funds is proper and adequate. If necessary, the funds would be sourced from other sources like the Government sources and the funds - 38 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 expended by Karnataka Neeravari Nigam Limited, will be returned to the said Karnataka Neeravari Nigam Limited in the event of excess amounts remaining, so that this aspect would also not come in the way of the implementation of the project. 10.3. He submits that the council, the Deputy Commissioner and the Government have applied their mind and are of the categorical opinion that there is an immediate requirement for the said action to be taken, so as to avoid any future damage, incident and or accident. If on the basis of the injunction being passed, the plaintiffs were to use the slab for parking of the vehicles, then as submitted by Sri. Harsh Desai, all those issues could arise. 10.4. He further reiterates that there are eight (8) locations on the slab where access has been provided, two of them being a proper roads, the - 39 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 other locations enabling access by walk. Thus being provided to enable the access from one end to the other, will facilitate the plaintiffs in as much as there is a need for organised development of the area catering to all issues, that could arise therefrom this being apart from the roads perpendicular to the project, thus providing 10 access points. 10.5. An enquiry as to whether all these were brought to the notice of the Trial Court and the First Appellate Court, he submits that they indeed were placed and refers to paragraph 17 of the order of the First Appellate Court, where the arguments of the DGP have been indicated. 10.6. Insofar as the judgment of the Trial Court, he submits that the Trial Court has also taken note of these contentions, but has negatived the same on the only basis of the communication dated 19.09.2022. He reiterates that there is - 40 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 no resolution passed by the council to stop the work. The said instruction was given on the basis of the oral directions of the President of the Municipal Council, the Municipal Council has now been superseded, and an administrator is appointed for the same in furtherance of Section 315 of the Act. 11. Sri S.M. Chandrasekhar., learned Senior Counsel, who appears for the plaintiffs would submit that; 11.1. The plaintiffs have been residents of the said area and have established their shops on the western side of the said drain. They have been conducting their businesses for decades and access for the same has been created over the drain. 11.2. On enquiry as to whether the access was through the drain or if there were any points, which had been fixed for the same, he - 41 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 submitted that the plaintiffs had at their own cost put up two bridges and it is those bridges, which were being used by the plaintiffs to access their shops. Apart from the plaintiffs, the said bridges were being used by their customers and the general population of the area. 11.3. He submits that when there were such bridges which had been built, now by way of the proposed development, the entire area will be closed thereby depriving the plaintiffs of their access to their shops so also that of the customers and it is on that basis that easementary rights have been claimed. 11.4. He again reiterates that there is no parking facility available on Azad Road. Therefore, the plaintiffs were using the concrete slab for the purpose of parking of the goods vehicle to load and unload material. If the plaintiffs were - 42 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 stopped from using the same, grave loss, harm and injury would be caused to them, which fact has been taken into consideration by the Trial Court and the First Appellate Court. As such, this Court ought not to intercede in this matter. 11.5. He relies upon the Karnataka Parks, Playgrounds and Open Spaces Preservation and Regulation Act 1985 (hereinafter referred to as ‘Act of 1985’ for brevity) and submits that without a park being designated and or notified under the said Act, no park could be set up. 11.6. In the present case, there being no notification, the authorities are riding roughshod over the interests of the plaintiffs by creating a park on the concrete slab, which would cause harm and injury to the plaintiffs apart from being in violation of the Act of 1985. - 43 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 11.7. He questions as to how a park could be built on a concrete slab and a swimming pool be established on a concrete slab and as such, he submits that the project is completely ill- planned and has been initiated at the behest of certain vested interests, the same is not for the benefit of the populace of Gadag-Betageri. 