Chief Justice’s Court

Serial No.301

HIGH COURT OF JUDICATURE AT ALLAHABAD

(LUCKNOW)
WRIT-C No.8870 of 2020

Pronounced on : August 16, 2022

Prayas Buildcon Pvt. Ltd. ….. Petitioner

Through : Mr. Ravi Gupta, Senior Advocate with
Mr. Palash Banerjee and Mr. Aviral Raj
Singh, Advocates
v.
State of U.P. through Principal Secretary,
Housing and Urban Planning and others …..Respondents

Through : Mr. Ratnesh Chandra, Advocate for

respondent Nos.2 and 3

CORAM : HON’BLE RAJESH BINDAL, CHIEF JUSTICE

HON’BLE RAJAN ROY, JUDGE
HON’BLE VIVEK CHAUDHARY, JUDGE

ORDER

RAJESH BINDAL, C.J.

1. On account of difference of opinion between two Judges

constituting the Division Bench and on the larger issues sought to be
raised by Dinesh Kumar Singh, J. in his opinion, the matter was directed
to be placed before the larger Bench by the then Chief Justice vide
administrative order passed on January 12, 2021.

2. The issues, on which the opinion is sought, are as under:

“i) 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 2020, the petitioner has filed Civil
Misc. Application No. 87559 of 2019 for further direction
 2 Writ-C No.8870 of 2020

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?

ii) 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,

iii) 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?”

FACTS OF THE CASE

3. Brief facts giving rise to the dispute are that the petitioner filed
present writ petition praying for a direction to the respondents to proceed
with conversion of leasehold rights to freehold rights in accordance with the
order dated May 17, 2019 passed in earlier Writ Petition No.12081 (MB) of
2009 filed by it and issue demand letter accordingly. The matter came up for
hearing before the Division Bench consisting of Pankaj Kumar Jaiswal and
Dinesh Kumar Singh, JJ. Pankaj Kumar Jaiswal, J. allowed the writ petition
and issued direction, as prayed for. Having not agreed with the views
expressed by Pankaj Kumar Jaiswal, J., Dinesh Kumar Singh, J., in his
separate order, was of the opinion that the writ petition deserved to be
dismissed, accordingly he dismissed the writ petition with exemplary cost of
 3 Writ-C No.8870 of 2020

₹10,00,000/-. He opined that in view of difference of opinion, the matter is

required to be placed before a larger Bench for consideration of the issues as
noticed above. This is how the matter is placed before this Bench.

ARGUMENTS

4. Learned counsel for the petitioner, while addressing the Court

on the issues required to be considered, admitted that earlier Writ Petition
No.12081 (MB) of 2009 was filed by the petitioner herein. However, the
reliefs prayed therein were different than those claimed in the present writ
petition. Hence, it cannot be said to be not maintainable or barred on account
of res judicata or constructive res judicata. The directions already issued by
Division Bench of this Court in the earlier writ petition filed by the
petitioner were not complied with. An application bearing Civil Misc.
Application No.87559 of 2019 filed by the petitioner seeking clarification is
also pending. However, he will not press the same, as substantive reliefs
have been claimed in the present writ petition. He further submitted that
filing of the present writ petition was in terms of legal advice available to the
petitioner. There was no effort to overreach the Court for claiming the reliefs
prayed for. The respondents were not even complying with the earlier order
passed by this Court in favour of the petitioner. He further submitted that in
case it was found that the writ petition filed by the petitioner was not
maintainable, nothing should have been stated on the merits of the
controversy and the writ petition could be dismissed as such. However, still
one of the Judge constituting the Bench has expressed opinion even on
merits of the controversy.

5. On the other hand, learned counsel for the respondents

submitted that the writ petition in question was filed concealing material
facts. The prayers made therein shows that it was merely a writ petition filed
by the petitioner praying for execution of an order passed in the earlier writ
petition, which was not maintainable. The efforts were also made to address
argument to review the earlier order. It was further submitted that earlier writ
petition filed by the petitioner was allowed in terms of the order dated May
 4 Writ-C No.8870 of 2020

23, 2008 passed by the Division Bench of this Court in Writ Petition
No.9360 (MB) of 2007 and the ratio laid down in Full Bench judgment of
this Court in Anand Kumar Sharma v. State of U.P. and others, AIR
2014 Allahabad 106. In case, anyone was aggrieved, he could have availed
of his appropriate remedy. In the case in hand, the effort of the petitioner was
to mislead the Court. Firstly, an application was filed by the petitioner for
clarification of the order. Prayer was also made therein for grant of leave to
file appeal before Hon’ble the Supreme Court. However, during the
pendency thereof, the present writ petition was filed.

6. Heard learned counsel for the parties and perused the paper
book.

QUESTION NO.I

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?

