K. R. Sharma & Ors. Vs. State of U.P. & Ors.  INSC 1456 (18
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].
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.
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.
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.
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.
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:
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.
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.
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.
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.
application is hereby rejected."
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.
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
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
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.
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.
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
result, the appeal is dismissed. However, the parties are left to bear their
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
.............................J. (G.S. Singhvi)
.............................J. (H.L. Dattu)
August 18, 2009
NO.MM 7-A COURT NO.7 SECTION XI SUPREME COURT OF INDIA RECORD OF PROCEEDINGS
I.A. No. IN Petition(s) for Special Leave to Appeal (Civil) No(s).6641/2007
(From the judgment 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.
MR. JUSTICE G.S. SINGHVI HON'BLE MR. JUSTICE H.L. DATTU For Petitioner(s) Mr.
Respondent(s) Mr. R.K. Gupta, Adv.
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
filing the special leave petition is condoned.
appeal is dismissed. However, the parties are left to bear their own costs.
4 is is also dismissed in terms of the signed order.
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