Allahabad High Court
Prayas Buildcon Pvt.Ltd. vs State Of U.P.Thru.Prin.Secy.Housing ... on 16 August, 2022
Author: Rajesh Bindal
Bench: Rajesh Bindal, Rajan Roy, Vivek Chaudhary
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Chief Justice's Court Serial No.301 HIGH COURT OF JUDICATURE AT ALLAHABAD (LUCKNOW) WRIT-C No.8870 of 2020 Pronounced on : August 16, 2022 Prayas Buildcon Pvt. Ltd. ..... Petitioner Through : Mr. Ravi Gupta, Senior Advocate with Mr. Palash Banerjee and Mr. Aviral Raj Singh, Advocates v. State of U.P. through Principal Secretary, Housing and Urban Planning and others .....Respondents Through : Mr. Ratnesh Chandra, Advocate for respondent Nos.2 and 3 CORAM : HON'BLE RAJESH BINDAL, CHIEF JUSTICE HON'BLE RAJAN ROY, JUDGE HON'BLE VIVEK CHAUDHARY, JUDGE ORDER
RAJESH BINDAL, C.J.
1. On account of difference of opinion between two Judges constituting the Division Bench and on the larger issues sought to be raised by Dinesh Kumar Singh, J. in his opinion, the matter was directed to be placed before the larger Bench by the then Chief Justice vide administrative order passed on January 12, 2021.
2. The issues, on which the opinion is sought, are as under:
"i) Whether the subsequent Writ Petition No.8870 (MB) of 2020 filed by the petitioner after final judgment dated 17.05.2019 passed in Writ Petition No.12081 (MB) of 2009 is an abuse of process of the Court, as before filing the Writ Petition No.8870 (MB) of 2020, the petitioner has filed Civil Misc. Application No. 87559 of 2019 for further direction and issuance of certificate for leave to appeal before the Supreme Court under Article 134 of the Constitution and during the pendency of the said application, the present writ petition has been filed?
ii) Whether the second Writ Petition No.8870 (MB) of 2020 filed by the petitioner is maintainable in view of the fact that the petitioner is seeking implementation of the judgment and order dated 17.05.2019 passed in Writ Petition No.12081 (MB) of 2009? and,
iii) Whether the second Writ Petition No.8870 (MB) of 2020 is barred by the principle of res judicata/constructive res judicata in view of the fact that while allowing Writ Petition No.12081 (MB) of 2009 vide judgment and order dated 17.05.2019, the respondents have been directed to process the application of the petitioner for conversion of lease-hold-rights into free-hold, in accordance with law laid down by the Full Bench in Anand Kumar Sharma's case (supra) and, thus, the issue regarding the relevant date for conversion charges was very much involved in Writ Petition No.12081 (MB) of 2009?"
FACTS OF THE CASE
3. Brief facts giving rise to the dispute are that the petitioner filed present writ petition praying for a direction to the respondents to proceed with conversion of leasehold rights to freehold rights in accordance with the order dated May 17, 2019 passed in earlier Writ Petition No.12081 (MB) of 2009 filed by it and issue demand letter accordingly. The matter came up for hearing before the Division Bench consisting of Pankaj Kumar Jaiswal and Dinesh Kumar Singh, JJ. Pankaj Kumar Jaiswal, J. allowed the writ petition and issued direction, as prayed for. Having not agreed with the views expressed by Pankaj Kumar Jaiswal, J., Dinesh Kumar Singh, J., in his separate order, was of the opinion that the writ petition deserved to be dismissed, accordingly he dismissed the writ petition with exemplary cost of ₹10,00,000/-. He opined that in view of difference of opinion, the matter is required to be placed before a larger Bench for consideration of the issues as noticed above. This is how the matter is placed before this Bench.
ARGUMENTS
4. Learned counsel for the petitioner, while addressing the Court on the issues required to be considered, admitted that earlier Writ Petition No.12081 (MB) of 2009 was filed by the petitioner herein. However, the reliefs prayed therein were different than those claimed in the present writ petition. Hence, it cannot be said to be not maintainable or barred on account of res judicata or constructive res judicata. The directions already issued by Division Bench of this Court in the earlier writ petition filed by the petitioner were not complied with. An application bearing Civil Misc. Application No.87559 of 2019 filed by the petitioner seeking clarification is also pending. However, he will not press the same, as substantive reliefs have been claimed in the present writ petition. He further submitted that filing of the present writ petition was in terms of legal advice available to the petitioner. There was no effort to overreach the Court for claiming the reliefs prayed for. The respondents were not even complying with the earlier order passed by this Court in favour of the petitioner. He further submitted that in case it was found that the writ petition filed by the petitioner was not maintainable, nothing should have been stated on the merits of the controversy and the writ petition could be dismissed as such. However, still one of the Judge constituting the Bench has expressed opinion even on merits of the controversy.
