Jitendra Keshavlal Patel v. STATE — 1998 DIGILAW 647 (GUJ)

A. R. DAVE, J. ( 1 ) BY way of this Misc. Civil Application the applicant (original respondent no. 1) seeks to have review of the decision rendered by the Division Bench in Letters patent Appeal No. 1460 of 1997 on 28. 4. 1998. ( 2 ) IT so happened that the Kalol Municipality was superseded by the State government by order dated 12. 2. 1997. The original petitioners, some of the Councillors of the Kalol Municipality, had an occasion to challenge the said order of supersession in s. C. A. No. 1565 of 1997. After hearing the parties to the said S. C. A. the learned single judge by decision dated 25. 7. 1997 quashed and set aside the order of supersession of kalol Municipality. The respondent No. 1 to the original petition, namely (he Government of Gujarat moved Letters Patent Appeal No. 1460 of 1997 against the decision of the learned single Judge quashing and setting aside the order of supersession. By order dated 2. 12. 1997 notice was issued and the Letters Patent Appeal was fixed for hearing alongwith other two special civil applications. Ultimately by order dated 15. 12. 1997 the appeal came to be admitted. Mr. A. J. Patel, learned Advocate who appeared on behalf of original petitioners waived service of notice and the Letters Patent Appeal was posted for final hearing on 22. 12. 1997. Ultimately the appeal was heard finally and by judgment and order dated 28. 4. 1998 (Coram: K. Shreedharan, the Honble C. J. as he then was and A. R. Dave, J. , one of us) allowed the appeal setting aside the decision of the learned single judge in S. C. A. No. 1565 of 1997, maintaining the order of supersession of Kalol municipality. ( 3 ) IT appears that the matter was carried before the Honble Supreme Court in Civil appeal No. 4899 of 1998. On 18. 9. 1998 following order came to be passed by the honble Supreme Court:"leave granted. It is contended before us that though an argument was raised regarding the maintainability of the Second Letters Patent Appeal before the High Court, the same was not dealt with by the High Court. We cannot consider this point. If so advised, the appellant can move the High Court for review of the judgment on that ground. It is contended before us that though an argument was raised regarding the maintainability of the Second Letters Patent Appeal before the High Court, the same was not dealt with by the High Court. We cannot consider this point. If so advised, the appellant can move the High Court for review of the judgment on that ground. The Appeal is disposed of with a liberty to the appellant to move the High Court for appropriate relief. "consequent upon the aforesaid order of the Honble Supreme Court, the applicant-Original respondent No. 1) has moved this review petition, which has been assigned to placed accordingly. Following order was passed on that day :"1. This matter has been placed before this Bench by an urgent circulation at 4. 45 p. m. today. Learned Advocates Ms. K. S. Jhaveri, A. J. Patel and Y. N. Oza on the one side and Ld. G. P. Mr. P. G. Desai on the other side are present before the Court. There are some private parties shown as the respondents. They will have to be served. Notice returnable on 6. 10. 1998. Service of notice waived by Mr. P. G. Desai, Ld. G. P. for the respondents Nos. 1 and 2. For rest of the respondents direct service is permitted. The matter to be placed at 2. 45 p. m. on 6. 10. 1998. " ( 4 ) WE have heard this review application. Mr. K. S. Jhaveri, learned Advocate appearing for the applicant, Mr. P. G. Desai, Ld. G. P. , Mr. Y. N. Oza, Mr. A. J. Patel and mr. M. R. Shah, learned Advocates appearing for the other Councillors have addressed us. It has been submitted on behalf of the applicant and other Councillors that prior to filing of the present Letters Patent Appeal (hereinafter referred to as "the second L. P. A. ") original respondent No. 4, who has an occasion to complain about functioning of the elected body, had moved Letters Patent Appeal No. 856 of 1997 against the aforesaid decision of the learned single Judge. We had an occasion to call for the record of the said letters Patent Appeal before us. It appears from the record that it was first taken up for hearing of admission on 25. 9. 1997. It further appears that prior to that there has been no notice issued in the said Letters Patent Appeal. We had an occasion to call for the record of the said letters Patent Appeal before us. It appears from the record that it was first taken up for hearing of admission on 25. 9. 1997. It further appears that prior to that there has been no notice issued in the said Letters Patent Appeal. It also appears from the record of the letters Patent Appeal that the Government was not on caveat. However, copy of the letters Patent Appeal filed by the aforesaid original respondent No. 4 was served to Mr. A. J. Patel learned Advocate for the original petitioners in whose favour the learned single judge had an occasion to render the decision questioned in the said Letters Patent Appeal. A Civil Application No. 7296 of 1997 was also moved in the said Letters Patent Appeal and in that Civil Application also we do not find any notice having been issued to the government or any caveat having been lodged by the Government. Having noticed such facts apparent on the face of the record of the said Letters Patent Appeal we would like to reproduce the order which has been passed in the said Letters Patent Appeal at the threshold on 25. 9. 