Sardar Sher Ali Khan v. Prescribed Authority — 1978 DIGILAW 792 (ALL)

JUDGMENT K. N. Seth, J. :- By this petition under Article 225 of the Constitution Petitioner Sher All Khan and Sardar Dost Mohammad Khan, who claim to the tenants of the house in dispute pray for a writ, prohibiting the Prescribed Authority, respondent no. 1 from proceeding any further with an application under section 21 of the U P. Urban. Buildings (Regulation of Letting, Rent and Eviction) Act U.P. Act XIII of 1972 filed by Sri Lalji Tandon (respondent no. 2). 2. On 23rd May, 1973, Sri Lalji Tandon respondent no. 2 landlord of house no. 3 Circular Road, pursuance, filed an application under section 21 of the U.P. Act XIII of 1972 for eviction of Union of India on the ground that he needed the house in question for his own personal occupation, and also because the building was an old one and was in dilapidated condition requiring substantial and extensive repairs and renovation etc. In that application Sri Lalji Tandon impleaded Union of India as the sole Opposite party. Union of India as however, did not contest the application which was allowed by the Prescribed Authority vide its order dated 7th August, 1973. 3. The present petitioners along with respondents nos. 4 and 5 filed an application dated 23rd August, 1973 claiming that they were the real tenants of the house and prayed that the order dated 7th August 1973, obtained by Sri Lalji Tandon without impleading them as parties, be set-aside. This application was, after contest, allowed by the Prescribed Authority vide its order dated 2nd January, 1974. 4. Being aggrieved, Sri Lalji Tandon went up in appeal before the District Judge who dismissed the appeal vide his order dated 17th September, 1974 on the finding that the order dated 2nd January, 1974 was not appealable. 5. Sri Lalji Tandon then filed writ petition no. 6757 of 1974 before this Court and challenged the order of the District Judge dated 17th September 1974 dismissing his appeal on the ground that the same was not maintainable. He also challenged the validity of the order of the Prescribed Authority dated 2nd of January, 1974 recalling its earlier order dated 7th August 1973 at the instance of the present petitioners. A learned Judge of this Court, vide his judgment dated 4th February, 1976, allowed the aforesaid writ petition in part. He also challenged the validity of the order of the Prescribed Authority dated 2nd of January, 1974 recalling its earlier order dated 7th August 1973 at the instance of the present petitioners. A learned Judge of this Court, vide his judgment dated 4th February, 1976, allowed the aforesaid writ petition in part. He upheld the finding of the District Judge that the order dated 2nd January, 1974, passed by Prescribed Authority recalling its earlier order was not appealable and rejected Sri Tandon's claim for interfering with the District Judge's order dated 17th September, 1974. Ha further hold that the Prescribed Authority had erred in allowing the application filed by the petitioners for recalling its earlier order, made under section 21 of U.P. Act XII1 of 1972, without going into the question as to whether the petitioners, were tenants of the house in dispute or not. According to him, such an application could be moved by the petitioners only if they were the tenants of the house in question. Accordingly, he set aside the order of the Prescribed Authority recalling his earlier order dated 7th August 1973 and directed to reconsider the petitioner's application dated 23rd August 1973 afresh and in the light of the observations made by him in his judgment. It may be mentioned here that by mistake the order by which the Prescribed Authority had recalled its earlier order dated 7th August 1973 was, in the judgment of this Court wrongly mentioned as order dated 3rd January, 1974 instead of 21 January, 1974. 6. When the matter went back to the Prescribed Authority, the petitioners filed an application before it and brought it to its notice that after passing the order dated 2nd January, 1974 it had already proceeded to fix 25th January as the date for final hearing of the application under Section 21 of the U.P. Act XIII of 1972 filed by Sri Tandon and that on that date Sri Tandon did not appear and the application had been dismissed for non-prosecution. He contended that as the order dismissing the main application had become final, the Prescribed Authority was left with no jurisdiction to proceed further with the consideration of Sri Tandon's application. The remedy of Sri Tandon, if any, was to file an appeal against the order dated 25th January, which he had failed to pursue. He contended that as the order dismissing the main application had become final, the Prescribed Authority was left with no jurisdiction to proceed further with the consideration of Sri Tandon's application. The remedy of Sri Tandon, if any, was to file an appeal against the order dated 25th January, which he had failed to pursue. The petitioners accordingly prayed that the Prescribed Authority should not proceed to reopen and reconsider the proceedings which had already culminated into rejection of Sri Tandon's application filed under section 21 of U.P. Act XIII of 1972. 