VISHNU BHAGWAN AGARWAL Vs. LUCKNOW DEVELOPMENT AUTHORITY

JUDGEMENT

(1.) THIS is an application for recall of our order dated 15.1.08. The application has been moved on 8.2.08. The writ petition was filed challenging the order dated 10.8.07 passed by the Additional Secretary, Lucknow Development Authority, Lucknow (Annexure-1 to the writ petition) and the order dated 22.11.07 passed by the Executive Engineer, Lucknow Development Authority and also for issuance of a writ in the nature of mandamus commanding the respondents to grant the application for compounding the basement of the building in question, in possession of the petitioner, in the light of the note-sheets of Lucknow Development Authority annexed as Annexure-9 and Annexure-10 to the writ petition and the solemn assurance extended by the Lucknow Development Authority. In short, the petitioner has raised constructions and doing his commercial activities in the basement of the building, which area was earmarked for parking space. In the sanctioned building plan and even in the compounding plan, the aforesaid area has been shown as parking lot/parking space. The petitioner was required to remove his unauthorized constructions/encroachments by the Lucknow Development Authority, in which proceedings, he gave an assurance by filing an affidavit that he will vacate the parking space of his own within a given time, but it was detected that he was continuing with the showroom, which was against the Rules. Consequently, notices were issued which are impugned in the writ petition, requiring the petitioner to vacate the parking space, failing which legal action will be taken. It is against these orders, the present petition has been filed. The factual position has not been disputed by Sri Umesh Chandra, Senior Advocate, appearing for the petitioner-applicant. A short counter affidavit was also filed by the Secretary of Young Men's Christian Association of India (YMCA) in the writ petition. Arguments were heard at length but when the judgement was being dictated in open Court, learned counsel for the petitioner Sri Prashant Chandra, Senior Advocate, submitted that the petitioner be allowed to withdraw the writ petition as he undertakes to clear the parking space and remove the fixtures and structures, whatever is there, restoring the same as originally shown in the building plan within a reasonable period, to which prayer, counsel for the respondents, namely, that of the Lucknow Development Authority as well as the YMCA did not object. On 15.1.2008, the following orders were passed: "After we have heard the arguments of both the sides including Sri Prashant Chandra at great length and when we are in the midst of the judgment, learned counsel for the petitioner Sri Prashant Chandra, Senior Advocate submitted that the petitioner be allowed to withdraw the writ petition, as he undertakes to clear the parking space and remove the fixtures and structures, whatever is there, restoring the same as originally shown in the building plan within a reasonable period, to which prayer, counsel for the respondents, namely, that of the Lucknow Development Authority as well as the Young Men's Christian Association do not have any objection. We, accordingly dismiss the writ petition as withdrawn with the consent of the parties counsel, and direct the petitioner to restore the parking space and remove the fixtures etc. within three months from today. In case the petitioner fails to comply with the undertaking given by him, the Lucknow Development Authority would be at liberty to do the needful without giving any further notice." Sri Umesh Chandra, learned Senior Advocate, assisted by Sri Vikas Singh, Advocate, vehemently urged that the aforesaid order deserves to be recalled for the reasons (i) that the petitioner Vishnu Bhagwan Agarwal had given the instructions only for withdrawal of the writ petition and he had not given any instructions to the counsel for giving undertaking that he will clear the parking space and and remove the fixtures and structures etc. within a reasonable period; (ii) that once the Court has dismissed the writ petition as withdrawn, it has no jurisdiction to issue any direction and, therefore, the direction issued cannot be sustained; (iii) that the petitioner had raised the construction in anticipation of getting the plan sanctioned after leaving the required space for parking, as the area earmarked for parking, is much more than required; and (iv) that the effect of the aforesaid order is that the petitioner has been deprived of his legitimate right to pursue his remedy under the provisions of the Urban Planning and Development Act, including the right of appeal against the order of demolition or any order of removal of unauthorized construction, as might have been passed by the Lucknow Development Authority. Counsel for the Lucknow Development Authority, Sri D.K. Upadhyaya and Sri Shobhit Mohan Shukla and Sri N.K. Seth for YMCA have opposed the application. Their argument is that it was a conscious statement given by the learned counsel for the petitioner on the instructions of the pairokar of the petitioner, who was present in the Court, and had received instructions from the petitioner and, therefore, the aforesaid pleas are not tenable nor the order can be recalled. Further argument is that the petitioner on the one hand has given an undertaking of clearing the parking space but as an