B. K. MEHTA, J. ( 1 ) A short but interesting question arises in this petition as to what is the effect of withdrawal of a petition for a writ of Habeas Corpus without liberty being reserved by the Court for filing fresh petition in respect of the same cause of action. The question arises in the following circumstances: ( 2 ) ONE Girish Ambalal Gandhi has been detained by an order of the Police Commissioner dated August 12 1985 in 110 exercise of his powers under Section 3 of the Gujarat Prevention of Antisocial Activities Act 1985 (hereinafter referred to as the Act ). The brother of the detenu moved this Court by Special Criminal Application No. 618 of 1985 praying for a writ of certiorari to quash and set aside the said order of detention. The petitioner was heard fully by the Division Bench consisting of G. T. Nanavati and M. B. Shah JJ. on September 17 1985 when the matter was exhaustively argued by Mr. M. R. Barot learned Advocate then appearing on behalf of the petitioner in that petition who happens to be the brother of the detenu. The matter ultimately reached for judgment on 19th September 1985 At that time another learned Advocate Mr. V. M. Barot appeared for Mr. M. R. Barot who had argued the matter on behalf of the detenu when an attempt was made to advance a contention about the delay in considering the representation of the petitioner by the State Government. The Division Bench did not permit Mr. V. M. Barot who urged this point or to allow him to amend the petition with the result that the learned Advoocate Mr. V. M. Barot sought permission from the Court to withdraw the petition with leave to file fresh petition. the Division Bench passed the following order permitting withdrawal of the petition: 28-1-1986 learned counsel Mr. M. R. Barot appearing for the petitioners concluded his arguments on 17th September 1985 Today when we were about to start dictating the judgment Mr. V. M. Barot for Mr. M. R. Barot seeks leave to withdraw this Special Criminal Application as he proposes to file a fresh petition raising certain additional contentions. The learned Public Prosecutor appearing for the respondent State has no objection. Permission is therefore granted. Petition disposed of as withdrawn. Rule discharged. V. M. Barot for Mr. M. R. Barot seeks leave to withdraw this Special Criminal Application as he proposes to file a fresh petition raising certain additional contentions. The learned Public Prosecutor appearing for the respondent State has no objection. Permission is therefore granted. Petition disposed of as withdrawn. Rule discharged. The present petition was moved thereafter on the next day that is on September 20 1985 The same Bench of G. T. Nanavati and M. B. Shah JJ. issued rule which reached for hearing on the returnable date before another Bench of A. M. Ahmadi and D. H. Shukla JJ. on December 3 1985 At the time of hearing a preliminary objection was raised by the learned Public Prosecutor then appearing on behalf of the State that the earlier petition was withdrawn after it was thoroughly and extensively argued before the earlier Division Bench and therefore the second petition was not competent. On behalf of the petitioner it was not disputed that the earlier petition was filed and withdrawn. The learned advocate appearing for the petitioner contended that the petitioner had been permitted by the earlier Bench to withdraw the petition reserving on him liberty to file a fresh petition challenging the very same detention order. The State Government joined issue as to whether permission was so granted as claimed on behalf of the petitioner. The Division Bench having regard to this controversy referred to matter 10 the earlier Bench at the request of the learned advocate for the petitioner. Accordingly the matter was placed for clarification before the Division Bench of G. T. Nanavati and M. B. Shah JJ. On December 10 1985 when the Division Bench clarified the position in the following terms:after hearing the learned advocates for both the sides it is clarified that when we disposed of Special Criminal Application No. 618 of 1985 permission to file a fresh petition was not specifically sought for. But Mr. Barot had stated to the Court that he wanted to file a fresh petition because his oral request to amend the petition was objected to by the other side. We had therefore merely recorded the statement made by Mr. Barot; and since 111 no specific prayer was made we had neither granted nor refused to grant permission to file a fresh petition. We had therefore merely recorded the statement made by Mr. Barot; and since 111 no specific prayer was made we had neither granted nor refused to grant permission to file a fresh petition. Within a few days thereafter another petition i. e. the present petition was filed challenging the same order of detention; and we had thought it fit to issue Rule therein. It is in these circumstances that we have to decide as to whether the preliminary objection is well-founded. We ate of the opinion that the preliminary objection must prevail obviously for the following reasons. ( 3 ) THE question about the competency of the second petition or writ of Habeas Corpus after the first petition is dismissed was considered by this Court in