MYSORE URBAN DEVELOPMENT AUTHORITY versus K.M. CHIKKATHAYAMMA & ORS.
[2018] 11 S.C.R. 141, Supreme Court of India, 2018
Outcome: Appeal(s) allowed (Granted)
Segment: Facts
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MYSORE URBAN DEVELOPMENT AUTHORITY
v.
K.M. CHIKKATHAYAMMA & ORS.
(Civil Appeal Nos. 9182-9188 of 2018)
SEPTEMBER 07, 2018
[ABHAY MANOHAR SAPRE AND S. ABDUL NAZEER, JJ.]
Appeal – Dismissal of appeals by Division Bench “as not
pressed” – Propriety of – On facts, intra court appeals before the
Division Bench of the High Court against quashing of the
acquisition proceedings by the Single Judge – Division Bench
dismissed the appeals “as not pressed” and withdrawn – On appeal,
held: 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 – However,
such right can be forgone but has to be done with express authority
and free will – On facts, no express prayer made by the Development
Authority and nor it could be inferred from the document relied on
at the instance of respondents for forming an opinion ‘not to press
the appeal’ – Dismissal of appeal certainly deprived the Authority
of their right to prosecute the appeals on merits – Furthermore, the
Development Authority being 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 along with the compliance of
the provisions of the Code of Civil Procedure for forgoing their
right to prosecute the appeal on merits – Thus, the conclusion
arrived at by the Division Bench set aside – High
Court to decide
the appeals on merits.
Subsequent Events – Relevance of – Held: Any act done by
the parties in relation to the subject matter of the appeals after the
impugned order, are of no relevance for deciding the present appeals
and cannot be pressed into service to support the impugned order –
Legality and correctness of the impugned order is 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.
[2018] 11 S.C.R. 141
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[2018] 11 S.C.R.
Allowing the appeals, the Court
HELD: 1.1 On perusal of the resolution dated 02.07.2016,
Government letter dated 26.06.2018 and the letter dated
14.11.2017 of the Commissioner and further keeping in view the
relevant provisions of the Karnataka Act, the appeals filed by
the Mysore Urban Development Authority could not have been
dismissed “as not pressed”. In other words, the High Court
should have dismissed the respondents’ application as being
misconceived and decided the appeals on merits in accordance
with law. [Para 26][147-G]
1.2 Neither there was any express prayer made by the
Mysore Urban Development Authority (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. [Para
27][148-A-B]
1.3 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. [Para 28][148-C]
1.4 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 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
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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. [Paras 29, 30][148-D-F]
1.5 Any act done by the parties in relation to the subject
matter of the appeals after the impugned order, cannot be pressed
into service to support the impugned order. In other words, 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. [Para 32][148-G-H;
149-A]
1.6 The Division Bench should have decided the appeals
on merits in accordance with law. The reasoning and the
conclusion arrived at by the Division Bench in the impugned order
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. [Paras 25, 33 and 34][147-F; 149-B]
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 9182-
9188 of 2018.
From the Judgment and Order dated  09.11.2016 of the High Court
of Karnataka at Bengaluru in W.A. Nos. 899 of 2016 and 982-987/
2016(LA).
WITH
C.A. Nos. 9190-9191 of
2018.
Dushyant Dave, Gopal Subramanyan, Mukul Rohatgi, Sr. Advs.,
Sharan Dev Singh Thakur, Mahesh Thakur, Ms. Vipasha Singh, Ms.
Priyanka G., Amir Nabi, Vijay Kumar, Naveen R. Nath, Ms. Lalit Mohini
Bhat, B. L. Sanjeev, Advs. for the appearing parties.
The Judgment of the Court was delivered by
ABHAY MANOHAR SAPRE, J. 1. S.L.P(C)Nos. 24560-
24566 of 2018 (D.No.31403 of 2017) are directed against the final
MYSORE URBAN DEVELOPMENT AUTHORITY v. K.M.
CHIKKATHAYAMMA
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judgment and order dated 09.11.2016 passed by the High Court of
Karnataka at Bengaluru in W.A. Nos. 899/2016 and 982-987 of 2016
whereby the High Court dismissed the appeals filed by the appellant
herein and, in consequence, upheld the judgment dated 10.03.2016 of
the Single Judge in W.P.Nos.38868-38874/2015  which had allowed the
writ petitions filed by the respondents herein.
