1

A.F.R.

Neutral Citation No. - 2023:AHC:146395

RESERVED

Court No. - 1

Case :- MATTERS UNDER ARTICLE 227 No. - 4923 of 2023

Petitioner :- Chaudhary Chandra Veer Singh And Another

Respondent :- President Ark City Residents And Another

Counsel for Petitioner :- Kunal Shah,Suvansit Kumar Jaiswal,Sr.

Advocate,Vipul Raj Gautam

Counsel for Respondent :- Ajay Kumar Singh,Ashish Kumar Singh

Hon'ble Jayant Banerji , J .

1.In the aforesaid petition, the array of parties is as under:-

“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

2

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 tenure-holders being bhumidhar with

transferable rights over Plot No.291 admeasuring about 0.6070 hectares of

land located in Village-Dayampur, 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/road

1

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 Association

2

, a Society duly registered

under the Societies Registration Act, 1860

3

and which, as per the

provisions of the Uttar Pradesh Apartment (Promotion, Ownership and

Maintenance) Act, 2010

4

, 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 Certificate

5

in favour of the petitioners whereby the

140 feet road

2Welfare Association

3Societies Act

4Apartment Act

5NOC

3

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 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, 1908

6

was filed and an Amin Commissioner was

appointed who is stated to have submitted his spot inspection report on

6CPC

4

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 Authority

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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 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

7Development Authority

5

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 Pal

13

81990 (Supp) SCC 727

9(1992) 1 SCC 719

10(2001) 5 SCC 568

11(2009) 10 SCC 388

121995 Supp (4) SCC 600

13Second Appeal No.955 of 2019, decided on 13.09.2019

6

7.Levi Strauss & Co. vs. Rajesh Agarwal

14

8.ML Brother LLP vs. Maheshkumar Bhuralal Tanna

15

9.Hero Vinoth (Minor) vs. Seshammal

16

10.Mathai vs. Jordi Poulose @ Jordi

17

11.Bhagwan Sahai vs. Narsingh Sahai

18

12.Wasudeo & Anr. vs. Shri Ashok

19

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

20

8.Shri Ashish Kumar Singh, learned counsel appearing for the

respondent-Welfare 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 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

14(2018) SCC OnLine Del 6421

15(2022) SCC OnLine Del 1452

16(2006) 5 SCC 545

17(2011) SCC OnLine Ker 3970

18(1909) ILR 31 ALL 612

19Second Appeal No.60 of 2010, decided on 17.01.2020

20AIR 1987 SC 1242

7

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 Braganza

21

3.Tamil Nadu Hosing Board vs. A. Viswam

22

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

plaintiff-petitioners 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

21(1999) 4 SCC 403

22(1996) 8 SCC 259

8

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.

11.On 06.09.2019, an ad interim ex-parte 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 plaintiff-petitioners and it

was stated that as per the information available with the defendants-

respondents, 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 defendants-respondents 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 plaintiff-

petitioners 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

9

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

plaintiff-petitioners 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:-

"माननीय न्यायालय िसिविविल जज (सिवी०डिडि०ड), मेरठ।

मूलविाद सिवं०ड- 735 सिवन् 2019

चौ०ड चन्द्रविीर िसिवंह आदिद बनाम अध्यक्ष आदक

र िसिवटीरैजीडिेन्सिव आदिद

िरपोर्ट

र अमीन कमीशन

श्रीमान जी,

माननीय न्यायालय के आददेश का पालन करने के िलए िदनांक

11.11.2019 िनयत की गयी थी िजसिवकी सिवूचना विादी अिधिविक्ता महोर्दय कोर्

व्यिक्तगत रूप सिवे तथा प्रतितविादीगण कोर् रिज०ड डिाक द्वारा पूवि

र मे दे दी गयी थी। िनयत

10

िदनांक पर विादी अिधिविक्ता महोर्दय उपित स्थत ह

ुए

, िकन्तु प्रतितविादी की ओर सिवे कोर्ई

उपित स्थत नहीं ह

ुआद

, तोर् म

ै न्यायालय अमीन विादी अिधिविक्ता महोर्दय के सिवाथ ग्राम

दायमपुर िजला मेरठ पह

ुंचा। जहां पहुंचकर प्रतितविादीगण के बारे मे मालूमात की

, तोर्

विहां उपित स्थत व्यिक्तयों ने अपना पिरचय श्री सिवोर्मपाल, सिवुनील क

ुमार

, अमरीश त्यागी

तथा इलम िसिवंह कोर्षाध्यक्ष आदक

र िसिवटी के रूप मे िदया। मैने पक्षकारों कोर् अपना

पिरचय देते ह

ुए माननीय न्यायालय के आददेश सिवे अविगत कराया तथा िविविािदत स्थल

तथा उसिवके आदसिव-पासिव का िनरीक्षण कराने का अनुरोर्धि िकया, तोर् पक्षकारों ने मुझे

