MYSORE URBAN DEVELOPMENT AUTHORITY versus K.M. CHIKKATHAYAMMA & ORS. on 7 September 2018

[2018] 11 S.C.R. 141

MYSORE URBAN DEVELOPMENT AUTHORITY

v.

K.M. CHIKKATHAYAMMA & ORS.

(Civil Appeal Nos. 9182-9188 of 2018)

SEPTEMBER 07, 2018

[ABHAY MANOHAR SAPRE AND S. ABDUL NAZEER, JJ.]

Appeal – Dismissal of appeals by Division Bench “as notpressed” – Propriety of – On facts, intra court appeals before theDivision Bench of the High Court against quashing of theacquisition proceedings by the Single Judge – Division Benchdismissed the appeals “as not pressed” and withdrawn – On appeal,held: Right of appeal is a valuable right of a litigant – He is entitledto prosecute this right as it enables him to seek adjudication of theissues on merits, which are subject matter of the appeal – However,such right can be forgone but has to be done with express authorityand free will – On facts, no express prayer made by the DevelopmentAuthority and nor it could be inferred from the document relied onat the instance of respondents for forming an opinion ‘not to pressthe appeal’ – Dismissal of appeal certainly deprived the Authorityof their right to prosecute the appeals on merits – Furthermore, theDevelopment Authority being a juristic entity created under the Act,they have to ensure strict compliance of the relevant provisions ofthe Act under which they are created along with the compliance ofthe provisions of the Code of Civil Procedure for forgoing theirright to prosecute the appeal on merits – Thus, the conclusionarrived at by the Division Bench set aside – High Court to decidethe appeals on merits.

Subsequent Events – Relevance of – Held: Any act done bythe parties in relation to the subject matter of the appeals after theimpugned order, are of no relevance for deciding the present appealsand cannot be pressed into service to support the impugned order –Legality and correctness of the impugned order is to be examinedin the light of reasoning contained in the impugned order and noton the basis of the acts done by the parties subsequent to the passingof impugned order.

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142SUPREME COURT REPORTS

AAllowing the appeals, the Court

HELD: 1.1 On perusal of the resolution dated 02.07.2016,Government letter dated 26.06.2018 and the letter dated14.11.2017 of the Commissioner and further keeping in view therelevant provisions of the Karnataka Act, the appeals filed byBthe Mysore Urban Development Authority could not have beendismissed “as not pressed”. In other words, the High Courtshould have dismissed the respondents’ application as beingmisconceived and decided the appeals on merits in accordancewith law. [Para 26][147-G]

C1.2 Neither there was any express prayer made by theMysore Urban Development Authority (MUDA) and nor it couldbe inferred from the document relied on by the Division Benchat the instance of respondents (writ petitioners) for forming anopinion “not to press the appeal”. In other words, the opinionformed by the High Court for dismissing the appeals “as notDpressed” had no basis. Such dismissal certainly deprived theMUDA of their right to prosecute the appeals on merits. [Para27][148-A-B]

1.3 A right of appeal is a valuable right of a litigant. He isentitled to prosecute this right as it enables him to seekEadjudication of the issues on merits, which are subject matter ofthe appeal by the Appellate Court. He can, however, forgo suchright but it has to be done with express authority and free will.The respondents, however, cannot compel the appellant to giveup the right of prosecuting the appeal unless the respondentsFare able to show any express provision in law in that behalf orvalid reasons acceptable in law which deprive the appellant fromprosecuting his grievance in appeal. [Para 28][148-C]

1.4 If the appellant is a juristic entity created under theAct, they have to ensure strict compliance of the relevantGprovisions of the Act under which they are created coupled withensuring compliance of relevant provisions of the Code of CivilProcedure for forgoing their right to prosecute the appeal onmerits. If, for some reasons, there are two rival groups in a juristicentity, one prays for withdrawal and the other insisting for hearingthe appeal then it is the duty of the Court to first resolve thisHissue in the light of the relevant provisions of law and then proceed to decide the appeal accordingly. Similarly, when such prayer ismade at the instance of the respondent and is opposed by theappellant, the same has to be dealt with strictly in accordancewith law by the Appellate Court. [Paras 29, 30][148-D-F]

