GOPALAKRISHNAN NAIR J. - This is a petition under article 226 of the Constitution asking for a writ or an order in the nature of mandamus restraining the respondents from giving effect to the notices dated July 15, 1965, and July 27, 1965, issued by the 1st respondent (Tax Recovery Officer) under rule 73 of the Second Schedule to the Income-tax Act, 1961.
The circumstances leading up to this writ petition are briefly as follows :
The petitioner is the karta of a Hindu undivided family which was assessed to income-tax for the 5 years, 1955-56 to 1959-60. As the tax was not paid, certificates were issued to the 1st respondent (Tax Recovery Officer) for recovering the tax. As the mode of recovery by attachment of properties did not prove effective, proceedings were taken for realising the tax arrears by arrest and detention of the petitioner in civil prison. Two notices under rule 73 of the Second Schedule to the Income-tax Act, 1961, were issued by the Tax Recovery Officer. The first notice called upon the petitioner to show cause why the tax arrears should not be recovered from him by his arrest and detention in civil prison. It appears that as the first notice of July 15, 1965, had not specifically referred to the certificates of recovery issued by the 2nd respondent (Income-tax Officer), a subsequent notice dated July 27, 1965, was issued specifically mentioning that the petitioner had not paid the taxes shown in the certificates of recovery dated March 22, 1962, December 28, 1962, March 28, 1964, and November 12, 1964. In response to these notices, the petitioner appeared before the Tax Recovery Officer and made representations that he is not liable to be arrested and detained in civil prison for recovery of the tax arrears. After the enquiry, the Tax Recovery officer held that the petitioner was guilty of the acts mentioned in clauses (a) and (b) of rule 73 (1) and, therefore, passed an order on August 10, 1965, directing that the petitioner be committed to civil prison. Against this order of the 1st respondent, the petitioner preferred an appeal under rule 86 to the Joint Collector, Hyderabad. That appeal was dismissed by the Joint Collector, on the merits, by his order dated September 3, 1965. Subsequently, W. P. No. 1274 of 1965 was filed by the petitioner in this court on September 4, 1965. In that writ petition the petitioner questioned the constitutionality of rule 73 and also raised that the requirements of rule 73 had not been satisfied. A plea that the Tax Recovery Officer had no power and jurisdiction to take proceedings under rule 73 was also expressly taken in the writ petition. In an elaborate judgment delivered by one of us (Jaganmohan Reddy J.) the writ petition was dismissed on December 20, 1965. Against this decision, a writ appeal (Writ Appeal No. 166/65) was preferred. It was heard by a Division Bench Composed of the learned Chief Justice and Kumarayya J. on the 10th and the 13th of January, 1966, and judgment was reserved. But before the judgment was pronounced, the petitioners learned counsel wrote a letter dated January 21, 1966, to the High Court office requesting that the writ appeal be posted for being spoken to, and the said letter was circulated on January 27, 1966, to the Chief Justice and Kumarayya J. As a result of this, the writ appeal was posted on January 29, 1966, 'for being mentioned to'. Then the petitioners learned counsel sought leave to raise a new ground, viz., that the assessee being a Hindu undivided family, which is an artificial person, its karta, who is a natural person, cannot be proceeded against under rule 73. Their Lordships did not permit this new ground to be raised because it had not been taken in W. P. No. 1274 of 1965 and further because the relevant material bearing on the new ground was not before them. This led the petitioner to file the present writ petition on January 31, 1966. The Division Bench in its judgment, dated February 1, 1966, dismissed the writ appeal and thereby upheld the order of the Tax Recovery Officer that the petitioner be detained in civil prison for recovery of tax arrears.
The ground on which the present writ petition is rested is the one which was sought to be raised but was not permitted to be raised in the writ appeal, as already stated. It is that the assessee was a Hindu undivided family and, therefore, it alone could be treated as a defaulter for purposes of rule 73 and consequently the karta of the family could not be arrested and detained in civil prison for realising the tax arrears payable by the joint family.
This writ petition is resisted by the respondent on the grounds that it is barred by constructive res judicata, that, in any event, the petitioner cannot be permitted to raise for the first time a ground which was not taken by him in the prior proceedings in this court or before the Tax Recovery Officer or the appellate authority under rule 86, that the petitioner, as the karta of the Hindu undivided family, is liable to be arrested and committed to civil prison for recovery of the tax arrears in view of the provisions of rule 73 (1) (a) and (b) and that the petitioner has not come to this court with clean hands and that his tempts is only to delay or defeat recovery of the tax arrears.