7. The facts of the case are that the petitioner had applied for
getting certain nazul land converting into freehold land. The said application
was rejected by the Vice-Chairman, Lucknow Development authority,
Lucknow by his order dated May 20, 2009, which was communicated by the
Nazul Officer by his letter dated October 1, 2009. Challenging the same, the
petitioner earlier filed Writ Petition No.12081 (MB) of 2009 with the
following prayers:
 5 Writ-C No.8870 of 2020

“i) Issue an appropriate Writ, direction or order in the nature

of certiorari quashing the impugned order dated 20.05.2009
passed by the Vice Chairman, Lucknow Development
Authority, the Opposite Party No.3 as conveyed through the
letter dated 01.10.2009 after summoning the original in this
Hon’ble Court.

ii) Issue appropriate Writ, Order or direction in the nature of

mandamus directing the Opposite Parties more particularly, the
State of Uttar Pradesh, the Opposite Party No.1, the Vice
Chairman, Lucknow Development Authority, Opposite party
No.3 and the Nazul Officer, Lucknow Development Authority,
Lucknhow the Opposite Party No.2 to perform their statutory
obligations so as to proceed and complete the process of
conversion of lease hold rights in respect of the land in question
into free hold in favour of the Petitioner by requiring the
Petitioner to deposit the balance amount within such day and
time to be fixed after indicating it through demand letter and
complete it by the execution and registration of free hold Deed
in respect of the same in favour of the Petitioner according to
law and as per policy within a time framed to be fixed by this
Hon’ble Court.

iii) Issue appropriate Writ, order or direction including in the

nature of mandamus commanding the Opposite parties for not
to interfere in the peaceful possession and enjoyment of the
land in question as mentioned in Paragraphs No.1 to 3 above of
the Petition or dispossessing the Petitioner therefrom by acting
illegally or pursuant to the impugned action as contained in
Paragraph Nos.15 to 18 of the Writ Petition.”

8. The aforesaid writ petition was allowed vide judgment dated

May 17, 2019. The operative part of the order reads as under:
 6 Writ-C No.8870 of 2020

“39. For the above-mentioned reasons the orders dated

20.05.2009 and 01.10.2009 are quashed. The respondents no. 2
and 3 shall proceed for conversion of property to freehold
expeditiously in accordance with law in term of the order dated
23.05.2018 passed in Writ Petition No.9360 (MB) of 2007 and
the ratio laid down by Full Bench in the case of Anand Kumar
Sharma Vs. State of U.P. and others (Supra).”

9. A perusal of the aforesaid direction issued by the Division

Bench of this Court in the earlier writ petition filed by the petitioner shows
that needful was to be done in terms of the order dated May 23, 2008 passed
by the Division Bench of this Court in Writ Petition No.9360 (MB) of 2007
and the ratio laid down in Full Bench judgment of this Court in Anand
Kumar Sharma’s case (supra). The relevant date for calculation of the
commercial charges is well settled. In Anand Kumar Sharma’s case
(supra), the issue under consideration before the Full Bench of this Court
was whether an application filed for conversion from nazul land to freehold
land was required to be considered in accordance with the policy of the
Government as was in existence on the date of application or when the same
was being decided. The Full Bench answered that the application was
required to be considered in accordance with the policy as is in existence at
the time of passing of the order. Para 47 of the Full Bench judgement is
reproduced as under:

“In view of the foregoing discussions, our answer to the

abovenoted two questions are:

(1) The application of the petitioner dated 25/7/2005

submitted for grant of free hold right on the basis of the
Government Orders dated 01/12/1998 and 10/12/2002
was entitled to be considered in accordance with the
government's policy as was in existence at the time of
passing of the order. The Government Order dated
04/8/2006 was rightly relied on by the Collector while
rejecting the application on 18/12/2006.
 7 Writ-C No.8870 of 2020

(2) The Division Bench judgment in Dr. O.P. Gupta's

case (supra) does not lay down the correct law insofar as
it holds that the application for grant of freehold right is
to be considered as per the government policy as was in
existence on the date of making application for grant of
freehold right.” (emphasis supplied)

10. Against the aforesaid order, Lucknow Development Authority

filed Special Leave Petition (Civil) Diary No.34417 of 2019 before the
Supreme Court titled as Lucknow Development Authority and another v.
Prayas Buildcon (P) Ltd. and another. The same was dismissed vide order
dated October 25, 2019.

11. The petitioner though did not prefer any Special Leave Petition
against the judgment of this Court dated May 17, 2019, but filed Civil Misc.
Application No.87559 of 2019 praying for the following reliefs :

“(A) Direct the Respondent no.2/3 to issue Demand

Letter specifying therein the balance amount payable towards
conversion after adjusting the deposit of sum of
Rs.6,46,87,500/-, as per the valuation as of 20.05.2009 for the
land falling in Purwa Imam Baksh Mohalla Hasanganj Par,
Lucknow (now ward Nishatganj), Mohalla Baba Ka Purwa)
within such time as this Hon’ble Court may deem just and
necessary.

