C.R. 1341 of 2008 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH. C.R. 1341 of 2008 Date of decision:- 29.10.2009 Daya Ram petitioner vs Het Lal and others Respondent Present: Mr. RS Sahota,Sr.Advocate with Mr. BR Rana, Advocate. Mr. RB Gupta, Advocate. 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? M.M.S.BEDI,J. This revision petition has been preferred against an interim order dated 16.2.2008 passed by the learned Additional District Judge, Faridabad in an appeal pending before him, having been filed by the plaintiff-respondents against judgment and decree dated 31.3.2005 dismissing their suit for declaration and injunction by the trial court. The impugned order reads as follows:- “ Appellants/ plaintiffs and others in their personal capacity and also in representative capacity being co-sharers/ proprietors of Shamlat land of Patti Nathan Mohalla Barh, Faridabad Old have instituted suit for declaration with consequential relief of permanent injunction against Daya Ram and others, defendants in their personal as well as representative of C.R. 1341 of 2008 -2- Balmiki Biradari of Mohalla Barh Faridabad Old without impleading Gram Panchayat, Faridabad Complex Adminsitration or State of Haryana as party. The suit property bearing khewat No.139, khata No.221 and khasra No.1219 measuring one bigha and four biswas situated in revenue estate of Faridabad Old District Faridabad, is a Shamlat Patti Nathan. As per ratio of judgment of Hon'ble High Court of Punjab & Haryana in case of Mohan Lal versus Mohan Singh 1995 PLJ 48 it is well settled principle of law that courts have to act as guardian of public property. Therefore, as per provisions of Order 1 Rule 10(2) and Section 151 CPC, State of Haryana through Deputy Commissioner Faridabad and Faridabad Complex Administration through its Administrator are added as defendants being necessary party. Let notices be issued to them for 26.2.2006.” From the perusal of the above order, it is apparent that the lower appellate court has construed the observations made in Mohan Lal vs Mohan Singh 1995 PLJ 48, to be mandatory and directive to the effect that the courts being guardian of public property have to implead State as a necessary party. I have carefully gone though the facts and circumstances of Mohan Lal's case (supra). In the said case, there was a dispute between the private individuals and the disputed property constituted a part of public passage. A dispute arose between the private parties regarding interim injunction involving a property, which was a public property recorded as Gair Mumkin Rasta Share Aam in the revenue record. While determining whether the necessary three ingredients i.e. a strong prima facie case, balance of convenience and irreparable injury caused, for adjudication of application under Order 39 Rules 1 and 2 CPC, this Court C.R. 1341 of 2008 -3- observed as under:- “ Apart from the three ordinary ingredients which must be satisfied for grant of injunction in favour of a plaintiff/ petitioner,namely, a strong prima facie case, balance of convenience and irreparable injury, in cases involving public properties and public interest, the Courts have to bear in mind as to whether the grant of injunction would be conducive or deterimental to public interest. The Courts have to take note of the fact that Government lands belonging to the public at large and the community as a whole is entitled to enjoy the properties belonging to the Government. In fact, the Government holds property as a trustee of the people and, therefore, where any attempt is made by an individual or a group of individuals to misappropriate/ misuse or otherwise interfere with the enjoyment of public property by the people in general, the Courts have to be extremely cautious in granting injunction in favour of such person only on the ground that he is in possession of the property. Possession of public property by such an individual or a group of individuals is no possession in the eyes of law. Such a person cannot claim any right whatsoever on the basis of unlawful occupation of the public property and courts would be justified in declining any assistance to such person. In such like cases, a plaintiff cannot claim parity with a person who has a dispute with another individual over a private property. Moreover, the Courts have to act as guardian of the public property and should not pass an order of injunction in favour of a person who has made unauthorised encroachment of the public property. For these reasons, I hold that the order passed by the learned Additional District Judge does not suffer from any jurisdictional error or any other legal infirmity requiring interference by this court.” A word of caution has been imparted to the courts, saying that the courts have to be extremely causcious in granting injunction in favour C.R. 1341 of 2008 -4- of such persons, who claim to be in possession of the public property. The ratio decidendi in the said case is not that the court has inherent jurisdiction as an appellate court, without touching the merits of the case, to exercise powers under Order 1 Rle 10 CPC to implead the State as defendant. If the natural legal consequences of the impugned order are to be seen, then the added defendant has to be given an opportunity to file a written statement , which will result in reframing of the issues. The dispute has to be adjudicated upon by giving an opportunity to the parties, who are already litigating or the party , which has been ordered to be added as an additional party. The cryptic order, passed by the lower appellate court, not only goes contrary to the spirit of the observations of the High Court in Mohan Lal's case (supra) but seems to be an order contrary to the pleadings and the controversy involved. In case, as a guardian of the public property, the court finds that the process of law is being abused by the private parties, it is always open to the court to decline relief to the party by passing a speaking order. It is expected that with the wisdom and experience to the credit of a court , it can always be determined whether a public property is misused by a private party or that a decree is being obtained by playing fraud on the court. I have gone through the facts and circumstances of the case, which is to be adjudicated upon by the lower appellate court in exercise of appeal jurisdiction. A suit had been filed by the plaintiff- respondents Het Lal and others for declaration that the plaintiffs along with other co- sharers/ proprietors of Shamlat land of Patti Nathan, Mohalla Barh, Faridabad old are owners in possession of the suit land. They have also claimed that the defendant-appellants and other members of the Balmiki C.R. 1341 of 2008 -5- community of Barh Mohalla, Faridabad Old should be restrained from interfering in the peaceful possession of the plaintiff- respondents and other co-sharers/ proprietors of Shamlat Patti Nathan, Mohalla Barh, Faridabad Old. The injunction has been sought against the defendants that they should be restrained from unlawfully ousting and forcibly occupying the suit land. In the alternative it has been prayed that in case defendants or any other members or a group of members of Balmiki community are found to be in possession or take the possession of the suit property, then a decree for possession in respect of the suit land be passed in favour of the plaintiff- respondents and other co-sharers, who claim to be proprietors of Shamlat land of Patti Nathan Mohalla Barch, Faridabad Old. The trial court has dismissed the suit of the plaintiffs on the ground that they have failed to establish that land in dispute is part of khasra No.1219, which is owned by Patti Nathan to the extent of 7374/10939 share. In an appeal, filed by the plaintiff- respondents, the above said impugned order dated 16.2.2008 has been passed, which has not been found to be a proper order, as mentioned herein above. In view of the above, the revision petition is allowed, the interim order dated 16.2.2008, passed by the lower appellate court is hereby set aside and it is ordered that the lower appellate court will proceed to decide the appeal on merits. However, it is made clear that in case, at any stage, the lower appellate court is of the opinion that it is the public property, which is being usurped by any of the parties to the lis, it will be open to it to pass any appropriate order to safe-guard the public property from misappropriation or misuse as per the observations made in Mohan Lal's case (supra). In case it is found, at any stage, that the C.R. 1341 of 2008 -6- property vests in any public authority and the State/ authority has not been impleaded as a party, the suit can always be dismissed on the ground of non joinder of the said authority or on the ground of mala fide collusion of parties. Let the appeal be decided on merits within a period of six months after a receipt of a certified copy of the order, on merits. Nothing mentioned, in this order , will prejudice the rights of any of the parties on merits. They will be at liberty to contest the case on the basis of the pleas raised in the pleadings and the evidence produced on the record. October 29 ,2009 (M.M.S.BEDI) TSM JUDGE