Haryana

Kurukshetra

ea 40/2012

Rajbir - Complainant(s)

Versus

Executive Engineer - Opp.Party(s)

B.S.Kalyan

07 Jul 2022

ORDER

Present:       Shri Kewal Krishan, Advocate for the applicants/3^rd party                        objectors namely Rohit Saini and Sunil Saini.

                   Shri B.S. Kalyan, Advocate for the DH/complainant.

                   Shri Sandeep Madan, Advocate for the JDs/OPs.        

 

This order shall dispose of the Objection Petition, moved on behalf of the applicants/3^rd party objectors namely Rohit Saini and Sunil Saini on 08.11.2021, alleging therein that present petition is filed u/s 27 of CP Act for enforcement of order dated 30.9.2010 passed by this Commission. In the original complaint or in the execution petition, the Objectors was not impleaded as party, although as per order dated 21.10.2021 it is only the objectors who were affected party. The Objectors are in possession of H.No.HTMCW-3000225, Gali No.1, Darra Khera, Thanesar having total 933.3 sq. Yards and paying the Municipal taxes regularly. The said house was purchased by deceased father of objectors from Moti Lal vide registered deed No.2374 dated 28.10.1991. The MC Thanesar wanted to demolish the said house by constructing a road through the house of the objectors in the lifetime of Amar Nath, who filed a Civil Suit No.1814 against MC Thanesar, which is pending before the Civil Judge (Sr. Division), Kurukshetra. Furthermore, there is a general stay granted by the Hon’ble High Court in writ petition No.PIL-77 of 2021, against execution of all order, judgment and decree, which were lying unexecuted on 28.04.2021 due to pandemic condition of Covid-19. The objectors shall suffer irreparable loss and injury if the order dated 21.10.2021 is not recalled and unexecuted. The said order has been obtained by the DH in collusion with MC Thanesar. The collusion was apparent from the fact that Shri Tirath Singh, Advocate was the counsel for OPs in original complaint No.646 of 2007 and in the present execution petition said Shri Tirath Singh, Advocate had represented complainant Rajbir Sharma. This Hon’ble Commission has every power to entertain third party objections and to hear the objections, who are aggrieved party from the order passed by this Commission in absence of the objectors. It is prayed that the order dated 21.10.2021 passed by this Commission may kindly be recalled and execution petition be dismissed qua the property of objectors, by accepting the present objection petition. To support his contentions, he placed reliance upon case law titled Shreenath & Anr. Vs. Rajesh & Ors., 1998 (1) Apex Court Journal 648 (SC).

2.                Reply to the said objection petition has been filed by the complainant/DH and prayed for dismissal the same.

3.                Learned counsel for the DH/complainant submitted written arguments containing pages 1 to 4, stating therein that the Hon’ble Commission has passed a detailed order on 21.10.2021, which was issued on 02.11.2021 and prayed that any of the Commission cannot stay to its own order. It is further stated that on 14.12.2015, Amarnath Saini had illegally set the gate by encroaching the street (gali) and was trying to stick a gate with my wall and in this regard, the DH made a complaint to Police Post, Third Gate. Thereafter, on 19.02.2016, 25.04.2016, 25.12.2021, he lodged complaints before Chief Minister, C.M. Window, Mini Secretariat, Kurukshetra, but the employee of Municipal Council, Thanesar, Kurukshetra, instead of showing my Israi pending, showed court case pending. On 12.10.2006 vide receipt No.5, the DH deposited Rs.55302/- with the M.C. Thanesar, Kurukshetra for site plan and on 18.12.2006, the MC Thanesar had approved his site plan, but according to 2 kanal of this plot/house, Rs.1,65,906/- is made and Rs.1,28,992/- is made according to Rs.933 sq. yard and requested that after removing the illegal encroachment from his gali, Municipal Council, Thanesar, Kurukshetra be instructed to make their gali paved and concrete as early as possible, so that the owner of plots/houses and other public do not bother.

