Orissa High Court
M/S Dalmia Cement (Bharat) Ltd vs M/S Kedarnath Mining Private ... on 28 March, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No.1217 of 2022
M/s Dalmia Cement (Bharat) Ltd. .... Petitioner
Mr. Surya Prasad Mishra, Senior Advocate
being assisted by Mr. Sarada Pr. Sarangi, Advocate
-versus-
M/s Kedarnath Mining Private Limited .... Opp. Party
Mr. Byomakesh Sahoo, Advocate
CORAM:
JUSTICE K.R. MOHAPATRA
JUDGMENT
Heard & Disposed of on 28.03.2023
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1. This matter is taken up through Hybrid mode.
2. Order dated 23rd July, 2022 (Annexure-6) passed in
FAO No.16 of 2022 is under challenge in this CMP, whereby by
learned District Judge, Sundargarh modified the order dated 28th
February, 2022 (Annexure-4) passed by learned Senior Civil
Judge, Rajgangpur in IA No.9 of 2022 (arising out of CS No.8
of 2022) in a petition filed by the Opposite Party under Order
XXXIX Rules 1 and 2 CPC.
3. Opposite Party as Plaintiff filed CS No.8 of 2022 with a
prayer to direct the Defendant/Petitioner, its representatives,
agents, supporters and officers by way of ad-interim injunction
not to interfere in the bona fide use of the Schedule 'C' road by
the Plaintiff for any lawful purposes including access to its
premises, i.e., the Schedule 'A' premises. Petitioner further
prayed for easemntary right over Schedule 'C' road.
// 2 //
3.1 Along with the plaint, the Plaintiff/Opposite Party filed
IA No. 9 of 2022 with a prayer to restrain the
Defendant/Petitioner, its representatives, agents, supporters and
officers from interfering with the bona fide use of 'C' schedule
property by the Plaintiff for any lawful purposes including
access to its premises, i.e., the Schedule 'A' land till disposal of
the suit.
3.2 Learned trial Court taking into consideration the rival
contentions of the parties, passed the following order under
Annexure-4:-
"The I.A. be and the same is allowed on contest
against the Opposite Parties but under the
circumstances without any cost. The OP is directed not
to restrain the petitioner from using the 'C' schedule
road as a general public. Since the 'C' schedule road is
being used by the public, the petitioner is directed to
open the gate situated on plot no.99/556 by demolishing
the wall constructed in front of the gate and use the
same for plying of heavy vehicles. Both the parties are
further directed not to damage any slabs or any portion
of the suit land and not to construct any wall or
barricade on the suit land causing any kind of
inconvenience to anyone till final disposal of the suit.
The slabs which were damaged by who so ever be
repaired immediately by the petitioner so as to avoid
any kind of inconvenience to the parties as well as the
general public. The OP is directed to remove the
barricades if any put by them."
Assailing the same, the Defendant/Petitioner preferred FAO No.16
of 2022 and the learned District Judge, Sundargarh vide order
dated 23rd July, 2022 (Annexure-6) passed the following order:-
"The appeal is allowed in part on contest
against the respondent. The impugned order dated
28.02.2022 passed by the learned Senior Civil Judge,
// 3 //
Rajgangpur in IA No.9/2022 arising out of CS
No.08/2022 is hereby set aside. But under the
circumstances, both the parties are directed to maintain
status quo over the 'C' schedule land and the
respondent can use the 'C' schedule road as a general
public and since the appellant has already demolished
the compound wall situated on plot no.99/556 in front
of the gate of the respondent, the respondent may use
the said gate which is connected to public municipal
road for plying of heavy vehicles like JCB/ Tipper/
Trucks/ Tractors etc. The respondent is further directed
not to ply heavy vehicles in the 'C' schedule road, but
they are allowed to use the 'C' schedule road as a
general public. Both the parties are directed not to
damage the suit passage and not to raise any wall in
front of the entrance gate and not to put any barricade
till disposal of the suit."
4. Mr. Mishra, learned Senior Advocate appearing for the
Petitioner submits that the Defendant/Petitioner has no objection
if the Plaintiff/Opposite Party uses the 'C' Schedule land
without plying any heavy vehicle on such road. But there should
be no opening from Schedule 'A' land directly to Schedule 'C'
road, as claimed by the Plaintiff/Opposite Party. The
Plaintiff/Opposite Party all throughout raised the claim that it
does not have alternative access to the Schedule 'C' road except
the passage opened directly from Schedule 'A' land to Schedule
'C' road. The Plaintiff/Opposite party has an access to the
municipal road from plot No.99/556 and there from the
residents of 'A' Schedule land can enter through the main gate
of the Defendant/Petitioner to use 'C' Schedule road. Although
'C' Schedule road is exclusive property of the Defendant/
Petitioner, but it has been allowed for the general public as there
exist School and Hospital etc. in the premises of the Defendant/
Petitioner. By opening an access directly from 'A' Schedule
// 4 //
land to the 'C' Schedule road, the Plaintiff/Opposite Party is
trying to create nuisance and thereby plying heavy vehicles on
'C' Schedule road, which is detrimental to the interest of the
Defendant/Petitioner and thereby it is suffering irreparable loss.
