Rajiv Kapoor vs Welfare Association and Others

H.S. Bedi, J.—The present petition is directed against the order of the Additional District Judge, Faridabad, dated 14th March, 1995,

whereby he had upset the order of the trial Court by-which the injunction sought for by the respondent had been refused.

The facts have been taken from the order of the trial Court and the parties herein referred to in the manner shown in the memo of parties before

that Court. Plaintiff No. 1 is said to be a Registered Welfare Society of Sector 7, Urban Estate, Faridabad and plaintiffs No. 2 to 4 are the

residents of that area. The case of the plaintiffs is that Sector 7, Faridabad was declared as a residential area and according to the lay out plan of

this Sector plots had been carved out by the Haryana Urban Development Authority and that they had purchased such plots and, thereafter,

constructed their houses on them. They further alleged that the defendants under the influence of some well connected persons had decided to

permit part of the green belt meant for being used as a park to be utilised for the setting up of a petrol pump. Apprehending that the petrol pump

would be set up shortly in the area, the plaintiffs filed a suit for permanent injunction and prayed for the grant of an ad-interim injunction during the

pendency of the suit. The trial Court after noticing the arguments of the parties vide order dated 7.3.1995 declined the prayer for injunction giving a

positive finding that the petrol pump was being set up in the area identified as an ""Open Space"" in the development scheme of Sector 7, Faridabad

and as such putting up of a petrol pump in such an area, could not be said Lo be unjustified. It was also held by the trial Court that the balance of

convenience lay with the defendants as the competent authority that is defendants 1 to 3 had already allotted the plot in dispute on lease to the

Indian Oil Corporation which had not been impleaded as a party in the suit and even Rajiv Kapoor who was a licensee of the Indian Oil

Corporation to run the petrol pump had been impleaded as defendant No. 4 on his application. The Court accordingly gave a finding in favour of

the beneficiary defendant No. 4. An appeal was taken by the aggrieved party to the Court of Additional District Judge, Faridabad, who reversed

the finding of the trial Court on the ground that open spaces shown in the site plan on which reliance had been placed by both the parties were to

be used only for sports activities, parks, green belt or for recreation purposes only and the opening of a petrol pump was, therefore, not envisaged

thereon. The Appellate Court was also deeply influenced by the fact that after the order vacating the injunction had been passed on 7.3.1955.

Defendant No. 4 Rajiv Kapoor had taken steps for installing the petrol pump immediately after Court hours and this unholy haste, the Judge noted,

was not bonafide or justified. The Appellate Court, accordingly, granted an injunction in favour of the plaintiffs. Aggrieved thereby, respondent No.

4 has come to this Court.

This matter was admitted on April 24, 1995 and was ordered to be set down for final hearing on May 8, 1995. It has come up before me

today.

Mr. M.L. Sarin, learned counsel for the defendant-petitioner has urged that the decision of the Appellate Court was not in consonance with the

record in the light of the notification of the government dated 11th December, 1991, which had Notified a Development Plan with respect to the

area in question and as this Notification clearly held out that a petrol pump site could be carved out from an open space identified as such in the

site plan, no fault could be found with the action of the defendant. In this connection, Mr. Sarin has referred, to the Notification in question and

pointed out that an area of 3199 acres was identified as Major Open Spaces and the petrol pump site in question had been earmarked in part of

this area. He has further urged that Major land use Zones had been carved out in the Notification in question and one of the major use was ""open

space"". He has then referred to appendix A in the Notification which has classified major land uses under various heads and urged that whereas

appendix A classified Major land uses, the detailed land uses within major uses had been spelt out in appendix B. Referring, to the aforesaid

classification, Mr. Sarin has referred to me to the major land uses. Sub Code 750 in which it has been clearly shown that open spaces could be

used for purpose of Fuel Filling Stations and Bus Queue shelters.

