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VIDYUT KUMAR SINGH versus STATE OF U.P. & OTHERS

High Court of Judicature at Allahabad

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Vidyut Kumar Singh v. State Of U.P. & Others - WRIT - C No. 17366 of 2007 [2007] RD-AH 7715 (25 April 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

(Court  No. 35)

(1). Civil Misc. Writ Petition No. 17366 of 07.

Vidyut Kumar Singh Vs. State of U.P.& others.

A N D

(2). Civil Misc. Writ Petition No. 20740 of 07.

Vidyut Kumar Singh Vs. State of U.P.& others.

Hon'ble R.P.Misra, J.

Hon'ble Shishir Kumar, J.

Since both these  writ petitions have been filed by the same petitioner  for the same relief and on the same subject matter, hence both are heard and decided together by this common judgment.

Heard Sri A.C.Tiwari, who is learned counsel for the petitioner in both the  writ petitions, Sri K.K.Chaurasia, who is learned counsel for the petitioner in the first  writ petition only and Sri A.B.Sinha, who is learned counsel for the petitioner in the second  writ petition only.

It so happened that while fresh cases were being taken up today, the writ petition No. 20740 of 07 was  taken up.  After hearing learned counsel for the petitioner at a considerable length, an order was passed directing learned Standing Counsel to file counter affidavit within 3 weeks and rejoinder affidavit within 3 weeks thereafter.   The  writ petition was directed to be listed for admission after expiry of aforesaid period.

At that stage learned counsel for the petitioner did not whisper about filing of any other petition by the petitioner.   But while taking up the listed matters, this Court was shocked and very much pained to see  that successive petitions have been filed by the same petitioner. The first   writ petition filed by the petitioner  was listed at Sl. No. 41 in the listed matters whereas the second  writ petition filed by the same petitioner was listed at Sl. No. 6 in the fresh matters.  From perusal of records it transpired that the first writ petition was taken up on 3.4.07 when it was directed to be listed on 10.4.07.  On 10.4.07 learned counsel for the petitioner was not present, so Sri Alok Kumar Singh, learned Standing Counsel undertaken to inform  the learned counsel for the petitioner in writing that the matter will be taken up on 16.4.07.   On 16.4.07 a request was made and the case was ordered to be put up on 18.4.07.   On 18.4.07 again request was made and the case was directed to be listed on 25.4.07 and this is how this case is listed today.  

Thereafter, learned counsel for the petitioner in both the  writ petitions were called but this Court was further surprised to see the conduct of the learned counsel for the petitioner that instead of fairly conceding the fault, they tried to justify the filing of successive petitions by the same petitioner in the same subject matter.  For considering the justification of filing of successive  petitions, it is relevant to consider the relief sought by these  writ petitions. The relief sought by the first  writ petition is quoted below:

"(i) issue a writ, order or direction in the nature of Mandamus directing the respondents not to realize the transit fee by the petitioner for doing mining products and its lifting and transportation.

(ii) issue a writ, order or direction for which this Hon'ble Court may deem fit and proper in the circumstances of the present case.

(iii) Award the costs of this  writ petition in favour of the petitioner throughout."

The relief sought by the second  writ petition is as under:

(i)issue a writ, order or direction in the nature of Certiorari by declaring the provision of 2 (4) IV of Indian Forest Act, 1927 as ultravires to the Indian Mines Act, 1952 as well as of Article 14 of the Constitution of India.

(ii)issue a writ, order or direction which this Hon'ble Court may deem fit and proper under the circumstances of the case.

(iii)Award costs of this petition in favour of the petitioner."

From perusal of record of both the  writ petitions including the above quoted relief clauses, it is abundantly clear that the cause of action for filing the first  writ petition arose due to charging of the transit fee from the petitioner and no fresh cause of action arose at all for filing  the second  writ petition.  In the stay applications made in both the  writ petitions, the interim relief sought by the petitioner is a direction not to realize the transit fee from him and therefore the  main relief sought by means of  both these  writ petitions  is virtually the writ of Mandamus directing the respondents not to realize the transit fee from the petitioner   However, learned counsel for the petitioner submitted that the main relief sought by the second  writ petition is the writ of Certiorari declaring the provisions of Section 2 (4) IV of Indian Forest Act, 1927as ultra vires and this relief has not been sought in the first  writ petition.  In this context, suffice it to say that the petitioner is seeking  declaration of the said provision as ultra vires only because the transit fee is being charged from him and that is  why in the stay applications of both the  writ petitions the petitioner has categorically sought interim direction for not charging the transit fee from him.   Moreover, even after filing of the first  writ petition, if the petitioner felt it necessary to get the aforesaid provisions declared as ultra vires, he could have fairly applied for  amending the first writ petition itself by adding the relief of  declaration of the said provision as ultravires and that was the only proper course open for the petitioner.

