Research › Search › Judgment

Himachal Pradesh High Court · body

2015 DIGILAW 965 (HP)

Kishori Lal v. State of H. P.

2015-07-29

TARLOK SINGH CHAUHAN

body2015
JUDGMENT : Tarlok Singh Chauhan, J. Through this writ petition, the petitioner has claimed the following substantive reliefs:- (a) That impugned acts of the respondents, above stated, which amount to executive inaction, may very kindly be quashed and set aside with directions to respondents No.1 and so also to the H.P.State Electricity Board, respondent No.6 herein, to get the matter inquired into at their own level with respect to dereliction of duties on the part of Police people and officials of the Electricity Board, including the Senior Executive Engineer, SDO (E), Jawali, which acts on their part amount to misconduct, as per service jurisprudence. (b) That further directions may be issued to respondents No. 1 and 6 to take suitable action against officers/officials for misconduct as per provisions of the service jurisprudence after receipt of the inquiry report. Directions may also be given to put on records of this case the inquiry report pursuant to inquiry, as is conducted and action, as is taken, as the same will be an eye-opener for others not to fell prey to the musclemen. (c ) That directions may be issued to respondents No. 1 and 6 to provide police assistance and to install transformer and to provide electricity to the industry of the petitioner forthwith without any further delay, in the interest of law and justice. 2. The facts as pleaded in the petition are that after superannuation from Government service, the petitioner with a view to settle his unemployed son entered into an agreement dated 3.8.2009 with the private respondent to buy land comprised in Khata No. 224, Khatauni No. 457, Khasra No. 858, area measuring 0-18-00 hectares, to the extent of 181/362 shares i.e. 0-09-00 hectares and Khata No. 247, Khatauni No. 458, Khasra No. 857 area measuring 0-59-51 hectares, to the extent of 181/724 shares, i.e. area measuring 0-14-88 hectares. In total, the private respondent agreed to sell his land in both khatas measuring 0-23-88 hectares situated in Mohal Dhan, Mauza and Tehsil Jawali, District Kangra, H.P. as per jamabandi for the year 2003-04 for a total consideration of Rs.13,02,000/-. 3. The purpose of purchasing the land was to install an Atta Chakki (Flour Mill) and accordingly the petitioner applied to the Senior Executive Engineer for electricity connection vide his application dated 31.3.2014. 3. The purpose of purchasing the land was to install an Atta Chakki (Flour Mill) and accordingly the petitioner applied to the Senior Executive Engineer for electricity connection vide his application dated 31.3.2014. The long and short of the matter is that though the electricity board was ready to provide the electricity connection but on account of the resistance offered by the private respondent, the same was not being released despite the fact that the petitioner had deposited a sum of Rs. 4,00,000/- to Rs. 5,00,000/- in the electricity board authorities account. 4. It is further contended that the private respondent was approached time and again to get the sale deed registered, but to no avail which constrained the petitioner to file a civil suit for specific performance and vide orders dated 5.9.2011 the parties to the suit were directed to maintain status quo qua alienation and possession of the suit land. Despite the status quo orders, the private respondent sold a part of the suit land to one Sh. Vinay Kumar. On coming to know about this fact, the suit filed was amended by arraying Sh. Vinay Kumar as party and sale deed executed in his favour was also challenged. An application for injunction was again filed and vide order dated 16.5.2013 which were passed in the presence of Vinay Kumar, the parties were directed to maintain status quo qua nature and possession of the suit property. It is further represented that even this order of injunction has been violated inasmuch as the sale deed in favour of Vinay Kumar has been registered for which the proceedings under Order 39 Rule 2A CPC have been initiated and are pending. 5. The official respondents, who comprise of the Secretary (Home) and certain police officials, have filed a joint reply wherein it has been averred that Sh. Vinay Kumar is a necessary party and have further stated that on account of the dispute being essentially civil in nature, these respondents have no role to play. 6. The private respondent has filed his separate reply wherein preliminary submissions regarding competence and maintainability of the petition have made to the effect that Vinay Kumar is a co-owner of the suit land in whose absence the petition is not maintainable. 6. The private respondent has filed his separate reply wherein preliminary submissions regarding competence and maintainability of the petition have made to the effect that Vinay Kumar is a co-owner of the suit land in whose absence the petition is not maintainable. It has further been stated that it was only on account of the petitioner’s inability to arrange for the balance consideration that the private respondent was constrained to sell the land as he was in dire need of money. However, in the same breath, the private respondent has claimed that he has unnecessarily been impleaded and put to financial loss. On merits, in addition to reiterating what has been stated in the preliminary submissions, it has been stated that the petitioner has not acquired any title to the property since no legal and valid sale deed has been executed in his favour. I have heard learned counsel for the parties and have gone through the records of the case carefully. 7. At the outset, certain undisputed facts may be noticed: (i) The possession of the suit land as per the agreement to sell dated 3.8.2009 is with the petitioner. (ii) It is the petitioner who has filed the suit for specific performance which is pending adjudication. (iii) Though a part of the property was sold to Vinay Kumar by the private respondent but that was after the orders of status quo qua alienation and possession had already been passed by the Court on 5.9.2011. This, in fact necessitated the amendment of the suit and Vinay Kumar impleaded as party and thereafter again vide order dated 16.5.2013 which was passed in the presence of Vinay Kumar, the parties were directed to maintain status quo qua nature and possession over the suit property. 8. This being the factual position, the next question which therefore arises for consideration is as to whether the private respondent can oppose the installation of the transformer only on the ground that he is owner of the property or that a part of the property has been sold by him to Vinay Kumar. 