RAJKISHORE PRASAD Vs. STATE OF ORISSA

JUDGEMENT

(1.) Plaintiffs are petitioners against an order rejecting their petition filed under Order 11, Rule 12 of the Civil P. C. Plaintiffs filed a suit for permanent injunction restraining the defendants from interfering with their possession and not to come over their land or change the status quo thereof. The dispute relates to a portion of a plot belonging to the Jagannath Road Fund Trust. It is contended by the plaintiffs in the plaint that their father was a lessee in respect of the property in question and had erected a house thereon. After expiry of the lease period, at the instance of the Jagannath Road Fund, demand was made for depositing money for renewal of the lease and money was accordingly deposited. Though the formal lease deed has not yet been executed, the plaintiffs have been in possession of the land with the present structures standing thereon. During the period of Emergency, all of a sudden some officers of the State Government and of the Municipality along with a a police force came with heavy machineries on 30-6-1975 and without any prior notice they demolished the permanent construction standing on the land of the plaintiffs in spite of protest and the occupants were threatened to be detained under the Maintenance of Internal Security Act and the Defence of India Rules. It has been averred in para 10 of the plaint that similar other constructions in the locality were also pulled down by bulldozers and other heavy machineries creating a panic in the minds of the public, in particular the inhabitants of the locality, so much so that none ventured to seek redress against such demolition. The demolition work was carried on rapidly and promptly and there was hardly any time for the public to seek redress against demolition. After demolition was complete in the locality, several writ applications were filed in the High Court challenging the action of the authorities. Plaintiff No. 1 also filed O. J. C. No. 1528 of 1975 in the High Court apprehending further demolition and order of injunction was issued' by the High Court restraining the authorities from carrying on further demolition or interfering with the peaceful possession of the plaintiffs. In the counter-affidavits to the writ application, a false plea was taken that the demolition was made under the provisions of the Orissa Prevention of Land Encroachment Act, but as a matter of fact no proceeding was started against the plaintiffs and in fact records were manufactured, fabricated and forged to cover-up the high-handed actions. It is alleged that all the manipulations and fabrications of papers were done for such demolition. The plaintiffs are in possession of the property in question and there is further threatening for their dispossession and, as such, the present suit has been filed. A sketch-map has been appended to the plaint to show the residential area of the plaintiffs and the land for which the suit has been filed. In para 14 of the written statement of the State Government, it has been averred that Encroachment case under the Orissa Prevention of Land Encroachment Act was filed against the plaintiffs and personal contact and proclamation through loudspeaker were made before actual eviction, proceedings were started against the plaintiffs and orders we're passed in accordance with law with the knowledge of the plaintiffs. In para 15, it is only stated that the allegations in paras 9, 10 and 11 of the plaint are not admitted and the plaintiffs are put to strict proof of the same. A petition for ad interim injunction was filed by the plaintiffs and the pre-sent matter arises out of that injunction matter which has been registered as Misc. Case No. 28 of 1978.

(2.) In that proceeding, it appears from Order No. 17 dated 28-4-78 of the court below that the plaintiffs wanted to cross-examine the persons who have sworn affidavits on behalf of opposite parties Nos. 5 and 6. Counsel for opposite party No. 6 agreed to file the documents in his possession on which the affidavits are based. The trial court rejected the petition of the plaintiffs for cross- examination of the deponents, but passed orders that in the interest of justice and for a just decision of the case, the parties should produce all the documents on which they rely. The case was posted to 1-5-78 and the parties were directed to file documents on which they relied for the case. On 1-5-78, a petition was filed by the plaintiffs to the effect that opposite party No. 5 submitted at the time of argument on 28-4-78 that it has no document in its possession. Opposite party No. 6 agreed to file documents. It is further contended by the petitioners that the allegations by the opposite parties that the plaintiffs have been dispossessed and possession has been delivered by the Jagannath Road Fund to the Greater Cuttack Improvement Trust on 14-10-77, are false and if any document of such delivery is there, such document has been manipulated and created. The provisions of the Orissa Prevention of Land Encroachment Act are not applicable to the case and it is necessary that opposite parties 1 to 3 should be directed to produce all the records of the alleged proceeding taken under the Orissa Prevention of Land, Encroachment Act in respect of the disputed land as well as other lands of the Jagannath Road Fund situated in the locality on which structures were demolished on the same day. The prayer in the petition was that the opposite parties be directed to produce all the records of the alleged proceeding taken under the Orissa Prevention of Land Encroachment Act in respect of the disputed land as well as other lands of the Jagannath Road Fund situated in the locality, demolition of structures over which was, done on the same day from order No. 19 dated 3-578 of the court below, it appears that the Government Pleader submitted that the documents were filed in High Court in the writ petition and he would file the same on the following day. Accordingly, the case was adjourned to the following day and it was ordered by the court that if the documents would not be filed, then necessary inference would be drawn according to law and the Misc. Case would be disposed of on merits. On 4-5-78, the plaintiffs filed Hazira of witnesses and wanted to examine them, but the court rejected the prayer and ordered that enquiry of this petition being of a summary nature, there was no question of examination of witnesses and parties were directed to file affidavits in support of their case. Affidavits were accordingly filed by the respective parties. On 17-8-78, a petition was filed by the plaintiffs that on 4-5-78 the Government Pleader produced certain documents without indicating as to which of the opposite party was producing the same. It has been urged in the plaint that not only the house of the plaintiffs but also that of twenty-five others were demolished on the same day in that locality and papers have been manufactured for showing Land Encroachment Cases and service of notices on all persons whose houses have been demolished on that very day. The prayer in the petition was to direct the opposite parties to make discovery of particulars, i. e. number of the cases started under the Orissa Prevention of Land Encroachment Act in respect of the Jagannath Road Fund lands situated in mouza Badajobra on which demolition of structures was effected on 20-6-75; records relating to service of notices; dates of hearing and dates of final orders etc. This petition was rejected by the trial court on the ground that the enquiry was of a summary nature as the question for determination was whether the petitioners have got a prima facie case or otherwise and the scope of enquiry being limited, there was no question to see how many cases under the Land Encroachment Act were instituted by Government against the people of the said locality and what orders were passed in those cases and, as such, the discovery sought for was not in conformity with the question for determination in the case. It was further held that discovery of the aforesaid documents was not necessary for a fair disposal of the petition. As against this order, the present revision has been filed.

(3.) It is contended by the learned counsel for the petitioners that it has been consistently averred by the petitioners that on one day several houses were demolished by heavy machineries, as a result of high-handed action of the authorities, who are opposite parties, and in the writ petition it was contended that Land Encroachment cases have been filed and in pursuance of the orders in those cases, demolitions were made to evict the occupants. In one petition, as has been stated above, the petitioners have asserted that twentyfive other houses were also demolished on that day in the locality, standing on the Jagannath Road Fund lands. It is asserted by the petitioners that if there is any such document of Land Encroachment cases, then the same has been manufactured. The learned counsel for the opposite parties contends that the records of the Land Encroachment cases relating to the petitioners have been produced in Court and the records in respect of other structures are not relevant for the purpose of the suit and, as such, those are not necessary for production.