Ratilal Navik v. State 1985 (1) GLR 23 where this very Division Bench following the decision in Ghulam Sarwar v. Union of India AIR 1967 SC 1335 In re. Prahlad Krishna Kurne AIR 1951 Bombay 25 and Emperor v. Malhai AIR 1948 Bom. 396 ruled that successive petitions for a writ of Haheas Corpus were not competent before the same Court since under Article 226 it was only the High Court that can issue a writ for the enforcement of fundamental rights which jurisdiction is conferred upon the High Court as such and not upon any Judge or Judges of the Court and therefore when a Division Bench of a High Court hears a petition under Article 226 it is hearing that application as the High Court and the ultimate decision is that of the High Court and therefore the second application for a writ of Habeas Corpus would not be competent before the same High Court even on fresh grounds. It should be recalled that in Ghulam Sanwars Case (supra) the five Judges Bench of the Supreme Court speaking through Subba Rao J. referred to the view of the English and American Courts on the question as to whether the second petition when the first is dismissed would be barred on the principle of res judicata. In England a decision on the writ of Habeas Corpus was not considered a Judgment and therefore there they held that it would not operate as res judiwith the result that a detenu can make successive applications before different Judges of the same High Court. In England a decision on the writ of Habeas Corpus was not considered a Judgment and therefore there they held that it would not operate as res judiwith the result that a detenu can make successive applications before different Judges of the same High Court. Subsequently however the English Courts held that a person detained cannot file successive applications for a writ of Habeas Corpus before different Courts of the same Division or before different Divisions of the same High Court on the ground that Divisional Court speaks for the entire Division and that each Division for the entire Court. The Administration of Justice Act 1960 incorporated this view as a statutory rule. The American Courts held that the second petition is not barred on principle of res judicata which was not applicable to Habeas Corpus writ proceedings since essentially this writ jurisdiction is invoked to test as to whether the detention is lawful or void ab initio. The Supreme Court thereafter considered the legal position in this behalf in the context of the jurisdiction of the High Courts in India. We can do no better than reproduce what the Supreme Court has said in this connection:but coming to India so far as the High Courts are concerned the same principle accepted by the English Court will equally apply as the High Court functions in Divisions not in Benches. When it functions as a Division it speaks for the entire Court and therefore it cannot set aside the order made in a writ of Habeas Corpus earlier by another Division Bench. But this principle will not apply to different Court. The High Courts of Allahabad Bombay Madras Nagpur and Patna and East Punjab have accepted this view though the Calcutta High Court took the view that successive applications of Habeas Corpous culd be filed. But unlike in England in India the person 112 detained can file original petition for enforcement of his fundamental right to liberty before a Court other than the High Court namely this Court. The order of the High Court in the said writ is not res judicata as held by the English and the American Courts either because it is not a judgment or because the principle of res judicata is not applicable to a fundamentally lawless order. The order of the High Court in the said writ is not res judicata as held by the English and the American Courts either because it is not a judgment or because the principle of res judicata is not applicable to a fundamentally lawless order. If the doctrine of res judicata is attracted to an application for a writ of Habeas Corpus there is no reason why the principle of constructive res judicata cannot also govern the said application for the rule of constructive res judicata is only a part of the general principles of the law of res judicata and if that be applied the scope of the liberty of an individual will be considerably narrowed. The present case illustrates the position. Before the High Court the petitioner did not question the constitutional validity of the Presidents order made under Article 359 of the Constitution. If the doctrine of constructive res judicata be applied this Court though is enjoined by the Constitution to protect the right of a person illegally detained will become powerless to do so. That would be whittling down the wide sweep of the constitutional protection. ( 4 ) THIS Division Bench therefore considered as to what was the view of of the Bombay High Court in this connection. In re. Prahlad Krishna Kurne AIR 1951 Bombay 25 this question arose in context of a further application made by the detenu whose earlier application under Section 491 of the Code of Criminal Procedure was rejected and application for review of the said order was held to be not competent. The further application was made to the Court that although a review might not lie it