(B) Issue a certificate under Article 134A of the

Constitution read with Article 133(1) of the Constitution by
invoking power and jurisdiction conferred by the Constitution
granting leave to appeal before the Hon’ble Supreme Court on
the aforesaid substantial question of law of general importance
stated in Para 5 of the accompanying affidavit.”

12. A perusal of the aforesaid prayers shows that direction was

sought to respondent Nos.2 and 3 to issue demand letter as per the amount
 8 Writ-C No.8870 of 2020

calculated by the petitioner taking the date as May 20, 2009 and further for
grant of leave under Article 134A of the Constitution of India read with
Article 133(1) thereof to file appeal before Hon’ble the Supreme Court. The
aforesaid prayers are self-contradictory as the petitioner on the one hand, has
shown his desire to challenge the aforesaid judgment while on the other
hand, he is asking for depositing of amount in furtherance of the said
judgment. The aforesaid prayers were totally in contradiction to the reliefs
granted to the petitioner in the earlier writ petition, which was decided in
terms of Full Bench Judgment of this Court in Anand Kumar Sharma’s
case (supra). In terms thereof, the charges are to be calculated as applicable
on the date of decision on the application. Though at the time of hearing,
learned counsel for the petitioner submitted that the petitioner does not wish
to press the aforesaid application, however, we are not entering into that
controversy. We have to decide the issues referred to us.

13. The stand taken by the Lucknow Development Authority to the

aforesaid application was that under the garb of aforesaid application, in
fact, the petitioner was seeking review of the order dated May 17, 2019,
whereby the earlier writ petition filed by the petitioner was decided in terms
of law laid down by the Full Bench of this Court in Anand Kumar
Sharma’s case (supra).

14. The aforesaid application was taken up for hearing on August

22, 2019 and in absence of the counsel for the applicant as well Lucknow
Development Authority, the hearing of the application was adjourned.
Subsequent order passed by this Court on October 17, 2019 records the
statement made by the learned counsel appearing for the LDA that a Special
Leave Petition against the judgment of this Court dated May 17, 2019 was
filed and is likely to be listed. The application was directed to be listed after
four weeks. Subsequently, when the application was listed on February 14,
2020, the same was again adjourned.

15. During the pendency of the aforesaid application, the petitioner

preferred the present writ petition praying for the following reliefs:
 9 Writ-C No.8870 of 2020

“A. Issue a Writ, order or direction in the nature of

Mandamus, directing the Respondents to proceed forthwith,
with the conversion of the concerned property situated at Purwa
Imam Baksh Mohalla Hasanganj Par, Lucknow (now Ward
Nishatganj, Mohalla Baba ka Purwa) admeasuring 75,000
sq.mts. from leasehold to freehold in favour of the Petitioner in
a time bound manner in accordance with the spirit and
directions as enumerated by this Hon’ble Court in its Final
Order and Judgment dated 17.05.2019 passed in W.P. No.12081
(MB) of 2009;

B. Issue a Writ, order or direction in the nature of

Mandamus, directing the Respondents 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 20.05.2009, after: (i) duly
adjusting/ deducting the amount of INR 6,46,87,500/- (which
already stands deposited by the Petitioner with the
Respondents), and also (ii) duly adjusting/ deducting interest on
the amount of INR 6,46,87,500/- (to be calculated from the date
of deposit until the date of raising the Demand Letter).”

16. The grounds as raised by the petitioner for claiming the reliefs
prayed for in the present writ petition are quite relevant. To put the record
straight and appreciate the arguments, we deem it appropriate to reproduce
the grounds as under:

“A. Because the Respondent Authorities have failed to

act in accordance with the Final Order and Judgment dated
17.05.2019 passed by this Hon'ble Court in W.P. No. 12081
(MB) of 2009 which directed the Respondents to expeditiously
proceed with the completion of conversion of property from
leasehold to freehold;

B. Because the Respondent Authorities are bound by

the ratio of this Hon'ble Court in Anand Sharma v. State of U.P.
 10 Writ-C No.8870 of 2020

Thru Principal Secretary & Ors [AIR 2014 Allahabad 106]

which clearly provides that an application for grant of freehold
right must be considered in accordance with the Government's
policy as was in existence on the date of passing the order in
that regard;

C. Because the Respondent Authorities are barred

from revisiting the issue of determining the rate at which
demand letter must be issued especially when a part payment of
INR 6,46,87,500/- was already made by the Petitioner and duly
admitted by the Respondents in the year 2007;

D. Because the Respondent authorities have been

adopting dilatory tactics to circumvent and not fulfil their
obligations as per the Final Order and Judgment dated
17.05.2019 passed by this Hon'ble Court;