11.8. The President of the Municipal Council taking note of these facts had issued instructions to the Commissioner and the Commissioner had acted on the said instructions directing the petitioner/defendant No.4 to stop the construction. This fact has also been taken into account by the Trial Court and the First Appellate Court. Therefore, this Court would not be required to intercede in the matter. There being a concurrent finding of both the Trial Court and the First Appellate Court while granting an order of injunction. - 44 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 11.9. He submits that on the western side of the Raja Kaluve, there exists both commercial and residential properties which would have to have access through this slab. The plaintiffs have been making payment of taxes in respect thereto and as such they cannot be deprived of access. 11.10. Plaintiff No.1 had obtained permission to construct an additional bridge to approach the property, which was so permitted and the bridge was constructed at the cost of the residents and was 10 to 15 feet wide. The construction having been put up long ago, the plaintiffs have acquired easementary rights over the same. In that background, he submits that the Trial Court has considered these aspects in a proper manner and held that there is an easementary right, which is required to be considered. - 45 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 11.11. In view of the construction of the concrete bed and the concrete slab, the space between the properties and the slab has been reduced and as such, the plaintiffs have been using the slab for purposes of travel and parking. Now that defendant No.4 is putting up construction. The interest of the plaintiffs has been adversely affected. 11.12. The works which have been so carried out in an unscientific manner blocking the right of way of the plaintiffs and impinging on their livelihood in terms of Article 21 and 19 (1) (g) of the Constitution of India. The Commissioner of the Municipal Council could not have acted contrary to the Act of 1985. Relevant provisions under the 1985 Act, which are required to be followed, the same not having been followed, the claim of defendant No.4 to put a park on the concrete slab is not sustainable. - 46 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 11.13. He then relies upon Section 81 of the Karnataka Municipalities Act 1964, which is reproduced hereunder for easy reference. 81. Relevant provisions under the 1985 Act, which are required to be followed, the same not having been followed, the claim of defendant No.4 to put a park on the concrete slab is not sustainable. - 46 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 11.13. He then relies upon Section 81 of the Karnataka Municipalities Act 1964, which is reproduced hereunder for easy reference. 81. Municipal property.—(1) Every municipal council may for the purpose of this Act, acquire and hold property both movable and immovable, whether within or without the limits of the 1 [municipal area] (2) All property of the nature herein specified, and not being specially reserved by the Government, shall be vested in and belong to the municipal council and shall, together with all other property of whatsoever nature or kind not being specially reserved by the Government, which may become vested in the municipal council, be under its direction, management and control and shall be held and applied by it as trustee, subject to the provisions and for the purposes of this Act, that is to say,— (a) all public town-walls, gates, markets, slaughter houses, manure and night-soil depots, and public buildings of every description; (b) all public streams, tanks, reservoirs, cisterns, wells, springs, aqueducts, conduits, tunnels, pipes, pumps and other water works and all bridges, buildings, engines, works, materials and things connected herewith, or appertaining thereto, and also any adjacent land not being private property appertaining to any public tank or well; (c) all public sewers and drains, and all sewers, drains, tunnels, culverts, gutters and water courses, in, alongside or under any street, and all works, materials and things appertaining thereto, as also all dust, dirt, dung, ashes, refuse, animal matter or filth or rubbish of any kind collected by the municipal - 47 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 council from the streets, houses, privies, sewers, cess-pools or elsewhere; (d) all public lamps, lamp-posts and apparatus connected therewith, or appertaining thereto; (e) all lands and buildings transferred to it by the Government, by gift or otherwise, for local public purposes; (f) all public streets and the pavement, stones and other materials thereof and also all trees, erections, materials, implements and things provided for such streets: Provided that lands transferred to the municipal council by the Government under clause (e) shall not, unless otherwise expressly provided in the instrument of transfer, belong by right of ownership to the municipal council but shall vest in it subject to the terms and conditions of the transfer, and on the contravention of any of the said terms or conditions, the lands with all things attached thereto, including all fixures and structures thereon, shall vest in the Government and it shall be lawful for the Government to resume possession thereof. (3) It shall be competent to the Government from time to time, by notification, to take over any property vested or vesting in the municipal council under this section on such terms as the Government may determine. 