5. On the other hand, learned counsel for the respondents submitted that the writ petition in question was filed concealing material facts. The prayers made therein shows that it was merely a writ petition filed by the petitioner praying for execution of an order passed in the earlier writ petition, which was not maintainable. The efforts were also made to address argument to review the earlier order. It was further submitted that earlier writ petition filed by the petitioner was allowed in terms of the order dated May 23, 2008 passed by the Division Bench of this Court in Writ Petition No.9360 (MB) of 2007 and the ratio laid down in Full Bench judgment of this Court in Anand Kumar Sharma v. State of U.P. and others, AIR 2014 Allahabad 106. In case, anyone was aggrieved, he could have availed of his appropriate remedy. In the case in hand, the effort of the petitioner was to mislead the Court. Firstly, an application was filed by the petitioner for clarification of the order. Prayer was also made therein for grant of leave to file appeal before Hon'ble the Supreme Court. However, during the pendency thereof, the present writ petition was filed.
6. Heard learned counsel for the parties and perused the paper book.
QUESTION NO.I Whether the subsequent Writ Petition No.8870 (MB) of 2020 filed by the petitioner after final judgment dated 17.05.2019 passed in Writ Petition No.12081 (MB) of 2009 is an abuse of process of the Court, as before filing the Writ Petition No.8870 (MB) of 2019, the petitioner has filed Civil Misc. Application No. 87559 of 2019 for further direction and issuance of certificate for leave to appeal before the Supreme Court under Article 134 of the Constitution and during the pendency of the said application, the present writ petition has been filed?
7. The facts of the case are that the petitioner had applied for getting certain nazul land converting into freehold land. The said application was rejected by the Vice-Chairman, Lucknow Development authority, Lucknow by his order dated May 20, 2009, which was communicated by the Nazul Officer by his letter dated October 1, 2009. Challenging the same, the petitioner earlier filed Writ Petition No.12081 (MB) of 2009 with the following prayers:
"i) Issue an appropriate Writ, direction or order in the nature of certiorari quashing the impugned order dated 20.05.2009 passed by the Vice Chairman, Lucknow Development Authority, the Opposite Party No.3 as conveyed through the letter dated 01.10.2009 after summoning the original in this Hon'ble Court.
ii) Issue appropriate Writ, Order or direction in the nature of mandamus directing the Opposite Parties more particularly, the State of Uttar Pradesh, the Opposite Party No.1, the Vice Chairman, Lucknow Development Authority, Opposite party No.3 and the Nazul Officer, Lucknow Development Authority, Lucknhow the Opposite Party No.2 to perform their statutory obligations so as to proceed and complete the process of conversion of lease hold rights in respect of the land in question into free hold in favour of the Petitioner by requiring the Petitioner to deposit the balance amount within such day and time to be fixed after indicating it through demand letter and complete it by the execution and registration of free hold Deed in respect of the same in favour of the Petitioner according to law and as per policy within a time framed to be fixed by this Hon'ble Court.
iii) Issue appropriate Writ, order or direction including in the nature of mandamus commanding the Opposite parties for not to interfere in the peaceful possession and enjoyment of the land in question as mentioned in Paragraphs No.1 to 3 above of the Petition or dispossessing the Petitioner therefrom by acting illegally or pursuant to the impugned action as contained in Paragraph Nos.15 to 18 of the Writ Petition."
8. The aforesaid writ petition was allowed vide judgment dated May 17, 2019. The operative part of the order reads as under:
"39. For the above-mentioned reasons the orders dated 20.05.2009 and 01.10.2009 are quashed. The respondents no. 2 and 3 shall proceed for conversion of property to freehold expeditiously in accordance with law in term of the order dated 23.05.2018 passed in Writ Petition No.9360 (MB) of 2007 and the ratio laid down by Full Bench in the case of Anand Kumar Sharma Vs. State of U.P. and others (Supra)."
9. A perusal of the aforesaid direction issued by the Division Bench of this Court in the earlier writ petition filed by the petitioner shows that needful was to be done in terms of the order dated May 23, 2008 passed by the Division Bench of this Court in Writ Petition No.9360 (MB) of 2007 and the ratio laid down in Full Bench judgment of this Court in Anand Kumar Sharma's case (supra). The relevant date for calculation of the commercial charges is well settled. In Anand Kumar Sharma's case (supra), the issue under consideration before the Full Bench of this Court was whether an application filed for conversion from nazul land to freehold land was required to be considered in accordance with the policy of the Government as was in existence on the date of application or when the same was being decided. The Full Bench answered that the application was required to be considered in accordance with the policy as is in existence at the time of passing of the order. Para 47 of the Full Bench judgement is reproduced as under:
"In view of the foregoing discussions, our answer to the abovenoted two questions are:
(1) The application of the petitioner dated 25/7/2005 submitted for grant of free hold right on the basis of the Government Orders dated 01/12/1998 and 10/12/2002 was entitled to be considered in accordance with the government's policy as was in existence at the time of passing of the order. The Government Order dated 04/8/2006 was rightly relied on by the Collector while rejecting the application on 18/12/2006.