But instead of resorting to the proper course open under law, the petitioner has taken mischievious steps by filing the second  writ petition  virtually for the same relief, which is not permissible under law. There is no fresh cause of action at all for the present petitioner for filing the second  writ petition.  Besides this, in the second  writ petition the petitioner has made false statement  on oath that this is the first  writ petition.   There is not even whisper in the second  writ petition, about the filing or pendency of the first  writ petition whereas Mr. A.C.Tiwari is the counsel for the petitioner in both the  writ petitions.  The tendency of filing  successive  writ petitions has always been deprecated, not only by this Court but also by the apex Court in  catena of decisions.    However, the same is of no consequence for  the present petitioner and his counsel.  Such a litigant must be dealt with a very heavy hand. The petitioner concealed material fact  from this Court and has not approached this Court with clean hands. The petitioner has unnecessarily wasted precious public time by playing fraud with the Court.  Therefore, in the considered opinion of this Court, it is a clear case of not only abuse of the process of the Court but also a kind of fraud with the Court, consequently both the  writ petitions deserve to be dismissed with heavy cost.

Their lordships of apex Court have always discouraged abuse of the process of Court.  In Dr. Buddhi Kota Subbarao vs. K.Parasaran & others (A.I.R. 1996 SC 2687), Hon'ble the Supreme Court has observed as under:-

"No litigant has a right to unlimited drought on the Court time and public money in order to get his affairs settled in the manner he wishes.   However, access to justice should not be misused as a licence to file misconceived and frivolous petitions."

Similar view has been reiterated by the Supreme Court in K.K.Modi vs. K.N.Modi & others (1998) 3 SCC 573).

In Tamil Nadu Electricity Board & another vs. N. Raju Reddiar & another (A.I.R. 1997 SC 1005) Hon'ble the Supreme Court held that filing successive, misconceived and frivolous applications for clarification, modification or for seeking a review of the order interferes with the purity of the administration of law and salutary and healthy practice.   Such a litigant must  be dealt with a very heavy hand.

In Sabia Khan & others  vs. State of U.P. & others, (1999) 1 SCC 271), Hon'ble the apex Court held that filing totally misconceived petition amounts to abuse of the process of the Court and such litigant is not required to be dealt with lightly.

In Abdul Rahman vs. Prasoni Bai and another (2003) AIR SCW 14), Hon'ble the Supreme Court held that wherever the Courts come to the conclusion that the process of the Court is being abused, the Court would be justified in refusing to proceed further and refuse the party from pursuing the remedy in law.

The issue of filing  successive  writ petition  has  been  considered  by  the  Hon'ble Supreme Court  time and again and held that  even if the earlier  writ petition has been  dismissed as withdrawn, Public Policy which is reflected in the principle  enshrined  in  Order 23  rule  1 C.P.C., mandates  that successive writ petition cannot be entertained  for  the   same  relief. (Vide M/s. Sarguja   Transport  Service    Vs.   State Transport  Appellate  Tribunal & Ors.,  AIR 1987  SC  88; Ashok Kumar & Ors. Vs. Delhi Development  Authority, 1994 (6)  SCC 97;  and Khacher Singh Vs. State of U.P.  & Ors., AIR 1995 All.  338).

Even if a party does not pray for  the relief in  the  earlier writ petition,  which  he ought to have claimed in the earlier petition, he cannot file  a successive writ petition  claiming that relief,  as  it  would  be  barred  by the principle  of constructive res judicata enshrined in Explanation  IV to Section 11 and Order 2 rule 2 C.P.C. as has been explained, in  unambiguous and crystal clear language by the Hon'ble Supreme Court in  Commissioner of Income Tax, Bombay Vs.  T.P. Kumaran,  1996 (10) SCC 561;  Union of India  & Ors. Vs.  Punnilal & Ors., 1996 (11) SCC 112;  and M/s. D.  Cawasji  &  Co. & Ors.  Vs. State of Mysore & Anr.,  AIR 1975 SC 813.