afterthought, just to save his unauthorized constructions, including the showroom etc. this application has been moved, which has resulted into delay in clearing the parking space. Counsel for the respondents have also raised an objection regarding the maintainability of the application, saying that after the writ petition being decided finally, the Court became functus officio and no miscellaneous application can be entertained for modifying or recalling the order. Reliance has been placed upon the judgement in the case of State of Haryana and others v. Babu Singh, (2008) 2 SCC 85, wherein in Para 19 of the report, the Court followed the principles laid down in the case of State of U.P. v. Brahm Dutt Sharma (1987) 2 SCC 179, wherein the Court recorded a note of caution that when proceedings under Article 226 of the Constitution of India stand terminated by final disposal of writ petition, it is not open to the Court to reopen the proceedings by means of a miscellaneous application. Learned counsel for the petitioner-applicant has relied upon a judgement of the apex court in the case of Krishnanand Govindanand v. M.D. Oswal Hosiery (Regd.), (2002) 3 SCC 39, to support his submission that, the matter could not have been decided on the statement of the counsel. In this case, in the proceedings under Clause (d) of Section 22 of the Delhi Rent Control Act, 1958, on the ground that the premises are required bona fide for furtherance of its activities, after the respondent filed written statement, when the case was posted for trial, the learned counsel appearing for the respondent conceded the facts disputed by the respondent in his written statement before the Court. That statement of the advocate was recorded by the Additional Rent Controller thus: "The respondent's learned counsel has admitted the ground of eviction and also the fact that the applicant is a public charitable institution and for that purpose it required the premises." On that basis the eviction application filed by the appellant was allowed. Challenge to the said order met with failure upto the stage of High Court but in the Supreme Court, the appeal was allowed after observing as follows: "...........Whether the applicant is an institution within the meaning of Section 22 of the Act and whether it required bona fide the premises for furtherance of its activities, are questions touching the jurisdiction of the Additional Rent Controller. He can record his satisfaction only when he holds on these questions in favour of the appellant. For so holding there must be material on record to support his satisfaction otherwise the satisfaction not based on any material or based on irrelevant material, would be vitiated and any order passed on such a satisfaction will be without jurisdiction. There can be no doubt that admission of a party is a relevant material., But can the statement made by the learned counsel of a party across the Bar be treated as admission of the party? Having regard to the requirements of Section 18 of the Evidence Act, on the facts of this case, in our view, the aforementioned statement of the counsel of the respondent cannot be accepted as an admission so as to bind the respondent. Excluding that statement from consideration, there was thus no material before the Additional Rent Controller to record his satisfaction within the meaning of clause (d) of Section 22 of the Act. It follows that the order of eviction was without jurisdiction." In this case written statement was filed by the respondent denying claim of the appellant and there was nothing on record to indicate that the respondent ever instructed his counsel to concede about the bona fide need. Apart from this, it was a case where the Rent Controller was to decide the application under Section 22 of the Act, as per law and not on mere concession of the counsel, that too, which was given without any instructions from his client. In the instant case, the instructions have been given by the petitioner to his counsel for making a request for withdrawing the writ petition on the assurance that he would clear the parking space himself. We have taken note of the arguments raised from both the sides but we do not find it expedient to express our opinion on all the pleas,as the only question is, whether the learned senior Advocate, Sri Prashant Chandra was instructed, by the petitioner to withdraw the writ petition, seeking time for clearing the parking space of his own or not and if the statement, was not given under the instructions of the petitioner, the said order deserves to be modified by deleting the undertaking given by the petitioner, it not being disputed, that the petitioner, had given instructions to withdraw the writ petition. It is not in dispute that the arguments were heard at length and it was during the midst of the dictation of the judgement, that the statement in question was given by the learned counsel for the petitioner, Sri Prashant Chandra, Senior Advocate. We have no reason to believe that a Senior Advocate would give a statement of his own and would get the writ petition dismissed with an undertaking, if such undertaking had not been given by the petitioner. There is no reason to disbelieve the statement of a Senior Advocate, unless established otherwise. The fact that it was a conscious instruction given by the petitioner and rightly put forward before the Court by the Senior Advocate, is fortified