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2018 DIGILAW 7 (JK)

G. M. Pampori v. State of J & K

2018-01-23

M.K.HANJURA

body2018
JUDGMENT : M.K. Hanjura, J. The petitioner, in OWP No. 1322/2015, beseechs the grant of the following reliefs in his favour: “A writ, order or direction including one in the nature of Certiorari/ Mandamus quashing the judgment of Ld. District and Sessions Judge dated 29th of November, 2003 to the extent of rejecting the award of Mr S. U. Sofi and the respondents be directed to pay full compensation to the petitioner to the tune of Rs. 300.00 lacs alongwith the interest on account of: - a. Cost of land measuring 12 kanal 03 marlas; b. Loss of reputation; c. Loss suffered in business; d. Precious time of 25 years lost by the petitioner; e. And damages caused to the unlifted Saffron Corms. And the award of Mr S.U. Sofi be made rule of the court and the amount mentioned therein plus damages and compensation alongwith the interest be directed to be /paid. ALTERNATIVELY This Hon'ble Court may be pleased to direct for admission of the appeal titled “G.M. Pampori V/S State and Ors. (LPA No. 37/2004) and the said appeal be thereafter accepted and the relief claimed therein be given to the petitioner plus damages and compensation. “ In the connected petition bearing OWP No. 1323/2015, the petitioner has craved the indulgence of this Court in granting him the following reliefs: “In the premises, it is, therefore, most humbly prayed that the Hon'ble Court may very kindly be pleased to accept this writ petition and direct the respondents to consider the claim of the petitioner for payment of compensation amount to the tune of Rs. 44.00 lacs on account of following: S. No. Particulars Amount 01. Cost of Saffron Corms at present rate Rs. 22.50 lakhs 02. Damages on account of ailment of son of the petitioner because of loss and damage caused to the petitioner due to illegal attitude of the respondents Rs. 20 lakhs 03. Cost of tents damaged Rs. 1.50 lakhs Total Rs. 44.00 Lacs 2. The facts, under the shade of which the petitioner claims the aforesaid reliefs, are that in the year 1991, the Department of Agriculture issued a tender notice for the supply of 500 quintals of Saffron Corms, which was published in the Daily Newspaper “Aftab”, in its edition dated 30th of July, 1991. 1.50 lakhs Total Rs. 44.00 Lacs 2. The facts, under the shade of which the petitioner claims the aforesaid reliefs, are that in the year 1991, the Department of Agriculture issued a tender notice for the supply of 500 quintals of Saffron Corms, which was published in the Daily Newspaper “Aftab”, in its edition dated 30th of July, 1991. The petitioner firm, a registered unit, known as the M/S G.M. Pampori, Namblabal, Pampore, supplied Saffron Corms to the respondent department right from the year 1984 as per the tenders issued by the respondent department from time to time. In response to the tender notice detailed above, the petitioner firm supplied 254.75 quintals of Saffron Corms to the respondent Department, out of which Saffron Corms weighing 178.80 quintals were supplied as per the agreement bearing No. 2635-39 dated 18th of December, 1991 and 76.25 quintals of Saffron Corms were supplied without any agreement. The tender accepted by the respondent Department was in respect of the supply of 500 quintals of Saffron Corms and the petitioner had arranged this quantity for supply to the respondent Department. It has been stated that the Saffron Corms, being a perishable and a seasonal commodity, if not utilized in time, get damaged and, despite repeated requests of the petitioner to lift the remaining quantity of Saffron Corms, the respondents did not do so, as a result of which, the same got damaged and the petitioner was put to a huge loss by the respondent Department. On the strength of an arbitration clause in the agreement, the Director, Agriculture, namely, Ghulam Hassan Sheikh, on entering into the reference, submitted his award on 2nd of December, 1996. On receipt of the award, the Court considered the matter and an opportunity of being heard was provided to the parties. After hearing the parties, the learned District Judge, Srinagar, by order dated 18th of October, 1998, remitted the matter to the Director, Agriculture, as per the mandate of Section 16 of the Arbitration Act and directed reconsideration of the matter and, thereafter, to pass a speaking award. The Director, Agriculture, provided an opportunity of being heard to the parties. He collected evidence in pursuance of the directions of the learned District Judge and visited the spot. The Director, Agriculture, provided an opportunity of being heard to the parties. He collected evidence in pursuance of the directions of the learned District Judge and visited the spot. Subsequently, after affording an adequate opportunity of hearing to the parties, he submitted a detailed award on 29th of July, 1999, whereafter the learned