1997. The reason is that the said order has been canvassed in this review application for saying that the Second L. P. A. would not be maintainable at law. The order would read as under :"this Letters Patent Appeal is filed by the appellant who was subsequently joined as respondent No. 4 in the main matter, i. e. , Special Civil Application No. 1565 of 1997. That petition was filed by the elected members of Kalol municipality. After appreciating the facts and circumstances of the case and in the light of the contentions raised by the learned Counsel for the petitioner, the learned single Judge was pleased to allow the petition and order of dissolution passed under Sec. 63 of the Gujarat Municipalities Act, 1963, was set aside. It appears that the said decision has not been challenged by the State Government. A statement was made at the Bar that the State has accepted the said order. In these circumstances, in our opinion, Letters Patent Appeal filed by the original respondent No. 4 is not maintainable. Hence, this Letters Patent Appeal is dismissed without observing anything on merits. It appears that the said decision has not been challenged by the State Government. A statement was made at the Bar that the State has accepted the said order. In these circumstances, in our opinion, Letters Patent Appeal filed by the original respondent No. 4 is not maintainable. Hence, this Letters Patent Appeal is dismissed without observing anything on merits. " ( 5 ) UNDER the aforesaid circumstances, it has further been submitted on behalf of the applicant that one Kalaji Joitaji Thakor, respondent No. 15 in the second L. P. A. , had an occasion to file affidavit-in-reply. From the said affidavit-in-reply we notice that it was filed on 15-12-1997. Reference has been made to what has been stated in paras 2 and 3 of the said affidavit. It has been contended in the said paras, that one Shankarbhai Kalaji thakor, an Ex. M. L. A. of Kalol had filed L. P. A. No. 856 of 1997 challenging the order passed by the learned single Judge in the aforesaid S. C. A. The said L. P. A. has already been disposed of by the Court. When the said first L. P. A. was notified for hearing before the Court, the State of Gujarat had taken a decision after considering the propriety or otherwise of filing of appeal against the order of the learned single Judge in the aforesaid s. C. A. not to file an appeal and the Deputy Secretary to the Government of Gujarat. Urban Development and Urban Housing Department conveyed such a decision to the collector, Mehsana by his communication dated 1. 8. 1997, with the result that the charge of the Municipality came to be handed over to the elected body of the Kalol Municipality and that since then the elected body had been functioning in accordance with law. ( 6 ) REFERENCE has also been made to the decision of the Deputy Secretary, Urban development and Urban Housing Department, Gujarat State taken on 1. 8. 1997. The said decision addressed to the Collector, Mehsana refers to order lor dissolution of the Kalol municipality pursuant to the order passed in S. C. A. No. 1565 of 1997 and to a decision having been taken to accept the order passed by the Single Bench of this Court in S. C. A. No. 1565 of 1997 on 25. 7. The said decision addressed to the Collector, Mehsana refers to order lor dissolution of the Kalol municipality pursuant to the order passed in S. C. A. No. 1565 of 1997 and to a decision having been taken to accept the order passed by the Single Bench of this Court in S. C. A. No. 1565 of 1997 on 25. 7. 1997 and to hand over the charge to the Board of Kalol municipality. At this very stage we may note that we are unable to trace such a letter or communication having been placed before the Bench which summarily rejected the first l. P. A. having not been maintainable at law. However, it has been submitted that there was a positive reference having been made about the decision of the Government to accept the judgment and order passed by the learned single Judge. ( 7 ) UNDER the aforesaid circumstances, it has been submitted that in view of the dismissal of the first L. P. A. , more particularly in view of the statement made at the bar and recorded by the first L. P. A. Bench the second L. P. A. would not be maintainable at law. In support of this submission principle of res judicata and/or principle of constructive res judicata and/or principle of estoppel has been canvassed. Reference in this connection has been made to a decision of the Honble Supreme Court in the case of sarguja Transport Service vs. S. T. A. Tribunal, Gwalior, reported in AIR 1987 SC 88 . Following observations head-noted from paras 7 and 9 of the decision had been read before us :"in order to prevent a litigant from abusing the process of the Court by instituting suits again and again in the same cause of action without any good reason the Civil P. C. insists that he should obtain the permission of the Court to file a fresh suit after establishing either of the two grounds mentioned in Order 23, Rule 1 (3 ). The principle underlying the above rule is founded on public policy, but it is not the same as the rule of res judicata. This principle underlying rule 1 of Order 23 should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy. This principle underlying rule 1 of Order 23 should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy. That would also discourage the litigant from indulging in bench hunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under Art. 226 once again. While the withdrawal of a writ petition filed in a High Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under Art. 32 since such withdrawal does not amount to res