(2) The Division Bench judgment in Dr. O.P. Gupta's case (supra) does not lay down the correct law insofar as it holds that the application for grant of freehold right is to be considered as per the government policy as was in existence on the date of making application for grant of freehold right." (emphasis supplied)
10. Against the aforesaid order, Lucknow Development Authority filed Special Leave Petition (Civil) Diary No.34417 of 2019 before the Supreme Court titled as Lucknow Development Authority and another v. Prayas Buildcon (P) Ltd. and another. The same was dismissed vide order dated October 25, 2019.
11. The petitioner though did not prefer any Special Leave Petition against the judgment of this Court dated May 17, 2019, but filed Civil Misc. Application No.87559 of 2019 praying for the following reliefs :
"(A) Direct the Respondent no.2/3 to issue Demand Letter specifying therein the balance amount payable towards conversion after adjusting the deposit of sum of Rs.6,46,87,500/-, as per the valuation as of 20.05.2009 for the land falling in Purwa Imam Baksh Mohalla Hasanganj Par, Lucknow (now ward Nishatganj), Mohalla Baba Ka Purwa) within such time as this Hon'ble Court may deem just and necessary.
(B) Issue a certificate under Article 134A of the Constitution read with Article 133(1) of the Constitution by invoking power and jurisdiction conferred by the Constitution granting leave to appeal before the Hon'ble Supreme Court on the aforesaid substantial question of law of general importance stated in Para 5 of the accompanying affidavit."
12. A perusal of the aforesaid prayers shows that direction was sought to respondent Nos.2 and 3 to issue demand letter as per the amount calculated by the petitioner taking the date as May 20, 2009 and further for grant of leave under Article 134A of the Constitution of India read with Article 133(1) thereof to file appeal before Hon'ble the Supreme Court. The aforesaid prayers are self-contradictory as the petitioner on the one hand, has shown his desire to challenge the aforesaid judgment while on the other hand, he is asking for depositing of amount in furtherance of the said judgment. The aforesaid prayers were totally in contradiction to the reliefs granted to the petitioner in the earlier writ petition, which was decided in terms of Full Bench Judgment of this Court in Anand Kumar Sharma's case (supra). In terms thereof, the charges are to be calculated as applicable on the date of decision on the application. Though at the time of hearing, learned counsel for the petitioner submitted that the petitioner does not wish to press the aforesaid application, however, we are not entering into that controversy. We have to decide the issues referred to us.
13. The stand taken by the Lucknow Development Authority to the aforesaid application was that under the garb of aforesaid application, in fact, the petitioner was seeking review of the order dated May 17, 2019, whereby the earlier writ petition filed by the petitioner was decided in terms of law laid down by the Full Bench of this Court in Anand Kumar Sharma's case (supra).
14. The aforesaid application was taken up for hearing on August 22, 2019 and in absence of the counsel for the applicant as well Lucknow Development Authority, the hearing of the application was adjourned. Subsequent order passed by this Court on October 17, 2019 records the statement made by the learned counsel appearing for the LDA that a Special Leave Petition against the judgment of this Court dated May 17, 2019 was filed and is likely to be listed. The application was directed to be listed after four weeks. Subsequently, when the application was listed on February 14, 2020, the same was again adjourned.
15. During the pendency of the aforesaid application, the petitioner preferred the present writ petition praying for the following reliefs:
"A. Issue a Writ, order or direction in the nature of Mandamus, directing the Respondents to proceed forthwith, with the conversion of the concerned property situated at Purwa Imam Baksh Mohalla Hasanganj Par, Lucknow (now Ward Nishatganj, Mohalla Baba ka Purwa) admeasuring 75,000 sq.mts. from leasehold to freehold in favour of the Petitioner in a time bound manner in accordance with the spirit and directions as enumerated by this Hon'ble Court in its Final Order and Judgment dated 17.05.2019 passed in W.P. No.12081 (MB) of 2009;
B. Issue a Writ, order or direction in the nature of Mandamus, directing the Respondents to issue a Demand Letter to the Petitioner forthwith, in furtherance of such conversion process, seeking deposit of the remaining 75% amount as per the valuation rates as applicable on 20.05.2009, after: (i) duly adjusting/ deducting the amount of INR 6,46,87,500/- (which already stands deposited by the Petitioner with the Respondents), and also (ii) duly adjusting/ deducting interest on the amount of INR 6,46,87,500/- (to be calculated from the date of deposit until the date of raising the Demand Letter)."
