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U.P.Avas Evam Vikas Parishad v. Nagar Mahapalika Tribunal, Agra And Others - WRIT - C No. 42883 of 1999  RD-AH 267 (7 August 2003)
Civil Misc. Writ Petition No. 42883 of 1999
U.P.Avas Evam Vikas Parishad????????Petitioner
Nagar Mahapalika Tribunal, Agra and others????..Respondents
Hon'ble R.K.Agrawal, J.
By means of the present writ petition filed under Article 226/227 of the Constitution of India the petitioner U.P.Avas Evam Vikas Parishad Lucknow seeks a writ, order or direction in the nature of certiorari quashing the order/ award dated 5.6.1987 passed by the U.P.Avas Evam Vikas Parishad, Tribunal, Agra, respondent no.1 filed as Annexure 1 to the writ petition .
Briefly stated the facts giving rise to the present writ petition are as follows:
A notification was issued under Section 357 of the Nagar Mahapalika Adhiniyam on 23.4.1960 for acquiring a huge track of land of village Ghatwasan in the district of Agra for the purposes of a scheme known as Ghatwasan Grahsthan Evam Sarak Yojna, Agra. The said notification was followed by another notification issued under Section 363 of the Nagar Mahapalika Adhiniyam on 26.9.1964. Under an agreement dated 31.5.1968 the execution of the aforementioned scheme was transferred to the U.P.Avas Evam Vikas Parishad herein after referred to as the Parishad. It included the land of the predecessor in interest of respondent no.2 and 3. The possession was taken over by the Collector and handed over to Parishad on 18.6.1971.An award was made by the Collector/Special Land Acquisition Officer on 24.11.1972. It may be mentioned here that The Collector/Special Land Acquisition Officer classified the land in question in Belt 3 and awarded compensation at the rate of Rs.1.34 per square yard alongwith solatium @ 15% and interest at the rate of 6% per annum.
A reference was made which was registered as L.A.Case No.8 of 1981 before the U.P.Avas Evam Vikas Parishad Tribunal, Agra. The Tribunal by the order dated 5.6.1987 has enhanced the rate of compensation from Rs.1.34 per square yard awarded by the Special Land Acquisition Officer to Rs. 12 per sq.yard. It also enhanced the solatium from 15% to 30% and the interest was enhanced from 6% to 9%. The order dated 5.6.1987 was challenged by the petitioner before this Court by filing First Appeal No. 19 of 1988. A Division Bench of this Court vide order dated 4.10.1993 dismissed the application filed under Section 5 of the Limitation Act in default and further by the order of the same date dismissed the appeal as barred by time. An application for recall of the order dated 4.10.1993 was filed by the petitioner which was dismissed by this Court vide order dated 22.4.1997.
The petitioner preferred a Special Leave Petition which was dismissed by the Hon'ble Supreme Court on the ground of delay vide order dated 20.1.1998. A review application was also filed, which was dismissed by the Hon'ble Supreme Court vide order dated 22.7.1998. Against the order dated 22.4.1997 passed by this Court a Special Leave Petition was also filed by the petitioner, which was dismissed by the Hon'ble Supreme Court vide order dated 10.8.1999.
I have heard Shri Pankaj Mithal learned counsel for the petitioner and Shri Dilip Gupta learned counsel appearing for the respondent Nos. 2 and 3 and the learned Standing Counsel, who represents respondent no.4.
Shri Dilip Gupta learned counsel for the respondent nos. 2 and 3 raised a preliminary objection regarding the maintainability of the present petition before this Court. According to him, the petitioner had preferred a First Appeal against the order dated 5.6.1987 passed by respondent no.1 which had been dismissed as barred by time, and the Special Leave Petition against the said order has also been rejected by the Hon'ble Supreme Court . He thus submitted that the order of the Tribunal came to be merged with the order passed by this Court in the First Appeal and a writ petition under Article 226 of Constitution of India is not maintainable for quashing of the order passed by a Division Bench of this Court on the judicial side. He relied upon a Constitution Bench decision of the Hon'ble Supreme Court in the case of Sheodan Singh Vs. Dariyao Kunwar, reported in 1966 ALJ 578 SC wherein the Hon'ble Supreme Court has held that where the trial Court has decided two suits having common issues on the merits and there are two appeals therefrom and one of them is dismissed on some preliminary ground, like limitation or default in printing with the result that the trial court's decision stands confirmed, the decision of the appeal court will be res-judicata and the appeal court must be deemed to have heard and finally decided the matter. In such a case the result of the decision of the appeal court is to confirm the decision of the trial court given on merits, and if that is so, the decision of the appeal court will be res judicata whatever may be the reason for the dismissal.