E. Because the Respondent Authorities' blatant

disregard for Final Order and Judgment dated 17.05.2019
passed by this Hon'ble Court, a contemptuous act and should be
severely punished;

F. Because the Respondent Authorities are public

institutions performing functions of public importance. Their
blatant disregard for complying with the Final Order and
Judgment dated 17.05.2019 passed by this Hon'ble Court is
causing severe prejudice to the Petitioner and hampering the
progress of the proposed construction activities to be
undertaken by the Petitioner;

G. Because the actions of the Respondent Authorities

are causing severe financial hardship to the Petitioner as it is
impeded from proceeding with the construction activities;

H. Because the Petitioner is required to pay the

remaining deposit of 75% in relation to the conversion process
in accordance with the applicable valuation rates as prevalent
 11 Writ-C No.8870 of 2020

2009, which is the relevant date as far as the final order in W.P.
No. 12081 (MB) of 2009 is concerned;

I. Because the Petitioner is required to comply with

the ratio of a Full Bench of this Hon'ble Court in Anand Sharma
v. State of U.P Thru Principal Secretary & Ors [AIR 2014
Allahabad 106], in keeping with principles of judicial propriety;

J. Because the Petitioner is a bona fide and law

abiding builder who has deposited a sum of INR 6,46,87,500/-
with the Respondent Authorities since 2007 in order to seek the
requisite conversion of property from leasehold to freehold;

K. Because the above mentioned sum of INR

6,46,87,500/- was deposited by the Petitioner with the
Respondent authorities in 2007. However, despite passage of
over 13 years, the Petitioner has not been granted the requisite
approval;

L. Because the Respondent authorities being public

functionaries have abdicated their responsibility by delaying the
process of completing the conversion process so as to enable
the Petitioner to undertake the desired construction;

M. Because the Respondent Authorities perform a

public function and are amenable to the Writ jurisdiction of this
Hon'ble Court under Article 226 of Constitution of India.”

17. A perusal of the aforesaid grounds clearly shows that the

present writ petition was filed raising a grievance that order passed by this
Court in earlier writ petition on May 17, 2019 has not been complied with,
which is causing great prejudice to the petitioner. It further claims inaction
on the part of the authorities is nothing else but contemptuous, for which
they need to be punished. It is worthwhile to note that before the present writ
petition was filed, an application bearing C.M. Application No.87559 of
2019 was already filed by the petitioner in the earlier writ petition praying
for the same relief as Prayer No.B in the present writ petition while also
 12 Writ-C No.8870 of 2020

seeking certificate to challenge the judgment of the earlier writ petition in

SLP.

18. To appreciate the issues required to be considered, firstly, we

need to go into little detail of the pleadings and the reliefs prayed for in both
the writ petitions.

19. The perusal of the relief (A), as claimed in the application,

shows that it was nothing else but seeking review of the earlier order
wherein the direction was issued for calculation of conversion charges. For
dealing with the application filed by the petitioner for conversion of the
property to freehold in terms of Full Bench judgment of this Court in Anand
Kumar Sharma’s case (supra), the conversion charges are payable as on
the date of decision on the application. Hence, the claim of the petitioner that
for valuation, the date should be taken as May 20, 2009, was in
contravention to the direction already issued in the writ petition.

20. A perusal of two prayers made in the writ petition in question

shows that the first one is for a direction to the respondents to proceed with
the conversion of property as freehold in a time bound manner in terms of
direction issued by this Court on May 17, 2019 in the earlier Writ Petition
No.12081 of 2009. Second prayer is for a direction to the respondents to
issue demand letter in furtherance of such conversion process as per
valuation rate applicable on May 20, 2009, after adjusting the amount
already deposited by the petitioner along with interest thereon. Second
prayer was nothing else but was in continuation of first prayer made in the
writ petition which substantively is for execution of the order passed in
favour of the petitioner in the earlier writ petition filed by it. But again
seeking calculation of conversion charges as applicable on the date of filing
of application.

21. At this stage, reference can be made to an order passed by this

Court on August 9, 2019 on C.M. Application No.87559 of 2019 filed in
Writ Petition No.12081 of 2009, in which the stand of the learned counsel
for the applicant (petitioner herein) was that he was not seeking
 13 Writ-C No.8870 of 2020

review/modification/clarification of the order dated May 17, 2019 disposing

of the earlier writ petition finally rather submission was made that despite
specific direction the matter had still not been decided by the Lucknow
Development Authority. The aforesaid order dated August 9, 2019 is
reproduced below:

“Heard Sri Sujay Kantawala alongwith Sri Ritwick Rai,

learned Counsel for the applicants/petitioners, Sri Pradeep Raje,
learned Counsel for the respondents-State and Sri Shobhit
Mohan Shukla, learned Counsel for respondent Nos.2 and 3.

Objection filed by the Lucknow Development Authority

is taken on record.

