The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.9115 of 2018 Ahalya Biswal and Another Petitioners Mr. G.C. Swain, Advocate …. -Versus- Commissioner, Cuttack Municipal Corporation, Cuttack and Others …. Opposite parties
Legal Reasoning
Mr. P.K. Rout, AGA Mr. S.K. Nayak, Advocate for CMC Mr. Bhaskar Chandra Panda,Advocate for OP Nos.2 to 7 CORAM: MR. JUSTICE R.K. PATTANAIK
Decision
ORDER 28.02.2024 Order No. 09. 1. Heard Mr. Swain, learned counsel for the petitioners and Mr. Nayak, learned counsel for CMC opposite party No.1and learned counsel for opposite party Nos.2 to 7. 2. Instant writ petition is filed by the petitioners for a direction to opposite party No.1 to take immediate steps to remove the illegal encroachment/obstruction from over the schedule land, a public road, considering the representation as at Annexure-2 series on the grounds stated therein. 3. Mr. Swain, learned counsel for the petitioners alleges encroachment by the private opposite parties in respect of the public road. It is further submitted that the grievance under Annexure-2 series is pending consideration of opposite party No.1 till date. The contention is that the schedule land is used as a road which has since been last 30 years and the same stands vindicated looking atthe affidavit of opposite party No.1. Mr. Swain would submit that the affidavit dated 31st January, 2024 of opposite party No.1 revealed Page 1 of 4 encroachment of the plots in question by the private opposite parties, hence, therefore, the same is required to be removed at the earliest. 4. Mr. Nayak, learned counsel for opposite party No.1 referring to the affidavit filed submits that an enquiry was held and the same revealed the alleged obstruction of the road with construction of a boundary wall and due to such encroachment, the persons who are residing nearby including petitioner No.1 are facing problems to access their residential houses. It is further submitted that such enquiry revealed petitioner No.2 also found to have been affected due to obstruction to approach the main road through plot No.442 and while claiming so, placed reliance on a sketch map and report of the local R.I dated 12th October, 2023 annexed to the affidavit. 5. The submission of learned counsel for opposite party Nos.2 to 7 is recorded which is to the effect that the dispute is private in nature and there has been no evidence to show that Municipality constructed the road and claiming so, deposition of a witness examined as PW 1 in CS No.67 of 2013 besides an enquiry report of a Pleader Commissioner received in connection with a proceeding in Criminal Misc. Case No.457 of 2014 of the file the court of learned A.D.C.P.-cum-Executive Magistrate, Cuttack are referred to. 6. An enquiry as it appears has been independently held by opposite party No.1 supported by the report. As per the sketch map appended to the same, it is made to understand that there has been obstruction over the alleged plots and hence, affecting the access of the petitioners and others of the locality. In course of hearing, it is also brought to the notice of the Court that a suit in C.S No. 67 of 2013 is pending before the Court of the Civil Judge (Junior Division), Page 2 of 4 1st Court Cuttack, wherein, opposite No.1 is a co-defendant. In C.S. No.3 of 2012, CMC is a not partybut some of the private opposite parties were plaintiffs stood disposed of vide Annexure-A/1 of the counter affidavit filed by opposite party Nos. 2 to 7. It is revealed from Annexure-A/3 that opposite party No.1 was one of the defendants but the suit at the instance of the vendors of the petitioners, wherein, the private opposite parties intervened as defendant Nos. 4 to 11 was disposed of as being withdrawn by order dated 12th April, 2014 referring to which it is alleged that the road is not a public road. Notwithstanding the aforesaid developments inter se the parties involved and since in the meantime, an enquiry was held by opposite party No.1 which primafacie revealed obstruction of a passage claimed to have acquired character of a public road though it was not held in the immediate presence of the both sides, recording the submissions of learned counsels for respective parties, the Court is of the humble view that t the matter should be examined threadbaretaking note of the rival contention vis-à-vis nature of litigation whether it relates to a public road or otherwise being a private dispute with a decision thereon and thereafter, subject to the outcome such enquiry, if necessary, to hold a demarcation of all the plots completing the above exercise within reasonable period so as to resolve the dispute once for all. 7. Hence, it is ordered. 8. In the result, the writ petition stands disposed of with a direction to the parties to appear before opposite party No.1 on 7th March, 2024 and on such appearance, the matter shall be freshly examined considering all the claims and in case, the dispute is found not to be private but relates a public passage, if required, followed by a demarcation in respect of the plots involved in order to reaffirm Page 3 of 4 the alleged obstruction so revealed vide Annexure-A/1 of the affidavit dated 31st January, 2024 and thereafter, to take a decision and decide future course of action. It is further directed that in the event, any such demarcation is held in the immediate presence of the parties and the same revealed obstruction/encroachment of the private plots and also the public road, appropriate action shall be initiated to remove the same with an exercise duly accomplished at the earliest preferably within a period of eight weeks from date of hearing on 7th March, 2024. 9. Urgent copy of this order be issued as per rules. 10. A copy of the order be handed over to Mr. Nayak, learned counsel for opposite party No.1 for its onward intimation for reference and compliance. (R.K.Pattanaik) Judge Rojina Signature Not Verified Digitally Signed Signed by: ROJINA SAHOO Designation: Junior Stenographer Reason: Authentication Location: OHC, CTC Date: 01-Mar-2024 19:43:25 Page 4 of 4