िविविािदत स्थल वि उसिवके आदसिव-पासिव का िनरीक्षण कराया। म

ैने िनरीक्षण करते हुए

उसिवका नक्शा नजरी ए,बी,सिवी,डिी, तैयार िकया जोर् इसिव िरपोर्ट

र का अंग है।

श्रीमान जी िनरीक्षण के दौरान पाया िक विादी की सिवम्पित्ति खसिवरा नं०ड-291

िजसिवे नक्शा नजरी म

े अक्षर ए

,बी,सिवी,डिी सिवे िदखाया गया है। इसिव सिवम्पित्ति के उत्तिर म

े

आदक

र िसिवटी तथा सिवड़क

, पित श्चम म

े रास्ता

(खड़ंजा) वि सिवम्पित्ति अन्य, दिक्षण म

े

रास्ता (खड़ंजा), पूरब म

े सिवम्पित्ति अन्य की ित स्थित बतायी गयी। विादी की सिवम्पित्ति मे

उत्तिर की तरफ एक लोर्हे का गेट लगा ह

ुआद है। गेट के उत्तिर मे ईंटों का मलबा पड़ा है।

मलबे के बाद एक सिवड़क उत्तिर की तरफ कोर् गयी है जोर् आदक

र सिवीटी सिवे होर्ते हुए बाहर

चली जाती है। ईटों के मलबे के पित श्चम वि पूरब म

े िबना पलास्तर की दीविार बनी है।

इसिवी सिवड़क सिवे होर्कर म

ै िविविािदत स्थल तक पहुंचा तथा विािपसिव आदया िजसिव स्थान पर

ईटों का मलबा पड़ा है विह स्थान नक्शा नजरी म

े लाल रंग सिवे िदखाया गया है।

श्रीमान जी विादी अिधिविक्ता महोर्दय ने बताया िक हमारी सिवम्पित्ति खसिवरा

नं०ड-291 ित स्थत दायमपुर, मेरठ के हम मािलक वि कािबज है िजसिवका एक मात

रास्ता उत्तिर की तरफ बनी सिवड़क जोर् आदक

र िसिवटी सिवे होर्कर बाहर िनकल जाती है

िकन्तु प्रतितविादीगण हमारे लोर्हे के गेट के आदगे दीविार लगा कर हमारा रास्ता बन्द

करने की धिमकी दे रहे ह

ै

, जबिक उन्ह

े हमारा रास्ता बन्द करने का कोर्ई अिधिकार

नहीं है जबिक मौके पर मौजूद प्रतितविादी के लोर्गों ने बताया िक यह सिवड़क आदक

र िसिवटी

की है तथा विादी का कोर्ई विास्ता इसिव रास्ते सिवे नहीं है तथा बताया िक विादी के गेट के

आदगे दीविार बनी थी िजसिवे विादी ने आदज ही िगराया है िजसिवकी िशकायत हमने 100

नम्बर पर की थी। मौके पर पड़ी ईट

े उसिवी दीविार का मलबा बताया गया। अन्य कोर्ई

बात मौके पर नहीं बतायी गयी।

श्रीमान जी परविाना कमीशन िरपोर्ट

र अमीन मय नक्शा नजरी के उिचत

आददेश हेतु दािखल माननीय न्यायालय िकया जाता है।

तैयारकतार

ह०डअप०ड

11/11/2019

विीरेन्द्र क

ुमार

(कोर्ट

र अमीन

) िसिविविल कोर्ट

र

, मेरठ"

11

12

15.A rejoinder affidavit was filed by the plaintiff-petitioner no.2 on

18.12.2019, in which it was stated that the defendants-respondents 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 plaintiff-

petitioners 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 plaintiff-petitioners 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, Meerut

23

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 plaintiff-petitioners and the

23Deputy Registrar

13

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 plaintiff-petitioners. 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

14

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

defendant-respondents filed the appeal. After considering the reply of the

plaintiff-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

15

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

16

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 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 :-

"अनापित्ति प्रतमाण पत

सिविमित द्वारा 'आदक

रिसिवटी’ कालोर्नी ित स्थत ग्राम नंगलाताशी वि दायमपुर

, िदल्ली-रूढकी

बाईपासिव रोर्ड़, मेरठ का रख रखावि/म

ैन्टीनेन्सिव िकया जा रहा है। उक्त कालोर्नी आदकरिसिवटी मेरठ

िविकासिव प्रतािधिकरण, मेरठ द्वारा स्विीक

ृत कालोर्नी है

, िजसिवका स्विीक

ृत मानिचत नम्बर

12/09

िदनांक 29.01.2010 है। कालोर्नी आदक

रिसिवटी के दिक्षण मे खसिवरा नम्बर

291, ग्राम दायमपुर,

परगना वि तहसिवील वि िजला मेरठ की भूिम है, िजसिवके स्विामी श्री चन्द्रविीर िसिवंह पुत श्री सिवुमेर

