# Chaudhary Chandra Veer Singh & Anr v. President Ark City Residents Welfare Association, Meerut & Anr

- **Citation:** (2023) 8 ILRA 526
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-24
- **Case number:** Matters Under Article 227 No. 4923 of 2023
- **Bench:** Jayant Banerji
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chaudhary-chandra-veer-singh-anr-v-president-ark-city-residents-welfare-50689
- **Pages:** 23

## Headnote

Civil Law - Uttar Pradesh Apartment
(Promotion, Ownership and Maintenance)
Act, 2010 - Indian Easements Act, 1882 -
Easementary Rights - Temporary Injunction --
8 All. Chaudhary Chandra Veer Singh & Anr. Vs. President Ark City Residents Welfare Association,
 Meerut & Anr.
527
Common Areas and Facilities - No Objection
Certificate
(NOC)
-
Appellate
Court's
Jurisdiction.

Held:

## Text

_Characters 0–39,974 of 76,263. This is a partial read: ask again with offset=39974 for what follows._

526 INDIAN LAW REPORTS ALLAHABAD SERIES
noticing the law laid down by Hon'ble
Apex Court in Sanjay (supra) and in
Jayant (supra). The petitioners are the
owners of the vehicles which were found to
be involved in the present case, therefore, a
cognizable offence is made out.

17. One can take judicial notice of the
fact that everyday newspapers are flooded
with news of illegal mining from every
corners
of
the
country,
raiding
parties/officials/even officers are attacked
and due to illegal mining, there can be no
dispute about the fact that State Exchequer
must be losing huge revenue apart from
damage to the public property as well. The
ecological part of such damage has already
been discussed and taken note of Hon'ble
Apex Court in the above noted judgments
in the case of Sanjay (Supra) and Jayant
(supra). Observations made by Hon'ble
Apex Court judgment in Jayant (supra)
also gives an impression that the existing
provisions of the MMDR Act are falling
short of expectations in view of the volume
of illegal mining. Therefore, before we
part,
we
express
our
concern
by
highlighting concern of the Hon'ble Apex
Court expressed specifically in para 18 and
19 of Jayant (supra) and observe that it is
high time for the Government concern to
take a call on the larger issue and do the
needful as Hon'ble Apex Court has left in
to the wisdom of the legislature to do the
needful and the concerned State to perform
its public duty/obligation being an elected
Government.

18. To attract the attention of the State
Government and for doing the needful in its
own wisdom, in larger public interest,
learned AGA is directed to forward a copy
of this order to the respondent no.1-State of
U.P.
through
its
Secretary,
Home
Department, U.P. Government, Lucknow as
well as to the Chief Secretary Government
of U.P. within a week.

19. For similar reasons, office is also
directed to serve a copy of this order on the
Additional Solicitor General of India
representing Union of India in this Court
for being forwarded to the Secretary of the
concerned Department/Ministry, Union of
India within a week.

20. From the discussions made
hereinabove, we find that the writ petition
is devoid of merit and is accordingly
dismissed, however, with the observations
as made above.
----------
(2023) 8 ILRA 526
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.07.2023

BEFORE

THE HON'BLE JAYANT BANERJI, J.

Matters Under Article 227 No. 4923 of 2023

Chaudhary Chandra Veer Singh & Anr.
 ...Petitioners
Versus
President Ark City Residents Welfare
Association, Meerut & Anr.
 ...Respondents

Counsel for the Petitioners:
Sri Kunal Shah, Sri Suvansit Kumar Jaiswal,
Sri Vipul Raj Gautam, Sri Manish Goyal (Sr.
Advocate)

Counsel for the Respondents:
Sri Ajay Kumar Singh, Sri Ashish Kumar
Singh

Civil Law - Uttar Pradesh Apartment
(Promotion, Ownership and Maintenance)
Act, 2010 - Indian Easements Act, 1882 -
Easementary Rights - Temporary Injunction --
8 All. Chaudhary Chandra Veer Singh & Anr. Vs. President Ark City Residents Welfare Association,
 Meerut & Anr.
527
Common Areas and Facilities - No Objection
Certificate
(NOC)
-
Appellate
Court's
Jurisdiction.

Held:
1. The petitioners, claiming easementary rights
over a 40 - feet road within the Ark City Housing
Society based on an alleged No Objection
Certificate (NOC) dated 11.12.2016, failed to
establish a prima facie case for a temporary
injunction. The existence and validity of the
NOC were disputed, requiring evidence to prove
the grant of easementary rights.

2. The trial court's order granting a temporary
injunction was set aside by the appellate court,
as
it
selectively
relied
on
the
Amin
Commissioner's report and ignored alternative
access routes to the petitioners' land, as
indicated in the report and site map.

3. The provisions of the Uttar Pradesh
Apartment Act, 2010, prevail over the Indian
Easements Act, 1882, due to its overriding
effect under Section 31. The 40 - feet road, part
of the common areas and facilities of Ark City,
cannot be used without the consent of all
apartment
owners
and
approval
of
the
competent authority, as per Section 5 of the
Apartment Act.

4. The appellate court's order dated 28.02.2023,
setting aside the temporary injunction, was
upheld as it was based on cogent reasons,
including the absence of evidence supporting
the petitioners' claim to easementary rights and
the presence of alternative access routes.

