Gujarat High Court
Anilbhai Jayantilal Sanghavi vs State Of Gujarat & 6 on 10 March, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/8557/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 8557 of 2015
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ANILBHAI JAYANTILAL SANGHAVI....Petitioner(s)
Versus
STATE OF GUJARAT & 6....Respondent(s)
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Appearance:
MR HASIT H JOSHI, ADVOCATE for the Petitioner(s) No. 1
MS VACHA DESAI, AGP for the Respondent(s) No. 1 - 5 , 7
MR DEEPAK P SANCHELA, ADVOCATE for the Respondent(s) No. 5
MRS KRISHNA G RAWAL, ADVOCATE for the Respondent(s) No. 6
NOTICE SERVED for the Respondent(s) No. 3
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 10/03/2016
ORAL ORDER
1. By this writapplication under Article 226 of the Constitution of India, the petitioner, a retired Government Servant has prayed for the following reliefs: "17(A) Admit this petition.
(B) Quash and set aside the impugned order of respondent No.2 dated 23.3.2015 annexure J by holding it as illegal, unjust, improper, bad in law and violative of Article 14 and 21 of the Constitution of India and be further pleased to direct the respondents to extend the benefit of pension to the petitioner for the service rendered by him in Dhandhuka Nagarpalika for the period from 3.12.1956 to 23.7.1974 and the period of his service in Mahemdabad Nagarpalika from 1.4.1982 and 30.11.1996 the date on which he retired on his having reached the age of superannuation by directing the respondents to extend all such benefit of pension to the petitioner with interest at the rate of 12% per annum from the date of his retirement till the date of actual payment of such benefit to the petitioner with costs all throughout.
Page 1 of 15HC-NIC Page 1 of 15 Created On Thu Mar 17 00:12:56 IST 2016 C/SCA/8557/2015 ORDER (C) Pending admission, hearing and final disposal of this petition, to direct the respondents to pay provisional pension to the petitioner.
(D) Grant such other and further reliefs deemed just and proper by this Court in the facts and circumstances of the case."
2. The facts of this case may be summarized as under: 2.1 The petitioner joined the Mahemdabad Nagarpalika as a Secretary on 01.04.1982. He retired from service on 30.11.1996 as the Chief Officer.
2.2 It appears that prior to joining the Mahemdabad Nagarpalika, he had served as a Secretary in the Dhandhuka Nagarpalika between 03.12.1956 and 23.07.1974.
2.3 It also appears from the materials on record that on account of health problems, he had to resign from service of the Dhandhuka Nagarpalika in 1974.
2.4 Indisputably, there was a break in service between 24.07.1974 and 31.03.1982.
3. It is not in dispute that the petitioner is drawing pension for his service with the Mahemdabad Nagarpalika for the period between 1982 and 1996. However, his case is that although there was a break in service between 1974 and 1982, yet, his previous service between 1956 and 1974 should be clubbed. His case is that the new service being pensionable, he is entitled to combine it with his previous service in accordance with the Rule327 of the Bombay Civil Services Rules and whole to be treated as one service for the period of pension notwithstanding that the new service was not in continuation of the previous service as there was a break between the two services.
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4. The litigation in this regard is as old as more than two decades. The petitioner came before this Court with very same prayer by filing a Special Civil Application No.3012 of 1998, which came to be disposed of in the following terms vide order dated 22.07.1998.
"The say of the petitioner is that he had worked as a Clerk and later on as Secretary with the Dhanduka Nagar Panchayat during the period 3.12.1956 to 23.7.1994. He resigned on 23.7.1974 and joined the service of Mehmadabad Nagar Panchayat on 1.4.1982 and retired as Chief Officer of the said Nagar Panchayat on 30.11.1996. He made a representation to the respondents requesting to club the period of his service in the Dhanduka Nagar Panchayat for the purpose of retirement benefits. The learned Advocate states that there is a circular which permits clubbing of service, but he is not in a position to produce the same. He also submitted that such circulars are in possession of the respondents. In absence of such circular before this Court, it is not possible to decide the said controversy. In view of this, the respondents are directed to decide the petitioner's representation, if any pending, within a period of six weeks from the date of production of certified copy of this order. In case such a representation is not filed or not traceable, the petitioner may make fresh representation.
