Lucknow High Court Judges have diverse say on land conversion plea [READ ORDER]

In a Judgment delivered on 26.08.2020, in Writ Petition No. 8870 of 2020 (Prayas Buildcon Pvt.Ltd. vs State Of U.P.Thru.Prin.Secy.Housing & Urban Planning & Ors.), a ‘Split Verdict” came from the Bench of Justice P.K. Jaiswal and Justice D.K. Singh. Where Justice P.K. Jaiswal allowed the Writ Petition and Justice D.K. Singh Dismissed the Petition with cost of Rs. 10 Lakhs to be deposited in the Chief Minister’s Distress Relief Fund-COVID Care Fund, U.P.

The Petitioner of the Writ Petition prayed for issuance of writ of mandamus directing the respondents to proceed with the conversion of the leasehold rights to freehold rights in respect of the property situated at Purwa Imam Baksh Mohalla Hasanganj Par, Lucknow (now Ward Nishatganj, Mohalla Baba Ka Purwa) admeasuring 75,000 sq. mts. in favour of the petitioner in accordance with the directions/order dated 17.05.2019 passed in writ petition no. 12081 of 2009 (M/B) and also direct the respondent nos. 2 and 3 to issue a Demand Letter to the petitioner forthwith, in furtherance of such conversion process, seeking deposit of the remaining 75% amount as per the valuation rates as applicable on the date of passing of order i.e. dated 20.05.2009, after duly adjusting the amount of INR 6,46,87,500/- (which already stands deposited by the petitioner with the respondents on 22.03.2007).

However after hearing parties and perusing the record the Division Bench of Lucknow High Court gave split verdict.

Judgment/Order of Justice P.K. Jaiswal:

“On due consideration of the totality of the facts and circumstances of the case, we allow the writ petition and direct the respondents to proceed forthwith with the conversion application of the petitioner, which is pending since 22.03.2007,and grant approval by passing an appropriate order of conversion of leasehold rights to freehold rights in favour of the petitioner in respect of property situated at Purwa Imam Baksh Mohalla Hasanganj Par, Lucknow (now Ward Nishatganj, Mohalla Baba Ka Purwa) admeasuring 75,000 sq. mts., within a period of thirty days and issue a demand of 75% amount as per the rate as applicable at the time of passing of the order i.e. on 20.5.2009. Thereafter, if the petitioner deposits the aforesaid balance 75% amount within next 30 days, all the formalities for conversion of the property in question from leasehold rights to freehold rights in favour of the petitioner shall be completed by the respondents in accordance with law within next thirty daysfrom the date of completion of necessary formalities by the petitioner.’’

Judgment/Order of Justice D.K. Singh:

“In view of the aforesaid discussions, I am of the view that the petitioner has misused the process of the Court; firstly by filing an application for further direction and to issue certificate for leave to appeal under Article 134 of the Constitution of India before the Supreme Court and, after exchange of pleadings, the petitioner has filed this writ petition in gross abuse of the process of the Court without pursuing the application to its logical end. The relief claimed by the petitioner in this writ petition is barred by principles of res judicata/constructive res judicata and, therefore, this writ petition is otherwise not maintainable. The petitioner has tried to pollute the stream of justice by resorting to tactical approach contrary to law by filing an application and finding the Bench inconvenient, during the pendency of the said application, the present writ petition has been filed. The relief claimed in this writ petition is over and above the relief claimed in the earlier Writ Petition No.12081 (MB) of 2009 and contrary to the decision of the Full Bench in Anand Kumar Sharma’s case (supra).

In view thereof, I dismiss this writ petition with an exemplary cost of Rs.10,00,000/- (Ten Lakhs) to be deposited in the Chief Minister’s Distress Relief Fund-COVID Care Fund, U.P. within a period of one month.”

In view of conflicting views in two judgments,  the following questions have been referred to Larger Bench:-

  1. whether the subsequent Writ Petition No.8870 (MB) of 2020 filed by the petitioner after final judgment dated 17.05.2019 passed in Writ Petition No.12081 (MB) of 2009 is an abuse of process of the Court, as before filing the Writ Petition No.8870 (MB) of 2019, the petitioner has filed Civil Misc. Application No. 87559 of 2019 for further direction and issuance of certificate for leave to appeal before the Supreme Court under Article 134 of the Constitution and during the pendency of the said application, the present writ petition has been filed?
  2. 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 17.05.2019 passed in Writ Petition No.12081 (MB) of 2009? And,
  3. 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 17.05.2019, 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.

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