Pushap Lata Saxena and Another vs Punjab Urban Planning and Development Authority and Another

L.N. Mittal, J.

C.M. No. 4781-C-II of 2011:

Application is allowed and Annexure A-1 is taken on record, subject to all just exceptions.

Main Appeal:

Plaintiffs having failed in both the courts below are in second appeal.

Plaintiffs'' case is that they are owners of House No. 232, Phase II, Urban Estate, Patiala. Defendant No. 2 - Estate Officer of Punjab Urban Planning and Development Authority (PUDA - Defendant No. 1) allotted plot of the aforesaid house to Harbhajan Singh Thind, who raised construction therein. Plaintiffs'' purchased the suit house from Harbhajan Singh vide sale deed dated 15.05.1996.

The dispute in the suit relates to gate existing in the rear courtyard of the house opening in green belt. The Plaintiffs'' claim is that the said rear gate exists as per approved site plan and Plaintiffs have been using it for access to their house and for parking of car, for which they have also laid a ramp. The Plaintiffs also made application dated 08.10.2002 to the Defendants for transfer of green belt/open space measuring 22 feet x 70 feet to the Plaintiffs, as per policy of the Defendants. The Plaintiffs sought permanent injunction restraining the Defendants from interfering in right of passage of the Plaintiffs for approaching their house through disputed rear gate and from demolishing and closing the same. Plaintiffs also sought mandatory injunction directing the Defendants to consider request dated 08.10.2002 of the Plaintiffs for transfer of the aforesaid green belt area adjoining the Plaintiffs'' house to the Plaintiffs.

Defendants controverted the plaint allegations and inter alia pleaded that only one gate on front side of the suit house has been sanctioned in the building plan and no rear gate has been sanctioned. Plaintiffs have tampered with the building plan, which was in their custody. There is green belt of approximately 37''-10'''' width between plot Nos. 232 and 233 and according to the policies of the Defendants, green belt of this width cannot be transferred to the adjoining plot owners and accordingly, request of the Plaintiffs for transfer of the said green belt was rejected by the Defendants vide order dated 31.10.2002. Show cause notice dated 07.04.2006 was issued to the Plaintiffs for closing the rear gate, which is unauthorized. The said notice was inadvertently not signed by Defendant No. 2 - Estate Officer, and therefore, fresh notice dated 17.05.2006 was issued to the Plaintiffs as they have opened the disputed gate in violation of approved building plan. Jurisdiction of Civil Court to challenge the same is barred by Section 174 of the PUDA Act. The disputed gate is liable to be closed being in violation of the building plan. Various other pleas were also raised.

Learned Civil Judge (Junior Division), Patiala, vide judgment and decree dated 09.04.2009, dismissed the Plaintiffs'' suit. First appeal preferred by the Plaintiffs has been dismissed by learned Additional District Judge, Patiala, vide judgment and decree dated 04.01.2011. Feeling aggrieved, Plaintiffs have filed the instant second appeal.

I have heard learned Counsel for the Appellants and perused the case file.

Plaintiffs in the suit sought twin reliefs. The Plaintiffs sought mandatory injunction directing the Defendants to consider their representation dated 08.10.2002 for transfer of green belt to them. However, Defendants had already considered and rejected the said representation/request vide order dated 31.10.2002 and therefore, question of directing the Defendants to consider the said request of the Plaintiffs could not arise in the suit. The Plaintiffs did not even challenge the rejection of the said request by the Defendants vide letter dated 31.10.2002. In this view of the matter, learned Counsel for the Appellants does not press the said relief in the instant second appeal.

Learned Counsel for the Appellants, however, vehemently contended that rear gate in dispute was sanctioned in the building plan, and therefore, the same cannot be closed. Much emphasis was laid on the fact that Plaintiffs moved application for additional evidence in the lower appellate court, which was dismissed. By way of said application, the Plaintiffs wanted to produce in additional evidence copy of building plan obtained from Defendants under Right to Information Act (in short - RTI Act), also depicting the existence of the rear gate in the building plan.

I have carefully considered the matter. Contention raised by counsel for the Appellants cannot be accepted. Defendants have produced in evidence approved site plan from the record. The said building plan clearly depicted that rear gate in dispute was not sanctioned. Even otherwise, rear gate through the green belt cannot be sanctioned because green belt cannot be used for access to the suit house, when there is approach to the suit house from the front side gate. The Plaintiffs want to usurp the green belt by way of the disputed rear gate. The same cannot be permitted. The green belt is meant for the use of General Public and not for the exclusive use of the Plaintiffs. The green belt cannot be used for taking car through the rear gate, as sought to be used by the Plaintiffs. Construction of ramp for this purpose by the Plaintiffs in the green belt is also thus unauthorized. Plaintiffs have been rightly non-suited by the courts below. Concurrent finding recorded by the courts below non-suiting the Plaintiffs is fully justified by the evidence on record and does not call for interference in second appeal. The said finding is not shown to be perverse or illegal in any manner nor it is based on misreading or misappreciation of evidence.

For the reasons aforesaid, I find no merit in the instant second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Accordingly, the appeal is dismissed in limine.