Orissa High Court
Kalima Begum And Others vs State Of Odisha And Others .... Opp. ... on 1 July, 2024
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
Signature Not Verified
Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY
Designation: AR-cum-Senior Secretary
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 02-Jul-2024 17:57:28
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No. 578 of 2024
Kalima Begum and others .... Petitioners
Mr. Bibekananda Bhuyan, Advocate
-versus-
State of Odisha and others .... Opp. Parties
Mr. Amiya Kumar Mishra,
Additional Government Advocate
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 01.07.2024
1. 1. This matter is taken up through hybrid mode.
2. Petitioners in this CMP seek to assail the judgment dated
22nd March, 2024 (Annexure-5) passed by learned District Judge,
Jagatsinghpur in FAO No.59 of 2023, whereby dismissing the
appeal, it confirmed the order dated 10th November, 2023
(Annexure-4) passed by learned Civil Judge (Senior Division),
Jagatsinghpur in IA No.255 of 2023 (arising out of CS No.477 of
2023), dismissing an application filed by the Plaintiffs
/Petitioners under Order XXXIX Rules 1 and 2 CPC.
3. It is submitted by Mr. Bhuyan, learned counsel submits that
the Petitioners as Plaintiffs have filed CS No.477 of 2023 for
declaration of right, title and interest over Schedule 'A' and 'B'
property, right of easement over Schedule 'C', demarcation of
Schedule 'A' to 'C' as well as for permanent and mandatory
injunction. Along with the plaint, the Petitioners filed IA No.255 of
2023 under Order XXXIX Rules 1 and 2 CPC with a prayer to
restrain the Opposite Parties from coming upon Schedule 'A' to 'C'
property and making any construction work over Schedule 'A' to
'C' property during pendency of the suit. In the IA, the Petitioners
Signed by: SASANKA SEKHAR SATAPATHY
Designation: AR-cum-Senior Secretary
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 02-Jul-2024 17:57:28
// 2 //
have specifically stated that Schedule 'A' property is recorded in the
name of the Petitioners. Although Schedule 'B' and 'C' properties
are recorded in the name of the Government, but Schedule 'B'
property was being occupied by Sk. Gauri since 1992 and after his
death, Petitioners are in possession over the same. They are using
Schedule 'C' property to come to the canal embankment. If any
construction is made over Schedule 'B' and 'C' property, the only
access to the residential houses of the Petitioner in Schedule 'A' will
be blocked. The Block Development Officer, Jagatsinghpur
(Defendant /Opposite Party No.5) issued a work order for extension
of cycle stand and construction of class room over 'C' Schedule
property. On the basis of such work order, Opposite Parties are
making an attempt to encroach upon Schedule 'A' property and
make construction. Learned trial Court dismissed the application
vide order under Annexure-4 holding that no order of injunction can
be granted restraining the Government to proceed with development
work. Learned appellate Court in its order under Annexure-5
reiterated the same.
3.1 It is his contention that although specific plea was taken
by the Plaintiffs in the plaint as well as interim application that
Opposite Parties are making an attempt to make construction
over Schedule 'A' land, which is recorded in their name, they
should be protected during pendency of the suit, but the same
was not taken into consideration by either of the Courts.
Learned Courts under an impression that construction was being
made over Schedule 'B' and 'C' of the plaint, refused to grant
injunction, but encroachment over Schedule 'A' was not taken
Signed by: SASANKA SEKHAR SATAPATHY
Designation: AR-cum-Senior Secretary
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 02-Jul-2024 17:57:28
// 3 //
into consideration. Hence, this CMP has been filed. He also
drew attention of this Court to para-3 of the IA No.255 of 2023,
which reads as under:-
"3. That the Petitioners along with their family
members are the owners of the Schedule-A property and
are in occupation of Schedule-B property the demise of
Sk. Gauri since 1992 without any hindrance from any
quarter. But the opp. parties by using their official power
are forcibly gathering the building materials over the
schedule property for the construction of the school
building in closing the access of the Petitioners along
with their family members to come to their dwelling and
the Opp. parties have also threatened the Petitioners by
using their official force and power to encroach a
portion of Schedule-A property belonging to the
Petitioners." (emphasis supplied)
He also drew attention of this Court to the grounds taken by the
Petitioners at para-B of the appeal memorandum, which reads
as under:-
"B. For that ld. Civil Judge has miserably failed to
apply his judicial mind to the facts and circumstances of
the case. He should have held that the Schedule A
property is the private property belonging to the
appellants, the respondents have got no right over the
same and in no circumstances they can either make any
construction or close the access of the appellants to the
dwelling house situated over the said schedule A
property. But, the Ld. Civil Judge in a mechanical
manner having recorded a conclusion that as because
the BDO has issued work order for developmental work
the prohibition under section 21 (A) of the Specific Relief
Signed by: SASANKA SEKHAR SATAPATHY
Designation: AR-cum-Senior Secretary
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 02-Jul-2024 17:57:28
// 4 //
Act is attracted and the court can not pass any interim
order to protect the individual rights belongings to the
appellants over the schedule A property. The aforesaid
order clearly reveals a non-application of judicial mind,
full of surmises and conjectures and if allowed to stand it
will occasion a failure of justice."
He, therefore, submits that although a specific plea with regard
to encroachment over Schedule 'A' land was taken and a prayer
was also made to restrain the Government from making any
construction over Schedule 'A' land, but the same was not taken
into consideration by either of the Courts. Hence, the impugned
orders are not sustainable.
4. Mr. Mishra, learned Additional Government Advocate
vehemently objects to the above submission. It is his
submission that construction is being made over Schedule 'B'
and 'C' of the plaint, which are recorded in the name of the
Government. Over Schedule 'C', office of the District
Education Officer is situated. A cycle stand is situated over
Schedule 'B' land. Work order has been issued to make
construction over Schedule 'B' and 'C' land. Thus, no
encroachment as alleged over Schedule 'A' land, is being made.
No plea with regard to construction over any portion of
Schedule 'A' land was taken at the time of argument by the
Plaintiffs/Petitioners either before learned trial Court or before
learned appellate Court. Hence, there was no occasion on the
part of the Courts to consider the same. He, therefore, prays for
dismissal of the CMP.
Signed by: SASANKA SEKHAR SATAPATHY
Designation: AR-cum-Senior Secretary
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 02-Jul-2024 17:57:28
// 5 //
5. Taking note of the submission of learned counsel for the
parties and on perusal of record, it appears that specific
allegation about encroachment over Schedule 'A' land while
making construction is made by the Petitioners both in IA
No.255 of 2023 and in the appeal memo. The same appears to
have not been taken into consideration while adjudicating the
matter either by learned trial Court or by learned appellate
Court. It is contended by learned counsel for the Petitioners that
Schedule 'A' land is recorded in the name of the Plaintiffs.
Since an attempt is made to encroach upon Schedule 'A' land
over which, right, title and interest of the Petitioner is claimed,
learned Courts should have considered the same while
adjudicating the matter. As such the impugned order under
Annexure-5 is not sustainable. Hence, this Court feels that the
matter requires fresh consideration.
6. Accordingly, impugned order under Annexure-5 is set
aside and the matter is remitted to learned District Judge,
Jagatsinghpur to take into consideration the rival contentions of
the parties and the plea with regard to encroachment over
Schedule 'A' land by the Government while making
construction over Schedule 'B' and 'C' land and pass a
reasoned order giving opportunity of hearing to the parties
concerned.
7. The CMP is disposed of accordingly.
Issue urgent certified copy of the order on proper
application.
(K.R. Mohapatra)
s.s.satapathy Judge
