- 1 - NC: 2025:KHC-D:3208 WP No. 107953 of 2023 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 17TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ WRIT PETITION NO. 107953 OF 2023 (GM-CPC) BETWEEN: THE GENERAL MANAGER SOUTH WESTERN RAILWAYS, HUBBALLI-580023 …PETITIONER (BY SRI. VENKATESH M KHARVI., ADVOCATE) AND: 1. SRI S IBRAHIM KHAN S/O. MOHIDDIN KHAN, AGE. 69 YEARS, OCC. RETIRED ASSISTANT DIRECTOR OF HORTICULTURE AND AGRICULTURIST, 29TH WARD, DOOR NO.1020, 2ND CROSS, RAJIV NAGAR, HOSAPETE, BALLARI DIST-583201 2. THE CHIEF GENERAL MANAGER, B.M.M. ISPAT LIMITED, 114 DANAPUR VILLAGE, M.M. HALLI HOBLI, HOSAPETE TALUK, BALLARI DISTRICT-583201 3. THE GENERAL MANAGER, STAR METALLIC LIMITED, VYASANAKERE, M.M. HALLI HOBLI, HOSAPETE TALUK, BALLARI DISTRICT-583201 …RESPONDENTS (BY SRI. KRISHNA N MURNAL & ASHPAK KASHIMSA MALAGALADINNI Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - NC: 2025:KHC-D:3208 WP No. 107953 of 2023 SRI. R P HEMADRI FOR., ADVOCATES FOR R1; SRI. CHETAN MUNNOLI., ADVOCATE FOR R2; SRI. SOURABH MIRJE., ADVOCATE FOR R3) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF CERTIORARI QUASHING THE ORDERS DATED 01-12-2023 IN RA NO. 5003/2023 ON THE FILE OF 3RD ADDL. DISTRICT AND SESSIONS JUDGE BALLARI (SITTING AT HOSAPETE) ON THE APPLICATION FILED UNDER I.A NO. 3 VIDE ANNEXURE-G IN THE INTEREST OF JUSTICE AND EQUITY AND ETC. THIS WRIT PETITION, COMING ON FOR HEARING, THIS DAY, THE COURT MADE THE FOLLOWING: CORAM: THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ ORAL ORDER (PER: THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ) 1. The petitioner is before this Court seeking for the following reliefs: i. Issue a writ of certiorari quashing the orders dated 01.12.2023 in RA.No.5003/2023 on the file of 3rd Addl District and Session Judge Ballari (Sitting at Hosapete) on the application filed under I.A.No.3 vide Annexure-G in the interest of justice and equity. ii. Any order deemed fit in the circumstances of the case be passed. 2. Respondent No.1 had filed a suit in OS No.32 of 2016 seeking for the following reliefs; - 3 - NC: 2025:KHC-D:3208 WP No. 107953 of 2023 a. Grant of mandatory injunction directing the defendant No.1 to remove the loop railway track Rd- 3 railway line from Rd-2 Vyasanakere VC railway station which passes through the suit land of plaintiff; b. Grant of damages of Rs. 5,10,000/- at the rate of rupees 15,000/-per month from June, 2013 to March, 2016 in favour of plaintiff and against the defendant No. 1; c. Grant of further damages from the date of suit to till the date of removal of the loop railway track Rd-3 by defendant No.1; d. For cost of the suit; e. For such other relief or reliefs as the Hon'ble Court deems fit and proper in the circumstances of the case in the interest of justice. 3. The said suit came to be decreed on 17.11.2020 in the following manner; ORDER The suit of plaintiff is hereby decreed with costs. The defendant No.1 is directed to remove the Loop Railway Track Rd-3 Railway Line from Rd-2 Vyasanakere VC Railway Station, which passes through - 4 - NC: 2025:KHC-D:3208 WP No. 107953 of 2023 suit land within six months from the date of this order by way of Mandatory Injunction. The plaintiff is entitled for damages of Rs.5,10,000/- and for future damages at the rate of Rs.15,000/- per month from defendant No.1, from the date of this suit till removal of aforesaid loop railway track Rd-3 by said defendant from suit property. Draw decree accordingly. 4. An appeal having been filed in R.A.No.5003 of 2023 before the 3rd Additional District & Session Judge at Hosapet. The petitioner, who was the appellant- therein made an application in IA No.3 of 2023 under Order 26 Rule 9 read with Section 151 of the CPC for the appointment of a Court Commissioner/Tahsildar, Revenue Department, Hosapete or any other competent person to inspect the suit schedule property, note down the encroachment, if any, and direct him to report the matter to the Court in the interest of justice and equity and the schedule to the said application is the schedule to the suit filed by Respondent No.1-herein for the land of the plaintiff. - 5 - NC: 2025:KHC-D:3208 WP No. 107953 of 2023 5. The said application, having been contested, came to be rejected vide order dated 1.12.2023, on the ground that an inspection report in Exhibit P1 had already been marked in evidence in the suit, which indicated an encroachment and in furtherance of the sketch at Exhibit P2 and P2A, the encroachment could be removed. It is challenging this order, that the petitioner is before this Court seeking for the aforesaid reliefs. 