16. The grounds as raised by the petitioner for claiming the reliefs prayed for in the present writ petition are quite relevant. To put the record straight and appreciate the arguments, we deem it appropriate to reproduce the grounds as under:
"A. Because the Respondent Authorities have failed to act in accordance with the Final Order and Judgment dated 17.05.2019 passed by this Hon'ble Court in W.P. No. 12081 (MB) of 2009 which directed the Respondents to expeditiously proceed with the completion of conversion of property from leasehold to freehold;
B. Because the Respondent Authorities are bound by the ratio of this Hon'ble Court in Anand Sharma v. State of U.P. Thru Principal Secretary & Ors [AIR 2014 Allahabad 106] which clearly provides that an application for grant of freehold right must be considered in accordance with the Government's policy as was in existence on the date of passing the order in that regard;
C. Because the Respondent Authorities are barred from revisiting the issue of determining the rate at which demand letter must be issued especially when a part payment of INR 6,46,87,500/- was already made by the Petitioner and duly admitted by the Respondents in the year 2007;
D. Because the Respondent authorities have been adopting dilatory tactics to circumvent and not fulfil their obligations as per the Final Order and Judgment dated 17.05.2019 passed by this Hon'ble Court;
E. Because the Respondent Authorities' blatant disregard for Final Order and Judgment dated 17.05.2019 passed by this Hon'ble Court, a contemptuous act and should be severely punished;
F. Because the Respondent Authorities are public institutions performing functions of public importance. Their blatant disregard for complying with the Final Order and Judgment dated 17.05.2019 passed by this Hon'ble Court is causing severe prejudice to the Petitioner and hampering the progress of the proposed construction activities to be undertaken by the Petitioner;
G. Because the actions of the Respondent Authorities are causing severe financial hardship to the Petitioner as it is impeded from proceeding with the construction activities;
H. Because the Petitioner is required to pay the remaining deposit of 75% in relation to the conversion process in accordance with the applicable valuation rates as prevalent 2009, which is the relevant date as far as the final order in W.P. No. 12081 (MB) of 2009 is concerned;
I. Because the Petitioner is required to comply with the ratio of a Full Bench of this Hon'ble Court in Anand Sharma v. State of U.P Thru Principal Secretary & Ors [AIR 2014 Allahabad 106], in keeping with principles of judicial propriety;
J. Because the Petitioner is a bona fide and law abiding builder who has deposited a sum of INR 6,46,87,500/- with the Respondent Authorities since 2007 in order to seek the requisite conversion of property from leasehold to freehold;
K. Because the above mentioned sum of INR 6,46,87,500/- was deposited by the Petitioner with the Respondent authorities in 2007. However, despite passage of over 13 years, the Petitioner has not been granted the requisite approval;
L. Because the Respondent authorities being public functionaries have abdicated their responsibility by delaying the process of completing the conversion process so as to enable the Petitioner to undertake the desired construction;
M. Because the Respondent Authorities perform a public function and are amenable to the Writ jurisdiction of this Hon'ble Court under Article 226 of Constitution of India."
17. A perusal of the aforesaid grounds clearly shows that the present writ petition was filed raising a grievance that order passed by this Court in earlier writ petition on May 17, 2019 has not been complied with, which is causing great prejudice to the petitioner. It further claims inaction on the part of the authorities is nothing else but contemptuous, for which they need to be punished. It is worthwhile to note that before the present writ petition was filed, an application bearing C.M. Application No.87559 of 2019 was already filed by the petitioner in the earlier writ petition praying for the same relief as Prayer No.B in the present writ petition while also seeking certificate to challenge the judgment of the earlier writ petition in SLP.
18. To appreciate the issues required to be considered, firstly, we need to go into little detail of the pleadings and the reliefs prayed for in both the writ petitions.
19. The perusal of the relief (A), as claimed in the application, shows that it was nothing else but seeking review of the earlier order wherein the direction was issued for calculation of conversion charges. For dealing with the application filed by the petitioner for conversion of the property to freehold in terms of Full Bench judgment of this Court in Anand Kumar Sharma's case (supra), the conversion charges are payable as on the date of decision on the application. Hence, the claim of the petitioner that for valuation, the date should be taken as May 20, 2009, was in contravention to the direction already issued in the writ petition.
20. A perusal of two prayers made in the writ petition in question shows that the first one is for a direction to the respondents to proceed with the conversion of property as freehold in a time bound manner in terms of direction issued by this Court on May 17, 2019 in the earlier Writ Petition No.12081 of 2009. Second prayer is for a direction to the respondents to issue demand letter in furtherance of such conversion process as per valuation rate applicable on May 20, 2009, after adjusting the amount already deposited by the petitioner along with interest thereon. Second prayer was nothing else but was in continuation of first prayer made in the writ petition which substantively is for execution of the order passed in favour of the petitioner in the earlier writ petition filed by it. But again seeking calculation of conversion charges as applicable on the date of filing of application.
