# Prayas Buildcon Pvt. Ltd v. State of U.P. & Ors

- **Citation:** (2022) 8 ILRA 126
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-16
- **Case number:** Writ C No. 8870 of 2020
- **Bench:** Rajesh Bindal, C.J. Rajan Roy, Vivek Chaudhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prayas-buildcon-pvt-ltd-v-state-of-u-p-ors-48725
- **Pages:** 16

## Headnote

Mr.
Ratnesh
Chandra,
Advocate
for
respondent Nos. 2 and 3

A. Civil Law-Constitution of India, 1950Article 226-petitioner had applied for
getting certain nazul land converting into
freehold land-petitioner filed first petition
for directing the respondents to consider
the application for grant of free hold
right-
The
same
was
directed
in
accordance with the policy as is in
existence at the time of passing of the
order-respondents failed to comply the
order-A subsequent writ petition was filed
for execution of an order passed earlier by
the Court-It was held that the subsequent
writ petition was barred by principles of
res judicata/constructive res judicata,
hence,
not
maintainable-the
issue
regarding wrong rejection of the prayer of
the petitioner for conversion of leasehold
right to freehold rights was very well
considered in the earlier writ petition-The
subsequent petition is an abuse of process
of law.(Para 1 to 46)

The writ petition is disposed of. (E-6)

List of Cases cited:

## Text

_Characters 0–39,874 of 53,553. This is a partial read: ask again with offset=39874 for what follows._

126 INDIAN LAW REPORTS ALLAHABAD SERIES

(4) ..........................................

(5)...........................................

(6)...........................................

(7)...........................................

(8) Subject to the decision of the
Authority, the Chairman and the ViceChairman,
general
administration,
supervision and overall control over the
administrative
and
developmental
activities and personnel administration of
the Authority;"

11. Accordingly, Regulation 2(8) of
the aforequoted Regulations, which as
observed above, are statutory in nature
provides
that
the
Secretary
of
"Development Authority" shall exercise
powers and perform duties in relation to
general administration, supervision and
overall control over the administrative and
developmental activities.

12. The Concession Agreement in the
instant case was entered into between the
parties in relation to developing the
township which, in our considered opinion,
will be covered within the meaning of
developmental activities undertaken by the
LDA and as such the Secretary does have
the power and he is possessed with
necessary authority to issue the show cause
notice
in
relation
to
developmental
activities as he exercises not only general
administration and supervision but overall
control over the developmental activities
as well. This exercise of power, however, is
subject only to decision of the Authority or
that of the Chairman and the ViceChairman. In view of the provisions
contained in Regulation 2(8) of the
Regulations, 1983, we do not have any
ambiguity in our mind that the impugned
show cause notice cannot be termed to be
without jurisdiction.

13. For the reasons aforesaid and also
for the reasons indicated in the draft
judgment dated 10.08.2022 which is part of
this judgment as well, we are not inclined
to interfere in this writ petition which is
hereby dismissed.

14. However, we provide fifteen days
further time to the petitioner to submit its
reply to the impugned show cause notice
and make it open to the petitioner to take
all the pleas which may be available to it
under law and to furnish all such
documents on which it intends to rely.

15. It is further directed that once
reply is received within the time being
stipulated herein, the appropriate authority
of Lucknow Development Authority shall
provide opportunity of personal hearing to
the
authorized
representative
of
the
petitioner before taking final decision in the
matter.

16. Parties to bear their own costs.
----------
(2022) 8 ILRA 126
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 16.08.2022

BEFORE

THE HON'BLE RAJESH BINDAL, C.J.
THE HON'BLE RAJAN ROY, J.
THE HON'BLE VIVEK CHAUDHARY, J.

Writ C No. 8870 of 2020

Prayas Buildcon Pvt. Ltd. ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Mr. Ravi Gupta, Senior Advocate, Mr. Palash
Banerjee, Mr. Aviral Raj Singh
8 All. Prayas Buildcon Pvt. Ltd. Vs. State of U.P. & Ors.
127
Counsel for the Respondents:
Mr.
Ratnesh
Chandra,
Advocate
for
respondent Nos. 2 and 3

A. Civil Law-Constitution of India, 1950Article 226-petitioner had applied for
getting certain nazul land converting into
freehold land-petitioner filed first petition
for directing the respondents to consider
the application for grant of free hold
right-
The
same
was
directed
in
accordance with the policy as is in
existence at the time of passing of the
order-respondents failed to comply the
order-A subsequent writ petition was filed
for execution of an order passed earlier by
the Court-It was held that the subsequent
writ petition was barred by principles of
res judicata/constructive res judicata,
hence,
not
maintainable-the
issue
regarding wrong rejection of the prayer of
the petitioner for conversion of leasehold
right to freehold rights was very well
considered in the earlier writ petition-The
subsequent petition is an abuse of process
of law.(Para 1 to 46)

The writ petition is disposed of. (E-6)

List of Cases cited:

1. Anand Kumar Sharma Vs St. of U.P. & ors.
(2014) AIR Alld. 106

2. Omprakash Verma & ors. Vs St. of A.P. & ors.
(2010) 13 SCC 158

3. St. of A.P. Vs Audikesava Reddy (2002) 1 SCC
227

4. Construction Co. Vs Prabhat Mandal (1986) 1
SCC 100

5. Hoystead Vs Taxation Commr. (1926) AC 155

6. Dr. O.P. Gupta Vs St. of U.P. (2009) 4 AWC
4038
(Delivered by Hon'ble 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 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-holdrights 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
128 INDIAN LAW REPORTS ALLAHABAD SERIES
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
₹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 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
8 All. Prayas Buildcon Pvt. Ltd. Vs. State of U.P. & Ors.
129
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:

"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:
130 INDIAN LAW REPORTS ALLAHABAD SERIES

"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.

(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
8 All. Prayas Buildcon Pvt. Ltd. Vs. State of U.P. & Ors.
131
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 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:

"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
132 INDIAN LAW REPORTS ALLAHABAD SERIES
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. 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 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;
8 All. Prayas Buildcon Pvt. Ltd. Vs. State of U.P. & Ors.
133

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
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
review/modification/clarification
134 INDIAN LAW REPORTS ALLAHABAD SERIES
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 respondentsState 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 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
8 All. Prayas Buildcon Pvt. Ltd. Vs. State of U.P. & Ors.
135
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 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 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
136 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

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.
8 All. Prayas Buildcon Pvt. Ltd. Vs. State of U.P. & Ors.
137

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 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
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.