2. So far as S.L.P.(C)Nos. 24569-24570 of 2018  (D.No.30522/
2017) are concerned, it is directed against the final judgment and order
dated 20.10.2016 passed by the Division Bench of the High Court of
Karnataka in W.A. Nos. 6829-6830 of 2013 which arise out of the order
dated 10.10.2013 of the Single Judge passed in writ petition Nos.27994/
2001 and 18756/2001.
3. Leave granted.
4. In order to appreciate the issues involved in these appeals, few
relevant facts need mention infra.
5. The appellant-Mysore Urban Development Authority
(hereinafter referred to as “MUDA”) was the respondent whereas the
respondents herein were the writ petitioners before the High Court.
6. In exercise of the powers conferred under Section 17 (1) of
the Karnataka Urban Development Authorities Act, 1987 (hereinafter
referred to as “The Karnataka Act”), the MUDA issued a notification
No. LAQ 66/91-91 dated 19.12.1991 on completion of one development
scheme prepared under Section 15/16 of the Karnataka Act.
7. By this notification, the MUDA proposed to acquire the large
area of the land along with other adjoining lands situated in Dattagalli
village (Karnataka).  The notification was published in the official State
gazette on 26.12.1991. The State Government vide its order dated
27.01.1992 approved the scheme framed by the MUDA under Section
18(3) of the Karnataka Act and issued final notification No.VaNaE 833
MIB 92 on 10.12.1992 mentioning therein that the lands in question are
needed for public purpose, viz.,  “formation of Dattagalli extension”.
This was followed by an award passed by the Special Land Acquisition
Officer (SLAO) on 27.01.1994 wherein he determined the compensation
payable to the landowners. This was followed by issuance of notices to
the land owners under Section 12 (2) of the Land Acquisition Act, 1894
(hereinafter referred to as “the LA Act”) calling upon the land owners
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to deliver possession of their respective lands. The MUDA then issued
a notification on 18.09.2000 as required under Section 16 (2) of the LA
Act.  In between, there was one litigation but it is not necessary to
mention the same in detail.
8. In 2001, the respondents (writ petitioners) felt aggrieved by the
acquisition proceedings and filed writ petitions questioning the legality
and correctness of the notification dated 19.12.1991 and consequential
notifications issued thereafter in the High Court of Karnataka at
Bangalore. The MUDA and State contested the writ petitions on several
factual and legal grounds.
9. By order dated 15.12.2003, the Single Judge allowed the writ
petitions and quashed the entire acquisition proceedings inter alia on
the ground that there was a delay on the part of the MUDA in taking
possession of the acquired land and hence the acquisition proceedings
are rendered illegal.
10. The MUDA felt aggrieved and filed intra Court appeals before
the Division Bench out of which these SLPs arise. In the appeals, the
writ petitioners as respondents, filed an application (I.A. No.11 of 2016)
and prayed therein for dismissal of the MUDA’s appeals as having
rendered infructuous. It was contended that the MUDA has resolved on
02.07.2016 to drop the lands in question from the acquisition proceedings
and, therefore, in the light of such decision having been taken, there is no
need to examine the legality and correctness of the order of the Single
Judge impugned in the appeals on merits.
11. By impugned order in both the matters, the Division Bench
dismissed the appeals as not pressed and withdrawn. The order impugned
dated 09.11.2016 reads as under:
“An application is moved by the respondents seeking for
dismissal of the writ appeals on the ground that the Mysore
Urban Development Authority (for short “MUDA”)
decided, in their Board meeting on July 2, 2016, to drop
the lands covered by this litigation from the acquisition
process.  A copy of the resolution is annexed to the
application.
2. After hearing Mr. Uday Holla, learned senior advocate
appearing for the respondents and Mr. P.S. Manjunath,
MYSORE URBAN DEVELOPMENT AUTHORITY v. K. M.
CHIKKATHAYAMMA [ABHAY MANOHAR SAPRE, J.]
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learned advocate appearing for the appellants, we have got
a clear indication that the authorities have decided not to
proceed with the writ appeals.
3. Therefore, the writ appeals are dismissed as withdrawn.
4.  It shall be open to the authorities to proceed further in
the matter.  We, however, express no opinion.”
12. It is against this order, the MUDA has felt aggrieved and filed
the present appeals by way of special leave before this Court.
13. Heard learned counsel for the parties.
14. Mr. Dushyant Dave, learned senior counsel appearing for the
appellant (MUDA) essentially made two submissions.
15. In the first place, learned counsel contended that the Division
Bench erred in dismissing the MUDA’s appeals as withdrawn.
16. According to him, there was neither any basis nor ground
much less justification to dismiss the MUDA’s appeals “as not pressed”.
