JUDGMENT
L. Mohapatra, J.
1. This writ application has been filed for a direction to the opposite parties not to take any action in respect of Sabik Plot No. 2075 of Khata No. 627 extending to an area of Ac. 7.370 decimals corresponding to Sabik Plot No. 6 of Khata No. 733 towards South Eastern side of Mouza Malipada till the decree passed in favour of the petitioner is satisfied.
2. Case of the petitioner is that the aforesaid land was put on long term lease for operating stone quarry by the opposite party No. 2 vide Sairat Case No. 3/87-88 in terms of the provisions contained under the Orissa Minor Minerals Concession Rules, 1983 for a period of 5 years, i.e., from 31.8.1987 to 31.8.1992. Lease was settled in favour of the petitioner on 5.12.1987 but the petitioner could not operate from 31.8.1987 because of the delay in settling the lease in favour of the petitioner and prayed for adjustment of the said period. However, after developments were made in the area for operating quarry, successor of the Tahasildar who had settled the quarry in favour of the petitioner suddenly issued work order in favour of another person on 5.2.1989 and as a result the petitioner was debarred from operating the quarry. Having no other way the petitioner filed an appeal before the Collector for setting aside the order dated 5.2.1989 passed by the Tahasildar but the matter was remanded back to the Tahasildar again. No inquiry after remand was taken till 31.8.1994 and Sairat Case No. 119 of 1994-95 again started for the purpose of auction of said sairat. The petitioner having no other way filed a suit for declaration, permanent injunction as well as mandatory injunction in the Court of the learned Civil Judge (Junior Division), Khurda vide T.S. No. 46 of 1994. The said suit was decreed on 17.1.2000 and the present opposite parties 2 and 3 were permanently restrained from auctioning the suit land before allowing the petitioner to operate the said quarry for the remaining period of lease as well as further period of three months after expiry of his remaining period of lease. The learned Civil Judge further restrained the opposite parties 2 and 3 from taking any action in Sairat Case No. 119 of 1994 till expiry of the lease period of the petitioner. While the matter stood thus and the execution case was in progress, the opposite party No. 1 issued a public notice indicating therein that the aforesaid quarry shall be put to auction on 31.3.2006 and invited applications and challenging the said notice the present writ application has been filed solely on the ground that in view of the decree passed by the Civil Court the opposite party No. 1 cannot issue such a public notice or put the quarry to auction without compliance of the directions contained in the decree.
3. Learned counsel appearing for the Administrator, Jagannatha Temple (opposite party No. 1) contended that the Administrator, Jagannath Temple was not a party in the suit and therefore the decree passed in the said suit is not binding on it. It was further contended that the said Sairat was all along property of the Jagannath Temple but by mistake the same was recorded in favour of the State and taking advantage of the said recording, the then Tahasildar has leased out the land in favour of the petitioner. Dispute arose between Jagannath Temple and the State and ultimately the same was settled in favour of Jagannath Temple in a proceeding under the Orissa Estate Ablition Act. After Jagannath Temple become owner of the property it had noticed in Annexure-1 to put the same to public auction. It was contended by the learned counsel or the opposite party No. 1 that the decree not being binding on it, this Court should not interfere with the notice in Annexure-1 pursuant to which lease has already been settled in favour of one Janaki Ballav Baral and the said lessee is not in a position to operate the quarry because of interim orders passed by this Court.
4. There is no dispute that the sairat in question at one point of time was under the control of Tahasildar, Khurda (opposite party No. 2) and the lease in respect of the same had been granted in favour of the petitioner for a period of five years i.e., from 31.8.1987 to 31.8.1992. There is no dispute that since the petitioner could not operate the quarry because of the reasons mentioned in the writ petition, a suit was filed and decree was passed to the following effect:
“The suit is decreed ex parte against the defendants. The defendants Nos. 1 and 2 are hereby permanently restrained from auctioning the suit land before allowing the plaintiff-petitioner in Sairat Case No. 3 of 1987-88 to operate the said quarry for the remaining period of his lease period and another three months after expiry of his remaining lease period and also restrained from taking any action in Sairat Case No. 119 of 1994-95 till expiry of the lease period allotted to the plaintiff. In this circumstances, it is hereby declared that the orders passed in Sairat case No. 3 of 1987-88 are illegal, void and not binding against the plaintiff. The defendants Nos. 1 and 2 are directed to carry out the order between two months from the date of the order.
Pronounced in open Court, this day the 17th day of January, 2000.
Civil Judge (Jr. Division), Khurda.”
There is also no dispute that the decree has been passed in favour of the petitioner. The question that comes for consideration is as to whether the said decree is binding on opposite party No. 1 which is admittedly not a party in the suit. Learned counsel for the petitioner does not dispute that the said Sairat has already settled in favour of opposite party No. 1 in a proceeding under the Orissa Estate Abolition Act and only after the settlement of the lease in favour of the opposite party No. 1 under the said Act, notice in Annexure-1 has been issued. Opposite party No. 1 not being a party to the suit, the decree passed therein is not binding on it and the same cannot be executed against the opposite party No, 1. Though petitioner may be correct in saying that the decree stands frustrated because of the aforesaid reason, the petitioner is not remediless. If the petitioner in the process has sustained any loss he can always raise a claim for damages.
5. We, therefore, do not find any merit in the Writ Application and the same stands dismissed.
Sujit Barman Roy, C.J.
6. I agree.