Since the Plaintiff/Opposite Party has an alternate excess to 'C'
schedule road through the main gate of the Defendant/
Petitioner, there is no need to have another access directly from
'A' Schedule land to 'C' Schedule road. Only because the
residents of 'A' Schedule land may face difficulty in accessing
the 'C' Schedule road through the main gate of Defendant/
Petitioner, an access cannot be allowed to be opened directly as
claimed, as the comparative inconvenience to the Petitioner will
be more than the Plaintiff/Opposite Party. Although learned
District Judge held that the general public can use 'C' Schedule
road, but the direction to both parties not to damage the suit
passage and not to raise any wall in front of the entrance gate
and not to put any barricade till disposal of the suit has caused
serious prejudice to the Defendant/ Petitioner.
4.1 It is his submission that in para-7 of the plaint, the
Plaintiff/Opposite Party has categorically stated as under :-
"7. That, the premises of the Plaintiff vide
Schedule-A are surrounded by a single boundary wall
with one gate opening at the aforementioned Sadak on
Plot Nos.89/252, 87 and 83 is Sadak (Pacca Sadak)
shown in brown colour and adjacent to/on Plot No.84
which is shown in light green colour in the Map
attached which is more specifically detailed in the
Schedule-C below and henceforth called "Scheduled-C
Road" and it has no alternative way for access to the
premises except by and through the Scheduled-C Road.
Further, the Defendant has put cemented boundary wall
// 5 //
along the road at its southern side with their own gates
at different points."
From the above averments, it is clear that the Plaintiff/Opposite
Party has come to the Court with a specific case that it has no
other than Schedule 'C' road to approach Schedule 'A' land,
which has been blocked by raising a cement wall. The said
averment is not at all correct in view of the concurrent findings
of learned Courts. As such, the Plaintiff /Opposite Party does
not have any prima facie case in its favour and balance of
convenience leans in favour of the Defendant / Petitioner and it
will suffer irreparable loss if the direct access is opened from
Schedule 'A' land to the Schedule 'C' road by breaking open
the wall. He, therefore, submits that the impugned order to the
extent of restraining both the parties from raising any wall in
front of the entrance gate and not to put any barricade till
disposal of the suit may be set aside confirming the order to the
effect that the inhabitants of Schedule 'A' land may use the 'C'
Schedule road through the main gate of the Defendant/
Petitioner.
5. Mr. Sahoo, learned counsel for the Plaintiff/Opposite
Party vehemently opposes the above submission. It is his
submission that Schedule 'A' land originally was a part of
leasehold property of Defendant/Petitioner. Subsequently,
Government wanted to release Schedule 'A' portion of the
leasehold property of Defendant/Petitioner. Accordingly, a deed
of relinquishment was executed in favour of the State in respect
of Schedule 'A' property and it was leased out in favour of M/s.
// 6 //
Hari Machines. As the unit became defunct, the Schedule 'A'
land was kept idle. Subsequently, it was auctioned pursuant to
the direction of NCLT and the Plaintiff/Opposite Party became
the auction purchaser. It is his submission that there was a direct
entrance to municipal road through Schedule 'A' property, but
for the convenience of the inhabitants of Schedule 'A' property,
the Defendant/Petitioner had allowed a direct access from
Schedule 'C' road to 'A' Schedule land so that the residents of
Schedule 'A' land will not face any difficulty. As there are more
than 150 residential accommodations in Schedule 'A' property,
they will face immense difficulty if they access to 'C' Schedule
road through the main gate of the Defendant/ Petitioner.
Learned appellate Court realizing the difficulty, allowed the
general public of the Schedule 'A' land to use 'C' Schedule
road through the gate opened from Schedule 'A' land and
directed the parties not to create any damage to the said access
or to raise any wall or barricade on the same. Thus, learned trial
Courts have committed no error. It is his submission that the
gate from Schedule 'A' for access to the 'C' Schedule land is
still existing and the inhabitants of Schedule 'A' property are
using the said gate to have their access to Schedule 'C' property.