The main question that has been argued before us is whether the present writ petition is barred by constructive res judicata. The facts, which we have already mentioned, would show that the petitioner did challenge the order of the Tax Recovery Officer directing his detention in civil prison in more than one forum. He first canvassed the correctness and validity of that order before the Joint Collector, who was appellate authority under rule 86. Having failed there, the petitioner resorted to this court by way or writ petition challenging the validity of the order and also the constitutionality of rule 73 and the jurisdiction of the Tax Recovery Officer to pass the order. He did not succeed in that attempt because the learned single judge, who heard the writ petition, held against the petitioner on all the points. A writ appeal (W. A. No. 166 of 1965) preferred by the petitioner against the decision in W. P. No. 1274/1965 was also dismissed by the Division Bench. Thus, the order of the Revenue Recovery Officer that the petitioner be committed to civil prison for realising the income-tax arrears has been finally held to be good and valid by this court. This decision of the Division Bench in Writ Appeal No. 166 of 1965 can be challenged only by way of a competent appeal. It cannot be sought to be neutralised or bypassed by resorting to the somewhat devious course of filing the present writ petition. No doubt, in the present writ petition, the formal relief asked for is to retrain the respondents from giving effect to the notices issued under rule 73. A notice under rule 73 is only a prescribed preliminary step in the proceedings under rule 73. The proceedings, which commenced with the issue of a show cause notice to the petitioner, culminated in the order that he be committed to civil prison and the tax arrears recovered by that mode of execution. After the final order passed in the rule 73 proddings was challenged without success in W. P. No. 1274 of 1965 and Writ Appeal No. 166 of 1965, we do not think that a contrary result can reasonably be sought to be achieved by attacking in a subsequent writ petition the comparative innocuous preliminary step of the issue of a notice to the petitioner by the Tax Recovery Officer at the inception of the proceedings. The notice was only a first step in the enquiry to determine whether the petitioner was liable to be committed to civil prison. If the final order of committed passed at the conclusion of the enquiry is good and valid, as it has been held to be by this court, there can be no point or purpose in impugning the show cause notice. The challenge to the validity of the notice can be effective and fruitful only if it can lead to a decision that the final order of committal of the petitioner to prison is bad. Mr. Narasaraju for the petitioner frankly statues that this is the true position. The prayer in the present writ petition that the respondent be restrained from giving effect to the notices issued under rule 73 is, therefore, just a thinly valid attempt to challenge once again the order of committal to civil prison passed against the petitioner by the Tax Recovery Officer. But this order has already been upheld by a Division Bench of this court in their judgment dated February 1, 1966, in Writ Appeal No. 166 of 1965. Mr. Narasaraju for the petitioner does not gainsay that the ground on which the present writ petition is rested could well have been taken by him in W. P. No. 1274 of 1965 and Writ Appeal No. 166 of 1965. Indeed, an almost last-minute attempt was made by the petitioner to raise this ground in the writ appeal but he was not permitted to raise it. It is this that has let to the filing of the present writ petition. This circumstance is sufficient to show that in truth and substances the present attempt of the petitioner is to impugn again the same order which he unsuccessfully impugned earlier in W. P. No. 1274 of 1965 and Writ Appeal No. 166 of 1965. The omission on the part of the petitioner to take this ground in W. P. No. 1274 of 1965 and the consequent loss of opportunity to raise it in Writ Appeal No. 166 of 1965 cannot be remedied and their effect nullified by filing the present writ petition. If it were otherwise, a person will be entitled to file successively as many writ petitions as there are ground on which he can possibly impugn a particular order. Such a procedure will plainly offend against the rule of constructive res judicata, which is as much founded on consideration of public policy as the doctrine of res judicata itself.
