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2005 DIGILAW 351 (ORI)

LAXMIPRIYA SAHOO v. STATE OF Orissa

2005-06-20

A.S.NAIDU

body2005
( 1 ) THE facts and points of law involved in all the Misc. Cases being same, all the Misc. Cases were heard and are disposed of by this common judgment. ( 2 ) THE' petitioners have filed the aforesaid first appeals challenging the Judgments and decrees dated 30th September, 2000, 19th September, 2002 and 26th September, 2002 respectively passed by Civil Judge (Senior Division), Bhubaneswar in T. S. No. 246/2000 and T. S. Nos. 245 and 249 of 2000. The prayer in the aforesaid suits was for declaration of right, title and interest of the plaintiff-petitioners over the suit lands by adverse possession. Admittedly, the lands in dispute appertaining to General Administration department, Plot No. 2292 measuring AO. 2. 593 decs were Government lands. The General Administration Department allotted the said lands for industrial purposes to different applicants by executing lease deeds. Opposite Parties 4 and 5 are among such applicants, in whose favour lease deeds have been executed by the Government. The Government in General Administration Department initiated proceedings under Orissa Public Premises Eviction act (for short O. P. P. Act) for evicting the present petitioners who were alleged to have been in unauthorized possession of the aforesaid Government lands. The said proceedings were registered as O. P. P. Case Nos. 42, 43 and 31 of 2000 respectively. The Estate Officer after following the paraphernalia, stipulated under the said Act, passed orders of eviction. The petitioners being aggrieved by such orders preferred appeals before the appellate authority. The petitioners also filed a writ application before this court challenging the maintainability of the proceedings initiated under the O. P. P. Act. This Court held that the proceedings for eviction initiated against the petitioners under the O. P. P. Act were maintainable but then the encroachers should not be evicted until disposal of the suits. In the meanwhile the O. P. P. appeals were heard and dismissed by a reasoned order which have become final and binding. ( 3 ) WHILE matters stood thus, it appears, the petitioners along with some other encroachers approached this Court in OJC No. 5870 of 2000 with a prayer to direct the government to lease out or settle the suit land in their favour and to stay the proceedings initiated under the O. P. P. Act. The said writ application was dismissed. The said writ application was dismissed. The petitioners also filed petitions under Order 39, Rules 1 and 2 of the Code of Civil Procedure praying to restrain the State Government from evicting them during the pendency of the suits. The trial Court rejected the petitions on the ground that the lands belong to the state and the petitioners had no prima facie case. Against the said orders, the petitioners filed Misc. Appeals. This Court disposed of the appeals but then protected the petitioners from eviction until disposal of the suits and further directed that the suits should be disposed of within a targeted date. ( 4 ) THE parties adduced evidence both oral and documentary before the learned trial court and after taking into consideration all the facts and circumstances and discussing the evidence both oral and documentary, the trial Court came to the conclusion that the plaintiff-petitioners had totally failed to prove their title over the suit lands by way of adverse possession. It further held that their possession could not be held to be lawful and hence the plaintiff-petitioners were not entitled to a decree of confirmation of their possession or permanent injunction. On the basis of such conclusions the suits were dismissed. Being aggrieved the petitioners have filed aforesaid three First Appeals. Along with the memorandum of appeal the present petitions were filed under Order 39, rules 1 and 2 of the Code of Civil Procedure, with a prayer to restrain Opposite Parties 1 to 3 from creating any disturbance in the peaceful possession of the petitioners over the suit lands and for other consequential reliefs. ( 5 ) MR. Baug, learned counsel appearing for the petitioners, forcefully submitted that the appeals being continuation of the suits unless the possession of the appellants is protected the appeals would become infructuous. It is further submitted that the question as to whether the petitioners have acquired title over the property by adverse possession or not is still subjudice and as such if their possession is not protected they will suffer irreparable loss. Mr. Baug, learned counsel for the petitioners, relying upon the decision of the Supreme Court in the case of Bruce v. Silva Raj, reported in 1987 (Supp)SCC 161, submitted that the Court below having come to the conclusion that the appellants are in possession of the lands, such possession should be protected during pendency of the appeals. Mr. Baug, learned counsel for the petitioners, relying upon the decision of the