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State of Orissa and anr. Vs. Puri Municipality and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 396 of 1983
Judge
Reported inAIR1984Ori132; 57(1984)CLT111
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115; Specific Relief Act, 1963 - Sections 38
AppellantState of Orissa and anr.
RespondentPuri Municipality and ors.
Appellant AdvocateIndrajit Roy, Addl Govt. Adv.
Respondent AdvocateR. Mohanty, ;M. Patra, ;S. Mohanty, ;B.K. Tripathy and ;J. Panda, Advs.
DispositionRevision dismissed
Cases Referred(Fertiliser Corporation Kamgar Union v. Union of India). Chandrachud
Excerpt:
.....proceedings pertaining to the decision relating to such public duty, the failure to perform such public duty would go unchecked and it would promote disrespect for the rule of law. no grievance has been made that the state or the public auth-oritv has violated or has failed to act in accordance with. 1 failed to perform any duty imposed on them by law?.....injunction against the defendants who are the state of orissa, its executive engineer and the puri municipality, restraining them from making any construction on the area marked 'red' in the sketch map appended to the plaint.3. the plaintiffs averred that one of them was an ex-member of the legislative assembly and the rest were freedom-fighters. they brought the action as representatives of the civil community of puri to preserve and protect a piece of government land earmarked for the construction of 'gandhi memorial'. it was alleged that over a part of the land where the proposed memorial was to be raised, the petitioner had commenced construction of an inspection bungalow.4. bapuji breathed his last on 30th january, 1948. his holy ashes were immersed in the bay of bengal at.....
Judgment:
ORDER

R.C. Patnaik, J.

1. This revision arises from an order of temporary injunction granted by the trial court and confirmed in appeal.

2. The plaintiffs-opposite parties 2 to 6 brought a representative action seeking permanent injunction against the defendants who are the State of Orissa, its Executive Engineer and the Puri Municipality, restraining them from making any construction on the area marked 'red' in the sketch map appended to the plaint.

3. The plaintiffs averred that one of them was an ex-member of the Legislative Assembly and the rest were freedom-fighters. They brought the action as representatives of the civil community of Puri to preserve and protect a piece of Government land earmarked for the construction of 'Gandhi Memorial'. It was alleged that over a part of the land where the proposed memorial was to be raised, the petitioner had commenced construction of an inspection bungalow.

4. Bapuji breathed his last on 30th January, 1948. His holy ashes were immersed in the Bay of Bengal at Puri. A committee was formed in 1948 with the obiective of setting up of a fitting memorial of the Mahatma. The Collector, Puri, was entrusted with the project and the Puri Municipality was given the responsibility of putting up the memorial. The plaintiffs alleged that successive Governors had taken keen interest in the completion of the project. On the land where the ceremonies were held, a small platform was constructed in 1954 and over it was placed a small statue of Bapu.

5. On the sea beach at Puri lies an area of 3.990 acres appertaining to plot No. 511. On a small park of it at the south-western extreme, the platform had been raised and statue placed in 1954. The dispute relates to the land abutting the Raj Bhavan road lying in between the circuit house on the east and the State Bank on the west. The plaintiffs have alleged that the extent of this land which is a part of Plot No. 511 is 796 decimals. In 1958, the committee prepared blue prints for construction of prayer hall, reading room, children's park and an appropriate memorial. Casurina trees were planted on a portion of plot No. 511 which came to be known as Gandhi Memorial Park. On 22-11-1962, the committee entrusted the Puri Municipality with the construction of the memorial. The Municipality could not proceed with the project due to want of funds. It moved the Collector for allotment of suitable land commensurate with the project. Revenue Miscellaneous Case No. 22 of 1967 was started for demarcation of the land and the Municipality deposited Rs. 12/-for the purpose. On 25-9-1969, the Collector requested the Secretary to the Revenue Divisional Commissioner, Central Division, Cuttack to recommed allotment of land by Government. He suggested that 3.301 acres out of 3.990 in Plot No. 511 could be granted to the Municipality for construction of the Gandhi prayer hall and reading room. The Municipality requested the Town Planner, Orissa, by letter dated 28-9-1969 to furnish drawings for the meeting hall. It has been admitted that no formal transfer of land has been made as yet. But the committee has been in possession and management of the land. They have alleged that in course of the settlement proceeding, Puri Municipality has been shown to be in possession of the land for the purpose of raising the memorial. In February, 1983, the petitioners started construction of an inspection bungalow. The said construction was in violation of Section 32-A of the Orissa Town Planning and Improvement Trusts Act. 1956, inasmuch as in the Master Plan the land had been earmarked for the Gandhi Memorial. They have alleged that the construction of the inspection bungalow would defile the sanctity of the memorial, a national monument. They had filed an application under Article 226 of the Constitution registered as O. J. C. No. 472 of 1983 for a writ of mandamus restraining the petitioners from proceeding with the construction. When on behalf of the State it was submitted that no construction was proceeding on land which had been recommended by the Collector for settlement, the plaintiffs withdrew the writ application.