1.5 Any act done by the parties in relation to the subjectmatter of the appeals after the impugned order, cannot be pressedinto service to support the impugned order. In other words, thelegality and correctness of the impugned order has to be examinedin the light of reasoning contained in the impugned order and noton the basis of the acts done by the parties subsequent to thepassing of impugned order. It is for this reason the acts done bythe party subsequent to passing of the impugned order are of norelevance for deciding the present appeals. [Para 32][148-G-H;149-A]

1.6 The Division Bench should have decided the appealson merits in accordance with law. The reasoning and theconclusion arrived at by the Division Bench in the impugned orderare set aside. The writ appeals out of which these appeals ariseare accordingly restored to their original numbers. The HighCourt is requested to decide the appeals on merits in accordancewith law. [Paras 25, 33 and 34][147-F; 149-B]

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 9182-9188 of 2018.

From the Judgment and Order dated 09.11.2016 of the High Courtof Karnataka at Bengaluru in W.A. Nos. 899 of 2016 and 982-987/2016(LA).

WITH

C.A. Nos. 9190-9191 of 2018.

Dushyant Dave, Gopal Subramanyan, Mukul Rohatgi, Sr. Advs.,Sharan Dev Singh Thakur, Mahesh Thakur, Ms. Vipasha Singh, Ms.Priyanka G., Amir Nabi, Vijay Kumar, Naveen R. Nath, Ms. Lalit MohiniBhat, B. L. Sanjeev, Advs. for the appearing parties.

The Judgment of the Court was delivered by ABHAY MANOHAR SAPRE, J. 1. S.L.P(C)Nos. 24560-24566 of 2018 (D.No.31403 of 2017) are directed against the final A

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Ajudgment and order dated 09.11.2016 passed by the High Court ofKarnataka at Bengaluru in W.A. Nos. 899/2016 and 982-987 of 2016whereby the High Court dismissed the appeals filed by the appellantherein and, in consequence, upheld the judgment dated 10.03.2016 ofthe Single Judge in W.P.Nos.38868-38874/2015 which had allowed thewrit petitions filed by the respondents herein.B

2. So far as S.L.P.(C)Nos. 24569-24570 of 2018 (D.No.30522/2017) are concerned, it is directed against the final judgment and orderdated 20.10.2016 passed by the Division Bench of the High Court ofKarnataka in W.A. Nos. 6829-6830 of 2013 which arise out of the orderdated 10.10.2013 of the Single Judge passed in writ petition Nos.27994/C2001 and 18756/2001.

3. Leave granted.

4. In order to appreciate the issues involved in these appeals, fewrelevant facts need mention infra.D5. The appellant-Mysore Urban Development Authority(hereinafter referred to as “MUDA”) was the respondent whereas therespondents herein were the writ petitioners before the High Court.

6. In exercise of the powers conferred under Section 17 (1) ofthe Karnataka Urban Development Authorities Act, 1987 (hereinafterEreferred to as “The Karnataka Act”), the MUDA issued a notificationNo. LAQ 66/91-91 dated 19.12.1991 on completion of one developmentscheme prepared under Section 15/16 of the Karnataka Act.

7. By this notification, the MUDA proposed to acquire the largearea of the land along with other adjoining lands situated in DattagalliFvillage (Karnataka). The notification was published in the official Stategazette on 26.12.1991. The State Government vide its order dated27.01.1992 approved the scheme framed by the MUDA under Section18(3) of the Karnataka Act and issued final notification No.VaNaE 833MIB 92 on 10.12.1992 mentioning therein that the lands in question areneeded for public purpose, viz., “formation of Dattagalli extension”.GThis was followed by an award passed by the Special Land AcquisitionOfficer (SLAO) on 27.01.1994 wherein he determined the compensationpayable to the landowners. This was followed by issuance of notices tothe land owners under Section 12 (2) of the Land Acquisition Act, 1894(hereinafter referred to as “the LA Act”) calling upon the land ownersH

to deliver possession of their respective lands. The MUDA then issueda notification on 18.09.2000 as required under Section 16 (2) of the LAAct. In between, there was one litigation but it is not necessary tomention the same in detail.