judicata, the remedy under Art. 226 should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ. " ( 8 ) REFERENCE has also been made to one more decision of the Apex Court in the case of Ajit Singh vs. State of Gujarat, reported in AIR 1981 SC 733 . Observations appearing in para 6 have been read before us. However, at this very stage we may state having noted from the decision that that was a case of an appeal against acquittal where the accused was given benefit of doubt. The Apex Court has taken a view that when two views of the matter were possible and when the Trial Court acquitted the accused on consideration of all evidence, the High Court ought not to have set aside the acquittal giving important to one aspect of evidence and failing to consider integrality of evidence. In the background of these propositions the Apex Court had an occasion to consider the submission that initially the State Government had taken a decision not to file an appeal having allowed the period of limitation to lapse and subsequently having taken a second decision, on certain observations made by the High Court while considering a revision petition by some private party to file an appeal. In the background of such facts on this incidental question the observations which have been read before us, have been made by the Apex court. In the background of such facts on this incidental question the observations which have been read before us, have been made by the Apex court. The observations would read as under :"at the outset, it is urged by learned Counsel for the appellants that the High court erred in condoning the delay in filing the appeal and the appeal should have been dismissed as barred by Limitation. We have examined the facts carefully. It appears that initially the State Government took a decision not to file an appeal and it allowed the periods of limitation to lapse. Subsequently, on certain observations made by the High Court while considering a revision petition by Bhulabhai that it was a fit case where the State Government should file an appeal and on notice being issued by the High Court to the State government in the matter, the appeal was filed. It was filed three months after limitation had expired. " ( 9 ) IN our opinion, the aforesaid observations can hardly have any application to the propositions canvassed on behalf of the applicant. It is not the submission that once a decision is taken by one department or the other of the Government, the same becomes irrversible waiving the right of the Government to file the appeal. It is ultimately the decision of the Government and not Department X or Department Y that would matter. Under such circumstances, what is important to be noticed is that in the first L. P. A. the government was neither under a notice nor a party on caveat. These are very important facts to be borne in mind while dealing with this review petition. ( 10 ) MR. Jhaveri, learned Advocate appearing for the applicant referred to a decision of the Apex Court in the case of M. P. Sugar Mills vs. State of U. P. , reported in AIR 1979 sc 621 . He wanted to convince us about the entertainment of this review application on the principle of promissory estoppel which he read from the head-note C of the citation. The relevant observations in that regard appear at para 32 of the citation. It may at once be noted that principle of promissory estoppel can hardly have any application to the present review application. The relevant observations in that regard appear at para 32 of the citation. It may at once be noted that principle of promissory estoppel can hardly have any application to the present review application. The concerned applicant or the concerned councillors were not the appellants in the first L. P. A. They did not have to act upon any promise of the government in so far as the first L. P. A. was concerned. In fact the decision of the learned single Judge was in their favour. Therefore, there was no question of the applicant and/or other Councillors to have relied upon the statement alleged to have been made before the first L. P. A. Bench. We are of the considered opinion that this is precisely not a case where the principles of promissory estoppel would apply. ( 11 ) IT has been submitted on behalf of the Government that all the contentions which have been sought to be raised in this review petition have not been raised before the honble Supreme Court. Besides, the first L. P. A. came to be filed on 25. 9. 1997, whereas the communication of one of the Deputy Secretaries is dated 1. 8. 1997, i. e. prior to the filing of the first L. P. A. by the original respondent No. 4 and not the Government. It was, therefore, possible that some one of the original petitioners and for that matter even the learned Advocates appearing before the first L. P. A. Bench might be in possession of such a letter. Be that it may, it has been submitted that ultimately the State Government decided to file the L. P. A. since the decision of the learned single Judge was apparently against the Government. The L. P. A. filed by the Government came to be admitted as stated above and was finally heard on merits. In the background of such facts Mr. P. G. Desai, Ld. G. P. has referred to a decision of the Honble Supreme Court in the case of iftikhar Ahmed vs. Syed Meharban Ali, reported in AIR 1974 SC 749 . Following propositions of law regarding bar of res judicata/constructive res judicata emerge from para 9, which has been read before us:". . . P. G. Desai, Ld. G. P. has referred to a decision of the Honble Supreme Court in the case of iftikhar