7. The Prescribed Authority, vide its order dated Ist August, 1977, rejected the petitioner's application and held that its order dated 25th January, 1974 had merged into High Court's Judgment in writ petition no. 6757 of 1974 decided on 4th February 1976 and that it was bound to decide the case in accordance with the direction issued by the High Court. 8. Being aggrieved the petitioner has come up before this Court and has prayed that the order of Prescribed Authority dated 1st of August 1977 be quashed and it be directed not to implement the same. 9. Learned counsel for the petitioner argued that as after passing the order dated 2nd January 1974 recalling earlier order dated 7th August 1973 (releasing the house in dispute in Sri Tandon's favour) the Prescribed Authority had proceeded to dismiss Shri Tandon's application on 25th January, 1974, the order dated 2nd January had completely exhausted itself and had merged in the latter order passed by the Prescribed Authority. The order dated 25th January 1974 by which the proceedings initiated on Shri Tandon's application dated 23rd May 1973 had been concluded, was an appealable order, but Shri Tandon did not file appeal against it and permitted it to become final. Merely because the High Court had in its judgment delivered in writ petition No. 6757 of 1974 on 4th February 1976 purported to set aside the interlocutory order dated 2nd January, 1974, it did not mean that the finality of the order dated 25th January 1974 had been lost and the proceedings which had been concluded by that order stood revived. On 4th February 1976 there were no proceedings- which could either at the instance of the High Court or otherwise be continued by the Prescribed Authority. On 4th February 1976 there were no proceedings- which could either at the instance of the High Court or otherwise be continued by the Prescribed Authority. In the circumstances, the writ issued by this Court on 4th February 1976, was wholly infructuous and did not clothe the Prescribed Authority with jurisdiction to reopen concluded proceedings. 10. I am unable to accept this submission. In the case of Uman Kunwari V. Jarbandha, ILR 30 Allahabad 749 the Court of first instance had dismissed a suit on 13th April 1976. However in appeal the lower appellate court set aside the decree of the trial court vide its order dated 27th March 1907 and remanded the case to it for retrial. In appeal against the order of remand was filed before the High Court on 29th June 1970. Before the aforesaid appeal was filed, the court of first instance had carried out the order of remand and had decreed the claim on 20th May 1907. When the appeal against the order of remand came up for hearing before the High Court, the respondent raised a preliminary objection on lines similar to the submission made by the petitioners in the case before us and contended that even if the appeal was entertained the decision under appeal would be of no avail to the appellant as the decree passed by the court of first instance in compliance with the order of remand, would still remain a valid decree. A Full Bench of this Court, while repelling the objection observed : "After the court of first instance had once decided the case, it ceased to have jurisdiction for hearing it again except on review of the judgment. Its jurisdiction to hear it a second time was derived solely from the order of remand. If that order was erroneous and is set aside everything done in pursuance of the order mist fall to the ground." In the case of Bari Das v. Bansidhar, AIR 1962 Rajasthan 57 a Full Bench of the Rajasthan High Court had to consider a question with regard to the effect of a decree passed in pursuance of an order of remand on the competency of the appellate court to hear and decide the appeal against the order of remand itself. The Learned Judges referred to various decisions of the High Courts in the country wherein it had been held that passing of a final decree in the suit did not preclude the appellate court from hearing and deciding the appeal against the preliminary decree. They agreed with the view of Rankin C.J. in the case Talebali