AI Structured Summary
Not yet generated for this judgment
Judgment
K.R.Mohapatra, J
Due to outbreak of COVID-19, this matter is taken up through Video Conferencing.
Heard Mr. Debakanta Mohanty, learned Additional Government Advocate for the petitioners-State and Mr. Soumya Mishra, learned counsel for
the opposite parties.
This CMP has been filed assailing the order dated 21.10.2020 (Annexure-3) passed by learned 2nd Additional District Judge, Puri in FAO No.68 of
2019, whereby he allowed the appeal reversing the order dated 06.12.2019 (Annexure-2) passed by learned Civil Judge (Senior Division), Puri in IA
No.143 of 2020 (arising out of CS No.407 of 2019), rejecting an application under Order XXXIX Rules 1 and 2 CPC filed by the plaintiffs/opposite
parties.
Civil Suit No.407 of 2019 has been filed by the plaintiffs/opposite parties with a prayer for declaration of right, title, interest and for permanent
injunction restraining the defendants (petitioners herein) from interfering with the peaceful possession of the plaintiffs over the suit land. Along with
the plaint, plaintiffs/opposite parties filed IA No.143 of 2020 under Order XXXIX Rules 1 and 2 CPC, which was dismissed vide order dated
06.12.2019 (Annexure-2). Assailing the same, FAO No.68 of 2019 was filed, which was allowed by learned 2nd Additional District Judge, Puri, vide
order dated 21.10.2020 (Annexure-3), reversing the order under Annexure-2 passed by the learned Civil Judge (Senior Division), Puri. Assailing the
same, this CMP has been filed.
Mr.Mohanty, learned AGA submits that the suit land has been recorded in the Government Khata during consolidation operation. The same is
earmarked for infrastructure project under ABADHA Scheme and is kept reserved for allotment and rehabilitation of displaced persons from 75
meters periphery of Lord Jagannath Temple, Puri. Thus, the case of the petitioners-State squarely comes under Section 41 (ha) of the Specific Relief
Act, 1963. As such, a petition under Order XXXIX Rules 1 and 2 CPC for temporary injunction in respect of the suit land will not be maintainable. It
is his submission that the Puri Municipality has no authority to lease out the suit land, as it is only a caretaker of the property of the suit land on behalf
of the State Government.
5.1 Before commencement of hearing of the case, Mr. Mohanty, learned AGA submits a bunch of documents as per the list enclosed to it before this
Court for perusal, which are as follows:-
Record of Right of Khata No.452 in Mouza â€" Mangalaghat in Suit Plot Nos. 133 & 134;
Copy of the letter No.314 dated 24.02.2020 of Collector, Puri;
Copy of the Notification dated 18.08.2020 of Revenue Department;
Letter of the Revenue  Department dated 21.08.2020;
4A.Copy of the letter No.452 dated 19.10.2019 of the Collector, Puri along with Annexures;
Minutes of Review meeting of Works Department dated 25.09.2019;
Copy of I.A. No.143 of 2019 filed by the Respondents;
Copy of objection filed by the petitioners in IA No.143 of 2019;
Copy of objection filed by the petitioners in IA No.82 of 2019 arising out of FAO No.68 of 2019; and
Certified copy of the order in IA No.143 of 2019;
5.2 It is his submission that those documents were placed before the learned Civil Judge (Senior Division), Puri during adjudication of IA No.143 of
2020. Considering the rival contentions of the parties with reference to the materials available on record, more particularly taking into consideration the
fact that the suit land is reserved for infrastructure project, learned Civil Judge rightly refused to grant injunction. However, learned Appellate Court
without considering the materials available on record and by making unnecessary observations in the impugned order with regard to reasonableness of
the decision of the State Government under the Scheme, reversed the order passed by the learned Civil Judge (Senior Division), Puri and thereby
allowed the IA. It is his submission that the decision of the state Government under ABADHA Scheme has been appreciated by the Hon’ble
Supreme Court in a Public Interest Litigation. Further, the plaintiffs-opposite parties do not have any prima facie case, which is the basic requirement
for grant of order of temporary injunction He, therefore, submits that the impugned order is not sustainable and is liable to be set aside.
Mr. Mishra, learned counsel for the opposite parties (petitioners in IA No.143 of 2020), by filing counter affidavit to the CMP submits that these
opp. parties had earlier approached this Court in W.P.(C) No.21309 of 2020 apprehending their eviction and this Court, disposed of the said writ
petition vide order dated 1. 09.2020 (annexure-10 to the counter affidavit) with a direction to the opposite parties herein to approach learned District
Judge, Puri in FAO No.68 of 2019 and seek interim relief to protect their possession. It was further directed by this Court that if such an application is
filed the same shall be attended to promptly. While disposing of the writ petition, this Court further directed that no coercive action shall be taken
against these opposite parties till 09.09.2020.
6.1 Mr. Mishra, learned counsel further drew attention of this Court to the order dated 02.11.2020 (Annexure-11 to the counter filed by opposite party
No.1 to this CMP) passed in W.P.(C) No.23907 of 2020, wherein some of the displaced persons from the periphery of 75 meters of Lord Jagannath
Temple, Puri, who were allotted with the suit land for their rehabilitation, had approached this Court for a direction to the opposite parties therein to
hand over the peaceful physical possession of the newly allotted plots to them in terms of Sale Deeds under Annexure-2 series and RORs under
Annexure-3 series therein and allow them one year time to vacate their present residential buildings standing over plots situated within 75 meters
periphery of Lord Jagannath Temple, Puri.
