Full Judgment Text
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
I.A. NO. 4 OF 2009
IN
CIVIL APPEAL NO. 5761 OF 2009
[Arising out of S.L.P.(C) No. 6641 of 2007].
Rajendra Kumar Sharma and others ...Appellant(s)
Versus
State of Uttar Pradesh and others ...Respondent(s)
O R D E R
Although, the case has been listed for consideration of the
I.A. filed by the petitioners for interim relief, learned
counsel for the parties agreed that the main case may be
disposed of.
Delay in filing the special leave petition is condoned.
Leave granted.
The appellants’ land was acquired vide Notification dated
20.9.1990 issued under Section 4(1) read with Section 17(4) of
the Land Acquisition Act, 1894 (for short, ‘the 1894 Act’) for
construction of residential houses by the Moradabad Development
Authority (for short, ‘the MDA’). After depositing 80% of the
compensation determined by the Special Land Acquisition
Collector, the MDA took possession of the land on 22.6.1991.
The appellants challenged Notification dated 20.9.1990 and
consequential proceedings in Writ Petition No.44749/1992. Shri
Ram Singh, son of Shri Sunder Singh, who was then posted as
Deputy Collector-cum-Special Land Acquisition Officer, Moradabad
is said to have suo moto filed an affidavit stating therein that
the petition has become infructuous and that award was not made
because the MDA had sent letter dated 7.5.1993 to the Collector-
cum-Land Acquisition Officer that it does not propose to acquire
the land and the estimated compensation deposited by it be
transferred to some other scheme.
On 17.2.1999, Shri A.K. Mishra, learned counsel appearing
for the petitioners stated before the Court that as the petition
has become infructuous, it shall not be pressed. The writ
petition was accordingly dismissed as not pressed.
After about 3 years, the writ petitioners including the
appellants herein, filed two applications for recall of order
dated 17.2.1999. One of the applications was registered as
Civil Misc. (Recall) Application No.178891/2005 and the other
was registered as Civil Misc. (Recall) Application
No.175596/2005. In Civil Misc. (Recall) Application
No.178891/2005, the Division Bench of the High Court, after
taking cognizance of the averments contained in paragraph 22 of
the counter affidavit filed in Civil Misc. Writ Petition
No.20434/1994 (this petition was also filed by the appellants
herein for restraining the respondents from dispossessing them
and demolishing the construction made by them) that Shri Ram
Singh, Deputy Collector-cum-Special Land Acquisition Officer,
Moradabad had not filed any counter affidavit, passed an order
on 4.1.2006 and directed the standing counsel to file a detailed
affidavit as to under what circumstances counter affidavit was
filed in this petition when the Court had not issued any
direction to the State Government to do so. The Division Bench
also took cognizance of the fact that in the supplementary
counter affidavit filed in Writ Petition No.20434/1994 on behalf
of the MDA, it was stated that possession of the acquired land
had been taken on 22.6.1991; that award was made on 30.4.1994
and that reference under Section 18 was also decided. On
23.2.2006, the Division Bench directed District Collector,
Moradabad to investigate into the matter and file his personal
affidavit explaining whether Shri Ram Singh had the authority to
file affidavit and, if so, under what circumstances the said
affidavit had been filed. Shri Ram Singh was suo moto impleaded
as party and was directed to file his affidavit. The District
Collector, Moradabad submitted its report dated 17.4.2006. By
an order dated 9.5.2006, Shri Ram Singh was directed to appear
in person and the standing counsel was directed to produce the
relevant records. After considering all the affidavits and
enquiry report, the Division Bench dismissed the Recall
Application No.178891/2005 by recording the following
observations:
“The deponent of the said affidavit could not satisfy the
Courts as under what circumstances, the said averments
had been made in the counter affidavit. He was also
confronted with the narrative prepared by the D.G.C.
(Civil) wherein in two paragraphs, i.e.8 and 29, it had
been reiterated that possession of the land had already
been taken on 20.6.1991 and handed it over to the
Authority, they why the factum of dispossession had not
been mentioned in the counter affidavit and once the land
vested in the State free from all encumbrances, whether
it could be divested for any reason, whatsoever.
Generally, counter affidavit is not filed by the State
without seeking several adjournments and many times after
paying the cost. In the instant case, counter affidavit,
merely stating something untenable in law, has been filed
without even calling for the same. This kind of attitude
seems to be quite collusive, unwarranted and uncalled
for. There is nothing on record to show that the matter
had ever been heard by the Court prior to its withdrawal.
We fail to understand as how the counter affidavit to
this effect had been filed and how the proceedings could
become infructuous once the possession had been taken on
20.6.1991. In such a fact situation, we do not see any
ground to recall the order. As we doubt the bona fide of
both the parties and a fraud seems to have been played,
of which the applicant is the beneficiary, we are not
inclined to allow this application.