District Judge, passed an order on the 4th of May, 2000, which reads as under: “Upon consideration and with the consent of both the parties the award submitted by Director Agriculture as nominated Arbitrator on 29-07-1999 is hereby made rule of the Court and the plaintiff/ petitioner is held entitled to the recovery of Rs. 6,59,152.00/- from the defendants. The plaintiff shall also be entitled to 15% interest from the date of institution of the suit till final payment thereof. A decree sheet shall be drawn accordingly. The award shall and shall always be deemed to be part of the decree. Costs are allowed. “ The respondents filed an appeal before the High Court against the order aforesaid passed by the learned District Judge, Srinagar. The appeal was accepted. The decree was set aside and the matter was remanded to the District Judge, Srinagar for consideration under law. Thereafter, the learned District Judge passed an order dated 29th of November, 2003, whereunder the award of Shri Sonaullah Sofi, Arbitrator, was accepted to the extent of Rs. 29,250/- to be paid to the plaintiff/ petitioner herein alongwith interest @ 12 percent from the date of filing of the suit till its realization. The other part of the award was not made the rule of the Court and the same was rejected. Aggrieved by the judgment/ order of the learned District Judge dated 29th of November, 2003, the petitioner filed an appeal against the same before this Court. The petitioner has contended that during the pendency of the appeal before the High Court, the respondents assured him that the matter will be considered by them and, accordingly, the petitioner was asked to withdraw the appeal. The petitioner moved an application before the Court for the withdrawal of the appeal with the liberty to file a fresh one and the Court, by its order dated 26th of December, 2008, on the motion of the petitioner, directed as under: “Mr. Qadri states that the appeal is no more required to pursued, so may be dismissed as withdrawn. The petitioner moved an application before the Court for the withdrawal of the appeal with the liberty to file a fresh one and the Court, by its order dated 26th of December, 2008, on the motion of the petitioner, directed as under: “Mr. Qadri states that the appeal is no more required to pursued, so may be dismissed as withdrawn. Motion is supported by affidavit of the appellant. Motion allowed. Appeal dismissed as withdrawn. Trial Court record be send back. “ 3. The respondents have resisted the pleadings of the petitioner in their counter affidavit by stating that the Joint Directorate of Agriculture Inputs, Kashmir, floated a tender notice in the year 1991 for purchase of 500 quintals of Saffron Corms vide tender notice bearing No. JDA-Veg194/1603-37 dated 06-07-1991. Pursuant to the said tender notice, ten tenders were received and the department accepted the lowest tender of Sh G. M. Pompori, the petitioner herein. Accordingly, the Joint Director Agriculture Inputs, Kashmir, directed the petitioner, being the lowest tenderer, to supply 207.75 quintals of Saffron Corms. By supply order bearing No. (i) JDA/Veg/2635-39 dated 04-09-1991, the petitioner was asked to supply 178.50 quintals and by order No. (ii) JDA/Veg/3106-09 dated 28-09-1991, he had to supply 29.25 quintals (11.25 quintals + 18.00 quintals) of Saffron Corms. In addition to the supply of the aforesaid quantity, the petitioner supplied 47 quintals of Saffron Corms to the Joint Director Agriculture Inputs, Kashmir, without any supply order. The total quantity of Saffron Corms received by the Joint Director Agriculture Inputs, Kashmir, is said to be 254.75 quintals. The agreement, it is stated, has been executed by the supplier/ petitioner herein with the respondent Department for the supply of 178.50 quintals of Saffron Corms only on the 18th of December, 1991, i.e. after 3 month and 15 days from the date of the placement of the supply order, when the same had to be executed within three days after the supply order, as per the terms and conditions of the tender notice. The payment was made to the supplier within a period of three years in piece-meals. The payment was made to the supplier within a period of three years in piece-meals. The supplier/ petitioner herein also claims that he has been supplying the Saffron Corms to the respondent Department for the past several years and, as per the previous practice, he claims that he dumped 500 quintals of Saffron Corms, i.e. 254.75 + 245.25, out of which, the Government has received only 254.75 quintals of Saffron Corms. The petitioner filed a suit before the High Court bearing file No. 481/94 on 20-12-1994, seeking a decree against the defendants/ respondents herein for the recovery of an amount of Rs. 12,11,548/- along with the interest till the date of the realization of the whole amount. This Court transferred the case to the learned District Judge, Srinagar on 17th of July, 1995. The