The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 23-Aug-2023 18:39:15 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 878 OF 2016 (In the matter of an application under Article 227 of the Constitution of India, 1950) ******* Dhrubendra Kumar Das …. Petitioner Pramod Kumar Das and others …. Opp. Party -versus- Advocate for the Parties For the Petitioner : Mr. Sidharth Mishra, Advocate For Opp. Parties : Mr. Samir Kumar Mishra, Senior Advocate being assisted by Mr. J. Pradha, Advocate (For Opp. Party No.2) CORAM: JUSTICE K.R. MOHAPATRA -------------------------------------------------------------------------------
Decision
Heard and disposed of on 22.08.2023 ------------------------------------------------------------------------------- JUDGMENT 1. This matter is taken up through hybrid mode. 2. Order dated 18th May, 2016 (Annexure-6) passed by learned Additional Senior Civil Judge, Baripada in C.S. No.173 of 2012 is under challenge in this CMP, whereby an application filed by the Plaintiff-Petitioner to direct the Executive Officer, Baripada Municipality, Baripada to measure the suit land afresh by any expert in view of the order passed by this Court in W.P.(C) No.15024 of 2012, has been rejected. CMP No. 878 OF 2016 Page 1 of 8 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 23-Aug-2023 18:39:15 // 2 // 3. Mr. Mishra, learned counsel submits that the Petitioner as Plaintiff has filed the suit for declaration of Registered Sale Deed No.1280 dated 12th June, 2009 executed by Defendant No.1 in favour of Defendant No.3 to be null and void and for a decree to direct the Defendant No.2 to make construction over his purchased land strictly in accordance with the plan approved by the Executive Officer, Baripada Municipality, Baripada. Other consequential reliefs were also sought for. During pendency of the suit, the Plaintiff-Petitioner filed an application under Order XXXIX Rules 1 and 2 CPC in I.A. No.56 of 2011, wherein, learned trial Court, vide order dated 15th May, 2012 (Annexure-1), passed the following ex-parte ad-interim order: “In view of the illegality committed by: the O.P. which seems apparent from the intimation of the Executive officer, Baripada Municipality, he is directed with this ex-parte order of injunction not to violate the approved plan. Petitioner is directed to file the requisite in course of the day or tomorrow.” However, Defendant No.2-Opposite Party No.2 made construction over the disputed land violating the approved plan for which the Plaintiff-Petitioner filed application in the pending petition under Order XXXIX Rules 1 and 2 CPC to depute a Commissioner to make local inspection and submit a report with regard to the construction made by Defendant No.2. The said application was allowed vide order dated 27th July, 2012 (Annexure-2) directing the Civil Court Commissioner to make a local inspection and submit a report. Assailing the same, the Defendant No.2-Opposite Party No.2 moved this Court in CMP No. 878 OF 2016 Page 2 of 8 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 23-Aug-2023 18:39:15 // 3 // W.P.(C) No.15024 of 2012, which was disposed of on 6th October, 2015 with the following direction: “Therefore, I direct that if the petitioner and the opposite party file their applications before the learned Civil Judge (Sr.Divn.), Baripada in C.S. No.173/2012, learned Civil Judge, shall direct the Executive Office, Baripada Municipality, Baripada to inspect the premises of both the parties by an expert Engineer/Architect to find out and compare the construction made with the approved plan and submit a report to it. The said report shall be allowed by him. With the aforesaid direction, the impugned order dated 27.7.2012 is modified. Learned Civil Judge (Sr.Divn.), Baripada is further directed to expedite the hearing of C.S. No.173/2012 and conclude the same by June, 2016. The writ petition as well as the misc. case is disposed of accordingly.” Pursuant to the direction of this Court, learned trial Court passed an order requesting the Executive Officer, Baripada Municipality, Baripada to depute an expert Engineer/Architect to act in accordance with the direction of this Court by comparing the construction with the approved plan and submit a report by 18th April, 2016. 4. It is submitted by Mr. Mishra, learned counsel for the Petitioner that the said report was accepted without affording any opportunity to the Petitioner to file objection to the same. Being aggrieved, the Petitioner filed an application under Section 151 CPC to direct the Executive Officer, Baripada Municipality, Baripada to measure the disputed land afresh by an expert pursuant to the direction in W.P.(C) No.15024 of 2012. The said application was rejected vide order dated 18th May, 2016 under Annexure-6, which is under challenge in this CMP. CMP No. 878 OF 2016 Page 3 of 8 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 23-Aug-2023 18:39:15 // 4 // 5. Mr. Mishra, learned counsel for the Petitioner submits that since the Opposite Party No. 2 made construction over the suit land violating the plan approved by the Executive Officer, Baripada Municipality, the Petitioner filed I.A. No. 56 of 2011 and the above quoted ex-parte ad-interim order was passed on 15th May, 2012. The plan in respect of the construction was approved on 19th November, 2011, which was violated. But, the Opposite Party No. 2, in the meantime, got a revised plan approved on 9th December, 2012. The report was submitted comparing the construction made by the Opposite Party No. 2 with the revised approved plan, which was obtained to regularize the deviation in construction made as per the original approved plan. No opportunity to file objection to the report submitted by the Executive Officer, Baripada Municipality, Baripada was afforded to the Petitioner. However, the report submitted by the Executive Officer, Baripada Municipality, Baripada was accepted by learned trial Court without taking note of the aforesaid material aspect. Had the Petitioner been given an opportunity to file objection to the report, then he could have brought the aforesaid illegality in the report to the notice of the Court. Thus, the report cannot be taken into consideration to redress the grievance of the Petitioner. He further submitted that in view of the above, the Petitioner filed a fresh application to measure the land afresh by an expert and submit a report as to whether the building was constructed as per the approved plan in force when ad interim order of injunction was passed. Learned trial Court failed to appreciate the same and passed the CMP No. 878 OF 2016 Page 4 of 8 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 23-Aug-2023 18:39:15 // 5 // impugned order under Annexure-6 rejecting the application. Hence, the order under Annexure-6 is liable to be set aside. 