िसिवंह वि श्री िविविके अहलावित पुत श्री चन्द्रविीर िसिवंह िनविासिवीगण डिी-137, सिवाके त, मेरठ शहर है

आदक

रिसिवटी के दिक्षण मे ित स्थत मे ित स्थत उक्त खसिवरा नम्बर

291 की भूिम कोर् उसिवके स्विामी

िविकिसिवत करना चाहते है तथा उसिवम

े प्लाट्सिव बनाना चाहते है। आदकरिसिवटी कालोर्नी का

12

मीटर चौडिा मुख्य रास्ता कालोर्नी के दिक्षण म

े ित स्थत अित न्तम प्लाट्सिव सिवंख्या ए

-85 वि बी-41

के बीच जाकर सिवमाप्त होर् जाता है, जहां पर आदक

रिसिवटी कालोर्नी की बाउण्डिरीविाल और उसिवके

उपरान्त दिक्षण म

े उक्त श्री चन्द्रविीर िसिवंह आदिद की खसिवरा नम्बर

291 की भूिम है। आदक

रिसिवटी

ित स्थत उक्त 12 मीटर चौड़े रास्ते वि उसिवके सिवाथ बनी नािलयों वि सिवीविर लाईन कोर् उक्त चन्द्रविीर

िसिवंह अपनी भूिम सिवे जोर्ड़ना चाहते है िजसिवके िलए उन्होंने आदक

रिसिवटी के डिविलैपसिवर सिवे अनुरोर्धि

िकया है। तोर् उन्होर्ने कहॉ िक तुम लोर्ग स्वियं इसिव का िनण

रय करेगे इसिव आदधिार पर हमने सिवभी की

सिवहमित सिवे रास्ता प्रतदान कर िदया यिद आदक

रिसिवटी कालोर्नी का

12 मीटर चौडिा रास्ता दिक्षण

ित स्थत श्री चन्द्रविीर िसिवंह आदिद की भूिम खसिवरा नम्बर 291 सिवे जोर्डिा जाता है जोर् कभी िकसिवी भी

अन्य आददेश पर रास्ता बन्द नहीं िकया जायेगा क्योंिक उनका कोर्ई अन्य आदनेेे जाने का

रास्ता नहीं ह

ै तथा उन्हे उक्त रास्ते सिवे आदने जाने की सिवुिविधिा प्रतदान की जाती है तथा रास्ते के

सिवाथ लगे सिवीविर वि नाली वि िबजली के प्रतयोर्ग की अनुमित चन्द्रविीर िसिवंह आदिद कोर् दी जाती है,

तोर् इसिवम

े सिविमित कोर् कोर्ई आदपित्ति नहीं होर् और न ही भिविष्य मे होर्गी।

17

चन्द्रविीर िसिवंह िविविके अहलावित द्वारा जोर् प्लाट्सिव िजन लोर्गों कोर् िविक्रय िकये जाय

ेगे

विह कोर्ई अन्य सिवोर्सिवाईटी नहीं बनाय

ेगे इसिवी सिवोर्सिवाईटी सिवे अपना रिजस्टरेशन करायेगे।

िदनांकः- 11.12.2016

हस्ताक्षर अध्यक्ष सिविमितः हस्ताक्षर सिविचवि सिविमितः"

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 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 plaintiff-petitioners 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.It is not in dispute that the 40 feet road is part of the sanctioned plan

of the Development Authority in respect of Ark City. The plaintiff-

petitioners are claiming their right of its usage on the basis of an alleged

grant that flows from the NOC. Given the dispute being raised by the

defendant-respondents, the grant has to be proved by evidence before the

court can give its imprimatur to the existence of the alleged easement by

grant.

23.Learned counsel for the plaintiff-petitioners has relied upon the

judgment of the Supreme Court in the case of Hero Vinoth (supra), to

contended that an easement by way of grant does not get extinguished

even though another passage is available to the dominant owner.

However, in that case, the Supreme Court was considering a Civil Appeal

that arose from a judgment of a High Court in second appeal, that is to

18

say, after the trial and regular first and second appeals had concluded, and

not a matter arising out of an application for temporary injunction. The

Supreme Court has observed as follows:-

“25.In the case at hand the High Court found that the approach

of the trial court and the first appellate court was erroneous

inasmuch as they proceeded on the basis as if it is a case of

easement of necessity. Had the trial court and the first

appellate court considered the evidence in the light of the

respective stands of the parties and then concluded one way or

the other, the position would have been different. When the

approach was fundamentally wrong the High Court cannot be

faulted for having gone into the question as to what was the

proved intention of the party as culled out from the partition deed.

The relevant (translated) portion reads as follows:

“Aravamutha Chettiar commonly enjoy the well situate on the

portion allotted to Purushothaman Chettiar, likewise

Purushothaman Chettiar commonly enjoy the lane situate on the

portion allotted to Aravamutha Chettiar. Well is the exclusive

property of Purushothaman Chettiar and lane is the exclusive

property of Aravamutha Chettiar.”