Learned District Judge, Srinagar, by order dated 8th of April, 1996, directed as under: “. . . The respondents 3 to 6 in their objections have admitted the existence of the arbitration clause and requested for adjudication in terms of Section-34 of the Arbitration Act on behalf of plaintiff Mr. Javid Ahmad Advocate in present and submitted that he has no objection if the dispute is referred to the Arbitrator. In view of the agreed submissions of the learned counsel for the parties the dispute is referred to the Arbitrator Director Agriculture Kashmir Division Srinagar who is named in the notice inviting tenders entered into between the parties for his award which may be given within a period of four months' time from the date of entering into reference. “ In pursuance of the order aforesaid passed by the Learned District Judge, Srinagar, the case was referred to the Arbitrator, i.e. the then Director, Agriculture Kashmir. Two reports of the arbitrators are on record-one prepared by Shri G. H. Sheikh, the then Director, Agriculture Kashmir and the second prepared by the then Director, Agriculture Kashmir, Shri S. U. Sofi. Thereafter, the learned District Judge, Srinagar, passed the order dated 4th of May, 2000, which has been reproduced hereinbefore. On 2nd of August, 2000, the then Director of Agriculture Kashmir, namely, Mr. Thereafter, the learned District Judge, Srinagar, passed the order dated 4th of May, 2000, which has been reproduced hereinbefore. On 2nd of August, 2000, the then Director of Agriculture Kashmir, namely, Mr. V. K. Tandon, filed an appeal against the award passed by the learned District Judge, Srinagar, and, in terms of the order dated 5th of December, 2001, the High Court, while staying the operation of the said judgment/ decree, remanded the case back to the trial Court. The operative portion of the order is reproduced below: “Therefore, the appeal is accepted and the impugned judgment and decree passed by the trial court is set aside and the case is remanded back to the trial court with a direction to issue notice of the award to the respondents and dispose of the case in accordance with law. The parties are directed to cause their appearance before the learned trial court of Learned District Judge Srinagar on 29-12-2001. Let the record of the case together with a copy of this order be returned to the trial court forthwith. The learned District Judge decided the case on 29th of November, 2003, in favour of the State and accepted the award of the 1st Arbitrator for 15 quintals of Saffron Seed Corms amounting to Rs. 29,250/- plus 12 percent interest from 30th of December, 1994, viz. the date of institution of the suit, which was calculated at Rs. 63,360/-. Aggrieved by the said order, the petitioner filed an appeal before the Hon'ble High Court. The awarded amount was deposited before the Hon'ble Court. On 2nd of July 2005, the petitioner applied for the release of the awarded amount in his favour, which was accepted by the High Court. Subsequently, the petitioner moved an application before the High Court for the withdrawal of the appeal. The High Court, in terms of order dated 26th of December, 2008, passed in CMP No. 522/08 in CIA No. 37/04, the contents whereof have been detailed above, dismissed the appeal. 4. Heard and considered. 5. The facts are eloquent. The award submitted by the Director, Agriculture, who was nominated as an Arbitrator on 29th of July, 1999, was made the rule of the Court by order dated 4th of May, 2000 passed by the learned District Judge, Srinagar. By the said order, the petitioner was held entitled to the recovery of Rs. 5. The facts are eloquent. The award submitted by the Director, Agriculture, who was nominated as an Arbitrator on 29th of July, 1999, was made the rule of the Court by order dated 4th of May, 2000 passed by the learned District Judge, Srinagar. By the said order, the petitioner was held entitled to the recovery of Rs. 6,59,152/- from the respondents/ defendants and the petitioner was also held entitled to the interest @ 15 percent from the date of institution of the suit till final payment thereof. The respondents assailed this order in an appeal before the High Court. The appeal was allowed and the matter was remanded to the learned District Judge, Srinagar for accord of fresh consideration. The learned District Judge, by order dated 29th of November, 2003, accepted the award of the Arbitrator to the extent of Rs. 29,250/- only, to be paid to the petitioner alongwith interest @ 12 percent from the date of filing the suit till its realization. Aggrieved by the said order, the petitioner filed an appeal before this Court which was dismissed as withdrawn by order dated 26th of December, 2008 of this Court. In the petitions on hand, the petitioner has knocked at the doors of this Court on the grounds similar to the ones agitated by him in the appeal which has been dismissed as withdrawn without giving him any