Similar view has been reiterated by the Hon'ble Supreme Court  in   Avinash  Nagra  Vs. Navodaya  Vidyalaya Samiti & Ors., (1997) 2 SCC 534 and by the other Court  in Uda Ram Vs.  Central State Farm & ors., AIR  1998  Raj.   186; and  M/s. Rajasthan  Art  Emporium Vs.   Rajasthan State Industrial and Investment Corporation & Anr., AIR 1998 Raj. 277.

In  M/s. D. Cawasji & Co. etc. Vs. State of  Mysore  &  Anr. (Supra),  the Hon'ble Supreme Court observed as under:-

"Be that as it may, in the earlier writ petitions, the appellants did not pray for refund of the amounts paid by way of cess for the years 1951-52 to 1965-66 and they gave no  reasons before  the  High Court  in  these writ petitions why  they did not make the prayer for refund of the amounts paid   during   the  years in question. Avoiding multiplicity of unnecessary legal proceedings should be an aim of the Courts.   Therefore, the appellants could not be allowed to split up their claims for refund and file writ petitions in this piecemeal fashion.  If the appellants could have, but did  not, without  any  legal justification,  claim refund  of  the amounts paid  during  the years  in  question, in the earlier  writ petitions,  we  see  no  reason  why  the appellants should be allowed to claim the amounts  by filing writ petitions  again. In the circumstances of this case, having regard to the conduct of the appellants in not claiming these amounts in the earlier writ petitions   without   any justification,  we do not think, we would be  justified  in interfering  with  the discretion exercised by the High Court in dismissing  the writ petitions which were filed  only for the purpose of  obtaining the  refund....in view of the above,  the petition is liable to be dismissed as not maintainable   and   it    is   dismissed accordingly...."

Similarly, in State of U.P. & Anr. Vs. Labh Chand, AIR 1994 SC 754, the Hon'ble Supreme Court has held as under:-

"This reason is not concerned with the discretionary power of   the Judge or Judges of the High Court under Article 226 of the Constitution to entertain a second writ petition whose earlier writ petition was dismissed on the ground of non-exhaustion of alternative remedy but of such a Judge or Judges having not followed the well established salutary rule of judicial practice and procedure that an order of a Single Judge Bench or a Larger Bench of the same High Court dismissing the writ petition either  on the ground of latches or non-exhaustion of alternative  remedy as well shall not  be bye-passed  by  a Single Judge  Bench  or Judges  of  a  Larger   Bench  except  in exercise  of  review or appellate  powers possessed  by it.....  But as the learned Single Judge constituting a Single Judge Bench of the same Court, who has in  the purported  exercise of jurisdiction under Article 226 of the    Constitution bye-passed  the order of dismissal of the writ petition made by a Division Bench by entertaining a second writ petition filed by  the  respondent  in  respect  of  the subject  matter  which  was  the  subject matter  of the earlier writ petition, the question is, whether the well established salutary  rule  of judicial practice  and procedure  governing such matters  permit the  learned Single Judge to bye-pass the order of the Division Bench on the excuse that  High  Court has jurisdiction  under Article   226  of   the  Constitution  to entertain  a  second writ petition  since the  earlier  writ petition of  the  same person  had been dismissed on the  ground of non-availing of alternative remedy and not  on merits....  Second writ petition cannot be so entertained, not because the learned Single Judge had no jurisdiction to   entertain the   same, but because entertaining   of such a second   writ petition would render the order of the same Court dismissing the earlier writ petition, redundant and nugatory although not reviewed by it in exercise of its recognized power.  Besides, if a learned Single Judge could entertain a second writ petition of a person respecting a matter on which his first writ petition was dismissed in limine by another Single Judge or a Division Bench of the same Court, it would encourage an unsuccessful writ petitioner to go on filing writ petitions after writ petition in the same matter, in the same High Court and for it brought up for consideration before one Judge after another.  Such a thing, if is allowed to happen, it would result in giving full scope and encouragement to an unscrupulous litigant to   abuse   the process of the High Court exercising its writ jurisdiction under Article 226 of the Constitution in that any order of any Bench of such Court refusing to entertain a writ petition could be ignored by him with impunity and the relief sought in the  same  matter by filing a fresh  writ petition. This would   only  lead  to introduction  of disorder, confusion  and chaos   relating  to   exercise  of  writ jurisdiction by Judges of the High Court, for  there  could be no finality  for  an order  of the Court refusing to entertain a  writ petition.  It is why the rule of judicial practice and procedure that a second   writ petition shall  not   be entertained  by  the  High Court  on  the subject  matter respecting that the  writ petition of the same person was dismissed by  the  same Court even if the order  of such  dismissal  was in limine, be it  on the  ground of latches or on the ground of non-exhaustion  of alternative remedy, has come  to  be  accepted  and  followed  as salutary   rule  in   exercise  of   writ jurisdiction  of  the  Court."  (Emphasis added).

