NABA DIGANTA EDUCATIONAL TRUST Vs. MANAGING DIRECTOR IDCO

JUDGEMENT

(1.) THOUGH this matter was listed for further orders on Misc. Case No. 225 of 2004 filed by the appellant petitioner for an interim order of injunction, with consent of parties, the same is taken up for final disposal.

(2.) HEARD Mr. Mohapatra, learned counsel for the appellant and Mr. Mukherjee, learned Senior Counsel on behalf of the respondents. The respondents have entered appearance by filing a caveat petition.

(3.) THE appellant plaintiff's case is that M/s. Konark Cement and Asbestos Ltd. was allotted a land measuring Ac. 20.20 decimals in revenue plot No. 69 appertaining to Khata No. 612 in mouza Chandrasekharpur in Chandaka Industrial Estate, Bhubaneswar in the year 1981 followed by delivery of possession. Subsequently, the IDCO executed a lease deed for an area of Ac. 17.15 decimals out of the said land allotted to the said Company. It is further contended that the appellant is an Educational Trust established by the said Company and after allotment of the land as aforesaid, the infrastructure consisting of pucca buildings have been raised over the land, leased out by the IDCO. The appellant claims in the plaint that over and above the lease hold property in its possession the adjacent plot measuring more than Ac.3.00 acres is being used as a play ground for the Institution running over the lease hold property. The allegation made is that the IDCO attempted to demolish the boundary wall constructed around the play ground over which the appellant Institution is in possession for which the appellant was compelled to file the suit. Along with the plaint an application under Order 39, Rules 1 and 2, C.P.C. was filed by the appellant which was registered as I.A. No. 185 of 2004 wherein it was prayed that the respondents should be injuncted from interfering with the peaceful possession of the plaintiff appellant over the disputed property measuring Ac. 3.05 decimals marked as Plot No. 3. The appellant has filed this appeal against the order rejecting the prayer for interim injunction during the pendency of the suit. Misc. Case No. 225 of 2004 has been filed by the appellant in this appeal praying for a similar order for injunction during pendency of the appeal. The respondents have filed a counter affidavit to the said Misc.Case, inter alia, stating that the suit property was never leased out nor allotted to the appellant and IDCO has already allotted a portion of the said plot No. 3 to the National Council Cement and Building Material vide allotment order dated 21.2.2004. Subsequently, the appellant by letter dated 17.3.2004 requested the IDCO to allot plot No. 3 in their favour and enclosed a draft for Rs. 5,000/ . The request of the appellant for allotment of plot No. 3 was turned down by the IDCO on the ground that the balance part of plot No. 3 has been allotted by way of public auction as per the decision of the Board and as such, the same cannot be given to the appellant and the draft for Rs. 5000/ was returned to the appellant. It is further stated in the counter that the appellant is a rank trespasser over plot No. 3 and when the appellant trespassed into the said plot and started construction of the boundary wall, the respondents went to pull down the construction raised by the petitioner for which the petitioner by making false averments and misrepresentation obtained a restraint order from the Executive Magistrate, Bhubaneswar against the respondents.