26.Though an attempt was made by learned counsel for the

appellant to contend that the quoted portion was only the preamble and

not the intention of the parties, the same is clearly untenable. Earlier to

the quoted portion it has been noted as follows:

“As per the above arrangement we decided to enter into the

partition deed and hence we are writing this partition deed. We

should take possession of our respective shares and enjoy the

same uninterruptedly forever.”

27.Therefore, there is no manner of doubt that the intention was

clear that it was a grant and not an easement of necessity which could

be extinguished.

28.The question whether an easement is one acquired by grant (as

contrasted from an easement of necessity) does not depend upon

absolute necessity of it. It is the nature of the acquisition that is

relevant. Many easements acquired by grant may be absolutely

necessary for the enjoyment of the dominant tenement in the sense that

it cannot be enjoyed at all without it. That may be the reason for the

grant also. But easement of grant is a matter of contract between the

parties. In the matter of grant the parties are governed by the terms of

the grant and not by anything else. Easement of necessity and quasi-

easement are dealt with in Section 13 of the Act. The grant may be

express or even by necessary implication. In either case it will not

amount to an easement of necessity under Section 13 of the Act even

though it may also be an absolute necessity for the person in whose

favour the grant is made. Limit of the easement acquired by grant is

controlled only by the terms of the contract. If the terms of the grant

restrict its user subject to any condition the parties will be governed by

those conditions. Anyhow the scope of the grant could be determined

by the terms of the grant between the parties alone. When there is

nothing in the term of the grant in this case that it was to continue only

19

until such time as the necessity was absolute; in fact even at the time it

was granted, it was not one of necessity. If it is a permanent

arrangement uncontrolled by any condition, that permanency in user

must be recognised and the servient tenement will be recognised and

the servient tenement will be permanently burdened with that disability.

Such a right does not arise under the legal implication of Section 13 nor

is it extinguished by the statutory provision under Section 41 of the Act

which is applicable only to easement of necessity arising under Section

13.

29.An easement by grant does not get extinguished under Section

41 of the Act which relates to an easement of necessity. An easement of

necessity is one which is not merely necessary for the reasonable

enjoyment of the dominant tenement, but one where dominant tenement

cannot be used at all without the easement. The burden of the servient

owner in such a case is not on the basis of any concession or grant

made by him for consideration or otherwise, but it is by way of a legal

obligation enabling the dominant owner to use his land. It is limited to

the barest necessity however inconvenient it is irrespective of the

question whether a better access could be given by the servient owner

or not. When an alternate access becomes available, the legal necessity

of burdening the servient owner ceases and the easement of necessity

by implication of law is legally withdrawn or extinguished as statutorily

recognised in Section 41. Such an easement will last only as long as the

absolute necessity exists. Such a legal extinction cannot apply to an

acquisition by grant and Section 41 is not applicable in such case.”

(emphasis supplied)

24.As noted above, in view of the objections filed by the defendant-

respondents to the application for temporary injunction, the very existence

of the NOC, which document, the plaintiff-petitioners are claiming to be a

grant of an easementary right, is under a cloud and it is matter of evidence

whether there was a valid grant. Therefore, no benefit of that judgment

can be derived by the plaintiff-petitioners.

The alleged NOC reflects permission for usage of the 40 feet road,

the sewer, drain and electricity lines but the plaint case is that plot no.291

is being used for agriculture purposes and there is no averment therein of

any proposed or existing plotting activity, despite the NOC being

mentioned in the plaint.

25.Learned counsel for the plaintiff-petitioners has relied upon several

judgments to contend that for want of any objection to the Amin

Commissioner's report by the opposite parties, it cannot be said that the

courts erred in relying upon the report of the Amin Commissioner. It is

20

noted that the Amin was a court Amin who was appointed by the court

pursuant to an application for the purpose moved by the plaintiff-

petitioners. Moreover, the Amin Commissioner's report is yet to be

proved. It may always be open to the parties to file objection to the Amin

Commissioner's report unless it is at a belated stage and would be subject

to any order of the trial court. It does not appear that a written statement

has been filed by the defendant-respondents. It is an early stage in the suit.

26. Be that as it may, the plaintiff-petitioners are relying on the report

of the Amin Commissioner. In the case at hand, as is evident from the

order of the trial court, the trial court has selectively referred to one part of

the report of the Amin Commissioner, that is to say with regard to the 40

feet road existing on the north side of Plot No.291 and has, strangely, not

referred to the paths shown as existing on the west and south side of the

Plot No.291. The map enclosed with the Amin Commissioner's report

reflects a path and an access from the western side of Plot No.291 that is

shown perpendicular to the boundary wall of Plot No.291 marked as A, B.

It also reflects a path existing on the south side of Plot No.291 that is

alongside the boundary wall of Plot No.291 marked as A, D. With regard

to the contention of the learned counsel for the plaintiff-petitioners that

the path shown on western side of plot no.291 leads nowhere, it is noted

that neither is there any such averment in the plaint nor in the affidavits

filed by the plaintiff-respondents. The plaint is completely silent about the

existence of any alternate routes which are reflected in the report of the

Amin Commissioner. The aforesaid report also shows brick debris lying

on the north side of plot no.291 in front of an iron gate belonging to the

plaintiff-petitioners.