v. Abdul Aziz, AIR 1929 Calcutta 689 which was to the effect that it was altogether unreasonable to a preliminary decree as a mere interlocutory order whose force was spent when the suit was disposed of and went on to quote the following observations made by the learned Chief Justice with approval : "In my judgment the final decree is in its nature dependant and subordinate because it is a decree which has been passed as a result of proceedings directed and controlled by the preliminary decree and based thereon............When a preliminary decree is set aside, the final decree is superseded whether the appeal was brought before or after the passing of the final decree and that in my judgment an appellate court when setting aside or varying a preliminary decree can and indeed should give direction for the setting aside of the decree if the existence of the final decree is brought to its notice in all cases it ought to be." In the opinion of the learned Judges of the Rajasthan High Court, aforementioned observation made by Rankin C.J. applied equally to the case where decree is passed in pursuance of an order of remand and the order of remand it subsequently set aside in appeal. They went on to observe that the order of remand was independent existence and that the final decree passed by the trial court, in pursuance of the order of remand is in its nature dependant and subordinate to the order of remand because it is passed as a result of the proceedings directed and controlled by the remand order. If the remand order is set aside the final decree would also topple down. 11. Similarly in the case of Baisnath Padhan v. Parma Padhan, AIR 1964 Orissa 156 the trial court had dismissed the plaintiff's suit. In appeal the lower appellate court reversed the finding of the trial court and remand the suit for fresh disposal. An appeal had been filed against the order of remand by the lower appellate court. 11. Similarly in the case of Baisnath Padhan v. Parma Padhan, AIR 1964 Orissa 156 the trial court had dismissed the plaintiff's suit. In appeal the lower appellate court reversed the finding of the trial court and remand the suit for fresh disposal. An appeal had been filed against the order of remand by the lower appellate court. Before however, that appeal could be disposed of, the trial court had, in pursuance of the order of remand, decreed the plaintiff suit. No appeal was filed against the final decree and when the appeal against the order of remand was taken up a preliminary objection was taken in view of the final decree passed in the cane the appeal had become infructuous. While rejecting the preliminary objection the learned Judge of the Orissa High Court observed thus : "The dictum received the approval of their Lordships of the Judicial Committee. Subsequently in AIR 1923 PC 167 B Nanganna v. R. Venkatapayya, though it dealt with another type of case and their Lordships of the Supreme Court in AIR 1955 SC 576 Siromani Gurdwara Prabhandhak Committee v. Shiv Rattan Singh. The judgment of the learned Trial Court after remand dated 19-9-1962 is based on the judgment of the learned subordinate Judge which is under challenge in the High Court. If the basis itself collapses the superstructure standing on it must go. The court has jurisdiction to set aside the judgment of the learned subordinate judge and if it so set aside the judgment of the trial court after remand, must automatically be inoperative. The second preliminary objection must accordingly fail. 12. In the case before us also. I find that the Prescribed Authority after it allowed the application for release of the accommodation in favour of Sri Tandon on 7th August 1973 had lost jurisdiction to deal with the matter any further excepting after recalling that order on some valid ground. The prescribed Authority purported to recall that order by its order dated 2nd January 1974. Accordingly its jurisdiction to deal with and decide Sri Lalji Tandon's application dated 23rd May 1973 afresh was dependent upon the validity of the order dated 2nd January 1974, which had been questioned before this court in writ petition No. 6757 of 1974. The prescribed Authority purported to recall that order by its order dated 2nd January 1974. Accordingly its jurisdiction to deal with and decide Sri Lalji Tandon's application dated 23rd May 1973 afresh was dependent upon the validity of the order dated 2nd January 1974, which had been questioned before this court in writ petition No. 6757 of 1974. As the jurisdiction of the Prescribed Authority to pass the order dated 25th January 1974 was derived solely from the order dated 2nd January 1974. That order was an order which in its nature was