Orissa High Court
Cuttack Odiya Baptist Church vs Dhiraj Choudhury And Others ... ... on 1 March, 2024
Author: Krushna Ram Mohapatra
Bench: Krushna Ram Mohapatra
Signature Not Verified
Digitally Signed
Signed by: ROJALIN NAYAK
Designation: Junior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 05-Mar-2024 15:01:47
HIGH COURT OF ORISSA: CUTTACK
CMP No.144 of 2022
(In the matter of an application under
Article 227 of the Constitution of India, 1950)
*******
Cuttack Odiya Baptist Church, ... Petitioners
Cuttack and another
-versus-
Dhiraj Choudhury and others ... Opposite Parties
Advocate for the Parties
For the Petitioner : Mr. Jaydeep Pal, Advocate
For Opp. Party : Mr. Gautam Misra, Senior Advocate along with
Mr. Prafulla Kumar Lenka, Advocate
CORAM:
JUSTICE KRUSHNA RAM MOHAPATRA
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Heard and Disposed of on 01.03.2024
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JUDGMENT
K.R. Mohapatra, J.-
1. This matter is taken up through hybrid mode.
2. Judgment dated 23rd December, 2021 (Annexure-13)
passed in FAO No.54 of 2021 is under challenge in this CMP,
whereby exercising the power under Order XLIII Rule 1(r) CPC,
learned 3rd Additional District Judge, Cuttack reversed the order
dated 13th August, 2021 (Annexure-7) passed by learned Civil
Judge (Junior Division), 1st Court, Cuttack in CMA No.54 of 2021
(arising out of IA No.187 of 2013 and CS No.203 of 2013).
// 2 //
Designation: Junior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 05-Mar-2024 15:01:47
3. Mr. Pal, learned counsel for the Petitioners opened his
argument raising serious objection with regard to the locus standi of
one Dhiraj Choudhary to maintain FAO No.54 of 2021 against the
order passed in CMA No.54 of 2021.
4. It is his submission that CS No.203 of 2013 has been filed
by the Baptist Church Trust Association-Opposite Party No.2 with
the following relief:
"23. Therefore the plaintiff prays for the following relief:-
(a) Let a decree of permanent injunction be passed against
the defendants restraining them not to raise any sort of
construction over the suit land, and any addition alteration
renovation to the structure standing over the suit land and
not to lease out/ rent out the pond situated within the
church compound and not to create any sort of obstructions
in the worships services, commemoration services,
Marriage, Baptism and other religious and spiritual
services which is continuing as usual and also which would
be permitted by the special joint committee constituted by
the plaintiff.
(b) Let the cost of the suit be decreed in favour of the
plaintiff against the defendants.
(c) Let any other relief/relieves to which the plaintiff is
entitled to may be decreed in favour of the plaintiff in the
facts and circumstances of the present case."
5. Along with the plaint, an interim application (IA No.187 of
2013) was filed under Order XXXIX Rules 1 and 2 CPC with the
following prayer:
"In the circumstances this Hon'ble court may kindly be
graciously pleased issue order of temporary injunction
against the Opp. Parties not to erect any sorts of
construction to the existing structure of the church and
other building situated within the church compound
including gates and boundary wall and not to leased out
the pond without prior written permission of the petitioner
and as per the decision of the special joint committee of
the plaintiff and not to create any sorts of obstructions in
the prayer service, commemoration services Marriage
Services Baptism services and other religious and
spiritual service of the church, which being performed
since time immemorial pending disposal of the suit and
for the interest of Justice.
// 3 //
Designation: Junior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 05-Mar-2024 15:01:47
And for this act of kindness, the Petitioner as in
duty bound shall ever pray."
6. The said interim application was disposed of on contest
vide order dated 3rd September, 2013 (Annexure-4) directing the
parties to maintain status-quo over the suit property as prevailing
on that date till disposal of the suit. Assailing the same, the
Opposite Party No.3, namely, English Baptist Church, preferred
FAO No.89 of 2013, which was dismissed vide order dated 7th
February, 2014 (Annexure-5) by learned District Judge, Cuttack.