11.14. By relying on Clause-(c) Subsection (2) of Section 81 of the Karnataka Municipalities Act 1964, he submits that all the drains etc. belong to the Municipal Council and it is only the - 48 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 Municipal Council who can maintain and control the said property. 11.15. In terms of Section 84 of the Karnataka Municipalities Act, he submits that defendant No.4 has not obtained any permission from the Municipal Council. The President, acting under Section 43(2) and (3) of the Municipalities Act, had directed the Commissioner to stop, prevent defendant No.4 from putting up any garden, kids' play area, etc. That order has been passed by the competent authority and it is for the Commissioner to implement the same. Section 43 of the Karnataka Municipalities Act is reproduced and ended for easy reference. 43. Functions of president.—(1) Subject to the provisions of Chapter XIV, it shall be the duty of the president of a municipal council to,— (a) preside, unless prevented by reasonable cause, at all meetings of the municipal council and subject to the provisions of the rules for the time being in force under clause (a) of sub- section (2) of section 323, to regulate the conduct of business at such meetings; - 49 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 (b) watch over the financial and executive administration of the municipal council; (c) perform all the duties and exercise all the powers specifically imposed or conferred upon him by, or delegated to him under and in accordance with this Act; (d) furnish within a period of a fortnight to the Commissioner or to such other officer as the 1 [Director of Municipal Administration]1 shall from time to time nominate in this behalf, a copy of every resolution passed at any meeting of the municipal council; and (e) furnish any extract from the minutes of the proceedings of the municipal council or of any committee or other document or thing which the 1 [Director of Municipal Administration]1 or other officer calls for under section 304. [(2) The President of a municipal council may, in cases of emergency direct the execution or stoppage of any work or the doing of any act which requires the sanction of the municipal council, and the immediate execution or doing of which is, in his opinion, necessary for the service or safety of the public, and may direct that the expenses of executing such work or doing such act shall be paid from the municipal fund: Provided that,— (a) he shall not act under this section in contravention of any order of the municipal council prohibiting the execution of any particular work or the doing of any particular act, and (b) he shall report forthwith the action taken under this section and the reason therefor to the standing committee at its next meeting.] [(3) The President shall have the following additional powers, namely:— - 50 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 (a) to issue directions to the 2 [Municipal Commissioner] or the Chief Officer to implement the resolutions of the Council or the Standing Committees; (b) to require the Administration Report and the Annual Report of the Council prepared and placed before the end of the year; (c) to issue directions to the concerned officers to comply with the points made out in the audit report; (d) to undertake inspection and supervision of the works taken up by the Council; and (e) to call for any record but the same to be returned within one month. (4) The President shall ex-officio be a member of all the standing committees but without the power of vote on any question. (5) The [Municipal Commissioner] or the Chief Officer shall, whenever they address communications to Government, simultaneously forward copies thereof to the President. 11.16. In the background of the above submissions, Sri S.M. Chandrashekhar, learned Senior Counsel submits that the actions on part of the answering respondents/official respondents is contrary to law, is violative of the rights of the plaintiffs and taking all these aspects into consideration, the Trial Court had injuncted the official defendants, which injunction order on - 51 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 appeal by defendant No.4 has been confirmed by the First Appellate Court. There being concurrent findings of both the Courts, he submits that this Court ought not to intercede, but dismiss the writ petitions. All the issues will be thrashed out during Trial. 12. Heard Sri. K.L.Patil, learned Senior counsel appearing for the petitioner/defendant No.4, Sri. G. M. Gangadhar, learned Additional Advocate General appearing for respondent No.9/defendant No.1, Sri. Harsh Desai, learned counsel appearing for respondent No.10/defendant No.2 and Sri. S.M. Chandrashekar., learned counsel appearing for caveator respondent No.1 to 8 and 12 to 42/plaintiffs. Perused the papers. 