opportunity to file a fresh one. The approach of the petitioner, in taking the refuge of this Court under the garb of this petition on the same set of reliefs as pleaded by him in the appeal, is not countenanced under law. Resort can, in this behalf, be had from the law laid down by the Apex Court of the country in case titled 'Bakshi Dev Raj and Anr. v. Sudhir Kumar, 2011 AIR(SC) 3137', wherein and whereunder, the Hon'ble Supreme Court, at paragraph No. 18, observed as under: “18. Similar question was considered by this Court in Sarguja Trarnsport Service v. State Transport Appellate Tribunal, M. P., Gwalior, and Ors., 1987 1 SCC 5 . v. Sudhir Kumar, 2011 AIR(SC) 3137', wherein and whereunder, the Hon'ble Supreme Court, at paragraph No. 18, observed as under: “18. Similar question was considered by this Court in Sarguja Trarnsport Service v. State Transport Appellate Tribunal, M. P., Gwalior, and Ors., 1987 1 SCC 5 . In this decision, it was held that where a Petitioner withdraws a petition filed by him in the High Court under Article 226/227 without permission to institute fresh petition, remedy under Article 226/227 should be deemed to have been abandoned by the Petitioner in respect of the cause of action relied on in the writ petition and it would not be open to him to file a fresh petition in the High Court under the same Article though other remedies like suit or writ petition before this Court under Article 32 would remain open to him. It was further held that the principle underlying Rule 1 of Order XXIII of the Code of Civil Procedure should be extended in the interests of administration of justice to cases of withdrawal of writ petition also. The main contention urged by the learned counsel for the Petitioner in that case was that the High Court was in error in rejecting the writ petition on the grounds that the Petitioner had withdrawn the earlier writ petition in which he had questioned the order passed by the Tribunal on 04.10.1985 without permission of the High Court to file a fresh petition. It was urged by the learned Counsel that since the High Court had not decided the earlier writ petition on merits but only had permitted the Petitioner to withdraw the petition the withdrawal of the said earlier writ petition could not have been treated as a Bar to the subsequent writ petition. While considering the said question, this Court considered Sub-rule 3 of Rule 1 of Order 23 of the Code of Civil Procedure and its applicability to the writ petitions filed under Article 226/227 and held as under: “9. The point for consideration is whether a Petitioner after withdrawing a writ petition filed by him in the High Court under Article 226 of the Constitution of India without the permission to institute a fresh petition can file a fresh petition in the High Court under that article. On this point the decision in Daryao case is of no assistance. The point for consideration is whether a Petitioner after withdrawing a writ petition filed by him in the High Court under Article 226 of the Constitution of India without the permission to institute a fresh petition can file a fresh petition in the High Court under that article. On this point the decision in Daryao case is of no assistance. But we are of the view that the principle underlying rule 1 of Order XXIII 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 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 Article 226 of the Constitution once again. While the withdrawal of a writ petition filed in a High Court without permission to file a writ petition may not bar other remedies like a suit or a petition under Article 32 of the Constitution of India since such withdrawal does not amount to res judicata, the remedy under Article 226 of the Constitution of India should be deemed to have been abandoned by the Petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission. In the instant case, the High Court was right in holding that a fresh writ petition was not maintainable before it in respect of the same subject-matter since the earlier writ petition had been withdrawn without permission to file a fresh petition. We, however, make it clear that whatever we have stated in this order may not be considered as being applicable to a writ petition involving the personal liberty of an individual in which the Petitioner prays for the issue of a writ in the nature of habeas corpus or seeks to enforce the fundamental right guaranteed under Article 21 of the Constitution since such a case stands on a different footing altogether. We, however leave this question open. “ 6. The same view has been repeated and reiterated by the Hon'ble Supreme Court in case titled 'Ramesh Chandra Sankla and Ors. v. Vikram Cement Ors., 2008 14 SCC 58 ', paragraph Nos. We, however leave this question open. “ 6. The same view has been repeated and reiterated by the Hon'ble Supreme Court in case titled 'Ramesh Chandra Sankla and Ors. v. Vikram Cement Ors., 