The court ruled that the petitioner failed to establish a prima facie case for a right to passage, as an alternative route was provided and the land was leased to developers.

JUDGMENT :

(Ajit Kumar, J.)

1. Heard Sri Anil Kumar Mehrotra, learned counsel for the petitioner, Sri Anurag Khanna, learned Senior Advocate assisted by Sri Rohan Gupta, learned counsel for the respondent No.- 1 and Sri Kaushalendra Nath Singh, learned counsel for the respondent No. -2.

2. Petitioner is an educational society that runs an educational institutue in plot No.- 579 situate at village Sultanpur, Pargana-Dadri, Tehsil & District- Gautam Budh Nagar. It instituted a suit being O.S. No. - 810 of 2017 in the court of Civil Judge (S.D.), Gautam Budh Nagar for a relief of permanent prohibitory injunction restraining the defendants from interfering in their right to use passage in question to reach the peripheral road/ sector road which is shown as ‘A’ ‘B’ ‘C’ & ‘D’ in the plaint map. Their application for temporary injunction having been rejected by the trial court under order dated 17th January, 2018 came to be affirmed in Misc. Civil Appeal No. - 02 of 2018 by the District Judge, Gautam Budh Nagar under order dated 7th March, 2018 and the petitioner has approached this Court assailing these two orders.

3. The submission advanced by learned counsel for the petitioner is that passage in question links the villages of Sultanpur and Asgarpur and it is still being used as a passage even by the respondents and since the passage was being used for more than 20 years and it earlier fell within the land of Gram Panchayat which subsequently came to be requisitioned and transferred to the private parties/ real state developers, they could not have restrained the petitioners’ right to use the passage. The pleadings had been sought to be explained as indicative of easementary rights as to passage.

4. One of the arguments advanced was also to the effect that alternative passage which had been provided by the respondents pursuant to some order passed in Public Interest Litigation (PIL) was not sufficient and wide enough to make the school premises approachable by a fire-brigade vehicle in the event of any emergency in the school, as a large number of children were studying.

5. Per contra it is argued by Sri Anurag Khanna, learned Senior Advocate assisted by Sri Rohan Gupta, learned counsel for the contesting respondents that the land has been leased out to them to develop a housing colony and this passage was only used by them to carry building material. Now since 80% of the construction was over, this passage needed to be fortified by putting up a boundary wall to make it a developed colony free from any unlawful and antisocial elements trespassing to the colony.

6. It is argued that after all it was a matter of security of the residents of the colony for whom it had been developed. It was also submitted by learned Senior Advocate that petitioner had no right to have any access to the peripheral road through the property of the answering respondent. It was further submitted by learned Senior Advocate that Pubic Interest Litigations that were filed, were three in numbers bearing Nos.- 24294 of 2012, 34318 of 2010 and 39813 of 2010 and it was after hearing the respective parties that a detailed order was passed asking the authorities to provide an alternative route to have access to the peripheral/ sector road and it was after the alternative routes were developed and road map was placed before the Court that the Division Bench disposed of the petitions with a direction that villagers would be using the alternative road and for the use of alternative road no obstructions will be caused by the officers/ employees of Yamuna Express-way Industrial Development Authority and J.P. Infratech Ltd. The road plan that was approved by this Court, was made part of the order as scheduled – ‘A’. Thus, according to Sri Khanna, learned Senior Advocate, no further dispute remained and the present suit itself was not maintainable. Sri Khanna also submitted that Public Interest Litigation was relating to the entry and exist point of the villagers of Sultanpur