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
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and withdrawn.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.
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withdrawn.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.
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
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
same has to be dealt with strictly in accordance with
law by the Appellate Court.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9182-9188 OF 2018
Mysore Urban Development Authority Vs K.M. Chikkathayamma & Ors.
Dated: September 07, 2018
1) S.L.P(C)No.……….(D.No.31403 of 2017) are
directed against the final judgment and order dated
09.11.2016 passed by the High Court of Karnataka at
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
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
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.
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.
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
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
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”.
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.
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
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
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.
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
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
Print Page
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
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.
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.
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
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
same has to be dealt with strictly in accordance with
law by the Appellate Court.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9182-9188 OF 2018
Mysore Urban Development Authority Vs K.M. Chikkathayamma & Ors.
Dated: September 07, 2018
1) S.L.P(C)No.……….(D.No.31403 of 2017) are
directed against the final judgment and order dated
09.11.2016 passed by the High Court of Karnataka at
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
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
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.
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.
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
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
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”.
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.
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
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
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.
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
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
No comments:
Post a Comment