2. In view of this, the petitioner seeks permission to withdraw this petition. Permission granted. This Special Civil Application is dismissed as withdrawn. Direct Service is permitted."
5. He preferred another writapplication being a Special Civil Application No.11020 of 1998, which was ordered to be dismissed vide order dated 18.10.1999. The order reads thus: "1. Heard learned counsel for the petitioner. Admittedly the petitioner has retired after serving at the Mehmedabad Nagar Panchayat from April 1982 to November 1996 he has made an application for calculating the service rendered by him at Dhandhuka Nagar Panchayat between December 1956 to July 1974 when he resigned from the services due to ill health. Admittedly he was not in service between 1974 and 1982. Petitioner claims that such power exists under some circular and he refers to Special Civil Application No. 3012 of 1998. Petitioner was not even in a position to lay his hands and to specify the circular, to which he refers. Today also he is not in a better position. In these circumstances, I am not inclined to entertain Page 3 of 15 HC-NIC Page 3 of 15 Created On Thu Mar 17 00:12:56 IST 2016 C/SCA/8557/2015 ORDER this petition merely for the purpose of searching out a circular existence of which itself is doubtful.
Dismissed."
6. Being dissatisfied with the order passed by the learned Single Judge referred to above in the Special Civil Application No.11020 of 1998, he preferred a Letters Patent Appeal No.1146 of 2001. The Letters Patent Appeal came to be disposed of vide order dated 02.09.2002 which reads as under: "Learned Advocate Mr. Upadhyay under instructions at this stage seeks permission to withdraw, the main petition stating that the circular on which the claim is based is still not traced and made available and as and when it is obtained liberty may be reserved.
In view of the above statement, the prayer as to withdraw the petition is granted. Since we find that the petition was premature. Accordingly, the petition shall stand disposed of and consequently this appeal would not survive."
7. It may not be out of place to state at this stage that in the earlier round of litigation his case was that there were circulars of the State Government, which helped him in getting the two services clubbed for the purpose of pension. But at no point of time, he could place such circulars and also no argument as regards the Rule327 of the Bombay Civil Services Rules was put forward.
8. In the second round of litigation, the petitioner preferred the Special Civil Application No.6142 of 2003 for the very same cause. The learned Single Judge vide order dated 19.12.2003 dismissed the same with cost. The order reads thus: "Heard the learned advocates.
The present petition has been preferred by a retired Chief Officer of the Mahemdabad Nagar Panchayat.
Page 4 of 15HC-NIC Page 4 of 15 Created On Thu Mar 17 00:12:56 IST 2016 C/SCA/8557/2015 ORDER It is the claim of the petitioner that he joined the Mahemdabad Nagar Panchayat as Secretary on 1st April, 1982 and has retired from service on 30th November, 1996 as Chief Officer. However, prior to joining the Mahemdabad Nagar Panchayat the petitioner had served as Secretary in Dhandhuka Gram Panchayat from 3rd December, 1956 to 23rd July, 1974. Admittedly there is a break in service from 24th July, 1974 to 31st March, 1982. The petitioner claims that for the purposes of pensionary benefits the previous service rendered in Dhandhuka Gram Panchayat from the year 1956 to 1974 shall also be considered pensionable and shall be clubbed with the service in Mahemdabad Nagar Panchayat.
The claim made by the petitioner is contrary to Rule 250 of the Bombay Civil Services Rules. The said Rule 250 stipulates that resignation shall constitute interruption in service; that interruption in service shall entail cancellation of duty counting for pension. The learned advocate Mr.Upadhyay, however, has relied upon the Government Circular dated 16th December, 1991 and has submitted that the State Government has power to condone such break in service.
I am unable to agree with Mr.Upadhyay. The Government Circular dated 16th December, 1991 (Annexure'I' to the petition) provides for procedure to be followed in respect of deficit in pensionable service. The said Circular is not a substantive circular allowing clubbing of two services as pensionable service. There is nothing on the record which supports the claim of the petitioner that the previous service rendered in Dhandhuka Gram Panchayat can be clubbed with the later service rendered in Mahemdabad Nagar Panchayat for the purposes of computation of pension.