Supreme Court in the case of Bruce v. Silva Raj, reported in 1987 (Supp)SCC 161, submitted that the Court below having come to the conclusion that the appellants are in possession of the lands, such possession should be protected during pendency of the appeals. ( 6 ) A detailed counter-affidavit has been filed by opposite parties 4 and 5 repudiating all the averments made in the petitions. According to Mr. Patnaik, learned counsel appearing for opposite party No. 4, the land admittedly belonged to the Government and the Court below on the basis of evidence both oral and documentary has come to a finding that the plaintiff-petitioners have failed to substantiate their stand that they are in forcible possession for more than thirty years. In view of the aforesaid categorical finding the petitioners have no right to possess the lands. It is further submitted that the petitioners have been found to be encroachers of Government lands. The O. P. P. Act is a special statute enacted for eviction of such unauthorized occupants. Proceedings were initiated against the appellants under the said Act and after giving adequate opportunity of hearing the petitioners were found to be encroachers and orders of eviction have been passed. The said orders have been confirmed and upheld by the Appellate authority and thus the orders of eviction have attained finality. This Court also in previous litigations considering the facts and circumstances and taking a liberal view, while not interfering with the orders of eviction passed by the competent authorities, protected the petitioners until disposal of the suits filed by the petitioners lest the petitioners might succeed in the suits. According to Mr. Patnaik after failing in the suits, in consonance with the direction issued by this Court, the orders for eviction passed should not be stalled thereby nullifying the valid orders passed under the special statute. Mr. Patnaik, further submitted that the petitioners are trespassers in respect of government lands and they are trying to obstruct use and development of a vast stretch of public land measuring nearly two acres thereby causing immense hardship and prejudice to opposite parties 4, 5 and the state. According to Mr. Patnaik, opposite party No. 4 has deposited more than Rs. 40 lakhs for the leasehold land and has also spent about Rs. According to Mr. Patnaik, opposite party No. 4 has deposited more than Rs. 40 lakhs for the leasehold land and has also spent about Rs. 3 lakhs towards registration cost. She is running from pillar to post for the last five years and facing rigors of trial in different Courts. State being the paramount owner and a lease having been executed in her favour, the petitioners who have no semblance of right, title and interest over the lands should not be permitted to possess the land as encroachers. Mr. Patnaik further submitted that none of the ingredients of Order 39, Rules 1 and 2 of the Code of Civil Procedure are satisfied to make out a prima facie case or prove balance of convenience or irreparable loss in favour of the petitioners, and it is a fit case where the interim petitions should be dismissed in limine. ( 7 ) I have heard learned counsel for the parties at length. I have also perused the materials available. Admittedly, the First appeals are pending. At this stage expressing any opinion on the merit of the cases may cause prejudice to either party and may amount to prejudging the issues. I therefore restrain myself from delving into the facts, except which are very much necessary for effectual adjudication of the present petitions. ( 8 ) THE lands in dispute belong to the state and are public properties. The petitioners claim perfection of their title over the disputed land by adverse possession. The question is as to whether the title of the State has been extinguished and the plaintiffs have acquired and perfected title to the same by adverse possession. In order to substantiate such claim of adverse possession the ingredients as to open, hostile and continuous possession with the required animus, should be proved for a continuous period of thirty years. In the case at hand, it appears, the petitioners admitted the title of the State government and filed a Writ Application in this Court (OJC No. 4870/2000) in the year 2000 with a prayer to direct the State Government to lease out the lands in their favour, thereby admitted the ownership of the State. That apart the trial Court after vivid discussion of the evidence, both oral and documentary, has arrived at a conclusion that the petitioners have failed to prove thirty years continuous possession. That apart the trial Court after vivid discussion of the evidence, both oral and documentary, has arrived at a conclusion that the petitioners have failed to prove thirty years continuous possession. Thus, it cannot be said that the petitioners have a prima facie case. ( 9 ) A party to litigation is not entitled to an order of injunction as a matter of right or course. Grant of injunction is within the discretion