5. The petitioners' failure to obtain a sanctioned
layout plan for developing Plot No. 291 and their
attempt to claim access to Ark City's amenities
without legal basis disentitled them to equitable
relief under Article 227.

Case Law Discussed:

1. Wander Ltd. Vs Antox India Pvt. Ltd., 1990
Supp SCC 727

2. Dalpat Kumar Vs Prahlad Singh, 1992 (1) SCC
719

3. Anand Prasad Agarwalla Vs Tarkeshwar
Prasad, 2001 (5) SCC 568

4. Zenit Mataplast Pvt. Ltd. Vs St. of Mah., 2009
(10) SCC 388

5. Misrilal Ramratan Vs A.S. Shaik Fathimal, AIR
1995 Mad 375

6. Santosh Dubey Vs Lala Ram Pal, 2006 (2) All
LJ 512

7. Levi Strauss & Co. Vs Rajesh Agarwal, AIR
2002 Del 344

8. ML Brother LLP Vs Maheshkumar Bhuralal
Tanna, 2019 SCC Online Bom 1084

9. Hero Vinoth (Minor) Vs Seshammal, 2006 (5)
SCC 545

10. Mathai Vs Jordi Poulose, 2013 (2) KLT 102

11. Bhagwan Sahai Vs Narsingh Sahai, AIR 2006
Raj 125

12. Wasudeo Vs Shri Ashok, 2010 (4) MhLJ 103

13. Ram Swarup Gupta Vs Bishun Narain Inter
College, 1987 (2) SCC 555

14. Prataprai N. Kothari Vs John Braganza, 1999
(4) SCC 403

15. Tamil Nadu Housing Board Vs A. Viswam,
1996 (8) SCC 259

16. M/s. Designarch Infrastructure Pvt. Ltd. Vs
Vice
Chairman,
Ghaziabad
Development
Authority, 2013 (9) ADJ 598

17. Management Board, Windsor Park Residents
Welfare Association Vs St. of U.P., 2015 (8) ADJ 1

Petition Dismissed.

(Delivered by Hon'ble Jayant Banerji, J.)

1. In the aforesaid petition, the array
of parties is as under:-
528 INDIAN LAW REPORTS ALLAHABAD SERIES

"1. Chaudhary Chandra Veer
Singh, aged about 70 years son of Sumeer
Singh, Resident of Ward No.0, Daurala
(Rural), Meerut, District Meerut.

2. Chaudhary Vivek Ahalawat,
son of Chaudhary Chandra Veer Singh,
Resident of Ward No.0, Daurala (Rural),
Meerut, District Meerut

........... Petitioner/Plaintiff
Versus

1. President Ark City Residents
Welfare Association, Ark City, N.H. 58,
Kankerkheda, Meerut, District Meerut.

2. Secretary Ark City Residents
Welfare Association, Ark City, N.H. 58,
Kankerkheda, Meerut, District Meerut.

...........Respondent/Defendant"

2. This petition impugns the order
dated 28.02.2023, corrected on 09.03.2023
passed by the Additional District Judge,
Court No.5, Meerut in Misc. Appeal No.27
of 2020 (President Ark Society vs. Chandra
Veer Singh), whereby the appeal has been
allowed and the order of temporary
injunction granted by the trail court on
15.01.2020 has been set aside. It may be
mentioned at the outset that though the
order of correction dated 09.03.2023 has
been mentioned to have been filed along
with the impugned order of 28.02.2023,
however, the same is not enclosed. In any
view of the matter, the order of correction
has not been referred to by learned counsel
for the petitioners.

3. The petitioners claim to be tenureholders being bhumidhar with transferable
rights over Plot No.291 admeasuring about
0.6070 hectares of land located in VillageDayampur, District Meerut which land is
stated to have been purchased by them by
means
of
a
registered
sale-deed
of
11.08.2016. It is stated that the petitioners
are the owners in possession of the
aforesaid Plot No.291 and to the north of
the petitioners' land is located a Housing
Society by the name of Ark Society. It is
stated that the respondents are members of
the said Housing Society. It is alleged that
to the north of the petitioners' land is a
common
12
meters
(40
feet)
wide
path/road1 which goes through the Society
and leads into the petitioners' land. That the
predecessor-in-interest of the petitioners as
well as the petitioners have been using the
40 feet road in question for their entry into
the aforesaid Plot No.291 and that there is
no other approach road. In view of a
dispute
between
the
petitioners
and
residents
of
the
respondent-Society
regarding use of the path in question, it was
resolved by the intervention of Ark City
Welfare Association2, a Society duly
registered under the Societies Registration
Act, 18603 and which, as per the provisions
of
the
Uttar
Pradesh
Apartment
(Promotion, Ownership and Maintenance)
Act, 20104, is authorised to manage the
affairs in relation to the apartments and the
properties appurtenant thereto and common
areas and facilities, to permit use of the 40
feet road by the petitioners. It is alleged
that in this regard, on 11.12.2016, the
Welfare Association issued a No Objection
Certificate5 in favour of the petitioners
whereby the petitioners were permitted to
use the 40 feet road as also the sewerage
and electricity lines of the Society.

