Pawan Kr. And Anr. And Gurdial ... vs State Of Haryana And Anr.
2006 Latest Caselaw 786 Del

JUDGMENT

Sanjiv Khanna, J.

1. By this Order, I propose to dispose of EFA No. 2/2002 titled Pawan Kumar and Anr. v. State of Haryana and CRP No. 369/2002 titled Gurdial Singh v. State of Haryana. In both the Appeal and the Petition, common question of law and arguments were raised.

2. Brief facts relevant for the purpose of decision may be noted. Union of India and State of Punjab in 1964 had filed Suit No. 310/2004 against ten persons for possession of land located in Khasra No. 111, 108, Vill. Sadhura Khurd, Delhi measuring about 1035 sq. yds. A site plan was attached to the plaint. It was stated that the said land belonged to Union of India and with the permission of Union of India, it was being used by the Irrigation Department of the State of Punjab. This suit was decreed by judgment and decree dated 30th April, 1968 which became final and binding as no appeal was filed against the same.

3. In 1966, State of Punjab was divided and State of Haryana, State of Himachal Pradesh and Union Territory of Chandigarh were carved out. For this purpose, Punjab Reorganisation Act, 1966 (hereinafter referred to as the Act, for short) was enacted. Sections 91 and 92 of the said Act are relevant for the purpose of deciding the controversy and issues raised in these two matters and are therefore reproduced below:-

Section 91:

Power to name authorities, etc., for exercising statutory functions.- The Central Government as respects the Union Territory of Chandigarh or the transferred territory, and the Government of the State of Haryana as respects the territories thereof may, by notification in the Official Gazette, specify the authority, officer or person who, on and from the appointed day, shall be competent to exercise such functions exercisable under any law in force on that day as may be mentioned in that notification and such law shall have effect accordingly.

Section 92:

Legal proceedings.- Where, immediately before the appointed day, the existing State of Punjab is a party to any legal proceedings with respect to any property, rights or liabilities subject to apportionment under this Act, the successor State which succeeds to, or acquires a share in, that property or those rights or liabilities by virtue of any provision of this Act shall be deemed to be substituted for the existing State of Punjab or added as a party to those proceedings and the proceedings may continue accordingly.

4. One more fact may be noted. By an Order dated 27th March, 1967 certain immovable properties, including the property, that was subject matter of Suit No. 340/1964, belonging to the State of Punjab before division were allocated to the State of Haryana. Thus the State of Haryana it was/is admitted was/is owner of the land for which decree of possession dated 30th April, 1968 was passed.

5. It was argued by the learned Counsel for the petitioner and the appellant that under Section 91 of the Act, the Central Government should have by notification in the Official Gazette specified the authority, officer or person who could have exercised such powers and functions under any law for the time being in force on behalf of the the State of Haryana. Thus, it was submitted that the execution application was not filed by a proper person authorized under Section 91 of the Act. The execution application was therefore liable to be dismissed. It was further submitted that in view of Section 92 of the Act, the decree passed in Suit No. 340/2004 dated 30.4.1968 was null and void as the State of Haryana that had come into existence in 1966 but was not made a party inspite of the Office Order dated 27th March, 1967 allocating the land, subject matter of the suit, to the State of Haryana.

6. As far as Section 92 of the Act is concerned, the same incorporates a deeming provision. It states that where the State of Punjab was a party to any legal proceedings with respect to any property, rights or liabilities that was subject to apportionment under the Act and the successor State succeeds to acquire any share in the property or any right or liability, then by virtue of the enactment, the successor State should be deemed to be substituted for the existing State of Punjab or may be added as a party to those proceedings and the proceedings may continue accordingly. The first part of Section 92 states that the successor State shall be deemed to be substituted for the existing State of Punjab. The second part, however, deals with cases where the deeming substitution provision would not apply and in such cases the succeeding State could be added as a party in addition to the State of Punjab in the pending proceedings. Thus, the second part applies where the State of Punjab was already a party and a newly carved out State was/is required to be added as an additional party. Section 92 was considered by the Punjab and Haryana High Court in the case of H.L. Jain v. State of Haryana reported in (1975) 2 2nd P&H 432 and it was held as under:-

Therefore, by virtue of the provisions of Section 92, the successor State, that is, the State of Haryana, must be deemed to have been substituted on that day for the 'existing State of Punjab' and the proceedings must be deemed to have continued thereafter as if such substitution had actually taken place inspite of the fact that the State of Haryana was not added as a party to it. It follows that the application for withdrawal from the suit must be deemed to have been made by the State of Haryana although it was actually made by the new State of Punjab and the permission granted to the latter to file a fresh suit on the same cause of action must be construed as permission to the State of Haryana.

10. Learned counsel for the petitioner has urged that the State of Haryana could not take advantage of the provision of Section 92 unless it had actually been added as a party to the earlier suit. This argument is based on a misreading of that section and has no force. The words, 'shall be deemed to be substituted for the existing State of Punjab, or added as a party to those proceedings', occurring in the Section have to be read and construed in the light of an earlier part of the section, namely, 'which succeeds to, or acquires a share in that property or those rights or liabilities.' What the section clearly is that if the successor State 'succeeds to' the right in question it has to be deemed to be substituted as a party in the relevant proceedings, but that if it does not 'succeed to' those rights and merely acquires a share therein, then it has to be added as a party to the proceedings....