13. The points that would arise for the consideration of this Court are: 1) Whether the plaintiffs have exfacie established any easementary right - 52 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 over the concrete slab which has been put up, requiring an order restraining the defendants from carrying out any development works thereon? 2) Whether the order passed by the Municipal Commissioner in pursuance of the oral directions issued by the President continues to be subsisting? 3) Whether the claim of the plaintiffs to make use of the subject property for parking and or access to their properties is sustainable? 4) Whether the respondents cannot put up a park without the same being designated as a park under the Karnataka Parks, Play-Fields and Open Spaces (Preservation and Regulation) Act, 1985? 5) Whether an injunction order was required to be passed by the Trial Court and confirmed by the First Appellate Court or do the said orders suffer from legal infirmity requiring - 53 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 intervention at the hands of this Court? 6) What order? 14. I answer the above points as under. 15. Answer to Point No.1: Whether the plaintiffs have exfacie established any easementary right over the concrete slab which has been put up, requiring an order restraining the defendants from carrying out any development works thereon? 15.1. The prayer which has been sought for in the plaint is as under: It is most humbly prayed and submitted that: 1. It may be declared that the plaintiffs and have right to approach their respective business premises consisted in suit properties Sl.No.1- 10 by ‘RIGHT TO WAY’ as easement of necessity to by passing along the Azad Road over the Raja Kaluve; and 2. The construction carried out or proposed to be carried out by the Defendant no.4 over the Raja Kaluve as shown in the BCDEFGHLKJI region of hand sketch map may be declared as illegal and violative of easementary rights of Plaintiffs and others; and 3. As a consequence the Defendants be restrained by an order of Permanent Injunction from employing/making any construction perpetually over the said BCDEFGHLKJI region of the hand sketch affecting the easementary rights of plaintiffs; and - 54 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 4. The costs of the suit may kindly be awarded to the plaintiffs; 5. Any other legal or equitable reliefs which this Hon’ble Court deems fit may kindly be awarded. Accordingly the suit of the plaintiff be decreed in the interest of justice, Equity and Good Conscience. 15.2. The prayer which has been sought for in the Interlocutory Application is as under: Application U/O XXXIX, R 1 & 2, R/W S.151 of CPC. Herein, the advocate for the plaintiffs/applicants, implore to apply as under. That for the reasons sworn in the accompanying affidavit, it is most humbly prayed that, this Hon’ble Court be pleased to an order ad-interim-exparte-injunction against this Defendant No. 1-4/Opponent, restraining the Defendant No. 1/4/Opponents, from making any further construction work by themselves and by their men/contractors and also servants employed specifically for the construction in or over the suit Raja Kaluve catchment area affecting the valuable easementary rights of the Plaintiffs to use, approach and enjoy the suit schedule I Sl.No.1- 11 properties situated at Gadag, till the disposal of the top-noted suit in the interest of justice, equity and good conscience. - 55 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 15.3. Essentially what the plaintiffs have sought for is to have a right to approach their respective business premises, consisted in the suit property Sl.No.1 to 10 by right to way as easement of necessity to by passing along the Azad road over the Raja Kaluve and it is in furtherance thereof that the ad interim injunction has been sought for to restrain defendants No.1 to 4 from making any further constructions on or over the suit Raja Kaluve affecting the valuable easement rights of the plaintiffs to use, approach and enjoy the suit schedule Sl.Nos.1 to 11 properties. 15.4. It is in the above background that it was required to be examined by the Trial Court, the First Appellate Court and now to be examined by this Court whether there is any easement right which the plaintiffs can claim over the said - 56 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 Raja Kaluve. The facts and contentions have been detailed out hereinabove. 