27.It is not disputed by the plaintiff-petitioners that the provisions of

the Apartment Act are applicable to Ark City, which is managed by a

Welfare Association, and the plans of Ark City are sanctioned by the

Development Authority. In the Apartment Act, the following terms, inter

alia, are defined in Section 3, which are :-

21

“….

(b) “apartment” means a part of any property, intended for any

type of independent use, including enclosed spaces located on one

or more floors or any part or parts thereof, in a building to be used

for residential or official purposes or for the purpose of practicing

any profession, or for carrying on any occupation, trade or

business (excluding shopping malls, multiplexes and commercial

complexes which are maintained as single unit by the promoter or

the maintenance agency) or for such other use as may be

prescribed, and with a direct exit to a public street, road or to a

common area leading to such street, road and includes any

Parking space, or room (whether or not adjacent to the building in

which such apartment is located) provided by the promoter for use

by the owner of such apartment for parking or, as the case may be,

for the residence of any domestic aide employed in such

apartment;

……...

(d) "apartment owner" means the person or persons owning an

apartment or the promoter or his nominee in case of unsold

apartments and an undivided interest in the common areas and

facilities appurtenant to such apartment in the percentage

specified in the Deed of Apartment and includes the lessee of the

land on which the building containing such apartment has been

constructed, where the lease of such land is for a period of thirty

years or more;

(e) "association of apartment owners" means all the owners of

the apartments therein, acting as a group in accordance with the

bye-laws;

(f) "board" means the Board of Management of an Association of

Apartment Owners elected by its members under the bye-laws;

(g) "building" means a building constructed on any land,

containing four or more apartments, or two or more buildings in

any area designated as a block, each containing two or more

apartments with a total of four or more apartments in all such

buildings;

Provided that an independent house constructed in a row with

independent entry and exit, whether or not adjoining to other

independent houses, shall not constitute a building.

(h) "bye-laws" means the bye-laws made under this Act;

(i) "common areas and facilities" means—

(i) the land on which the building is located and all easements,

rights and appurtenances belonging to the land and the building;

(ii) the foundations, columns, girders, beams, supports, main

walls, roofs/terraces and halls of common use, corridors, lobbies,

stairs, stairways, fire-escapes and entrances and exits of the

building.

(iii) The basements (area of common use only), cellars, yards,

parks, gardens, community centers and common parking areas;

(iv) the premises for the lodging of janitors or persons employed

for the management of the property;

22

(v) installations of central services, such as, power, light, gas, hot

and cold water, heating, refrigeration, air conditioning,

incinerating and sewerage;

vi) the elevators, tanks, pumps, motors, fans, cable pipe line (TV,

gas, electricity etc.) rain water harvesting system, compressors,

ducts and in general all apparatus and installations existing for

common use;

(vii) such other common areas and community facilities as may be

specified in the bye-laws; and;

(viii) all other parts of the property necessary or convenient to its

existence, maintenance and safety, or normally in common use;

…..

(l) "competent authority" means any person or authority

authorised by the government by notification to perform the

functions of the competent authority under this Act for such areas

as may be specified in the notification;

…..

(x) "property" means the land, the building, and all

improvements and structures thereon, and all easements, rights

and appurtenances belonging thereto, and all articles of personal

property intended for use in connection therewith, which have

been, or are intended to be submitted to the provisions of this

Act;”

28.Chapter III of the Apartment Act deals with the rights and

obligations of the apartment owners. Sections 5 and 6 read as under:-

“5. Rights of Apartment Owners.- (1) Every person to whom

any apartment is sold or otherwise transferred by the promoter

shall subject to the other provisions of this Act, be entitled to the

exclusive ownership and possession of the apartment so sold or

otherwise transferred to him.

(2) Every person who becomes entitled to the exclusive ownership

and possession of all apartment shall be entitled to such

percentage of undivided interest in the common areas and

facilities as may be specified in the Deed of the Apartment and

such percentage shall be computed by taking, as a basis, the area

of the apartment in relation to the aggregate area of all the

apartments of the building.

(3)(a) The percentage of the undivided interest of each apartment

owner in the common areas and facilities shall have a permanent

character, and shall not be altered without the written consent of

all the apartment owners and approval of the competent authority.

(b) The percentage of the undivided interest in the common

areas and facilities shall not be separated from the apartment to

which it appertains and shall be deemed to be conveyed or

encumbered with the apartment, even though such interest is not

expressly mentioned in the conveyance or other instrument.

23

(4) The common areas and facilities shall not be transferred and

remain undivided and no apartment owner or any other person

shall bring any action for partition or division of any part thereof,

and any covenant to the contrary shall be void.