2008 14 SCC 58 ', paragraph Nos. 54 and 55 of which assume significance and these are reproduced below: “54. In the leading case of Daryao v. State of U.P. a Constitution Bench of this Court was called upon to decide whether withdrawal of a writ petition would operate as res judicata. The Court held that an order of withdrawal would not constitute res judicata inasmuch as there is no decision on the petition is withdrawn by the party without obtaining liberty from the Court to file a fresh petition on the same subject-matter, as a general rule, the petitioner is precluded from filing a fresh petition or an appeal against such an order because “he cannot be considered to be a party aggrieved by the order passed by the Court permitting withdrawal of the petition”. 55. In sarguja Transport Service v. STATS the Appellate Tribunal set aside permit granted in favour of the petitioner by the Regional Transport Authority to run a stage carriage. The petitioner filed a writ petition under Article 226 of the Constitution in the High Court of Madhya Pradesh against the order of the Tribunal but withdrew it. Then he filed a fresh petition and the High Court dismissed it holding that after the withdrawal of the first petition, the second petition was not maintainable. The aggrieved appellant approached this Court. Dismissing the appeal and considering the ambit and scope of Order 23 of the Code and distinguishing it from the doctrine of res judicata under Section 11 of the Code, this Court observed: 7. the law confers upon a man no rights or benefits which he does not desire. Whoever waives, abandons or disclaims a right will lose it. In order to prevent a litigant from abusing the process of the court by instituting suits again and again on the same cause of action without any good reason the Code insists that he should obtain the permission of the court to file a fresh suit after establishing either of the two grounds mentioned in sub-rule (3) of Rule 1 of Order 23. The principle underlying the above rule is founded on public policy, but it is not same as the rule of res judicata contained in Section 11 of the Code which provides that no court shall try and suit or issue in which the matter directly or substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court. The rule of res judicata applies to a case where the suit or an issue has already been heard and finally decided by a court. In the case of abandonment or withdrawal of a suit without the permission of the Court to file a fresh suit, there is no prior adjudication of a suit or an issue is involved, yet the Code provides, as stated earlier, that a second suit will not lie in sub-rule (4) of Rule 1 of Order 23 of the Code when the first suit is withdrawn without the permission referred to in sub-rule (3) in order to prevent the abuse of the process of the Court. “ 7. Looking at the petition of the petitioner from the perspective of the application of the law cited above, it needs must be said that the petitioner filed an appeal before this Court against the order and judgment dated 29th of November, 2003 passed by the learned District Judge, Srinagar, in case titled 'Ghulam Mohammad Pampori v. State of JK and Ors., for setting aside the same to the extent of not allowing the award for an amount of Rs. 6,59,152.50/-, being the cost of Saffron Corms. The appellant prayed for passing of a decree for the said amount alongwith interest from the date the claim became due to the applicant till the final and complete realization of the amount. The appeal, on the motion of the appellant, i.e. the petitioner herein, was dismissed as withdrawn by order of this Court dated 26th of December, 2008. 8. The law is lucid and clear. The appeal, on the motion of the appellant, i.e. the petitioner herein, was dismissed as withdrawn by order of this Court dated 26th of December, 2008. 8. The law is lucid and clear. It spells out that, as a general rule, the petitioner is precluded from filing a fresh petition or an appeal against such an order because the petitioner cannot be considered to be a party aggrieved by the order passed by the Court permitting such withdrawal of the petitioner. The law confers no rights or benefits upon a man which he does not desire to harvest and reap and, which he waives, abandons or does not claim. In such cases, the principle underlying Rule 1 of Order XXIII of the Civil Procedure Code has to be extended in the interest of the administration of justice and on the ground of public policy as explained in the law laid down above and, therefore, a second petition cannot be maintained on the same and similar set of facts. 9. Viewed in the context of what has been said and done hereinabove, the petition of the petitioner is not maintainable. It is devoid of merit and, as such, the same is dismissed alongwith the connected petition bearing OWP No. 1323/2015. Interim directions, if any, in force as on date, shall stand vacated.