This position has been established by the recent decision of the Supreme Court in Devilal Modi v. Sales Tax Officer, the material facts of which are remarkable similar to the relevant facts of the instance case. At page 1152 of the report, their Lordships of the Supreme Court have pointed out :
'But the question as to whether a citizen should be allowed to challenge the validity of the same order by successive petitions under article 226 cannot be answered merely in the light of the significance and importance of the citizens fundamental rights. The general principle underlying the doctrine of res judicata is ultimately based on considerations of public policy. One important consideration of public policy is that the decisions pronounced by courts of competent jurisdiction should be final, unless they are modified or reversed by appellate authorities; and the other principle is that no one should be made to face the same kind of litigation twice over, because such a process would be contrary to considerations of fairplay and justice : vide Daryao v. State of U. P.
It may be conceded in favour of Mr. Trivedi that the rule of constructive res judicata which is pleaded against him in the present appeal is in a sense a somewhat technical or artificial rule prescribed by the Code of Civil Procedure. This rule postulates that if a plea could have been taken by a party in a proceeding between him and his opponent, he would not be permitted to take that plea against the same party in a subsequent proceeding which is based on the same cause of action; but basically, even this view is founded on the same considerations of public policy, because if the doctrine of constructive res judicata is not applied to writ proceedings, it would be open to the party to take one proceeding after another and urge new grounds every time; and that plainly is inconsistent with considerations of public policy to which we have just referred.'
Mr. Narasaraju has however placed reliance upon another decision of the Supreme Court in Amalgamated Coalfields Ltd. v. Janapada Sabha, Chhindwara. But this decision has been clearly distinguished in Devilal Modi v. Sales Tax Officer. The decision in Amalgamated Coalfields Ltd. v. Janapada Sabha, Chhindwara, turned on facts far removed from the facts of the present case and cannot therefore affect the applicability of the doctrine of constructive res judicata to the instant case. The present case is not one where a new ground is taken by an assessee to impugn an assessment order relating to a subsequent year. This is a case where an order for the recovery of the entire arrears of tax by committing the petitioner to prison was passed and the validity of that order was challenged in W. P. No. 1274 of 1965, and later in Writ Appeal No. 166 of 1965. Having failed in those attempts, yet another attempt is made by the petitioner in the present petition to get rid of the same order by setting up a new ground of attack. To such a case the doctrine of constructive res judicata would clearly apply. In other words, the principles of the decision of the Supreme Court in Devilal Modi v. Sales Tax Officer squarely applies to the case on hand. Mr. Narasaraju, the learned counsel for the petitioner, has not been able to show that this decision of the Supreme Court is not applicable to the present case. As we already indicated, by merely framing the formal prayer in this writ petition in a particular manner, viz., that the respondents should be restrained from giving effect to the notices issued under rule 73, the principle of constructive res judicata cannot be circumvented. The notice under rule 73 with which the proceeding under rule 73 commenced cannot be said to be outstanding to be separately impugned independently of the final order which was passed in that proceeding and which the petitioner unsuccessfully challenged in the previous petition under article 226 and the appeal therefrom. If a writ or order as asked for the petitioner in the present case is issued and the respondents are compelled to forbear from giving effect to the notices issued under rule 73, the final order passed in the rule 73 proceeding, which was upheld by this court in the previous writ petition and in the writ appeal, will be directly affected. And there is not point in issuing a writ or order in favour of the petitioner without restraining the respondents from giving effect to the order that the petitioner be detained in civil prison. If that order is to stand, no useful purpose will be served by issuing an order in the present writ petition that the notices under rule 73 must not be given effect to. When this aspect was pointed out to the learned counsel for the petitioner, he agreed that the object of this writ petition is to prevent the order of committal to civil prison passed against the petitioner by the Tax Recovery Officer from being enforced. As we already pointed out, this attempt cannot be permitted because it will be permitting the petitioner to impugn the same order or proceeding in a subsequent writ petition, on a ground which was not taken in the previous writ petition and which was not therefore permitted to be taken in the writ appeal. To the facts of the present case, the principle of the decision of the Supreme Court in Devilal Modi v. Sales Tax Officer, clearly applies. We have, therefore, no hesitation in holding that the present writ petition is barred by constructive res judicata.
In view of our conclusions on the question of constructive res judicata, it is unnecessary in this case to consider whether or not the petitioner as the karta of a Hindu undivided family is liable to be proceeded against under rule 73 for realising the income-tax assessed on the joint family. Both sides agreed that we may leave this question open, if our decision on the point of constructive res judicata is against the petitioner.
It follows from the foregoing that this writ petition fails and has to be dismissed with costs. Advocates fee, Rs. 150.