7. The said Section was considered by in the case of Surya Parkash v. State of Punjab (full bench). The Municipal Corporation of Shimla had been superseded pursuant to powers conferred under Section 238 of the Punjab Municipal Act, 1911 by the Governor of Punjab vide notification dated 16th May, 1966. A writ petition was filed by one Mr. Surya Parkash against the said Notification in the High Court of Judicature at Chandigarh on 30th June, 1966. Some other writ petitions were also filed subsequently. On 1st November, 1966 the existing State of Punjab was reorganized and State of Himachal Pradesh was constituted having its own High Court. A question arose, whether the State of Himachal Pradesh should be made a party to the said Writ Petition and specific reference to Section 92 of the Act was made. The Full Bench thereafter opined as under:-

According to the deeming provision contained in this section, read with Section 2(m) and (n) of the said Act, the Union Territory of Himachal Pradesh is to be considered to have been substituted for the pre-existing State of Punjab or added as a party to the proceedings, in these two writ petitions. In the Court of the Judicial Commissioner for Himachal Pradesh, it seems that no steps were taken either to formally substitute the Union Territory of Himachal Pradesh for the State of Punjab or to add the said Union territory in the array of respondents so that the memorandum of parties may actually conform to the statutory deeming provision. Section 92, on its plain reading, seems to contemplate both substitution and addition of the Successor State. Whether one or the other course is to be adopted, would apparently depend on the facts and circumstances of each case. In the case in hand there are allegations of mala fides against the Punjab Government, through its representative the Deputy Commissioner, Simla, and indeed in C. W. 42 of 1967, Shri Ajmer Singh, who was the Minister for Local Self Government at the relevant time, has been imp leaded as one of the respondents because he has also been individually charged with mala fide acts in the discharge of his duties and functions as a Minister. In view of this plea, it would appear to be more appropriate to formally add the Union Territory of Himachal Pradesh as a respondent in both the writ petitions and not to substitute his successor State for the pre-existing State of Punjab and, we direct accordingly.

8. A reading of the above paragraph shows that the Full Bench was of the view that Section 92 contemplates both substitution and addition of the succeeding States in pending litigations. Which of the two courses should be adopted in a particular matter depends upon, as per the Full Bench, the facts and circumstances of each case. In the said case, because there were allegations of malafides and individuals had been charged, the State of Himachal Pradesh, then a union territory was directed to be added as a party to the writ petition and not substituted for the pre-existing State of Punjab as a successor State.

9. Reference in this regard may also be made to Section 2(m) of the Act which defines 'Successor State' as under:-

(m) 'Successor State', in relation to the existing State of Punjab, means the State of Punjab or Haryana, and includes also the Union in relation to the Union Territory of Chandigarh and the transferred territory.

10. Section 2(m) does not in specific terms refers to the State of Himachal Pradesh.

11. Reverting back to the facts of the present case, it is clear that Union of India and the then united State of Punjab had filed a suit for possession and decree for possession in respect of land consisting of 1035 sq.yds located in Kh.No. 108 and 111, Vill. Shadhura Khurd, Delhi was passed in their favor. The State of Haryana became the owner of the said land during the pendency of the said suit and in terms of Section 92 of the Act was deemed to have been substituted in place of the State of Punjab. It was a case of substitution and not addition. In case of deemed substitution, there was no need and requirement for the State of Haryana to move a specific application or any order from the court deleting the State of Punjab from the array of parties and substituting in its place the State of Haryana. Section 92 does not require moving of any application for substitution. On the other hand, it talks of deemed substitution, which had/has to be given full effect to. Substitution under Section 92 of the Act was automatic and no application or order for substitution was required. The decision of the Punjab and Haryana High Court in the case of H.L. Jain (supra) clearly supports the above view and therefore the first contention raised by the learned Counsel for the petitioner in CRP No. 369/2002 and EFA.No. 2/2002 is rejected.

12. I also do not find any merit in the second contention. Sections 91 of the Act has been reproduced above, is not applicable to the facts of the present case. The said Section deals with authority of officers and their competence and authority to exercise and function under any law in force as on the relevant date i.e. 1st November, 1966, when the State of Punjab was reorganized and the State of Haryana was carved out. The said Section deals with the 'authority of an officer competent to exercise functions' with reference to any law already in force on that date, i.e. 1st November, 1966, when the reorganisation of the State of Punjab took place. Section 91 has no relevance for the controversy in question and does not deal with the authority and competence of the authority/person who had filed the execution application on behalf of the State of Haryana. We are not dealing with a case where authority of an officer in the State of Haryana to exercise any power conferred in other enactments in force at the time of reorganisation has been questioned and challenged. Reference to Section 91 of the Act is, therefore, completely misplaced and deserves to be rejected.

13. Challenge has also been made to the locus standi of the State of Haryana to file the execution application. This aspect is already covered by the reasoning given above with reference to Section 92 of the Act. Once it is held that the State of Haryana was deemed to be substituted, the State of Haryana certainly has the locus standi to file the execution application.

14. I also do not find any merit in the contention of the petitioner and the appellant that they were not a party to Suit No. 310/1964 and therefore the judgment and decree dated 30th April, 1968 was/is not binding on them. Reference in this regard may be made to Section 52 of the Transfer of Property Act, 1882. Doctrine of lis pendens is a doctrine based upon equity, good conscience and fairness. Similarly, Order XXI Rule 102 of the Code of Civil Procedure, 1908 clearly states that any obstruction or restriction without any just cause by judgment debtor or any other person on his instigation or his behalf or by a transferee where any such transfer is made during the pendency of the suit or execution proceedings is liable to be rejected. Law does not allow a litigant to part with and give to others, pending litigation, rights in the property in dispute so as to cause prejudice and circumvent a decree of a Court. The doctrine of lis pendens and the principle behind order XXI, Rule 102 of the Code of Civil Procedure, 1908 is based upon expediency and necessity to have an effective and complete adjudication and not on any requirement of notice.

15. In view of the above, I do not find any merit in the present appeal and the petition and the same are accordingly dismissed. No costs.