4. It is alleged that when on
04.07.2019, objections were raised and
hurdles were created, the petitioners
instituted a civil suit for permanent
injunction before the court of the Civil
Judge (Senior Division), Meerut, being
Original
Suit
No.73
of
2019.
An
8 All. Chaudhary Chandra Veer Singh & Anr. Vs. President Ark City Residents Welfare Association,
 Meerut & Anr.
529
application for temporary injunction was
also filed. On 06.09.2019, the trial court
granted an ad-interim ex-parte temporary
injunction to the petitioners. Thereafter, the
respondents, who were the defendants in
the aforesaid suit, filed objection to the
application for temporary injunction. On an
application moved by the petitioners, the
trial
court
appointed
an
Amin
Commissioner to carry out an inspection.
The
Amin
Commissioner
made
his
inspection and submitted a report on
11.11.2019 enclosing therewith a site map.
The petitioners also filed their reply to the
objections raised by the respondents to the
application for temporary injunction. The
petitioners filed photographs on 18.12.2019
to evince that no boundary wall of Ark City
exists to the north of the gate of Plot
No.291, which is the land of the petitioners.
They
also
filed
an
affidavit
dated
16.12.2019 of one Sudhir Verma, who was
alleged to be a former President of the
Welfare Association, stating that the NOC
was issued by the then office bearers of the
Welfare Association and the signatures
appended by him on that NOC, in capacity
of the President are, in fact his signatures.
By an order dated 15.01.2020, the trial
court granted temporary injunction in
favour of the petitioners. Against that order
of temporary injunction, the respondents
filed an appeal being Misc. Case No.27 of
2020 alongwith a stay application. The
petitioners filed objections against the
application of the respondent seeking stay
of temporary injunction.

5. It is further alleged that when the
respondents violated the order of temporary
injunction, an application under Order
XXXIX Rule 2-A of the Code of Civil
Procedure, 19086 was filed and an Amin
Commissioner was appointed who is stated
to have submitted his spot inspection report
on
14.12.2020.
By
an
order
dated
17.12.2021, the trial court rejected the
application filed by the petitioners under
Order XXXIX, Rule 2-A of the CPC.
Against that rejection, the petitioners filed a
revision before the District Judge, which is
stated to be pending.

6. By the order impugned dated
28.02.2023, the aforementioned appeal
filed by the respondents was allowed and
the order of temporary injunction dated
15.01.2020 passed by the trial court was set
aside.

7. The contention of Shri Kunal Shah,
learned counsel for the plaintiff-petitioners,
is that the predecessor-in-interest of the
petitioners had a permissive right of usage
of the 40 feet road and the petitioners came
to acquire an easementary right of usage of
the 40 feet road, by way of an express grant
dated 11.12.2016 made by the Welfare
Association. It is stated that the reliance
placed by the appellate court on the layout
plan of the Ark City sanctioned by the
Meerut Development Authority7 disclosing
the presence of a boundary wall on the
northern side of the petitioners' land, is by
no means the actual factual position as
would be existing at the spot. Learned
counsel has referred to the report of the
Amin Commissioner dated 11.11.2019 in
which it was stated that to the north of Plot
No.291, both, Ark City as well as the 40
feet road are located, and that he reached
the site for inspection using that path and
had used the same path while returning. It
is stated that the 40 feet road is not a public
road or a chak road but an internal path
over
which
the
petitioners
have
easementary right of usage which they
came to acquire by way of an express grant
dated 11.12.2016. It is alleged that the
layout plan which was sanctioned on
530 INDIAN LAW REPORTS ALLAHABAD SERIES
29.01.2010, logically cannot contain the
description of the 40 feet road.

It is next contended by the learned
counsel that the appellate court did not
consider the Amin Commissioner's report
dated 11.11.2019 on the ground that the
said report had not been proved and
confirmed before the trial court, which is
an error in law, inasmuch as under Order
XXVI, Rules 9 and 10 of the CPC, the
report of the Commission is not required to
be proved or confirmed for it to be treated
as evidence as juxtaposed to the report of
the Commissioner prepared under Order
XXVI, Rule 14 of the CPC for purposes of
making partition. It is stated that in view of
the observations of the appellate court
regarding
the
report
of
the
Amin
Commissioner, the appellate court ought
not to have relied on the report reflecting
that the petitioners have two alternative
access to Plot No.291 on its west and
southern side. It is stated that the finding
recorded by the appellate court regarding
alternative routes to Plot No.291 is
manifestly perverse as the unpaved road
mentioned on the western side of the
petitioners' land leads nowhere. It is stated
that the appellate court has been swayed by
the fact that easementary right with regard
to the 40 feet road has not been expressly
claimed in the suit, whereas in view of the
settled law, easement by way of an express
grant can be adduced by implication. It is
contended that it is not appropriate for the
appellate court to hold a mini trial at the
stage of grant of temporary injunction,
when the fact was that prima facie case
regarding
easementary
right
of
the
petitioners was established. It is stated that
it is not open to the appellate court to
reassess
the
material
and
reach
a
conclusion different from the one reached
by the trial court if the one reached by the
trial court was reasonably possible on the
basis of material on record. In support of
his contentions, learned counsel for the
petitioners has relied upon the following
decisions :-