Shri Pankaj Mithal learned counsel for the petitioner, however, submitted that the appeal filed by the petitioner was not maintainable as it has not complied with the mandatory condition regarding the deposit of the amount awarded by the Tribunal and therefore the appeal should be treated as being not maintainable and dismissed accordingly. He further submitted that the dismissal of the Special Leave Petition by the Hon'ble Supreme Court does not amount to a decision on merits of the case. Even otherwise the appeal having been filed beyond the prescribed period of limitation there was no appeal in the eyes of law and its dismissal would not amount to merger of the order passed by the Tribunal with that of the High Court. He further submitted that the dismissal of the Special Leave Petition without assigning any reason does not amount to confirmation of the High Court's order. According to him, the remedy of appeal provided under section 381 of the Nagar Mahapalika Adhiniyam is not an efficacious remedy and has been held to be illusory by this Court in Civil Misc. Writ Petition No. 11625 of 1996 U.P.Avas Evam Vikas Parishad , Lucknow Vs. Smt. Kanak and others decided on 20.5.1998 and therefore the writ petition is maintainable.
Having heard the learned counsel for the parties, I find that it is not in dispute that the First appeal preferred by the petitioner had been dismissed by a Division Bench of this Court being barred by time. The application for recall of its order has also been rejected. The Special Leave Petition filed by the petitioner has also been rejected by the Hon'ble Supreme Court . In the case of Sheodan Singh (supra) the Hon'ble Supreme Court has held as follows :-
"This brings us to the main point that has been urged in these appeals, namely, that the High Court had not heard and finally decided the appeals arising out of suits Nos.77 and 91. One of the appeals was dismissed on the ground that it was filed beyond the period of limitation while the other appeal was dismissed on the ground that the appellant therein had not taken steps to print the records. It is therefore urged that the two appeals arising out of suits Nos.77 and 91 had not been heard and finally decided by the High Court, and so the condition that the former suit must have been heard and finally decided was not satisfied in the present case. Reliance in this connection is placed on the well settled principle that in order that a matter may be said to have been heard and finally decided, the decision in the former suit must have been on the merits. Where, for example, the former suit was dismissed by the trial court for want of jurisdiction, or for default of plaintiff's appearance or on the ground of non-joinder of parties or mis-joinder of parties or multifariousness, or on ground that the suit was badly failed, or on the ground of a technical mistake, or for failure on the part of the plaintiff to produce probate or letters of administration or succession certificate when the same is required by law to entitle the plaintiff to a decree or for failure to furnish security for costs or on the ground of improper valuation or for failure to pay additional court fee on a plaint which was undervalued or for want of cause of action or on the ground that it is premature and the dismissal is confirmed in appeal(if any) the decision not being on the merits would not be res judicata in a subsequent suit. But none of these considerations apply in the present case for the Additional Civil Judge decided all the four suits on the merits and decided the issue as to title on merits against the appellant and his father. It is true that the High Court dismissed the appeals arising out of suits Nos. 77 and 91 either on the ground that it was barred by limitation or on the ground that steps have not been taken for printing the records. Even so the fact remains that the result of the dismissal of the two appeals arising from suit Nos. 77 and 91 by the High Court on these grounds was that the decrees of the Additional Civil Judge, who decided the issue as to title on merits stood confirmed by the order of the High Court. In such a case, even though the order of the High Court may itself be not on the merits the result of the High Court's decision is to confirm the decision on the issue of the title which had been given on the merits by the Additional Civil Judge and thus in effect the High Court confirmed the decree of the trial court on the merits, whatever may be the reason for the dismissal of the appeals arising from suits Nos. 77 and 91. In these circumstances, or though the order of the High Court itself may not be on the merits, the decision of the High Court dismissing the appeals arising out of suits Nos.77 and 99 was to uphold the decision on the merits as to issue of title and therefore, it must be held that by dismissing the appeals arising out of suits Nos. 77 and 91 the High Court heard and finally decided the matter for it confirmed the judgment of the trial court on the issue of title arising between the parties and the decision