6. The petitioners have challenged the locus standi of the plaintiffs to institute the suit and seek injunction. They have contended that the description of the land is vague. Though the Collector had written to the secretary to the R. C. C. for recommending the case to Government for transfer of 3.301 acres of land to Puri Municipality for the purpose of the Gandhi Park, the said proposal has not materialised. It has remained at the stage of proposal and no transfer/grant/allotment of the land has been made by the Government. Without transfer/grant/allotment, the plaintiffs have no legal right howsoever laudable the project might be. They have further averred that the area of the plot is 3.990 acres. Assuming the memorial is to be put up over 3.301 acres. 69 decimals are still available out of the plot and the inspection bungalow is being constructed thereon.

7. The trial court granted temporary injunction. The lower appellate court confirmed it. The lower appellate court held that the Puri Municipality having been entrusted with the responsibility of executing the project which included necessary action for obtaining alienation of the land, it was its primary duty to preserve and protect the land earmarked for the project. As neither the memorial committee nor the Municipality took appropriate action in that behalf, any member of the public or the community interested in the subject-matter was competent to institute an action and seek an order of restraint. It said:

'............it is undeniable a public institution of national importance for which reason any citizen of this country may well be competent. A citizen who is a member of the Puri civil community is more so. Therefore Order 1, Rule 8. C.P.C. clothes them with proper competence and locus standi to institute the suit...............'

So holding, the appellate court observed that want of title in the plaintiffs in the absence of formal alienation of the land had no relevance. As there was a small platform over which stood the statue and ceremonies and functions of certain occasions were being held 'Prima facie either the Municipality of the committee or possibly both as in tended alienees or donees may well b regarded as being in possession'.

The lower appellate court observe that in the absence of positive materia specifying the land which was propose to be alienated, the Master Plan, the municipal site plan prima facie made of a case for the plaintiffs. It also he that Section 32-A prohibited any construction in deviation of the Master Plan unless the same was altered after following the procedure laid down in the said section. It concluded that the plaintiffs had locus standi and the materials on record established that there was a fair question in fact and law to be adjudicated and the balance of convenience was in favour of the plaintiffs and irreparable injuries would be caused to the memorial complex unless injunction was granted.

8. At the hearing, it has been conceded that the alleged Master Plan he not been notified as yet as required by Section 32. Hence, the observation of the lower appellate court that any construction in deviation of the master plan would be hit by Section 32-A of the Tow Planning and Improvement Trusts Act is unsustainable.

9. The learned Additional Government Advocate has strenuously urged that the plaintiffs have no locus standi to institute the suit. The matter in controversy is not justiciable. The setting up of the memorial has always remained at a proposal stage. He has further pointed out that it is the admitted position that the construction of the inspection bungalow has gone up to the level of lintel and irreparable injury would be caused if the petitioners are restrained from making further construction. He has also urged that the courts below fell into an error in drawing adverse inference from the non-production of the sketch map alleged to have been annexed to the letter of the Collector dated 25-9-1969. He has submitted that if the plaintiffs wanted to rely thereon should have called upon the petitioners to produce the same. Adverse inference could only be drawn if the document was available and the petitioners failed to produce the same.