dependent and subordinate to the order dated 2nd January 1974. In the circumstances, once the order dated 2nd January, 1974 was set aside by this Court vide its judgment dated 4th February 1976 given in writ petition no. 6757 of 1974, all proceedings taken and everything done in the case in pursuance of the order dated 2nd January 1974 automatically fell to the ground. The basis having collapsed the super-structure standing thereon must also go. Accordingly, even if the petitioner did not pursue any remedy against the orders dated 25th January, 1974 the petition directed against the order dated 2nd January 1974 was not rendered infructuous inasmuch as when that order was set aside all proceedings taken thereafter, including the order dated 25th January, 1974, became for all practical purposes, nonest. In this view, the submission made by the Learned counsel for the petitioner that notwithstanding the setting aside of the order of the Prescribed Authority dated 2nd January, 1974 and the direction given by the High Court on 4-2-1976 -in writ petition no. 6757 of 1974, the Prescribed Authority had, in view of its order dated 25th January, 1974, lost jurisdiction to deal with Sri Tandon's application filed on 23rd May 1973, has no substance and deserves to be rejected. 13. Learned counsel for the petitioner next argued that in writ petition no. 6757 of 1974 this Court vide its judgment dated 4th February, 1976, had purported to quash the order of the Prescribed Authority dated 3rd of January 1974. As the order dated 2nd January 1974 was never quashed neither the foundation nor the basis for the order dated 25th January 1974 had disappeared. 6757 of 1974 this Court vide its judgment dated 4th February, 1976, had purported to quash the order of the Prescribed Authority dated 3rd of January 1974. As the order dated 2nd January 1974 was never quashed neither the foundation nor the basis for the order dated 25th January 1974 had disappeared. Accordingly after the proceedings had been validly concluded on 25th January any writ issued for reconsideration of the application dated 23rd May 1973 was infructuous I am unable to accept this submission. In first place the material on the record clearly indicates that what the High Court intended to quash in that case was the order dated 2nd January 1974 which was by a clerical error is described as an order dated 3rd January 1974. The misdescription of the order in the judgment of High Court does not affect the correct position, viz, that it bad quashed the order dated 2nd January, 1974. Further after this mistake was brought to the notice of the court concerned, it has corrected the same. Accordingly, there is no escape from the submission that the order of prescribed Authority dated 2nd January 1974 has not been set aside vide the judgment of this court dated 4th February 1976 and all subsequent proceedings have remained effective and valid. 14. In the result, I find no merit in this petition and dismiss the same with costs. Interim order dated 1-9-1977 is vacated. Mufti, J. :- The facts of the case are set out in the judgment of my learned brother and need not be restated here. The short point for consideration is what is the scope and effect of the judgment dated 4.2.1976 of this court in Civil Misc. Writ No. 675 of 1974. By means of the said judgment, a Bench of this Court quashed an order dated 2nd January, 1974, of the Prescribed Authority recalling its earlier order dated 7th August, 1973, allowing an application under Section 17 of the Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, (hereinafter referred to as the Act') and directed it to reconsider the application for recalling the order dated 7th August, 1973. The controversy about the judgment has arisen due to the fact that on Ist November, 1974, when the writ petition was filed, the application under Section 21 of the Act had already been dismissed for non-prosecution on 25.1.1974 and, as no appeal was filed, the order of dismissal too had become final and conclusive between the parties. 