Sri Sujay Kantawala, learned counsel for the

applicants/petitioners has submitted that he is not seeking any
review/modification/clarification of the order dated 17.5.2019
passed by this Bench. However, he has submitted that in spite
of specific direction given in para - 39 of the order, till date the
matter has not been decided nor any demand has been issued by
the respondents-Lucknow Development Authority.

Sri Shobhit Mohan Shukla, learned Counsel for Lucknow

Development Authority prays for and is granted ten days' time
to take instructions in the matter.

List on 22.8.2019.”

22. Another fact which transpired at the time of hearing is that a

review application filed by the Lucknow Development Authority against the
order dated May 17, 2019 passed in the earlier writ petition filed by the
petitioner is still pending.

23. From the perusal of aforesaid reliefs claimed in the present writ
petition filed by the petitioner, it is evident that the same are nothing but an
attempt for review earlier judgment of this Court dated 17.05.2019 in the
garb of seeking implementation of the order passed by this Court in favour
 14 Writ-C No.8870 of 2020

of the petitioner while at the same time, an application seeking a certificate

for leave to appeal was kept pending.

24. From the facts as noticed above and the pleadings in the earlier
writ petition, application and the present writ petition filed by the petitioner,
it is clear that filing of the present writ petition is nothing else but an abuse
of process of the Court. Earlier writ petition was filed by the petitioner
challenging the order dated May 20, 2009 and communication dated October
1, 2009 from the LDA vide which the claim of the petitioner for conversion
of leasehold right to freehold rights was rejected. It was pleaded in the
earlier writ petition that the petitioner had deposited a sum of ₹6,46,87,500/-
on the basis of self assessment. Considering the issues raised by the parties,
the earlier writ petition was allowed vide order dated May 17, 2019. The
order dated May 20, 2009 and communication dated October 1, 2009 were
set aside and a direction was issued to the LDA for proceeding afresh for
conversion of property to freehold rights, expeditiously in terms of the ratio
laid down by the Full Bench in Anand Kumar Sharma’s case (supra).

25. No issue was raised by the petitioner that the direction was not
time bound, however, the fact remains that for issuance of further direction
subsequent to the order passed by this Court in the earlier writ petition, the
petitioner filed a Civil Misc Application No.87559 of 2019 praying that the
LDA be directed to issue demand letter specifying the balance amount
payable for conversion, after adjusting the amount already deposited by the
petitioner as per valuation as on May 20, 2009. Another prayer was for
issuance of a certificate under Article 134A read with Article 133(1) of the
Constitution of India for grant of leave to appeal before Hon’ble the
Supreme Court for decision on substantial question of law of general
importance as stated in para 7 of the affidavit accompanying the application.
The aforesaid para 7 reads as under :-

“7. That the petitioner-applicant submits that while the

amount computed as payable would be deposited (under
protest) as per the Demand Letter towards conversion as per the
valuation as of 20.05.2009, the petitioner-applicant would like
 15 Writ-C No.8870 of 2020

to seek leave to appeal for approaching the Hon’ble Supreme

Court on the aforesaid substantial question of law of general
importance, and prays for issuance of a certificate under Article
134A read with Article 133(1) of the Constitution by invoking
power and jurisdiction conferred upon this Hon’ble Court by
the Constitution.”

26. The fact remains that application seeking Leave to Appeal to

Hon’ble the Supreme Court was filed by the petitioner just for the sake of it,
as neither the petitioner took steps to file any application for leave to appeal
before Hon’ble the Supreme Court, in case the application was not being
decided nor it took any steps to raise an issue when the Special Leave
Petition filed by the Lucknow Development Authority was listed on October
25, 2019. It is evident from the record that the petitioner was well aware of
the fact that the Lucknow Development Authority had filed Special Leave
Petition before Hon’ble the Supreme Court, which was likely to be listed
and the same was listed and was dismissed on October 25, 2019.

27. As far as prayer (A) of the application is concerned, the same is

in two parts. Firstly, for issuance of a demand letter for payment of balance
conversion charges after adjusting the amount already paid as per the
valuation as on May 20, 2009 and secondly for completing the aforesaid
process within such time as the Court may deem just and necessary. As far as
second part of the prayer (A) is concerned, in our opinion, an application
could be filed as in the order passed by this Court in earlier writ petition
filed by the petitioner, time bound direction was not there. Hence, the
petitioner could have sought further direction to make the authority time
bound for compliance. However, as far as first part of the prayer (A) is
concerned, regarding the valuation as on May 20, 2009, it was nothing else
but seeking further relief which was either claimed in the earlier writ petition
or deemed to be rejected as the same was available to the petitioner but was
not claimed. In anyway, it was a review of the earlier order passed by this
Court. The prayer to that extent was totally misconceived. However, during
the course of hearing of the aforesaid application on August 9, 2019, a
 16 Writ-C No.8870 of 2020

specific stand was taken by the petitioner itself that it is not seeking review
of the earlier order passed by this Court.

