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Judgment
Mr. Jena, learned advocate appears on behalf of petitioners and submits, the land stood recorded in name of the deity in year 1929. Subsequently opposite party no.3 managed to get his name recorded. He proceeded to construct house and by virtue of impugned order dated 24th May, 2022, has got sanction to reside there. He submits, there be interference to set aside impugned order for restoring orders of status quo dated 18th June, 2021 and 6th August, 2021.
Mr. Mohanty, learned advocate appears on behalf of opposite party no.3 and submits, construction was completed year 2020. His client has been residing in the house on the plot. Mr. Jena disputes the submission regarding construction having been completed as well as possession by residence.
Mr. Sharma, learned advocate, Additional Government Advocate appears on behalf of State and Ms. Naidu, learned advocate, for the Commissioner.
We reproduce below passages from impugned order.
“In the petition it is contended by the petitioner that the deity institution Sri Jambeswar Mohadev bije at Jamara in the district of Kendrapara is a public temple and the schedule land belong to the deity and that the OP Niranjan Barik is in unauthorized occupation of the schedule land and now intend to construct pucca house there over and for such purpose he has collected building materials near the schedule land and unless he is temporarily restrained the institution will sustain irreparable loss. The prayer is supported with the affidavit of the Petitioner Narendra Kumar Mohanty.
xxx xxx xxx It is his specific case that, he is residing over the case land by constructing his own house since long and recently he has only plastered the outside walls of the house till status quo order is passed by this Court. xxx xxx xxx
xxx xxx xxx Law is well settled that while considering an interlocutory prayer, the Court should not give any finding which will practically decide the dispute in question finally or relief prayed for in the original proceeding. In the present case, as it appears that the schedule land was recorded in the name of the deity in the 1929 Settlement ROR and the same is now recorded in the name of the OP. xxx xxx xxx”
(emphasis supplied)
By impugned order, the Commissioner correctly said that while considering an interlocutory prayer, the Court should not give any finding which will practically decide dispute in question finally or relief prayed for in the original proceeding. It is clear from impugned order itself that petitioners were resisting changing nature and character of the plot by construction while opposite party no.3 asserted construction was complete and he was residing there. In such a situation, the Commissioner said as will appear from the passage reproduce below.
“xxx xxx xxx As already pointed out, the Schedule land is of Gharabari kisam whereas bijesthali of the deity is in another plot. In the view of the situation, it would perhaps be just and proper to direct the OP to maintain status quo in respect of further construction over the schedule land till disposal of the present proceeding.
However, he is at liberty to use the schedule land for residential purpose and not to deal with same in any other manner changing its nature and character or to transfer the ownership thereof. xxx xxx xxx”
(emphasis supplied)
It appears from impugned order that the Commissioner found in favour of claim made by opposite party no.3 that he is residing in the plot. This ought not have been decided in the manner done. As such there is illegality and material irregularity in the order, requiring it to be and it is set aside and quashed. Orders dated 18th June and 6th August, 2021 are restored. The interlocutory application is also restored to the Commissioner, to be dealt with on remand.
Parties are to communicate this order to the Commissioner for expeditious hearing and disposal of the section 25 application on remand.
The writ petition is disposed of.
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