Regular Second Appeal No. 1078 of 2011 (O&M) 1 In the High Court of Punjab and Haryana, at Chandigarh Regular Second Appeal No. 1078 of 2011 (O&M) Date of Decision: 30.8.2011 Yadav Exhibitors Pvt. Ltd. ... Appellant Versus Haryana Urban Development Authority, Panchkula and Others ... Respondents CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. B.R. Vohra, Advocate for the appellant. Kanwaljit Singh Ahluwalia, J. Civil Misc. No. 2999-C of 2011 For the reasons stated in the application, the same is allowed. Delay of one day in re-filing of the appeal is condoned. Regular Second appeal No. 1078 of 2011 The plaintiff, having lost in two rounds of litigation, has approached this Court by filing the present regular second appeal. It had approached the Court of Civil Judge (Junior Division), Gurgaon, praying that a decree of declaration be issued to the effect that the plaintiff has a right to use the open space, as described in paragraph No.5 of the plaint, as a parking space for cars/scooters/cycles etc. by cinema goers. Further, a permanent injunction against Haryana Urban Development Regular Second Appeal No. 1078 of 2011 (O&M) 2 Authority (hereinafter referred to as “HUDA”) and its officials was sought to restrain them not to dispossess the plaintiff from the said site and create hindrance in using the area marked as ABCD in red colour in the site plan attached with the plaint as a parking space used for cars, scooters and cycles etc. The suit filed by the plaintiff was dismissed and aggrieved against the same it had filed an appeal. The same was also dismissed. Hence, the present regular second appeal. The case set out by the plaintiff in the suit was that the HUDA had advertised sale of Cinema and Commercial site located at National Highway Crossing in the Shopping Complex, Sector 14, Urban Estate, Gurgaon. The sale was made through auction, which was held on 23.7.1984 and in the above said auction, O.P. Yadav gave the highest bid of ` 32,02,500 for the purchase of cinema site. Since he was the successful bidder, he was allotted the said site. O.P.Yadav along with his younger brother had constituted a private limited company under the name & style of Yadav Exhibitors Pvt. Ltd. on 10.1.1985 and the said cinema site was got transferred to the company. After the ownership of the plot was transferred in favour of the plaintiff-company, the building plan was got sanctioned from the defendants and thereafter the building was constructed and the requisite Completion Certificate was obtained. The cinema, in the building, is being run by the company since 1990. Along with the Cinema, there is an open space measuring 53.34 meters x 60 meters marked as ABCD, detail and description whereof has been given in the plaint. According to the plaintiff, this space was left by the defendant for being used for parking of cars, scooters, cycles for the benefit of cinema goers and the site is being used for this purpose since Regular Second Appeal No. 1078 of 2011 (O&M) 3 the inception of “Payal Cinema” in the year 1990. The above said site is being used under the control of the plaintiff-company and nominal charges are obtained by the attendant and the site has been enclosed with the barbed wire fencing. Defendant No.3-Estate Officer, HUDA, Gugaon, had issued a notice dated 23.3.1995 threatening the plaintiff to demolish the parking space. Therefore, the notice was illegal, malafide, void and not binding upon the plaintiff. Thus, a decree for declaration to the effect that the plaintiff has the right to use the open space for parking purpose was sought. Upon notice, the defendants had caused appearance and filed a written statement. A definite plea was raised that as per the sanctioned building plan, there is a provision for parking vehicles in the basement of cinema building. The land/space, detailed in paragraph No.5 of the plaint, is reserved as a hotel site and as per the lay out plan, HUDA is the owner in possession of the said land and the plaintiff has no concern with the same. The plaintiff, being an allottee of the cinema site, has encroached upon the HUDA land. It was further pleaded that the suit has only been filed when the notice was issued to the plaintiff to take legal action against the encroachment made by it. The trial Court, after completion of pleadings, had formulated the issues. The plaintiff examined 11 witnesses and tendered various documents. The defendants examined three witnesses and also tendered various documents. The