Utt HC | Subsequent issuance of notice by Nagar Panchayat not barred by res judicata as earlier appeal was allowed on technical ground and not merits

Uttaranchal High Court: Sudhanshu Dhulia, J. dismissed the instant writ petition where the petitioner sought mandamus to command respondent not to demolish the construction of his residential house.

The disputed facts were that the constructed house of the petitioner was part of Gaon Sabha earlier. Subsequently, the land came under jurisdiction of Nagar Panchayat, and thereafter the petitioner received a notice under Section 4 of the U.P. Public Premises (Eviction of Unauthorized Occupants) Act, 1972, to which he replied and ultimately the Prescribed Authority found the petitioner to be in unauthorized occupation and passed an order for his eviction. The order was challenged by the petitioner in an appeal before the District Judge, Haridwar.

Therefore the appeal of the petitioner was allowed by District Judge merely on technical grounds such as that the notice which was given to the petitioner under Section 4 of the U.P. Public Premises (Eviction of Unauthorized Occupants), 1972 did not elaborate or disclose the land. The trial court also gave finding in favor of the petitioner that the Additional Sub Divisional Magistrate who had passed the eviction order was not the Prescribed Authority and all the proceedings were beyond his jurisdiction.

The Court observed that the order passed earlier was not on the merits of the case hence the rights were not determined. Hence the petitioner was eventually asked to vacate the land which was disputed, aggrieved by which he filed the writ.

Tapan Singh, counsel for the petitioner submitted that there was already a judicial determination in the favour of the petitioner, as to his rights on the land and the fresh notices for eviction and demolition were alleged to be illegal. They basically relied upon the judgment passed by the District Judge.

The Court in such circumstances observed that, in the earlier case, the appeal of the petitioner was allowed on a technicality, such as the validity of the notice and the jurisdiction of the authority. There was no determination on the merit of the case. Hence the new proceedings were therefore not barred. But further, it stated that relief sought by the petitioner was out of the purview of the Court by the way of writ and thus the petitioner was directed to apply to a competent Civil Court.[Mansab Ali v. Nagar Panchayat Landhaura, 2019 SCC OnLine Utt 588, decided on 05-07-2019]

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