CR No.2834 of 2005 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No. 2834 of 2005 (O&M) Date of Decision: 11.11.2008 Punjabi Samaj Sabha (Regd) & Anr. ....Petitioners Vs. Haryana Urban Development Authority & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.S.C.Kapoor, Sr.Advocate, with Mr.Harminderjit Singh, Advocate, for the petitioners. Mr.MaheshSangwan, Advocate, Mr.Madan Gupta, Sr.DAG, Haryana Ms.Rupinder Kaur Thind, Advocate. --- Vinod K.Sharma,J. (Oral) This revision petition under Article 227 of the Constitution of India is directed against the order dated 23.5.2002 passed by the learned Civil Judge (Jr.Division), Kurukshetra and the order dated 15.12.2004 passed by the learned Additional District Judge, Kurukshetra vide which application moved by the petitioner/plaintiffs under Order 39 Rules 1 and 2 CR No.2834 of 2005 (O&M) 2 of the Code of Civil Procedure (for short the Code) has been ordered to be dismissed. The petitioner/plaintiffs filed a suit for declaration with consequential relief of injunction by claiming that it is Registered Sabha which has been constituted to uplift various aspects of the Punjabi community. It also provides facilities to the visitors as well as community members throughout India at the time of solar eclipse and various other religious functions. The plaintiff/petitioners purchased a plot for construction of a Dharmshala in Sector 17 Urban estate, Kurukshetra from the Government of Haryana and deposited the sale consideration and possession of the same was also delivered to the Sabha. The plaintiff/petitioners claimed that it has raised huge construction by spending huge amount and at the time of said purchase there was pavement/road which was shown in the building plan No.DTP (KKR)/345/85 and 383/85 dated 22.4.85 and 24.6.85 and in the sanctioned lay out dated 8.6.1986. The demarcation plan was said to have been amended on 24.1.1994, which has been approved on 10.2.1994. In the lay out plan the area was specified on the eastern side of Veterinary Hospital as well as plot allotted to the plaintiffs i.e. the pavement/road for public use. Even at the time of allotment of plot to the plaintiff/petitioners for construction of Dharamshala on eastern side the pavement/road was shown in existence. The petitioner/plaintiffs claimed that now Chief Town Planner/defendant No.4 had allowed the amendment of building plan of Sector 17, Kurukshetra and such amendment was illegal, ineffective, ultra vires, without any jurisdiction and legal right and therefore, not binding on CR No.2834 of 2005 (O&M) 3 the plaintiffs. It was claimed that now under the garb of amendment booth Nos.185-A to 204 have been carved out and further it was claimed that defendant No.11 has no right of construction according to the illegally amended site plan and has encroached upon 10 feet portion of the area. In short the petitioners sought a decree for declaration to the effect that letter No.1290 dated 10.3.2000, letter No.351 dated 5.2.2000 and order/letter No.CTP-HUDA/DTP-(N)/6803 dated 27.7.2001 along with site plan of disputed site allotted by defendants No.1 to 4 to other defendants were illegal, null and void, unlawful and inoperative and not binding on the rights of the plaintiffs, in any manner, with a consequential relief of injunction directing the defendants to restore the disputed site in its original position i.e. pavement of road and that defendants may also be restrained from raising any type of construction and changing its user, except for pavement of road and not to hand over possession of Booth Nos.185-A to 200 shown in the site plan. Along with the suit an application was moved under Order 39 Rules 1 and 2 of the Code. Learned trial court on the basis of material placed on record came to the conclusion that Haryana Government had allotted half portion of land for Veterinary Hospital, Kurukeshtra to the plaintiff-petitioners. The portion allotted neither falls within the area of Section 17, Kurukeshtra nor it is linked with the land of HUDA, in any manner, and it has no concern with the land of HUDA situated in Sector, 17 Kurukeshtra and thus, it was held that the petitioners have no locus standi to restrain HUDA and other defendants from raising construction as well as booths which were duly allotted to them after wide publicity. It was also recorded that petitioners CR No.2834 of 2005 (O&M) 4 have thoroughfare from other side, which is passage provided to Veterinary Hospital. The learned court also held that defendants-respondents had neither changed the use of pavement as shown in the lay out plan nor the plaintiffs have any locus standi to restrain the defendants-respondents from the use of open space for the purpose of development of Sector-17 etc. It has also been held that open auction was conducted in which one of the plaintiffs i.e. plaintiff No.2 gave a bid but could not succeed and thereafter has filed the present suit. Thus, it was held that the petitioners have neither a prima facie case nor balance of convenience was in their favour nor any irreparable loss was likely to be caused in case injunction was refused. Thus, the application was dismissed. Findings of the learned trial Court have been affirmed by the learned lower appellate court. Mr. S.C. Kapoor, learned Senior Counsel appearing on behalf of the petitioners vehemently contended that for deciding an application under Order 39 Rules 1 and 2 of the Code the Court was required to preserve the property as it exists so that no new rights are created during the pendency of the suit. It is also the contention of the learned Senior Counsel that the courts below ignored the fact that there was no other entry to Dharamshala except from the eastern side which was said to have been disposed off by way of open auction. It is also the contention of the learned senior counsel that the courts below wrongly held that there was no prima facie case in favour of the petitioners. Learned senior counsel also contends that the learned courts below ignored the right of easement of necessity in declining the injunction. It is also the case of learned senior counsel that there is a jurisdictional error committed by the Courts below. CR No.2834 of 2005 (O&M) 5 However, on consideration of matter, I find no force in the contentions raised by the learned senior counsel. The fact that defendant No.2 participated in auction has not been disputed. Learned senior counsel also did not dispute that the petitioners purchased part of plot of the Veterinary Hospital from the State of Haryana whereas the property in dispute belongs to HUDA. Therefore, the learned courts below were justified in holding that there was no prima facie case in favour of the petitioners. The contention of the learned Senior counsel for the petitioners that there was right of easement of necessity, also deserves to be rejected. Admittedly, the petitioners have purchased part of plot from the State of Haryana, where there exists a Veterinary Hospital. Right of necessity of easement, if any, can be claimed against the State of Haryana and not against third party. Findings recorded by the learned courts below are based on the material placed on record and cannot be said to be arbitrary or perverse so as to entitle the petitioners to invoke revisional jurisdiction of this court to challenge the impugned order. No ground for interference by this court is made out. Dismissed. 11.11.2008 (Vinod K.Sharma) rp Judge