1. Wander Ltd. & Anr. vs.
Antox India Pvt. Ltd.8

2. Dalpat Kumar & Anr. vs.
Prahlad Singh & Ors.9

3. Anand Prasad Agarwalla vs.
Tarkeshwar Prasad & Ors.10

4. Zenit Mataplast Pvt. Ltd. vs.
State of Maharashtra & Ors.11

5. Misrilal Ramratan & Ors.
Mansukhlal & Ors. vs. A.S. Shaik
Fathimal & Ors.12

6. Santosh Dubey & Anr. vs.
Lala Ram Pal @ Lalloo Pal13

7. Levi Strauss & Co. vs.
Rajesh Agarwal14

8.
ML
Brother
LLP
vs.
Maheshkumar Bhuralal Tanna15

9. Hero Vinoth (Minor) vs.
Seshammal16

10. Mathai vs. Jordi Poulose @
Jordi17

11.
Bhagwan
Sahai
vs.
Narsingh Sahai18

12. Wasudeo & Anr. vs. Shri
Ashok19

13. Ram Swarup Gupta vs.
Bishun Narain Inter College & Ors.20

8. Shri Ashish Kumar Singh, learned
counsel appearing for the respondentWelfare Society, has stated that the Amin
Commissioner's report of 11.11.2019 itself
reflects the presence of two alternative
access roads to Plot No.291 on its western
and southern sides. It is stated that the trial
court completely overlooked this aspect of
the matter and only relied upon the
statement in the report regarding the 40 feet
road existing on the north of plot no.291
8 All. Chaudhary Chandra Veer Singh & Anr. Vs. President Ark City Residents Welfare Association,
 Meerut & Anr.
531
which the Amin Commissioner had used to
reach and leave plot no.291. It is
emphatically
stated
that
the
Amin
Commissioner's report is not a report under
Order XXVI, Rule 9 of the CPC but a
report
submitted
by
the
Amin
Commissioner, who is an employee of the
court, to conduct an inspection under Order
XXXIX, Rule 7 of the CPC for purposes of
consideration of the aforesaid application
for temporary injunction. Learned counsel
has placed reliance on the order of the trial
court dated 07.12.2021, which was passed
on the application for the petitioners moved
under Order XXXIX, Rule 2-A of the CPC
alleging violation of the order of temporary
injunction, to contend that the trial court
has observed therein that no amendment
application was filed by the petitioners to
amend their plaint seeking mandatory
injunction which renders the statement by
the
petitioners
suspicious
that
the
respondents are obstructing the path of the
petitioners by creating the wall and,
therefore, the trial court observed that no
direction can be issued for police assistance
in removing the wall. It is contended that it
has also been observed in the order that the
report of the Amin Commissioner dated
11.11.2019 has not been approved. It is
stated that the case of the petitioners
claiming easementary right is completely
false and has been made only for purpose
of gaining unauthorised access to the Plot
No.291 by using the wide road of Ark City.
It is stated that due to this fraudulent claim
by the petitioners, the interest and security
of the residents of Ark City would be
jeopardized. In support of his contentions,
learned counsel has relied on the following
judgments:-

1. Anand Prasad Agarwalla
(supra)

2. Prataprai N. Kothari vs.
John Braganza21

3. Tamil Nadu Hosing Board
vs. A. Viswam22

9. A perusal of the plaint dated
06.09.2019 filed by the plaintiff-petitioners
that is enclosed as Annexure-3 to the
petition reveals that plot No.291 is an
agricultural land which had been purchased
by means of a sale-deed dated 11.08.2016.
Allegations
have
been
made
therein
regarding usage of the 40 feet road by the
predecessors of the plaintiff-petitioners,
and that when objection was raised by the
defendant-respondents with regard to road
usage, then on the plaintiff-petitioners'
request, the defendant-respondents issued
the NOC. It has been stated that the
defendant-respondents are well read and
rich people who keep threatening the
plaintiff-petitioners. Other than the 40 feet
road there is no means of ingress and
egress to and from Plot No.291. It is stated
that in case the plaintiff-petitioners are
restrained from using the 40 feet road, they
will suffer irreparable harm and the crops
grown by the plaintiff-petitioners for their
sustenance would be destroyed which
cannot be compensated in future.

10. The contents of the alleged NOC
provide a carte blanche to the plaintiffpetitioners not only to use the road but also
to use the drain, the sewer and the
electricity of Ark City and the admitted
purpose being that the plaintiff-petitioners
would demarcate plots on Plot No.291 and
sell it to the third party. But on the
contrary, the plaint case, despite reference
to the NOC in paragraph no.4 of the plaint,
is that the plaintiff-petitioners are growing
crops for their sustenance. The plaint case
is repeated in the affidavit filed in support
of the application for temporary injunction.
532 INDIAN LAW REPORTS ALLAHABAD SERIES

11. On 06.09.2019, an ad interim exparte injunction order was granted in
favour of the plaintiff-petitioners and, on an
application (paper No. 16 Ga-2) moved by
the plaintiff-petitioners before the trial
court, a direction was issued to the Court
Amin to furnish a report with regard to the
situation on the spot in respect of the
property in dispute in the light of the
application 16-Ga-2.