of the Court and such discretion is to be exercised in favour of a party only if it is proved to the satisfaction of the Court that unless the other side is restrained by an order of injunction, irreparable damage will be caused to that party. The Court grants such relief according to the legal principles- EX DEBITO JUSTITIAE. Before any restraint order is passed the Court must be satisfied that a strong prima facie case has been made out by the plaintiff including the question of maintainability of the suit and the balance of convenience is in his favour, and refusal of injunction would cause irreparable injury to him. A Court is always willing to extend its hand to protect a citizen who is being wronged or is being deprived of a property without any authority in law or without following the procedure which are fundamental and vital in nature. But at the same time the judicial proceedings cannot be used to protect or to perpetuate a wrong committed by a person who approaches the Court. The Supreme Court in the case of Shiv Kumar Chadha v. Municipal Corporation of Delhi reported in (1993) 3 SCC 161 has held as follows :-"in the olden days the source of most of the rights and liabilities could be traced to the common law. Then statutory enactments were few. Even such enactments only created rights or llbilities but seldom provided forums for remedies. The result was that any person having a grievance that he had been wronged or his right was being affected, could approach the ordinary Civil Court on the principle of law that where there is a right there is a remedy - ubi jus ibi remedium. As no internal remedy had been provided in the different statutes creating rights or liabilities, the ordinary Civil Courts had to examine the grievances in the light of different statutes. As no internal remedy had been provided in the different statutes creating rights or liabilities, the ordinary Civil Courts had to examine the grievances in the light of different statutes. With the concept of the welfare State, it was realized that enactments creating liabilities in respect of payment of taxes, obligations after vesting of estates and conferring right on a class of citizens, should be complete codes by themselves. With that object in view, forums were created under the Acts themselves where grievances could be entertained on behalf of the persons aggrieved. Provisions were also made for appeals and revision to higher authorities. " ( 10 ) THAT apart while passing any interim order pending any appeal the Court should also keep in mind that once an interim order of injunction is passed, due to pendency of several cases in the Court, such interim orders continue for months, if not for years, at final hearing while vacating such interim orders of injunction in many cases it is noticed that by protecting the plaintiffs from suffering alleged injury, more serious injury has been cause to the defendants due to continuance of interim orders of injunction without final hearing of the main matter. It is a matter of common knowledge that on many occasions, the public interest also suffers in view of such interim orders of injunction. As has been observed in the case of Shiv Kumar Chadha ( (1993) 3 SCC 161 ) (supra), the Court should always be willing to extend its hand to protect the citizen who is being wronged or is being deprived of a property without any authority in law or without following the procedure which are fundamental and vital in nature, but at the same time the judicial proceedings cannot be used to protect or to perpetuate a wrong committed by a person who approaches the court with avowed oblique motive. ( 11 ) CONSIDERING the facts and circumstances of the present case in the touchstone of the decisions referred to above, this court feels that the petitioners being en-croachers of Government lands, prima facie have no locus standi to continue in possession thereof. Moreso, orders of eviction have been passed by due process of law by the competent statutory authorities created under Special Statute and such orders have become final. Moreso, orders of eviction have been passed by due process of law by the competent statutory authorities created under Special Statute and such orders have become final. The suits have also been dismissed and thus the plaintiffs can seek no injunction against the rightful owner's. There is thus neither balance of convenience nor will there be any irreparable injury caused to the petitioners. That apart in consonance with section 41 of the Specific Relief Act, an injunction cannot be granted to restrain a statutory authority from discharging its statutory duties. ( 12 ) IN view of the aforesaid facts and circumstances, this Court declines to grant any relief and disposes of the petitions with an observation that any changes made to the disputed property would be subject to result of the First Appeals and the opposite parties shall not claim any equity in the event the Appeals are allowed. The Misc. Cases are thus disposed of. Orders accordingly. .