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Jagannath Prasad Mishra Vs. Collector, Bilaspur and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberM.P. No. 212 of 1985
Judge
Reported inAIR1986MP248; 1986MPLJ321
ActsConstitution of India - Article 226; Madhya Pradesh Krishi Upaj Mandi Adhiniyam, 1973 - Sections 14; Code of Civil Procedure (CPC) , 1908 - Sections 11
AppellantJagannath Prasad Mishra
RespondentCollector, Bilaspur and ors.
Appellant AdvocateR.K. Pandey, Adv.;R.K. Thakur, Adv.
Respondent AdvocateV.K. Tankha, Adv.
DispositionPetition dismissed
Cases ReferredHoshak Singh v. Union of India
Excerpt:
- - it is well settled that decision on issue of fact or an issue of mixed law and fact by a competent court between the same parties operates as res judicata. union of india, air 1979 sc 1328 is clearly distinguishable......passed against the petitioner as the chairman of the krishi upaj mandi, bilaspur. 2. krishi upaj mandi committee, bilaspur, is a body corporate under the madhya pradesh krishi upaj mandi adhiniyam, 1973. the petitioner was duly elected its chairman. a no-confidence motion was passed against him on 12-4-1984. the motion was carried by 8 votes against none. the no-confidence resolution was challenged by the petitioner in his earlier petition m. p. no. 999/84, contending that the total number of members of the mandi committee were said to be 16 members but it might be 18 because constituencies of 5 m. l. a.'s and not 3 came within the market area of the committee, as per section 11 of the adhiniyam. under section 14, the no-confidence motion has to be carried by a majority of not less.....
Judgment:

C.P. Sen, J.

1. This is the third petition challenging the no-confidence motion dt. 12-4-84 passed against the petitioner as the Chairman of the Krishi Upaj Mandi, Bilaspur.

2. Krishi Upaj Mandi Committee, Bilaspur, is a body corporate under the Madhya Pradesh Krishi Upaj Mandi Adhiniyam, 1973. The petitioner was duly elected its Chairman. A no-confidence motion was passed against him on 12-4-1984. The motion was carried by 8 votes against none. The no-confidence resolution was challenged by the petitioner in his earlier petition M. P. No. 999/84, contending that the total number of members of the Mandi Committee were said to be 16 members but it might be 18 because constituencies of 5 M. L. A.'s and not 3 came within the market area of the Committee, as per Section 11 of the Adhiniyam. Under Section 14, the no-confidence motion has to be carried by a majority of not less than two-thirds of the members present and voting and such majority is more than one-half of the total number of members constituting the market committee, for the time being. So even if the committee had 16 members, at least 9 members should have been present and voted in favour of the resolution. Sincethe Presiding Officer alone was made a party and not the Krishi Upaj Mandi Committee, one member intervened to oppose the petition. It was contended that there were in all 16 members including 3 and not 5 M. L. A.'s and in support produced a memo of the Deputy Director, Agriculture, Dt. 6-10-79. It was pointed out that for the time being there were 15 members as one of its constituents i.e. Co-operative Marketing Committee, Bilaspur had not nominated its representative to the Mandi Committee. As such the no-confidence motion has been validly passed under Section 14. By order dt. 20-9-84 this Court dismissed the petition holding that for the time being there were 15 members and the no-confidence motion was validly passed The special leave petition No. 11736/84 preferred by the petitioner against the order of this Court was dismissed by the Supreme Court on 7-11-84. The petitioner then filed an application for review of the aforesaid order of this Court on the basis of a letter of Krishi Upaj Mandi Samiti, Bilaspur that in the Mandi Committee there are 5 and not 3 M. L. As. The review application was dismissed as devoid of substance by this Court on 23-11-84 as the only point argued in the petition was as to whether there were 16 or 15 members. Thereafter one Radheshyam Shukla, M. L. A. filed another petition M. P. No. 3630/84 challenging the no-confidence motion dt 12-4-84 on the ground that 5 M. L. As were included in membership of the committee and the no-confidence motion was not passed by more than half of the members for the time being of the Mandi Committee. That petition was also dismissed by this Court on 2-1-85, holding that this ground was available to the ex-chairman (the present petitioner) in M. P. No. 999/84 but it was not raised by him although the no-confidence motion was passed against him.