12. The objection to the application
for temporary injunction was filed on
30.10.2019 by the defendants-respondents
in which it was denied that any farming
activity is being carried out by the plaintiffpetitioners and it was stated that as per the
information available with the defendantsrespondents, the plaintiff-petitioner may
carry on plotting activities over the
aforesaid plot. To reach the aforesaid Plot
No. 291, they are paving the existing road
on the western side of the plot. It was
denied that the plaintiff-petitioners have
any concern with the 40 feet road and its
usage by the plaintiff-petitioners was
denied. The issuance of NOC was denied
and it was alleged that the NOC is
misleading and prepared in a fraudulent
manner and that neither the defendantsrespondents nor any previous President or
Secretary of the Welfare Association had
issued any such NOC. It was stated that the
plaintiff-petitioner
no.1
is
a
former
Member of Legislative Assembly and
keeps threatening the residents of the
Colony
managed
by
the
Welfare
Association. It was stated that the plaintiffpetitioners had satisfied themselves with
regard to the existence of a road on the
western side of plot No. 291 prior to its
purchase for ingress and egress, but only to
harass the defendants-respondents, they are
attempting to use the 40 feet road by
breaking the boundary wall of the Ark City.
It was stated that Ark City is an approved
colony of the Development Authority and
the plaintiff-petitioners are seeking to
mislead by stating that plot No. 291 is also
part of Ark City and thus, with malafide
intention, is trying to jeopardize the
existence of Ark City. It was stated that the
plaintiff-petitioners have deliberately not
shown the path on the western side of plot
no. 291 in the plaint map. In the month of
August 2019, there was an altercation with
the plaintiff-petitioners with the residents
of Ark City residing near the 40 feet road,
in respect of which proceedings under
Sections 107/116 of the Code of Criminal
Procedure were initiated. It was stated that
the boundary wall of Ark city exists and the
plaintiff-petitioners are on the lookout for
demolishing it to use the 40 feet road.

13. It was denied that the 40 feet road
was ever used by the plaintiff-petitioners or
their predecessors and in case the boundary
wall does not exist on the road, the security
of the residents of Ark City would be
jeopardized. It was stated that Ark City is
an approved colony and the plaintiffpetitioners are attempting to set up an
illegal colony in plot No. 291 whose road
they want to create through Ark City. It
was stated that when attempt was made
by the plaintiff-petitioners to demolish
the
boundary
wall
forcibly,
the
defendant-respondents filed a complaint
against the plaintiff-petitioners and an
FIR was lodged under the provisions of
Section 147, 427, 506 IPC. It was stated
that the names of the President and
Secretary of the defendants-respondents,
who keep changing from time to time,
have not been stated in the plaint.

14. On 11.11.2019, the Court Amin
submitted his report alongwith a map, as
follows:-
8 All. Chaudhary Chandra Veer Singh & Anr. Vs. President Ark City Residents Welfare Association,
 Meerut & Anr.
533

"माननीय न्यायालय सिसिल जज
(िी०सि०), मेरठ।

मूलिाद िं०- 735 िन् 2019

चौ० चन्द्रिीर सिंह आसद बनाम
अध्यक्ष आर्क सिटीरैजीिेन्स आसद

ररपोटक अमीन र्मीशन

श्रीमान जी,

माननीय न्यायालय र्े आदेश
र्ा
पालन
र्रने
र्े
सलए
सदनांर्
11.11.2019 सनयत र्ी गयी थी सजिर्ी
िूचना
िादी
असििक्ता
महोदय
र्ो
व्यक्तक्तगत रूप िे तथा प्रसतिादीगण र्ो
रसज० िार् द्वारा पूिक में दे दी गयी थी। सनयत
सदनांर्
पर
िादी
असििक्ता
महोदय
उपक्तथथत हुए, सर्न्तु प्रसतिादी र्ी ओर िे
र्ोई उपक्तथथत नहीं हुआ, तो मैं न्यायालय
अमीन िादी असििक्ता महोदय र्े िाथ ग्राम
दायमपुर सजला मेरठ पहुंचा। जहां पहुंचर्र
प्रसतिादीगण र्े बारे में मालूमात र्ी, तो िहां
उपक्तथथत व्यक्तक्तयों ने अपना पररचय श्री
िोमपाल, िुनील र्ुमार, अमरीश त्यागी तथा
इलम सिंह र्ोषाध्यक्ष आर्क सिटी र्े रूप में
सदया। मैंने पक्षर्ारों र्ो अपना पररचय देते
हुए माननीय न्यायालय र्े आदेश िे अिगत
र्राया तथा सििासदत थथल तथा उिर्े
आि-पाि र्ा सनरीक्षण र्राने र्ा अनुरोि
सर्या, तो पक्षर्ारों ने मुझे सििासदत थथल ि
उिर्े आि-पाि र्ा सनरीक्षण र्राया। मैंने
सनरीक्षण र्रते हुए उिर्ा नक्शा नजरी
ए,बी,िी,िी, तैयार सर्या जो इि ररपोटक र्ा
अंग है।

श्रीमान जी सनरीक्षण र्े दौरान
पाया सर् िादी र्ी िम्पसि खिरा नं०-291
सजिे नक्शा नजरी में अक्षर ए,बी,िी,िी िे
सदखाया गया है। इि िम्पसि र्े उिर में
आर्क सिटी तथा िड़र्, पसिम में रास्ता
(खड़ंजा) ि िम्पसि अन्य, दसक्षण में रास्ता
(खड़ंजा), पूरब में िम्पसि अन्य र्ी क्तथथसत
बतायी गयी। िादी र्ी िम्पसि में उिर र्ी
तरफ एर् लोहे र्ा गेट लगा हुआ है। गेट र्े
उिर में ईंटों र्ा मलबा पड़ा है। मलबे र्े
बाद एर् िड़र् उिर र्ी तरफ र्ो गयी है
जो आर्क िीटी िे होते हुए बाहर चली जाती
है। ईटों र्े मलबे र्े पसिम ि पूरब में सबना
पलास्तर र्ी दीिार बनी है। इिी िड़र् िे
होर्र मैं सििासदत थथल तर् पहुंचा तथा
िासपि आया सजि थथान पर ईटों र्ा मलबा
पड़ा है िह थथान नक्शा नजरी में लाल रंग िे
सदखाया गया है।

