Punjab National Bank Vs. Salim Mian, Typre Retrading Co. (Works) and anr. - Court Judgment

Excerpt:
- land acquisition act, 1894 [c.a. no. 1/1894]. section 4; [sushil harkauli, s.k. singh & krishna murari, jj] acquisition of land held, court cannot issue a writ of mandamus directing the state authorities to acquire a particular land. land acquisition is not purely ministerial act to be performed by executive no direction in nature of mandamus whether interim or final can be issued by court under article 226 necessarily to acquire particular land in public interest. land acquisition is not a purely ministerial act to be performed by the executive and therefore, no mandamus can be issued by the court in exercise of its power under article 226 of the constitution, whether suo motu or otherwise, whether in public interest litigation or otherwise directing acquisition of land under the provisions of land acquisition act, 1894. it would, however, be open to the court in exercise of that power to invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time frame. however, the power of the court under article 226 must necessarily stop at that. thereafter, if the decision taken by the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the court to quash the decision and to require reconsideration. but no direction in the nature of mandamus whether interim or final can be issued by the court under article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose. section 4; compulsory acquisition of land powers of state government held, renewal of lease in favour of petitioners would not take away power of state government of compulsory acquisition of land. renewal of lease would at best be taken into consideration for determining quantum of compensation. - brahma rishi sharma air 1979 all 376. 5. from perusal of the aforesaid decision it is crystal clear that the bank can avail opportunity of appeal either being unsuccessful to get the ex parte injunction order, discharged, varied or set aside in terms of order xxxix, rule 4, c. it may lie only when it is decided and the appellant remains unsuccessful.orderamitava lala, j.1. since the appeal is heard on the question of law, we have not called for the record and the appeal is proceeded on the informal papers by the consent of the parties.2. this appeal is arising out of an interim injunction order dated 18th november, 2002 in favour of the respondents against the demand notice issued under the provisions of u. p. public money (recovery of dues) act at the instance the appellant bank. at the time of the passing of the order, the court has considered about the payment of substantial amounts. in any event it appears from the record that the bank appeared in the proceedings but possibly on the fateful day due to non-availability of notice the representative of the bank did not appear when an ex parte order of injunction was passed by the court below.3. the appellant bank filed an application therein under order xxxix, rule 4, c.p.c. for the purposed of discharge, variation or setting aside such order which is passed ex parte and during the pendency of such application he has filed and proceeded with this appeal.4. learned counsel appearing for the respondents contended before this court that the appellant bank cannot avail both opportunities. learned counsel appearing for the appellant bank contended that there is no bar to prefer the appeal in view of a full bench decision of this court rendered in zila parishad, budaun and ors. v. brahma rishi sharma air 1979 all 376.5. from perusal of the aforesaid decision it is crystal clear that the bank can avail opportunity of appeal either being unsuccessful to get the ex parte injunction order, discharged, varied or set aside in terms of order xxxix, rule 4, c.p.c. or straightway.6. in the instant case when the appellant bank's application is pending, the appeal has been filed. learned counsel for the appellant contended that since several adjournments are granted by the court below, the application would not be heard at the earliest. we are afraid that such submission cannot be a ground of appeal. we can only express our desire that the application which is pending before the court below will be heard as expeditiously as possible.7. therefore, taking into totality of the matter we are of the view that the appeal cannot be sustained at this stage when the application is already pending. it may lie only when it is decided and the appellant remains unsuccessful. therefore, the appeal stands dismissed. interim order if any stands vacated. no order is passed as to costs.v.c. misra, j.8. i agree.

Judgment:
ORDER

Amitava Lala, J.

1. Since the appeal is heard on the question of law, we have not called for the record and the appeal is proceeded on the informal papers by the consent of the parties.

2. This appeal is arising out of an interim injunction order dated 18th November, 2002 in favour of the respondents against the demand notice issued under the provisions of U. P. Public Money (Recovery of Dues) Act at the instance the appellant Bank. At the time of the passing of the order, the Court has considered about the payment of substantial amounts. In any event it appears from the record that the Bank appeared in the proceedings but possibly on the fateful day due to non-availability of notice the representative of the Bank did not appear when an ex parte order of injunction was passed by the court below.

3. The appellant Bank filed an application therein under Order XXXIX, Rule 4, C.P.C. for the purposed of discharge, variation or setting aside such order which is passed ex parte and during the pendency of such application he has filed and proceeded with this appeal.

4. Learned Counsel appearing for the respondents contended before this Court that the appellant Bank cannot avail both opportunities. Learned Counsel appearing for the appellant Bank contended that there is no bar to prefer the appeal in view of a Full Bench decision of this Court rendered in Zila Parishad, Budaun and Ors. v. Brahma Rishi Sharma AIR 1979 All 376.

5. From perusal of the aforesaid decision it is crystal clear that the bank can avail opportunity of appeal either being unsuccessful to get the ex parte injunction order, discharged, varied or set aside in terms of Order XXXIX, Rule 4, C.P.C. or straightway.

6. In the instant case when the appellant Bank's application is pending, the appeal has been filed. Learned Counsel for the appellant contended that since several adjournments are granted by the court below, the application would not be heard at the earliest. We are afraid that such submission cannot be a ground of appeal. We can only express our desire that the application which is pending before the court below will be heard as expeditiously as possible.

7. Therefore, taking into totality of the matter we are of the view that the appeal cannot be sustained at this stage when the application is already pending. It may lie only when it is decided and the appellant remains unsuccessful. Therefore, the appeal stands dismissed. Interim order if any stands vacated. No order is passed as to costs.

V.C. Misra, J.

8. I agree.