ORDER
P.K. Tripathy, J.
1. Plaintiff in Title Suit No. 68 of 2000 is the petitioner as against the order of temporary injunction refused in his favour by learned Civil Judge (Jr. Division), Salipur in Misc. Case No. 114 of 2000 and the confirming order passed on 23-7-2002 by the Fast Track Court No. 2, Cuttack in Misc. Appeal No. 36 of 2001.
2. The simple case of the plaintiff is that on 12-7-1982 he executed a gift-deed in favour of the Block Development Officer, Salipur gifting away Ac. 0.06 decimals of land from plot No. 553 of Khata No. 153 and Chaka No. 8 situated in Mouza Dhanuapada measuring total area of Ac. 0.279 decimals. He gifted that property in public interest to facilitate the Government to construct a road to connect the village road with the public road. Defendant No. 4 is the Contractor to execute the work and the State Government officers, i.e., Collector, B.D.O. and Tahasildar are the defendant Nos. 1 to 3. Grievance of the plaintiff is that notwithstanding his generosity in donating a specific patch of land for the purpose of construction of the link road. Government has approved a plan for construction of the road by utilising another patch of Ac. 0.06 decimals of land of the plaintiff from the same plot by abandoning the gifted area. He has claimed that Government has no right, title or authority to forcibly construct a road on the private land. With such prayer he filed the suit for permanent injunction. In their separate written statements defendant Nos. 1 to 3 and defendant No. 4 have pleaded that donation of land was taken from several persons to connect the two roads and the property gifted by the plaintiff being not beneficial for connecting the road and when another equal patch of land (suit land) from the said plot was utilised as road by the villagers, therefore, the road has been directed to be constructed over that patch.
3. Learned Civil Judge (Jr. Division) considering the aforesaid pleading and discussing about the intention of the plaintiff behind the gift deed executed, found it unreasonable oh the part of the plaintiff to protest to the construction of the road when it is being done for public benefit, and accordingly refused to grant interim injunction. Learned Addl. District Judge-cum-Fast Track Court No. 2 confirming to that approach dismissed the appeal.
4. From the aforesaid narration of facts and the approach of the Courts below, this Court finds that there is a jurisdictional error committed by the Courts below in as much as without keeping in view the principle of law in the matter of grant or refusal of injunction, they were guided more by sentiment to decide the matter in the aforesaid manner. When the title of the plaintiff over the disputed area is recognized by the Consolidation Authority and no note of possession has been recorded in favour of the villagers or the defendants with respect to the disputed land, therefore, prima facie title and possession are available with the plaintiff. The generosity of the plaintiff in donating six decimals of land (another patch) for the purpose of construction of connecting road cannot be stretched to the extent of the defendants unilaterally depriving the plaintiff from enjoyment of properties owned and possessed by him. This fundamental principle of law was lost sight of by the Courts below while disposing of the application for temporary injunction.
5. Learned Addl. Govt. Advocate argued that when the road is being constructed for the benefit of the public an order of temporary injunction may interfere with the public interest. This Court finds no substance in that argument inasmuch as the Government has its own responsibility to provide due facilities, as far as practicable, to public at large. If the State Government thinks it proper to provide a connecting road and the land donated by the plaintiff is of no assistance, it would have been appropriate for the Collector to make a negotiation with the plaintiff for exchange of the area. In the event plaintiff would have agreed for the same, the matter could have proceeded accordingly. In the event the plaintiff would not have agreed and it is necessary for the State Government to construct a road at that place, then the State Government is not precluded from acquiring that area in accordance with the provisions in Land Acquisition Act, 1894. Without doing that, the State Government through its officers cannot behave like dictator or uncrowned monarch to march into any land of individuals and to interfere with their right by adopting a method which is not supported by law. The prospect of the aforesaid negotiation or acquisitions are still available to the State Government but without doing that the defendants cannot make any invasion into the property of the plaintiff when he is the lawful owner. In view of that, while setting aside the orders of the Courts below the defendants are prohibited from interfering with the rights of the plaintiff over the disputed six decimals of land which is not covered by the gift deed. As noted above if the State officials shall negotiate, the plaintiff who was generous to donate a patch of land may as well consider to exchange it with the disputed area. For that only an effort has to be made or else the acquisition proceeding is to be undertaken.
6. In view of the above order, the Civil Revision is allowed. Send back the LCR to the Courts below immediately.