21. At this stage, reference can be made to an order passed by this Court on August 9, 2019 on C.M. Application No.87559 of 2019 filed in Writ Petition No.12081 of 2009, in which the stand of the learned counsel for the applicant (petitioner herein) was that he was not seeking review/modification/clarification of the order dated May 17, 2019 disposing of the earlier writ petition finally rather submission was made that despite specific direction the matter had still not been decided by the Lucknow Development Authority. The aforesaid order dated August 9, 2019 is reproduced below:
"Heard Sri Sujay Kantawala alongwith Sri Ritwick Rai, learned Counsel for the applicants/petitioners, Sri Pradeep Raje, learned Counsel for the respondents-State and Sri Shobhit Mohan Shukla, learned Counsel for respondent Nos.2 and 3.
Objection filed by the Lucknow Development Authority is taken on record.
Sri Sujay Kantawala, learned counsel for the applicants/petitioners has submitted that he is not seeking any review/modification/clarification of the order dated 17.5.2019 passed by this Bench. However, he has submitted that in spite of specific direction given in para - 39 of the order, till date the matter has not been decided nor any demand has been issued by the respondents-Lucknow Development Authority.
Sri Shobhit Mohan Shukla, learned Counsel for Lucknow Development Authority prays for and is granted ten days' time to take instructions in the matter.
List on 22.8.2019."
22. Another fact which transpired at the time of hearing is that a review application filed by the Lucknow Development Authority against the order dated May 17, 2019 passed in the earlier writ petition filed by the petitioner is still pending.
23. From the perusal of aforesaid reliefs claimed in the present writ petition filed by the petitioner, it is evident that the same are nothing but an attempt for review earlier judgment of this Court dated 17.05.2019 in the garb of seeking implementation of the order passed by this Court in favour of the petitioner while at the same time, an application seeking a certificate for leave to appeal was kept pending.
24. From the facts as noticed above and the pleadings in the earlier writ petition, application and the present writ petition filed by the petitioner, it is clear that filing of the present writ petition is nothing else but an abuse of process of the Court. Earlier writ petition was filed by the petitioner challenging the order dated May 20, 2009 and communication dated October 1, 2009 from the LDA vide which the claim of the petitioner for conversion of leasehold right to freehold rights was rejected. It was pleaded in the earlier writ petition that the petitioner had deposited a sum of ₹6,46,87,500/- on the basis of self assessment. Considering the issues raised by the parties, the earlier writ petition was allowed vide order dated May 17, 2019. The order dated May 20, 2009 and communication dated October 1, 2009 were set aside and a direction was issued to the LDA for proceeding afresh for conversion of property to freehold rights, expeditiously in terms of the ratio laid down by the Full Bench in Anand Kumar Sharma's case (supra).
25. No issue was raised by the petitioner that the direction was not time bound, however, the fact remains that for issuance of further direction subsequent to the order passed by this Court in the earlier writ petition, the petitioner filed a Civil Misc Application No.87559 of 2019 praying that the LDA be directed to issue demand letter specifying the balance amount payable for conversion, after adjusting the amount already deposited by the petitioner as per valuation as on May 20, 2009. Another prayer was for issuance of a certificate under Article 134A read with Article 133(1) of the Constitution of India for grant of leave to appeal before Hon'ble the Supreme Court for decision on substantial question of law of general importance as stated in para 7 of the affidavit accompanying the application. The aforesaid para 7 reads as under :-
"7. That the petitioner-applicant submits that while the amount computed as payable would be deposited (under protest) as per the Demand Letter towards conversion as per the valuation as of 20.05.2009, the petitioner-applicant would like to seek leave to appeal for approaching the Hon'ble Supreme Court on the aforesaid substantial question of law of general importance, and prays for issuance of a certificate under Article 134A read with Article 133(1) of the Constitution by invoking power and jurisdiction conferred upon this Hon'ble Court by the Constitution."
26. The fact remains that application seeking Leave to Appeal to Hon'ble the Supreme Court was filed by the petitioner just for the sake of it, as neither the petitioner took steps to file any application for leave to appeal before Hon'ble the Supreme Court, in case the application was not being decided nor it took any steps to raise an issue when the Special Leave Petition filed by the Lucknow Development Authority was listed on October 25, 2019. It is evident from the record that the petitioner was well aware of the fact that the Lucknow Development Authority had filed Special Leave Petition before Hon'ble the Supreme Court, which was likely to be listed and the same was listed and was dismissed on October 25, 2019.