(5) Each apartment owner may use the common areas and

facilities in accordance with the purposes for which they are

intended without hindering or encroaching upon the lawful rights

of the other apartment owners.

(6) The necessary work relating to maintenance, repair and

modification or relocation of the common areas and facilities and

the making of any additions or improvements thereto, shall be

carried out only in accordance with the provisions of this Act and

the bye-laws.

(7)The Association of the Apartment Owners shall have the

irrevocable right, to be exercised by the Board or Manager to have

access to each Apartment from time to time during reasonable

hours for the maintenance, repairs or replacement of any of the

common areas or facilities therein, or accessible there from, or for

making emergency repairs therein necessary to prevent damage to

the common areas and facilities or to any other apartment or

apartments.

6. Obligation of Apartment Owners- (1) Each apartment owner

shall comply strictly with the bye-laws and with the covenants,

conditions and restrictions set forth in the Deed of Apartment, and

failure to comply with any of them shall be a ground for action to

recover sums due for damages, or for injunctive relief, or both, by

the Manager or Board on behalf of the Association of the

Apartment Owners or in a proper case, by an aggrieved apartment

owner.

2) No apartment owner shall do any work which would be

prejudicial to the soundness or safety of the property or reduce the

value thereof or impair any easement or hereditament or shall add

any material structure or excavate any additional basement or

cellar or alter the external facade without first obtaining the

consent of all the apartment owners.

Explanation: In this section, reference to the apartment owners

shall be construed, in relation to a building in any block, pocket or

other designated area, the apartment owners of the concerned

building in such block, pocket or other designated area.”

29. Chapter VI of the Apartment Act deals with an association of

apartment owners and bye-laws for the registration of the affairs of such

association. Section 14 reads as under:-

“14. Association of apartment owners and bye-laws relating

thereto. - (1) There shall be an Association of Apartment Owners

24

for the administration of the affairs in relation to the apartments

and the property appertaining thereto and for the management of

common areas and facilities :

Provided that where any area has been demarcated for the

construction of buildings, whether such area is called a block or

pocket or by any other name, there shall be a single Association of

Apartment Owners in such demarcated area.

(2) It shall be the joint responsibility of the promoter and the

apartment owners to form an Association. The Promoter shall get

the Association registered when such numbers of apartments have

been handed over to the owners which are necessary to form an

association or 60% of apartments, whichever is more, by way of

sale, transfer or possession, provided the building has been

completed along with all infrastructure services and completion

certificate obtained from the concerned local authority:

Provided that in case of an independent area or and

independent commercial area the promoter may form a separate

Association for its management, if required.

(3)In a case, where an association of the apartments owners of

a building has not been formed, on the intended date of execution

of a deed of apartment in favour of prospective apartment owner,

it shall be obligatory for a prospective apartment owner to become

member of the association within a period of 4 weeks on receipt

of a written intimation about the formation of such association.

(4)Where an association of an apartment owners exist on the

intended date of transfer of an apartment, it will be obligatory for

the prospective apartment owner to become member of such

association before execution of a deed of an apartment in his

favour.

(5) On formation of the Association of the Apartment Owners

under sub-section (2) above, the management of the affairs of the

apartments regarding their common areas and facilities shall be

deemed to be transferred from the promoter to the Association,

which shall thereupon maintain them:

Provided that, till all the apartments are sold or transferred,

the promoter shall proportionately share the maintenance cost of

common areas and facilities:

Provided further that the amount collected by the promoter

towards interest free maintenance security shall be transferred to

the association at the time of handing over the common areas and

facilities.

(6)The Government may by notification in the gazette frame

model bye-laws in accordance with which property referred to in

subsection (1) shall be administered by the Association of

Apartment Owners and the Association shall, at its first meeting,

make its byelaws in accordance with the model bye-laws so

framed, and in making its bye-laws the Association of Apartment

Owners shall not make any departure from, variation of, addition

25

to, or omission from, the model bye-laws aforesaid except with

the prior approval of the competent authority.

(7) The model bye-laws framed under sub-section (6) shall

provide for the following, among other matters, namely:

(a) the manner in which the Association of Apartment

Owners is to be formed;

(b) the election, from among apartment owners, of a

Board of Management by the members of the Association

of Apartment Owners;

(c) the number of apartment owners constituting the

Board, the composition of the Board and that one-third of

members of the Board shall retire annually;

(d) the powers and duties of the Board;

(e) the honorarium, if any, of the members of the

Board;

(f) the method of removal from office of the members

of the Board;

(g) the powers of the Board to engage the services of a

Manager;

(h) delegation of powers and duties of the Board to such

Manager;

(i) method of calling meetings of the Association of

Apartment Owners and the numbers of the members of

such Association of Apartment Owners;

(j) election of a President of the Association of

Apartment Owners from amongst the apartment owners,

who shall preside over the meeting of the Board and of the

Association of Apartment Owners;

