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2015 DIGILAW 603 (JK)

AB. GANI BHAT (PROF. ) v. STATE OF J&K

2015-11-18

ALI MOHAMMAD MAGREY

body2015
JUDGMENT : After hearing this petition, this Court on 01.10.2015 passed the following orders in this petition: "1. This petition was heard on 23.09.2015 and the judgment was reserved. However, while going through the record of the petition and pleadings of the parties, it transpired that the respondents in paragraph 5 of their reply have taken a plea that the petitioner in the present writ petition has sought the same reliefs as had been prayed for by him in his other writ petitions, SWP nos. 411/2001, 142/2002, 1941/2003 and 924/2009. In fact, pursuant to an identical statement made at the Bar on 02.09.2015, a Coordinate Bench of this Court had directed the Registry to call the record of the petitioner's decided writ petition, SWP no. 1941/2003, and the case was directed to be listed higher up in the next regular cause list. The Registry reported that the record of SWP no. 1941/2003 had been damaged due to devastating floods of 07.09.2014. However, on the next date of hearing, on the submission of the petitioner that the petition could be considered without the record of SWP no. 1941/2003, the Court ordered its listing for hearing in the regular cause list as case no.1. That is how it came up for hearing before this Court on 23.09.2015. The reason for which the Coordinate Bench had earlier called the records of SWP no. 1941/2003 was not brought to the notice of this Court by either of the parties while they advanced their respective arguments. 2. At the hearing, learned counsel for the respondents referred to the contents of paragraph 5 of the reply and submitted that the Supreme Court in Udyami Evam Khadi Gramodyog Welfare Sanstha v. State of Uttar Pradesh, (2008) 1 SCC 560 , and a few oilier cases has laid down that repeated filing of writ petitions on the same issue or with a similar prayer is an abuse of the process of court/law and it amounts to criminal contempt. He submitted that in the aforesaid case the Apex Court also awarded costs of Rs. 50,000/- against, the; appellants. According to the learned counsel for the respondents, since the petitioner has filed repeated writ petitions for the; same relief, this is a fit case where the law laid down by the Apex Court deserves to be applied with all its rigour. 3. 50,000/- against, the; appellants. According to the learned counsel for the respondents, since the petitioner has filed repeated writ petitions for the; same relief, this is a fit case where the law laid down by the Apex Court deserves to be applied with all its rigour. 3. The sole relief prayed for by the petitioner in this petition is that the respondents may be directed to pay him an amount of Rs. 10,00,000/- for the pain etc. caused to him on account of the 'arbitrary, illegal, and unconstitutional grade slashment order' (passed against him by them). 4. If it is true that the petitioner has made such prayer in his other writ petitions, or any one of them, then the matter is not so simple and the point cannot be dealt with casually. In view of the law laid down by the Supreme Court, the matter would assume enormous proportions and may entail serious consequences, including award of costs on the petitioner, if not more; at least, equivalent to what the Apex Court has ordered in the aforesaid case. It is not, however, clearly disclosed whether the aforesaid writ petitions are still pending or have been decided and disposed of. Whatever be the case, the records of these writ petitions need to be necessarily gone through to ascertain the reality in relation to the point raised herein by the learned counsel for the respondents. 5. The Registry has already reported that the record of writ petition, SWP no. 1941/2003, got damaged in last year's floods. The record of the other three writ petitions, SWP nos. 411/2001, 142/2002, and 924/2009, mentioned in paragraph 5 of the reply filed by the respondents, had not been called for by the Court, nor has the Registry made any report thereabout. Therefore, in order to do full justice in the matter, I think it would be appropriate to provided as under: (i) The Registrar Judicial shall place the records of the three writ petitions, SWP nos. 411/2001,142/2002, and 924/2009, whether decided and disposed of or not, before the Court for perusal thereof to find out if the petitioner had made a similar prayer, as made herein, in any of these petitions. 411/2001,142/2002, and 924/2009, whether decided and disposed of or not, before the Court for perusal thereof to find out if the petitioner had made a similar prayer, as made herein, in any of these petitions. In the event the three writ petitions, or any one of them, have been decided and disposed of, the Registrar Judicial shall call for its/their records from the Record Room; (ii) As regards the writ petition, SWP no. 1941/2003, both, the petitioner as well as the learned counsel for the respondents, are directed to produce photocopies of the writ petition together with the copies of the final order of the Court passed therein before the Registrar Judicial of this Court within a period of one week from today. The petitioner and any one amongst the respondents shall also swear in affidavit a piece in support of the copies they may produce, certifying that the copies of the writ petition and the Court order so produced by them are the true copies of their originals or as had been supplied to them, as the case may be; and (iii) The Registrar Judicial shall list the matter after one week along with the aforesaid records in a regular cause list before this Bench under the caption "Reserved matter, for clarification", on a date depending upon availability of the Bench; (iv) The Bench Secretary shall send the file down to the Registrar Judicial, who shall retain it with himself till the needful in terms of above directions is done and, thereafter, shall return the file to this Court one day prior to the date it is listed in the cause list; (v) The matter shall be treated as having been heard by this Court. However, on placement of the records before the Court for its perusal, if any clarification would be needed, the petitioner as well as the learned counsel for the respondents would be free to address the Court to make such clarifications." 2. Pursuant to the aforesaid order, the records of the writ petitions, SWP nos. 411/2001, 142/2002 and 924/2009, have been placed before the Court alongside of this petition. Parties have also produced photocopies of the writ petition, SWP no. 1941/2003. I have perused the records so placed before the Court. 