Allahabad High Court
Lajja Ram Memorial Shiksha Samiti vs Managing Director, J.P. Infratech Ltd. ... on 31 May, 2024
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:99988 Reserved on 21.5.2024 Delivered on 31.5.2024 Court No. - 4 Case :- MATTERS UNDER ARTICLE 227 No. - 1738 of 2018 Petitioner :- Lajja Ram Memorial Shiksha Samiti Respondent :- Managing Director, J.P. Infratech Ltd. And Anr. Counsel for Petitioner :- Anil Kumar Mehrotra,Srijan Mehrotra Counsel for Respondent :- Bhavya Tewari,Kali Azad,Kaushalendra Nath Singh,Rohan Gupta Hon'ble Ajit Kumar,J.
1. Heard Sri Anil Kumar Mehrotra, learned counsel for the petitioner, Sri Anurag Khanna, learned Senior Advocate assisted by Sri Rohan Gupta, learned counsel for the respondent No.- 1 and Sri Kaushalendra Nath Singh, learned counsel for the respondent No. - 2.
2. Petitioner is an educational society that runs an educational institutue in plot No.- 579 situate at village Sultanpur, Pargana- Dadri, Tehsil & District- Gautam Budh Nagar. It instituted a suit being O.S. No. - 810 of 2017 in the court of Civil Judge (S.D.), Gautam Budh Nagar for a relief of permanent prohibitory injunction restraining the defendants from interfering in their right to use passage in question to reach the peripheral road/ sector road which is shown as 'A' 'B' 'C' & 'D' in the plaint map. Their application for temporary injunction having been rejected by the trial court under order dated 17th January, 2018 came to be affirmed in Misc. Civil Appeal No. - 02 of 2018 by the District Judge, Gautam Budh Nagar under order dated 7th March, 2018 and the petitioner has approached this Court assailing these two orders.
3. The submission advanced by learned counsel for the petitioner is that passage in question links the villages of Sultanpur and Asgarpur and it is still being used as a passage even by the respondents and since the passage was being used for more than 20 years and it earlier fell within the land of Gram Panchayat which subsequently came to be requisitioned and transferred to the private parties/ real state developers, they could not have restrained the petitioners' right to use the passage. The pleadings had been sought to be explained as indicative of easementary rights as to passage.
4. One of the arguments advanced was also to the effect that alternative passage which had been provided by the respondents pursuant to some order passed in Public Interest Litigation (PIL) was not sufficient and wide enough to make the school premises approachable by a fire-brigade vehicle in the event of any emergency in the school, as a large number of children were studying.
5. Per contra it is argued by Sri Anurag Khanna, learned Senior Advocate assisted by Sri Rohan Gupta, learned counsel for the contesting respondents that the land has been leased out to them to develop a housing colony and this passage was only used by them to carry building material. Now since 80% of the construction was over, this passage needed to be fortified by putting up a boundary wall to make it a developed colony free from any unlawful and antisocial elements trespassing to the colony.
6. It is argued that after all it was a matter of security of the residents of the colony for whom it had been developed. It was also submitted by learned Senior Advocate that petitioner had no right to have any access to the peripheral road through the property of the answering respondent. It was further submitted by learned Senior Advocate that Pubic Interest Litigations that were filed, were three in numbers bearing Nos.- 24294 of 2012, 34318 of 2010 and 39813 of 2010 and it was after hearing the respective parties that a detailed order was passed asking the authorities to provide an alternative route to have access to the peripheral/ sector road and it was after the alternative routes were developed and road map was placed before the Court that the Division Bench disposed of the petitions with a direction that villagers would be using the alternative road and for the use of alternative road no obstructions will be caused by the officers/ employees of Yamuna Express-way Industrial Development Authority and J.P. Infratech Ltd. The road plan that was approved by this Court, was made part of the order as scheduled - 'A'. Thus, according to Sri Khanna, learned Senior Advocate, no further dispute remained and the present suit itself was not maintainable. Sri Khanna also submitted that Public Interest Litigation was relating to the entry and exist point of the villagers of Sultanpur as well.
7. Having heard learned counsel for the respective parties and having perused the records, I find it necessary to mention here that earlier when the matter was heard, a detailed order was passed on 29th April, 2024 asking the New Okhla Industrial Development Authority (NOIDA) to give exact width and length of the alternative link road to the sector road and pursuant to the said order a report had been submitted on 22nd April, 2024 which was duly perused by learned Advocates appearing for the respective parties. This report that accompanies map has been made part of the record. The plaint case is that educational institution was set up in the year 2001 and it was claimed that passage in question was being used and it was after the Yamuna Express-way was constructed that nearby land including the land in question was requisitioned for development activity and was allotted to the respective respondent. Thus, a plea is taken that right to use land in question as a passage, is being exercised since time of forefathers and so the passage now cannot be permitted to be blocked by the defendants-respondents. However, in the pleading part, there is no reference to any public interest litigation petition, nor the order passed therein has been questioned.
