Punjab-Haryana High Court
Sanjiv Garg And Ors vs Punjab Rban Planning & Development ... on 3 September, 2014
Author: Inderjit Singh
Bench: Inderjit Singh
In the High Court of Punjab and Haryana at Chandigarh
......
Civil Revision No.7662 of 2011 (O&M)
.....
Date of decision:3.9.2014
Sanjiv Garg and others
.....Petitioners
v.
Punjab Urban Planning & Development Authority and another
.....Respondents
....
Coram: Hon'ble Mr. Justice Inderjit Singh
.....
Present: Mr. Kanwalvir Singh Kang, Advocate for the petitioners.
Mr. Rupinder S. Khosla, Senior Advocate with Mr. Aman
Sharma, Advocate for respondent No.1-PUDA.
Mr. Vijay Sharma, Advocate for respondent No.2.
.....
Inderjit Singh, J.
Sanjiv Garg etc.-petitioners/plaintiffs have filed this civil revision petition against Punjab Urban Planning & Development Authority (hereinafter referred to as `PUDA') etc.-respondents/defendants under Article 227 of the Constitution of India for setting aside the impugned order dated 2.9.2011 (Annexure-P.1) passed by learned Additional District Judge, Patiala, whereby the appeal of the respondent (defendant) was accepted and the well reasoned order dated 22.11.2008 of the learned trial Court was set aside and resultantly the application of the petitioners/plaintiffs filed under Order 39 Rules 1 and 2 C.P.C. for HARPAL SINGH PARMAR 2014.09.16 10:38 I attest to the accuracy and integrity of this document Chandigarh C.R. No.7662 of 2011 (O&M) [2] temporary injunction was dismissed.
Notice of motion was issued in this case. Learned senior counsel along with learned counsel appeared on behalf of the respondents and contested the present civil revision petition.
From the record, I find that Sanjiv Garg etc. filed a suit for mandatory injunction and permanent injunction against PUDA-defendant (respondent No.1 herein). In that suit, an application was also filed for ad interim injunction to restrain the defendant and its employees from making any kind of obstruction in the peaceful use and enjoyment of road by the applicants/plaintiffs (petitioners herein) as shown in letters `ABCD' in the site plan appended with the said plaint and for direction to the respondent to remove the pillars installed at points-`A' and `B' as shown in red colour in the site plan.
The brief facts of the case are that the plaintiffs/petitioners are permanent residents of Village Theri. The road shown in red colour in the site plan and also marked by words `ABCD' is being used by ingress and egress from their respective houses to main road existing on northern side by the petitioners since their forefathers. They are in peaceful and enjoyment of said passage without any interruption by any one for the last more than 60 years. They have vested right to use that road by way of easement. Now the respondent having mala fide intention has affixed the pillars as points `A' to `B' as shown in the site plan, so that the petitioners may not enjoy the peaceful use of the road and thereby raised obstruction in the peaceful use and enjoyment of the road by the petitioners. HARPAL SINGH PARMAR 2014.09.16 10:38 I attest to the accuracy and integrity of this document Chandigarh C.R. No.7662 of 2011 (O&M) [3]
On the other hand, the respondent-PUDA took the plea that there is no prima facie case nor balance of convenience lies in favour of the plaintiffs/petitioners. The plea of the respondent is that there is no such permanent passage or `Rasta' ever existing for the houses of the applicants/petitioners through the acquired land of the respondent. Therefore, the petitioners cannot claim any right of passage from the road of Urban Estate, Phase-I, Patiala, which is situated over the acquired land. Moreover, after that acquisition, the entire land has vested with the respondent and it has every right to utilize the same as it likes. The said passage is not meant for the petitioners or other residents of Village Sahib Nagar (Theri) and the residents of that village cannot use the internal road of Urban Estate as thoroughfare. It is also the case of the respondent that it got installed barbed wire around the acquired land just as a boundary line and the houses of the petitioners are adjoining to that land. The petitioners with a mala fide intention are removing the barbed wire and using that land of the respondent as thoroughfare causing traffic congestion and menace of stray cattle in the locality of that Urban Estate. In order to redress the grievances of residents of that Estate, the said barbed wire has been installed. Now iron bars at points `A' and `B' have also been put on.