As against this, Mr. Ashok Aggarwal, learned counsel appearing for the plaintiffs has urged that as per the site plan for the year 1965, major

land uses mentioned therein did not include the site for petrol pump station and Bus Queue shelters and as such Notification of 11th December,

1991 authorising such use was not at all in order. He has urged that even assuming for a moment that a change had been affected and was

permitted by the Notification in question, yet, it was envisaged under appendix B dealing with open spaces that permission for putting up a petrol

station was to be granted by the Director, Town and Country Planning after application of mind and there was nothing on record to indicate that

such permission had been granted after such an exercise. To support his plea Mr. Aggarwal, has relied upon Bangalore Medical Trust Vs. B.S.

Muddappa and others, and Virender Gaur and Ors. v. State of Haryana and Ors. 1995 2 P.L.R. 591 (S.C.).

After hearing the learned counsel for the parties, I find the present petition deserves to succeed. I have very carefully gone -through the various

provisions of the notification dated 11th December, 1991. This Notification provides that it had modified other Notifications on the subject and as

such, it was to be read as being the final plan dealing with the development of the Faridabad Complex. It is also apparent to me that the Major

open spaces identified in the Notification do indicate that the land could be used for the purpose of a petrol pump as would be evident from the

classification of open space given in Appendix A and B and that whereas appendix A dealt with the classification of major land uses in all sectors

within the Faridabad Complex, appendix B clearly indicated that the Director could, within the sector authorise an open space for such use as

mentioned in that appendix. This is precisely what has been done. The judgments cited by Mr. Aggarwal, in support of his case, are not, to my

mind relevant to the point in issue. In both these cases, the Supreme Court was seized of the fact that change in the land use of a particular area

should not be easily permitted and if any attempt was made to deviate from a statutory scheme, it should be for a very good reason and that too

after following the proper procedure prescribed by law. In the case in hand, I find that the Director was duly authorised in terms of appendix B to

permit an open space to be used for a petrol pump. No fault can be found with this proposal.

Mr. Aggarwal''s second argument is also to my mind, without merit. He has emphasised that even assuming for a moment that the Director was

authorised to allow the site in question to be used for a petrol pump but before he could do so, some reasons authorising such use ought to have

been recorded on the file and in the absence of such reasons, it could not be said that the action was justified. In this connection, it is to be noted

that the Court is presently seized of only the application under Order 39 Rules 1 and 2 of the CPC and all detailed arguments would be available at

a later stage, but, even otherwise, the argument is without any factual basis. It appears that defendant No. 4 Rajiv Kapoor had applied for a site in

Sector 24, Faridabad and this request was duly forwarded to the Chief Administrator, HUDA-cum-Director, Town and Country Planning. This

request was, however, declined and the authorities in Faridabad recommended that another site in Sector 7, Faridabad be given to him in lieu of

the site in Sector 24. This recommendation was forwarded, to the Chief Administrator HUDA, Panchkula and that request too was declined by

noting on the site plan attached with the record that the site proposed by the Faridabad Office could not be allotted as it did not meet the

requirements of the Indian Road Congress and it was the Chief Administrator who thereafter selected the site that was actually allotted to

defendant No. 4. It cannot be suggested therefore that the Chief Administrator was required to give more detailed reasons as all that was required

was that there should be an application of mind and this exercise appears to have been carried out.

The last argument of Mr. Aggarwal was that the plots that had been given to the respondents were falling in the area adjoining the green belt and

being preferential plots an extra amount had been paid for them and as such the green belt ought not to be disturbed. This argument, to my mind, is

also without force for the reasons that the area in question had been identified as an open space and no challenge had been made by the plaintiff to

the Notification dated 11th December, 1991 wherein it is mentioned that an open space could be put to use by the Director, in terms of appendix

B to the Notification, and the putting up of a petrol pump is one such use.

For the reasons recorded above, this revision petition is allowed, The order of the lower appellate court is set aside and injunction granted to

the plaintiffs is vacated. Mr. Aggarwal has urged that as the litigation between the parties will not terminate here as the aggrieved party would go to

the Apex Court the order, of this Court dated 24th April 1995 be kept in force for a period of three weeks. This request of the learned counsel is

justified. It is, accordingly, directed that the aforesaid order of this Court would remain in force for a period of three weeks from the date that a

copy of this order is supplied to the parties concerned.