8. Considering the injunction application, the Court while referring to the pleading part also recorded a fact that plot No.- 574, 576, 580 milzumla, 670 and 710 with total area of 0.582 hectares was acquired by the NOIDA for an organized development activity and also transferred the same to the Yamuna Express-way Industrial development corporation which executed the lease deed in favour of the defendant No.- 1.
9. The Court referred to the Amin Commissioner's report in which defendant No.-1 had stated to the Amin Commissioner that the passage in question was being used as an internal road of township. The Court proceeded to refer to the order passed in Public Interest Litigation and concluded that an alternative road has been provided to be used by the villagers of Sultanpur and Asgarpur and the land in question being duly leased out to the developers namely, defendant No.-1, petitioner cannot have any prima facie case to use the land in question as a passage. The Court rejected the miscellaneous injunction application holding that once an alternative route is provided, it cannot be a matter of choice for the plaintiff not to use an alternative road and seek injunction to use a particular road which has fallen upon land in the township of the defendant No.-1 on account of lease executed in its favour. The court sitting in miscellaneous civil appeal has affirmed the judgment passed by the trial court.
10. The question, therefore, now for consideration before this Court is as to whether there is a prima facie case made out by the plaintiff to have a right to passage upon the suit land and whether there is a balance of convenience existing in his favour and that injunction if refused, it is likely to cause irreparable loss and injury. These three are the basic principles that are required to be met in order to grant temporary injunction to a party in a pending suit for permanent prohibitory injunction.
11. Insofar as the first aspect is concerned regarding prima face case, in the entire plaint allegations, if taken together, except for a right that too very vaguely stated to use as a passage since the time of forefathers, there is no concrete pleading taken that this land was an open public land meant to be used as passage and as on the date of filing of suit plaintiff had a vested right of passage since being used since a particular date or point of time.
12. Here even before this Court, there is no such pleading to the effect that land in question which is still a public land that has fallen within the area of leased out land that has been transferred to defendant No.-1 by the authority. That being the situation, no prima facie case as such is made out to entitle plaintiff to use the land as passage. An easementary right also is required to have a definite time period for the passage being used as such in public interest. Still further, a claim can be set up for passage when there is complete blockage of passage and there is no alternative passage available.
13. The institution may have been set up in the year 2001 but there is no pleading as such that ever since 2001 the passage was being used.
14. In my considered view, therefore, petitioner- plaintiff has failed to set up a prima facie case to have any injunction upon the land in question against contesting defendants.
15. As far as the balance of convenience is concerned, I would like to refer to the order passed in three Public Interest Litigation petitions. The entire order passed by the Division Bench on 15th May, 2013 is reproduced hereunder:
"We have heard Shri Pankaj Dubey, learned counsel for the petitioner. Learned Standing Counsel appears for the State respondents. Shri Ramendra Pratap Singh appears for Yamuna Expressway Industrial Development Authority. Shri Yashwant Verma appears for Jaypee Infratech Limited.
In Writ Petition No.24294 of 2012 the petitioner has prayed for following prayer:-
"I. Issue the writ order or direction in the nature of certiorari calling the records and quashing the impugned notification no.1173/Ek-1/2009-5-1 (21)/2009-23 dated 14.07.2009 issued in respect of plot nos.574 area 0.354 Hect., 576 area 0.114 Hect., 580M area 0.038 Hect., 670 area 0.051 Hect. and 710 area 0.025 Hect. of the revenue Village Sultanpur, Pargana Dadri, Tehsil Dadri, District Gautam Budh Nagar (Annexure No.1 to the writ petition)."
In Writ Petition No.34318 of 2010 the petitioner has prayed for following relief:-
"(i). issue a writ, order or direction in the nature of mandamus commanding to the respondents to not interfere in peaceful utilisation by the villagers of pathway of Sultanpur Asgarpur Road in any manner."
In Writ Petition No.39813 of 2010 the petitioner has prayed for following relief:-
"(i) Issue writ, order or direction in the nature of mandamus commanding the respondent no.4 not to construct any boundary wall around the village Sultanpur-Raipur Khadar, Pargana & Tehsil Dadari, District Gautam Budh Nagar.
(ii) Issue writ, order or direction in the nature of mandamus commanding the respondent no.4 not to raise any further construction over the roads which are connecting the petitioner's village to nearby villages."
All these three writ petitions have been nominated to the Bench presided by one of us (Hon. Sunil Ambwani, J.). On 22.2.2012 we passed the following order:-
"In compliance to the order dated 25.1.2012, Shri Ramendra Pratap Singh has filed supplementary affidavit disclosing that the old distance from Village Asgarpur Jagir to Sultanpur (ADC) was 2.1 kms. Now after resumption of the old road, and allotment to JIL, alternative roads from Asgarpur Jagir to Sultanpur are through ABC measuring 4.5 kms. or in the alternative AFE 3.9 kms.