10. Mr. R. Mohanty, the learned counsel for the plaintiffs-opposite parties, has combated the submissions made by the petitioners contending that the courts below having concurrently granted injunction, this Court should not interfere with the orders passed by the courts below in its revisional jurisdiction. He has further submitted that the Gandhi Memorial was a national monument. So, the members of the public have locus standi to bring the action to restrain the State and its servants acting in a manner detrimental to the cause. According to him, the construction of the inspection bungalow at the site earmarked for Gandhi Memorial would cause irreparable injury which cannot be compensated.

11. I am not oblivious of my circumscribed jurisdiction as revisional court under Section 115, Civil P. C. Mere errors of law or of fact do not clothe this Court with jurisdiction to interfere in revision. But where certain assumptions are made which have no foundation in fact or law and the decision proceeds on such assumptions, the adjudication is vitiated and it can rightly be said then that the subordinate court has exercised jurisdiction vested in it illegally or with material irregularity. It appears to me that the courts below have been swayed away by sentiments, when they were to decide on facts and law.

12. There is a piece of land. 3.990 in extent comprised in Plot No. 511 on the sea beach at Puri, a portion whereof is situated to the west of circuit house and another portion being at its back. The land is of the shape of an inverted 'I'. There is no dispute that in February, 1948, the holy ashes of Bapuji were immersed in the ocean at Puri. At that time certain functions and ceremonies were held. In 1954 when Sri Kumarswami Raja was the Governor of the State, a platform was constructed over the land where in 1948 the ceremonies had taken place and a small statue was placed over it. A committee had been formed to set up a memorial to the Father of the Nation. The Committee had a grand project but due to lack of funds and inaction, the project did not make any headway except the planting of Casurina plants over the land lying behind the circuit house compound. The rest of the land comprised in Plot No. 511 remained vacant. In the draft Master plan a part of the plot was shown as the site for Gandhi Memorial. I put emphasis on the expression 'draft' because the Master Plan has not been, published yet under Section 32 of the Act as conceded by both the sides. Hence, the Master Plan is of no relevance. It merely, recorded a proposed project. On 25-9-1969, the Collector, Puri wrote a letter to the Secretary to the Revenue Divisional Commissioner, Central Division, Cuttack, submitting a proposal for transfer of 3.301 acres out of 3,990 acres in Plot No. 511 to the Puri Municipality for the construction of Gandhi prayer hall and reading room. In the said letter, the Collector examined and discussed the suitability of various other contiguous plots and suggested that Plot No. 511 would be most suitable land. Therein he indicated that in the Master Plan, the area had been earmarked for location of the Gandhi park. In the said letter, he set out certain conditions for transfer, one of which was that the Municipality would execute a registered lease deed. He suggested that the recommendation might be made to the Government for transfer of the land. The learned counsel for the plaintiffs-opposite parties relied upon a statement therein to the following effect:

'As construction of the Gandhi Prayer Hall building is proposed to be started on 2-10-1969. I may be permitted to hand over the site to the Executive Officer, Puri Municipality before 2-10-1969 in anticipation of Government approval.'

It is conceded that no Prayer Hall has yet been constructed. No material has been produced to show if the Revenue Divisional Commissioner or Government permitted the Collector to hand over the site to the Executive Officer of the Municipality.

13. In the plaint, it is admitted that the land has not been alienated by the State Government to the Puri Municipality yet The project for the construction of the Reading Hall, the Prayer Hall etc. has remained in the stage of blue print. The Committee which was set UD in 1948 wound up its activities and entrusted the matter to the Puri Municipality. It is not disputed that the land belongs to the State Government.

On these facts ascertained the moot question is, can the plaintiffs be said to have locus standi to institute the suit, either in their individual capacity or as, representatives of the civic community of Puri town, for permanent injunction It has been urged that the action is in the nature of a public interest litigation.