8. In 2001, the respondents (writ petitioners) felt aggrieved by theacquisition proceedings and filed writ petitions questioning the legalityand correctness of the notification dated 19.12.1991 and consequentialnotifications issued thereafter in the High Court of Karnataka atBangalore. The MUDA and State contested the writ petitions on severalfactual and legal grounds.

9. By order dated 15.12.2003, the Single Judge allowed the writpetitions and quashed the entire acquisition proceedings inter alia onthe ground that there was a delay on the part of the MUDA in takingpossession of the acquired land and hence the acquisition proceedingsare rendered illegal.

10. The MUDA felt aggrieved and filed intra Court appeals beforethe Division Bench out of which these SLPs arise. In the appeals, thewrit petitioners as respondents, filed an application (I.A. No.11 of 2016)and prayed therein for dismissal of the MUDA’s appeals as havingrendered infructuous. It was contended that the MUDA has resolved on02.07.2016 to drop the lands in question from the acquisition proceedingsand, therefore, in the light of such decision having been taken, there is noneed to examine the legality and correctness of the order of the SingleJudge impugned in the appeals on merits.

11. By impugned order in both the matters, the Division Benchdismissed the appeals as not pressed and withdrawn. The order impugneddated 09.11.2016 reads as under:

“An application is moved by the respondents seeking fordismissal of the writ appeals on the ground that the MysoreUrban Development Authority (for short “MUDA”)decided, in their Board meeting on July 2, 2016, to dropthe lands covered by this litigation from the acquisitionprocess. A copy of the resolution is annexed to theapplication.

2. After hearing Mr. Uday Holla, learned senior advocateappearing for the respondents and Mr. P.S. Manjunath, A

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Alearned advocate appearing for the appellants, we have gota clear indication that the authorities have decided not toproceed with the writ appeals.

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

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

12. It is against this order, the MUDA has felt aggrieved and filedthe present appeals by way of special leave before this Court.

13. Heard learned counsel for the parties.

C14. Mr. Dushyant Dave, learned senior counsel appearing for theappellant (MUDA) essentially made two submissions.

15. In the first place, learned counsel contended that the DivisionBench erred in dismissing the MUDA’s appeals as withdrawn.

16. According to him, there was neither any basis nor groundDmuch less justification to dismiss the MUDA’s appeals “as not pressed”.It was urged that in fact the Division Bench was under legal obligationto decide the appeals on merits.

17. In the Second place, learned counsel contended that theresolution dated 02.07.2016 relied on for dismissal of MUDA’s appeals,E“as not pressed” was wrongly interpreted by the Division Bench. Learnedcounsel pointed out that the resolution dated 02.07.2016, if read properly,does not show that any express decision was taken to withdraw theappeals or that any decision was taken to drop the lands in question fromthe acquisition proceedings.F

18. Learned counsel further submitted that even otherwise theMUDA was not competent to take such decision without obtaining thesanction of the State Government as provided under Section 19 (7) ofthe Karnataka Act.

19. Learned counsel pointed out that neither the MUDA and norGthe State Government ever intended to withdraw from the acquisitionproceedings as is clear from the letter dated 26.06.2018 of the StateGovernment and the letter dated 14.11.2017 of the Commissioner. Itwas urged that these letters indicate that both i.e. the State and theMUDA wanted to pursue the appeals on merits since inception beforeHthe 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 thematter be remitted to the Division Bench for deciding the appeals onmerits in accordance with law.

21. In reply, Mr. Mukul Rohtagi and Mr. Gopal Subramanian,learned senior counsel for the respondents (writ petitioners) whilesupporting the reasoning and the conclusion arrived at by the DivisionBench contended that no fault could be noticed in the impugned order.