More so, the counsel who had withdrawn the writ
petition has not appeared before us nor he filed this
application. There is no reference in the Court’s
proceedings that the petition was being withdrawn in view
of the counter affidavit filed by the Land Acquisition
Officer. Had the learned counsel for the applicants, made
such submission, the Court could have examined the
contents of the counter affidavit and then perhaps could
pass a different order in accordance with law. We fail
to understand how the land acquisition proceedings could
be dropped merely by receiving a letter by the Land
Acquisition Officer from the Development Authority, as
the proceedings had been initiated by the State. More
so, the conduct of the said officer itself is so
reprehensible that it does not inspire any confidence.
The application is hereby rejected.”
Civil Misc. (Recall) Application No.175596/2005 was also
listed on the same day before the Division Bench of the High
Court and the same was dismissed as no one appeared on behalf
of petitioners. Another application filed for recall of order
dated 27.7.2006 passed in Civil Misc. (Recall) Application
No.175596/2005 was dismissed by the High Court on 10.8.2006 as
misconceived.
In this appeal, the appellants have prayed for setting
aside the orders dated 27.7.2006 and 10.8.2006 passed in Civil
Misc. (Recall) Application No.175596/2005 and Civil Misc.
(Recall) Application No.158574/2006 by contending that the High
Court was not justified in dismissing the two applications
ignoring the fact that the writ petition was dismissed as not
pressed in view of the affidavit filed on behalf of the MDA and
they had become victims of untenable and malicious actions of
the respondents.
In the counter affidavit filed on behalf of the MDA, an
objection has been raised to the maintainability of the appeal
on the premise that the appellants have not challenged order
dated 27.7.2006 passed in Civil Misc. (Recall) Application
No.178891/2005 and also on the ground that Special Leave
Petition (Civil) No.16433/2006 filed against that order in
which the appellants herein had joined as parties was
entertained by this Court only in respect of the property of
Smt. Usha Devi (respondent No.10) and was dismissed qua others.
In the counter affidavit, it has been further averred that
Civil Misc. Writ Petition No.20434/1994 filed by the
petitioners was dismissed on 4.10.1996 because none appeared on
their behalf. Another plea taken on behalf of the MDA is that
after taking over possession on 22.6.1991, illegal construction
made by the appellants were demolished.
The appellants have not filed rejoinder affidavit to
controvert the assertion made in the counter affidavit that the
possession of the land was taken on 22.6.1991; that Writ
Petition No.20434/1994 filed by the appellants was dismissed
for non-prosecution and that Special Leave Petition (Civil)
No.16433/2006 filed against order dated 27.7.2006 passed in
Civil Misc. (Recall) Application No.178891/2005 was dismissed
by this Court except qua the property of respondent No.10
herein. This being the position, we do not find any valid
ground to entertain the appellants’ prayer for setting aside
the impugned orders.
In the result, the appeal is dismissed. However, the
parties are left to bear their own costs.
So far as I.A. is concerned, we do not find any
justification to entertain the prayer for restraining the
respondents from dispossessing the appellants-applicants
because possession of the acquired land was taken by the MDA
almost 18 years ago after 80% of the compensation had been
deposited. Accordingly, the I.A. is dismissed.
………………………..J.
(G.S. Singhvi)
………………………..J.
(H.L. Dattu)
New Delhi
August 18, 2009
ITEM NO.MM 7-A COURT NO.7 SECTION XI
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
I.A. No. IN
Petition(s) for Special Leave to Appeal (Civil) No(s).6641/2007
(From the judgement and order dated 27/07/2006 in CMRA No.
175596/2005 in CMWP 44749/92 and order dated 10.8.2006 in CMRA
No. 158574/2006 in CMWP 44749/92 of The HIGH COURT OF JUDICATURE
AT ALLAHABAD)
RAJENDRA KR. SHARMA & ORS. Petitioner(s)
VERSUS
STATE OF U.P. & ORS. Respondent(s)
(Appln(s) for interim Relief,c/delay in filing SLP and office
report)
Date: 18/08/2009 This Petition was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE G.S. SINGHVI
HON'BLE MR. JUSTICE H.L. DATTU
For Petitioner(s) Mr. Rajiv Mehta,Adv.
For Respondent(s) Mr. R.K. Gupta, Adv.
Mr. G.V. Rao, Adv.
UPON hearing counsel the Court made the following
O R D E R
Although, the case has been listed for
consideration of the I.A. filed by the petitioners for
interim relief, learned counsel for the parties agreed
that the main case may be disposed of.
Delay in filing the special leave petition is
condoned.
Leave granted.
The appeal is dismissed. However, the parties
are left to bear their own costs.
I.A. No. 4 is is also dismissed in terms of the
signed order.
[ Charanjeet Kaur ]
[ Pushap Lata Bhardwaj ]
Court Master
Court Master
[Signed order is placed on the file ]