Mysore Urban Development Authority vs K.M. Chikkathayamma

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 9182­9188 OF 2018 (Arising out of S.L.P.(C) No.24560­24566 of 2018) (D.No.31403 of 2017)

Mysore Urban Development Authority ….Appellant(s)

VERSUS

K.M. Chikkathayamma & Ors. ….Respondent(s)

WITH

CIVIL APPEAL NO.9190­9191 OF 2018 (Arising out of S.L.P.(C) No.24569­24570 of 2018) (D.No.30522 of 2017) J U D G M E N T

Abhay Manohar Sapre, J.

1) S.L.P(C)No.……….(D.No.31403 of 2017) are

directed against the final judgment and order dated Signature Not Verified Digitally signed by ANITA MALHOTRA 09.11.2016 passed by the High Court of Karnataka at Date: 2018.09.07 17:36:22 IST Reason:

Bengaluru in W.A. Nos. 899/2016 and 982­987 of

1 2016 whereby the High Court dismissed the appeals

filed by the appellant herein and, in consequence,

upheld the judgment dated 10.03.2016 of the Single

Judge in W.P.Nos.38868­38874/2015 which had

allowed the writ petitions filed by the respondents

herein.

2) So far as S.L.P.(C)No…….. (D.No.30522/2017)

are concerned, these are] directed against the final

judgment and order dated 20.10.2016 passed by the

Division Bench of the High Court of Karnataka in

W.A. Nos. 6829­6830 of 2013 which arise out of the

order dated 10.10.2013 of the Single Judge passed in

writ petition Nos.27994/2001 and 18756/2001.

3) Leave granted.

4) In order to appreciate the issues involved in

these appeals, few relevant facts need mention infra.

5) The appellant­Mysore Urban Development

Authority (hereinafter referred to as "MUDA") was the

2 respondent whereas the respondents herein were the

writ petitioners before the High Court.

6) In exercise of the powers conferred under

Section 17 (1) of the Karnataka Urban Development

Authorities Act, 1987 (hereinafter referred to as "The

Karnataka Act"), the MUDA issued a notification No.

LAQ 66/91­91 dated 19.12.1991 on completion of

one development scheme prepared under Section

15/16 of the Karnataka Act.

7) By this notification, the MUDA proposed to

acquire the large area of the land along with other

adjoining lands situated in Dattagalli village

(Karnataka). The notification was published in the

official State gazette on 26.12.1991. The State

Government vide its order dated 27.01.1992

approved the scheme framed by the MUDA under

Section 18(3) of the Karnataka Act and issued final

notification No.VaNaE 833 MIB 92 on 10.12.1992

3 mentioning therein that the lands in question are

needed for public purpose, viz., “formation of

Dattagalli extension”. This was followed by an award

passed by the Special Land Acquisition Officer (SLAO)

on 27.01.1994 wherein he determined the

compensation payable to the landowners. This was

followed by issuance of notices to the land owners

under Section 12 (2) of the Land Acquisition Act,

1894 (hereinafter referred to as “the LA Act”) calling

upon the land owners to deliver possession of their

respective lands. The MUDA then issued a

notification on 18.09.2000 as required under Section

16 (2) of the LA Act. In between, there was one

litigation but it is not necessary to mention the same

in detail.

8) In 2001, the respondents (writ petitioners) felt

aggrieved by the acquisition proceedings and filed

writ petitions questioning the legality and correctness

4 of the notification dated 19.12.1991 and

consequential notifications issued thereafter in the

High Court of Karnataka at Bangalore. The MUDA

and State contested the writ petitions on several

factual and legal grounds.

9) By order dated 15.12.2003, the Single Judge

allowed the writ petitions and quashed the entire

acquisition proceedings inter alia on the ground that

there was a delay on the part of the MUDA in taking

possession of the acquired land and hence the

acquisition proceedings are rendered illegal.

