IN THE SUPREME COURT OF INDIA

CIVIL 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].

Rajendra 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.

Leave granted.

The 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.  

The  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.   

On 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.

After 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:

“The 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.  Generally, 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.  We fail 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.

More  so,  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.  The application is hereby rejected.”

Civil 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.

In this 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  Civil  Misc.  

(Recall) 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 respondents.   

In 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.  

In the 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.

The  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 impugned orders.

In the result, the appeal is dismissed.  However, the  

parties are left to bear their own costs.   

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 dismissed.

………………………..J.

(G.S. Singhvi)

………………………..J.            (H.L. Dattu)

New Delhi August 18, 2009

ITEM NO.MM 7-A              COURT NO.7             SECTION XI

           S U P R E M E   C O U R T   O F   I N D I A                          RECORD OF PROCEEDINGS I.A. No. IN                     Petition(s) for Special Leave to Appeal (Civil) No(s).6641/2007 (From the judgement 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.

CORAM :         HON'BLE MR. JUSTICE G.S. SINGHVI         HON'BLE MR. JUSTICE H.L. DATTU

For Petitioner(s) Mr. Rajiv Mehta,Adv.

For Respondent(s) Mr. R.K. Gupta, Adv.       Mr. G.V. Rao, Adv.

          UPON 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 disposed of.   

Delay in filing the special leave petition is  condoned.

Leave granted. The appeal is dismissed.  However, the parties  

are left to bear their own costs.

I.A. No. 4 is  is also dismissed in terms of the  signed order.  

 [ Charanjeet Kaur ]      Court Master  

 [ Pushap Lata Bhardwaj ]    Court Master  

[Signed order is placed on the file ]