D. P. Wadhwa, J. - (1.) These appeals are directed against the judgment dated August 23, 1994 of a Division Bench of the High Court of Judicature at Allahabad, (Lucknow Bench). By a common judgment in three writ petitions, High Court speaking through Shobha Dixit, J. held that the decision of the Lucknow Nagar Mahapalika ('Mahapalika' for short), also now called Nagar Nigam or Corporation, permitting M. I. Builders Pvt. Ltd. (the appellant herein) to construct underground shopping complex in the Jhandewala Park (also known as Aminuddaula Park) situated at Aminabad Market, Lucknow, was illegal, arbitrary and unconstitutional. High Court set aside and quashed the relevant resolutions as of the Mahapalika permitting such construction and also the agreement dated November 4, 1993 entered into between the Mahapalika and the appellant for the purpose. Writ of mandamus was issued to the Mahapalika to restore back the park in its original position within a period of three months from the date of the judgment and till that was done, to take adequate safety measures and to provide necessary safeguard and protection to the public, users of the park. High Court had noticed that the fact that the park was of historical importance was not denied by the Mahapalika and also the fact that perseverance or maintenance of the park was necessary from the environmental angle and that the only reason advanced by the Mahapalika for construction of the underground commercial complex was to ease the congestion in area. High Court, however, took judicial notice of the conditions prevailing at the Aminabad market. It said it was so crowded that it was bursting from all its seams. Construction of the underground shopping complex in question would only complicate the situation and that the present scheme would further congest the area. It said that the public purpose, which is alleged to be served by construction of the underground commercial complex, seemed totally illusory.
(2.) Aggrieved by the impugned judgment of the High Court, appellant has come to this Court. Mahapalika also felt aggrieved and filed appeals (Civil Appeal Nos. 9326-28 of 1994) but these appeals by the Mahapalika were subsequently allowed to be withdrawn by order dated February 6, 1997. There is controversy as to how the Mahapalika which had earlier justified its action later turned round and sought to withdraw the appeals. The order allowing withdrawal of the appeals by the Mahapalika is as under:- "I. A. Nos. 10 to 12 IN CIVIL APPEAL Nos. 9326-28 OF 1994 Nagar Mahapalika Appellants Versus Radhey Shyam Sahu and others Respondents. ORDER Taken on board. The learned counsel for the appellant seeks leave to withdraw the appeals and states that Mr. S. V. Deshpande who appears for the other side has no objection to the withdrawal. The appeals will, therefore, stand disposed of as withdrawn with no order as to costs. Sd/- . . . . . . CJI New Delhi, Sd/- February 6, 1997 . . . . . . , J."
(3.) Mahapalika also cancelled the building plans. This action of the Mahapalika was subject-matter of criticism by the appellant as to how a duly sanctioned plan could be revoked without any notice to the appellant. We may, at this stage, itself reproduce the relevant portion of the resolution dated August 6, 1996 of the Mahapalika for withdrawal of its appeals which is as under:- "The Lucknow Bench of Hon'ble High Court of Allahabad has declared the agreement dated 4-11-1993 executed between the Nagar Mahapalika, Lucknow and M. I. Builders, Karamat Market Lucknow in respect of construction of underground Palika Bazar and Multi-storeyal parking on Jhandewala Park Aminabad, Lucknow as invalid and not in the public interest vide their judgment dated 23-8-1994. The Hon'ble High Court rendered the above said judgment by accepting the writ petitions preferred by several elected sabhasad of the then Nagar Mahapalika and the citizens. On the directions of the then Nagar Pramukh Shri Akhilesh Das, who wanted to cause undue profit to M. I. Builders against the interest of Nagar Mahapalika now Nagar Nigam Lucknow, the citizens of Lucknow, the Nagar Nigam Lucknow filed Special Leave Petition No. 17223-25 of 1994 in the Hon'ble Supreme Court against the Judgment of the Hon'ble High Court. It is proposed that in the interest of the citizen of Lucknow and the Lucknow Nagar Nigam and pending Special Leave Petition No. 17223-25 of 1994 in the Hon'ble Supreme Court be withdrawn and the Nagar Nigam Lucknow be further directed to oppose the Special Leave Petition filed by M/s. M. I. Builders in the Hon'ble Supreme Court against the Judgment dated 23-8-1994 of Lucknow Bench of Hon'ble High Court of Allahabad. Unanimously decided that the aforesaid resolution be passed and accordingly the action may be taken." ;