The petitioner had earlier preferred Special Civil Application No.3012/1998 in the same subject matter. The same came to be disposed of on 22nd July, 1998 (Coram: N.N.Mathur, J.). At that time also it was observed that the petitioner had not produced materials in support of his claim. However, the petition was permitted to be withdrawn with a view to allowing the petitioner to pursue the representation, which he said he had made to the State Government. Since then, the petitioner preferred Special Civil Application No.11020/1998 in the same subject matter. The said petition came to be dismissed on 18th October, 1999 (Coram: R.Balia, J.). The said order was challenged in Letters Patent Appeal No.1146/2001. The said Letters Patent Appeal came to be withdrawn on 29th October, 2001 (Coram: J.N.Bhatt, J. and D.H.Waghela, J.). Once again the petitioner has preferred the present petition in the same subject matter without producing any further material in support of his claim. Hence, the present petition is barred by principle of res Page 5 of 15 HC-NIC Page 5 of 15 Created On Thu Mar 17 00:12:56 IST 2016 C/SCA/8557/2015 ORDER judicata. The petitioner is also guilty of abuse of process of law.
The learned advocate Mr.Upadhyay also, having appeared in Letters Patent Appeal, ought to have advised the petitioner against filing of writ petition in the same subject matter in which he had failed in the earlier writ petitions and the Letters Patent Appeal.
In above view of the matter the petition is not maintainable and is also devoid of any merit. The petition is, therefore, dismissed in limine with costs. Notice is discharged. The cost is quantified at Rs.2,500=00."
9. Being dissatisfied, he preferred a Letters Patent Appeal No.1376 of 2013, which came to be dismissed vide order dated 28.07.2014. The operative order reads as under: "12. In view of the aforesaid decisions of the Apex Court, we are in complete agreement with the view taken by the learned Single Judge. We find no infirmity in the view taken by the learned Single Judge.
13. With regard to the submission of the appellant that according to Rule 327 of the Bombay Civil Services Rules, the appellant would be entitled for pension is concerned, we are not entering into the merits of the matter for the simple reason that for the same cause of action, earlier writ petitions of the appellant have been dismissed and hence, the third writ petition for the same cause of action is not maintainable."
10. I take notice of the observations made by the Division Bench of this Court that it was not inclined to go into the issue of the applicability of Rule 327 of the Bombay Civil Services Rules as in the first round of litigation, the writapplications were rejected.
11. The matter went up to the Supreme Court. The Supreme Court passed the following order: "We find no infirmity in the impugned order passed by the High Court. We however observe, from a perusal of the impugned order, that in the Special Civil Application No.3012 of 1998 preferred by the petitioner, an order dated 22.7.1998 was passed. Relevant extract thereof is being Page 6 of 15 HC-NIC Page 6 of 15 Created On Thu Mar 17 00:12:56 IST 2016 C/SCA/8557/2015 ORDER reproduced hereunder:
"In view of this, the respondents are directed to decide the petitioner's representation, if any pending, within a period of six weeks from the date of production of certified copy of this order. In case such a representation is not filed or not traceable, the petitioner may make fresh representation."
In view of the aforesaid direction issued by the High Court, it was imperative for the respondent to take a decision on the representation made by the petitioner. Learned counsel for the petitioner states; that no decision has been taken in furtherance of the aforesaid direction issued by the High Court as far back as on 22.7.1998.
In the facts and circumstances of the case, we consider it just and appropriate to direct respondent no.1, i.e., Secretary, Urban Development & Housing Department, Gujarat to take a decision on the representation made by the petitioner. If such a decision has already been taken, the same shall be communicated to the petitioner within four weeks from the date of receipt of a certified copy of this order. In such eventuality, it shall be open to the petitioner to assail the said order, if the petitioner is so advised, in accordance with law.
The instant petition is disposed of in the aforesaid terms."
12. It appears that the Supreme Court directed the State Government to look into the representation of the petitioner of the year 1998. On the strength of the order passed by the Supreme Court, the petitioner again requested the State Government to reconsider the issue. The State Government thought fit to reject the representation. It is the order passed by the State Government dated 23.03.2015 impugned in this writapplication.