Learned Additional Civil Judge (Senior Division), Patiala vide order dated 22.2.2008 allowed the application finding prima facie case in favour of the plaintiffs/petitioners and also giving direction to the respondent/defendant to remove those pillars installed in that way. It is in HARPAL SINGH PARMAR 2014.09.16 10:38 I attest to the accuracy and integrity of this document Chandigarh C.R. No.7662 of 2011 (O&M) [4] the order that beyond land of Urban Estate, there are houses of the applicants/petitioners and they are using the passage of the respondent/defendant. The Court granted the injunction only on the ground that existence of the passage is admitted fact and also on the plea that the respondent has admitted that the applicants are using that `Rasta' and the trial Court also held that there is nothing in the notification either for acquisition of that passage or the Khasra numbers of that passage, which has been acquired by the respondent/defendant. The Court held that in view of the separate pleas of the parties and in such circumstances it is a matter of evidence whether the said passage is exclusively for the respondent, this injunction has been granted.
From the record, it is clear that this finding of the learned Additional Civil Judge (Senior Division), Patiala that this is a matter of fact whether this passage is exclusively common for the respondent or not is a matter of evidence, then in no way, it can be held, at this stage, that there is prima facie case in favour of the plaintiffs/petitioners.
The learned Additional District Judge, Patiala in the appeal correctly set side the order passed by the learned Additional Civil Judge (Senior Division), Patiala. The learned Additional District Judge, Patiala in the appeal held that the suit has been filed by the plaintiffs/petitioners and they have pleaded that they have got easement right for its use but there is nothing on record to prove this fact. The plaintiffs have produced the copy of the sale deed dated 28.1.2003, which is in the name of Sanjiv Kumar and the suit was filed in the year 2009. Therefore, plaintiff-Sanjiv HARPAL SINGH PARMAR 2014.09.16 10:38 I attest to the accuracy and integrity of this document Chandigarh C.R. No.7662 of 2011 (O&M) [5] Kumar cannot claim any easementary right. The plaintiffs have also placed on record the site plan only of the house of Sanjiv Kumar. This rough site plan also shows the road/passage to the house of the plaintiff from other side. The location of the house of other plaintiffs is not reflected. In this way, also in my view, in no way, it can be held easementary right of passage as the houses of the plaintiffs/petitioners have passage from other side. The defendants/respondents have placed on record copy of notification and copy of award, which prove that the land of Village Theri had been acquired and compensation was paid to the land owners and the defendant/respondent has become owner of this land through which the plaintiffs are claiming passage. The findings of the learned first appellate Court are correct. The land was acquired for establishing Urban Estate and the defendant/respondent has every right to use this land in the manner it likes. The defendant/respondent has also to ensure security of the persons to whom the plots have been allotted out of this land. It is common knowledge of every person that the prices of the plots are much higher in the Urban Estates or in the planned colony developed by the PUDA etc., than the ordinary land. In this Urban Estate, the owners of the plots have paid huge amount. Therefore, the persons, whose houses are adjoining to this property, cannot take the benefits of the facilities provided to plot holders by the defendant/respondent. The plaintiffs/petitioners have no right to pass through the land of the respondents.
Therefore, from the above, I find that the findings of the HARPAL SINGH PARMAR 2014.09.16 10:38 I attest to the accuracy and integrity of this document Chandigarh C.R. No.7662 of 2011 (O&M) [6] learned Additional District Judge, Patiala are correct and as per law. There is nothing on the record to show any prima facie case in favour of the petitioners/plaintiffs nor balance of convenience lies in favour of them and no irreparable loss will be suffered by the plaintiffs/petitioners. They have other `Rasta' from the village side which has also been shown in the site plan. The respondents have every right to construct a wall around the land acquired by them to avoid thefts etc. and further to control the traffic and also to avoid the menace of the stray cattle. In the planned colony of PUDA, this cannot be allowed.
Therefore, from the above, I find that the impugned order dated 2.9.2011 passed by the learned Additional District judge, Patiala is correct and as per law which does not require any interference from this Court and the same is upheld.
Therefore, finding no merit in the civil revision petition, the same is dismissed.
September 3, 2014. (Inderjit Singh) Judge *hsp* HARPAL SINGH PARMAR 2014.09.16 10:38 I attest to the accuracy and integrity of this document Chandigarh