o ''.s'^^"^^ ss ^*' ^^5'A^I.X ^^>S^^' .SSa'1*'^''*'- IN THE HIGH COURT OF CHHATTISGARH ATBILASPUR WRIT PETITION (C) No. ^fi (0 Of 2007 PETITIQNER PLAINTIFF ^ Smt. Dhanni Bai W/o Shri Maadan Lal Jain, aged about 41 years, resident of Gandhi Chowk, Near Rajabada. Chowk, Nagari, District Dhaintari (CG). •*? VERSUS RESPONDENTS DEFENDANTS > ^-:- "^*'/k ^••; ~> ^•^^^^^- ^" ' ' ^'°7:'**' .r° A-^ i^ ..rf" iSfSBs^ ICV^G co^ ^^ c^w 'v T' Sampat Lal Chhajed S/o Late Shri Manak Lal Chheged aged about 60 years, President, Navanand Kalainandir Nagan, resident of Block Colony Nagari, District Dhamtari (CG). 2. Suresh Sacheti S/o Late Sugarunal Sacheti, aged about 44 years, Vice President , Nav Anand Kala Mandir Nagan, resident of Nagari District Dhamtan (CG). 3. Lalit Prasad Shanna S/o Bala Prasad Shanna, aged 40 years, Treasru-er, Nav Anand Kala Mandir Nagari, resident of Nagari, District Dhamtari (CG). 4. Yashwant Patel S/o Bihan Prasad Patel, aged about 55 years, raeniber Nav Anand Kalamaridir, resident of Nagari Dista-ict Dhamtari (CG). 5. Shri Dhiraji Ram. Sahu S/o not known, aged about 65 years, President of VUlage Management Samiti, Nagari, resident of Nagari, (Purani Basti) District Dhamtari (CG). 6. Shri Diileshwar Suigh Gaur S/o Shri Than Singh Gaur, Secretary, Nav Anaad Kalainandir Nagari, aged about 62 years, resident of Nagari, Purani Basti Nagari , District Dhamtari (CGj. State of Chhattisgarh, through the CoUector, Dhamtan, District Dhamtari (CG). f WRIT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA ^y t HIGH^OUKr OFCHHATTISQARH AT BSLASPUR Petitionei Smt. Dhanni Bai :s Shri Amrito Das, coureel forthe petitioner. Shri D.N. Prajapafi counsef forthe respondents Shri Susheel Dubey, Govt. Advocate with Ms. Lawyer for respondent No.T/State. 1to6. taMishra, P Writ Petition under ArtiGte 227 ofthe Constitution of India. ^ -fc-^ The plaintjffs applicatton under Order 39 Ruie 1 & 2 seekin^ temporary injunction, restraining the defendants from raisim construction of the temple on the Govemment land bearing Khasra No. 1207 area 0.75 decimal has been rejected by both the Courts below after holding that the plaintiff does not has a prima facie case or balance of convenience or irreparabte lossin her favour. (2) Ordinarily, this Court, in exereise of fts power under Article 227 of the Constitutton of Intfia, would have refused to inferfere wfth the concurrent find'ings arrived at by the Cnirts below. However, in the teeth of interim order passed by Hon'ble Supreme Court in SLP Ci\nl No.8519/2006, the prayer made by She petitioner in this petition needs serious consideration. The order passed by the Hon'ble Suprerrie "This Cou/fon29(h consirferaffon the letter 2009 f9ff? afier taMng MQ -> (^ '\ -3t sent by the Umon Home Secretary to the leamed Solkatof General of ln<ffa, wepassed the following order: "We have heard the leamecl counsel forthe partfes. Loolving to the far-reaching implicatsons and consequences of fhe ordeis of this Court, on tte oral request of the leamed Solicitor General of India, we deem it appropriate to implead all the States and the Union Twntories as respondents to tt/s peStfon. The Registry is a&iecfecf to issue notfces fo all the States and the Unton Temtmies vwithin three days. The Union of fndia is dsrected to suppty the enffre set of papers to allthe Standing Counse/ appearing for ihe State Govemments and the Union Territories. ^ Tfte Ststes and the Union Temtories may tHe replies wiffih four weeksand the Union oflndia fe granted liberty to fsle rsjoinder within two weeks thereafter. As an interim measure, we (Srect that hencefotth no wautlmnzed construcSon shal! be camed out or permitted in the name of Temple, Chwch, Mosque or Gwudwara etc. on publlc streets, public psries or offterpuWfe p/aces efc. in respect of the unairthonzed constrvction of religsous nature which has afready taken place, the State Govemments and the Union Tenitories shali review thesame on case to case basis and take appfopiiate steps as expeditiously as possible. In order to ensure com^iance of our dfrecfions, we direct all the District Collectors and Magistrates^)eputy Coinmissioners m charge of the QisArcte to enswe thst there is tofal compliance of the order passed by us. They are directed to sutitnt a report within four weeks to the concemed ChiefSecretaries ofthe Admmistrators of the Union TerfHories who m tum wlll senrf a report Ust this mafter for further dirscSons on 7 Afl the States and the Union Territones have been servecf. Desfste serwce, most ofthe Sfates and UnioR Terfitoiies have not Sed afSdavits as cSrected by this Court. (n the interest of jiistice, we grant one more opportunityto the Chief Secret^ries/Admimstrators ofihe respective States and Union Tenitones to fffe affidavits. Let the same ba filed within six weeks faifing whichthe IF concemed Chief Secretaries and Admmistrstors shal! remain present m Court on the next date