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U.P. AWAS EVAM VIKAS PARISHAD THRU' EXE. ENGINEER versus STATE OF U.P. & OTHERS

High Court of Judicature at Allahabad

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U.P. Awas Evam Vikas Parishad Thru' Exe. Engineer v. State Of U.P. & Others - WRIT - C No. 47095 of 2005 [2006] RD-AH 8106 (20 April 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 10.

Civil Misc. Writ Petition No.47095 of 2005.

U.P. Awas Evam Vikas Parishad

through Executive Engineer,

Construction Division-17, Kalyanpur,

District Kanpur Nagar.                                ..............Petitioner.

                       Versus

State of U.P and others.                              .............. Respondents.

Connected  with-

Civil Misc. Writ Petition No.47097 of 2005.

U.P. Awas Evam Vikas Parishad

through Executive Engineer,

Construction Division-17, Kalyanpur,

District Kanpur Nagar                                ................Petitioner.

                       Versus

State of U.P and others.                            ................. Respondents.

AND

Civil Misc. Writ Petition No.47099 of 2005.

U.P. Awas Evam Vikas Parishad

through Executive Engineer,

Construction Division-17, Kalyanpur,

District Kanpur Nagar                               ..................Petitioner.

                       Versus

State of U.P and others.                           ................... Respondents.

AND

Civil Misc. Writ Petition No.47101 of 2005.

U.P.  Awas Evam Vikas Parishad

through Executive Engineer,

Construction Division-17, Kalyanpur, District

Kanpur Nagar                                             .....................Petitioner.

                       Versus

State of U.P and others.                         ...................... Respondents.

                    ------------

Hon'ble A. K. Yog, J.

Hon'ble V.C. Misra, J.

List revised.

For convenience facts of the leading Writ Petition only are referred.

Heard Sri L. P. Singh, Advocate on behalf of the contesting respondent Nos. 5, 6 & 7  as well as learned Standing Counsel representing Respondent Nos. 1, 2 , 3 and 4.

By means of present Writ Petition, under Article 226, Constitution of India U.P. Awas Evam Vikas Parishad/Petitioner 9 for  short "the Parishad" has prayed for issue of writ, order or direction in the nature of certiorari, quashing the recovery certificate dated 24-5-2005/Annexure 3-A, 16. 6. 2005/Annexure 3-B to the Writ Petition.

Briefly, facts are that certain land was required under Land Acquisition Act for Panki Thermal Power Station. Acquisition proceedings were initiated under Section 28 & 32 of U.P. Awas Vikas Parishad Adhiniyam. Not being satisfied with the  compensation certain persons felt aggrieved and filed reference against award passed by Special Land Acquisition Officer, Kanpur Nagar. Said reference was decided on 11.12.1991. Thereafter Respondent nos. 5, 6 & 7 filed application under Section 28-A, Land Acquisition Act for enhancement of compensation even though they had not filed references. The petitioner filed objection for  enhancement of compensation under Section 28-A. The application under Section 28-A of the Act was decided against petitioner and being aggrieved, Civil Misc. Writ Petition No. 2162 of 1999 was filed for quashing the order dated 31.7.1998 passed by Additional District Magistrate (Land Acquisition) Kanpur Nagar whereby application under Section 28-A was allowed.  

This Court while admitting the said Writ Petition passed an interim order to the effect that enhancement amount shall not be paid until decision of the First Appeal arising from the award filed by those persons who had submitted references.  Copy of the said order is Annexure 1 to the Writ Petition.  It may be noted that present Respondent Nos. 5, 6 & 7 were impleaded as Respondents in the aforementioned Writ Petition No.2162 of 1999. This Writ Petition No.2162 of 1999, however, dismissed for non-prosecution vide judgement and order dated 13.7.2004/Annexure 2 to the Writ Petition.