श्रीमान जी िादी असििक्ता महोदय
ने बताया सर् हमारी िम्पसि खिरा नं०-291
क्तथथत दायमपुर, मेरठ र्े हम मासलर् ि
र्ासबज है सजिर्ा एर् मात्र रास्ता उिर र्ी
तरफ बनी िड़र् जो आर्क सिटी िे होर्र
बाहर सनर्ल जाती है सर्न्तु प्रसतिादीगण
हमारे लोहे र्े गेट र्े आगे दीिार लगा र्र
हमारा रास्ता बन्द र्रने र्ी िमर्ी दे रहे हैं,
जबसर् उन्हें हमारा रास्ता बन्द र्रने र्ा
र्ोई असिर्ार नहीं है जबसर् मौर्े पर
मौजूद प्रसतिादी र्े लोगों ने बताया सर् यह
िड़र् आर्क सिटी र्ी है तथा िादी र्ा र्ोई
िास्ता इि रास्ते िे नहीं है तथा बताया सर्
िादी र्े गेट र्े आगे दीिार बनी थी सजिे
िादी ने आज ही सगराया है सजिर्ी सशर्ायत
हमने 100 नम्बर पर र्ी थी। मौर्े पर पड़ी
ईटें उिी दीिार र्ा मलबा बताया गया। अन्य
र्ोई बात मौर्े पर नहीं बतायी गयी।

श्रीमान जी परिाना र्मीशन ररपोटक
अमीन मय नक्शा नजरी र्े उसचत आदेश
हेतु दाक्तखल माननीय न्यायालय सर्या जाता
है।

तैयारर्ताक
ह०अप०
11/11/2019
िीरेन्द्र र्ुमार
534 INDIAN LAW REPORTS ALLAHABAD SERIES
(र्ोटक अमीन) सिसिल र्ोटक, मेरठ"

15. A rejoinder affidavit was filed by
the plaintiff-petitioner no.2 on 18.12.2019, in
which it was stated that the defendantsrespondents are not lawful President and
Secretary of the so-called Society and neither is
the management committee duly registered and,
therefore, they are not eligible to object or oppose
the suit. In paragraph 4 of the rejoinder affidavit,
the plaintiff-petitioners changed their stand which
they professed in their plaint and affidavit. It was
stated that initially after purchase of plot No. 291,
farming was started. Thereafter, the plaintiffpetitioners stopped farming activities and created a
boundary wall and they are using the 40 feet road
for ingress and egress and there is no road on the
western side of plot no. 291 and neither are
plaintiff-petitioners paving road on the western
side. It was stated that the former President and
Secretary of the Welfare Association had given
NOC which has not been cancelled and is still in
effect.

16. It was stated that in the report of the
Amin, the agricultural land of the plaintiffpetitioners and the road to and from Plot No.291
has been shown, and the 40 feet road was used by
the Amin to reach the site and even at that point of
time, there was no wall in front of the iron gate of
Plot No.291. It was stated that in five other places
in Ark City, roads were open with no boundary
walls through which people from nearby villages
pass. Alongwith the rejoinder affidavit, the
information received by the plaintiff-petitioners
pursuant to an application filed by them under the
Right to Information Act from the Deputy
Registrar, Firms, Societies and Chits, Meerut
Division, Meerut23 dated 30.10.2019 was also
enclosed in which it was stated that the present
Board of the Welfare Association is not registered
under Section 4(1) of the Societies Act. An
affidavit dated 16.12.2019 allegedly sworn by a
former President of the Welfare Association was
also enclosed in which he affirmed the execution
of the NOC.

17. While allowing the application for
temporary injunction, the trial court refers
to the NOC issued in favour of the
8 All. Chaudhary Chandra Veer Singh & Anr. Vs. President Ark City Residents Welfare Association,
 Meerut & Anr.
535
plaintiff-petitioners
and
the
affidavit
executed by the former alleged President of
the Welfare Association. Also referred by
the trial court are several documents filed
by various other persons of the Board of
the Welfare Association in which it was
denied that any NOC was issued in 2016
regarding usage of the road belonging to
Ark City in favour of the plaintiffpetitioners. The trial court observes that in
case a wrong NOC was issued, then the
defendant-respondents
have
not
demonstrated
what
proceedings
were
initiated against the former President of the
Welfare Association. It is observed that
conflicting affidavits have been filed with
regard to the NOC pertaining to the usage
of the road and, therefore, the facts can be
determined after evidence. It is then
observed that at present the NOC supports
the case of the plaintiff-petitioners. The
trial court states that there is no Society
working with regard to Ark City and some
persons of the colony are opposing the
usage of the road due to their self-interest.
The information supplied by the Deputy
Registrar is referred to. The trial court goes
on to observe that without registration, the
present Board has no authority to question
the issuance of NOC by the former
President of the Welfare Association. The
trial court notices that both parties had filed
photographs and in some photographs, a
wall is reflected on the 40 feet road and in
some photographs it is shown as open and
that without evidence, it could not be held
that which photographs are correct.

