Review Application No.355 of 2004 in C.W.P.No.15127 of 2001 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Date of Decision:-3.3.2009
Rohit Sharma & others
---Applicants
Versus
State of Punjab & others
---Respondents
CORAM:- HON’BLE MR.JUSTICE J.S.KHEHAR
HON’BLE MR.JUSTICE NAWAB SINGH
Present:- Mr.Sudhir Mittal, Advocate for the applicants.
Mr.A.K.Chopra, Senior Advocate with Ms.Shaibya Sood,
Advocate for the non-applicant-petitioners.
Mr.Sandeep Khunger, Advocate for respondent Nos.2 & 3.
J.S.KHEHAR, J.(ORAL)
The Improvement Trust, Jalandhar offered two plots bearing
Nos.291 and 292 in its 73.5 Acres Scheme known as Lajpat Rai Nagar to
one Raghbir Singh. The ownership right in the aforesaid plots was subject
matter of dispute between the class -I heirs of Raghbir Singh, namely, Har
Kaur (mother of Raghbir Singh) on the one side, and Neera and Mannu
(widow and daughter of Raghbir Singh) on the other. The aforesaid dispute
eventually attained finality when the Supreme Court finally determined the
share of Har Kaur as 1/3rd, and the shares of Neera and Mannu as 2/3rd (in
respect of the aforestated plot Nos.291 and 292).
This matter came up for consideration before this Court on the
writ side, wherein, the writ petition filed by the vendors of Neera and
Mannu was allowed. While disposing of the said Civil Writ Petition
No.15127 of 2001on 30.4.2002, this Court directed as under:-
Review Application No.355 of 2004 in C.W.P.No.15127 of 2001 2
“In view of the facts fully detailed above as also the statement
of learned counsel representing petitioners, it is ordered that
respondent authorities would transfer 2/3rd share of the plots
291 and 292 in favour of petitioners subject to that petitioners
will file their affidavits stating therein that in case the
vendors, namely, Smt.Neera and Miss Mannu deny having
transferred the same to the petitioners, they would surrender
the plots to the original owners. The petitioners shall also
abandon the nurseries that have since been opened in the
plots in question. Rights of petitioners to seek partition of the
property and raise construction is left open at this stage. All
that needs to be mentioned on that account is that petitioners
may apply for partition of the land and thereafter for
construction. Their applications for partition and construction
shall be decided in accordance with law, rules and regulations
that may govern the field.”
Subsequent to the disposal of the said writ petition, contempt
proceedings were initiated under the provisions of Contempt of Courts Act,
1971 by the petitioners in C.W.P.No.15127 of 2001. During the course of
the aforesaid proceedings in COCP No.1177 of 2002, this Court passed the
following order on 17.5.2005:-
Present: Mr.Adarsh Jain,Advocate.
Mr.N.S.Gill, AAG, Pb.
Mr.S.C.Khunger, Advocate.
Learned counsel for the petitioners submits that it
is implicit in the order dated 30.4.2002 directing that there
Review Application No.355 of 2004 in C.W.P.No.15127 of 2001 3
would be transfer of 2/3rd share of plots 291 and 292 by the
trust, that the trust will remove any encroachment on the said
plots and failure of the trust to remove such encroachment on
an implied direction amounts to contempt. Contempt is not a
remedy unless an order expressly on this point exists. Learned
counsel for the petitioner seeks time to get necessary
clarification. Adjourned to 29.8.2003.
17.5.2005 Sd/- A.K.Goel
Judge"
Consequent upon the passing of the aforesaid order, another Civil
Miscellaneous application bearing No.13298 of 2003 was filed in the said
writ petition, so as to seek a clarification of the order passed by this Court
on 30.4.2002 (while disposing of C.W.P.No.15127 of 2001). The aforesaid
Civil Miscellaneous No.13298 of 2003 was dismissed on 11.7.2003, by
observing that no occasion had arisen for any clarification of the order dated
30.4.2002. Be that as it may, while disposing of C.M.No.13298 of 2003, a
Division Bench of this Court granted liberty to the petitioners in
C.W.P.No.15127 of 2001 to seek partition of the property before they could
claim a right to assume possession thereof.