In para 11 & 12 of the Writ Petition it is stated on behalf of the Parishad that an application for recall of the order dated 13.7.2004 was filed along with application for condonation of delay but the same could not be listed as the Bench was not constituted and that Sub Divisional Magistrate issued order for recovery of the enhanced compensation amount and directed the Oriental Bank of Commerce (Vistar Patal), Kanpur Nagar as well as the Tahsildar, Sadar, Kanpur Nagar and that order of attachment/recovery was received in the office of the Petitioner at Kanpur on  16.6.2005 for a sum of Rs.3,66,80,570/- apart from collection charges annexed as Annexures 3-A & 3-B (referred to above) to the Writ Petition.

On the aforesaid pleadings petitioner filed present Writ Petition.

When the matter was listed earlier Division Bench passed order dated 22-8-2005 and noted the fact that earlier Writ Petition Nos. 2162 of 1999, 2164 of 1999, 2157 of 1999 and 2160 of 1999 were dismissed in default and thereafter the petitioner had filed the present Writ Petition No. 47095 of 2005, 47097 of 2005, 47099 of 2005 & 47101 of 2005 in the same matter.  Objection to this effect has also been taken by the Respondent nos. 5, 6 & 7 of this Writ Petition vide para 8 of the counter affidavit which reads-

"that the Petitioner challenged the aforesaid Award dated 31.7.1998 passed by Respondent No.1 by way of Civil Misc. Writ Petition No.2162 of 1999 and got interim Stay Order by misleading the Hon'ble High Court by giving wrong fact that Appeal has been filed against the judgement of the Reference Court and the same is pending.  The deponent filed Counter Affidavit to the said Writ Petition as back as on 9.8.1999 and stated on oath that neither any Appeal was filed against the Judgement dated 11.12.1991 passed by Reference Court in Reference Case No.242/70 of 1983 nor Rejoinder Affidavit was filed by the Petitioner in the said Writ Petition. The deponent has also taken a point in the aforesaid Counter Affidavit that the remedy of the Petitioner is lying in the provision of Section Writ Petition.  The Petitioner instead of filing Rejoinder Affidavit got the Writ Petition dismissed in default vide Order dated 13.7.2004 against which although they filed Restoration Application but did not pursue for listing of the said Restoration Application and the Restoration is till pending."

The petitioner has filed Rejoinder Affidavit and aforesaid para 8 of the counter affidavit replied vide para 7 of the Rejoinder Affidavit which reads-

" That with reference to the contents of Para 8 of the counter affidavit it is stated  that the contents of writ petition are not before this Court at  this stage and for a proper appreciation the writ petition of 1999  itself may be placed before this court also.   It is not understood as to how the petitioner could commit and appreciate the jurisdiction of Section 28-A of Land Acquisition Act and the writ petition is very much maintainable. It is totally wrong to state that petitioner got the writ petition dismissed in default of that no efforts were made for listing the restoration application. It may be stated that orders have been passed that restoration application in 1999 writ petition as well as present writ petition may be listed before the specified Bench."

From the  facts recapitulated above, it is abundantly clear that the issue raised in the present writ petition is the same and squarely dependent upon the decision of the issues sought to raised in the earlier Writ Petition No.2162 of 1999. The impugned citation and order of attachment, sought to be challenged in the present writ petition are the consequential orders.  So long as the order of  enhancement of compensation stands the petitioner is not entitled to relief claimed in the present Writ Petition.

In that view of the matter, we find that petitioner could not legally file and maintain the present Writ Petition. The only course  open for it was to get the earlier writ petitions restored and obtain appropriate orders.

In view of the above present writ petition is not maintainable. Petitioner is guilty of abuse of process of law of Court.

Writ Petition is hereby dismissed. Interim order, if any, stand discharged.

Since none appears on behalf of the petitioner no order as to costs.

Similar is the position with respect to the aforementioned other writ petitions which are also dismissed on the same terms and conditions  as indicated above.

20-4-2006

RPS


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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