(k) election of a Secretary to the Association of

Apartment Owners from among the apartment owners, who

shall be an ex-officio member of the Board and shall keep

two separate minutes books, one for the Association of the

Apartment Owners and the other for the Board, pages of

each of which shall be consecutively numbered and

authenticated by the President of the Association of the

Apartment Owners, and shall record, in the respective

minutes books, the resolutions adopted by the Association

of the Apartment Owners or the Board, as the case may be;

(l) election of a Treasurer from among the apartment

owners, who shall keep the financial records of the

Association of Apartment Owners as also of the Board;

(m) maintenance, repair and replacement of the common

areas and facilities and payment therefor;

(n) manner of collecting from the apartment owners or

any other occupant of the apartments, share of the common

expenses;

(o) resignation and removal of persons employed for

the maintenance, repair and replacement of the common

areas and facilities;

(p) restrictions with regard to the use and maintenance

of the apartments and the use of the common areas and

facilities, as may be necessary to prevent unreasonable

interference in the use of each apartment and of the

26

common areas and facilities by the several apartment

owners;

(q) any matter which may be required by the Competent

Authority to be provided for in the bye-laws for the proper

or better administration of the property;

(r) such other matters as are required to be, or may be,

provided for in the bye-laws.

(8) The bye-laws framed under sub-section (6) may also

contain provisions, not inconsistent with this Act:

(a) enabling the Board to retain certain area of the

building for commercial purposes and to grant lease of the

areas so retained, and to apply the proceeds of such lease

for the reduction of the common expenses for maintaining

the building, common areas and facilities, and if any

surplus is left after meeting such expenses, to distribute

such surplus to the apartment owners as income;

(b) relating to the audit of the accounts of the

Association of Apartment Owners and of the Board, and of

the administration of the property;

(c) specifying the times at which and the manner in

which annual general meetings and special general

meetings of the Association of Apartment Owners shall be

held and conducted;

(d) specifying the time at which and the manner in

which, the annual report relating to the activities of the

Association of Apartment Owners shall be submitted;

(e) specifying the manner in which the income derived and

expenditure incurred by the Association of Apartment

Owners shall be dealt with or as the case may be,

accounted for.”

30. Chapter VIII of the Apartment Act deals with miscellaneous

matters and Section 24 reads as under:-

“24. Act to be binding on apartment owners, tenants etc. - (1)

All apartment owners, tenants of owners, employees of owners

and tenants, or any other person who may, in any manner, use the

property or any part thereof to which this Act applies, shall be

subject to the provision of this Act and the bye-laws and the rules

made thereunder :

Provided that, nothing contained in this sub-section shall

effect the right, title or interest acquired by any allottee or other

person in common areas and facilities from any promoter on or

before the date of commencement of this Act.

(2) All agreements, decisions and determinations lawfully

made by the Association of Apartment Owners in accordance with

the provisions of this Act and the bye-laws shall be deemed to be

binding on all apartment owners.”

27

31. The control of the State Government for the efficient

administration of the Apartment Act is provided in Section 27 thereof.

Sections 31 of the Apartment Act reads as follows:-

“31.Overriding effect of this Act.- (1) The provisions of this Act

shall have effect, notwithstanding anything inconsistent therewith

contained in any other law for the time being in force.

(2)Save as otherwise, expressly provided in sub-section (1)

the provisions of this Act, shall be in addition to, and not in

derogation of any other law for the time being in force.”

32.Thus, an association of apartment owners is required to be

constituted under the provisions of the Apartment Act and would remain

subject to the provisions of the Apartment Act. However, registration of

association of apartment owners is governed by the provisions of the

Societies Act as held by two division bench decisions of this court in:- (i)

M/s. Designarch Infrastructure Pvt. Ltd. and another v. Vice

Chairman, Ghaziabad Development Authority and others

24

, and, (ii)

Management Board, Windsor Park Residents Welfare Association v.

State of U.P. and others

25

.

33.As is evident from the definition of 'common areas and facilities'

existing in clause (i) of Section 3, the definition is wide enough to cover

the 40 feet road. Sub-section (2) of Section 24 of the Apartment Act

provides for all agreements, decisions and determinations lawfully made

by the association of apartment owners in accordance with the provisions

of the Apartment Act and the bye-laws shall be deemed to be binding on

all the apartment owners.

34.The various rights of the apartment owners specified in Section 5 of

the Apartment Act include entitlement to such percentage of undivided

interest in the common areas and facilities as may be specified in the deed

of the apartment. The percentage of the undivided interest of each

apartment owner in the common areas and facilities shall have a

242013 (9) ADJ 594 (DB)

252019 (4) ADJ 140 (DB)

28

permanent character, and shall not be altered without the written consent

of all the apartment owners and approval of the competent authority. The

percentage of the undivided interest in the common areas and facilities

shall not be separated from the apartment to which it appertains and shall

be deemed to be conveyed or encumbered with the apartment, even

though such interest is not expressly mentioned in the conveyance or other

instrument. The common areas and facilities shall not be transferred and

remain undivided and no apartment owner or any other person shall bring

any action for partition or division of any part thereof, and any covenant

to the contrary shall be void. Each apartment owner may use the common

areas and facilities in accordance with the purposes for which they are

intended without hindering or encroaching upon the lawful rights of the

other apartment owners.