15. There is nothing in the Act or the Rules made thereunder to indicate that an interlocutory order will continue to subsist in force even after an application under Section 21 has been disposed of and the order of disposal has become final and conclusive between the parties. Section 105 of the Civil Procedure Code enacts that an interlocutory order, which has not been appealed from, either because no appeal lay or even though an appeal lay, an appeal was not taken, can, be challenged in appeal from the final order or decree provided that it affects or is likely to affect the decision of the case. The only exception to this rule is an order of remand against which in appeal lay, yet no appeal was filed This section has not been made applicable to the proceedings under the Act. However, assuming that the principle of this Section is applicable to such proceedings, what follows is that an interlocutory order, which has not been appealed from, either because no appeal lay or even if an appeal lay, an appeal was not taken, can be challenged in an appeal from the final order passed by the prescribed Authority under Section 21 of the Act, if it affects the final decision of the case. That might suggest that an interlocutory order, which affects the final disposal of an application under Section 21 of the Act and against which no appeal has been filed, either because no appeal lay or even though an appeal lay, it was not taken, will continue to subsist in force so long as the period of limitation prescribed for filing an appeal against the final order has not expired and if an appeal has been filed, so long as the appeal remains pending. Surely, it does not mean that such an interlocutory order will continue to subsist in force even after the order of disposal has become final and conclusive, either because no appeal has been filed, or because, if filed, the appeal has been dismissed. Surely, it does not mean that such an interlocutory order will continue to subsist in force even after the order of disposal has become final and conclusive, either because no appeal has been filed, or because, if filed, the appeal has been dismissed. Accordingly, even an interlocutory order, which affects the disposal of the application under Section 21 of the Act, will cease to have any life or vigour in it and will become a dead letter after the order of disposal has become final and conclusive. In the present case the order of disposal was made on 25.1.74. It could be appealed from within thirty days, that is, upto 25 February, 1974. No appeal was ever filed. The order of disposal was allowed to become final and conclusive. Therefore, even if it were assumed that the order dated 2nd January, 1974, affected the decision of the can and, that dismissal of the appeal against it notwithstanding, it was open to opposite party no. 2 to challenge that order in appeal against the order of disposal dated 25.1.1974 still, as no appeal was preferred against the order of disposal and it was allowed to become final and conclusive, the order dated 2nd January, 1974, ceased to be a living force, as from 25th February, 1974, when the time allowed for filing an appeal against the order of disposal dated 25.1.1974 expired. Thus, on principle too, the order dated 2nd January, 1974, was a spent force on Ist November, 1974, when the writ petition was filed much more so on 4.6.1976, when the petition was decided. There was nothing left in it that could be quashed. Therefore, the writ for quashing the said order dated 2.1.1974 issued by this Court by its judgment dated 4.6.1976 was wholly infructuous. That being so, the question does not arise that, by necessary implication. the judgment must be regarded to have superseded the order dated 25.1.1974 and to have enable the Prescribed Authority to reopen the proceedings. The view of the contrary held by the Prescribed Authority in its order dated 1.8.1977 is unsustainable in law and must be quashed. 16. That being so, the question does not arise that, by necessary implication. the judgment must be regarded to have superseded the order dated 25.1.1974 and to have enable the Prescribed Authority to reopen the proceedings. The view of the contrary held by the Prescribed Authority in its order dated 1.8.1977 is unsustainable in law and must be quashed. 16. The cases of Urnan Kunwari v. Jarbandha and Haridas v. Bansidhar and Baisnab v. Parma Padhan cited in the judgment of my learned brother are distinguishable in the present case as they deal with an order of remand, which does not stand on the same footing as any other interlocutory order under Section 105 of the Code of Civil Procedure , 1908. That Section does not allow the order of remand to be challenged in an appeal from the final order or decree. The policy of the legislative is to give it finality. In any case the view expressed by me in the present case it is not in conflict with that adopted in these cases. In these cases the appeal against the order of remand had been lodged before the consequential decree had become final and conclusive between the parties and it was ruled that the decree must be deemed to be a contingent decree, in the words of Rankin C.J. in Telebali v. Abdul Aziz a subordinate independent decree, liable to be superseded by the modification or the reversal of the order of remand, which was