13. Mr. Hasit Joshi, the learned counsel appearing for the petitioner very vehemently submitted that although this is the third round of litigation on the very same issue, yet, in view of the specific order passed by the Supreme Court, the State Government considered the representation and thought fit to reject the same, which has given a fresh cause of action to his client to file this writapplication. Mr. Joshi Page 7 of 15 HC-NIC Page 7 of 15 Created On Thu Mar 17 00:12:56 IST 2016 C/SCA/8557/2015 ORDER very fairly conceded that the entire issue which is the subject matter of this writapplication, was set at rest in the earlier two round of litigations, but, the Court somehow overlooked the Rule 327 of the Bombay Civil Services Rules. According to him, since a neat question of law has been raised, the doctrine of resjudicata or even constructive res judicata would not apply in the case in hand.
14. The principles of res judicata are of universal application as it is based on two age old principles, namely, 'interest reipublicae ut sit finis litium' which means that it is in the interest of the State that there should be an end to litigation and the other principle is 'nemo debet bis vexari si constat curiae quod sit pro una et eadem causa' meaning thereby that no one ought to be vexed twice in a litigation if it appears to the Court that it is for one and the same cause. This doctrine of res judicata is common to all civilized system of jurisprudence to the extent that a judgment after a proper trial by a Court of competent jurisdiction should be regarded as final and conclusive determination of the questions litigated and should for ever set the controversy at rest.
15. That principle of finality of litigation is based on high principle of public policy. In the absence of such a principle great oppression might result under the colour and pretence of law inasmuch as there will be no end of litigation and a rich and malicious litigant will succeed in infinitely vexing his opponent by repetitive suits and actions. This may compel the weaker party to relinquish his right. The doctrine of res judicata has been evolved to prevent such an anarchy. That is why it is perceived that the plea of res judicata is not a technical doctrine but a fundamental principle which sustains the Rule of Law in ensuring finality in litigation. This principle seeks to promote honesty and a fair administration of justice and to prevent abuse in the matter of accessing Court for agitating on issues which have become final between the Page 8 of 15 HC-NIC Page 8 of 15 Created On Thu Mar 17 00:12:56 IST 2016 C/SCA/8557/2015 ORDER parties.
16. Justice Tek Chand delivering the unanimous Full Bench decision in the case of Mussammat Lachhmi v. Mussammat Bhulli (ILR Lahore Vol.VII 384) traced the history of this doctrine both in Hindu and Mohammedan jurisprudence as follows: "In the Mitakshra (Book II, Chap. I, Section V, verse 5) one of the four kinds of effective answers to a suit is "a plea by former judgment"
and in verse 10, Katyayana is quoted as laying down that "one against whom a judgment had formerly been given, if he bring forward the matter again, must be answered by a plea of Purva Nyaya or former judgment" (Macnaughten and Colebrooke's translation, page 22). The doctrine, however, seems to have been recognized much earlier in Hindu Jurisprudence, judging from the fact that both the Smriti Chandrika (Mysore Edition, pages 9798) and the Virmitrodaya (VidyaSagar Edition, page 77) base the defence of Prang Nyaya (=former decision) on the following text of the ancient lawgiver Harita, who is believed by some Orientalists to have flourished in the 9th Century B.C. and whose Smriti is now extant only in fragments: "The plaintiff should be nonsuited if the defendant avers: 'in this very affair, there was litigation between him and myself previously,' and it is found that the plaintiff had lost his case".
There are texts of Prasara (Bengal Asiatic Society Edition, page
56) and of the Mayukha (Kane's Edition, page 15) to the same effect.