Section 38 of the Specific Relief Act lays down when perpetual injunction may be granted. In order to be entitled to perpetual injunction, the plaintiff must establish apprehended breach of an obligation existing in his favour, whether expressly or by implication. He must establish the right before he gets the injunction 'to prevent recurrence of its violation' and the court has no jurisdiction to grant an injunction ''to restrain an act which inflicts no legal wrong on the plaintiff'. It has been observed by the Privy Council in (1905) 32 Ind App 185 (Tituram v. Cohen):

'The right to an injunction depends in India upon the statute and is governed by the provisions of the Specific Relief Act.'

The right of the plaintiff may be one conferred by statute or by contract. The right in him gives rise to corresponding obligations in another, be he a private person or a public functionary.

14. The plaintiffs, however, have sought to import the wider principles applicable to writ applications under Articles 32 and 226 of the Constitution. A brilliant exposition of the law relating to locus standi of the petitioner in an application under Article 32 or Article 226 of the Constitution is to be found in the judgment of Bhagwati, J. in the Judges' Transfer case (AIR 1982 SC 149). His Lordship observes :

'The traditional rule in regard to focus standi is that judicial redress is available only to a person who has suffered a legal injury by reason of violation of his legal right or legally protected interest by the impugned action of the State or a public authority or any other person or who is likely to suffer a legal injury by reason of threatened violation of his legal right or legally protected interest by any such action.'

His Lordship observes that the traditional rule in regard to locus standi postulated a right duty pattern which is commonly to be found in private law litigation. But the courts have evolved exceptions, namely : the right of a rate payer of a local authority to challenge illegal action of the local authority persons entitled to participate in the decision making process culminating in the impugned decision of granting a license would have locus standi to maintain an action challenging the impugned decision: where the statute itself confers locus standi though no legal right or legally protected interest has been violated, where a person who has suffered a legal wrong or illegal injury is unable to approach a court on account of some disability, another on his behalf can seek judicial redress to the person wronged or injured; a member of the public can move the court for enforcement of the constitutional and legal rights of persons in socially or economically disadvantaged position. Where the State or a Public Authority acts 'in violation of a constitutional or statutory obligation or fails to carry out such obligation resulting in injury to public interest, or what may conveniently be termed as public injury as distinguished from private injury' any member of the public acting bona fide and having sufficient interest can maintain an action for redress of such public wrong or public injury. In such a case, his Lordship states:--

'........ .it is one of the characteristics of public injury that the act or acts complained of cannot necessarily be shown to affect the rights of determinate or identifiable class or group of persons: Public injury as an injury to an indeterminate class of persons. In these cases the duty which is breached giving rise to the injury is owed by the State or a Public Authority not to any specific or determinate class or group of persons, hut to the general public. In other words, the duty is one which is not correlative to any individual rights. Now if breach of such public duty were allowed to go unredressed because there is no one who has received a specific legal injury or who was entitled to participate in the proceedings pertaining to the decision relating to such public duty, the failure to perform such public duty would go unchecked and it would promote disrespect for the rule of law.'

If public duties are to be enforced and social, collective diffused rights and interests are to be protected, we have to utilise the initiative and zeal of public-minded persons and organisations by allowing them to move the court and act for a general group interest, even though, they may not be directly injured in their own rights. Such redressal is by way of public interest litigation, i.e., litigation undertaken for redressal of public injury, enforcing public duty, protecting social, collective diffused rights and interests of vindicating public interest any citizen who is acting 'bona fide and who has sufficient interest has to be accorded standing. His Lordship, however, administered a caution.

It is always necessary for the court to bear in mind that there is a vital distinction between locus standi and justiciability and it is not every default on the part of the State or public authority that is justiciable. The court must take care that it does not over-step the limits and trespass into the areas which are reserved to the Executive and the legislature by the Constitution.