18. With regard to the Amin report,
the trial court observes that neither party
had filed any objection to that report. It is
stated that a perusal of the Amin report
makes it clear that on the north side of the
Plot No.291, there is a road going through
Ark City and a gate is also shown on the 40
feet road from which it can be guessed that
the plaintiff-petitioners use that road for
coming to their plot from Ark City. It is
stated that in his report, the Amin has show
brick 'malba' (debris) on the north of the
gate and has also said about the existence
of the 40 feet road. The trial court observes
that the defendant-respondents have said
that
the
plaintiff-petitioners'
land
is
surrounded by boundary wall and goes on
to state that definitely after getting
assurance from Welfare Association, the
plaintiff-petitioners got a boundary wall
constructed on their land and constructed a
gate on the north side of that plot for usage
of the 40 feet road but at present the
defendant-respondents are opposing its
usage even though they have not got their
Board registered. It is stated that contrary
to that, the plaintiff-petitioners had got
consent of the Welfare Association to use
the 40 feet road as a result of which they
got a gate constructed on the 40 feet road
and have been using that path to reach and
leave their property. It is stated that since
the
former
Board
of
the
Welfare
Association had issued an NOC which has
not been rescinded by any other Board,
therefore, there is a prima facie case in
favour of the plaintiff-petitioners. It is
further held that irreparable injury would
be caused to the plaintiff-petitioners if they
are not permitted to use the 40 feet road.
Accordingly, the temporary injunction was
granted that during pendency of the suit,
neither the defendant-respondents nor any
representative,
employee,
associate,
supervisor or anti-social elements would
interfere in the usage of the 40 feet road by
the plaintiff-petitioners.

19. Challenging the aforesaid order of
temporary
injunction,
the
defendantrespondents
filed
the
appeal.
After
considering the reply of the plaintiff-
536 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioners, the appellate court allowed the
appeal and set aside the order dated
15.01.2020 passed by the trial court. The
appellate court observed that Plot No.291 is
stated to have been owned and occupied by
the plaintiffs on the basis of the sale-deed
dated 11.08.2016 and the said plot has been
shown in the site-map attached with the
plaint. Plot No. 291 and Ark City to the
north of this land, are separate plots.
Plaintiffs
have
not
stated
in
their
application
that
they
have
any
right/ownership over the property of Ark
City, but only in the maps displayed at the
end of the plaint it has been stated that they
use the 40 feet road located in Ark City. It
is observed that according to the plaintiffs,
the former owner of Plot No. 291 was also
using the 40 feet road. From perusal of a
certified copy of the sale-deed dated
11.08.2016 which was filed by the
plaintiffs in the trial court, the appellate
court observed that the subject matter of the
said sale-deed is Plot No. 291 measuring
0.6070 hectares which is agricultural land
whose description is mentioned on the page
no. 14 of the deed, and that there is no path
shown to the north of the said land and nor
such path has been mentioned anywhere in
the entire sale-deed. It is observed that the
sale-deed available on the trial court's
record alongwith the revenue map also
does not show any such path on the north
side of plot no. 291. Contrary to this, the
defendants have stated that Ark City is a
colony approved by the Development
Authority and the wall of Ark City has
been constructed on the disputed site, the
map of which is approved by the
Development Authority. It was stated by
defendants that the boundary walls are for
the convenience of the residents of Ark
City. The appellate court further observed
that a copy of the map approved by the
Development
Authority
was
filed
alongwith the counter-affidavit on the
record of the trial court in which the side
boundary of Ark City has been shown in
the map, from which it appeared that the 40
feet road ends at the side boundary of the
Ark City, that is, it appears to be restricted
for the use of the residents of Ark City. It is
noted that in the Amin report with map, a
brick paved path has been shown to the
south of Plot No. 291, from west to east. It
is observed by the appellate court that
although, the Amin report was available in
the trial court's file, the same had not been
confirmed, but it is evident from the Amin
Report and the map that brick paths are
situated to the south and west of plot
No.291. Therefore, the statement made by
the plaintiffs in paragraph No.5 of the
application for temporary injunction, that
other than the disputed route, there is no
other path to reach Plot No. 291, is prima
facie not acceptable. It is observed by the
appellate court that from the perusal of the
file of the trial court, it is also evident that
there is no mention of the rights/ground in
the application, as to on which basis the
plaintiffs are demanding the right of way
on the land of the defendants, which does
not belong to the plaintiffs, for the gainful
use of the land owned by them in Plot No.
291. Whereas, the right to an easement on
the path situated in the colony of the
defendants, had not been claimed by the
plaintiffs. Merely on the ground that the 40
feet road has been used or is stated to have
been used by the former owner and that the
40 feet road is also stated to have been used
by the plaintiff himself, it is a question of
evidence and prima facie evidence of any
such 40 feet road had not been placed
before the trial court by the plaintiffs. It is
observed by the appellate court that as far
as the NOC is concerned, in this regard, the
defendants have clearly denied to have
given any such NOC. Then in such a
8 All. Chaudhary Chandra Veer Singh & Anr. Vs. President Ark City Residents Welfare Association,
 Meerut & Anr.
537
situation, the evidence of the parties is yet
to come in relation to the said NOC.
Merely on the basis of the NOC having
been issued on the letter pad, prima facie
no case is found to exist in favour of the
plaintiffs and the balance of convenience
was also not in favour of the plaintiffs. An
FIR against the plaintiffs had been lodged.
It is observed by the appellate court that the
impugned order of the trial court has been
passed mainly on the basis of the NOC and
report of the Amin, whereas the evidence
of the parties regarding the NOC in
question is yet to come before the trial
court. It is held by the appellate court that
the order of the trail court had been passed
on the basis of possibilities contrary to the
evidence available on record of the trial
court, which is not sustainable. The appeal
was accordingly allowed.

