Orissa High Court
****** vs State Of Odisha And Others on 5 January, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No. 1081 of 2022
(An application under Article 227 of the Constitution
of India, 1950)
******
Smasan Kali Bije Bisinabar .... Petitioner
Mr. S.S.Rao, Advocate
-versus-
State of Odisha and others .... Opp. Parties
Mr. Swayambhu Mishra,
Additional Standing Counsel
(For Opposite Party Nos.1 and 2)
Mr. Debasis Nayak, Advocate
(For Opposite Party Nos.3 and 4)
Miss Pratyusha Naidu, Advocate
(For Endowment Commissioner)
...........................................................................
Heard and disposed of on 05.01.2023
...........................................................................
CORAM:
JUSTICE K.R. MOHAPATRA
JUDGMENT
Order No.
4. 1. This matter is taken up through Hybrid mode.
2. Order dated 21st May, 2022 (Annexure-5) passed by
learned Senior Civil Judge, First Court, Cuttack in Execution
Case No.1 of 2022 (arising out of TS No.514 of 1996) is under
challenge in this CMP, whereby an application filed by the
Petitioner to restrain the JDrs./Opposite Parties from making
any demolition/construction standing over the suit property or
to make any construction over the same and also to hand over
vacant possession of the land of the deity, has been rejected.
CMP No. 1081 of 2022
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3. Mr. Rao, learned counsel for the Petitioner submits that
TS No.514 of 1996 was filed for declaration of right, title and
interest of the Petitioner-deity by way of adverse possession
and for permanent injunction over the schedule property. The
deity, namely, Smasan Kali Bije at Bisinabar locally known as
Khannagar, Cuttack (for short, 'the deity') was the Plaintiff in
the said suit. The suit was decreed on 30th October, 2006. First
Appeal preferred against the said decree has also been
dismissed vide judgment and order dated 15th November, 2019.
In the garb of construction of a bus terminal, Opposite Parties,
namely authorities of the State government and Cuttack
Municipal Corporation started demolishing structures over the
suit land. Hence, the deity filed Execution Case No.1 of 2022
under Order XXI Rule 32 CPC. A petition dated 11th May, 2022
was filed to restrain the Opposite parties from demolishing any
structure over the schedule property or making any construction
over the said land. Further a prayer was made to direct the
Opposite Parties to hand over vacant possession of the suit land
in their favour. The said application has been rejected. Hence,
this CMP has been filed.
3.1 Mr. Rao, learned counsel for the Petitioner submits that
the Petitioner-deity is being represented by the legal heir of last
known hereditary trustee of the deity. An application under
Section 30 of the Odisha Hindu Religious Endowments Act,
1951 is pending before the Commissioner of Endowments,
Odisha, Bhubaneswar for being recognized as such. At this
juncture, the Opposite parties illegally started demolition of
structures raised by the deity and started construction of bus
CMP No. 1081 of 2022
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terminal. Hence, the Petitioner is constrained to file Execution
Case No.1 of 2022. It is his submission that a Public Interest
Litigation in W.P.(C) No.3884 of 2021) was filed in which the
Collector, Cuttack filed an affidavit stating as under:-
"6. That it is seen that the petitioners' apprehension is
that during the course of construction of Cuttack Netaji Bus
Terminal, there is a possibility of any damage to the
existing Devasthali of the Deity which the petitioners desire
to protect and safeguard. At this stage, it is submitted here
that in any case, the Devasthali of the Deity will not be
affected or damaged. Admittedly, a portion of the schedule
property is covered by Devasthali or the temple and
balance area is lying vacant. The deity is claiming
ownership over the entire property including the vacant
area and Devasthali.
7. That so far as the vacant area from out of the
schedule property is concerned, it may be used for the
Netaji Bus Terminal. In such event, the State Government
will take necessary permission and follow strictly all the
statutory provisions required to be complied under the
Orissa Hindu Religious Endowments Act so that the interest
of the Deity and the devotees shall be fully protected.
Therefore, the apprehension of the petitioners is baseless
and premature.