3. Perusal of the record of SWP no. 411/2001 reveals that it was disposed of by this Bench on 26.08.2015. 411/2001, 142/2002 and 924/2009, have been placed before the Court alongside of this petition. Parties have also produced photocopies of the writ petition, SWP no. 1941/2003. I have perused the records so placed before the Court. 3. Perusal of the record of SWP no. 411/2001 reveals that it was disposed of by this Bench on 26.08.2015. It did not contain any prayer akin to the present writ petition. 4. Record of writ petition, SWP no. 142/2002, on its perusal reveals that it contained a prayer similar to the one made in the present writ petition, as prayer no. III, which is quoted hereunder: "III. For the issuance of a writ of mandamus commanding the respondents to pay exemplary costs and damages - rupees ten lakhs - to the petitioner for the long punishment of suspension of more than 81/2 years, for the stress, distress, pain, agony mental torture, loss of health and poise and loss of prestige, position and honour in the society suffered by the petitioner and his family because of the illegal act of the respondents." This petition stands decided by judgment dated 28.8.2015. However, the prayer made above has not been granted. 5. Writ petition, SWP no. 924/2009, which is pending on board, also contains a prayer to the following effect: "Direct the respondent to pay penalty of an amount of 20 lakhs for abusing his office and stopping the petitioner's dues for such a long time without any legal sanction and putting him to virtual starvation." 6. Photocopies of the writ petition, SWP no. 1941/2003, produced by the parties, reveal that the petitioner had made the following prayer concerning award of damages and costs in the said writ petition: "III. The petitioner may be awarded exemplary costs of at least ten lakhs, besides the costs of the petition." This petition has been dismissed by order dated 21.5.2012 on the prayer of the petitioner that he did not want to press the same as, according to him, the same had been rendered infructuous. 7. One common feature in all these petitions is that these have been filed against the Governing Board of the Tslamia College of Science and Commerce, Srinagar, and its Chairman. In all these petitions the petitioner-raised his grievance against, what he calls, inter alia, a professed harm caused to him by the College authorities he was working in. 7. One common feature in all these petitions is that these have been filed against the Governing Board of the Tslamia College of Science and Commerce, Srinagar, and its Chairman. In all these petitions the petitioner-raised his grievance against, what he calls, inter alia, a professed harm caused to him by the College authorities he was working in. The core grievance of the petitioner in all these writ petitions is the same. 8. It thus becomes axiomatic that the petitioner had made similar prayers in three of the aforesaid four writ petitions, out of which one has been decided by judgment dated 28.8.2015 and the prayer for exemplary costs and damages of rupees ten lakhs seems not have been pressed, or, at least, it has not been allowed. The other writ petition, containing a similar prayer is pending; whereas one of the three writ petitions, SWP no. 1941/2003, containing the same prayer has been withdrawn by him as having become infructuous and has, therefore, been dismissed by order dated 21.5.2012. He has not even sought liberty to file a fresh writ petition, or avail an appropriate remedy for claiming the damages for which he had made a prayer in the writ petition. He, therefore, could not file another writ petition for the same relief. 9. Notwithstanding the above facts, the petitioner has repeated the same prayer in the aforesaid writ petitions. Not only that, he has filed the present writ petition containing the sole substantive prayer to the very same effect hereunder reproduced: "It is therefore prayed that the respondent may be directed to pay an amount of ten lakhs rupees for the pain, pathos, agony, torture, stress and distress; loss of peace, serenity, equilibrium, morale and spirits, and loss of money, energy and time; on account of the arbitrary, illegal and unconstitutional grade slashment order." 10. The learned counsel for the respondents is, as such, right in saying that the petitioner has filed repeated writ petitions with the same prayer. In Udyami Evam Khadi Gramodyog Welfare Sanstha v. State of Uttar Pradesh, (2008) 1 SCC 560 , the Supreme Court has laid down that a writ remedy is an equitable one. A person approaching a superior court must come with a pair of clean hands. In Udyami Evam Khadi Gramodyog Welfare Sanstha v. State of Uttar Pradesh, (2008) 1 SCC 560 , the Supreme Court has laid down that a writ remedy is an equitable one. A person approaching a superior court must come with a pair of clean hands. It not only should not suppress any material fact, but also should not take recourse we to the legal proceedings over and over against which amounts to abuse of the process of law. Repeated filing of writ petitions amounts to criminal contempt. 11. In light of the above, this petition is not maintainable. Apart from that, the petitioner, obviously, is liable to be proceeded against for criminal contempt in terms of the judgment of the Supreme Court in Udyami Evam Khadi Gramodyog Welfare Sanstha v. State of Uttar Pradesh (supra). However, taking a lenient view, this Court would not order so. Nonetheless, it is a fit case which deserves dismissal with costs. 12. Even otherwise, writ petition is not a remedy for claiming damages. It is to be borne in mind that under Article 226 of the Constitution, this Court exercises a power of judicial review. The exercise of power of judicial review is subject to many limitations, including adjudication of disputed questions of fact. This Court in exercise of its power of judicial review cannot adjudicate disputed questions of fact. Invariably, a petition or application for judicial review is decided based on affidavits, counter affidavits and supporting documents. A claim for damages of the nature sought by the petitioner herein would give rise to determination of numerous issues involving disputed questions of fact, which would need to be decided on oral evidence. That cannot be done by this Court in exercise of its extra ordinary writ jurisdiction. This writ petition for damages, therefore, is not maintainable. 13. This writ petition is, accordingly, dismissed as not maintainable with costs of Rs. 1,000/-. The costs be paid by the petitioner within a fortnight from the date of this order before the Registrar Judicial, High Court, Srinagar, to be deposited by him in the High Court Legal Aid Fund.