4.                On the other hand, learned counsel for the JDs has argued that the Executing Court cannot go behind the decree/award/order and there is nothing in the order dated 30.09.2010 that any part of encroachment is to be removed. He further argued that in the title of the complaint bearing No.646 of 2007, the DH/complainant has mentioned his address as “r/o Darakhera Kalyan Nagar, near Didar Nagar Thanesar, District Kurukshetra, whereas, the site plan has been produced by the DH of Shanti Nagar and Didar Nagar and not of Kalyan Nagar, as such, Executing Court cannot go behind the decree/order. He argued that there is mentioned word “if any provided in the approved site plan” in the order dated 30.09.2010, but there is no approved site plan on the case file, as such, when there is approved site plan, then how the JDs can provide those facility in the locality. Since Didar Nagar, T.P. Scheme has not been sanctioned, therefore, there is no sanctioned roads and prayed that the execution application u/s 27 of Consumer Protection Act may kindly be dismissed with costs.

5.                 Heard the learned counsel for the applicants/3^rd party objectors, DH/complainant as well as JDs.

6.                After hearing learned counsel for the parties, the moot question before this Commission is whether this Commission can decide the third party objections or not. If yes and then as a consequence, can dismiss the execution petition on merits?

7.                Firstly coming to the first question, whether this Commission can decide the third party objections or not. In this regard, the case law titled Shreenath & Anr. Vs. Rajesh & Ors., 1998 (1) Apex Court Journal, 648 (SC) (cited supra) by counsel for the applicants/Objectors, is relevant, wherein, it is held that:

99.     Where the Court is satisfied that the resistance or obstruction was occasioned by any person (other than the judgment-debtor) claiming in good faith to be in possession of the property on its own account or on account of some person other than the judgment-debtor, the Court shall make an order dismissing the application.

12.     So far sub-clause (1) of Rule 97 the provision is same but after 1976 amendment all disputes relating to the property made under Rules 97 and 99 is to be adjudicated under Rule 101, while under unamended provision under sub-clause (2) of Rule 97, the Executing Court issues summons to any such person obstructing possession over the decretal property. After investigation under Rule 98 the Court puts back a decree-holder in possession where the Court finds obstruction was occasioned without any just cause, while under Rule 99 where obstruction was by a person claiming in good faith to be possession of the property on his own right, the Court has to dismiss the decree-holder application...............

13.     We find both either under the old law or the present law the right of a tenant or any person claiming right on his own of the property in case he resists, his objection under Order 21, Rule 97, has to be decided by the Executing Court itself.

14.     Rule 100 of the old law, as referred in the aforesaid Full Bench decision of the Madhya Pradesh High Court is a situation different from what is covered by Rule 97. Under Rule 100 (old law) and Order 99 the new law covers cases where persons other than judgment-debtor is dispossessed of immovable property by the decree-holder of course, such cases are also covered to be decided by the Executing Court. But this will not dealt the right of such person to get his objection decided under Rule 97 which is a stage prior to his dispossession or a case where he is in possession. In other words, when such person is in possession the adjudication to be under Rule 97 and in case dispossessed adjudication to be under Rule 100 (old law) and Rule 99 under the new law. Thus a person holding possession of an immovable property on his own right can object in the execution proceeding under Order 21 Rule 97. One has not to wait for his dispossession to enable him to participate in the execution proceedings. This shows that such person can object and get adjudication when he is sought to be dispossessed by the decree-holder. For all the aforesaid reasons, we do not find the Full Bench in Smt. Usha Jain (supra) correctly decided the law.

 

8.                So, in view of above case law, any person who is direct or indirect affected by the order of the Court, he can file the objections before the Executing Court, which can be decided by that Executing Court under order 21 Rule 99 of CPC, and as a consequence thereof, (as per above para No.99 of case law mentioned above), that Executing Court finds merits in that objections, then the Court can dismiss the execution petition itself. So, in view of case law cited above, we come to the conclusion that this Commission can decide the third party objections during the pendency of an execution petition under order 21 Rule 99 of CPC, and if the Commission finds merits in that objections, then the execution petition can be dismissed on that ground.

9.                Now coming on the second question i.e. deciding the execution petition on the merits.

10.              Before proceeding further, record of main Complaint Case bearing No.646 of 2007 as well as subsequent Execution Petition bearing No.40 of 2012 perused carefully. Para No.8 of the final order dated 30.09.2010 passed by the predecessor of this Commission, is relevant, which reads as under:-

“8.    Thus, we accept the complaint and direct the OPs to remove the dust, mud, waste etc. and construct already sanctioned roads if any provided in the approved site plan for ingress and outgress of the people of this locality. This order shall be complied within 90 days. We further direct the OPS to pay Rs.1000/- as compensation for harassment etc. File be consigned to record after due compliance.”