15.5. Admittedly the Raja Kaluve was an open drain until COVID-19 and it is only thereafter that with AN intention to clean up the existing drain and maintain a clean atmosphere, the Raja Kaluve being an open sewer drain, the Municipal Council came up with a proposal to close the drain and as such a concrete bed was laid at the bottom to enable easy flow of the sewage, pillars were constructed and a concrete slab built thereon, thus enclosing the open sewage drain by way of a box drain in terms of the aforesaid concrete bed at the bottom, pillars on the side and slab on the top. Prior to 2021, the drain was an open drain with certain bridges built across. According to the plaintiffs there were 2 bridges, according to the defendants, there was 1 bridge to cross over - 57 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 the said Raja Kaluve to reach the Azad road where the shops of the plaintiffs are stated to be located. Thus until 2021, admittedly, there were even, according to the plaintiffs, 2 bridges and, as indicated above, according to the defendants, 1 bridge. The Raja Kaluve/storm water drain and as claimed by the plaintiffs themselves the gutter was not enclosed but was an open sewage drain. Hence, the Trial Court and the First Appellate Court ought to have first considered whether there are any easementary rights which the plaintiffs could have claimed on the concrete slab which has been constructed in the year 2021. Since admittedly the said concrete slab has been constructed only in the year 2021. The Trial Court and the First Appellate Court have completely erred in taking into consideration that the plaintiffs have their shops situated next to Azad road and therefore they have an - 58 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 easementary right over the concrete slab which has been put up in the year 2021. The slab not being in existence for the prescribed period, the question of the plaintiffs obtaining any prescriptive rights over the said concrete slab would not arise. 15.6. Coming to the aspect of easement of necessity, even as per the plaintiffs, the plaintiffs had access to their shops on Azad road from across the road over 2 bridges which they claim to have built by themselves. The documents which have been placed on record by the Municipal Council indicate that it was a temporary license which had been granted to them and the bridges would have to be surrendered to the Municipal Council. Now that due to COVID-19, a box drain has been put up. On the box drain being completed, the plaintiffs had started using the box drain for parking as - 59 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 also for loading and unloading goods vehicles. It is not that there is no other access which is available to the shops of the plaintiffs but the contention is that it is easier to cross over from one side to the other side on the box drain and therefore there would be lesser distance to be covered and it is on that basis that a right of passage is sought for. 15.7. The project plan which has been placed on record indicates that there are several locations where there is access from one side of the road to the other on the concrete slab which has been constructed and there are also roads indicated in the said plan. Thus, insofar as access by pedestrians to the shops of the plaintiffs and or access by the plaintiffs themselves, such access is available in terms of the plan which has been placed on record at least at 6 locations and two roads has been - 60 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 indicated apart from access through Station Road and D.C.Mill Road which is always available. Thus, it cannot be said that there is no access to the properties of the plaintiffs or the customers of the plaintiffs inasmuch as there are 6 locations where access to pedestrians is provided. 15.8. Easement of necessity would only arise if there was no access available to the plaintiffs to their shops. Admittedly the plaintiffs' shops being located on Azad Road which connects Station Road on one side and DC Mill Road on the other side have access from those two roads and therefore, it cannot be contended that there is any easement of necessity that is required to be granted to the plaintiffs. 15.9. The concrete slab which had been put up in the year 2021 was started to be used by the plaintiffs for the purpose of parking of their - 61 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 vehicles and loading and unloading of goods vehicles. The concrete slab not being designed to carry such a load. Apart from for beautification of the City for the purpose of preventing such usage of the concrete slab which could endanger the said concrete slab, the Municipal Council has come up with a proposal to use the same as a recreation area so that no parking could be resorted to in the said area. The plaintiffs have approached the Trial Court only for the purpose of using the concrete slab for their parking purposes and usage of access to their properties. 15.10. The aspect of access has already been dealt with hereinabove. Insofar as parking is concerned, the concrete slab on the drain has not been put up for the purposes of parking nor is it a designated parking space. Merely because it is convenient to the shop owners to - 62 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 use the concrete slab for the purpose of parking and or loading and unloading the goods vehicle, the same would not confer any legal right on them to use the said concrete slab for that purpose. 