8. That it is most respectfully submitted that Cuttack
Netaji Bus terminal is an upcoming project of the State
government dedicated to the citizens of Cuttack and named
after Netaji Subash Chandra Bose in his 125th Birth
Anniversary. The petitioners, in the guise of protecting the
Deity's property, are trying to create hindrance in the
developmental work of the State Government which is not
permissible in law. It may be reiterated here that during the
course of undertaking the project work of Netaji Bus
Terminal, the Deity's interest will in no way be prejudiced
in any manner. Hence, the writ petition filed by the
petitioners is liable to be dismissed in limini."
The Petitioner was not a party to the said PIL. However, the writ
petition was disposed of by order dated 23rd July, 2021 with the
following direction.
"12. The other aspect is, in the matters
concerning developmental work meant for larger public
interest, there should not be any hindrance on the way.
CMP No. 1081 of 2022
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Undoubtedly the larger public interest has the precedence
over the right of an individual or a group.
13. While recording the admission of the
Collector, Cuttack to protect the interest of the deity and
the devotees and no damage will be caused to Devasthali
(Temple) of the deity, we do not see any merit in the
contention of the Petitioners to entertain the writ petition.
Accordingly, the writ petition is dismissed."
4. On perusal of the statement of affidavit made by the
Collector, Cuttack vis-à-vis the observation made by the
Hon'ble Division Bench in the order passed in the aforesaid
PIL, it clearly indicates that Opposite Parties have agreed not to
demolish any structure of the deity. Learned executing Court
although referred to the findings in the order passed in W.P.(C)
No.3884 of 2021, but failed to appreciate the implications of
the same and dismissed the petition filed by the Petitioner. It is
his submission that the deity was established in the year 1920
and since then it is in occupation of the said land. Right, title
and interest of the schedule land has already been declared in
favour of the deity and decree of permanent injunction has also
been granted. When the judgment and decree of a Civil Court is
staring at the Opposite Parties, they could not have taken steps
illegally to demolish the structures of the deity and construct
bus terminal thereon. Hence, he prays for setting aside the
impugned order and to restrain the Opposite parties from
demolishing the structures and making new structure thereon.
Mr. Rao, learned counsel for the Petitioner also prays for a
direction to Opposite Parties to deliver vacant possession of the
land to the Petitioner.
5. Mr. Nayak, learned counsel for the CMC-Opposite Party
No.3 refuting such submission contends that the Petitioner has
CMP No. 1081 of 2022
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no locus standi either to file or pursue the Execution Case No.1
of 2022 so also the CMP. It has been categorically observed by
learned executing Court in its order dated 21st May, 2022 that
"Both the petitioners filed this execution petition and this
application showing them as the son of the hereditary trustee.
But neither they pleaded nor produced any document in proof
of declaration of their status as hereditary trustee in line of
succession from Guru to Chela (disciples) from Khulana Mata
to them by the appropriate authority (Endowment
Commissioner). As such, they have no locus standi to bring this
petition." When Kalindi Panigrahi, who is representing the
Petitioner-deity, has no locus standi to file the execution case,
he cannot maintain the CMP. He further submits that allegation
made in the execution petition as well as in the present CMP
has already been taken care of in W.P.(C) No. 3884 of 2021.
Hence, it needs no further scrutiny. Hon'ble Division Bench of
this Court taking note of the contentions raised by the
Petitioners therein and objections made by the Opposite parties,
have passed the balanced order protecting the interest of the
deity as well as proceeding with developmental works. Hence,
this CMP being devoid of any merit should not be entertained.
6. Mr. Mishra, learned ASC also objects to the submission
of Mr. Rao, learned counsel for the Petitioner. It is his
submission that at para-11 of the order passed in W.P.(C)
No.3884 of 2021 is relevant for our consideration, which reads
as under:-
"11. Netaji Bus Terminal project is a
developmental project dedicated to the citizens of Cuttack.
The Petitioners, who are no way connected with the
CMP No. 1081 of 2022
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management of the properties of the deity, have all of a
sudden woke up to protect the properties of the deity. To
say in other words, the Petitioners are indirectly seeking
stalling of Netaji Bus Terminal project. When the
Endowment Commissioner, who is the true custodian of the
properties of the deity under the provisions of OHRE Act,
has no grievance nor any allegation of encroachment or
damage to the properties of the deity, the contention of the
Petitioners are not acceptable."