In the background of the order passed on 11.7.2003 disposing
of Civil Miscellaneous No.13298 of 2003, a civil suit, which was pending
consideration between the parties for partition of plot Nos.291 and 292 in
Lajpat Rai Nagar, came to be disposed of on the basis of the compromise
inter se between the parties. Paragraph 3 of the order dated 14.8.2003
disposing of the aforesaid civil suit is being extracted hereunder:-
“3. This petition pertains to passing of final decree of partition,
Review Application No.355 of 2004 in C.W.P.No.15127 of 2001 4
petitioners No.1 and 2 have transferred their share in favour of
petitioners No.3 to 6 to the extent of their 2/3rd share. Although
the compromise Ex.C4, the parties have placed on file a site
plan showing separate shares falling to their share. As such,
final decree is ordered to be drawn up and the parties are
directed to furnish the requisite stamp papers within 15 days
and thereafter file be consigned to the record room.”
When the proceedings initiated in COCP No.1177 of 2002
came up for consideration at the hands of this Court on 29.8.2003, the
following order was passed:-
“Civil Misc. application is allowed.
Learned counsel for the petitioner has sought clarification of
the order dated 30.4.2002 passed by the Division Bench of
this Court in CWP No.15127 of 2001. The application for
clarification has been disposed on 11.7.2002 vide Annexure
A/1. Thereafter, even the partition to the extent of 2/3rd share
of plot Nos.291 and 292 have taken place between the parties
and a final decree has already been passed by the Civil Judge
on 14.8.2003. In view of these subsequent facts, the
respondents are bound to deliver the possession of the
property to the petitioner.”
It is not a matter of dispute that consequent upon the passing of the
aforesaid order, possession was delivered to the petitioners in CWP
No.15127 of 2001.
It is in the background of the factual position noticed here-in-
above, that the instant review application has been filed at the hands of
Review Application No.355 of 2004 in C.W.P.No.15127 of 2001 5
Gajinder Singh Bhatia, claiming possession over plot No.292, Lajpat Nagar,
Jalandhar, in his capacity as a tenant. It is the vehement contention of
applicant-Gajinder Singh Bhatia that the order dated 30.4.2002 passed by
this Court disposing of CWP No.15127 of 2001 had adversely affected his
rights. It is pointed out by Gajinder Singh Bhatia in the review application
that he had not been impleaded as a party-respondent in CWP No.15127 of
2001, the order passed in the said Writ Petition at his back and which
adversely affected his rights, were liable to be set aside.
The claim of Gajinder Singh Bhatia in his review application
No.355 of 2004 is based on the fact that he enjoys tenancy rights over plot
No.292, Lajpat Nagar, Jalandhar. This assertion at the hands of Gajinder
Singh Bhatia has been vehemently opposed by the learned counsel for the
petitioners before us. In fact the claim of tenancy rights at the hands of
Gajinder Singh Bhatia, before this Court, is not supported by any
documentary authentication. Gajinder Singh Bhatia has inter-alia assailed
the judgment and decree dated 14.8.2003, whereby partition was effected
between the petitioners in CWP No.15127 of 2001 (who were vendees of
Neera and Mannu) and between Har Kaur. A few other issues have also
been raised at the hands of Gajinder Singh Bhatia.
The order dated 30.4.2002 in respect of which review has been
sought was an order passed on the writ side. Now the assertions made on
behalf of the applicant, namely, Gajinder Singh Bhatia raise disputed
questions of fact. These questions cannot be adjudicated upon by this Court,
in exercise of its jurisdiction under Article 226 of the Constitution of India.
In the facts and circumstances of this case, we consider it just and
appropriate to grant liberty to the review applicant Gajinder Singh Bhatia to
Review Application No.355 of 2004 in C.W.P.No.15127 of 2001 6
raise all or any of the claims raised by him through the instant Review
Application before a civil Court of competent jurisdiction, if he is so
advised, in accordance with law. The instant review application is
accordingly disposed of in the aforesaid terms. Needless to mention that in
case the review applicant avails of any such remedy, any observation made
in the instant order, shall not be taken into consideration by the Civil Court,
as an expression of opinion, on any of the issues canvassed.
(J.S.Khehar)
Judge
(Nawab Singh)
3.3.2009 Judge
AS