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2010 DIGILAW 36 (CHH)

DHANNI BAI v. SAMPAT LAL CHHAJED

2010-02-05

PRASHANT KUMAR MISHRA

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ORDER 1. The plaintiff's application under Order 39 Rule 1 & 2 seeking temporary injunction, restraining the defendants from raising construction of the temple on the Government land bearing Khasra No. 1207 area 0.75 decimal has been rejected by both the Courts below after holding that the plaintiff does not have a prima facie case or balance of convenience or irreparable loss in her favour. 2. Ordinarily, this Court, in exercise of its power under Article 227 of the Constitution of India, would have refused to interfere with the concurrent findings arrived at by the Courts below. However, in the teeth of interim order passed by Hon'ble Supreme Court in SLP Civil No.8519/2006, the prayer made by the petitioner in this petition needs serious consideration. The order passed by the Hon'ble Supreme Court on 07.12.2009 is extracted herein for ready reference, "This Court on 29th September, 2009, after taking into consideration the letter dated 19th September, 2009, sent by the Union Home Secretary to the learned Solicitor General of India, we passed the following order: "We have heard the learned counsel for the parties. Looking to the far-reaching implications and consequences of the orders of this Court, on the oral request of the learned Solicitor General of India, we deem it appropriate to imp-lead all the States and the Union Territories as respondents to this petition. The Registry is directed to issue notices to all the States and the Union Territories within three days. The Union of India is directed to supply the entire set of papers to all the Star ding Counsel appearing for the State Governments and the Union Territories. The States and the Union Territories may file replies within four weeks and the Union of India is granted liberty to file rejoinder within two weeks thereafter. As an interim measure, we direct that henceforth no unauthorized construction shall be carried out or permitted in the name of Temple. Church, Mosque or Gurudwara etc. on public streets, public parks or other public places etc. In respect of the unauthorized construction of religious nature which has already taken place, the State Governments and the Union Territories shall review the same on case to case basis and take appropriate steps as expeditiously as possible. Church, Mosque or Gurudwara etc. on public streets, public parks or other public places etc. In respect of the unauthorized construction of religious nature which has already taken place, the State Governments and the Union Territories shall review the same on case to case basis and take appropriate steps as expeditiously as possible. In order to ensure compliance of our directions, we direct all the District Collectors and Magistrate/Deputy Commissioners in charge of the Districts to ensure that there is total compliance of the order passed by us. They are directed to submit a report within four weeks to the concerned Chief Secretaries of the Administrators of the Union Territories who in turn will send a report to this Court within eight weeks from today. List this matter for further directions on 7th December, 2009." All the States and the Union Territories have been served. Despite service, most of the States and Union Territories have not filed affidavits as directed by this Court. In the interest of justice, we grant one more opportunity to the Chief Secretaries/ Administrators of the respective States and Union Territories to file affidavits. Let the same be filed within six weeks failing which the concerned Chief Secretaries and Administrators shall remain present in Court on the next date of hearing. In case the Chief Secretaries and the Administrators have not issued circulars to all the Collectors and the district Magistrates of the Districts, it shall be issued within two weeks from today. The Chief Secretaries, in consultation with the respective Govenm1ents are directed to frame the policy in respect of existing unauthorized construction of religious nature, which had already taken place. This Court directed the respondents to review the same on case to case basis. Let the policies be formulated by all the States and the Union territories within four weeks from today. We are reiterating that the Chief Secretaries, the concerned District Magistrates and the Collectors/Deputy Commissioners in-change of the Districts must ensure total compliance of our order. Any breach in this respect shall be viewed seriously by this Court. We direct the Chief Secretaries/Administrators of all the States and Union territories to circulate copies of the order dated 29th September, 2009 and this order to all the District Magistrates and Collectors/Deputy Commissioners, other public bodies and local bodies. Any breach in this respect shall be viewed seriously by