15.11. In my considered opinion, the Suit has been filed, and the relief as sought are completely misconceived. The plaintiffs have sought to usurp the properties of the City for their own interest of parking, which ought not to have been permitted by the Trial Court or the First Appellate Court and as such, will not be permitted by this Court. 15.12. In that view of the matter, I answer Point No.1 by holding that the plaintiffs have not established any easementary right over the concrete slab which has been put up in the year 2021 requiring the Trial Court to have ordered an injunction and or the First Appellate Court to - 63 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 confirm the said injunction restraining the developmental works being carried out therein. 16. Answer to Point No.2: Whether the order passed by the Municipal Commissioner in pursuance of the oral directions issued by the President continues to be subsisting? 16.1. Much has been made of the letter issued by the Commissioner of the Municipal Council dated 19.9.2022. A perusal of the said letter would categorically indicate that the Municipal Commissioner has in the very said letter stated that the said letter has been issued on the oral instructions of the President. There is no particular resolution passed by the Council in that regard. It is only on the basis of the oral instructions of the President that the Commissioner had called upon defendant No.4 to stop the construction activities. Subsequent thereto, an Administrator having been appointed, the Commissioner has issued a letter dated 7.12.2022 calling upon defendant - 64 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 No.4 to complete the construction at the earliest. These facts would indicate that the letter dated 19.9.2022, even if validly issued, has been overridden and superseded by the letter dated 7.10.2022. Both the Trial Court and the First Appellate Court have ignored the letter dated 7.10.2022 and placed reliance on the earlier letter dated 19.9.2022, which ought not to have been the case. The Trial Court and the First Appellate Court ought to have taken into consideration the subsequent events and thereafter passed necessary orders. 16.2. In the present case, the Deputy Commissioner being the State is represented by the Additional Advocate General and the Municipal Council is represented by its own counsel. The petition, however, is filed by the contractor. The submission of the Additional Advocate General and the Counsel for the Municipal Council is - 65 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 that they support the project now being carried out by defendant No.4. The submission of learned Additional Advocate General is also that the funds would now be internally sourced and the funds of KNNL will not be used. That being the case, the project being supported by the State and the Council, this Court would have to take cognizance of the said facts in the face of which the letter dated 19.9.2022 would pale into insignificance inasmuch as the said letter has already been overridden and superseded by letter dated 7.10.2022 and the stand of the Municipal Commissioner has been vindicated and reiterated by the State. 16.3. Thus, I answer Point No.2 by holding that the order passed by the Municipal Commissioner dated 19.9.2022 in pursuance of the oral direction issued by the President cannot be said to be subsisting for the Trial Court or the First - 66 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 Appellate Court or for this Court to refer to and rely upon. 17. Answer to Point No.3: Whether the claim of the plaintiffs to make use of the subject property for parking and or access to their properties is sustainable? 17.1. This point has partly been answered in answer to Point No.1 above. Suffice it to say that the plaintiffs have been making use of the subject property, that is, the concrete slab, for the purpose of parking and access to their properties. 17.2. Insofar as access is concerned, there have been 6 locations where pedestrians could approach the properties/shops of the plaintiffs. The right to access is not disturbed. 17.3. Insofar as access to goods vehicle and or other vehicles, there are 2 roads which have been made above the concrete slab. Apart therefrom, the Azad Road has access from - 67 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 Station Road and DC Mill Road. Therefore, even the question of right to access by way of vehicles is not impinged upon by the project. 