ofhearing. c. e In case tfte Chref Secreteries snd ths Admmsfrators have not fesued circulars to afl ffte Co/fectors and fhe district Magistrates of ths Districts, it shall be issued within two weeks from today. The Chief Secretaries, in consultation wsth the respecSve Govemments ars directed to frame the policy in respect of existing unauthonzed constnicffon of {•elfgioiis nature, which had already taken place. Th'is Court cfffected the respondents te reyisw the same on case ta case Assfe. Let the policies be fbmiulated by all • ffte States and the URion terntones w m fo'jr weeks from today. We -are reSerating that the Chief Secretaries, the comerned District Magistrates and the ColfectefS/Deputy Comm»ss"oners in-chaFge of (fte Distficts must ensure total compliance of our order. Any breach in thfe respect shall be viewed seriousty by this Courf. We dvect the Chief Secwtanes/Administrators of allthe States and Unipn temtories to orcyfete copres of e order dated 29itl Se^ember, 2009 and this orderto all the Districi Magistrates and Coilectors/Deputy Commisaoners, other public bodies and local bodies. We direci the feamed Stendmg comselappearing for various States and the Union Temtories to enswe that all cf>p!es'ofthea d8vits are fited in this Court on or before 271 January, 2010 wifh an advance copy to the leamed Sol'citor General of fndia, who is requested to get all these affidavits tabulated and submit .a report to tSvs Court on orbefore y^ Febnsasy, 2010. PSaca thss petSlon for furthsr dfrectlons on ^1 February, 2010. Loolvng to the grawty of thismatter, we cSrect thst no order or <Srection inconsistent to ow orafe/s, shall be passed &y any ofher Court in the country." (3) The plainttff heresn preferred a suit on the pleading that she owns a house and four shops in asra No.1220 area 2800 square feet at Gandhi Chowk, Near Rajabada Chowk, Nagari, District Dhamtars. On the northem side of her land, there is a piece of Govemment lans hearing Khasra No.1207 area 0.75 decima'i whfch is entered in the 'name of Govemment of Chhattisgarh in the revenue •ScSS^SS'sws^SSaf c (^ pla'mtiTfs cause of action for filing the present su'rt arose when the raising construction of a temple on this piece of Govemment Land which is the suit land. Though the plaintiff claims easementary right and on that plea the suit for declaration w perfection of easementary rightand permanent injupction has bsen preferred, but yet, the surtland is recorded in the name of Govemment in the revenue records. This fact has been found to be uncontroverted or rather an recorded by the trial Court in para 9 of the order The first appellate Court has ateo recorded in pars 2 of its order dated 16.04.2007 that it is not disputed that the suit land Ifl betow have completely ignored the fact that no one has the right to construct on Govemment land and that to protect the interest of the petitioner and her easementary right, the Courts beiow shouid ha directed th®defendants to maintain status-quo during the pendency of (5) Learned counsel for respondents No. 1 to 6, on the other hs sed by. the Courts below on the strengtt judgments <> Court). AIR 1992 Delhi 187. 1897 <1) SCC 550. and 2< 742 and has vehemently argued that the present is not a frt case for irrterference, when both the pet'rtioner It not have a prima Tacie case or batence o1 convenience or irreparable loss in her favour. He ateo submits that the ^i^ ~~^a!tKSr!ss'/ -5 ' suft is not maintainabte and that necessary pteading to prove perfection of easementary rght is not available in the plaint. He ateo submits that no construction is made on the land belonging to the plaintiff, therefore, present is not a case where the defendants should be injuncted from e (6) Shri Susheei Dubey, leamed Government Advocate appearing for respondent No.T/State of Chhattisgarh has argued that the suit land belongs to the State Government and that the Stete Govemment is bound to comply with the order passed by the Hon'bte Supreme Court. '^ (7) ; The sutt was filed in the year M07 and both the orders by the trial Court-as well as by the first appellate Court were passed in the morth of April 2007. Hcwvever, when the matter is taken up for final order passed by the Mon'ble Supreme Court (supra) is operative and has 'rts binding effect on this Court. .(8) !n view of the order passed by the Hon'bte Supreme Court, this the present is a frt case tor interference under Artieie 227 of the Constitution of India. The writ petftion is therefore, allowed. order dated 04.04.2007 in Civil Case No. 3-A/201 A/207 passed by the trial Court Court on 16.( No.04/07 set aside. ts No: 1 to 6 are restrained from raising any cQnstruction on o.1207 situated at Gandhi Chowk, Near Rajabada Chowk, Distrid Dhamtari during the pendency of the suit. ^jS^^ ^A"<% % -si. "a^ <P.J •-»»-;• .--aSSi -6- (9) Parties to bear the'sr own costs. Biri Sd//- Prashant Kumar Mishra Judge '\ i^s