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Jalaluddin v. Director General (Land) Defence Land & Others - WRIT - C No. 43993 of 2003  RD-AH 5781 (16 November 2005)
Hon'ble R.K.Agrawal, J.
Hon'ble Saroj Bala,J.
The petitioner applied for sanction of a plan for construction of building in the premises of Bungalow No. 196, F.M.C.Road, Agra under Survey No. 329 on 15th November, 2000 which has been rejected by the authority concerned vide order dated 16th March, 2001.
According to the petitioner he filed an appeal before the Director, Defence Land & Cantonment D.E. Government of India, Ministry of Defence, Lucknow, on 3rd April, 2001 which is stated to be still pending.
We have heard Sri Prakash Gupta, learned counsel for the petitoner, Sri C.B.Gupta, learned counsel appearing for the Cantonment Board and Sri M.K.Singh, learned counsel appearing for respondent nos. 1,2,4 and 7.
Without going into the controversy on merits and the objection raised by Sri C.B.Gupta, learned counsel appearing for the Cantonment Board, that the petitioner had concealed the fact regarding filing of earlier Writ Petition No. 42083 of 2003 which was got dismissed as withdrawn by the petitioner on 22nd September, 2003, we are of the view that the present writ petition is not barred by the principles of res judicata and the petitioner could have availed the relief of seeking a direction to the authority concerned to decide the appeal filed by him. We are of the considered opinion that if an statutory appeal has been preferred under Section 274 of the Cantonment Act the Authority is under an obligation to decide the appeal expeditiously in accordance with law. Even otherwise, we are of the opinion that by not disclosing the fact of filing of the earlier writ petition the petitioner is not guilty of concealing the fact and he can avail the relief of seeking a direction for deciding the appeal.
Sri C.B.Gupta has further stated that the said appeal, which is stated to have been filed, is not a proper appeal as quashing of the order dated 16th March, 2001 has not been sought. We are not impressed with this submission as in the penultimate paragraph of the memorandum of appeal the said order is sought to be set aside.
We, therefore, dispose of the writ petition with the direction to the Director, Defence Land & Cantonment D.E. Government of India, Ministry of Defence, Lucknow to pass appropriate order in accordance with law on the appeal stated to have been filed on 3rd April, 2001, a copy of which has been filed as Annexure 9 to the writ petition expeditiously, preferably within 3 months from the date of production of a certified copy of this order before him. It is made clear that the Court has not decided the jurisdiction of the respondent no.1. If the said authority before whom the appeal is pending comes to the conclusion that he is not the proper authority, he may pass appropriate order declining to hear the appeal as not maintainable before him.
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