6.2 While disposing of the said writ petition, vide order dated 02.11.2020, this Court observed as under:-
 “In view of the above, we dispose of the Writ Petition with a direction to opp. party no.3 to consider the grievance of the petitioners and allot them litigation
free land for their residential purpose in accordance with law. However, the above exercise shall be completed within a period of six weeks from the date of
receipt of the order.
It is also imperative that the State Government should take some pro-active steps to have an effective rederessal mechanism so that the land loosers whose lives
are critically affected, they do not run from pillar to post for securing their just and equitable rights.â€
He, therefore, submits that the argument of learned Additional Government Advocate to the effect that the suit land is reserved for infrastructure
project, is no more available to be raised, as the displaced persons¸ who were allotted with the suit land for their rehabilitation, have been directed to
be allotted with alternate litigation free site. He, therefore, submits that the Learned Appellate Court has committed no error in observing that Section
41 (ha) of Specific Relief Act has no application to the case at hand. He further submits that both the courts below concurrently held that the opposite
parties have prima facie case in their favour. As such, it should not be disturbed while exercising jurisdiction under Article 227 of the Constitution in
this CMP. Hence, he prays for dismissal of the CMP.
6.3 Mr. Mishra, learned counsel further submits that he is ready and willing to cooperate with the learned trial Court for disposal of the suit and makes
a prayer for early disposal of the suit without disturbing the impugned order.
In response to the submissions of Mr. Mishra, Mr. Mohanty, learned AGA for the petitioners-State submits that at the time of adjudication of the IA
No.143 of 2020, the suit land was allotted to the petitioners in W.P.(C) No. 23907 of 2020, for which argument was made referring to those persons
only. But the documents available on record clearly show that the suit land is reserved for infrastructure project, which is squarely covered under
Section 41(ha) of the Specific Relief Act. He further submits that the order of this Court in W.P.(C) No.23907 of 2020 was subsequent to the
impugned order under Annexure-3. Thus, the said plea could not have been raised to persuade the learned District Judge to take a decision in favour
of the opposite parties. Although it is observed that the suit land is involved in several litigations, that does not in any way affect the right of the State
Government to reserve the land for infrastructure project. The Puri Municipality, which has been impleaded as defendant No.6 to the suit, is ready and
willing to forego its claim over the suit land. He, therefore, prays for setting aside the impugned order.
Having heard learned counsel for the parties and on perusal of record, at the outset, this Court must observe that the learned Appellate Court while
adjudicating the appeal (FAO No.68 of 2019), should not have made any observation with regard to the reasonableness of the Scheme, as it is a policy
decision of the Government of Odisha. The same is not in issue either in the suit, IA or in the FAO. It further appears that the documents filed by the
parties before the learned trial Court at the time of adjudication of the IA No.143 of 2020 (including the documents, as per the list (supra) said to have
been submitted by the State before the trial Court) were not taken into consideration by the learned Appellate Court. Learned Appellate Court appears
to have swayed away with an impression that the land oustees are adequately compensated. That can never be the consideration while adjudicating
the FAO No.68 of 2019, as adequacy of the compensation was not an issue for adjudication in the FAO. Irreparable loss being one of the vital
requirements to be satisfied while granting an equitable relief of injunction ought to have been discussed by learned Appellate Court, while adjudicating
the matter, which is apparently absent in the impugned order, except recording finding to that effect. It further appears that there are some subsequent
developments in the matter in view of orders passed by this Court in W.P.(C) No.23907 of 2020 (Annexure-11 to the counter affidavit in CMP).
8.1 This Court is not in a position to test the veracity of the submissions made by learned counsel for the parties in detail with the materials available
before it, as those are not sufficient to adjudicate upon the merit of the petition filed under Order XXXIX Rules 1 and 2 CPC in exercise of power
under Article 227 of the Constitution. Hence, it will not be proper to sit over the matter and adjudicate the same. In view of the above, I am of
considered opinion that the matter requires de novo adjudication by learned Appellate Court.
Resultantly, this Court, without expressing any opinion on the merit of the impugned order as well as the case of either of the parties, sets aside the
impugned order and remits the matter back to the learned Appellate Court for fresh adjudication of the appeal on its own merit keeping in mind the
observations made above.
9.1 It is made clear that till FAO No.68 of 2019 is adjudicated afresh, status quo in respect of the suit land shall be maintained by both the parties.
Needless to mention here that the learned appellate Court, i.e., the 2nd Additional District Judge, Puri shall do well to make an endeavour for early
disposal of the FAO No.68 of 2019, preferably within a period of one month from the date of appearance of the parties to the FAO. For the sake of
convenience and in order to avoid delay, the parties shall appear before the learned 2nd Additional District Judge, Puri on 15.12.2020 along with an
authenticated copy of this order, to receive further instruction in the matter.
With the aforesaid observation and direction, the CMP is disposed of.
1 Authenticated copy of this order downloaded from the website of this Court shall be treated at par with certified copy in the manner prescribed
in this Court’s Notice No.4587 dated 25.03.2020.