Raj Verma and Another vs State of Haryana and Others

Jasbir Singh, ACJ

The petitioners are resident of Tohana, District Fatehabad. They have filed this writ petition seeking issuance of directions to respondent No.4 to construct road at Aggarsain Chowk, Tohana which is in a dilapidated condition. It is brought to the notice of the Court that half of the road has been constructed and the remaining half is not being constructed for the reasons best known to the respondents.

In response to a notice issued, reply has been filed on behalf of respondent Nos. 1 to 3 wherein it is stated that the work to construct the road cannot be started because some residents of the area have filed a civil suit for permanent injunction restraining the respondents from raising level of the road, wherein the jurisdictional Civil Court has passed a restraint order against construction of the road. To say so, reference has been made to an order dated 16.12.2011 passed by Additional Civil Judge (Senior Division), Tohana. The above order reads thus:-

Suresh Kumar Versus Collector Fatehabad

Present: Sh. S.K. Chawla, Adv. Counsel for the plaintiffs. Sh. S.K. Bhatnager, Adv. Counsel for the defendants no. 1 to 4.

Defendants no. 5 and 6 in person.

Power of attorney on behalf of defendants no. 1 to 4 has been filed whereas defendants no. 5 and 6 have appeared in person. The counsel for the plaintiff has aggrieved because defendant no. 4 is constructing the concrete road between Aggarsain Chowk to Dr. B.R. Ambedkar Chowk and they are raising the level of concrete road due to which plaintiffs are apprehending that the rainy water shall enter in their houses as well as shops. Learned counsel has prayed that the defendants be directed not to raise the level of the road so that rainy water m ay not enter into their shops as well as houses. Learned counsel for the defendant has apprised to this Court that a civil writ petition has been filed under title Raj Verma Versus State of Haryana in which the defendant no. 4 has filed the reply and the case is now pending before the Hon''ble High court for 23-1-2012. Learned counsel for the defendants has also argued that they have no objection if civil suit may also be fixed beyond the date and status-quo order may also be passed.

I have heard learned counsel for both the parties and after considering the fact that a civil writ petition is already filed in this matter therefore, it would be appropriate to restrain the defendants not to construct the road till any decision given by the Hon''ble High Court accordingly defendants are hereby restrained not to construct the road in question. Case is now adjourned to 31-01-2012 for awaiting further order from the Hon''ble High Court.

(Amrit Singh Chalia) ACJ(SD), Tohana/16-12-2011

From the reading of the above order, it is apparent that some residents of the area are objecting to the construction of the road on a ground that in case the level of road is raised, the rainy water would flood into their houses. Further, perusal of the order passed by jurisdictional Civil Court reveals that because of pendency of this petition, restraint order has been passed. Under the circumstances, we feel that no effective order can be passed by this Court because the persons who have filed the civil suit are not party before us and secondly, the jurisdictional Civil Court in seisin of the matter is deferring the hearing of suit because of pendency of this writ petition.

Since the disputed questions of facts requiring evidence whether the level of road is required or necessary to be raised etc. are involved in the civil suit which cannot be gone into by this Court exercising jurisdiction under Article 226 of the Constitution and further the pendency of this petition is effecting hearing of the civil suit, we are of the considered view that proper course to be adopted in this case would be to dispose of this writ petition so that Civil Court may proceed further with the trial.

Accordingly, we dispose of this writ petition with a direction to the Additional Civil Judge (Senior Division), Tohana who is now seized of the matter to decide the application for stay filed by plaintiffs, Suresh Kumar etc., on merits after affording opportunity of hearing to the parties. The petitioners herein are given liberty to move an application for their impleadment as party respondents in the pending suit. It is directed that in case any application for vacation of stay is moved by the petitioners herein after their impleadment as party respondents, the same shall be disposed of within 30 days from the date of institution thereof. In case, decision of the Civil Court goes against those who have filed the suit, in that eventuality respondent No. 4 shall complete the construction of the road within four months.