Bhardwaj Medical Centre vs Noida Authority and Others

R.B. Mchrotra, J.—The present First Appeal From Order has been filed by the Defendant-Appellant against the Order of 1st Additional District Judge, Ghaziabad, dated 6th of May, 1995 granting an ad interim injunction in favour of the Plaintiff-Respondents under Order XXXIX, Rule 1, CPC and directing the Defendant-Appellant not to make constructions over the plot in dispute and not to interfere in any manner in the use of the plot in dispute by the Plaintiffs and other residents of Sector 37 of NOIDA for using as a park.

The First Appeal from Order was heard by us on 19th of May, 1995. We have already directed while reserving orders in the present First Appeal From Order that the suit itself should be decided within six months, from the Sessions beginning from July, 1995 and in case the suit is not decided within the stipulated period, the trial court will seek extension of time from this Court by giving proper explanation for not deciding the suit within the time fixed by the Court.

Brief facts for decision of this First Appeal from Order are that Plaintiff-Respondent Nos. 2 to 6 have filed Original Suit No. 204 of 1995 with the allegation that the Plaintiffs are residents of Sector 37 of NOIDA, Ghaziabad. Sector 37 � along with Sectors 28 and 29 have been reserved to be allotted to army personnel only. A Master Plan for NOIDA area was prepared and sanctioned the NOIDA (New Okla. Industrial Development Authority) in the year 1985 and certain area shown as red and marked A.B.C.D. in the site plan has been earmarked as green space and nursery school. The further allegation in the plaint were that the said space under the Master Plan was developed as a Park by the NOIDA and the Plaintiffs and their dependants and others have been using the aforesaid area as Park since 1986. Swings, Act. have been installed in the Park and they are source of entertainment of the children of the Plaintiffs. It was further alleged that Defendant No. 1, i.e., NOIDA defying the aforesaid Master Plan has approved and allotted 500 sq. meters of land out of the said area to Defendant No. 2 for construction of a nursing home. The Defendants have started cutting trees and plants of the area and are destroying environment and ecology of the area. With these allegations, the reliefs claimed were that the allotment made over plot No. F-l of the Sector 37, NOIDA, Ghaziabad in favour of Defendant No. 2, the present Appellant, be declared to be null and void and without authority and Defendants be restrained by way of permanent injunction from causing any kind of encroachment upon the Park in dispute and from changing its location, etc., etc.

NOIDA, which was arrayed as Defendant No. 1, filed its written statement contesting the aforesaid suit and, inter alia, pleaded that "land which has been allotted to the Defendant No. 2 vas previously kept vacant for primary school open land as it is evident from the sanctioned layout plan Master Plan which was sanctioned on 8th July, 1985. Thereafter, it was pleaded in the written statement that since there was no provision for opening a nursing home and there was a demand for opening a nursing home by the people of the locality, Defendant No. 1 has allotted the land to Defendant No. 2 for a nursing home.

On the basis of the aforesaid pleadings and on the basis of the documents brought on the record of the suit, a finding has been recorded in the impugned order that the green belt shown in the Master Plan is different from the plot in dispute. 1,000 sq. yards of the land was reserved for nursery school out of which 500 sq. yards have been allotted for nursing home to Defendant No. 2. It has also been held that the disputed land is different from the land of Park in the green belt. Thereafter the Addl. Civil Judge noticed the contention of the Defendants, that the reserved land was not for public nursery school but was for private nursery school and since there was no application for opening a private nursery school, the land has been allotted for private nursing home. The Addl. Civil Judge has held that this fact is not borne out from the record of the case, from the record only this much is established that the land was for nursery school. It is not clear as to whether the land was allotted for public nursery school or private nursery school which will be established by the evidence led by the parties. The Addl. Civil Judge has further held that on the basis of the record of the case, a prima facie case has been made out in favour of the Plaintiffs and if the Defendants are not stopped from constructing the nursing home, the Plaintiffs will suffer such an irreparable loss which cannot be compensated.

The learned Counsel for the Appellant Sri R.N. Singh has strenuously urged before us that since the case of the Plaintiffs was that the land in dispute is a Park and finding has been returned in the impugned Order that the land in dispute was not allotted as a Park, there was absolutely no justification for granting injunction in favour of the Plaintiffs. The Plaintiffs had no locus stand in the matter and no cause of action arose to the Plaintiffs for filing the suit. In support of his contention, learned Counsel has placed reliance on Mahadeo Savlaram Shelke and Others Vs. Puna Municipal Corporation and Another, and has further stressed that since the Plaintiffs were not in possession of the land, no injunction could have been granted in favour of the Plaintiffs.

Since we are conscious of the fact that any observation made by us on the contentions of the learned Counsel is likely to prejudice either side in decision of the suit itself and since we have already directed that the suit itself should be decided within six months, no further direction need be given in the present case and the impugned order does not call for any interference by this Court. However, we wish to clarify that the conventional notion of prima facie case, cause of action, irreparable loss and balance of convenience cannot be imparted in the same conventional meaning in the present matter as in cases where parties are contesting for a personal right over a property.

Justice J.M. Shelat in his Foreword to Justice Krishna iyers book on "Social Justice Sunset or Dawn" has rightly indicated:

The expression "person aggrieved" is a typical Anglo Saxon concept which no longer is apt in developing country like ours. The phrase ought to be so liberalized as to take in a wide circle of persons for the protection of a civil right and for claims for compensation in respect of a wrong thought to a particular person but which affects their interest though not so directly as in the case of that particular individual. The word "grievance" has nowadays a wider signification in view of the compulsions of our times.

For developing environmental jurisprudence, a different approach and different notions are required. Long back in the year 1854, American President Franklin Pierce offered to buy a large tract of Red Indian land from Chief Seattle. Chief Seattle wrote to American President:

How can you buy or sell the sky, the warmth of the land The idea is strange to us. If we do not own the freshness of the air and the sparkle of the water, how can you buy them Every part of this earth is sacred to my people. Every shining pine needle, every sandy shore, every mist in the dark woods, every clearing and humming insect is holy in the memory and experience of my people. The sap which courses through the trees carries the memories of the red man.

Red Indian Chief Seattle replied to the American President that the land proposed to be purchased is not saleable.

Ruchi Rana in her Article "Global Warning wrote:

Natural forces have influenced and shaped the environment of our planet over the course of life time. The ecological hazards faced by the planet today have assumed alarming proportions.

We wish to stress that when an environmental planning is being tried to be disturbed, when Master Plan of an urban development authority contemplates for opening of a nursery school which in its turn may be fashioned in a manner friendly to environment, turning the said area for a nursing home, is a debatable question and we refrain from making further observations in this regard. We are definitely of the view that the trial court committed no error while passing the order of maintaining status quo over the plot in dispute. We have already safeguarded the interest of the parties by directing that the suit itself be decided within six months. From the record of the present First Appeal From Order, It is clear that the Defendant-Appellant, before us, have not even cared to file their written statement. Better they should go before the trial court, file their written statement at the earliest and ensure that no adjournments are taken on their part so that the order of this Court may be complied with. NOIDA which is a public authority should also ensure expeditious disposal of the suit.

The First Appeal From Order is accordingly rejected.

Let a copy of this order be sent to trial court for being kept on record.