plaintiff's witnesses had taken a stand that the permission was orally given to the plaintiff to use the open space for parking purpose and therefore, the plaintiff is in possession of the same and there is no area which could be used by the plaintiff for Regular Second Appeal No. 1078 of 2011 (O&M) 4 parking purpose. Reliance has been placed by the plaintiff on the advertisement for auction as Ex.PW.5/1 and Ex.PW.5/2 to contend that it was stated in the advertisement that the parking space would be given by the HUDA to the allottee. The plaintiff has further submitted that as per letter dated 25.5.1988 Ex.PW.8/1, it has been clearly mentioned that the site towards north of the Cinema would be developed as parking area and the same would be done by HUDA. The contention is also raised by learned counsel for the plaintiff that the parking site provided is far away from the cinema and therefore, unfeasible for the use of cinema goers as the parking area, whereas the defendants proved the zoning plan and also produced on record lay out plan of commercial belt facing Delhi-Gurgaon Road, Sector 14 and further proved that as per Ex.DW.2/3, demarcation-cum-zoning plan, the site is reserved for hotel. The defendants also brought to the notice of the Court that as per the layout plan of commercial belt, no parking was available adjacent to the cinema site. The trial Court concluded as under:- “11...The plaintiff himself appearing as PW.7 has deposed that no written permission was granted to the plaintiff for use of the disputed land as parking for cinema goers. PW.7 as well as PW.11 who is manager of the said cinema had deposed that permission was granted to the plaintiff for using the disputed property as parking for cinema goers. But plaintiff has miserably failed to produce any document on record to prove that it was authorized to use the disputed property as parking space. Regular Second Appeal No. 1078 of 2011 (O&M) 5 Plaintiff has placed reliance upon Ex.PW.5/1 and Ex.PW.5/2 which are advertisement of auction wherein it was written that car parking pavement outside the cinema site would be provided by the authority. But this document is of no relevance at this stage as plaintiff has been allotted the cinema site vide letter dated 23.8.84 Ex.PW.5/3 and no such condition is mentioned therein. Plaintiff has also placed reliance on Ex.PW.8/1 which is letter from defendant to the plaintiff as regards development of parking. But merely this letter is no proof of either possession or the ownership of the disputed property with the plaintiff. Plaintiff has failed to produce on record any document that it was authorized to use the disputed property as parking for cinema goers...” The above said findings given by the trial Court have been affirmed by the lower Appellate Court. During the course of arguments, learned counsel for the appellant has only placed reliance upon an advertisement Ex.PW.5/1, issued for auction to say that the parking area was the public property. A further reliance has been placed upon Ex.PW.8/1 i.e. letter dated 25.5.1988 issued by the Sub Divisional Engineer, HUDA Sub Division No. IV, Gurgaon, wherein it was stated that the development of the parking area is to be done by HUDA and jhuggies of the labourers during construction built on the site be removed. Therefore, the plaintiff Regular Second Appeal No. 1078 of 2011 (O&M) 6 was requested to vacate the premises. On a specific inquiry put by this Court that the plaintiff should show from the allotment letter/conveyance deed or any document that the site in question was reserved for parking, learned counsel for the appellant could not produce any such document. That being so, both the Courts below have rightly rejected the oral bald assertion made by the witnesses of the plaintiff that orally the HUDA had permitted the plaintiff to use the open space for parking of vehicles. From the zoning and layout plans, produced and proved by the defendants, it is apparent that the site is reserved for a hotel and the plaintiff has encroached upon the same. Thus, the injunction cannot be granted in favour of the plaintiff against the true owner. Hence, no interference is warranted in the present regular second appeal and the same is hereby dismissed especially when learned counsel for the appellant, during the course of arguments, has failed to formulate any question of law, much less a substantial one, for consideration of this Court. (Kanwaljit Singh Ahluwalia) Judge August 30, 2011 “DK”