was a right of the detenu to make all application for a writ of Habeas Corpus under Article 226 on the Constitution to the successive Judges of the Court and therefore even though the application for review stricto senso might not be competent it might be treated as an application under Article 226. The Full Bench speaking through Chagla C. J. referred to the legal position in U. K. in that behalf as digested in Halsburys Laws of England Vol. The Full Bench speaking through Chagla C. J. referred to the legal position in U. K. in that behalf as digested in Halsburys Laws of England Vol. IX p. 727 para 1239 where it has been noted that the applicant has a right to apply to every court competent to issue a writ of Habeas Corous and each tribunal must determine such an application upon its merits unfettered by the decision of any other tribunal of coordinate jurisdiction even though the grounds urged are exactly the same. After noting the above observations the Full Bench observed that the right which has been recognized is the right not to approach every Judge of a Court but to approach every Court and every Tribunal and there is no right to approach the same Tribunal or the same Court. The Full Bench also noted that each Judge of the High Court of Justice in England is constituted a Court or a Tribunal for the purpose of issuing writs of Habeas Corpus and therefore the subject has a right to approach each Judge successively. The Full Bench thereafter considered the position in India in respect of orders passed by the High Court under Section 491 of the Code of Criminal Procedure. The Full Bench ruled as under:it is true that the High Court acts through a Judge or Judges nominated by the Chief Justice for that purpose and although an application under Section 491 may be heard by a Division Bench of this Court the judgment that it ultimately pronounces is not the judgment of that Division Bench but the judgment of the High Court. The Division Bench acts on behalf of the High 113 Court and as the High Court for the purpose of hearing and disposing of an application under Section 491. Therefore when the decision is given it is the decision of the High Court. There is no provisions either in the Letters Patent or in any of the rules framed by the High Court for a Judge or Judges of the High Court to exercise independent jurisdiction in matters coming under Section 491. The question still remains whether in cases that may not fall under Section 491 and which may fall under Article 226 there is any independent jurisdiction conferred upon any Judge of the High Court to issue writs contemplated by Article 226. The question still remains whether in cases that may not fall under Section 491 and which may fall under Article 226 there is any independent jurisdiction conferred upon any Judge of the High Court to issue writs contemplated by Article 226. It is clear that even under Article 226 it is only the High Court that can issue a writ for the enforcement of a fundamental right. The jurisdiction is conferred upon the High Court as such and not upon any Judge or Judges of that Court and therefore when a Division Bench of this Court hears an application under Article 226 it is hearing that application as the High Court and its ultimate decision is not their decision but the decision of the High Court. ( 5 ) THE Full Bench thereafter referred to the competency of a review application of such order rejecting the earlier petition under Article 226 for writ of Habeas Corpus. The Full Bench negatived such a power but observed that such a person would not be rendered without remedy because an aggrieved person has an independent right to approach the Supreme Court under Article 32 of the Constitution having regard to the concurrent jurisdiction of the Supreme Court under Article 32 or has a right to ask for special leave to appeal under Article 136. This Division Bench therefore noted in Ratilal Naviks Case (Supra) that the net result of the decision of the Bombay High Court is that under Article 226 the petitioner has no right to present successive application for issue of a writ of Habeas Corpus to different Judges of the same High Court. This Division Bench thereafter referred to three decisions of the Supreme Court namely Lakhanpal v. Union of India AIR 1967 SC 908 Kirit Kumar v. Union of India AIR 1981 SC 1621 and Sunil Dutta v. Union of India AIR 1982 SC 53 relied upon by the petitioner-detenu before the Division Bench in support of the contention that successive applications were competent on fresh grounds. The Division Bench found itself unable to uphold the contention since the view of the Supreme Court in Ghulam Sarwars Case (supra) ruled the field and stood as good law since that decision has been approvingly referred to in the decision of the Supreme Court in Lallu Jogis Case (supra) as well as in Kirit Kumars Case (supra) and particularly because the Supreme Court in all the three cases was concerned with a successive writ petition filed under Article 32 of the Constitution and also because the Full Bench decision of the Bombay High Court being pre-bifurcation decision was binding on this Court. ( 6 ) THE learned advocate appearing for the petitioner however attempted to distinguish the