1 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No.1527 of 2009(M/S) Mussoorie Dehradun Development Authority, through its Secretary, 12, Pritam Road, Dehradun. ……Petitioner. Versus 1. Smt. Deepika Rawat wife of Shri D.S. Rawat. 2. Shri D.S. Rawat son of Shri K.S. Rawat Both residents of 26-B, Pritam Road, Dehradun. …..Respondents. Sri Kanwaljit Singh, Advocate, for the petitioner. Sri Sudhir Singh, Advocate, for the respondents. Date:- December 14, 2009 Hon’ble B.S. Verma J. Heard learned counsel for the parties. By means of this writ petition the petitioner has sought writ in the nature of certiorari quashing the order dated 1.2.2007 (contained as Annexure No. 1) passed by the District Judge, Dehradun in MCA No. 157 of 2006, Smt. Deepika Rawat and another Vs. M.D.D.A. whereby the order dated 16.9.2006 passed by the IInd Additional Civil Judge (Junior Division), Dehradun in O.S. No. 517 of 2004 rejecting the interim injunction application of the plaintiff/respondent no. 1, has been set aside. Briefly stated facts giving rise to the present writ petition are that the respondents/plaintiffs had applied with the Mussoorie Dehradun Development Authority (for short the MDDA) for sanctioning of the map for raising construction over the piece of land which belongs to the plaintiffs. At the time of sanctioning the plan the MDDA informed the plaintiffs 2 that there is a proposal for widening 12 feet road passing north-south adjacent to eastern side of the plaintiffs’ land and thus plaintiffs were asked to leave 2.74 meters open land on eastern side. The said vacant land has been shown in the plaint map in yellow colour. According to the plaint version the defendant threatened him to encroach upon the said left vacant land. Hence, the plaintiffs filed the suit and claimed permanent injunction as well as temporary injunction, which was refused by the IInd Additional Civil Judge (Junior Division), Dehradun. The plaintiffs/respondents preferred an appeal under Order 43, Rule 1(r) CPC before the District Judge, Dehradun. Learned District Judge has allowed the appeal setting aside the order passed by the IInd Additional Civil Judge (Junior Division), Dehradun accordingly application 6C2 was also allowed. It was further directed that till the disposal of the suit by the trial court or if the piece of land is acquired by the Government, whichever is earlier, the defendant, its servants, agents, employees, assignees and representatives etc is hereby restrained in any way encroaching, trespassing and depriving the plaintiffs of their ownership rights use over the strip of land aforesaid. Learned counsel appearing for the petitioner contended that the District Judge, Dehradun while passing the impugned order, failed to appreciate that the civil court had no jurisdiction in the matter and further that area left for road widening by the respondent as shown in the plaint, had to be adhered to as otherwise it would tantamount to violation of the terms of the sanctioned order as per condition no. 16 of the map. 3 It was next contended by the learned counsel for the petitioner that there is stipulation in the sanction order if there is violation of the condition no. 16 then the sanction automatically stands set aside. In reply thereto the learned counsel appearing for the respondent has contended that he never violated condition of the sanctioned map and no boundary wall was raised as well as no gate was fixed. Only for the security purpose the strip of the land has been enclosed by raising iron fencing. I have perused the clause 16. The prohibition is that no boundary wall would be raised or no gate would be fixed over the left area which is proposed for road widening. This fact is not disputed that the respondents/plaintiffs are the owner of the land in question. This is also not disputed that the petitioner has submitted a map for construction of his house and as per bye laws of the MDDA, the condition was that for the road widening the plaintiffs/respondents have to leave 2.74 meters wide open area that has also been shown in the plan with the yellow colour. The plaintiffs/respondents have filed the suit for declaration of title and for permanent injunction against the defendant restraining the defendant its servants, agents, employees, representative, assigns etc. from in any way claiming ownership or encroaching, trespassing and depriving the plaintiffs of their ownership rights over the property shown by yellow colour in the plan attached with the plaint and 4 which forms part of property no. 7-A (New No. 29/40) Mohini Road, Dehradun without acquiring as per law. The suit is yet to be decided by the competent court so far as, prima facie, case of the plaintiffs is concerned they are owner of the property but according to the petitioner the condition was put in the map not to raise any construction over the proposed area which was left for the widening of the road while sanction of the map was accorded. This fact is also not disputed by the respondents/plaintiffs that this area was left for the proposed road. According to him as per condition no. 16, he cannot raise boundary wall and could not fix the gate but he can raise wire fencing to protect that area. Considering the facts and circumstances of the case the interim order which was passed by the District Judge needs modification. As per condition no. 16 of the plan, as has been observed by the District Judge in paragraph 10 of his Judgment, the plaintiffs have only raised iron fencing over the open area. Since the said suit is to be decided by the trial court on merit, the interim order passed by the District Judge is modified to the extent that parties shall maintain status quo till the final disposal of the suit. Further it is directed that the Civil Judge shall decide the suit as expeditiously as possible. With the aforesaid direction, the writ petition is disposed of finally. All the pending applications stand disposed of accordingly. (B.S. Verma, J.) 14.12.2009 RMY 5