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2012 DIGILAW 2895 (ALL)

Harijinder Singh v. State of U. P. and Others

2012-12-13

ASHOK BHUSHAN, SUNITA AGARWAL

body2012
Sunita Agarwal, J.;— Heard Sri Bijendra Singh, learned counsel for the applicant-respondent no. 5 and Sri B.B. Jauhari and Sri P.K. Srivastava, learned counsel for the writ petitioner. This is an application praying for review of the judgment and order dated 20th January, 2012 by which order after hearing learned counsel for the parties, the writ petition was disposed of. Respondent no. 5, who had appeared at the time of hearing and was heard, has come up in the application praying for review of the judgment. Learned counsel for the applicant submitted that the writ petition filed by the petitioners could not have been entertained and their claim was actually barred by principles of res judicata, since the writ petition no. 17057/1987 filed by Swarn Singh, the father of the petitioner challenging the acquisition was dismissed. It is further submitted that in the aforesaid writ petition, the writ petitioners have also specifically prayed for releasing of the land praying that their lands be excluded from the acquisition and the said prayer having been not granted, shall be deemed to have been rejected and the claim of the petitioners for releasing of the land as raised in the Writ Petition No.65428/2006 is barred by the principles of res judicata. He further submits that in Writ Petition No.3055/2005 in which the petitioners have challenged the show cause notice dated 17.12.2004 with other reliefs, was dismissed with an observation that petitioner may raise grievance before the competent authority, in view of the also the said issued of release of land could not be gone into. It is further submitted that the writ petition was barred by laches and could not have been entertained, since the petitioners have come up in the year 2005 and they have not made any application for releasing of the land at the relevant time. He submits that although Section 33 of the U.P. Awas Vikash Parishad, Act 1965 gives power to change the scheme but no prayer within the meaning of Section 33 was ever made before the Board or before the Hon'ble Court. It is submitted that the direction of this Court issued in another writ petition filed by the writ petitioner, for deciding the representation dated 16th February, 2005 shall not give any right to the petitioners to consider their claim for release of the land. It is submitted that the direction of this Court issued in another writ petition filed by the writ petitioner, for deciding the representation dated 16th February, 2005 shall not give any right to the petitioners to consider their claim for release of the land. Learned counsel for the applicant further submitted that several relevant facts which ought to have been disclosed in the writ petition were not disclosed and complete facts were not kept before this Court, hence, that is also a ground for review. Sri B.B. Jauhari, learned counsel for the writ petitioner, submitted that the writ petition is neither barred by principles of res judicata nor it is barred by principles or laches. It is submitted that all relevant facts were disclosed in the writ petition. It is further submitted that this Court having already issued a direction for deciding the representation dated 16th January, 2005 by which the petitioners' representation for release of the land was directed to be considered, it is too late to contend that the petitioners' claim is barred by limitation or laches. We have considered the submissions of learned counsel for the parties. The submission which has been much pressed by the counsel for the applicant is that by the virtue of dismissal of the writ petition on 8th September, 1988 filed by Swarn Singh, as noticed above, the claim of the petitioner for exclusion of land, is barred and cannot be considered. A copy of the judgment dated 8th September, 1988 passed in Writ Petition No.17057/1998 ( Swarn Singh Vs. State of U.P. and others) has been brought along with the review application (Annexure-13). The prayers made in the said writ petition have also been brought on record at page 118 of the review application. A copy of the judgment dated 8th September, 1988 passed in Writ Petition No.17057/1998 ( Swarn Singh Vs. State of U.P. and others) has been brought along with the review application (Annexure-13). The prayers made in the said writ petition have also been brought on record at page 118 of the review application. In the said writ petition following prayers were made: (i) To issue a writ of mandamus restraining the respondents not to dispossess the petitioner from his Plot No. 368 and his constructions and belongings existing thereon situate in village Prahlad Garhi, district Ghaziabad in consequence of the impugned notification dated 26.6.1982 and the notification under Section 32(1) of the Adhiniyam, during the pendency of this writ petition; (ii) To issue a writ of mandamus, directing the respondents to exclude the plot in dispute from the scheme in question: (iii) To issue any other suitable writ, order or direction in the nature of writ as may be considered fit and proper in the circumstances of the case: (iv) To award costs of this petition throughout to the humble petitioner, so that justice be done. The writ petition having been dismissed on 8.9.1988 the challenge to the acquisition of land under U.P. Awas Vikas Parishad was rejected. The prayer of the petitioner seeking mandamus directing the respondent to exclude the plot in question which was claimed as relief no. 2, has to be treated as not allowed when writ petition was dismissed. The learned counsel for the petitioners submits that claim cannot be treated as barred by resjudicata since the petitioners have submitted a representation on 16.2.2005 on the ground that land of similarly situated persons were released. Subsequently, it is submitted that lands of some of the writ petitioners whose case was dismissed on 8.9.1988, were released which gave a fresh cause of action to the petitioner and principles of res judicata cannot be pressed.One of the references is made to Dayanand etc. who were also writ petitioners. A copy of the release order by U.P. Awas Vikas Parishad has also been brought on record. It has been submitted that by the resolution of the Board dated 30.01.1991, the land was released. who were also writ petitioners. A copy of the release order by U.P. Awas Vikas Parishad has also been brought on record. It has been submitted that by the resolution of the Board dated 30.01.1991, the land was released. Thus the release of the land to some other tenure holders whose petitions was also dismissed subsequently, cannot be treated to have been considered in the writ petition which was dismissed in the year1988 and the petitioners' representation for release on the said ground was based on a subsequent cause of action and principles of res judicata, cannot be said to be applicable in the said fact. The submission of the learned counsel for the applicant that the claim was barred by limitation and laches also needs to be considered. It is relevant to note that when writ petition was heard by this Court and decided on 20th January, 2012 all the respondents were represented including respondent no. 5. No such arguments were raised that the writ petition deserves to be dismissed on the ground of laches and limitation. When the ground of laches and limitation was not raised and the Court was not invited on the said issues, the said cannot be treated to be a ground of review. There is no such error in the judgment on the aforesaid grounds on which the judgment can be reviewed. Suffice to say that by an earlier order of this Court passed in Writ Petition No.71083/05, the Court had directed for deciding the representation which representation was rejected by the Housing Commissioner on 18.11.2005 which order was under challenge in Writ Petition No. 65428/2006. Although learned counsel for the applicant has placed much reliance on a judgment of the Apex Court in the case of C.Jacob Vs. Director of Geology &Mining and another reported in (2008) V.10 SCC 115 where the Apex Court has observed that direction to decide the representation cannot be treated to be an order by which a cause of action,which has already died out, shall be revived. In the present case, the representation, which was submitted by the petitioner on 16.2.2005 for release of the land, was not considered, hence, the writ petitioner had come to this Court and this Court directed for deciding the representation and the said representation was based on release of the land which was subsequently made after dismissal of the first writ petition. All the earlier orders passed by this Court on the writ petitions were brought on record. There was no such concealment on the basis of which the petitioners could be said to be disentitled from the relief. In view of the aforesaid observation, we do not find any merit in the review application. The review application is rejected. _____________