present position from the one with which this Division Bench was concerned in Ratilal Naviks Case (supra) or for that matter the Supreme Court in Ghulam Sarwars Case (supra ). It was urged on behalf of the present petitioner that the earlier decision would operate as res judicata and bar the entertainment of section petition only if the earlier decision was rendered on merits. The learned advocate for the petitioner drew our attention that in the present case the earlier petition was permitted to be withdrawn and the earlier decision of G. T. Nanavati and M. B Shah JJ. disposed of the peti 114 tion as withdrawn and therefore it cannot be successfully urged as was sought to be done on behalf of the State Government that the earlier decision would operate as res judicata since it was not rendered on merits and the earlier petition stood disposed of as withdrawn. In support of this contention reliance was sought to be placed on behalf of the petitioner on the decision of the Supreme Court in Daryao v. State of U. P. AIR 1961 SC 1457 We are afraid that this is too spacious a contention which we can uphold. What the Supreme Court has laid down in Daryaos Case is that if the petition is dismissed as withdrawn it could not be a bar to a petition under Article 32 because in such a case there is no decision on merits. What the Supreme Court has laid down in Daryaos Case is that if the petition is dismissed as withdrawn it could not be a bar to a petition under Article 32 because in such a case there is no decision on merits. We do not think that the decision in Daryaos Case can be an authority for the proposition canvassed on behalf of the petitioner that the second application would be competent even if the earlier petition has been disposed of or dismissed as withdrawn when no liberty has been reserved with the approval of the Court to the petitioner for filing fresh petition in respect of the same cause of action. It is no doubt true that in Daryaos Case (supra) the Supreme Court did not express any opinion on the question as to whether repeated application for Habeas Corpus would be competent under the Constitution since the Court was not concerned in that case with such a situation. We do not think that this decision could be of any assistance firstly because if the present petition is for a writ of Habeas Corpus the position is subsequently concluded by Ghulam Sarwars Case (supra) which decision was rendered in the context of Habeas Corpus writ proceedings decided on December 15 1966 reported in AIR 1967 SC: 1335. Alternatively if the petition was for a writ of certiorari as the relief clause indicates what has been overlooked by pressing this contention is the bar of principle of res judicata applying in the same proceedings and another set of different proceedings. What has been overlooked while pressing this contention before us by the learned Advocate for the petitioner is bar of such proceeding before the same Court and different proceedings before another Court. The position in this behalf has been clarified by the Supreme Court no doubt in the context of a second writ petition under Article 226 in the High Court by the employer after their petition under Article 32 before. the Supreme Court was dismissed after perusal of papers and after hearing the counsel without making a speaking order in Workmen Cochin Trust v. Board of Trustees AIR 1978 SC 1283 at page 1287 It is in this context that the Supreme Court speaking through Untwalia J. clarified the position in paragraph 9 which is worth setting out in extenso. It reads as under:. . . It reads as under:. . . IN the instant case the award of the Tribunal no doubt was challenged in the special leave petition filed in this Court on almost all grounds which were in the subsequent writ proceeding agitated in the High Court. There is no question therefore of applying the principles of constructive res judicata in this case. What is how ever to be seen is whether from the order dismissing the special leave petition in limine it can be inferred that all the matters agitated in the said petition were either explicitly or implicitly decided against the respondent. Indisputably nothing was expressly decided. The effect of a non-speaking order of dismissal without anything more indicating the grounds or reasons of its dismissal must by necessary implication be taken to have decided that it was not a fit case where special leave should be granted. It may be 115 due to several reasons. It may be one or more. It may also be that the merits of the ward were taken into consideration and this Court felt that it did not require any interference. But since the order is not a speaking order one finds it difficult to accept the argument put forward on behalf of the appellants that it must be deemed to have necessarily decided implicitly all the questions in relation to the merits of the award. A writ proceeding is a different proceeding. Whatever can be held to have been decided expressly implicitly or even constructively while dismissing the special leave petition cannot be reopened. But the technical rule of res judicata although a wholesome rule based upon public policy cannot be stretched too far to bar the trial of identical issues in a separate