ORDER

Date : 19.10.2023 Heard Mr. P. Deka, learned counsel for the petitioner. Also heard Mr.

T.R. Gogoi, learned Government Advocate appearing for the respondent nos. 1, 2 and 3.

2) By this application under Article 227 of the Constitution of India, the petitioner has assailed the order dated 15.09.2023, passed by the learned Civil Judge (Senior Division), Nagaon in Misc. (J) Case No. 18/2022 in Misc.

Appeal No. 5/2022. By the said order ad interim injunction was refused.

3) The petitioner has also assailed the order dated 05.04.2022, passed by the learned Civil Judge (Junior Division) No.1, Nagaon in Misc. (J) Case No. 166/2019 in T.S. No. 204/2019. By the said order prayer for ad interim injunction was rejected.

4) In short, the case of the petitioner is that he was served with a final notice dated 25.11.2019, by the Circle Officer, Sadar Revenue Circle, informing him that he had constructed RCC building over 1 lessa Government land covered by Dag No. 831, which was reserved for road. Accordingly, the petitioner was asked to demolish the house extending on the Government land within 48 hours or consequences of eviction would follow. The petitioner then filed the herein before referred suit, being T.S. No. 204/2019, inter alia, praying for a decree of declaration of his right, title and interest over the suit land described in Schedule-A of the plaint, which included the said 1 lessa Government land covered by Dag No. 831.

5) Along with the said suit application for ad interim injunction was filed. However, by final order passed in Misc. (J) Case No. 166/2019, prayer for temporary injunction was rejected. The refusal of temporary injunction, amongst others, was on the ground that the said 1 lessa government land was required for road widening and strengthening of road, which would affect public interest and public inconvenience will be more. Accordingly, having not found prima facie case for trial and balance of convenience, prayer for ad interim injunction was rejected.

6) Against the said order, appeal under Order XLIII, Rule 1(r) CPC was preferred. Along with the said appeal, an application for ad interim injunction, referred herein before, was filed. By separate orders passed in Misc. Appeal No. 5/2022 and Misc. (J) Case No. 18/2022, the appeal was dismissed and the prayer for ad interim injunction was rejected, amongst others, considering public interest.

7) The learned counsel for the petitioner had submitted that the finding of the learned Courts below were perverse because they had failed to consider that the petitioner, through his grand-father and father had been occupying the suit land including the so called government land since long before independence and the PWD of the State, the road centre-line, etc. came later. It was also submitted that the road had seen widening from time to time and in the process it now appears as if the petitioner had encroached the Government land. It was also submitted that it would be a travesty of justice if the house of the petitioner is demolished now and if he succeeds in the suit, the losses that the petitioner would have suffered in the meantime cannot be computed or compensated in terms of money. It was further submitted that the Court had found fault with the petitioner for taking time before the Circle Officer on medical grounds and then filing the suit and accordingly, it appears that injunction was refused merely for filing the suit first.

8) The learned Government advocate had justified the refusal of injunction and has opposed the prayer for ad interim injunction, which would affect infrastructure project of widening of road.

9) Considered the submissions made by the learned counsel for the petitioner, the learned Government Advocate. Also considered the materials on record.

10) It would be relevant to refer to the provisions of Section 41 of the Specific Relief Act, 1963, which is extracted below:-

“41. Injunction when refused.- An injunction cannot be granted -

(a) to restrain an