27. As far as prayer (A) of the application is concerned, the same is in two parts. Firstly, for issuance of a demand letter for payment of balance conversion charges after adjusting the amount already paid as per the valuation as on May 20, 2009 and secondly for completing the aforesaid process within such time as the Court may deem just and necessary. As far as second part of the prayer (A) is concerned, in our opinion, an application could be filed as in the order passed by this Court in earlier writ petition filed by the petitioner, time bound direction was not there. Hence, the petitioner could have sought further direction to make the authority time bound for compliance. However, as far as first part of the prayer (A) is concerned, regarding the valuation as on May 20, 2009, it was nothing else but seeking further relief which was either claimed in the earlier writ petition or deemed to be rejected as the same was available to the petitioner but was not claimed. In anyway, it was a review of the earlier order passed by this Court. The prayer to that extent was totally misconceived. However, during the course of hearing of the aforesaid application on August 9, 2019, a specific stand was taken by the petitioner itself that it is not seeking review of the earlier order passed by this Court.
28. As far as prayer (B) in the application is concerned, in our opinion, the same was nothing but misjoinder of reliefs claimed in the application. The first relief claimed in the application was for compliance of the earlier order passed by this Court in the earlier writ petition filed by the petitioner whereas the second was for grant of a certificate to file an appeal before Hon'ble the Supreme Court, as if the petitioner was not satisfied with the judgment. The aforesaid application was filed on July 30, 2019.
29. A bare perusal of Article 134A of the Constitution provides that a certificate of appeal can be granted by the High Court while deciding the case either on its own motion or on an oral application filed by the party aggrieved, immediately after passing or making of such judgment, decree and final order or sentence. Certification by the High Court has to be in terms of Article 133(1) of the Constitution that the case involves substantial question of law as to the interpretation of the Constitution. In the alternate, Supreme Court has been empowered under Article 136 of the Constitution to grant Special Leave to Appeal from a judgment, decree, determination, sentence or order passed by any Court or Tribunal in the territory of India.
30. Firstly, as per the plain language of Article 134-A of the Constitution, such a prayer has to be made immediately after the judgment is pronounced. In the case in hand, it is not the case of the petitioner that any such prayer was made. It was nearly two months after delivery of the judgment that in the present application such a prayer was made which otherwise was also totally misconceived if seen in the light of the issue sought to be raised as referred to in para 7 of the application. A perusal of the para 7 of the affidavit accompanying the aforesaid application, as already reproduced above in paragraph No.25, does not show that the same are issues of general importance, rather it is merely with reference to compliance of earlier order or having relation with the first prayer made in the application.
31. It is a fact that the aforesaid application was still pending when the present petition was filed. It was listed on several occasions on August 9, August 22, October 14 and October 17, 2019 and was last listed on February 14, 2020. It is not the case of the petitioner that any effort was made by it to get the same listed expeditiously.
32. Now coming to the present petition, during pendency of the application seeking further direction in the earlier writ petition filed by the petitioner after final disposal thereof, the present writ petition was filed. The prayers made therein have already been extracted in para no.15 of the present order. The first relief claimed is simplicitor for a direction to the respondents to proceed with conversion of leasehold rights to free hold rights of the land in question in terms of the order dated May 17, 2019 passed by this Court in the earlier writ petition bearing Writ Petition No.12081 (MB) of 2009 filed by the petitioner. It was for execution of the order passed by this Court in the earlier writ petition. The second prayer was in furtherance to the first prayer stating that the calculation of the conversion charges be made as per the rates applicable on May 20, 2009 and demand letter be issued after adjusting the amount already deposited by the petitioner. Both the prayers are nothing else but are in terms of the prayer (A) made by the petitioner in the aforesaid application, which was already pending consideration before this Court, when the writ petition in question was filed.
33. In the light of aforesaid facts, in our opinion, first question needs to be answered in positive by holding that filing of the present writ petition was an abuse of process of Court, when an application seeking same prayer, namely, for further direction in terms of order passed by this Court in earlier petition filed by the petitioner on July 30, 2019, was already pending consideration and the issue was drawing attention.
QUESTION NO.II Whether the second Writ Petition No.8870 (MB) of 2020 filed by the petitioner is maintainable in view of the fact that the petitioner is seeking implementation of the judgment and order dated 17.05.2019 passed in Writ Petition No.12081 (MB) of 2009?
34. A perusal of prayer (A) made in the writ petition in question shows that it was for a direction to the respondents to proceed with the conversion of property from leasehold to freehold in terms of earlier order passed by this Court on May 17, 2019 in the earlier writ petition filed by the petitioner. The same can be termed to be in the form of execution of earlier order passed by this Court.