proceeding merely on an uncertain assumption that the issues must have been decided. It is not safe to extend the principle of res judicata to such an extent so as to found it on mere guesswork. To illustrate our view point we may take an example. Suppose a writ petition is filed in a High Court for grant of a writ of certiorari to challenge some order or decision on several grounds. It is not safe to extend the principle of res judicata to such an extent so as to found it on mere guesswork. To illustrate our view point we may take an example. Suppose a writ petition is filed in a High Court for grant of a writ of certiorari to challenge some order or decision on several grounds. If the writ petition is dismissed after contest by a speaking order obviously it will operate as res judicata in any other proceeding such as of suit Article 32 or Article 136 directed from the same order or decision. If the Writ Petition is dismissed by a speaking order either at the threshold or after contest say only on the ground of laches or the availability of an alternative remedy then another remedy open in law either by way of suit or any other proceeding obviously will not be barred on the principle of res judicata. Of course a second writ petition on the same cause of action either filed in the same High Court or in another will not be maintainable because the dismissal of one petition will operate as a bar in the entertainment of another writ petition. Similarly even if one writ petition is dismissed in limine by a non-speaking one word order dismissed another writ petition would not be maintainable because even the one word order as we have indicated above must necessarily be taken to have decided impliedly that the case is not a fit one for exercise of the writ jurisdiction of the High Court. Another writ petition from the same order or decision will not lie. But the position is substantially different when a writ petition is dismissed either at the threshold or after contest without expressing any opinion on the merits of the matter then no merit can be deemed to have been necessarily and impliedly decided and any other remedy of suit or other proceeding will not be barred on the principle of res judicata. The Supreme Court pointed out operation of the bar of the principle of res judicata in the same proceedings as distinct in the proceedings altogether different in nature. The Supreme Court pointed out operation of the bar of the principle of res judicata in the same proceedings as distinct in the proceedings altogether different in nature. In paragraph 10 the Supreme Court pointed out in Cochin Port Trusts Case as under:i have thought it proper to elucidate this aspect of the matter a bit further to indicate that dismissal of a writ petition in limine by a non-speaking order could certainly create a bar in the entertainment of another writ petition filed by the same party on the same cause of action. In State of U. P. v. Nawab Hussain AIR 1977 SC 1980 the Supreme Court applied the principle of constructive res judicata by holding that a suit to challenge the order of dismissal from service after rejection of the writ petition on merits was not maintainable inspite of a new ground of attack urged in the suit which was not taken in the earlier writ proceeding. This 116 decision in Nawab Hussains Case has been quoted with approval by the Supreme Court in Cochin Port Trusts Case (Supra ). The observations which have been relied upon by Untwalia J. in Cochin Port Trusts Case are illustrative on the point. Untwalia J. quoted with approval from the decision of Queens Bench in Ex Parie Thompson (1845) 6 QB 721. It reads as under:lord Denman C. J. observed that as Stamphena was making an application which had already been refused on fresh materials he could not have the same application repeated from time to time as they had often refused rules on that ground. The same view has been taken in England in respect of renewed petition for certiorari quo warranto and prohibition and as we shall show that is also the position in this country. In view of the settled legal position unless the petitioner had reserved with the permission of the Court liberty to himself to file fresh petition we are afraid the second petition would not be competent since it is not merely on the basic principle of res judicata but a necessary consequence of extended principle of estoppel. In view of the settled legal position unless the petitioner had reserved with the permission of the Court liberty to himself to file fresh petition we are afraid the second petition would not be competent since it is not merely on the basic principle of res judicata but a necessary consequence of extended principle of estoppel. This view has been taken by one of us sitting as a Single Judge in Special Civil Application No. 4320 of 1981 decided on October 13 1982 where the Court was concerned as to the competency of a second application at the instance of an employee of the Indian Institute of Management after the withdrawal of an earlier original application in Letters Patent preferred by him from the order of the learned Single Judge dismissing his earlier original application on merits with liberty to him to make a representation in the matter. A