10) The MUDA felt aggrieved and filed intra Court

appeals before the Division Bench out of which these

SLPs arise. In the appeals, the writ petitioners as

respondents, filed an application (I.A. No.11 of 2016)

and prayed therein for dismissal of the MUDA’s

appeals as having rendered infructuous. It was

contended that the MUDA has resolved on

5 02.07.2016 to drop the lands in question from the

acquisition proceedings and, therefore, in the light of

such decision having been taken, there is no need to

examine the legality and correctness of the order of

the Single Judge impugned in the appeals on merits.

11) By impugned order in both the matters, the

Division Bench dismissed the appeals as not pressed

and withdrawn. The order impugned dated

09.11.2016 reads as under:

“An application is moved by the respondents seeking for dismissal of the writ appeals on the ground that the Mysore Urban Development Authority (for short “MUDA”) decided, in their Board meeting on July 2, 2016, to drop the lands covered by this litigation from the acquisition process. A copy of the resolution is annexed to the application.

2. After hearing Mr. Uday Holla, learned senior advocate appearing for the respondents and Mr. P.S. Manjunath, learned advocate appearing for the appellants, we have got a clear indication that the authorities have decided not to proceed with the writ appeals.

6 3. Therefore, the writ appeals are dismissed as withdrawn.

4. It shall be open to the authorities to proceed further in the matter. We, however, express no opinion.”

12) It is against this order, the MUDA has felt

aggrieved and filed the present appeals by way of

special leave before this Court.

13) Heard learned counsel for the parties.

14) Mr. Dushyant Dave, learned senior counsel

appearing for the appellant (MUDA) essentially made

two submissions.

15) In the first place, learned counsel contended

that the Division Bench erred in dismissing the

MUDA’s appeals as withdrawn.

16) According to him, there was neither any basis

nor ground much less justification to dismiss the

MUDA’s appeals “as not pressed”. It was urged that

in fact the Division Bench was under legal obligation

to decide the appeals on merits.

7

17) In the Second place, learned counsel contended

that the resolution dated 02.07.2016 relied on for

dismissal of MUDA’s appeals, "as not pressed" was

wrongly interpreted by the Division Bench. Learned

counsel pointed out that the resolution dated

02.07.2016, if read properly, does not show that any

express decision was taken to withdraw the appeals

or that any decision was taken to drop the lands in

question from the acquisition proceedings.

18) Learned counsel further submitted that even

otherwise the MUDA was not competent to take such

decision without obtaining the sanction of the State

Government as provided under Section 19 (7) of the

Karnataka Act.

19) Learned counsel pointed out that neither the

MUDA and nor the State Government ever intended

to withdraw from the acquisition proceedings as is

clear from the letter dated 26.06.2018 of the State

8 Government and the letter dated 14.11.2017 of the

Commissioner. It was urged that these letters

indicate that both i.e. the State and the MUDA

wanted to pursue the appeals on merits since

inception before the High Court as also in this Court.

20) Learned counsel urged that in the light of these

submissions, impugned order in both the matters are

not legally sustainable and the matter be remitted to

the Division Bench for deciding the appeals on merits

in accordance with law.

21) In reply, Mr. Mukul Rohtagi and Mr. Gopal

Subramanian, learned senior counsel for the

respondents (writ petitioners) while supporting the

reasoning and the conclusion arrived at by the

Division Bench contended that no fault could be

noticed in the impugned order.

22) It was their submission that firstly, the

Government did not choose to file any appeal against

9 the order of the Single Judge and, therefore, the

MUDA had no independent locus to pursue the

matter in appeals; Secondly, the MUDA having

resolved to wriggle out of the acquisition proceedings,

the Division Bench was justified in dismissing the

appeals as not pressed; Thirdly, there was, therefore,

no need to decide the appeals on merits; and lastly,

after the dismissal of the appeals, the respondents

(writ petitioners) altered their position in relation to

the lands in question by spending substantial money

and, therefore, this is not a fit case to entertain the

special leave to appeals under Article 136 of the

Constitution.