15. Counsel for the parties cited a large number of authorities most of which have been reviewed in the Judges Transfer case. Nevertheless I may refer to some: AIR 1974 SC 2177 (K. Ramdas Shenoy v. Chief Officer Town Municipal Council). It was a case by the rate payer questioning the action of the Municipality in granting a cinema license. AIR 1976 SC 578 (Jasbhai Motibhai Desai v. Roshan Kumar Haji Bashir Ahmed). The statute conferred locus standi though no legal right or legally protected interest had been violated. In AIR 1981 SC 344 (Fertiliser Corporation Kamgar Union v. Union of India). Chandrachud, C. J. observed (para 23) :--

'The question whether a person has the locus to file a proceeding depends mostly and often on whether he possesses a legal right and that right is violated. But, in an appropriate case, it may become necessary in the changing awareness of legal rights and social obligations to take a broader view of the question of locus to initiate a proceeding, be it under Article 226 or under Article 32 of the Constitution.'

16. The plaintiffs have not alleged violation of any legal right or legally protected interest, nor have they alleged any infringement of any provision of the Constitution or of any law by the State or public authority. No public injury or public wrong understood in law has been alleged. nO grievance has been made that the State or the Public Auth-oritv has violated or has failed to act in accordance with. the provisions of any statute.

17. The gist of the plaintiffs' case is that the land which was proposed to be utilised for putting up of a memorial and had been so earmarked has not been so utilised. Neither the State Government nor the Municipality has taken any steps to utilise the land for raising the memorial and on the contrary on a part of the land in violation of the project the inspection bungalow is being constructed.

18. Have the plaintiffs by such allegations been able to establish any legal right or legally protected interest in them or members of the community? Can it be said that by construction of the inspection bungalow, the petitioners are causing public injury or committing a public wrong? Have the petitioners violated the provisions of any law or infringed the constitutional and legal right of another? Have the members of the public any right to enforce alienation of the land by the petitioners to the Municipality? Has either the Municipality or the petitioner No. 1 failed to perform any duty imposed on them by law?

The Gandhi memorial project in so far as it related to transfer of the land by the State Government to the Municipality and construction of the Reading Room. Prayer Hall etc. over the land remained in a proposal stage. No right had accrued to either any individual or members of the public. The suggestion of the Collector to the R. D. C. has not been shown to have been acted upon. It is the admitted case that the land has not been transferred as yet. The ownership continues in the State. The project has continued in blue print. I am of opinion that even the broader view of locus standi as enunciated in Judges' Transfer case does not help the plaintiffs. Their case is much worse under Section 38 of the Specific Relief Act. They have not been able to satisfy that the petitioners owed any obligation either to the plaintiffs or to the members of the public at large apprehension of breach whereof entitles the plaintiffs to a permanent injunction. The rights of the plaintiffs are still inchoate and have not matured into legal rights. I hold that the default of the State or the Municipality is not justiciable. It has been submitted that as the committee had been entrusted with the responsibility of obtaining an assignment from the Government and completing the project, the State Government and the Municipality owed an obligation to the members of the public. The submission is misconceived. The obligation contemplated in Section 38 of the Specific Relief Act is legal obligation. The State Government was under no obligation to assign the land and the Municipality committed no breach of the obligation in not securing the assignment.

19. The balance of convenience lies with the petitioners. The bungalow has been constructed up to the level of lintel. Cost of materials are escalating. This aspect has been lost sight of by the courts below. In conclusion, I hold that the courts below proceeded on conjectures and surmises assumed non-existent hypotheses and misdirected themselves by applying the broader principles applicable to a writ petition, to a suit under Section 38 of the Specific Relief Act thereby exercised the jurisdiction vested in them with material irregularity.

20. In course of the hearing the counsel for the petitioners filed a petition and an affidavit seeking permission to bring on record by way of additional evidence the fact that the national committee for Gandhi Centenary was wound up in 1970. The said aspect has no relevance. In the affidavit it was stated that the draft master plan for Puri published in the year 1968 had not been finalised. The affidavit loses its significance in view of the concession referred to earlier.

21. In the result, I vacate the order passed by the courts below, dismiss the application filed by the plaintiffs for temporary injunction and allow this revision. There would be no order as to costs.

22. I should however observe that my observations in this revision are tentative and are for the purpose of the disposal of the interlocutory matter. The trial court shall be free to reach its own conclusions on materials that would be placed before it without being in any way influenced by the observations contained herein. The suit should be disposed of as expeditiously as possible.


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