the subject of appeal before a superior court. It is true that in the case of Uman Kunwari (supra) the appeal was filed after the consequential decree was passed but, surely so, before the decree could become final and conclusive between the parties, whereas in the cases of Haridas and Baisnab Padhan (supra) the appeal was filed even before the consequential decree was passed. Consequently the principle enunciated in these cases cannot be held to be applicable to the present case. 17. In the circumstances, stated above, with all respect, I regret my inability to agree with the judgment of my learned brother, and hold that the petition must succeed. I, therefore, allow the writ petition, set aside the order of the Prescribed Authority dated 1.8.1977, but without any order as to costs. 18. 17. In the circumstances, stated above, with all respect, I regret my inability to agree with the judgment of my learned brother, and hold that the petition must succeed. I, therefore, allow the writ petition, set aside the order of the Prescribed Authority dated 1.8.1977, but without any order as to costs. 18. As we are not agreed on the final orders to be passed in this case, we direct that the papers be laid before Hon'ble the Chief Justice for obtaining opinion of another Hon'ble Judge. Civil Misc. Writ Petition No. 1354 of 1977 J. M L Sinha, J :- This is a writ petition filed by Sardar Ali Khan and Sardar Dost Mohammad Khan (hereinafter called the petitioners) praying that the order dated 1-6-1977 passed by the Prescribed Authority, Allahabad be quashed. 20. The petition first came up for hearing before Hon'ble H. N. Seth, J. and Hon'ble Mufti J. Hon'ble H. N. Seth, J. was of the opinion that there was no merit in the petition must be dismissed. Hon'ble Mufti, J. on the contrary held that the petition should succeed and the impugned order passed by the Prescribed Authority must be quashed. It is in view of this conflict of opinion between the two brother Judges that the petition has come up before me. 21. A few facts may first be stated for proper appreciation of the matter in controversy. 22. Sri Lalji Tandon, respondent no. 2, is the owner of banglow no. 3 Circular Road, Allababad and the Union of India was the tenant thereof. On 23rd May, 1973, the respondent no. 3 moved an application under Section 21 of the U. P. Act No. XI11 of 1972 impleading Union of India as opposite party. The application was allowed on 7th August, 1973. Thereafter on 23rd August, 1973, the present petitioners along with respondent nos. 4 and 5 filed an application before the Prescribed Authority stating that they were the real tenants of the accommodation in question and since they were not impleaded as parties, the order dated 7th August, 1973 be recalled. That application was allowed vide order dated 2nd January, 1974. Aggrieved against the order dated 2nd January, 1974, the respondent no. 2 went up in appeal before the District Judge who dismissed the appeal as not maintainable vide his order dated 17th September 197 4. The respondent no. That application was allowed vide order dated 2nd January, 1974. Aggrieved against the order dated 2nd January, 1974, the respondent no. 2 went up in appeal before the District Judge who dismissed the appeal as not maintainable vide his order dated 17th September 197 4. The respondent no. 2 then filed a writ petition before this court challenging the order of the District Judge dated 17th September, 1974 as also the order dated 2nd January, 1974. The writ petition was allowed in part in as much as the order dated 2nd January, 1974 passed by the Prescribed Authority alone was set aside and the Prescribed Authority was directed to reconsider the petitioner's application dated 2nd August, 1973. In the light of observations made by this Court. By the time the matter reached back the Prescribed Authority, the application under section 21 of the U. P. Act No. XIII of 1972 had already been dismissed by the Prescribed Authority for non-prosecution vide his order dated 25th January, 1974. The respondent no. 2 did not file any appeal against the order dated 25th January, 1974. 23. In the aforesaid setting, the question that arose was whether, the order dated 25th January, 1974 could survive after the earlier order of the Prescribed Authority dated 2nd January, 1974 had been quashed by this court. 