Ahmed vs. Syed Meharban Ali, reported in AIR 1974 SC 749 . Following propositions of law regarding bar of res judicata/constructive res judicata emerge from para 9, which has been read before us:". . . for a judgment to operate as res judicata between or among co-defendants, it is necessary to establish that (i) there was a conflict of interest between co-defendants; (ii) that it was necessary to decide the conflict in order to give the relief which the plaintiff claimed; and (iii) that the Court actually decided the question. We had also an occasion to draw the attention of the learned Advocates appearing on behalf of the applicant and other petitioners to a decision in the case of Joginder Singh vs. Surinder Singh, reported in 1995 Suppl. (4) SCC 413. In that case the estate of one Smt. Sham Kaur was in dispute and to claim succession two Wills were projected-one dated january 18, 1963 and other dated August 7, 1970. The former was in favour of a son and the latter was in favour of a daughter. Both the Wills excluded other natural heirs. It appears that when the matter went in for contest before the Trial Court, the validity of both these Wills was doubted and intestate succession was ordered. The first Appellate court, however, upheld the validity of the 1963 Will and kept the latter Will invalidated. Some of the left-out heirs filed Regular Second Appeal No. 1119 of 1980 in the High court of Punjab and Haryana, which was dismissed in limine by an order dated May 21, 1980. The Regular Second Appeal No. 1570 of 1980 preferred by another set of heirs was admitted and the same was dismissed on May 22, 1986 on the ground that the earlier dismissal of the appeal in limine operated as res judicata. In the background of these facts, it has been observed that each party had an independent right to question the Wills by filing separate appeals. Dismissal of regular second appeal preferred by some of the parties could not operate as res judicata against the others coming in appeal, more so when they were not heard in the matter at the earlier occasion. Dismissal of regular second appeal preferred by some of the parties could not operate as res judicata against the others coming in appeal, more so when they were not heard in the matter at the earlier occasion. The view taken by the high Court that there was a bar of res judicata in these circumstances obviously was erroneous. ( 12 ) FROM the decisions which have been referred to hereinabove, it would clearly appear that the principle of res judicata is founded on public policy, that the parties cannot be permitted to have the controversy directly and substantially in issue between the same parties raised over again. However, in order that a matter may be said as heard and finally decided, the decision must be on merits. Summary dismissal of an appeal without going into the merits thereof will hardly constitute res judicata or constructive res judicata. In the absence of such a decision on merits and dismissal of the appeal on the ground of it being not maintainable keeps the decision appealed against wide open for the affected party to appeal against. It is plain to say that it would be the party adversely affected by the decision has a right to appeal against the same. In the present case, the respondent No. 4 who had filed the first L. P. A. did not have any interest conflicting with the interest of the Government. On the contrary his appeal as can be seen from the order of rejection of his appeal was held to be not maintainable at law. Besides, the first L. P. A. Bench has also clarified that it was not rendering a decision on merits; instead the L. P. A. was dismissed without observing anything on merits. In so far as the decision dated 1. 8. 1997 which has been canvassed on behalf of the applicant is concerned, it can hardly be said that that was an irreversible decision; the Government was within its rights to file an appeal at the second thought, even if a decision as per communication dated 1. 8. 1997 referred to hereinabove was taken by the government. It is a different matter that the original respondent No. 4 who had filed the first L. P. A. now supports the present review application. 8. 1997 referred to hereinabove was taken by the government. It is a different matter that the original respondent No. 4 who had filed the first L. P. A. now supports the present review application. However, the question which has been raised in this review application that in view of the decision of the first l. P. A. Bench as referred to hereinabove, the second L. P. A. was not maintainable, shall have to be answered against the applicant on the principles set out hereinabove. ( 13 ) WE find in the circumstances of the case that the exercise of the review power would be deleterious to the judicial discipline and propriety. ( 14 ) IN the result, we dismiss this Misc. Civil Application while discharging the notice with no order as to costs. Learned Advocates appearing for the applicant as well as other Councillors pray for stay of the election which has been scheduled for 15. 10. 1998. They in the alternative pray for postponement of such election. We are of the opinion that no such stay, or postponement can be ordered. Learned Advocates further submit that a direction might be issued that the result of the elections held pursuant to the scheduled programme might be subjected to the ultimate outcome of further proceedings, which the applicant and/or other councillors propose to take before the Honble Supreme Court. We feel we need not grant such a relief. Hence, the request is rejected. .