17.4. Insofar as parking is concerned, as rightly contended by Sri.Harsh Desai, learned counsel appearing for the Municipal Council that the earlier gutter had been closed by a box drain. The closure of the gutter was to maintain a hygienic atmosphere. The concrete slab was never built for the purpose of being used for parking. The Municipal Council is also apprehensive that if the said area is used for parking, the slab could collapse, resulting in injury to the occupants of the vehicle when the slab collapses, apart from the entire flow of sewage in the twin city of Gadag Betagiri coming to a standstill on account of blockage of the drain, which could also result in overflow of the sewage water to neighbouring areas. This - 68 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 being the fact situation as contended by the Municipal Council, I am of the considered opinion that the plaintiffs not having had any access or right to make use of the concrete slab for the purpose of parking prior to 2021 since there was no such slab which had been constructed before that date, there cannot be any right which could be said to be vested in the plaintiffs from 2021 to 2023 when the project commenced to confer any easement right on them. 17.5. As indicated above, the slab not being built for parking, not capable of carrying the load of such vehicles, the question of plaintiffs making use of the slab for parking when the said area is not a designated parking area could also not arise. 17.6. Insofar as access is concerned, there are 6 locations indicated in the plan for pedestrian - 69 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 access, 2 roads which have been indicated on the concrete slab for access to make use apart from Station Road and DC Mills Road. Therefore, the interest of the plaintiffs are adequately protected by the existence of these access points and roads. 17.7. Hence, I answer Point No.3 above by holding that the claim of the plaintiffs to make use of the concrete slab for parking is not sustainable and or maintainable. 18. Answer to Point No.4: Whether the respondents cannot put up a park without the same being designated as a park under the Karnataka Parks, Play-Fields and Open Spaces (Preservation and Regulation) Act, 1985? 18.1. The Statement of Objects and Reasons of the Act, 1985 are as under: STATEMENT OF OBJECTS AND REASONS Act 16 of 1985.- In view of the increasing demand for residential and commercial sites in - 70 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 the urban areas, a number of Parks, Play-fields and open spaces are being converted into sites and for other such uses. In order to provide necessary space for recreation to the residents of each locality it is necessary to preserve parks, play-fields and open spaces and to put an end to the practice of converting such lands into other uses. Hence this Bill. (Published in the Karnataka Gazette (Extraordinary) Part IV-2A, dated 20-3-1985 as No. 154 at page 11.) 18.2. A perusal of the said Statement and Objects would indicate that a number of parks, play fields and open spaces being converted into sites and for other uses, in order to provide necessary space for recreation to the residents of each locality, it is necessary to preserve parks, playgrounds and open spaces and to put an end to the practice of converting such land into other uses. It is in that background that under Section 3, a list of parks, playfields and open spaces is required to be prepared. - 71 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 18.3. Section 3 the Karnataka Parks, Play-Fields and Open Spaces (Preservation and Regulation) Act, 1985 is reproduced hereunder for easy reference: 3. Preparation and submission of list of parks, play-fields and open spaces by executive authorities. (1) The executive authority of every local authority shall, not later than six months from the date on which this Act comes into the force in the area within the jurisdiction of the local authority concerned, prepare, and submit for the approval of the Government a correct and complete list with plans and maps with dimensions of all the parks, play-fields and open spaces in the area aforesaid containing such other particulars as may be prescribed. (2) The Government shall, as soon as may be, after the receipt of the list and other documents referred to in sub-section (1), publish the list together with a notice of the date (not being less than three months from the date of publication) before which representation in connection therewith may be submitted in the prescribed manner and such publication shall state at what place and time the plans, maps and documents aforesaid will be available to the public for inspection: Provided that if any private land is included in any park, play-field or open space specified in the list a copy of the list with the concerned to be served on the owner of that private land. led plans and maps shall cause 18.4. A perusal of Section 3 would indicate that it is the existing parks, playfields and open spaces - 72 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 which are to be listed by the Executive Authorities along with correct and complete plans and maps with dimensions of all the parks, playfields and open spaces. A list thereof is required to be published in terms of subsection (2) of Section 3, inviting objections if any. If any park, playfield or open space is in a private land, notice is to be issued to the private landowner also. It is thereafter on receipt of any objections, suggestions, representation, considering those objections, representations and suggestions, orders would have to be passed by the Government approving the list in the manner it deems it and the list as approved is required to be published. Under section 5, before inclusion of any lands in the said list, the Government is required to publish a draft notification inviting objections and thereafter pass necessary orders after hearing the person interested. It is in - 73 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 furtherance thereof that in terms of Section 6, there is a prohibition imposed on usage of any land designated for parks, playfields and open spaces for any other purpose than that for which it was designated. 