28. As far as prayer (B) in the application is concerned, in our

opinion, the same was nothing but misjoinder of reliefs claimed in the
application. The first relief claimed in the application was for compliance of
the earlier order passed by this Court in the earlier writ petition filed by the
petitioner whereas the second was for grant of a certificate to file an appeal
before Hon’ble the Supreme Court, as if the petitioner was not satisfied with
the judgment. The aforesaid application was filed on July 30, 2019.

29. A bare perusal of Article 134A of the Constitution provides that

a certificate of appeal can be granted by the High Court while deciding the
case either on its own motion or on an oral application filed by the party
aggrieved, immediately after passing or making of such judgment, decree
and final order or sentence. Certification by the High Court has to be in
terms of Article 133(1) of the Constitution that the case involves substantial
question of law as to the interpretation of the Constitution. In the alternate,
Supreme Court has been empowered under Article 136 of the Constitution to
grant Special Leave to Appeal from a judgment, decree, determination,
sentence or order passed by any Court or Tribunal in the territory of India.

30. Firstly, as per the plain language of Article 134-A of the

Constitution, such a prayer has to be made immediately after the judgment is
pronounced. In the case in hand, it is not the case of the petitioner that any
such prayer was made. It was nearly two months after delivery of the
judgment that in the present application such a prayer was made which
otherwise was also totally misconceived if seen in the light of the issue
sought to be raised as referred to in para 7 of the application. A perusal of the
para 7 of the affidavit accompanying the aforesaid application, as already
reproduced above in paragraph No.25, does not show that the same are
issues of general importance, rather it is merely with reference to
compliance of earlier order or having relation with the first prayer made in
the application.
 17 Writ-C No.8870 of 2020

31. It is a fact that the aforesaid application was still pending when
the present petition was filed. It was listed on several occasions on August 9,
August 22, October 14 and October 17, 2019 and was last listed on February
14, 2020. It is not the case of the petitioner that any effort was made by it to
get the same listed expeditiously.

32. Now coming to the present petition, during pendency of the

application seeking further direction in the earlier writ petition filed by the
petitioner after final disposal thereof, the present writ petition was filed. The
prayers made therein have already been extracted in para no.15 of the
present order. The first relief claimed is simplicitor for a direction to the
respondents to proceed with conversion of leasehold rights to free hold
rights of the land in question in terms of the order dated May 17, 2019
passed by this Court in the earlier writ petition bearing Writ Petition
No.12081 (MB) of 2009 filed by the petitioner. It was for execution of the
order passed by this Court in the earlier writ petition. The second prayer was
in furtherance to the first prayer stating that the calculation of the conversion
charges be made as per the rates applicable on May 20, 2009 and demand
letter be issued after adjusting the amount already deposited by the
petitioner. Both the prayers are nothing else but are in terms of the prayer
(A) made by the petitioner in the aforesaid application, which was already
pending consideration before this Court, when the writ petition in question
was filed.

33. In the light of aforesaid facts, in our opinion, first question

needs to be answered in positive by holding that filing of the present writ
petition was an abuse of process of Court, when an application seeking same
prayer, namely, for further direction in terms of order passed by this Court
in earlier petition filed by the petitioner on July 30, 2019, was already
pending consideration and the issue was drawing attention.

QUESTION NO.II

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
 18 Writ-C No.8870 of 2020

judgment and order dated 17.05.2019 passed in Writ

Petition No.12081 (MB) of 2009?

34. A perusal of prayer (A) made in the writ petition in question

shows that it was for a direction to the respondents to proceed with the
conversion of property from leasehold to freehold in terms of earlier order
passed by this Court on May 17, 2019 in the earlier writ petition filed by the
petitioner. The same can be termed to be in the form of execution of earlier
order passed by this Court.

35. Here, we are faced with a situation where no remedy as such

has been provided in case the order passed by the Writ Court or an appeal
arising therefrom is not complied with. Though, the aggrieved person can
file an application for initiating contempt proceedings against the guilty
person, however, that cannot be said to be a remedy for execution of the
order as in the contempt proceedings, which are quasi criminal in nature for
non compliance of any order, the person guilty can be punished with
imprisonment and/or fine. The person in whose favour order has been passed
cannot be left remediless, in case the same is not complied with in its true
letter and spirit. He cannot be deprived of the fruits of litigation. In the
circumstances, in our view, a writ petition seeking a direction to the
authority concerned for compliance of the earlier order may be maintainable.
In case, any alternative remedy is provided that may or may not be a
complete bar for entertainment of such a writ petition in view of the settled
position of law. In the case in hand, the fact remains that in Rule 11 of
Chapter XXII of the High Court Rules, execution is provided only for
recovery of cost and not for any substantive relief granted to the party
concerned. The same is extracted below:

“11. Transmission of order of costs for execution.- Where

costs have been awarded by the Court in a Writ Petition or in a
special appeal from an order passed on a writ petition, but have
not been paid the person entitled to them may apply to the
Court for execution of the order. The application shall be
accompanied by an affidavit stating the amount of costs
 19 Writ-C No.8870 of 2020

awarded and the amount remaining unpaid. The Court may

direct the order to be send to the District Court of the district in
which the order is to be executed. The order may be executed
by such Court as it is a decree for costs passed by itself or be
transferred for execution to any subordinate Court.”