It was urged that in fact the Division Bench was under legal obligation
to decide the appeals on merits.
17. In the Second place, learned counsel contended that the
resolution dated 02.07.2016 relied on for dismissal of MUDA’s appeals,
“as not pressed” was wrongly interpreted by the Division Bench. Learned
counsel pointed out that the resolution dated 02.07.2016, if read properly,
does not show that any express decision was taken to withdraw the
appeals or that any decision was taken to drop the lands in question from
the acquisition proceedings.
18. Learned counsel
further submitted that even otherwise the
MUDA was not competent to take such decision without obtaining the
sanction of the State Government as provided under Section 19 (7) of
the Karnataka Act.
19. Learned counsel pointed out that neither the MUDA and nor
the State Government ever intended to withdraw from the acquisition
proceedings as is clear from the letter dated 26.06.2018 of the State
Government and the letter dated 14.11.2017 of the Commissioner. It
was urged that these letters indicate that both i.e. the State and the
MUDA wanted to pursue the appeals on merits since inception before
the High Court as also in this Court.
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20. Learned counsel urged that in the light of these submissions,
impugned order in both the matters are not legally sustainable and the
matter be remitted to the Division Bench for deciding the appeals on
merits in accordance with law.
21. In reply, Mr. Mukul Rohtagi and Mr. Gopal Subramanian,
learned senior counsel for the respondents (writ petitioners) while
supporting the reasoning and the conclusion arrived at by the Division
Bench contended that no fault could be noticed in the impugned order.
22. It was their submission that firstly, the Government did not
choose to file any appeal against the order of the Single Judge and,
therefore, the MUDA had no independent locus to pursue the matter in
appeals; Secondly, the MUDA having resolved to wriggle out of the
acquisition proceedings, the Division Bench was justified in dismissing
the appeals as not pressed; Thirdly, there was, therefore, no need to
decide the appeals on merits; and lastly, after the dismissal of the appeals,
the respondents (writ petitioners) altered their position in relation to the
lands in question by spending substantial money and, therefore, this is
not a fit case to entertain the special leave to appeals  under Article 136
of the Constitution.
23. The short question, which arises for consideration in these
appeals, is whether the Division Bench was right in dismissing the appeals
“as not pressed”.
24. Having heard the learned counsel for the parties and on perusal
of the record
of the case, we find force in the submissions urged by the
learned counsel for the appellant.
25. In our opinion, the Division Bench should have decided the
appeals on merits in accordance with law.
26. On perusal of the resolution dated 02.07.2016, Government
letter dated 26.06.2018 and the letter dated 14.11.2017 of the
Commissioner and further keeping in view the relevant provisions of the
Karnataka Act, we are of the view that the appeals filed by the MUDA
could not have been dismissed “as not pressed”.  In other words, the
High Court should have dismissed the respondents’ application
(I.A.No.11/2016) as being misconceived and decided the appeals on
merits in accordance with law.
MYSORE URBAN DEVELOPMENT AUTHORITY v. K. M.
CHIKKATHAYAMMA [ABHAY MANOHAR SAPRE, J.]
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27. In our opinion, 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, in our view, certainly deprived the MUDA
of their right to prosecute the appeals on merits.
28. 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.
29. 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 for forgoing their
right to prosecute the appeal on merits.
30. 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.
31. The submissions urged by the learned senior counsel for the
respondents (writ petitioners), which are detailed supra, have no merit.
32. In our opinion, any act done by the parties in relation to the
subject matter of the appeals after the impugned order, cannot be pressed
into service to support the impugned order.  In other words, 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
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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.
33. In view of the foregoing discussion, we are unable to concur
with the reasoning and the conclusion arrived at by the Division Bench
in the impugned order.
34. The appeals thus succeed and 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.
35. We make it clear that we have not applied our mind to the
merits of controversy having formed an opinion to remand the case to
the High Court.  The High Court would, therefore, decide the appeals
without being influenced by any of our observations.
36. We also make it clear that any step(s), if claimed to have been
taken by the respondents (writ petitioners) subsequent to the impugned
order, the same would not, in any way, influence the High Court while
deciding the appeals on merits.
37. The parties are at liberty to claim refund of their money, if
they claimed to have paid/deposited with the appellant in relation to the
subject matter of the appeals.
Nidhi Jain
Appeals allowed.
MYSORE URBAN DEVELOPMENT AUTHORITY v. K. M.
CHIKKATHAYAMMA [ABHAY MANOHAR SAPRE, J.]