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2005 DIGILAW 692 (CAL)

Charu Charan Bera v. WBSEB

2005-11-17

JAYANTA KUMAR BISWAS

body2005
Judgment :- (1.) This writ petition has been taken out principally seeking a writ of mandamus directing the authorities of WBSEB to reassess the dues claimed by the board for the period from March 1999 to October 2000. The petitioner says that such dues should be reassessed on the basis of average of the bills sent by the board for the period from the year 1996 to the year 1998. (2.) Admittedly dues claimed by the board on account of consumption of electricity by the petitioner during the period from March 1999 to October 2000 were not paid. He was operating a husking mill. Disputing the correctness of the bills raised from the month of March 1999 he moved a writ petition (No. 10722 (W) of 1999) before this Court. Order dated May 21, 1999 made in that writ petition is as follows :- "Considering urgency of the matter I request Mr. C. R. Panda to appear on behalf of the WBSEB and to take instruction in this matter. A copy of the writ petition shall be served upon Mr. Panda and I direct the WBSEB to regularise his engagement. In the event there is any outstanding dues on account of the electricity bills to be paid by the petitioner and if the petitioner pays 50% of the outstanding bills then the electricity supply line shall not be disconnected by the WBSEB and this line will continue until further order of this Court. Let the matter appear before the appropriate bench as listed motion one week after summer vacation. In the event the payment has been made the concerned station superintendent shall enquire into this matter and if nothing is due then the supply line shall not be disconnected." (3.) Because of the interim order board authorities did not take any steps for some time. Ultimately on October 19, 2001 they disconnected supply to the petitioner. By order dated June 28, 2005 that writ petition was dismissed. That order is set out below :-"Mr. Lahiri, appearing for the petitioner submits that he does not want to proceed with this matter. It is incidentally to be recorded that I granted an interim order in this matter directing to make payment 50% of the alleged demand of the Board. Such payment has not yet been made. Mr. That order is set out below :-"Mr. Lahiri, appearing for the petitioner submits that he does not want to proceed with this matter. It is incidentally to be recorded that I granted an interim order in this matter directing to make payment 50% of the alleged demand of the Board. Such payment has not yet been made. Mr. Tapan Kumar Jana, the learned lawyer who represented this matter made a communication to the Board that this Court passed an unconditional order of injunction. For this reason no payment was made. Under what circumstances such communication was made has not been enquired into by this Court, as the matter is not proceeded with. In view of the aforesaid submission and statement I dismiss this matter as not being pressed. However, liberty is given to take out a fresh one, if so permissible under the law. Mr. Jana, learned Advocate-on-Record for the petitioner agrees that this has been done with his specific knowledge as he appeared when the order was passed. The affidavits are kept with the record. There will be no order as to costs." (4.) Advocate for the petitioner submits that this writ petition is maintainable, since requisite liberty was given by the order made in the previous writ petition. He says that in the previous writ petition the Advocate concerned made wrong communication of the order, and that for such reason that writ petition was withdrawn. By citing to me the Apex Court decision in Hoshnak Singh v. Union of India and Ors. reported at AIR 1979 SC 1328 , he submits that since the previous writ petition was not decided on merits, it cannot be said that this writ petition is hit by principles of res judicata. In support of his contention that for fault of the Advocate a party should not suffer, he gives me the Division Bench decision of this Court in re : Mahamaya Banerjee, reported at AIR 1989 Cal. 106 . (5.) In my view, it is as a matter of policy that in such a case one should not be permitted to file a second writ petition regarding selfsame subject-matter and for the same relief. The first writ petition was not pressed by the petitioner himself, though he was at liberty to press it, in spite of the fact that his Advocate had made wrong communication of the order made in that case. The first writ petition was not pressed by the petitioner himself, though he was at liberty to press it, in spite of the fact that his Advocate had made wrong communication of the order made in that case. Hence, it cannot be said that for fault of his Advocate, he has suffered in any manner whatsoever. It is not his case that without getting instructions from him his Advocate decided not to proceed with the previous writ petition. (6.) Facts of the case clearly show that the petitioner was the person who had decided not to proceed with his previous writ petition. It is apparent that such decision was taken with a view of avoiding the serious consequences which might follow if an enquiry was made regarding wrong communication of the order. It is immaterial that for the wrong communication no one suffered any loss. Such fact would have been relevant only as a mitigating factor, in case an enquiry was initiated. It is therefore clear that there was no just reason for the petitioner to decided not to proceed with his case, unless he intended to indulge in forum shopping. (7.) In such a case, in my view, permitting the litigant to initiate fresh proceedings would amount to sheer abuse of process of the Court. This is not a case where unqualified liberty was given to the petitioner to take out a fresh writ petition. Liberty was given with the rider that he would be entitled to take out a fresh writ petition, if permissible in law. In my view, in such a case filing of the second writ petition should not be permitted by the writ Court which is essentially a Court of equity. (8.) It is also to be noted that by this petition the petitioner wants the writ Court to examine questions connected with bills raised, paid and not paid during the period from the year 1996 to the year 2000. There is no just reason why at this distance of time he should be permitted to invoke the writ jurisdiction, asking the writ Court to undertake such an exercise. In my view, the authorities given to me are of no assistance, on the facts and in the circumstances of this case. There can be no dispute about the propositions explained in them, but they are simply not applicable to this case. In my view, the authorities given to me are of no assistance, on the facts and in the circumstances of this case. There can be no dispute about the propositions explained in them, but they are simply not applicable to this case. (9.) For these reasons, I summarily dismiss the writ petition. There shall be no order for costs in it. Copy of this order duly authenticated by the A.R. (C)/A.C.O. shall be supplied to Advocate for the parties on usual undertakings. Urgent certified xerox copy of this order shall be supplied to the parties, if applied for.