36. The aforesaid issue has relation with the first prayer made in the
present writ petition, which has already been extracted in para 15 of the
judgment. In terms thereof, a direction is sought to be issued to the
respondents to comply with the judgment of this Court passed in the case of
the petitioner on May 17, 2019 in the earlier writ petition filed by the
petitioner. As already discussed above in para 35, though a fresh writ
petition praying for execution of earlier order passed by Writ Court or
special appeal arising therefrom may be maintainable, however, in the case
in hand the fact remains that an application filed by the petitioner bearing
C.M. Application No.87559 of 2019 in the earlier writ petition seeking
further direction in the aforesaid case was already pending when the present
writ petition was filed praying for execution of earlier order passed by this
Court in earlier writ petition in favour of the petitioner.

37. From a perusal of the order passed on August 9, 2019 in the

C.M. Application No.87559 of 2019, it is evident that the matter with regard
to compliance of the order dated May 17, 2019 passed by Writ Court in
favour of the petitioner was being considered by this Court, hence, the
question needs to be answered in negative holding that the writ petition was
not maintainable in the facts and circumstances of the case in hand.

QUESTION NO.III

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
 20 Writ-C No.8870 of 2020

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.

38. The principle of res judicata was considered by Hon’ble the

Supreme Court in Omprakash Verma and others v. State of A.P. and
others, (2010) 13 SCC 158 and it was opined that no litigant can be
permitted to file any subsequent litigation or raise any issue which could
have been raised in the earlier writ petition and adjudication is conclusive
and binding not only as to the actual matter determined but as to every other
matter which the parties might and ought to have litigated. Paras 75-77
thereof are extracted below:

“75. As pointed out by the learned Attorney General,

the matter can be looked at from another angle. The
proceedings in the instant case are barred by the principle of
constructive res judicata. The validity of the ULC Act was
squarely in issue. The effect of allowing the State appeals in
State of A.P. v. N. Audikesava Reddy, (2002) 1 SCC 227 is that
all contentions which parties might and ought to have litigated
in the previous litigation cannot be permitted to be raised in
subsequent litigations.

76. In forward Construction Co. v. Prabhat Mandal,

(1986) 1 SCC 100 this Court held that an adjudication is
conclusive and binding not only as to the actual matter
determined but as to every other matter which the parties might
and ought to have litigated and have had it decided. The
following portion of the judgement is relevant which reads as
under: (SCC p. 112, para 20)

“20. So far as the first reason is concerned, the High

Court in our opinion was not right in holding that the
earlier judgment would not operate as res judicata as one
 21 Writ-C No.8870 of 2020

of the grounds taken in the present petition was

conspicuous by its absence in the earlier petition.
Explanation IV to Section 11 CPC provides that any
matter which might and ought to have been made ground
of defence or attack in such former suit shall be deemed
to have been a matter directly and substantially in issue
in such suit. An adjudication is conclusive and final not
only as to the actual matter determined but as to every
other matter which the parties might and ought to have
litigated and have had it decided as incidental to or
essentially connected with the subject-matter of the
litigation and every matter coming within the legitimate
purview of the original action both in respect of the
matter of claim or defence. The principle underlying
Explanation IV is that where the parties have had an
opportunity of controverting a matter that should be
taken to be the same thing as if the matter had been
actually controverted and decided. It is true that where a
matter has been constructively in issue it cannot be said
to have been actually head and decided. It could only be
deemed to have been heard and decided.”

77. In Hoystead v. Taxation Commr.:1926 AC 155 the

Privy Council observed : (AC pp. 165-66)

“..... Parties are not permitted to begin fresh

litigations because of new views that they may
entertain of the law of the case, or new versions
which they present as to what should be a proper
apprehension by the court of the legal result either
of the construction of the documents or the wieght
of certain circumstances. If this were permitted,
ligation would have no end, except when legal
ingenuity is exhausted. It is principle of law that
 22 Writ-C No.8870 of 2020

this cannot be permitted, and there is abundant

authority reiterating that principle.”

39. Rule 7 of Chapter XXII of the Allahabad High Court Rules,

1952 (hereinafter referred to as ‘the Rules’) provides that no second
application is maintainable on the same facts. The same reads as under :

“7. No second application on same facts.- Where an

application has been rejected, it shall not be competent for the
applicant to make a second application on the same facts.”