35.In the present case, the plaintiff-petitioners are claiming the right of

permissive usage of the 40 feet road by way of a grant. Therefore, for such

a decision to be binding on all apartment owners, it has to be

demonstrated that the decision was taken by the association of apartment

owners in a regularly summoned meeting in accordance with the

Apartment Act and bye-laws and after due deliberation, the resolution

having carried through. This would assume importance in view of the

strong denial made by the defendant-respondents in their objections filed

to the temporary injunction. And, particularly, in the light of of the

undivided interest of each apartment owner in the common areas and

facilities that are mandated to have a permanent character, and which shall

not be altered without the written consent of all the apartment owners and

approval of the competent authority.

36. At this stage, it is relevant to quote the provisions of Section 2 of

the Indian Easements Act, 1882

26

, which are as under :-

“2. Saving.- Nothing herein contained shall be deemed to affect

any law not hereby expressly repealed; or to derogate from--

(a)any right of the Government to regulate the

collection, retention and distribution of the water of rivers

26Easements Act

29

and streams flowing in natural channels, and of natural

lakes and ponds, or of the water flowing, collected,

retained or distributed in or by any channel or other work

constructed at the public expense for irrigation;

(b) any customary or other right (not being a license) in

or over immovable property which the Government, the

public or any person may possess irrespective of other

immovable property; or

(c) any right acquired, or arising out of a relation

created, before this Act comes into force.”

(Emphasis supplied)

37.Given the opening line of the aforesaid Section 2 of the Easements

Act, its provisions would not affect any law that is in force. Therefore, the

Apartment Act would not be affected by the Easements Act. Thus, the

provisions of the Easements Act would have no bearing on the statutory

rights of apartment owners under the provisions of the Apartment Act and

the rules and bye-laws made thereunder. In any view of the matter, given

the provision of Section 31 of the Apartment Act, which provides for its

overriding effect, any inconsistencies in the Easements Act with the

Apartment Act, would stand overridden by the provisions of the

Apartment Act. The provisions of sub-section (2) of Section 31 of the

Apartment Act would not inure to the benefit of the plaintiff-petitioners in

respect of any claim they may set up under the Easements Act which is

inconsistent with the Apartment Act.

38.The decision of the trial court noted above, is fraught with

illegalities and arbitrariness. Instances include the fact that a part of the

Amin Commissioner's report has been relied upon for purpose of grant of

injunction and the other parts have been overlooked. Further, the trial

court has referred to the affidavit filed by the alleged former President,

Sudhir Verma, and has observed that in case a wrong NOC was issued by

the former President, then what action was taken against him has not been

specified by the defendant-respondents. The trial court was apparently

searching for weaknesses in the case of defendant-respondents to grant

temporary injunction to the plaintiff-petitioners, rather than considering

the own case of the plaintiff-petitioners set up in the application for

30

temporary injunction. The trial court seems to have lost sight of the fact

that the property of Ark City is distinct from plot no.291 having separate

ownership.

39.Further, the trial court has referred to the documents procured by

the plaintiff-petitioners under the Right to Information Act from the office

of the Deputy Registrar, Firms, Societies and Chits, which allegedly show

that the Board of the Welfare Association is not registered and, therefore,

the present Board has no authority to question the NOC issued in favour

of the plaintiff-petitioners. In my opinion, such an observation is

completely arbitrary and illegal, as on coming to such a finding, the first

question that ought to have arisen was whether the suit would be defeated

for non-joinder of necessary parties.

40.It is pertinent to mention here that, apparently, the plaintiff-

petitioners have not obtained any sanctioned lay-out plan from the

Development Authority for carving out plots over plot no.291 for selling

to third parties. But, they are demanding access to the amenities and

facilities of Ark Society including membership of third parties in the

Welfare Association on the basis of the alleged NOC that purports to

provide all facilities and amenities to the plaintiff-petitioners in aid of

plotting and sale of the plot No.291. Such a conduct cannot entitle the

plaintiff-petitioner to any indulgence of this court in exercise of equity

jurisdiction.

41.The aforesaid discussion on the Apartment Act and the Easements

Act, and the interplay of these enactments has been necessitated in the

facts and circumstances of the present case.

42.The impugned order passed by the appellate court dated 28.02.2023

is based on cogent reasons and deserves no interference under the facts

and circumstances of the case. The defendant-respondents are entitled to

maintain the boundary wall of Ark City in accordance with the plan

sanctioned by the Development Authority.

31

43.In view of the facts and circumstances mentioned above, the

impugned order of the appellate court dated 28.02.2023 calls for no

interference in this petition.

44.This petition is, accordingly, dismissed.

Date : 24.07.2023

SK

(Jayant Banerji, J)