The petitioner alleged that the old road was 1 km. and not 2.1 km. He has not filed supplementary rejoinder affidavit.
It is stated in the counter affidavit of Shri K.K. Sharma that 5 gatas measuring 0.582 hects of Village Sultanpur vested in the Gaon Sabha were resumed by the State Government by notification dated 14th July, 2009. This notification has not been challenged.
Learned counsel for the petitioner is allowed two weeks' time to file supplementary rejoinder affidavit of the counter affidavit filed by Shri Ramendra Pratap Singh and if they are advised, they may file amendment application challenging the notification resuming the land.
List on 19th March, 2012."
A counter affidavit of Shri K.K. Sharma, Asstt. Manager, Jaypee Infratech Ltd. has been filed in which it is stated in para 13 as follows:-
"13. That the aforesaid newly constructed sector roads and road connecting the village Asgarpur is being regularly used by the villagers, as would be evident from the Photographs. A copy of the photographs is being annexed hereto and marked as Annexure CA-6 to this affidavit."
A plan of the roads, which are connecting village Asgarpur to the main road finally leading to expressway has been annexed to the counter affidavit. A better plan has been prepared and produced, which shows that length of existing road (old village road) A-D-C is 2.1 kms. long. The newly constructed road, which is alternative no.1 (A-B-C) is 4.5 kms. and that newly constructed road, alternative no.2 (A-F-E) is 3.9 kms. It is stated by both Shri Ramendra Pratap Singh on behalf of YEIDA and Shri Yashwant Verma appearing for JIL that the villagers of Village Asgarpur can use both the alternative roads namely A-B-C 4.5 kms. and newly constructed alternate road no.2 A-F-E 3.9 kms.
Shri Pankaj Dubey states that though the villagers are using both the alternative roads, officers and employees of JIL place some restrictions on the user.
On a statement given by learned counsels appearing for YEIDA and JIL that no obstruction will be caused, if residents of the village use any of the alternate roads, the grievance raised in the writ petitions has been substantially redressed by the respondents.
The writ petitions are accordingly disposed of with directions that in case the villagers use any of these alternate roads, no obstruction will be caused by the officers and employees of the Yamuna Expressway Industrial Development Authority and Jaypee Infratech Ltd. The parties agree that the plan produced is correct map. The plan will be made part of the order as Schedule 'A'."
(Emphasis added)
16. From a bare reading of the aforesaid order it comes out to be very clear that notification to resume land to develop it was questioned and passage between Sultanpur to Asgarpur being used as road was tried to be protected seeking a writ of mandamus in that regard. There was a prayer also for the opposite parties in the said case namely, defendant respondent No.1 herein not to make any obstructions upon the alleged land.
17. Looking to the alternative road provided by the authorities, the court had also directed petitioner to file his objection to the same. The J.P. Infratech Ltd. the defendant No.-1 had also filed its counter affidavit in the said Public Interest Litigation and it was stated therein that the alternative road giving link to the constructed sector road was being used by the villagers. The entire map along with the alternative route was placed before this Court with which the Court got convinced and this is how the petition was disposed of without interfering with the rights of the J.P. Infratech Ltd. to block this road in question. Since now the alternative road has already been provided to the villages (Sultanpur and Asgarpur both) to have direct approach to the peripheral road or sector road, the plea could not have been taken by the school authority that it was a longer road or a zick-zack road. However, whether the road has a link road with sufficient width or not so as to give easy access to the school by the light motor vehicles and even heavy vehicles in times of need, this Court required to the authority to submit report. A detailed report with map has been submitted, which is reproduced hereunder:
"माननीय उच्च न्यायालय में विचाराधीन याचिका सं०-1738/2018, लज्जाराम मेमोरियल शिक्षा समिति बनाम मैनेजिंग डायरेक्टर, जे.पी. इन्फ्राटेक लि. व अन्य में मा० उच्च न्यायालय द्वारा पारित आदेश दिनाँक 29.04.2024 द्वारा भूमि के पैमाईश से सम्बन्धित आख्याः-
मा० उच्च न्यायालय में योजित याचिका संख्या-1738/2018, लज्जाराम मेमोरियल शिक्षा समिति बनाम मैनेजिंग डायरेक्टर, जे.पी. इन्फ्राटेक लि. व अन्य (ग्राम-सुल्तानपुर) में दिनांक 29.04.2024 को पारित आदेश के अनुपालन में उप जिलाधिकारी, दादरी, गौतमबुद्धनगर द्वारा पत्रांक 1480/एस०टी०एस०डी०एम० /2024, दिनाँक 03.05.2024 के द्वारा राजस्व एवं नौएडा विकास प्राधिकरण की संयुक्त टीम गठित की गई, जिसमें दिनाँक 04.05.2024 नियत की गई। मा० उच्च न्यायालय द्वारा नियत दिनाँक 04.05.2024 में राजस्व टीम, नौएडा प्राधिकरण की टीम, एवं सभी पक्षों की उपस्थिति में पर्याप्त पुलिस बल के साथ ग्राम-सुल्तानपुर तथा सेक्टर रोड के बीच स्थित रास्तों की पैमाईश तकनीकी विशेषज्ञ टीम के साथ टी.एस.एम. (टोटल स्टेशन मशीन) के द्वारा की गई।
प्राथमिक विद्यालय सुल्तानपुर के कोने पर स्थाई बिन्दु मानते हुए पैमाईश प्रारम्भ की गई, जो ग्राम-शाहपुर गोवर्धनपुर बांगर की सीमा पर स्थित है, जो बिन्दु F से प्रदर्शित है तथा गाँव में प्रचलित मार्ग से लगा हुआ है। बिन्दु F से बिन्दु A तक रोड प्रचलित है और बिन्दु A सेक्टर रोड पर स्थित है। बिन्दु A से बिन्दु F तक की लम्बाई 388.03 मीटर है न्यूनतम चौडाई 5.51 मीटर तथा अधिकतम चौडाई 10.033 मीटर है। बिन्दु F से C तक की लम्बाई 300.91 मीटर न्यूनतम चौडाई 3.59 मीटर तथा अधिकतम चौडाई 5.84 मीटर है। बिन्दु C से D तक की लम्बाई 170.58 मीटर न्यूनतम चौडाई 3.73 मीटर तथा अधिकतम चौडाई 7.09 मीटर है। बिन्दु D से E तक की लम्बाई 43.33 मीटर न्यूनतम चौडाई 7.42 मीटर तथा अधिकतम चौडाई 8.32 मीटर है, जो जे.पी. इन्फ्राटेक लि. द्वारा निर्मित रोड से जुडी है।
दूसरा प्रचलित रास्ता बिन्दु A से B तक की लम्बाई 421.17 मीटर न्यूनतम चौडाई 5.28 मीटर तथा अधिकतम चौडाई 11.61 मीटर है। बिन्दु B से C तक की लम्बाई 26.25 मीटर न्यूनतम चौडाई 3.07 मीटर तथा अधिकतम चौडाई 6.26 मीटर है।
उपरोक्त दोनों रास्ते ग्रामीण आबादी में पूर्व से स्थित एवं प्रचलित हैं, जिसका निर्माण नौएडा प्राधिकरण द्वारा नहीं किया गया है।
बिन्दु B से G तक की लम्बाई 156.15 मीटर न्यूनतम चौडाई 9 मीटर तथा अधिकतम चौडाई 9 मीटर है, जो नौएडा प्राधिकरण द्वारा कृषकों की अर्जित भूमि के सापेक्ष दिये गये 5 प्रतिशत आबादी भूखण्ड के लाभार्थियों के सेक्टर रोड के एप्रोच रोड से बिन्दु G जुडी हुई है, जो निर्मित है किन्तु प्रचलित नही है।
मा० उच्च न्यायालय, इलाहाबाद द्वारा पारित आदेश दिनाँक 29.04.2024 के अनुपालन में आख्या सेवा में सादर प्रेषित है।
संलग्नकः-सजरा, टी.एस.एम. द्वारा तैयार मानचित्र एवं उपस्थिति पत्रक।"
18. From perusal of the report it is clear that the minimum width of the link road as an alternative road is 3.59 meters and the maximum is 5.84 meters and so also same is the width of other passage in use. Thus, the minimum width of the road is around 11.77 feet and maximum width of the road is around 19.16 feet.
19. In the considered view of the Court, therefore, any light or heavy vehicle can move upon the road without any obstruction. The road is also stated to be motorable. So in my view, if alternative route is sufficiently wide may be it is little longer route, the plaintiff cannot claim that a particular route that falls within the lease land of the defendant No.- 1 be also left open to it.
20. Thus, I do not find any balance of convenience being compromised if injunction is refused. So also I do not find any irreparable loss is going to be caused to the plaintiff petitioner, if the petitioner is permitted to use alternative route and the authorities keep maintaining the road so that it remains motorable and I do not see any apprehension that authorities will not be maintaining the alternative road provided to the residents of the village Sultanpur including the petitioner to have access the peripheral or sector road.
21. In view of the above, there is no error of law or fact seen in the orders passed by the trial court and court of appeal.
22. Petition lacks merit and is, accordingly, dismissed.
Order Date :- 31.5.2024 Atmesh/ Sanjeev