(emphasis supplied)
It is his submission that when the Commissioner of
Endowments, who is the custodian of the properties of the
deity, does not have any objection to the development work,
Petitioner should not create any hindrance for the same by
filing application under Order XXI Rule 32 CPC. He also
placed reliance upon the case of Benudhar Hota and others Vs.
Jagannath Nayak and others, reported in 2009 (Supp II) OLR
922, wherein it is held as under :-
"15. So far as the management of the Institution
is concerned, though there is some material to reveal that
the father of respondent No.1 and hereafter respondent
No.1 was the recorded Marfatdar of the suit institution, no
clinching evidence has been adduced to arrive at a
conclusion that they were in sole management. The oral
evidence as well as the documentary evidence clearly
reveals that the public participating the day to day
Nitikantis. There are also materials to reveal that they
contributed for the purpose of construction of the temple as
well as for holding Nitikantis. That apart the institution
does not have enough landed property of his own so as to
enable a single family to maintain it. No records or
accounts are produced by respondent No.1 to establish the
fact of management. There is also some evidence to reveal
that Gokulananda looked after the management for some
time thus there was disruption."
He, therefore, submits that since the Petitioner has not yet been
recognized as the hereditary trustee of the deity, he can neither
maintain the petition for execution nor this CMP. In view of the
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detailed discussion made in order dated 23rd July, 2021 in
W.P.(C) No.3884 of 2021, the impugned order warrants no
interference.
7. Miss Naidu, learned counsel for the Commissioner
Endowments, Odisha, Bhubaneswar reiterates the submissions
made by her before the Hon'ble Division Bench in W.P.(C)
No.3884 of 2021 and submits that the Commissioner of
Endowments, does not have any objection to the development
works undertaken by the State Government along with CMC. It
is her submission that no injunction should be granted for any
development work in view of Section 41 (h-a) of the Specific
Relief Act. She further submits that a petition for recognition of
the Petitioner as hereditary trustee is pending adjudication
before the Commissioner in OA No.66 of 2021. As yet, the
Petitioner has not yet been recognised as hereditary trustee.
She, therefore, submits that the CMP is not maintainable.
8. Heard learned counsel for the parties at length. Perused
the case record and materials placed before this Court. There is
no dispute with regard to the decree passed in TS No.574 of
1996. It is, however, submitted by learned counsel Mr. Rao, for
the Petitioner that there must be demarcation of the land of the
deity as per the decree before undertaking any demolition of
structure. Mr. Mishra as well as Mr. Nayak, learned counsel
appearing for the State Government and CMC respectively,
submitted that before undertaking construction, detailed
demarcations were made and subsequently after submission of
the project report development work has been undertaken.
Thus, question of further demarcation of the land does not arise.
CMP No. 1081 of 2022
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It further appears from the findings of Hon'ble Division Bench
that interest of the deity has been well-protected while
augmenting development work. It further appears that status of
the Petitioner as hereditary trustee is still sub judice.
9. On perusal of the execution petition, it appears that there
is no whisper with regard to the status of the present Petitioner.
The Petitioner has also not disclosed about pendency of the
proceeding for being recognized as hereditary trustee before the
Commissioner of Endowments, Odisha, Bhubaneswar. Mr.
Rao, learned counsel for the Petitioner, however, submits that
the Petitioner has, in detail disclosed his locus to represent the
deity. As observed by Hon'ble Division Bench, when the
custodian of the deity, which a perpetual minor, has no
objection to the construction vis-à-vis development works, the
Petitioner, whose status is yet to be recognized, cannot raise
any objection to the same.
10. Perusal of the impugned order at Annexure-5 this Court
finds that learned executing Court dealt in detail the rival
contentions raised by parties and arrived at the conclusion. In
view of the above, more particularly when the issue involved
herein has already been adjudicated by the Hon'ble Division
Bench of this Court in W.P.(C) No.3884 of 2021, the impugned
order warrants no interference.
11. Accordingly, the CMP being devoid of any merit stands
dismissed.
(K.R. Mohapatra)
Judge
s.s.satapathy
CMP No. 1081 of 2022