6. Mr. Mishra, learned Senior Advocate appearing for Opposite Party No.2 submits that an ad interim order of injunction was passed on 15th May, 2012 restraining the Opposite Party No.2 from making any construction beyond the approved plan. But, the approved plan was subsequently revised. However, the Petitioner filed an application alleging that Opposite Party No.2 had made construction violating the approved plan. Thus, he prayed for deputation of a Commissioner to make local inspection and submit a report. The said application was allowed. The Opposite Party No.2 assailed the same in W.P.(C) No.15024 of 2012 and the aforesaid order was passed. The order dated 6th October, 2015 passed by this Court has never been challenged. In fact, the Petitioner also accepting the said order filed an application for fresh measurement of the disputed property. The allegation of the Petitioner that the Opposite Party No.2 has made construction in violation of the plan approved earlier does not merit consideration, as by order dated 6th October, 2015, this Court directed that in the event of filing of application by the parties, learned Civil Judge (Senior Division), Baripada shall direct the Executive Officer, Baripada Municipality, Baripada to inspect the premises of both the parties by an expert Engineer/Architect to find out and compare the construction made with the approved plan and submit a report to it, by then, the revised plan was in place. This Court also directed that the CMP No. 878 OF 2016 Page 5 of 8 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 23-Aug-2023 18:39:15 // 6 // report shall be accepted by learned trial Court. Thus, the question of providing opportunity to the Petitioner to file an objection to the same does not arise. 7. In view of the fact that the measurement of the property was made as per the direction of this Court, a subsequent application filed by the Petitioner for fresh measurement by deputing another expert by the Executive Officer, Baripada Municipality, Baripada does not survive. Accordingly, the petition was rightly dismissed. He, therefore, submits that the CMP merit no consideration and is liable to be dismissed. 8. Considering the rival contentions of the parties and on perusal of the record, it appears that by the time this Court passed the order on 6th October, 2015 in W.P.(C) No.15024 of 2012, the revised plan was already in existence. This Court while, disposing of the writ petition, directed that in the event of any application filed by the parties, learned Civil Judge (Senior Division), Baripada shall direct the Executive Officer, Baripada Municipality, Baripada to inspect the premises of both the parties by an expert Engineer/Architect to find out and compare the construction made with the approved plan and submit a report to it. It is apparent that no direction was made to the Executive Officer, Baripada Municipality, Baripada to find out as to whether the construction was made as per the approved plan prevailing at the time of passing of the ex-parte ad-interim order of injunction. From the ad interim order of injunction, it also appears that learned trial Court restrained the Defendant No. 2/Opposite Party No. 2 from making any construction beyond CMP No. 878 OF 2016 Page 6 of 8 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 23-Aug-2023 18:39:15 // 7 // the approved plan. Since the plan approved in the year 2011 was subsequently revised in the year, 2012, the Executive Officer, Baripada Municipality, Baripada conducted a field enquiry through an expert Engineer and submitted a report comparing the construction made as per the approved plan valid on that date, i.e., the revised approved plan. 9. This Court while disposing of the W.P.(C) No.15024 of 2012 also directed that “the said report shall be allowed by him”. It necessarily infers that the report, if any, submitted should be accepted by learned trial Court. As such, there was no occasion on the part of the learned trial Court to give any opportunity to the Petitioner to file any objection to the said report. The present application for fresh measurement of land filed by the Petitioner also discloses that he (the Petitioner) accepting the order of this Court made the prayer for measurement of the land as per the approved plan valid on that date. Thus, even if the Petitioner is given an opportunity to file an objection to the report of the Executive Officer, Baripada Municipality, Baripada, he cannot improve upon his case. Since a report has already been submitted by the Executive Officer, Baripada Municipality, Baripada conducting measurement of the land by an expert pursuant to the direction of this Court, question of fresh measurement does not arise at all. 10. In that view of the matter, this Court feels that learned trial Court has committed no error in rejecting such application. CMP No. 878 OF 2016 Page 7 of 8 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 23-Aug-2023 18:39:15 // 8 // 11. Accordingly, the CMP being devoid of any merit stands dismissed. 12. Interim order dated 25th July, 2016 passed in Misc. Case No.876 of 2016 stands vacated. 13. The connected case record shall be returned to the concerned Section immediately. Urgent certified copy of this order be granted on proper application. ms (K.R. Mohapatra) Judge CMP No. 878 OF 2016 Page 8 of 8