20. The contents of the NOC are as
under :-

"अनापसि प्रमाण पत्र

िसमसत द्वारा 'आर्कसिटी' र्ालोनी
क्तथथत ग्राम नंगलाताशी ि दायमपुर, सदल्ली-
रूढर्ी
बाईपाि
रोड़,
मेरठ
र्ा
रख
रखाि/मैंन्टीनेन्स सर्या जा रहा है। उक्त
र्ालोनी आर्कसिटी मेरठ सिर्ाि प्रासिर्रण,
मेरठ द्वारा स्वीर्ृत र्ालोनी है, सजिर्ा स्वीर्ृत
मानसचत्र नम्बर 12/09 सदनांर् 29.01.2010 है।
र्ालोनी आर्कसिटी र्े दसक्षण में खिरा नम्बर
291, ग्राम दायमपुर, परगना ि तहिील ि सजला
मेरठ र्ी भूसम है, सजिर्े स्वामी श्री चन्द्रिीर
सिंह पुत्र श्री िुमेर सिंह ि श्री सििर्े अहलाित
पुत्र श्री चन्द्रिीर सिंह सनिािीगण िी-137,
िार्ेत, मेरठ शहर है आर्कसिटी र्े दसक्षण में
क्तथथत में क्तथथत उक्त खिरा नम्बर 291 र्ी भूसम
र्ो उिर्े स्वामी सिर्सित र्रना चाहते है तथा
उिमें प्लाट्ि बनाना चाहते है। आर्कसिटी
र्ालोनी र्ा 12 मीटर चौिा मुख्य रास्ता
र्ालोनी र्े दसक्षण में क्तथथत अक्तन्तम प्लाट्ि
िंख्या ए-85 ि बी-41 र्े बीच जार्र िमाप्त हो
जाता है, जहां पर आर्कसिटी र्ालोनी र्ी
बाउण्ड्रीिाल और उिर्े उपरान्त दसक्षण में
उक्त श्री चन्द्रिीर सिंह आसद र्ी खिरा नम्बर
291 र्ी भूसम है। आर्कसिटी क्तथथत उक्त 12
मीटर चौड़े रास्ते ि उिर्े िाथ बनी नासलयों ि
िीिर लाईन र्ो उक्त चन्द्रिीर सिंह अपनी भूसम
िे जोड़ना चाहते है सजिर्े सलए उन्होंने
आर्कसिटी र्े ििलैपिक िे अनुरोि सर्या है। तो
उन्होने र्हॉ सर् तुम लोग स्वयं इि र्ा सनणकय
र्रेगे इि आिार पर हमने िभी र्ी िहमसत िे
रास्ता प्रदान र्र सदया यसद आर्कसिटी र्ालोनी
र्ा 12 मीटर चौिा रास्ता दसक्षण क्तथथत श्री
चन्द्रिीर सिंह आसद र्ी भूसम खिरा नम्बर 291
िे जोिा जाता है जो र्भी सर्िी भी अन्य आदेश
पर रास्ता बन्द नहीं सर्या जायेगा क्ोंसर् उनर्ा
र्ोई अन्य आनेेे जाने र्ा रास्ता नहीं हैं तथा
उन्हें उक्त रास्ते िे आने जाने र्ी िुसििा प्रदान
र्ी जाती है तथा रास्ते र्े िाथ लगे िीिर ि
नाली ि सबजली र्े प्रयोग र्ी अनुमसत चन्द्रिीर
सिंह आसद र्ो दी जाती है, तो इिमें िसमसत र्ो
र्ोई आपसि नहीं हो और न ही भसिष्य में होगी।

चन्द्रिीर सिंह सििर्े अहलाित द्वारा
जो प्लाट्ि सजन लोगों र्ो सिक्रय सर्ये जायेंगे
िह र्ोई अन्य िोिाईटी नहीं बनायेंगे इिी
िोिाईटी िे अपना रसजस्ट्रेशन र्रायेंगे।
सदनांर्ः- 11.12.2016
हस्ताक्षर अध्यक्ष िसमसतः हस्ताक्षर
िसचि
िसमसतः"

21. In the NOC it is stated that the
plaintiff-petitioners want to develop Plot
No.291 and to build certain plots thereon;
that the plaintiff-petitioners want to join
their land to the 12 meters wide road
situated in Ark City and also with the
drains and sewer lines for which they
requested the developer of Ark City, who
538 INDIAN LAW REPORTS ALLAHABAD SERIES
then said that decision may be taken by
them; on that basis, with the consent of all,
the 40 feet road has been provided and the
40 feet road would not be closed by means
of any other order because the plaintiffpetitioners have no other path and they are
being provided with the benefit of using the
40 feet road and permitted to use the sewer,
the drains and electricity, and, in this
regard, the Welfare Association would
have no objection in the present or in
future. It is further mentioned in the NOC
that in respect of the plots which would be
sold by the plaintiff-petitioners, those third
parties will not form any other society but
would be registered in the Welfare
Association itself.

22.