similar contention raised on behalf of the employee that since the original application was withdrawn the order passed by the learned Single Judge did not survive and therefore there cannot be any bar of res judicata to the second application in respect of the same cause of action. The said contention had been precisely rejected by this Court in view of the above decision of the Supreme Court in Cochin Port Trusts Case (supra) and Nawab Hussains Case (supra) and particularly because no liberty was reserved with the permission of the Court by the employee to file fresh petition. Reliance was sought to be placed on behalf of the petitioner on the decision of the Supreme Court in Hoshnak Singh v. Union of India AIR 1979 SC 1328 . The Court was there concerned about the competency of the second petition preferred against all order made in revision from the original order which was challenged by the earlier petition which was withdrawn for the purpose of availing of alternative remedy available under the Act under which the said order was purported to have been made. The Court was there concerned about the competency of the second petition preferred against all order made in revision from the original order which was challenged by the earlier petition which was withdrawn for the purpose of availing of alternative remedy available under the Act under which the said order was purported to have been made. In that context the Supreme Court speaking through D. A. Desai J. held that the second petition in the circumstances would not be barred by the principle analogous to res judicata because the cause of action is entirely different and the merger of the order cannot stand in the way of the petitioner invoking the jurisdiction of the High Court under Article 226 after the original order was confirmed in revesion by revisional authority. We do not think that this can be pressed in service ill support of the competency of the second petition on the facts and circumstances of the case before us. ( 7 ) IN State of U. P. v. B. N. Singh AIR 1971 Allahabad 359 a Division Bench consisting of R. S. Pathak and R. L. Gulati JJ held that where at interlocutory stage of disciplinary proceedings the Government servant concerned filed writ petition against Ad 117 ministrative Tribunals recommendation of his dismissal and in appeal arising out of that writ petition the Supreme Court specifically permitted the Government servant to withdraw the writ petition with liberty to file fresh one filing of fresh petition by such person after such withdrawal is not barred by principle of res judicata. The settled legal position therefore appears to be that if a party withdraws his earlier petition or proceeding without express permission reserving liberty to himself to file fresh petition in respect of the same cause of action the second petition is not competent on principle analogous to res judicata. If this is the settled legal position we are afraid that the petitioner before us would not be entitled to file a fresh petition may be on some ground which he had not urged in the earlier petition for the ultimate purpose of challenging the legality of the same detention particularly when no permission was granted by the Division Bench of G. T. Nanavati and M. B. Shah JJ. as clarified by them in their order dated December 10 1985 The learned Public Prosecutor also submitted that the petition was withdrawn after the entire matter was argued at length and the Division Bench was about to deliver judgment. It was also pointed out to us that the Division Bench was not inclined to permit Mr. N. M. Barot to raise fresh points or to amend the petition incorporating fresh points and it is in those circumstances that the petition was withdrawn and therefore the Court must hold that the order disposing of the petition was virtually an order on merits. We need not go into this larger question in view of the view taken by us as above. ( 8 ) THE result is that the preliminary objection must be sustained and the petition should be rejected. Rule discharged. There would be no order as to the costs. ( 9 ) MR. Kapadia for the petitioner makes an oral application for granting a certificate for leave to appeal to the Supreme Court under Article 134a since the case involves a substantial question of law of general importance and that in the opinion of the High Court the said question needs to be decided by the Supreme Court. The question according to the learned advocate for the petitioner is whether a second petition under Article 226 is competent at least on fresh grounds when the earlier application is dismissed as withdrawn. We are afraid that the question which arises is only a part of the question and the real question is as to whether the second petition would be competent on the same cause of action when the earlier petition was withdrawn without liberty being reserved under the permission of the Court for filing fresh petition. In that view of the matter we do not think that a substantial question of law arises of such public importance that in our opinion it requires decision of the Supreme Court since we have followed merely what the Supreme Court has laid down. The oral application therefore stands rejected. Petition rejected. .