6. The submission of Sri.Venkatesh M. Kharvi., learned counsel appearing for the petitioner, is that; 6.2 The petitioners have denied Exhibit P1 and P2A and even otherwise, the said Exhibit P2A is only a rough sketch which does not indicate the boundaries of the property, and as such, the petitioners are denying the location as indicated therein. 6.3 His further submission is that if the jurisdictional DDLR were to be appointed to - 6 - NC: 2025:KHC-D:3208 WP No. 107953 of 2023 demarcate the boundaries of the survey number of the land belonging to the plaintiff- respondent No.1, and the encroachment is marked on the said survey number by the DDLR, the petitioner-Railways would without demur remove the encroachment. The petitioner is facing difficulty in removing the alleged encroachment without knowing the exact location thereof. 7. Sri.Krishna N. Murnal., learned counsel for appearing for respondent No.1 again reiterates that the inspection sketch is sufficient for the purpose of removal of the encroachment as rightly considered by the First Appellate Court. 8. Heard Sri.Venkatesh. M.Kharvi., learned counsel appearing for the petitioner, Sri.Krishna N. Murnal., learned counsel appearing for respondent No.1, Sri.Chetan Munnoli., learned counsel appearing for respondent No.2 and Sri.Sourabh Mirji., learned - 7 - NC: 2025:KHC-D:3208 WP No. 107953 of 2023 counsel appearing for respondent No.3 and perused papers. 9. Having gone through Exhibit P2 and P2A, it is seen that the same is a rough sketch. Though the survey number has been mentioned, the exact location of the encroachment with reference to the boundaries of the said survey number has not been categorically mentioned. The said Exhibit P2 and P2A would categorically indicate that there is an encroachment of 66.80 square meters at different chainages in the map, but the exact location not having been demarcated and fixed, I am of the considered opinion that merely on the basis of the said inspection sketch, the removal cannot happen in a proper manner since the adjoining properties belong to certain other persons also. 10. In that view of the matter, I am of the considered opinion that this would be a fit case to appoint the jurisdiction of DDLR as the Court Commissioner to - 8 - NC: 2025:KHC-D:3208 WP No. 107953 of 2023 firstly demarcate the boundaries of the land of the plaintiff in Sy.No.77/A/4 measuring 1 acre 78 cents situated in 114 Danapur Village, M.M.Halli Hobli, Hosapete Taluk, Bellary District and upon demarcating the boundaries to clearly indicate the location at which the railway tracks enter the said property and exit the said property with the distances from the entry to the exit clearly demarcated. 11. Once the said demarcation is done by the Commissioner as submitted by Sri.Venkatesh M. Kharvi ., learned counsel for the petitioner, the petitioner would have to remove the railway tracks from the said entry into the land in Sy.No.77/A4 to the point of exit, leaving the entire land in Sy.No.77/A/4 free of any encroachment of any railway track and/or any incidental thereto. 12. Since the order is passed in the presence of both the counsels, the DDLR shall carry out the survey - 9 - NC: 2025:KHC-D:3208 WP No. 107953 of 2023 commencing from 10.30 a.m. on 28.02.2025. The report to be furnished to the petitioner and the respondents-herein by end of day 05.03.2025. The work of removal of the tracks by petitioner No.1 to commence from 10.03.2025 and removal to be completed by 15.04.2025. Sd/- (SURAJ GOVINDARAJ) JUDGE SR List No.: 1 Sl No.: 27