23) The short question, which arises for

consideration in these appeals, is whether the

Division Bench was right in dismissing the appeals

“as not pressed”.

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24) Having heard the learned counsel for the parties

and on perusal of the record of the case, we find force

in the submissions urged by the learned counsel for

the appellant.

25) In our opinion, the Division Bench should have

decided the appeals on merits in accordance with

law.

26) On perusal of the resolution dated 02.07.2016,

Government letter dated 26.06.2018 and the letter

dated 14.11.2017 of the Commissioner and further

keeping in view the relevant provisions of the

Karnataka Act, we are of the view that the appeals

filed by the MUDA could not have been dismissed “as

not pressed”. In other words, the High Court should

have dismissed the respondents’ application

(I.A.No.11/2016) as being misconceived and decided

the appeals on merits in accordance with law.

11

27) In our opinion, neither there was any express

prayer made by the MUDA and nor it could be

inferred from the document relied on by the Division

Bench at the instance of respondents (writ

petitioners) for forming an opinion “not to press the

appeal”. In other words, the opinion formed by the

High Court for dismissing the appeals “as not

pressed” had no basis. Such dismissal, in our view,

certainly deprived the MUDA of their right to

prosecute the appeals on merits.

28) A right of appeal is a valuable right of a litigant.

He is entitled to prosecute this right as it enables him

to seek adjudication of the issues on merits, which

are subject matter of the appeal by the Appellate

Court. He can, however, forgo such right but it has to

be done with express authority and free will. The

respondents, however, cannot compel the appellant

to give up the right of prosecuting the appeal unless

12 the respondents are able to show any express

provision in law in that behalf or valid reasons

acceptable in law which deprive the appellant from

prosecuting his grievance in appeal.

29) If the appellant is a juristic entity created under

the Act, they have to ensure strict compliance of the

relevant provisions of the Act under which they are

created coupled with ensuring compliance of relevant

provisions of the Code of Civil Procedure for forgoing

their right to prosecute the appeal on merits.

30) If, for some reasons, there are two rival groups

in a juristic entity, one prays for withdrawal and the

other insisting for hearing the appeal then it is the

duty of the Court to first resolve this issue in the

light of the relevant provisions of law and then

proceed to decide the appeal accordingly. Similarly,

when such prayer is made at the instance of the

respondent and is opposed by the appellant, the

13 same has to be dealt with strictly in accordance with

law by the Appellate Court.

31) The submissions urged by the learned senior

counsel for the respondents (writ petitioners), which

are detailed supra, have no merit.

32) In our opinion, any act done by the parties in

relation to the subject matter of the appeals after the

impugned order, cannot be pressed into service to

support the impugned order. In other words, the

legality and correctness of the impugned order has to

be examined in the light of reasoning contained in

the impugned order and not on the basis of the acts

done by the parties subsequent to the passing of

impugned order. It is for this reason the acts done

by the party subsequent to passing of the impugned

order are of no relevance for deciding the present

appeals.

14

33) In view of the foregoing discussion, we are

unable to concur with the reasoning and the

conclusion arrived at by the Division Bench in the

impugned order.

34) The appeals thus succeed and are accordingly

allowed. Impugned order in both the matters are set

aside. The writ appeals out of which these appeals

arise are accordingly restored to their original

numbers. The High Court is requested to decide the

appeals on merits in accordance with law.

35) We make it clear that we have not applied our

mind to the merits of controversy having formed an

opinion to remand the case to the High Court. The

High Court would, therefore, decide the appeals

without being influenced by any of our observations.

36) We also make it clear that any step(s), if claimed

to have been taken by the respondents (writ

petitioners) subsequent to the impugned order, the

15 same would not, in any way, influence the High

Court while deciding the appeals on merits.

37) The parties are at liberty to claim refund of their

money, if they claimed to have paid/deposited with

the appellant in relation to the subject matter of the

appeals.

………...................................J. [ABHAY MANOHAR SAPRE] …...……..................................J. [S. ABDUL NAZEER] New Delhi;

September 07, 2018

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