3. One Manoharalal Shende was elected new Chairman of the Mandi Committee on 31-12-1984. The petitioner then filed this third petition on 21-1-85, challenging the no-confidence motion dt. 12-4-1984, the above mentioned memo of the Deputy Director and the election of the said Manoharlal as the new Chairman, by producing another memo of the Deputy Director, Agriculture that the Mandi Committee membership should be 18 including 5 M. L. As. and the Collector isbeing moved to issue necessary notification under Section 11 of the Adhiniyam and that the earlier petition was dismissed on fraudulent representation about the total member of membership of the Mandi Committee. After filing of this petition, the petitioner has been expelled from the membership of the Mandi Committee by resolution dt. 7-2 1985. The petition is opposed by the Mandi Committee saying that the memo of the Director is not a notification under Section 11 and as such it has no value. The matter is concluded by the earlier decision dt. 20-9-84 in M. P. No. 999/84. The learned Government Advocate pointed out that the term of the present Mandi Committee is due to expire and election programme has been announced, fixing the date of election of the new body as 16-9-85 and so this petition has become infructuous.

4. The petitioner now contends that there can be no res judicata because (i) there was fraud in the earlier petition in disclosing the total number of membership; (ii) there was no contest in the earlier petition; (iii) there is new circumstance in view of the Deputy Director's subsequent memo dt. 16-1-85 that there should be 18 members, including 5 and not 3 M. L. As, in the Mandi Committee (iv) additional reliefs are being claimed in this petition and (v) plea of constructive res judicata is not to be generally applied to writ petitions.

5. Where there has been a decision on merits, the rule of constructive res judicata will be applicable to bar a second writ petition founded on the same cause of action. (Devilal v. S. T. O., AIR 1965 SC 1150, Gulabchand v. State of Gujarat, AIR 1965 SC 1153 and Lakhanpal v. Union of India, AIR 1967 SC 908). Even a second petition will not lie, when the relief was asked for but not granted in a previous petition, (M. S. R. T. C. v. Babajan, AIR 1977 SC 1112). The Supreme Court in Amalgamated Coal Fields v. Janapad Sabha, AIR 1964 SC 1013 did say that the artificial form of res judicata enacted by Section 11 of the Civil P.C. should not generally be applied to writ petitions. But this case was distinguished by the Supreme Court in the subsequent decisions referred to above. It was pointed out that the dictum in the Amalgamated Coal Field's case should be read in the light of the importance of the fact that the order whichwas challenged in the second writ petition was in relation to tax levied for a different period and not for the same period as was covered by the earlier petition. It is well settled that decision on issue of fact or an issue of mixed law and fact by a competent Court between the same parties operates as res judicata. A decision on issue of law will be res judicata in a subsequent proceeding between the same parties, if the cause of action is the same. Mathura v. Dassibai, AIR 1971 SC 2355. A wrong decision by a Court of competent jurisdiction is as binding as a right one : State v. Hemant, AIR 1966 SC 1061. In the earlier petition, the petitioner had contended that though there were 16 members in the Mandi Committee, it ought to be 18. The only challenge was as to whether the total number was 16 or 15 for the time being because one society had not sent its representative to the Mandi Committee. So there is no question of any fraud regarding disclosure that the committee had 16 members. The earlier petition was decided on merits after contest. So even if it was wrongly decided that there were 15 members only, still that decision is not open to challenge in subsequent petition. Moreover, the matter was concluded by dismissal of the Special Leave Petition against that order by the Supreme Court. The petitioner tried to re-agitate the matter by contending that there were 18 members and not 16 in a review petition but was not allowed to do so as that was not the point of contest of the petitioner in the earlier petition. A second petition filed by one M. L. A. was also dismissed by this Court on the ground that the question as to whether there were 18 members and not 16 members ought to have been raised in the first petition. It is true that additional relief has been claimed in this petition but two out of three reliefs claimed, are covered by the earlier decision and there is no ground made out for the third relief regarding setting aside of the election of Manoharlal Shinde as the new Chairman of the Committee. In any case the present writ petition is barred on the principle of constructive res judicata. The decision of the Supreme Court in Hoshak Singh v. Union of India, AIR 1979 SC 1328 is clearly distinguishable. After the rejection of the earlier petition in limine without a speaking order by the High Court against thecancellation of the permanent allotment, the petitioner filed a revision against the impugned order before the Central Government and on its dismissal, filed the second writ petition. So the Supreme Court held that there is no res judicata as the course of action was different, second writ petition was against the dismissal of the revision and the additional reliefs were claimed.

6. With the result, the petition fails and it is dismissed with costs. Counsel's fee Rs. 100/- to each set of respondents, i.e. respondents 1 and 2 and respondent 6. The outstanding amount of security amount, if any, be refunded to the petitioner.


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