this Court. We direct the Chief Secretaries/Administrators of all the States and Union territories to circulate copies of the order dated 29th September, 2009 and this order to all the District Magistrates and Collectors/Deputy Commissioners, other public bodies and local bodies. We direct the learned Standing counsel appearing for various States and the Union Territories to ensure that all copies of the affidavits are filed in this Court on or before 27th January, 2010 with an advance copy to the learned Solicitor General of India, who is requested to get all these affidavits tabulated and submit a report to this Court on or before 2nd February, 2010. Place this petition for further directions on 4th February, 2010. Looking to the gravity of this matter, we direct that no order or direction inconsistent to our orders, shall be passed by any other Court in the country." 3. The plaintiff herein preferred a suit on the pleading that she owns a house and four shops in Khasra No.1220 area 2800 square feet at Gandhi Chowk. Near Rajabada Chowk, Nagari, District Dhamtari. On the northern side of her land, there is a piece of Government land hearing Khasra No.1207 area 0.75 decimal which is entered in the name of Government of Chhattisgarh in the revenue records. The plaintiff's cause of action for filing the present suit arose when the defendants started raising construction of a temple on this piece of Government Land winch is the suit land. Though the plaintiff claims easementary right and on that plea the suit for declaration or perfection of easementary right and permanent injunction has been preferred, but yet, the suit land is recorded in the name of Govenm1ent in the revenue records. This fact has been found to be uncontroversial or rather an admitted position recorded by the trial Court in para 9 of the order dated 04.04.2007. The first appellate Court has also recorded in para 2 of its order dated 16.04.2007 that it is not disputed that the suit land is Government land. 4. This fact has been found to be uncontroversial or rather an admitted position recorded by the trial Court in para 9 of the order dated 04.04.2007. The first appellate Court has also recorded in para 2 of its order dated 16.04.2007 that it is not disputed that the suit land is Government land. 4. Learned counsel for the petitioner has argued that the Courts below have completely ignored the fact that no one has the right to construct on Government land and that to protect the interest of the petitioner and her easementary right, the Courts below should have directed the defendants to maintain status-quo during the pendency of the suit. 5. Learned counsel for respondents No. 1 to 6, on the other hand has supported the order passed by the Courts below on the strength of judgments reported in MP WN. 1994 (II) 237, MP WN. 2001 (II) 92, AIR 1997 Rajastan 32, AIR 1994 Delhi 186, 1991 RN 332 (High Court), AIR 1992 Delhi 197, 1997(1) SCC 550 and 2001 (10) SCC 742 and has vehemently argued that the present is not a fit case for interference, when both the Courts below have concurrently held that the petitioner does not have a prima facie case or balance of convenience or irreparable loss in her favour. He also submits that the suit is maintainable and that necessary pleading to prove perfection of easementary right is not available in the plaint. He also submits that no construction is made on the land belonging to the plaintiff, therefore, present is not a case where the defendants should be injected from raising construction. 6. Shri Susheel Dubey, learned Government Advocate appearing for respondent No.7 /State of Chhattisgarh has argued that the suit land belongs to the State Government and that the State Government is bound to comply with the order passed by the Hon'ble Supreme Court. 7. The suit was filed in the year 2007 and both the orders by the trial Court as well as by the first appellate Court were passed in the month of April 2007. However, when the matter is taken up for final hearing in this Court, the order passed by the Hon'ble Supreme Court (supra) is operative and has its binding effect on this Court. 8. However, when the matter is taken up for final hearing in this Court, the order passed by the Hon'ble Supreme Court (supra) is operative and has its binding effect on this Court. 8. In view of the order passed by the Hon'ble Supreme Court, this Court finds that the present is a fit case for interference under Article 227 of the Constitution of India. The writ petition is therefore, allowed. The impugned order dated 04.04.2007 in Civil Case No. 3-A/207 passed by the trial Court and the order passed by the first appellate Court on 16.04.2007 in Civil Appeal No.04/ 07 are set aside. Defendants No.1 to 6 are restrained from raising any construction on Khasra No.1207 situated at Gandhi Chowk, Near Rajabada Chowk, Nagari, District Dhamtari during the pendency of the suit. 9. Parties to bear their own costs. Petition Allowed.