9. Undoubtedly, by applying for transformer, the petitioner cannot be held to be the owner of land. The petitioner’s claim in this regard has to be judged only in light of the fact that he is in possession of the suit land. 9. Undoubtedly, by applying for transformer, the petitioner cannot be held to be the owner of land. The petitioner’s claim in this regard has to be judged only in light of the fact that he is in possession of the suit land. Once, it is not disputed that the possession of the land is with the petitioner, then, I see no reason why the private respondent should object to the installation of the transformer for the purpose of running flour mill. After all, the installation of transformer would not in any manner confer ownership of the land upon the petitioner and the same would essentially abide by the outcome of the civil litigation pending inter se between the parties. 10. Insofar as non-joinder of Vinay Kumar as a party respondent is concerned, suffice it to say that the transfer of a part of the land in his favour, prima-facie would be hit by the doctrine of lispendence. As provided under Section 52 of the Transfer of Property Act, this Section does not declare a pendent elite transfer by a party to the suit as void or illegal, but only makes the pendente lite purchaser bound by the decision in the pending litigation. The principle underlying Section 52 is that if during the pendency of any suit in a court of competent jurisdiction which is not collusive, in which any right of an immovable property is directly and specifically in question, such property cannot be transferred by any party to the suit so as to affect the rights of any other party to the suit under any decree that may be made in such suit. If ultimately the title of the pendente lite transferor is upheld in regard to the transferred property, the transferee’s title will not be affected. 11. On the other hand, if the title of the pendente lite transferor is recognised or accepted only in regard to a part of the transferred property, then the transferee’s title will be saved only in regard to that extent and the transfer in regard to the remaining portion of the transferred property to which the transferor is found not entitled, will be invalid and the transferee will not get any right, title or interest in that portion. This was so held by the Hon’ble Supreme Court in T.G. Ashok Kumar vs. Govindammal and another (2010) 14 SCC 370 wherein it was observed as under:- “11. Section 52 dealing with lis pendens is relevant and it is extracted below : "52. Transfer of property pending suit relating thereto.-- During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right of immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the court and on such terms as it may impose." 12. In Jayaram Mudaliar v. Ayyaswami (1972) 2 SCC 200 this court held (at SCC p. 218, para 47) that the purpose of Section 52 of the Act is not to defeat any just and equitable claim, but only to subject them to the authority of the court which is dealing with the property to which claims are put forward. This court in Hardev Singh v. Gurmail Singh (2007) 2 SCC 404 held that Section 52 of the Act does not declare a pendente lite transfer by a party to the suit as void or illegal, but only makes the pendente lite purchaser bound by the decision in the pending litigation. 13. The principle underlying Section 52 is clear. If during the pendency of any suit in a court of competent jurisdiction which is not collusive, in which any right of an immovable property is directly and specifically in question, such property cannot be transferred by any party to the suit so as to affect the rights of any other party to the suit under any decree that may be made in such suit. If ultimately the title of the pendente lite transferor is upheld in regard to the transferred property, the transferee's title will not be affected. 14. If ultimately the title of the pendente lite transferor is upheld in regard to the transferred property, the transferee's title will not be affected. 14. On the other hand, if the title of the pendente lite transferor is recognized or accepted only in regard to a part of the transferred property, then the transferee's title will be saved only in regard to that extent and the transfer in regard to the remaining portion of the transferred property to which the transferor is found not entitled, will be invalid and the transferee will not get any right, title or interest in that portion. 15. If the property transferred pendente lite, is allotted in entirely to some other party or parties or if the transferor is held to have no right or title in that property, the transferee will not have any title to the property. Where a co-owner alienates a property or a portion of a property representing to be the absolute owner, equities can no doubt be adjusted while making the division during the final decree proceedings, if feasible and practical (that is without causing loss or hardship or inconvenience to other parties) by allotting the property or portion of the property transferred pendente lite, to the share of the transferor, so that the bonafide transferee's right and title are saved fully or partially.” However, it may be clarified that the aforesaid observation would be subject to and abide by the final outcome of the pending civil litigation. 12. After taking into consideration the peculiar facts and circumstances of the case and also bearing in mind that there is a civil suit already pending between the petitioner and private respondent, I see no reason for not allowing or permitting the petitioner to install the transformer, more particularly, when the electricity board has virtually no objection in installing the same. 13. Even otherwise, the principles of justice, equity and fair play demand that the petitioner who has already paid a considerable part of the sale consideration and has been put to possession of the property way back in the year 2009 should be permitted to make the best use of the land. 14. Moreover, the private respondent at this stage cannot be permitted to complain as it is being made clear that by granting permission to the petitioner to install the transformer, no findings qua the ownership etc. 14. Moreover, the private respondent at this stage cannot be permitted to complain as it is being made clear that by granting permission to the petitioner to install the transformer, no findings qua the ownership etc. are being accorded as these will essentially be determined in the civil litigation. 15. The petition is accordingly allowed and in the event of the petitioner fulfilling all the necessary conditions and on payment of requisite charges is entitled to have the transformer installed in the premises, the respondents No. 6 to 9 are directed to install the same within a period of 15 days subject to the conditions of eligibility and fulfillment of all other conditions. The respondent No.10 is permanently restrained from creating any let or hindrance in the installation of the transformer. The respondents No. 2 to 5 are directed to render all necessary assistance in the installation of the transformer. 16. Before parting, it may again be clarified that the installation of the transformer does not in any manner confer ownership of the land or the premises upon the petitioner and the same shall be subject to the outcome of the civil suit which is pending inter se between the petitioner and respondent No.10. With the aforesaid observations, the petition stands disposed of, so also the pending application, if any, leaving the parties to bear their own costs.