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Junagadh Salt and Allied Chemical Works Vs. the State of Gujarat and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Case NumberSpecial Civil Appln. No. 419 of 1970
Judge
Reported inAIR1973Guj68
ActsConstitution of India - Articles 226
AppellantJunagadh Salt and Allied Chemical Works
RespondentThe State of Gujarat and ors.
Appellant Advocate D.U. Shah, Adv.
Respondent Advocate G.T. Nanavaty, Asstt. Govt. Pleader and; A.A. Patel, for Purnanand and Co., Addl. Govt. Pleader and;
Cases ReferredArjun Singh v. Mohindra Kumar
Excerpt:
.....petition filed under art. 226 and a petition under article 32 on the same caused of the action may not necessarily be good in case of sub sequent petition on the same cause of action under art. justice divan for admission we are quite sure, having dismissed the earlier petition he would have dismissed this petition as well. having failed in those proceedings he instituted another proceeding in the high court under article 226 and 227 of the constitution......no. 29 of 1970 was filed by the petitioner against the aforesaid order petition recorded in the earlier writ petition. the following is the order which was passed on that appeal on 31st march 1970.'since some of the contention sought to be raised the appeal are not taken in the petition . mr. d. u. shah withdraws this appeal as he wants to file a fresh petition'.the order in terms state that it was the appeal which was allowed to be withdraw. the withdrawal of the appeal the order of summary rejection recorded by mr. justice divan in the earlier special civil application untouched and undisturbed. it became final and conclusive. the order recorded in the letter patent appeal also stated that the appeal was allowed to be withdrawn because the petition wanted to file a fresh petition......
Judgment:

Sheth, J.

1. The petitioner are a firm manufacturing salt at the Salt Works at Bherai in Rajula Taluka of Amreli District. The form Junagadh State and granted them a lease of land on 5th December 1943. fro the purpose of manufacturing salt. On 31st January 1969 the petitioner made an application to the State Government though the collector of Amreli for obtaining lease in respect of 800 acres of land at Bherai in the vicinity of their Salt Works and deposited a sum of Rs. 200/- for the purpose as required by the Rules made in that behalf. On 7th February 1969 K. S. Hindocha of Messrs. Hindocha Salt Works respondent No. 3 to this petition -- also made an application to the State Government on behalf of his firm for obtain lease of the said land at Bherai for manufacturing salt. chronologically the application made by K. S. Hindocha was subsequent to the application made by the petitioner. On 6th September 1969 the collector rejected the petitioner application. On 15th September 1969 the petitioner wrote in the matter to the collector requesting him not to grant lease in respect of the said land to anyone else pending certain steps which they wanted to tae order to move the State Government in that behalf on 19th December 1969 the application made by Hindocha for obtaining lease in respect of the said land was granted. It was order that S. No. 603 admeasuring about 675 acres be leased out to M/s Hindocha Salt Works for a period of twenty years on certain terms and conditions.

2. In this petition the petitioners are challenging tow order made by the State Government by one of which their application for lease was rejected and by another of which the application of Hindocha of lease was granted.

3. Mr. Zaveri who appears for the respondent NO. 3 has raised a preliminary objection to the maintainability of this petition. He has contended that the petition is barred by res judicata and also by the decision of finality he has invited out attention in that behalf to what the petitioner themselves have stated in paragraph 14 of the petition. this is what the petitioner have state in that paragraph Special Civil Application NO. 342 of 1970 was filed of the petitioner against the respondent NO. 1 and 3 only in which they challenged the aforesaid two order made by the State Government . The respondent NO. 2 to this petition -- the collector of Amreli -- was not a party to that petition. That petition was rejected summarily on 18th March 1970 by Mr. Justice Divan Against that order Letter patent Appeal NO. 29 of 1970 was filed by the petitioner. when the said appeal came up for hearing before the leaned Chief Justice and Mr. Justice P. D. Desai on 31st March 1970 it was allowed to be withdrawn on the application of the petitioner.

Mr. Zaveri contends that since the petitioners had already challenged the impugned orders in the said petition and since the said petition was finally disposed go the court. it is not open to the petitioner to file a fresh petition and challenge the impugned order again.

