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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD BENCH AT LUCKNOW
RAJESH BINDAL, CJ., RAJAN ROY, VIVEK CHAUDHARY, JJ.
Prayas Buildcon Pvt. Ltd. – Appellant
Versus
State ofUttar Pradesh and others - Respondents
Civil Misc. Writ Petition No. 8870 of 2020
Decided on : 16-08-2022
Constitution of India, 1950 - Article 134, 134A, 133(1), 226, 136 – Civil Procedure Code, 1908 – Section 11 –Writ petition – Maintainability – Subsequent petition – Abuse process of Court – Whether second Writ Petition filed by petitioner is maintainable in view of fact that petitioner is seeking implementation of judgment and order passed in Writ Petition – Held, Court are faced with a situation where no remedy as such has been provided in case order passed by Writ Court or an appeal arising there from is not complied with – Though, aggrieved person can file an application for initiating contempt proceedings against guilty person, however, that cannot be said to be a remedy for execution of order as in contempt proceedings, which are quasi criminal in nature for non compliance of any order, person guilty can be punished with imprisonment and/or fine –Person in whose favour order has been passed cannot be left remediless, in case same is not complied with in its true letter and spirit – He cannot be deprived of fruits of litigation – In circumstances, in our view, a writ petition seeking a direction to authority concerned for compliance of earlier order may be maintainable – In case, any alternative remedy is provided that may or may not be a complete bar for entertainment of such a writ petition in view of settled position of law – In case in hand, fact remains that in Rule 11 of Chapter XXII of High Court Rules, execution is provided only for recovery of cost and not for any substantive relief granted to party concerned - Order Accordingly.
JUDGMENT :
Rajesh Bindal, CJ.
On account of difference of opinion between two Judges constituting the Division Bench and on the larger issues sought to be raised by Dinesh Kumar Singh, J. in his opinion, the matter was directed to be placed before the larger Bench by the then Chief Justice vide administrative order passed on January 12, 2021.
2. The issues, on which the opinion is sought, are as under:
(ii) Whether the second Writ Petition No. 8870 (MB) of 2020 filed by the petitioner is maintainable in view of the fact that the petitioner is seeking implementation of the judgment and order dated 17.5.2019 passed in Writ Petition No. 12081 (MB) of 2009? and,
(iii) Whether the second Writ Petition No. 8870 (MB) of 2020 is barred by the principle of res judicata/constructive res judicata in view of the fact that while allowing Writ Petition No. 12081 (MB) of 2009 vide judgment and order dated 17.5.2019, the respondents have been directed to process the application of the petitioner for conversion of lease-hold-rights into free-hold, in accordance with law laid down by the Full Bench in Anand Kumar Sharma's case (supra) and, thus, the issue regarding the relevant date for conversion charges was very much involved in Writ Petition No. 12081 (MB) of 2009?''
FACTS OF THE CASE
3. Brief facts giving rise to the dispute are that the petitioner filed present writ petition praying for a direction to the respondents to proceed with conversion of leasehold rights to freehold rights in accordance with the order dated May 17, 2019 passed in earlier Writ Petition No. 12081 (MB) of 2009 filed by it and issue demand letter accordingly. The matter came up for hearing before the Division Bench consisting of Pankaj Kumar Jaiswal and Dinesh Kumar Singh, JJ. Pankaj Kumar Jaiswal, J. allowed the writ petition and issued direction, as prayed for. Having not agreed with the views expressed by Pankaj Kumar Jaiswal, J., Dinesh Kumar Singh, J., in his separate order, was of the opinion that the writ petition deserved to be dismissed, accordingly he dismissed the writ petition with exemplary cost of Rs. 10,00,000/-. He opined that in view of difference of opinion, the matter is required to be placed before a larger Bench for consideration of the issues as noticed above. This is how the matter is placed before this Bench.
ARGUMENTS
4. Learned counsel for the petitioner, while addressing the Court on the issues required to be considered, admitted that earlier Writ Petition No. 12081 (MB) of 2009 was filed by the petitioner herein. However, the reliefs prayed therein were different than those claimed in the present writ petition. Hence, it cannot be said to be not maintainable or barred on account of res judicata or constructive res judicata. The directions already issued by Division Bench of this Court in the earlier writ petition filed by the petitioner were not complied with. An application bearing Civil Misc. Application No. 87559 of 2019 filed by the petitioner seeking clarification is also pending. However, he will not press the same, as substantive reliefs have been claimed in the present writ petition. He further submitted that filing of the present writ petition was in terms of legal advice available to the petitioner. There was no effort to overreach the Court for claiming the reliefs prayed for. The respondents were not even complying with the earlier order passed by this Court in favour of the petitioner. He
Advocates appeared :For the Appellant : Ravish Agrawal, Sanjay Agrawal For the Respondent : Pushpendra Yadav, R. N. Singh, Akshay Pawar
There is a right in favour of a co-owner to perfect his title in respect of a property jointly owned by him and therefore, seek conversion from leasehold to freehold and nutation of the property.
The intertwined interests of co-owners in property and the need to minimize litigation influenced the Court's decision to allow the conversion and mutation of the property from leasehold to freehold.
The Rules of 1986, primarily Rules 4, 5 and 7 have to be so construed and read in a harmonious manner so as to not render it otiose while also ensuring that it does not throw a spanner in the works w....
The maintainability of a writ petition for specific performance is vitiated by delay and the principle that claims barred by limitation are not justiciable in writ jurisdiction.
The amendment of pleadings to incorporate subsequent events pending litigation is permissible to avoid multiplicity of suits and seek appropriate relief.
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