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Pawan Kumar v/s Karnal Improvement Trust

    LPA No.105 of 2005

    Decided On, 24 May 2010

    At, High Court of Punjab and Haryana


    For the Appearing Parties: Ashish Agarwal, Mahavir Sandhu, Ritu Bahri, Advocates.

Judgment Text

Alok Singh, J.

(1) Present LPA is filed challenging order dated 30.4.2005 passed by learned Single Judge in CWP No.14492 of 1998, thereby dismissing CM Nos.2523-25 of 2005 under Order 1 Rule 10, read with Section 151 CPC, seeking impleadment of the applicant as party in the writ petition.

(2) Brief facts of the present case are that Pushpa Rani and other allottees preferred writ petition for quashing the notice of resumption of property dated 6.3.1998 issued by the Karnal Improvement Trust, Karnal. Resumption clause was invoked by the Improvement Trust for want of payment by the allottees of the amount outstanding against them within the stipulated time. Learned Single Judge passed an interim ord

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er dated 11.9.1998 in favour of Pushpa Rani and others, restraining the Improvement Trust from dispossessing the petitioners from the allotted shops on the condition that the petitioners deposit the amount allegedly outstanding against them. Pushpa Rani -writ petitioner did not comply with the direction and did not deposit the amount outstanding against her. The Improvement Trust moved an application to vacate the interim direction issued vide order dated 11.9.1998. Learned Single Judge has vacated the interim order passed in favour of the allottees on 11.9.1998, vide order dated 13.12.2004. Present appellant applicant Pawan Kumar claiming himself to be the tenant of Pushpa Rani, moved an application under Order 1 Rule 10 read with Section 151 CPC, seeking his impleadment in the writ petition and he further sought direction of the Court to deposit the amount with the Improvement Trust, which was said to be outstanding against Pushpa Rani. Learned Single Judge has observed that even if Pawan Kumar -applicant is accepted to be the tenant, he cannot take place of the allottee or her L.R. and hence, has absolutely no right to act as an allottee by depositing the amount outstanding against the allottee. Learned Single Judge further held that since interim direction granted by this Court vide order dated 11.9.1998 has already been vacated on 13.12.2004, hence neither Pushpa Rani nor her tenant can claim protection.

(3) We have heard learned counsel for the parties and perused the record.

(4) Learned counsel for the appellant argued that tenant has every right to be heard in resumption proceedings. He has relied upon the judgement of Full Bench of this Court in Brij Mohan Vs. Chief Administrator and others, 1980 PLR 621. The Full Bench in Brij Mohan's case (supra) in paragraphs 19 to 21 has observed as under:

19. The proposed order of resumption has dual consequences: (i) the depriving of ownership, right in the site or building which concerns only. the owner of the site or building; and (ii) the deprivation of the lessee of his lawful possession thereof. Such being the consequences of the order of resumption, both lessee and his lessor would be affected by the order and would thus-be entitled to be heard before such at order is passed.

20. That the Estate Officer was alive to the right of a lessee to be heard is apparent from the fact that in Letters Patent Appeal No. 101 of 1977 arising from Civil Writ Petition No. 1452 of 1974 (Brij Mohan v. The Chief Administrator, Union Territory, Chandigarh and others), a copy of the show-cause notice sent to the landowner was also served upon the petitioner-lessee inviting his objections, if any, to the proposed action under Section 8-A of the Act.

21. If the objections raised by the lessee are overruled and an order of resumption is passed, which would have the consequence of putting an end to the lawful possession of the lessee of the site or building, then surely he would be the person who would be equally aggrieved by the order of resumption and would thus be entitled to challenge that order in appeal under Section 10 of the Act.

(5) Learned counsel for the appellant has further placed reliance on a judgement of this Court in Naresh Departmental Store Vs. Chandigarh Administration and others, 2001(1) PLJ 129.

(6) Having perused the judgement of this Court in Naresh Departmental Store's case (supra), we find that in the aforesaid case also, resumption of property was sought for mis-use as in Brij Mohan's case (supra).

(7) In Brij Mohan's case (supra), resumption clause was invoked against the allottee as well as against the sitting tenant on the ground that the house was put to impermissible use. Case of Brij Mohan was not of default in making payment outstanding against the allottee. In the present case, the amount which the allottee was required to pay under the contract, has failed and despite the interim order passed by learned Single Judge dated 11.9.1998, did not make the deficiency good to protect the possession. Order dated 11.9.1998 was thereafter vacated by learned Single Judge vide order dated 13.12.2004. In the matter where resumption clause was invoked by the Improvement Trust on the ground of non-payment of outstanding amount by the allottee, the allottee has to be dispossessed and any person in possession on behalf of the allottee, either his family member or licencee or tenant has to go.

(8) We have no hesitation to hold that if resumption of property is being sought by the Improvement Trust on the ground that property is being mis-used then allottee or his licencee or tenant has every right to be heard to say property is not being mis-used. However, when resumption of the property is being sought by the Improvement Trust on the ground of nonpayment of outstanding amount, then of course, the tenant or licencee on behalf of the allottee, cannot object. It is settle principle of law that every tenant or licencee occupies the property for and on behalf of the allottee. If allottee makes any default in payment of sale consideration or any outstanding amount then resumption cannot be resisted by making payment by the tenant or licencee. If we hold that tenant or licencee can make payment of outstanding amount, it would amount to converting the tenant or licencee as owner/allottee of the property having paid sale consideration to the Improvement Trust. Hence, in view of the above, both the case laws relied upon by learned counsel for the appellant have no application in the present matter.

(9) Hon'ble the Apex Court in Employer in relation to Management of Central Mine Planning and Design Institute Ltd. Vs. Union of India and another, 2001(2) SCC 588, has held that LPA would lie against the judgement and every intermediary or interlocutory order cannot be regarded as a judgement and only those orders would be judgement which decide the matters of moment or affect vital and valuable rights of the parties and which work serious injustice to the party concerned. Order rejecting the impleadment in the peculiar facts and circumstances of the case that for resumption of property for non-payment of the outstanding amount, tenant of the allottee has no locus to intervene in the matter and hence, order does not amount to judgement and no LPA is maintainable.

(10) For the reasons recorded above, appeal is devoid of merit and hence, is dismissed

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