22. It was their submission that firstly, the Government did notchoose to file any appeal against the order of the Single Judge and,therefore, the MUDA had no independent locus to pursue the matter inappeals; Secondly, the MUDA having resolved to wriggle out of theacquisition proceedings, the Division Bench was justified in dismissingthe appeals as not pressed; Thirdly, there was, therefore, no need todecide the appeals on merits; and lastly, after the dismissal of the appeals,the respondents (writ petitioners) altered their position in relation to thelands in question by spending substantial money and, therefore, this isnot a fit case to entertain the special leave to appeals under Article 136of the Constitution.

23. The short question, which arises for consideration in theseappeals, 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 perusalof the record of the case, we find force in the submissions urged by thelearned counsel for the appellant.

25. In our opinion, the Division Bench should have decided theappeals on merits in accordance with law.

26. On perusal of the resolution dated 02.07.2016, Governmentletter dated 26.06.2018 and the letter dated 14.11.2017 of theCommissioner and further keeping in view the relevant provisions of theKarnataka Act, we are of the view that the appeals filed by the MUDAcould not have been dismissed “as not pressed”. In other words, theHigh Court should have dismissed the respondents’ application(I.A.No.11/2016) as being misconceived and decided the appeals onmerits in accordance with law.

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A27. In our opinion, neither there was any express prayer made bythe MUDA and nor it could be inferred from the document relied on bythe Division Bench at the instance of respondents (writ petitioners) forforming an opinion “not to press the appeal”. In other words, the opinionformed by the High Court for dismissing the appeals “as not pressed”had no basis. Such dismissal, in our view, certainly deprived the MUDABof their right to prosecute the appeals on merits.

28. A right of appeal is a valuable right of a litigant. He is entitledto prosecute this right as it enables him to seek adjudication of the issueson 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 expressauthority and free will. The respondents, however, cannot compel theappellant to give up the right of prosecuting the appeal unless therespondents are able to show any express provision in law in that behalfor valid reasons acceptable in law which deprive the appellant fromprosecuting his grievance in appeal.

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29. If the appellant is a juristic entity created under the Act, theyhave to ensure strict compliance of the relevant provisions of the Actunder which they are created coupled with ensuring compliance ofrelevant provisions of the Code of Civil Procedure for forgoing theirright to prosecute the appeal on merits.

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30. If, for some reasons, there are two rival groups in a juristicentity, one prays for withdrawal and the other insisting for hearing theappeal then it is the duty of the Court to first resolve this issue in the lightof the relevant provisions of law and then proceed to decide the appealaccordingly. Similarly, when such prayer is made at the instance of theFrespondent and is opposed by the appellant, the same has to be dealtwith strictly in accordance with law by the Appellate Court.

31. The submissions urged by the learned senior counsel for therespondents (writ petitioners), which are detailed supra, have no merit.

32. In our opinion, any act done by the parties in relation to theGsubject matter of the appeals after the impugned order, cannot be pressedinto service to support the impugned order. In other words, the legalityand correctness of the impugned order has to be examined in the light ofreasoning contained in the impugned order and not on the basis of theacts done by the parties subsequent to the passing of impugned order. It H

is for this reason the acts done by the party subsequent to passing of theimpugned order are of no relevance for deciding the present appeals.

33. In view of the foregoing discussion, we are unable to concurwith the reasoning and the conclusion arrived at by the Division Benchin the impugned order.

34. The appeals thus succeed and are accordingly allowed.Impugned order in both the matters are set aside. The writ appeals outof which these appeals arise are accordingly restored to their originalnumbers. The High Court is requested to decide the appeals on meritsin accordance with law.

35. We make it clear that we have not applied our mind to themerits of controversy having formed an opinion to remand the case tothe High Court. The High Court would, therefore, decide the appealswithout being influenced by any of our observations.

36. We also make it clear that any step(s), if claimed to have beentaken by the respondents (writ petitioners) subsequent to the impugnedorder, the same would not, in any way, influence the High Court whiledeciding the appeals on merits.

37. The parties are at liberty to claim refund of their money, ifthey claimed to have paid/deposited with the appellant in relation to thesubject matter of the appeals.

Nidhi Jain

Appeals allowed.

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