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Judgment
Heard Shri Siddhartha Varma, learned Counsel appearing for the applicants and Shri A.K. Shukla, learned Standing Counsel representing respondents Nos. 1 and 2. The order dated 10th September, 1990 passed in Civil Misc. Writ Petition No. 17849 of 1989, Vijay Shanker and others v. State of UttarPradesh and another, is sought to be recalled. The order dated 10th September, 1990 runs as under:
"Sri A. P. Shahi, holding brief of Sri R. N. Singh, learned Counsel for the petitioner, states that an application was made by the petitioner not to press this petition. Therefore, this petition is dismissed as not pressed without prejudice to the application being made by the petitioner under Article 215 of the Constitution. The interim order dated 21 si December, 1989 is vacated."
The writ petition was directed against the notifications issued by the State of U.P. under Sections 4 and 6 of the Land Acquisition Act, 1894, hereinafter called the Act, whereby plot No. 562 and a part of ploti No. 561, situate in village Zira Basti, District Ballia, belonging to the petitioners were sought to be acquired for the benefit of U.P. State Road Transport Corporation, impleaded to the petitione as respondent No. 3.
From the averments made in paragraph Nos. 4 and 5 of the affidavit or Shri Vijay Shankar filed in support of the application it appears that on 23rd August, 1990 a compromise was entered into between the applicants and the U.P. State Road Transport Corporation, the respondent No. 3. According to the averments in paragraph 6 of the said affidavit, an application was filed for withdrawal of the petition. Incidently, the application for withdrawal is not on record.
On 10th September, 1990, the petition was up for consideration before the Court. Shri A.P. Shahi, holding brief of Shri R. N. Singh, the learned Counsel then appearing for the applicants, stated that an application was made by the petitioners to the effect that the petition was not pressed. Acting upon this statement of Shri Shahi, the Court dismissed the petition as not pressed.
In paragraph7 of the affidavit it is asserted that the terms of the compromise were being flouted without any justification and in paragraph 8 of the affidavit it is stated that the respondents started taking possession of the disputed plots of the applicants forcibly. In paragraph 9 of the affidavit it is stated that since the terms of the compromise were not being abided by the respondents, the applicants were forced to file Writ Petition No. 24762 of 1990, Vijay Shanker and others v. State of U.P. and another praying for issuance of a writ of mandamus directing the respondents to give effect to the compromise entered into between the petitioners and District Magistrate, Ballia and UPSRTC on 2381990 and for other reliefs. In the writ petition the prayer for quashing the notifications issued by the State Government under Sections 4 and 6 of the Act, which was challenged in Civil Misc. Writ Petition No. 17849 of 1989, was also made.
The Writ Petition No. 24762 of 1990 came up for consideration before a Division Bench on 17th April, 1996, and the Division Bench dismissed the writ petition vide its judgment and order dated 17th April, 1996, a photocopy of which is Annexure2 to the affidavit filed in support of the application under consideration.
A perusal of the judgment and order dated 17th April, 1996 discloses that the Bench observed that second petition for challenging the notifications under Sections 4 and 6 of the Act was not maintainable in view of the fact that earlier Writ Petition No. 17849 of 1989 was dismissed without liberty to file a fresh petition. According to the Bench, it was barred in view of the decision of the Hon''ble Supreme Court rended in the case of Sarguja Transport Services v. S.T.A., AIR 1987 SC 88. With regard to the prayer of issuance of mandamus for giving effect to the compromise dated 23rd August, 1990 the Bench was of the view that no such mandamus could be issued by this Court in as much as the compromise was a contractual matter and this Court could not enforce such a contract.
Before the Bench the learned Counsel for the petitioners urged that earlier petition (Writ Petition No.17849 1989) was got dismissed as not pressed on the understanding that the alleged corrpromise would be given effect to it, But, subsequentially the respondents backedout. The learned Counsel appearing for the U.P. State Road Transport Corporation submitted that the compromise was without authority as it was entered into without permission from the Headquarters. The Bench refrained from expressing any opinion about the circumstances in which the earlier writ petition (17849 of 1989) was got dismissed as not pressed. However, before parting with the case, it observed that "it is open to the petitioner to file an application in the earlier Writ Petition No. 17849 of 1989 and pray for recall of the order dated 1091990.
Instant application praying for withdrawal of the order dated 10th September, 1990 is inspired by the observation of the Division Bench noticed above.
In the affidavit filed in support of the application grounds setup for recall of the order dated 10th September, 1990 in substance, is that a fraud was played upon the petitioners by entering into a compromise and thereafter resiling thefefrom and this entitled the petitioners for withdrawal of the order dated 10th September, 1990 dismissing the petition as not pressed.
The factum of compromise is not in dispute. Not is it any body''s case that the compromise was the outcome of any fraud. What is alleged is that by not honouring the compromise and resiling therefrom a fraud was committed. The grievance of the petitioners is that the terms of the compromise were being flouted without any justification. Therefore, in the opinion of the Court, the real grievance of the petitioners is against the breach of the compromise. The breach of compromise ma afford to the petitioners a ground for maintaining an action for damages, but certainly not a ground for recalling the order dated 10th September, 1990. The desire of the petitioners appears to be to compel the respondents and enforce compromise by revival of the petition. This is not permissible.
There is another aspect of the matter which dissuades the Court from recalling the order. The Writ Petition No. 17849 of 1989 was dismissed as no t pressed on 10th September, 1996. Since then more than seven years have been lapsed. By now proceedings in persuance of the impugned notifications under Sections 4 and 6 of the Act must have become final, specially in view of the fact that during all these years there was no interim order either staying the acquisition proceedings or prohibiting dispossession of the petitioners. In these circumstances, it would be unjust to set the hands of clock back by reopening the entire matter.
Ofi the facts and circumstances, and for the reasons given herein before, in the opinion of the Court, the prayer for withdrawing the order dated 10th September, 1990 dismissing the writ petition as not pressed deserves to be rejected. Accordingly, the application fails and is hereby rejedted.