11.              From perusal of said para, we found that in that order, it was directed to the OPs to remove the dust, mud, waste etc. and construct already sanctioned roads, if any provided in the approved site plan for ingress and outgress of the people of the locality, but it is pertinent to mention here that from perusal of entire case file, we found no such approved site plan on the case file, meaning thereby, there is no approved site plan about the area in question and when there is no approved site plan, then how can the JDs/OPs remove the dust, mud, waste etc. and construct the roads etc. for ingress and outgress of the people of this locality. Without approved site plan, it is also not proved on the record that said Amarnath had made any illegal encroachment at the site in question, as alleged by the DH/complainant. Moreover, it is admitted fact that Didar Nagar has not been sanctioned under the T.P. Scheme, therefore, there could be no sanctioned roads etc. in that area. During the pendency of the execution petition, the JDs produced site plan as Mark-X prepared by one Shri Baldev Singh Kalyan, Advocate, but the said site plan was about Didar Nagar and Shanti Nagar, whereas, the main dispute in the complaint/execution petition in question is about Darra Khera, Kalyan Nagar, where the house of DH/complainant exists. Moreover, in the title of the complaint as well as in the execution petition, filed before this Commission, the DH/complainant has mentioned his address as “r/o Darakhera Kalyan Nagar, near Didar Nagar Thanesar, District Kurukshetra”, whereas, as mentioned above, he has produced the site plan Mark-X for Shanti Nagar and Didar Nagar. In the light of aforesaid discussion, it is clear that since there is no approved site plan on the case file and without which, the final order dated 30.09.2010 cannot be complied with. As such, no direction can be given to the JDs/OPs to comply with the said order.

12.              During the pendency of this execution petition before this Commission, one Amarnath Saini filed a Civil Suit against the JDs/OPs, on 18.11.2016/15.05.2018, before the Civil Court seeking decree for permanent injunction restraining the JDs from demolishing any part of his house as detailed in para No.1 of the plaint and the said suit was decreed on 21.02.2022, by the Court of learned Civil Judge (Sr. Division), Kurukshetra Mark R-1. In Para No.28 of said order, the defendant (JDs/OPs) was restrained from demolishing any part of the house of the plaintiff. From the above contents of said order dated 21.02.2022, we found that said Amarnath had not made any illegal encroachment at the site and as such, the JDs/OPs were restrained to demolish the same and the question of title has already been decided by the learned Civil Court in that order. No doubt, this Commission is not bound by the order of the Civil Court, but it is pertinent to mention here that this Commission also cannot go beyond the order/decree of the Civil Court. This Commission has no right to decide the question of title, which can only be decided by the Civil Court concerned vide its order dated 21.02.2022.

13.              So, in view our aforementioned detailed findings and observations, objection petition filed by the applicants as well as the order dated 21.02.2022 passed by the learned Civil Judge (Sr. Division), Kurukshetra, we are of the considered view that in the absence of approved site plan of the site, it could not be proved on the record that there is illegal encroachment made by said Amarnath at the site, as alleged by the DH/complainant in his complaint. Furthermore, the question of title has already decided by the learned Civil Judge (Sr. Division), Kurukshetra vide its order dated 21.02.2022. As a consequence thereof, no direction can be given to the JDs/OPs to comply with the order dated 30.09.2010 passed by the Predecessor of this Commission. In this way, keeping in view the ratio of the case law (cited supra) “Shreenath & Anr. Vs. Rajesh & Ors., 1998 (1) Apex Court Journal, 648 (SC)” as well as order 21 Rule 99 of CPC, the Objection Petition filed by the applicants/third party objectors is liable to be accepted and as a consequence thereof, the present execution petition, filed by the complainant/DH, is liable to be dismissed, having no merits.

14.              In view of our above discussion, we allow the Objection Petition dated 08.11.2021, moved by the applicants/3^rd party objectors and accordingly dismiss the present execution petition filed by the complainant/DH. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. Papers be tagged with the main complaint case file and be consigned to the records.  

Announced in open Commission:

Dated:07.07.2022.

    

                                                                                       (Neelam Kashyap)               

(Neelam)                   (Issam Singh Sagwal)                             President,

Member.                    Member.                                                 DCDRC, Kurukshetra.

 

 

 

Typed by: Sham Kalra, Stenographer.