4. There is no dispute before an that the parties to this petition were the parties to special Civil Application NO. 342 of 1970 except the Collector of the Amerli who is the respondent NO. 2 to the petition and who was not a party to the earlier petition, It is also not in dispute before us that the contentions raised and the cause of the action stated in the earlier petition are the contentions raised and the cause of action stated in the present petition. It is also not the in dispute before us that the relief which the petitioners prayed for in the earlier petitioner are the reliefs which have been prayed for in this petition. There are only two points of difference between the earlier petition and this petition. To the earlier petition the collector of Amerli was not a party. He is a party to the present petition. In the earlier petition vires to Rule 42 of the Bombay Land Revenue Rules were not challenged. They are challenged in this application. Except these to two points of the difference the present petition is exactly identical to the earlier petition. The earlier petition was summarily rejected in 18th March 1970 by Mr. Justice Divan. The order of rejection recorded in that petition appears to have been made on the merited of the case. That other finally could the proceeding in the special Civil Application. It would have been respondent only either upon the review application or upon a appeal . Letter Patent Appeal No. 29 of 1970 was filed by the petitioner against the aforesaid order petition recorded in the earlier Writ Petition. The following is the order which was passed on that appeal on 31st March 1970.

'Since some of the contention sought to be raised the appeal are not taken in the petition . Mr. D. U. Shah withdraws this appeal as he wants to file a fresh petition'.

The order in terms state that it was the appeal which was allowed to be withdraw. The withdrawal of the appeal the order of summary rejection recorded by Mr. Justice Divan in the earlier Special Civil Application untouched and undisturbed. It became final and conclusive. The order recorded in the Letter Patent Appeal also stated that the appeal was allowed to be withdrawn because the petition wanted to file a fresh petition. The filing of a fresh petition must necessary be subject to its maintainability. If the petitioner were allowed to withdraw the petition (and not the appeal) with liberty to file fresh petition, the position would be have been entirely different. In that case the petition was not allowed to the withdrawn and it could not have been allowed to be withdraw without issuing notice to the respondents in whose favour a final order had been recorded by Mr. Justice Divan in the Special Civil Application though the had done it in their absence . Since the Letter Patent Appeal was allowed to be withdraw at the admission stage, to the notice was issued to the respondents and therefore the earlier petition could not be allowed to be withdraw because the final order reordered thereon could not be set at naught without hearing the parties in whose favour it was recorded.

5. Mr. Zaveri was contended that the final order of summary rejection record in the earlier petition and the withdrawal of the Letter Patent Appeal filed against that order operate as re judicata and the present petition. The order made by Mr. Justice Divan is really not speaking order. It does not state which grounds appealed to him and which did not appeal to him. However, it cannot gainsaid it is an order on merits Mr. D. U. Shah has contended before us that such an order of summery rejection does not operate as res judicata and has relied upon the decision of the Supreme Court in Daryao v. State of U. P. AIR 1961 SC 1457 . In that case writ petition under Art. 226 in the first instant were the in the High Court challenged certain orders. They were dismissed. thereupon fresh writ petitions filed in the Supreme Court under Art. 32 and the contention which was raised was that the writ petition filed in Supreme Court under Article 32 were should barred by res judicata in view of the final orders passed in the writ petition filed in the High Court. Having examined that contention the Supreme Court has laid down several propositions. The position which obtains where a case under Art. 226 has been decide by the High Court after contest and by the judgment and where a fresh Writ Petition one the same cause of action if filed in the Supreme Court under Article 32 thereafter has been stated in the following terms.

'We hold that if a writ petition filed by a party under Art 226 if considered on the merits as a contested matter and is dismissed the decision thus pronounced would become continue to bind the parties unless it is otherwise modified or reversed by appeal or to her appropriate proceeding permissible under the Constitution. It would not be open to a party to ignore the said judgment and move this Court under Art 32 by an original petitioner made on the same facts and for obtained the same or similar orders of the writs'. In cases where a petition under Art 226 has been dismissed not on a merits but because of the laches on the part of a party of because a party has alternative remedy the position which obtains has been stated by the Supreme Court in the following terms:

'If the petition filed in the High court under Art. 226. is dismissed not on the merits but because of the laches of the party applying for the writ or because is it held that the party had an alternative remedy available to the it then the dismissal of the bar writ petition would not constitute a bar to a subsequent petition under Art,. 32 except in cases where and if the facts thus found by the High Court may themselves be relevant even under Art. 32.'