40. A perusal of para 3.10 of the present writ petition shows that the
grievance raised by the petitioner was that the application filed by it in
earlier writ petition seeking further direction had not been listed. Further
pleadings in the writ petition in question show that the the grievance was
sought to be raised regarding illegal rejection of the application filed by the
petitioner for conversion of leasehold rights to freehold rights in the year
2009, which was subject matter of consideration before this Court in the
earlier writ petition filed by it and had been adjudicated upon. The issue
sought to be raised in the writ petition in question is that the conversion
charges are required to be calculated in terms of the policy of the
Government as was in existence in the year 2009 when the order dated
October 1, 2009 was passed, which was subject matter of challenge before
this Court in earlier writ petition and was set aside. The aforesaid issue was
available and could have very well been raised by the petitioner in the earlier
writ petition but there is nothing on record pointed out by the petitioner that
the same was raised. In absence thereof, it shall be deemed to be raised and
rejected.

41. Issue regarding wrong rejection of the prayer of the petitioner

for conversion of leasehold right to freehold rights in the year 2009 was very
well considered in the earlier writ petition filed by the petitioner and the
same stood adjudicated upon with the setting aside of the order dated May
20, 2009 and communication dated October 1, 2009, vide order dated May
17, 2019 and the matter was remitted to the authority concerned for passing
 23 Writ-C No.8870 of 2020

fresh order. Hence, the same could not possibly be raised in the present writ
petition.

42. Lot of stress is sought to be laid by the petitioner regarding

deposit of sum of ₹6,46,87,500/- claimed to be 25% of the total conversion
fee, however, the fact remains, as is evident from para 6 of the earlier writ
petition, that it was deposited by the petitioner on its own, after self
assessment of the amount to be deposited. There was no direction or demand
notice issued by the authority concerned.

43. The issue raised in the present question has relation with the
second prayer made in the present writ petition filed by the petitioner, which
is in continuance of the first prayer where the relief claimed is for execution
of an earlier order dated May 17, 2019 passed by this Court in earlier writ
petition filed by the petitioner. The only addition being that the calculation
of conversion charges be made as per the rates applicable on May 20, 2009.

44. A perusal of the prayers made in the present writ petition filed
by the petitioner shows that direction was sought for issuance of a demand
letter for payment of balance amount of conversion fee within such time as
may be indicated in the demand letter. It was further mentioned therein that
it should be in accordance with law and the policy applicable. At the time the
petitioner filed the earlier writ petition, the judgment of this Court in
Dr. O.P. Gupta vs. State of U.P., (2009) 4 AWC 4038 was prevalent in
terms of which the policy prevalent at the time when a party applies for
conversion of land to freehold was to be applicable. As the Bench hearing
the writ petition in Anand Kumar Sharma’s case (supra) had reservation
about the view expressed in Dr. O.P. Gupta’s case (supra), the matter was
referred for consideration by a larger Bench. The issue was considered by
the Full Bench in Anand Kumar Sharma’s case (supra) vide judgment
dated February 13, 2014 answering the question referred that the prayer for
conversion for grant of freehold rights is to be considered in accordance with
the policy in existence at the time of passing of the order. Earlier writ
petition filed by the petitioner was disposed of on May 17, 2019, specifically
noticing the aforesaid Full Bench judgment of this Court, but still there is
 24 Writ-C No.8870 of 2020

nothing evident from the arguments addressed that the petitioner ever
thought of raising the issue regarding the cut off date in terms of which the
conversion charges are to be calculated, though such plea was available to
the petitioner at that juncture.

45. Therefore, the question needs to be answered in positive

holding that the Writ-C No.8870 of 2020 is barred by principle of res
judicata/constructive res judicata.

ANSWERS TO QUESTIONS

46. Question No.I is answered in positive holding that filing of the

present writ petition was an abuse of process of Court.

Question No.II – Though a writ petition can be entertained for

execution of an order passed earlier by the Court, however, the
writ petition filed by the petitioner in the facts and
circumstances of the case was not maintainable.

Question No.III is answered in positive holding that present

writ petition filed by the petitioner was barred by principles of
res judicata/ constructive res judicata.

47. While answering the questions referred to by the larger Bench,

let the present writ petition be now placed before the Division Bench as per
roster on August 29, 2022.

(Vivek Chaudhary, J.) (Rajan Roy, J.) (Rajesh Bindal, C.J.)

Lucknow
16.08.2022
Kuldeep

Whether the order is speaking : Yes/No

Whether the order is reportable :Yes

Digitally signed by KULDEEP SINGH

Date: 2022.08.17 18:54:41 IST
Reason:
Location: High Court of Judicature at
Allahabad, Lucknow Bench