35. Here, we are faced with a situation where no remedy as such has been provided in case the order passed by the Writ Court or an appeal arising therefrom is not complied with. Though, the aggrieved person can file an application for initiating contempt proceedings against the guilty person, however, that cannot be said to be a remedy for execution of the order as in the contempt proceedings, which are quasi criminal in nature for non compliance of any order, the person guilty can be punished with imprisonment and/or fine. The person in whose favour order has been passed cannot be left remediless, in case the same is not complied with in its true letter and spirit. He cannot be deprived of the fruits of litigation. In the circumstances, in our view, a writ petition seeking a direction to the authority concerned for compliance of the earlier order may be maintainable. In case, any alternative remedy is provided that may or may not be a complete bar for entertainment of such a writ petition in view of the settled position of law. In the case in hand, the fact remains that in Rule 11 of Chapter XXII of the High Court Rules, execution is provided only for recovery of cost and not for any substantive relief granted to the party concerned. The same is extracted below:
"11. Transmission of order of costs for execution.- Where costs have been awarded by the Court in a Writ Petition or in a special appeal from an order passed on a writ petition, but have not been paid the person entitled to them may apply to the Court for execution of the order. The application shall be accompanied by an affidavit stating the amount of costs awarded and the amount remaining unpaid. The Court may direct the order to be send to the District Court of the district in which the order is to be executed. The order may be executed by such Court as it is a decree for costs passed by itself or be transferred for execution to any subordinate Court."
36. The aforesaid issue has relation with the first prayer made in the present writ petition, which has already been extracted in para 15 of the judgment. In terms thereof, a direction is sought to be issued to the respondents to comply with the judgment of this Court passed in the case of the petitioner on May 17, 2019 in the earlier writ petition filed by the petitioner. As already discussed above in para 35, though a fresh writ petition praying for execution of earlier order passed by Writ Court or special appeal arising therefrom may be maintainable, however, in the case in hand the fact remains that an application filed by the petitioner bearing C.M. Application No.87559 of 2019 in the earlier writ petition seeking further direction in the aforesaid case was already pending when the present writ petition was filed praying for execution of earlier order passed by this Court in earlier writ petition in favour of the petitioner.
37. From a perusal of the order passed on August 9, 2019 in the C.M. Application No.87559 of 2019, it is evident that the matter with regard to compliance of the order dated May 17, 2019 passed by Writ Court in favour of the petitioner was being considered by this Court, hence, the question needs to be answered in negative holding that the writ petition was not maintainable in the facts and circumstances of the case in hand.
QUESTION NO.III Whether the second Writ Petition No.8870 (MB) of 2020 is barred by the principle of res judicata/constructive res judicata in view of the fact that while allowing Writ Petition No.12081 (MB) of 2009 vide judgment and order dated 17.05.2019, the respondents have been directed to process the application of the petitioner for conversion of lease-hold-rights into free-hold, in accordance with law laid down by the Full Bench in Anand Kumar Sharma's case (supra) and, thus, the issue regarding the relevant date for conversion charges was very much involved in Writ Petition No.12081 (MB) of 2009.
38. The principle of res judicata was considered by Hon'ble the Supreme Court in Omprakash Verma and others v. State of A.P. and others, (2010) 13 SCC 158 and it was opined that no litigant can be permitted to file any subsequent litigation or raise any issue which could have been raised in the earlier writ petition and adjudication is conclusive and binding not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated. Paras 75-77 thereof are extracted below:
"75. As pointed out by the learned Attorney General, the matter can be looked at from another angle. The proceedings in the instant case are barred by the principle of constructive res judicata. The validity of the ULC Act was squarely in issue. The effect of allowing the State appeals in State of A.P. v. N. Audikesava Reddy, (2002) 1 SCC 227 is that all contentions which parties might and ought to have litigated in the previous litigation cannot be permitted to be raised in subsequent litigations.
76. In forward Construction Co. v. Prabhat Mandal, (1986) 1 SCC 100 this Court held that an adjudication is conclusive and binding not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided. The following portion of the judgement is relevant which reads as under: (SCC p. 112, para 20) "20. So far as the first reason is concerned, the High Court in our opinion was not right in holding that the earlier judgment would not operate as res judicata as one of the grounds taken in the present petition was conspicuous by its absence in the earlier petition. Explanation IV to Section 11 CPC provides that any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. An adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to or essentially connected with the subject-matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matter of claim or defence. The principle underlying Explanation IV is that where the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided. It is true that where a matter has been constructively in issue it cannot be said to have been actually head and decided. It could only be deemed to have been heard and decided."
77. In Hoystead v. Taxation Commr.:1926 AC 155 the Privy Council observed : (AC pp. 165-66) "..... Parties are not permitted to begin fresh litigations because of new views that they may entertain of the law of the case, or new versions which they present as to what should be a proper apprehension by the court of the legal result either of the construction of the documents or the wieght of certain circumstances. If this were permitted, ligation would have no end, except when legal ingenuity is exhausted. It is principle of law that this cannot be permitted, and there is abundant authority reiterating that principle."
