High Court of Punjab and HaryanaCR/1444/2016allowed

Madan Lal v. Harinder Pal & ORS

2016-04-08Mr. Justice Harbans Singh Rai4 pages

-1IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CM Nos.6601-02-CII of 2016 & Date of decision: 08.04.2016 Madan Lal .... Petitioner versus Harinder Pal & ors.

.... Respondents

CORAM:

HON'BLE MR. JUSTICE K.KANNAN

Present:

Mr. Akshay Bhan, Sr. Advocate with Mr. Santosh K. Sharma, Advocate for the petitioner.

Mr. Jagdish Manchanda, Advocate for the respondents.

**** K.Kannan CM No.6601-CII of 2016 Allowed as prayed for.

CM No.6602-CII of 2016 Application for placing on record Annexures R-1 to R-4 is allowed subject to all just exceptions.

Main case The revision petition is against the order passed by the Executing Court in a decree for partition that allowed for 1/6th share each for plaintiffs No.1 & 2. The decree had become final with judgment rendered by the Appellate Court making clear that decree in question will become operative after the decision of the resumption matter. The resumption matter alluded in the judgment was an action by the Assistant Estate Officer issuing an order for resumption on 04.05.1979, which was confirmed by the Adviser to the Administrator

-2by his order dated 13.10.1988 and which was put to challenge in CWP No.5055 of 1987. The High Court had actually passed an order on 21.02.2007. Evidently the parties knew that when the Appellate Court was deciding the matter on 16.01.2008, there was already an order passed by the High Court in the resumption matter. It is not in dispute that the resumption matter has been ordered but the Court had allowed for submission of revised site plan and gave liberty to the petitioners to approach the Court with fresh cause of action if the sanction was not given. The order was passed by the High Court on 21.02.2007 on the basis of consensus expressed that if the site plan is submitted afresh, the authority will consider the same. The submission of the site plan would not be possible if the resumption had become final.

If the property is resumed, there would be no further interest even to seek for consideration of approval of a building plan. Although the Appellate Court's decree passed was to be operative on the final decision of the resumption matter, it is anybody's guess as to when it could be finally decided. The Officer of the Estate Office had actually been produced as a witness by the plaintiff decree-holder, who had given evidence to the effect that the property had not been resumed.

Although the approval for construction on the plan submitted has not been made, it shall be taken that the order of resumption no longer exists and the direction in the Appellate Court decree that the resumption matter shall be decided finally must be restricted to understanding that without the order being available to the parties, the resumption must be taken as dropped.

-3respective rights.

In this case, the site was inspected by a local commissioner and seems to have reported that it is not being capable of partition. The Court therefore has directed sale of the property in public and has allowed the petitioners to participate in such sale. The order is erroneous and illegal. The Court has no power to direct the public sale unless the Court considers that none of the parties is in a position to purchase the property at valuation which the Court fixes. Although a specific application has not been filed, I would reckon a prayer made by the petitioners that the property shall be sold to him, must be taken as a petition under Section 3 of the Partition Act and the Court shall order the valuation of the respective shares and offer to sell the same to such shareholders at the price so ascertained. This will keep out any member of public to participate in inter se bids after the Court fixes the upset price.

Although the Court has attempted to elicit the Collector's rate, I would set aside the order and direct the proceedings to start afresh allowing for either party to set the prices at which they are willing to purchase the property. At the option of the parties, they may invite the Court to fix the price for inter se bid between them and if none of the parties is capable of purchasing the property at the fixed price or the valuation made or the higher valuation made at the bids, then alone the property could be offered in public and the bid amount at such an auction be distributed to the extent to which each shareholder holds the right to the property. The impugned order is set aside and the matter is remanded to the Court below for carrying out the directions.

-4The revision petition stands disposed of.

April 08, 2016 (K. KANNAN) sonia JUDGE