Mysore Urban Development Authority Vs. K.M. Chikkathayamma and Ors. - (Supreme Court) (07 Sep 2018)

Legality of impugned order cannot be examined on basis of acts done by parties subsequent to passing of impugned order

MANU/SC/0951/2018

Land Acquisition

Petitions are against the final judgment passed by the High Court whereby the High Court dismissed the appeals filed by the Appellant herein. The short question, which arises for consideration in these appeals, is whether the Division Bench was right in dismissing the appeals "as not pressed".

Supreme Court is of opinion that, Division Bench should have decided the appeals on merits in accordance with law. On perusal of the resolution dated 2nd July, 2016, Government letter dated 26th June, 2018 and the letter dated 14th November, 2017 of the Commissioner and further keeping in view the relevant provisions of the Karnataka Urban Development Authorities Act, 1987, Supreme Court is of the view that the appeals filed by the Mysore Urban Development Authority (MUDA) could not have been dismissed "as not pressed".

Neither there was any express prayer made by the MUDA and nor it could be inferred from the document relied on by the Division Bench at the instance of Respondents (writ Petitioners) for forming an opinion "not to press the appeal". In other words, the opinion formed by the High Court for dismissing the appeals "as not pressed" had no basis. Such dismissal, certainly deprived the MUDA of their right to prosecute the appeals on merits.

A right of appeal is a valuable right of a litigant. He is entitled to prosecute this right as it enables him to seek adjudication of the issues on merits, which are subject matter of the appeal by the Appellate Court. He can, however, forgo such right but it has to be done with express authority and free will. The Respondents, however, cannot compel the Appellant to give up the right of prosecuting the appeal unless the Respondents are able to show any express provision in law in that behalf or valid reasons acceptable in law which deprive the Appellant from prosecuting his grievance in appeal.

If the Appellant is a juristic entity created under the Act, they have to ensure strict compliance of the relevant provisions of the Act under which they are created coupled with ensuring compliance of relevant provisions of the Code of Civil Procedure, 1908 (CPC) for forgoing their right to prosecute the appeal on merits. If, for some reasons, there are two rival groups in a juristic entity, one prays for withdrawal and the other insisting for hearing the appeal then it is the duty of the Court to first resolve this issue in the light of the relevant provisions of law and then proceed to decide the appeal accordingly. Similarly, when such prayer is made at the instance of the Respondent and is opposed by the Appellant, the same has to be dealt with strictly in accordance with law by the Appellate Court.

The legality and correctness of the impugned order has to be examined in the light of reasoning contained in the impugned order and not on the basis of the acts done by the parties subsequent to the passing of impugned order. It is for this reason the acts done by the party subsequent to passing of the impugned order are of no relevance for deciding the present appeals. The appeals are accordingly allowed. Impugned order in both the matters are set aside. The writ appeals out of which these appeals arise are accordingly restored to their original numbers. The High Court is requested to decide the appeals on merits in accordance with law.

Tags : DISMISSAL   SUBSEQUENT ACTS   RELEVANCE  

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