24. It may be recalled that vide order dated 7th August 1973, the Prescribed Authority had allowed the application under section 21 of the U. P. Act no. XIII of 1972 filed by the respondent no. 2. By the order dated 2nd January, 1974, the Prescribed Authority recalled the order dated 7th August, 1973. The High Court quashed the order dated 7th August, 1973, while disposing of the writ petition that was filed by the respondent no. 2. The result of the order dated 2nd January, 1974 having been quashed was that the order dated 7th August, 1973 became alive and there did not survive anything to be disposed of by the Prescribed Authority. The Prescribed Authority could resume proceedings under section 21 after 7-8-1973 only because the order dated 7-8-1973 had been recalled by the order dated 2-1-1974 otherwise the petition stood finally disposed of on 7-8-1973. Since the order dated 2nd January, 1974 was itself quashed the very basis on which the subsequent proceedings rested ceased to exist. Consequently, those proceedings must tumble to the ground. Since the order dated 2nd January, 1974 was itself quashed the very basis on which the subsequent proceedings rested ceased to exist. Consequently, those proceedings must tumble to the ground. In that view of the matter, there does not appear any escape from the conclusion that neither the proceedings that took place before 7-8-1973 nor the order dated 25th January, 1974 by which the Prescribed Authority later dismissed the application under section 21 for non-prosecution) did service after the order dated 2nd January, 1974 had been quashed by this Court. 25. Learned counsel for the petitioner urged before me that the order dated 2nd January, 1974 merged in the order dated 25th January, 1974 by which order, the application under section 21 of the U. P. Act No. X1II of 1972 was dismissed for non-prosecution. It was stressed that the order dated 2nd January, 1974 could as well be assailed in an appeal against the order dated 25th January, 1974, and the respondent no. " not having filed any appeal, that order became final. It was urged that the fact that the order dated 2nd January, 1974 has been set aside by the High Court can be of no consequence in that context. 26. I have given my careful thought to the aforesaid contention raised by the learned counsel for the petitioners but I am not at all impressed by it. It is worthy to notice that the Prescribed Authority dismissed the application under section 21 of the U.P. Act No. XIII of 1972 for non-prosecution on 25th January, 1974. According to the learned counsel for the petitioner, the order dated 2nd January, 1974 merged in the aforesaid order dated 25th January, 1974. The writ petition assailing the order dated 2nd January, 1974 was filed in the year 1974 and the writ petition was allowed on 4th February, 1976. The present petitioners were parties in that writ petition. It was therefore, open to the petitioners to contend before this Court in that writ petition (No. 6757 of 74) that the order dated 2nd January, 1974 having merged in the order dated 25th January, 1974, the petition in so far as it assailed that order had become infructuous. From the copy of the judgment rendered in the writ petition on record, I fail to find that any such contention was raised. From the copy of the judgment rendered in the writ petition on record, I fail to find that any such contention was raised. I do not think that now when this Court has quashed the order dated 2nd January, 1974 and has issued a mandamus directing the Prescribed authority to reconsider the application, that was moved by the petitioners for recalling the order dated 7th August, 1973, it is open to the petitioners to contend that the order dated 2nd January, 1974 merged In the order dated 25th January, 1974 and since the respondent no. 2 did not appeal against it, that order has become final and the mandamus issued by this Court rendered ineffective. 27. Even otherwise I see no merit in the contention raised by the learned counsel for the petitioner. It is, however, not necessary for me to dilate in that regard because it has been considered at length by Hon'ble H. N. Seth, J. and has been repelled. I agree with all that has been said by him. 28. It was no doubt urged before me that for his conclusion, Hon'ble Seth, J. relied on some decisions which did not apply to the facts of this case as they arose out of orders of remand, I however, do not think that it should make any difference so far as the principle is concerned. 29. In the above view of the matter. I find myself in agreement with the view expressed by Hon'ble Seth, J. and in my opinion too, this writ petition has no force and should be dismissed. 30. Let this opinion be placed before the Bench concerned for the disposal of the writ petition. BY THE COURT 1. For the reasons given by us in our respective Judgments dated 21-9-78 and the opinion of the third Judge dated July 27, 1978 the petition is dismissed. We, however, direct the parties to bear their own costs.