of the trial court being on the merits the High Court's decision confirming that the decision must also be deemed to be on the merits. To hold otherwise would make res judicata impossible in cases where the trial court decides the matter on merits but the appeal court dismisses the appeal on some preliminary grounds thus confirming the decision of the trial court on the merits. It is well settled that where a decree on the merits is appealed from the decision of the trial court loses its character of finality and what was once res judicata again becomes res subjudice and it is the decree of the appeal court which will then be res judicata. But if the contention of the appellant were to be accepted and it is held that if the appeal court dismisses the appeal on any preliminary ground, like limitation or default in printing , thus confirming in toto the trial court's decision given on merits, the appeal court's decree cannot be res judicata, the result would be that even though the decision of the trial court given on the merits is confirmed by the dismissal of the appeal on a preliminary ground there can never be res judicata. We cannot therefore, accept the contention that even though the trial court may have decided the matter on the merits there can be no res judicata if the appeal court dismisses the appeal on a preliminary ground without going into the merits, even though the result of the dismissal of the appeal by the appeal court is confirmation of the decision of the trial court given on the merits. Acceptance of such a proposition would mean that all that the losing party has to do is to destroy the effect of decision given by the trial court on the merits is to file an appeal and let that appeal be dismissed on some preliminary ground, with the result that the decision given on the merits also becomes useless as between the parties. We are therefore of opinion that where a decision is given on merits by the trial court in the matter is taken in appeal and the appeal is dismissed on some preliminary grounds like limitation or default in printing, it must be held that such dismissal when it confirms the decision of the trial court on the merits itself amounts to the appeal being heard and finally decided on the merits whatever may be the ground for dismissal of the appeal." (emphasis supplied)
Sri Pankaj Mithal learned counsel for the petitioner could not show any authority taking a contrary view.
Applying the principles laid down by the Hon'ble Supreme Court in the case of Sheodan Singh (supra) to the facts of the present case I find that with the dismissal of the First Appeal filed by the petitioner by the division Bench of this court on 4.10.1993, the order passed by the Tribunal stood merged with that of the High Court's order and therefore the present writ petition is not maintainable. The Division Bench decision of this court in the case of U.P.Avas Evam Vikas Parishad (supra) which is being heavily relied upon by the learned counsel for the petitioner will have no application to the facts of the present case in as much as in that case this Court was considering the question as to whether the appeal provided under Section 381 of the Nagar Mahapalika Adhiniyam is speedy alternative remedy so as to oust the jurisdiction of this Court under Article 226 of the Constitution of India or not and as to whether the writ petition was maintainable. However, in the present case the situation is entirely different. The appeal filed by the petitioner has already been dismissed by a Division Bench of this Court. The order of the Tribunal dated 5.6.1987 got merged in this Court's order dated 4.10.1993. When the present writ petition was filed on 5.10.99, the Appeal was not pending before the Court as it had already been dismissed as long back as on 4.10.93 There is no provision either in the Constitution of India or in the Rules of this Court or in any other statutory enactment under which an order passed by a Division Bench of this Court on the judicial side can be challenged or made subject matter in writ jurisdiction under Article 226/227 of the Constitution of India before the same High Court except under Chapter VIII Rule 5 of the Allahabad High Court which provides for an appeal from an order of the learned Single Judge to a Division Bench in certain cases. The present case does not fall under Chapter VIII Rule 5 of the Allahabad High Court Rules. Thus the present writ petition which has been filed against the order dated 5.6.1987 passed by the U.P.Awas Evam Vikas Parishad Tribunal Agra is not maintainable in view of the fact that the First Appeal filed by the petitioner against the aforesaid order has already been dismissed on 4.10.93.
In view of the foregoing discussions, the preliminary objection raised by Sri Dilip Gupta regarding the maintainability of the writ petition is sustained. In this view of the matter, it is held that the writ petition is not maintainable and is accordingly dismissed. However, the parties shall bear their own costs.
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