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2001 DIGILAW 507 (KER)

District Collector, Palakkad v. Devayani

2001-09-20

A.LEKSHMIKUTTY, K.S.RADHAKRISHNAN

body2001
Judgment :- K.S. Radhakrishnan, J. Writ Appeal No. 356 of 2001 is filed by the District Collector and two other Officers against the order dated 15.1.2001 passed by the learned single judge in C.M.P. No. 2576 of 2001 in C.M.P. No. 59154 of 2000 in O.P. No. 34593 of 2000. Writ Appeal No. 461 of 2001 is also filed by the same appellants against the order dated 19.1.2001 passed by the learned single judge in C.M.P. No. 2576 of 2001 in C.M.P. No. 59154 of 2000 in O.P. No. 34593 of 2000. 2. Writ Petition was filed by the first respondent in the appeals seeking writ of certiorari to quash Ext. P2 notice of attachment dated 20.10.1998 in respect of 2.41 acres of land in survey number 68/3,4,5 of Karimpuzha village for realisation of an amount of Rs. 2,96,721/- being arrears towards toddy workers welfare fund. She has also challenged Ext. P3 notice of attachment dated 7.11.1998 issued by the Tahsildar, Ottappalam for reaslisation of Rs. 9,22,729/- towards abkari dues. She has also challenged Ext.P4 proceeding dated 23.12.1998 initiated by the Tahsildar, Ottappalam for recovery of an amount of Rs. 12,26,538/- towards abkari dues as well as amount due to toddy workers welfare fund. Notice dated 22.11.2000 issued by the Tahsildar, Ottapalam was also challenged in the Writ Petition. Direction was also sought for to consider Ext. P7 and pass appropriate orders. Writ of mandamus was also sought for directing the revenue authorities to proceed against respondents 4 and 5 therein for realisation of the welfare fund as well as abkari dues. Writ Petition was admitted on 12.12.2000 and the learned single judge passed an interim order on the same day in C.M.P. No. 59154 of 2000 as follows: "Urgent notice. Further proceedings pursuant to Ext. P6 as against the petitioner will stand stayed on condition that petitioner pays an amount of Rs. 5 lakhs within a period of one month. In the meanwhile, the second respondent will pursue the possibilities for recovering the amounts that are due from the fourth and fifth respondents as well. Post for further orders on 22.1.2001" First respondent then filed C.M.P. No. 2576 of 2001 in C.M.P. No. 59154 of 2000 in O.P. No. 34593 of 2000 to enlarge the time for making the payment. In the meanwhile, the second respondent will pursue the possibilities for recovering the amounts that are due from the fourth and fifth respondents as well. Post for further orders on 22.1.2001" First respondent then filed C.M.P. No. 2576 of 2001 in C.M.P. No. 59154 of 2000 in O.P. No. 34593 of 2000 to enlarge the time for making the payment. It was stated in the affidavit filed in support of the petition that she had approached the Tahsildar and offered to pay Rs.1 lakh but the Tahsildar refused to accept the same. Consequently she wanted extension of time to pay the balance of Rs. 4 lakhs. The learned single judge on 15.1.2001 passed the following order: "Taking note of the averments in the affidavit, I direct that time granted for payment as per order on C.M.P. No. 59154 of 2000 is extended upto 16.2.2001. The balance stated to be payable is Rupees four lakhs. Petitioner should pay rupees one lakh before 25th January 2001. On such payment, the articles that have been attached from the property may be released and the petitioner will be permitted to occupy the building subject to final orders that are to be passed in this O.P." Against the above interim order W. A. No. 356 of 2001 was filed by the appellants. On 22.1.2001 a Division Bench of this Court passed the following order. "It is unfortunate that the petitioner did not make any reference to her earlier approach to this court by filing O.P.No. 1201 of 1999 and obtaining order of stay of recovery of the amounts due from her from the year 1997 onwards. There is also no reference made to the order of stay obtained from the Government during the pendency of O.P. No. 1201 of 1999. When the Writ Appeal came up for admission the learned counsel appearing on behalf of the Writ stated that she had not filed any Writ Petition before this court seeking identical reliefs based on similar cause of action. The conduct of the first respondent has to be deprecated. R.146 of the High Court Rules, 1971 obliges every party to file a statement as to whether the party had filed any petition seeking the very same reliefs earlier and if so the decision thereof. The conduct of the first respondent has to be deprecated. R.146 of the High Court Rules, 1971 obliges every party to file a statement as to whether the party had filed any petition seeking the very same reliefs earlier and if so the decision thereof. The scope and ambit of Rr.146 and 150 of the High Court Rules came up for consideration before one of us (Radhakrishnan, J.) in K. V. Marakkar v. State of Kerala (1998 (2) KLJ 705). This court took the view that proviso added to Rr.146 and 150 makes it mandatory on the part of the petitioner to make a statement in the Writ Petition as to whether the petitioner had filed any petition seeking similar reliefs in respect of the same subject matter earlier and if so the result thereof. In this case, first respondent has not only not disclosed the fact of filing of the earlier Writ Petition but she had stated in the affidavit that she had not filed any Writ Petition earlier for same reliefs. The action of the first respondent is nothing but an abuse of process of court. 