by the very fact that even before coming to this Court, the petitioner had given an undertaking before the Lucknow Development Authority for clearing the parking space as is evident from the impugned order dated 22.11.07 itself, issued to the petitioner, wherein it has been specifically stated that when the action for restoring the parking space was initiated by the Lucknow Development Authority in pursuance of the orders passed by the High Court, he assured that he would himself vacate the parking space but in spite of the said assurance being given, he is continuing with the running of the showroom, which is against the Rules. It has been stated by the learned counsel for the Lucknow Development Authority that the son of the petitioner, by means of an affidavit, had given the aforesaid undertaking before the Lucknow Development Authority which fact, again is not being disputed even today and rather stands admitted to the petitioner. That being so, it is clear, that the petitioner was being required to clear the parking space by the Lucknow Development Authority, since it was unauthorizedly occupied by running show room etc., which was also to be got cleared, under the directives issued by the High Court in some writ petition, and the petitioner was buying time to maintain his structures etc. and therefore gave an undertaking before Lucknow Development Authority, so that they may stay their hands, for some time and thereafter, instead of honouring his undertaking, he approached this court, where again he gave almost the same undertaking, just to buy time and to preclude the court, from passing the order. It is not the case of the petitioner that he had not given the undertaking earlier before the Lucknow Development Authority and thus, finding that the writ petition was being dismissed, he offered that he would clear the parking space himself for which, undertaking was extended, as has been mentioned in the order. It is not a case where for the first time the petitioner had given the undertaking for clearing the parking space and, therefore, to say, that he had instructed his counsel not to say so, is per se not correct. Once a clear and conscious statement has been given by the counsel on the instruction of the petitioner, it remains of little importance that the petitioner could have availed the statutory remedies, if he had contested the matter or that he has lost his right to challenge the orders under the statutory provisions. May be, that the petitioner thought that there is no ground to defend the unauthorized constructions and, therefore, he decided to vacate the parking space of his own. Unless this Court finds that the statement given was not out of free will of the petitioner or that it was a mistaken statement given by the learned counsel, this Court would not recall the order nor the statement given on facts need be recalled, because of the changed attitude of the petitioner after the orders are passed. It is also pertinent to mention that the order in the writ petition was dictated in open Court in the presence of the learned counsel for the petitioner and with his consent, in the presence of the pairokar of the petitioner, who was present in the Court, as is evident from the averments made in Para 1 of the application itself and had it been a case of incorrect statement being given by the learned counsel for the petitioner, there was no reason as to why the pairokar would not have objected to it, or pointed to his counsel that such an instruction has not been given by the petitioner. The order having been passed in the presence of the pairokar and on the statement given by the counsel for the petitioner, his statement cannot be disbelieved so lightly and casually by the Court. We do not have any reason to believe the story set up by the petitioner and also no reason to disbelieve the statement given by the counsel on full instructions being received from the petitioner, as aforesaid. On the plea that once the Court passed an order of withdrawal of the writ petition, therefore, the Court could not have issued any further direction, suffice would be to mention that the Court has not issued any direction on its own but it was the own statement/undertaking of the petitioner, which finds mention in the first part of the order and only that undertaking has been reiterated by the Court so that the same is complied with. The undertaking cannot be allowed to be given for being violated and, only to preclude, the court from deciding the case, after hearing at length, therefore, the necessity was to pass an order so that the petitioner remains bound by his undertaking. The passing of such an order would not mean that the Court has dismissed the writ petition as withdrawn and thereafter issued some directions, which could not have been issued after such dismissal. We will also like to put a word of caution that if any party to the litigation before the High Court under Article 226 of the Constitution, a discretionary jurisdiction, is allowed to resile from the statement given in this manner, that will mean not only reopening of a case, which otherwise has attained finality, but would also raise a question, whether the statement given at the Bar even by Senior Advocates, should be believed or not. We do not find any merit in the application made by the petitioner-applicant nor any ground for recalling the order. The application is rejected.