Accordingly, it attained its finality. Subsequently, the Petitioner,
who was Defendant No.1 in the suit filed an application under
Section 151 CPC in CMA No.54 of 2021 with a prayer to grant
permission for undertaking improvement works over the suit
schedule property (Church and its premises) with the funds
sanctioned by Government of Odisha in Works Department and
direct the Opposite Parties to render their cooperation for
undertaking such improvement works for preservation of the
heritage of the Church. Occasion to file such an application arose,
when Government of Odisha in the Works Department sanctioned
Rs.2 crore for developmental works like construction of amenity
centre and community centre etc. for the pilgrims in the Church
premises. The said application was filed by the Defendant No.1
through its General Secretary, namely, Sri, Pradip Kumar Sahoo.
However, it was rejected vide order dated 13th August, 2021
(Annexure-7). Assailing the same, the Opposite Party No.1 styling
himself to be the Treasurer and Secretary-in-Charge of the
Petitioner-Church filed FAO No.54 of 2021 treating the order
passed under Section 151 CPC to be an application under Order
XXXIX Rule 4 CPC. The said application was considered by
learned 3rd Additional District Judge, Cuttack and the impugned
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Designation: Junior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 05-Mar-2024 15:01:47
order dated 23rd December, 2021 (Annexure-13) with the following
order:
"The Appeal is allowed on contest against the
respondents. The impugned order dated 13.08.2021
passed in C.M.A No.54 of 2021 arising out of
I.A.No.187 of 2013 is hereby set aside.
The C.M.A No.54 of 2021 is allowed. The proposed
renovation and developmental works of the Baptist
Church Building and its premises over the suit schedule
property is to be undertaken by Government of Odisha,
Works Department (Executive Engineer, Roads and
Building-1, Cuttack) without changing the structural
design of the old heritage church building, under the
supervision of the joint Committee members and
convenor suggested by the respective parties as above.
In the facts and circumstances, however, there is
no order as to costs.
Send the copy of this Judgment along with the
entire L.C.R to the learned Court below forthwith."
7. Mr. Pal, learned counsel for the Petitioners submits that
said Mr. Dhiraj Choudhary was never authorized to file the FAO
for and on behalf of Petitioner No. 1-Church and he had no locus
standi to maintain the FAO as he was neither a party to the suit nor
to the interim application filed in the suit. Thus, the appeal was
incompetent and the order passed therein is also vitiated. He further
submits that the Petitioners also want development/improvement of
the Church and that the funds sanctioned by the Government should
be utilized in proper way for developmental work of the Church
preserving its heritage without affecting its basic structure. Had
there been no direction to perform the developmental work under
the supervision of the Joint Committee Members and Conveners
suggested by respective parties as more fully stated in the impugned
order itself, the Petitioners would not have been any objection to
the same. It is the Plaintiff-Opposite Party No.2, who in collusion
with other Defendants and Mr. Dhiraj Choudhary managed to file
the appeal and obtain the impugned order. It is also submitted that
// 5 //
Designation: Junior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 05-Mar-2024 15:01:47
the said Mr. Choudhary had filed an application under Order XXII
Rule 10 CPC to represent the Petitioner-Church. When the petition
was so pending, the FAO was filed. The Petitioners had no
knowledge of the order passed in the FAO. When it came to their
knowledge that by playing fraud with the Petitioners and the Court
Mr. Choudhary obtained the impugned order, this CMP was filed
assailing the same. Hence, the impugned order is not sustainable
and is liable to be set aside.
8. Mr. Misra, learned Senior Advocate appearing for the
Plaintiff-Opposite Party No.2 vehemently objects to the same. It is
his submission that the internal dispute in the management of the
Church has resulted in filing the CMP. The Petitioner No.1 being
represented by Sri Pradip Kumar Sahu filed the CMA No.54 of
2021 for grant of permission for developmental work of the Church
with the funds sanctioned by the Government. The prayer made
therein, though rejected by learned trial Court, has been allowed by
the appellate Court recording that 'CMA No.54 of 2021 is allowed'.
Thus, the Petitioners could not have any grievance against the said
order. Further, by Resolution dated 22nd July, 2021, said Mr.
Choudhary was authorized to discharge the duties of General
Secretary as General Secretary-in-charge. Thus, objection of the
Petitioners with regard to his locus standi of Mr. Choudhury to
maintain the appeal is not sustainable. It is further submitted that
this CMP was initially filed by the Petitioner-Church represented
through Sri Pradip Kumar Sahu, who representing the Church had
filed the petition in CMA No.54 of 2021. Thus, the CMP should be
dismissed in limine with cost for wasting the judicial time of the
Court, more particularly when the prayer made in the CMA No.54
of 2021 has been allowed by learned appellate Court.