7. We also notice that the earlier Writ Petition was dismissed as not pressed. On various occasions, in the earlier Writ Petition O.P. 1201 of 1999 and in the present Writ Petition, O.P. No. 34593 of 2000, successive orders have been obtained by the first respondent but she did not comply with any of the conditional orders. Practice of not complying with the conditional orders after obtaining stay for limited periods has to be depricated. By the dismissal of the Original Petition as not pressed, first respondent is estopped from raising all those contentions over and again. She is deemed to have abandoned all her claims. There may be cases where a party may withdraw the Writ Petition seeking liberty to file another one. Only if court finds that there is justifiable ground for withdrawal, court will permit the request for withdrawal lest it may give room for Bench hunting. 8. The apex court in Upadhyay & Co. v. State ofU.P. (1999 (1) SCC 81) after referring to Order XXIIIR.1 C.P.C. held as follows: "The aforesaid ban for filing a fresh suit is based on public policy. 8. The apex court in Upadhyay & Co. v. State ofU.P. (1999 (1) SCC 81) after referring to Order XXIIIR.1 C.P.C. held as follows: "The aforesaid ban for filing a fresh suit is based on public policy. This court has made the said rule of public policy applicable to jurisdiction under Art.226 of the Constitution (Sarguja Transport Service v. STAT 1987 (1) SCC 5). The reasoning for adopting it in Writ jurisiddion is that very often it happens, when the petitioner or his counsel finds that the court is not likely to pass an order admitting the Writ Petition after it is heard for some time, that a request is made by the petitioner or his counsel to permit him to withdraw it without seeking permission to institute a fresh Writ Petition. A court which is unwilling to admit the petition would not ordinarily grant liberty to file a fresh petition while it may just agree to permit withdrawal of the petition. When once a writ petition filed in a High Court is withdrawn by the party concerned, he is precluded from filing an appeal against the order passed in the Writ Petition because he cannot be considered as a party aggrieved by the order passed by the High Court. If so, he cannot file a fresh petition for the same cause once again." The court also quoted the following observation of Venkataramaiah, J. in Sarguja Transport Service's case. (W)e are of the view that the principle underlying R.1 of 0.23 of the Code 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 as explained above. It would also discharge 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 extra-ordinary jurisdiction of the High Court under Art.226 of the Constitution once again. It would also discharge 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 extra-ordinary jurisdiction of the High Court under Art.226 of the Constitution once again. While the withdrawal of a Writ Petition filed in the High Court without permission to file a fresh Writ Petition may not bar other remedies like a suit or a petition under Art.32 of the Constitution of India since such withdrawal does not amount to res judicata the remedy under Art.226 of the Constitution of India should be deemed to have been abandoned by the petitioner in respect of cause of action relied on in the Writ Petition when he withdraws it without such permission." We may indicate O.P.No.1201ofl999 was dismissed as not pressed on 11.2.2000 after the first respondent had obtained stay of revenue recovery proceedings on certain conditions. Stay order was obtained by her on 15.1.1999. She could successfully protract the litigation by getting the stay extended and also by making the plea for remitting the amount within the extended time. She did not comply with the interim order. However, she got the benefit of the stay from 15.1.1999 till 20.8.1999. Subsequently Writ Petition was dismissed as not pressed on 11.2.2000. 9. We are of the view, in this case first respondent had filed the earlier Writ Petition seeking the very same reliefs based on identical facts situation. First respondent has not disclosed the fact that she had earlier filed a Writ Petition and that was dismissed as not pressed. It is nothing but an abuse of process of court. In such circumstances, we allow both the appeals filed by the District Collector and others and dismiss the Writ Petition with costs of Rs. 5,000/- to be paid by the first respondent-petitioner to State Government within a period of one month from today.