In Burn & Co. Vs. Their Employees, AIR 1957 SC 38, the Hon'ble Apex Court has held as under:-

"That   would   be    contrary   to   the well-recognised principle that a decision once rendered by a competent authority on a  matter  in issue between  the  parties after  a  full  enquiry   should  not  be permitted  to  be re-agitated.  It is  on this  principle  that  the  rule  of  res judicata  enacted  in Section  11,  Civil P.C.  is based.  That section is, no doubt in  terms  in application to  the  present matter,  but the principle underlying it, expressed  in  the  maxim  "interest  rei publicae ut sit finis litium", is founded on   sound  public  policy   and  is   of universal  application. (Vide  Broom's Legal  Maxims, Tenth Edition, page 218). 'The  rule  of res judicata is  dictated' observed  Sir  Lawrence Jenkins C.J.  in Sheoparasan  Singh Vs.  Ramnandan  Prasad Narayan Singh, 43 Ind.  App.  91:  ILR 43 Cal. 694: (AIR 1916 PC 78) (C), by a wisdom  which is for all time."

Therefore, in view of the above referred judgments, it is abundantly clear that even if the provisions of the Code of Civil Procedure are not applicable   in   writ jurisdiction, the principle  enshrined  therein can be resorted  to for the reason  that the principles, on which the Code of Civil  Procedure is based, are founded on public policy   and, therefore,  require   to   be extended and made applicable in writ jurisdiction also in  the interest of  administration  of justice.   Any relief not claimed in the  earlier writ petition  should  be  deemed  to  have  been abandoned  by the petitioner to the extent of the cause of  action  claimed in the subsequent  writ petition and in order to restrain the person from abusing the process of the Court, such an order/course requires not only to be resorted to but to be enforced.

Apart  from above, so far as the question of charging transit fee from the petitioner is concerned, it is well settled that where the area of mining operation is declared as forest area or the holder of mining lease is utilizing the forest area or the goods are being transported through the forest area, the lease holder shall be liable to pay the transit fee.  In Kumar Stone Works & others Vs. State of U.P. & others  (2005 (3) AWC 2177) a Division Bench of this Court has held that the word 'forest' would include all that goes with it and even the mines and quarries which remained beneath the surface of the earth with minerals, stones and other products locked up in the land, will form part of the forest. They are being brought from the forest as during transportation they cross the forest. If a forest produce is being brought form a forest while in transit, the fee is payable.

In view of above, both the  writ petitions fail and are hereby dismissed with cost which, in the circumstances of the present case, is assessed to Rs. 25,000/- payable by the petitioner.   The petitioner is directed to deposit the amount of the cost with the Allahabad High Court Mediation and Conciliation Centre within a period of 6 weeks from today failing which the District Magistrate Sonbhadra shall recover the amount of Cost from the petitioner as arrears of land revenue and shall deposit the same in the aforesaid Mediation Centre of this Court.

However, keeping in view the fraudulent conduct of the petitioner , this Court is also of the view that such persons are not entitled to the mining leases granted by the State, therefore, the District Magistrate Sonbhadra is further directed to immediately start the proceedings in accordance with law for cancellation of the mining lease granted to the petitioner and pass appropriate orders within a period of 6 weeks from the date of receipt of certified copy of this order and communicate the compliance to this Court within a period of 2 months from today.

Copy of this order be sent to the Registrar General of this Court, District Magistrate Sonbhadra and Sri Alok Kumar Singh, learned Standing Counsel, free of costs within a week for ensuring compliance of this order and necessary follow up action.

Dated: 25.4.07.

Kst/-  


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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