Discussion the operation of the bar of res judicata in the case where a writ petition haw been dismissed limine this is what the Supreme Court has stated in the aforesaid decision.

' If a writ petition is demised in limine and an order is pronounced in the behalf,. where or no the dismissed would constitute a bar would depend up on the nature of the order. If the order is no the merits it would be a bar; if the order shows that the dismissal was for the same that the petition was gully of laches or that he had an alternative remedy it would not be a bar except in cases which wee have already indicated,. If the petition is dismissed in the limine without passing a speaking order then such dismissal cannot be treated as creating a bar of the res judicata. It is true that prima facie dismissal in limine even without passing a speaking order in that behalf may strongly suggest that that Court took the view that there was no substance in the petition at all but in the absence of a speaking order it would not be easy to decide what factors weight in the mind of the court and that makes it difficult and unsafe to hold that such a summary dismissal is a dismissal on merits and as such constitutes a bar of res judicata against a similar petition filed under Art. 32'.

Discussion the operation of the bar of res judicata in the cases where the petition under Art. 26 have been withdraw this is what the Supreme Court has stated in the aforesaid decision.

'If the petition is dismissed as withdrawn it cannot be a bar to a subsequent petition under Art 32 because in such a case there has been no decision on the merits by the Court'.

It has been made clear in that decision that the conclusion record therein are confined only to the point to res judicata and to no other point. In case of petition under Art. 226 which has been dismissed on merits in limine the Supreme Court appears to be taking the view that such orders do not created a bar of the judicata against fresh petition on the same cause of action under Art. 32 where the orders of summary dismissal are not speaking orders. In the instant case, the order of the summary dismissal record by Mr. Justice divan is not a speaking order, Mr. Zaveri has however made an attempt to compare the contentions raised by the petition in their earlier petition and the Memorandum or appeal with the contention raised in the present petition and then tried to submit that the petitioner in the present petition have raised the same contention which they had raised in the earlier petition except one relating to the vires of Rule 42 of the Bombay Land Revenue Rules. We do not propose to take the order which Mr. Zaveri has asked to take because in our opinion under Art. 226 and a petition under Article 32 on the same caused of the action may not necessarily be good in case of sub

sequent petition on the same cause of action under Art. 226.

6. We are looking at the question from a slightly different angle. The order of Summary dismissal recorded by Mr. Justice Divan in the earlier petition is an order of the concerned. it has become final and convulsive consequent upon the withdrawn of the Letters Patent Appeal . The question, therefore, which arises for out consideration is this: can we revise that order in an independent proceeding instituted of obtaining the same reliefs on the same cause to action? Can we entertain this petition as an independent proceeding in the nature of an appeal against the said order of Mr. Justice Divan? In our opinion, we cannot to do, The petition by there earlier petition invoked the original jurisdiction of this Court under Art 226 for obtaining certain reliefs on a certain cause of action. In our opinion, it is not open to them to invoke the same jurisdiction for obtaining the same relief on the same cause of action again after their earlier petition was summarily dismissed on merits. We are a Court of co-ordinate jurisdiction. The present petition has come up before us only because the vires of Rule 42 of the Bombay Land Revenue Rules have been challenged. If that challenge was not made by the petitioners and if the petition was filed raising all other contentions, this petition would have gone to a learned Single Judge of this Court and we are quite sure. in view of the summary dismissal of the earlier petition. this petition would have been dismissed by a single Judge. Merely because the question as to the vires of Rule 42 has been raised. it cannot be used by the petitioner as a spring-board to take a jump to reagitate the entire controversy in this Court. If this petition had been placed before Mr. Justice Divan for admission we are quite sure, having dismissed the earlier petition he would have dismissed this petition as well. In other words, there is some finality which attaches to the orders of the Court whether they are orders of summary dismissal or whether they are orders recorded after contest. In Shankar Ramchandra Abhuankar v. Krishnaji Dattaraya Bapat. AIR 1970 SC 1 the Supreme Court was dealing with the case where a party had involved the revisional jurisdiction of the High Court against an order of the Appellant court under the Bombay Rent Act. Having failed in those proceedings he instituted another proceeding in the High Court under Article 226 and 227 of the Constitution. Dealing with the maintainability of the second set of proceeding this its what the Supreme Court has stated in paragraph 8 if its judgment:

'If there are two modes of invoked the jurisdiction of the High Court and one of those modes has been chosen and exhausted if would not be a proper and sound exercise is discretion to grant relief in the other set of the subordinate Court. The refusal to grant relief in such circumstances would be in consonance with the anxiety of the court to prevent abuse of process as also to respect and accord finality to its own decisions'.

The doctrine of finality attaches to the decision of this Court. What has been finally decided by Mr. Justice Divan cannot be reopened by us in an obtaining the same relief on the same cause of the action. To do so would amount to an abuse or process. If the doctrine of finality applies to proceedings institute under different provision of law as it was in the aforesaid case before the supreme Court it applies with great force to processing instituted one after another under the same provision of law., as in the present case. Even in the of interlocutory orders afresh order cannot be passed expect on proof of new facts or new institution. That is the view expressed by the Supreme Court in Arjun Singh v. Mohindra Kumar AIR 1964 SC 993. If in case of the interlocutory proceeding except on new fact or new situation the order recorded earlier cannot be called in question on . It is much more so in case of final orders passed in proceedings under Art. 226.

7. So far as the question relating to vires of Rule 42 of the Bombay Land Revenue Rules is concerned it is new plea which the petitioners have raised in the present petition. Mr. Shah has however, neither argued it nor pressed it for our decision. Therefore, basically and fundamentally the present petition is the same as the earlier petition. The absence in the present petition and his presence in the present petition do not make any difference whatsoever because. on their own showing. the impugned orders have been made by the State Government. In order to challenge them it was the State Government which was a necessary party to the earlier proceedings and it was made a party-respondent to that petition. In the present petition the State Government is a necessary party and it has been made a party-respondent. though the petitioner out of abundant caution have joined the Collector as a party-respondent. In my view of these circumstances, the absence of the Collector in the earlier proceedings and his presence in these proceedings and his presence in these proceedings do not make any difference whatsoever, so far as the application of the doctrine of finality is concerned.

8. In our opinion, therefore, since the controversy between the parties has finally concluded in the earlier writ-petition. it is not open to the petitioners to file a fresh writ petition and to reagitate the same questions. It is not open to a Court to law to make two contradictory final orders in respect of the same subject-matter. If we decide this petition on merits and allow it. we would be recording an order contradictory to the final order recorded by Mr. Justice Divan in the earlier writ petition. While exercising the same jurisdiction in respect of the same subject-matter between the same parties we cannot record two contradictory orders. The doctrine of finality. in our opinion. must apply for certain other reasons also. Indisputably it is open to a High Court to record an order of summary dismissal in a writ petition. If such an order is not final between the parties. a party which fails to get his petition admitted will go on filing petitions after petitions agitating the same controversy until the High Court records either a speaking order or a judgment. This. in our opinion. will lead to an intolerable situation. It will reduce the process of law to mockery. If such a situation is allowed to develop. the only choice which the High Court will have to make in petitions under Art. 226 is either to record a speaking order if it wants to dismiss a petition summarily for want of merits or to admit it and decide it by a judgment even though it may have no merits.

9. For the aforesaid reasons. we are of the opinion that the present petition is not maintainable and must be dismissed in limine. Merely because it has been admitted and Rule has been issued to the respondents it does not make any difference whatsoever so far as the maintainability of this petition is concerned. The petition. therefore. fails, Rule is discharged. In the circumstances of the case there shall be no order as to costs.

10. Petition dismissed.


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