// 6 //
Designation: Junior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 05-Mar-2024 15:01:47
9. It is further submitted that the tenor of the order passed by
the appellate Court clearly shows that it was passed on consent.
The parties to the appeal including the Petitioners nominated two
persons each to form a Joint Committee to supervise developmental
work of the Church. Due to the pendency of the CMP and interim
order passed therein, the developmental work could not proceed.
As such, he prays for dismissal of the CMP.
10. None appears for the Opposite Party Nos. 1 and 3 although
Opposite Party No. 1 is represented by learned counsel and postal
AD on Opposite Party No. 3 returned after valid service of notice.
10. Heard learned counsel for the parties.
11. Perused the documents placed before this Court.
12. It is apparent from the record that CMA No.54 of 2021 was
filed under Section 151 CPC (which is in the nature of a petition
under Order XXXIX Rule 4 CPC) to grant permission to undertake
developmental work of the Church with the funds sanctioned by the
Government in the Works Department. The said application was
rejected vide order dated 13th August, 2021. However, in appeal
(FAO No.54 of 2021), learned appellate Court reversed the
judgment passed by learned trial Court and granted permission to
undertake the proposed renovation and developmental work of the
Baptist Church Building and its premises over the suit schedule
property by the Government of Odisha in the Works Department
without changing the structural design and heritage of the Church
Building. It was also directed that the said work would be
undertaken under the supervision of the Joint Committee Members
formed and as per suggestion of the respective parties during
adjudication of the appeal. On perusal of the impugned order, it
appears that Sri. Pradip Kumar Sahu, whose name was suggested
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Designation: Junior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 05-Mar-2024 15:01:47
by Cuttack Odiya Baptist Church (Petitioner), has already expired
in the meantime. It also appears that impugned order was passed in
the year 2021. Mr. Pal, learned counsel for the Petitioners also
seriously disputes the name suggested by the Appellant to be the
Members of the Joint Committee.
13. It is the admitted case of the parties that funds have been
sanctioned for development/renovation of the Cuttack Odiya
Baptist Church and its premises. The work is to be undertaken by
the Works Department of the government of Odisha.
14. In course of hearing, although Mr. Pal, learned counsel for
the Petitioners seriously objects the locus standi of Mr. Dhiraj
Choudhury to maintain the appeal, but he submits that the
Petitioners do not have any objection, if the developmental work of
the Church is undertaken by the Works Department of Government
of Odisha with the funds sanctioned. Mr. Mishra, learned Senior
Advocate appearing for the Opposite Party No.2 does not have any
objection to the same. In view of the above, it appears that neither
of the parties objects to the developmental work of the Petitioner
No.1-Church to be undertaken by the Works Department of
Government of Odisha with the funds sanctioned. The only
objection raised by learned counsel for the Petitioners is with regard
to supervision of the work by the Members of the Joint Committee
constituted as per the names more fully stated in the impugned
order.
15. It, however, appears that learned appellate Court while
reversing the order passed in CMA No.54 of 2021 allowed the said
CMA. Thus, the prayer made in CMA No.54 of 2021 has been
granted by learned appellate Court.
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Designation: Junior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 05-Mar-2024 15:01:47
16. In view of the above, this Court feels that without delving
into the locus standi of said Mr. Dhiraj Choudhury to file and
pursue the appeal, interest of justice will be best served, if the funds
are spent for developmental work of the Church for which it is
sanctioned. Since the Baptist Church Building is a heritage
monument built in the year 1871 (as submitted by learned counsel
for the parties), its basic structure should not be changed/interfered
while making the renovation and developmental work.
17. Accordingly, it is directed that the developmental work of
Baptist Church shall be undertaken by the Works Department with
the funds sanctioned by the Government without changing the basic
structure of the building and without affecting its heritage. It
should be supervised by a Joint Committee which shall be formed
by nominating one member each by the parties to the suit. The
Members so nominated may also nominate a Convener for better
supervision of the work to be executed.
18. The work to be undertaken by the Works Department,
Government of Odisha shall be without rights and prejudice of any
of the parties to the suit.
19. With the aforesaid observation and direction, the CMP is
disposed of.
20. Interim order dated 3rd March, 2022 passed in IA No.170 of
2022 stands vacated.
Urgent certified copy of this judgment be granted on proper
application.
(K.R. Mohapatra)
Judge
High Court of Orissa, Cuttack
Dated 1st of March, 2024/ Rojalin