18.5. Section 7 provides for maintenance; Section 8 provides for prohibition of construction on the park; Section 9 provides for obligation of owner of parks and playfields etc. 18.6. Thus, the very object of the Act is to prevent the use of existing park, playfield or open spaces for purposes other than that of park, playfield and open spaces and it is due to the restriction imposed under Section 6 and 8 of the Act that a public notice is issued inviting objections and thereafter on consideration of objections, representations, suggestions, orders are to be passed by the Government. This being so, since once a particular park, playfield - 74 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 or open space is included in the list by the Government, the restriction under Sections 6 and 8 would come into play, which would not apply if a park, playfield or open space is not in the approved list by the Government. 18.7. This being the scheme of the Act, I am afraid I am unable to accept the submission of Sri.S.M.Chandrashekar, learned Senior counsel that without a list being approved by the Government, no area can be designated as park, playfield or open space. The same is akin to putting the cart before the horse which cannot be accepted. It is only after a park comes into existence that the State may decide to include it in the list under the Act of 1985 or not. It is not prior to a park being formed that the same has to be included in the list in terms of Section 4 of the Act of 1985. - 75 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 18.8. Thus, I answer Point No.4 by holding that for the creation of a new park, open space or playfield, it is not required that the same has to be in the list approved by the Government under Section 4 of the Act of 1985. It is only after the park, playfield or open space has come into being and if the State were of the opinion that it needs to be protected that the procedure under the Act of 1985 has to be followed. 19. Answer to Point No.5: Whether an injunction order was required to be passed by the Trial Court and confirmed by the First Appellate Court or do the said orders suffer from legal infirmity requiring intervention at the hands of this Court? 19.1. In view of my answers to Point Nos.1 to 3 above, there being no easementary right, which has been established by the plaintiffs, nor could any easementary right be established by the plaintiffs over a concrete slab which had been - 76 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 built in the year 2021, the Trial Court and the First Appellate Court have completely misapplied themselves by considering the earlier bridges across the gutter. Even if those bridges were to be considered as access points, even according to the plaintiffs, there are 2 bridges, now there are 6 access points which have been provided over the concrete slab. Thus, the interest of the plaintiffs and or the other citizens are adequately safeguarded by such access points being provided. These aspects in the plan have not been considered by the Trial Court and the First Appellate Court. 19.2. Both the courts have proceeded on the basis of the letter dated 19-09-2022 issued by the Municipal Commissioner on the oral instructions of the President without adverting to the subsequent events. Therefore, in my considered opinion the Trial Court and the First - 77 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 Appellate Court have completely misapplied themselves requiring intervention at the hands of this Court. 19.3. Hence, I answer Point No.5 by holding that there is no prima facie case which has been made out by the plaintiffs of the right of easement over the concrete slab. The balance of convenience is in favour of the respondent - Municipal Council who has taken up the developmental works. Irreparable injury would be caused to the Municipal Council and the State if the concrete slab is unauthorisedly used for parking when it is not so constructed for parking. 20. Answer to Point No.6: What order? 20.1. In view of my answer to all the points above, I am of the considered opinion that the order passed by the Trial Court and the First - 78 - NC: 2025:KHC-D:5669 WP No. 100720 of 2025 Appellate Court are not sustainable. As such, I pass the following: ORDER i) The Writ Petition is allowed. ii) The order dated 21-4-2023 passed on I.A.No.5/2023 in O.S.No.93/2023 by the Principal Civil Judge and JMFC., Gadag as also the order dated 3-12-2024 passed by the Principal Senior Civil Judge and CJM, Gadag in M.A.No.11/2023 are hereby set aside. iii) Consequently IA No.5 of 2023 is dismissed. SD/- (SURAJ GOVINDARAJ) JUDGE AM/PRS List No.: 19 Sl No.: 1