He, therefore, prays for dismissal of the CMP.
6. Taking into consideration the submissions made by
learned counsel for the parties and on perusal of record, it
appears that the Plaintiff/Opposite Party has come to the Court
with a specific stand that it does not have any alternate access to
Schedule 'A' land save and except the direct access from
// 7 //
Schedule 'C' road. But on perusal of materials on record, more
particularly the findings of learned Courts, it appears that the
Schedule 'A' land of the Plaintiff/Opposite Party has an access
over Plot No.99/556 from the Municipal road. The Municipal
road runs in front of the main gate of Defendant/Petitioner.
Thus, the Plaintiff/Opposite Party has an access to Schedule 'C'
road through the gate at Plot No.99/556 of Schedule 'A' land
and the Municipal road which runs in front of the main gate of
Defendant/Petitioner. Thus, there is no difficulty on the part of
residents of Schedule 'A' land to have an access through the
main gate of Defendant/Petitioner. Only because a direct access
from Schedule 'A' land to Schedule 'C' will be more
convenient to the residents of Schedule 'A' property, it should
not be allowed at the cost of inconvenience of the true owner,
namely, the Defendant/Petitioner. Thus, order of injunction to
that extent should not have been passed. Further,
Mr. Sahoo, learned counsel for the Plaintiff/Opposite Party
submits that there was a direct access from Schedule 'C' road to
'A' Schedule land by the predecessor of the Plaintiff/Opposite
Party, namely, M/s. Hari Machinery, but no material to that
effect could be produced before this Court.
7. Mr. Sahoo, learned counsel for the Opposite Party relied
upon the decision of the Hon'ble Supreme Court in the case of
Makers Development Services Private Limited. Vs. M.
Visvesvaraya Industrial Research & Development Centre,
reported in 114 (2012) CLT 587 (SC), wherein at para-6 it is
held as under:-
// 8 //
"6) It is settled law that while passing an interim order of
injunction under Order XXXIX Rules 1 and 2 of the Code of
Civil Procedure, 1908, the Court is required to consider
three basic principles, namely, a) prima facie case, b)
balance of convenience and inconvenience and c)
irreparable loss and injury. In addition to the above
mentioned three basic principles, a court, while granting
injunction must also take into consideration the conduct of
the parties. It is also established law that the Court should
not interfere only because the property is a very valuable
one. Grant or refusal of injunction has serious
consequences depending upon the nature thereof and in
dealing with such matters the court must make all
endeavours to protect the interest of the parties."
He, therefore, submits that the Court must make all endeavours
to protect interest of the parties. Thus, he submits that keeping
in mind the convenience/inconvenience of the parties, an
arrangement has been made by learned appellate Court. In the
instant case, learned trial Court while disposing of the IA has
categorically directed that 'The Petitioner is directed to open
the gate situated on Plot No. 99/556 by demolishing the wall
constructed in front of the gate as agreed upon by both the
parties in the open court. The 'C' schedule road is being used
by the public. So as a general public the petitioner shall also
use the 'C' schedule suit road as agreed by the OP in open
Court. Both the parties are further directed not to damage any
slabs or any portion of the suit land and not to construct any
wall on the suit land causing any kind of inconvenience to
anyone till final disposal of the suit.' The said order is not
challenged by the Plaintiff/Opposite Party. On the other hand,
the Defendant/Petitioner assailed the said order in FAO No.16
of 2022. Thus, the appellate Court should not have passed any
// 9 //
order granting relief to the Plaintiff/Opposite Party in the appeal
filed by the Defendant/ Petitioner.
8. In the instant case, the learned trial Court has directed to
reconstruct the slabs in between Schedule 'A' land and
Schedule 'C' road by the Petitioner. But learned appellate Court
directed to keep it open, which is certainly a relief granted to the
Plaintiff/Opposite Party in an appeal filed by the
Defendant/Petitioner, the same is not permissible in law.
9. Accordingly, this Court finds that since the Plaintiff/
Opposite has an access to Schedule 'C' road through the main
gate of Defendant / Petitioner there is no need to have a direct
access in between Schedule 'A' land and Schedule 'C' road. In
view of the above, this Court sets aside the direction of learned
appellate Court to the extent it directs both the parties not to
damage the suit passage and not to raise any wall in front of the
entrance gate and not to put any barricade till disposal of the
suit.
10. With the aforesaid modification in the impugned
appellate order under Annexure-6, the CMP is disposed of.
Urgent certified copy of the judgment shall be granted
on proper application.
(K.R. Mohapatra)
Judge
s.s.satapathy