39. Rule 7 of Chapter XXII of the Allahabad High Court Rules, 1952 (hereinafter referred to as ''the Rules') provides that no second application is maintainable on the same facts. The same reads as under :
"7. No second application on same facts.- Where an application has been rejected, it shall not be competent for the applicant to make a second application on the same facts."
40. A perusal of para 3.10 of the present writ petition shows that the grievance raised by the petitioner was that the application filed by it in earlier writ petition seeking further direction had not been listed. Further pleadings in the writ petition in question show that the the grievance was sought to be raised regarding illegal rejection of the application filed by the petitioner for conversion of leasehold rights to freehold rights in the year 2009, which was subject matter of consideration before this Court in the earlier writ petition filed by it and had been adjudicated upon. The issue sought to be raised in the writ petition in question is that the conversion charges are required to be calculated in terms of the policy of the Government as was in existence in the year 2009 when the order dated October 1, 2009 was passed, which was subject matter of challenge before this Court in earlier writ petition and was set aside. The aforesaid issue was available and could have very well been raised by the petitioner in the earlier writ petition but there is nothing on record pointed out by the petitioner that the same was raised. In absence thereof, it shall be deemed to be raised and rejected.
41. Issue regarding wrong rejection of the prayer of the petitioner for conversion of leasehold right to freehold rights in the year 2009 was very well considered in the earlier writ petition filed by the petitioner and the same stood adjudicated upon with the setting aside of the order dated May 20, 2009 and communication dated October 1, 2009, vide order dated May 17, 2019 and the matter was remitted to the authority concerned for passing fresh order. Hence, the same could not possibly be raised in the present writ petition.
42. Lot of stress is sought to be laid by the petitioner regarding deposit of sum of ₹6,46,87,500/- claimed to be 25% of the total conversion fee, however, the fact remains, as is evident from para 6 of the earlier writ petition, that it was deposited by the petitioner on its own, after self assessment of the amount to be deposited. There was no direction or demand notice issued by the authority concerned.
43. The issue raised in the present question has relation with the second prayer made in the present writ petition filed by the petitioner, which is in continuance of the first prayer where the relief claimed is for execution of an earlier order dated May 17, 2019 passed by this Court in earlier writ petition filed by the petitioner. The only addition being that the calculation of conversion charges be made as per the rates applicable on May 20, 2009.
44. A perusal of the prayers made in the present writ petition filed by the petitioner shows that direction was sought for issuance of a demand letter for payment of balance amount of conversion fee within such time as may be indicated in the demand letter. It was further mentioned therein that it should be in accordance with law and the policy applicable. At the time the petitioner filed the earlier writ petition, the judgment of this Court in Dr. O.P. Gupta vs. State of U.P., (2009) 4 AWC 4038 was prevalent in terms of which the policy prevalent at the time when a party applies for conversion of land to freehold was to be applicable. As the Bench hearing the writ petition in Anand Kumar Sharma's case (supra) had reservation about the view expressed in Dr. O.P. Gupta's case (supra), the matter was referred for consideration by a larger Bench. The issue was considered by the Full Bench in Anand Kumar Sharma's case (supra) vide judgment dated February 13, 2014 answering the question referred that the prayer for conversion for grant of freehold rights is to be considered in accordance with the policy in existence at the time of passing of the order. Earlier writ petition filed by the petitioner was disposed of on May 17, 2019, specifically noticing the aforesaid Full Bench judgment of this Court, but still there is nothing evident from the arguments addressed that the petitioner ever thought of raising the issue regarding the cut off date in terms of which the conversion charges are to be calculated, though such plea was available to the petitioner at that juncture.
45. Therefore, the question needs to be answered in positive holding that the Writ-C No.8870 of 2020 is barred by principle of res judicata/constructive res judicata.
ANSWERS TO QUESTIONS
46. Question No.I is answered in positive holding that filing of the present writ petition was an abuse of process of Court.
Question No.II - Though a writ petition can be entertained for execution of an order passed earlier by the Court, however, the writ petition filed by the petitioner in the facts and circumstances of the case was not maintainable.
Question No.III is answered in positive holding that present writ petition filed by the petitioner was barred by principles of res judicata/ constructive res judicata.
47. While answering the questions referred to by the larger Bench, let the present writ petition be now placed before the Division Bench as per roster on August 29, 2022.
(Vivek Chaudhary, J.) (Rajan Roy, J.) (Rajesh Bindal, C.J.)
Lucknow
16.08.2022
Kuldeep
Whether the order is speaking : Yes/No
Whether the order is reportable :Yes