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2012 DIGILAW 588 (ALL)

Ramvir Upadhyaya v. Lokayukta, U. P. and Another

2012-03-02

DEVI PRASAAD SINGH, SATISH CHANDRA

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Hon'ble Dr. Satish Chandra, J.— Heard Shri S.K.Kalia, learned Senior Counsel appearing for the petitioner and the learned counsel for the opposite parties and perused the record. 2. The instant writ petition has been preferred under Article 226 of the Constitution of India against the impugned order dated 24.2.2012 passed by the Lokayukta of State of U.P., whereby the petitioner is permitted to file objection by 5.3.2012. 3. Shri S.K.Kalia, learned Senior Counsel appearing for the petitioner submits that the Lokayukta is proceeding ahead in arbitrary manner. He has taken cognizance of the complaint, which has been submitted without following the provisions of Section 9(2) readwith Section (5) of the Lokayukta Act. Further submission is that with regard to identical complaint, the Lokayukta had rejected by order dated 28.11.2011. According to learned counsel for the petitioner, since the identical complaint has been rejected, it is not open for the Lokayukta to entertain subsequent complaint. 4. Earlier the writ petition (writ petition no. 1398 (MB) of 2012) was filed by the petitioner raising objection for arbitrary use of power by the Lokayukta, which was disposed on 22.2.2012 with liberty to the petitioner to move appropriate application before the Lokayukta for grant of reasonable time to file objection. Lokayuka has permitted the petitioner to file objection by 5.3.2012. 5. However, learned counsel for the petitioner submits that still no reasonable time has been given to the petitioner since the counting of vote shall take place on 6.3.2012 and the petitioner will remain present in his home town in Hathras. 6. During the course of hearing, the question cropped up whether the instant writ petition is maintainable. Order II Rule 2 C.P.C. comes in the way of petitioner. Order II Rule 2 C.P.C. is reproduced as under:- "2. Suit to include the whole claim.-(1)Where suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action, but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. (2) Relinquishment of part of claim-Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (2) Relinquishment of part of claim-Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (3) Omission to sue for one of several reliefs- A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted." Order 2 Rule 3 C.P.C. (supra) provides that in case a person is entitled for more than one reolief or there are different cause of action, then omission of one relief at the filing of suit, shall debar the plaintiff to prefer another suit for cause of action which was existing on the date of filing of suit. 7. In the present writ petition, when the petitioner has already preferred a writ petition no. 1398 (MB) of 2012 which was decided by judgment and order dated 22.2.2012. At the time when the petition was filed, the petitioner had not raised objection challenging the competence of Lokayukta to take action with regard to complaint submitted against the petitioner. It was open to the petitioner to raise plea while preferring the writ petition (supra) to challenge the competence of the Lokayukta but the same plea was not taken by the petitioner. 8. Now we are of the view that such issue may not be raised by preferring another writ petition at this stage. However, it shall always be open to the petitioner that after adjudication of the controversy to raise issue or plea to take legal ground challenging the validity of action taken by the Lokayukta in pursuance to the complaint submitted by the respondent. Apart from above, there appears to be another aspect of the matter. 9. Undoubtedly, 6.3.2012 is the date fixed by the Election Commission of India for counting of votes. Accordingly, the Lokayukta should give some more time for filing of response to the petitioner. 10. It is stated that there will be no publication disclosing the contents of allegation. Attention has been invited to Section 10 (2) readwith Section 15 of the Lokayukta Adhiniyam. Accordingly, the Lokayukta should give some more time for filing of response to the petitioner. 10. It is stated that there will be no publication disclosing the contents of allegation. Attention has been invited to Section 10 (2) readwith Section 15 of the Lokayukta Adhiniyam. Since we are not interfering on merit, it is observed that Lokayukta shall be abide by statutory provisions and duties conferred thereon while dealing with the dispute. 11. Accordingly, we dispose of the writ petition finally with liberty to the petitioner to file objection to the complaint on or before 12.3.2012. The Lokayukta shall permit the petitioner to file objection in terms of earlier order dated 24.2.2012 on or before 12.3.2012. Subject to above direction and observation, the writ petition stands disposed of. _