Among Muhammadan lawgivers similar effect was given to the plea of "Nizaimunfasla" or "Amar Mania taqrir mukhalif." Under Roman Law, as administered by the Proetors' Courts, a defendant could repel the plaintiff's claim by means of 'exceptio rei judicatoe" or plea of former Page 9 of 15 HC-NIC Page 9 of 15 Created On Thu Mar 17 00:12:56 IST 2016 C/SCA/8557/2015 ORDER judgment. The subject received considerable attention at the hands of Roman jurists and as stated in Roby's Roman Private Law (Vol.II, page
338) the general principle recognised was that "one suit and one decision was enough for any single dispute" and that "a matter once brought to trial should not be tried except, of course, by way of appeal". (Pages 391392 of the report)
17. The learned Judge also noted that in British India the rule of res judicata was first introduced by Section 16 of the Bengal Regulation (III of 1973), which prohibited the Zilla and City Courts from entertaining any cause which, from the production of a former decree or the record of the Court, appears to have been heard and determined by any Judge or any Superintendent of a Court having competent jurisdiction. The learned Judge found that the earliest legislative attempt at codification of the law on the subject was made in 1859, when the first Civil Procedure Code was enacted, whereunder Section 2 of the Code barred every Court from taking cognizance of suits which, on the same cause of action, have been heard and determined by a Court of competent jurisdiction. The learned Judge opined, and in our view rightly, that this was partial recognition of the English rule insofar as it embodied the principles relating to estoppel by judgment or estopel by record.
18. Thereafter, when the Code was again revised in 1877, the operation of the rule was extended in Section 13 and the bar was no longer confined to the retrial of a dispute relating to the same cause of action but the prohibition was extended against reagitating an issue, which had been heard and finally decided between the same parties in a former suit by a competent court. The learned Judge also noted that before the principle assumed its present form in Section 11 of the Code of 1908, the Section was expanded twice. However, the learned Judge noted that Section 11 is not exhaustive of the law on the subject.
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19. Therefore, any proceeding which has been initiated in breach of the principle of res judicata is prima facie a proceeding which has been initiated in abuse of the process of Court.
20. A Constitution Bench of the Supreme Court in Devilal Modi v. Sales Tax Officer, Ratlam and Ors. AIR 1965 SC 1150, has explained this principle in very clear terms:
"But the question as to whether a citizen should be allowed to challenge the validity of the same order by successive petitions under Art. 226, cannot be answered merely in the light of the significance and importance of the citizens' fundamental rights. The general principle underlying the doctrine of res judicata is ultimately based on considerations of public policy. One important consideration of public policy is that the decisions pronounced by courts of competent jurisdiction should be final, unless they are modified or reversed by appellate authorities; and the other principle is that no one should be made to face the same kind of litigation twice over, because such a process would be contrary to considerations of fair play and justice, vide : Daryao v. State of U.P., 19621 SCR 575 : (AIR 1961 SC 1457)."
21. The Supreme Court in All India Manufacturers Organisation (AIR 2006 SC 1846) (supra) explained in clear terms that principle behind the doctrine of res judicata is to prevent an abuse of the process of Court.
22. In explaining the said principle the Bench in All India Manufacturers Organisation (AIR 2006 SC 1846) (supra) relied on the following formulation of Lord Justice Somervell in Greenhalgh v. Mallard (1947) 2 All ER 255 (CA):
Page 11 of 15HC-NIC Page 11 of 15 Created On Thu Mar 17 00:12:56 IST 2016 C/SCA/8557/2015 ORDER "I think that on the authorities to which I will refer it would be accurate to say that res judicata for this purpose is not confined to the issues which the court is actually asked to decide, but that it covers issues or facts which are so clearly part of the subjectmatter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them."
23. The Bench also noted that the judgment of the Court of Appeal in "Greenhalgh" was approved by the Supreme Court in State of U.P. v. Nawab Hussain (1977) 2 SCC 806:(AIR 1977 SC 1680) at page 809, para 4.
24. Following all these principles a Constitution Bench of the Supreme Court in Direct Recruit ClassII Engg. Officers' Assn. v. State of Maharashtra (1990) 2 SCC 715 : (AIR 1990 SC 1607) laid down the following principle:
"......an adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had decided as incidental to or essentially connected with subjectmatter of the litigation and every matter coming into the legitimate purview of the original action both in respect of the matters of claim and defence. Thus, the principle of constructive res judicata underlying Explanation IV of Section 11 of the Code of Civil Procedure was applied to writ case. We, accordingly hold that the writ case is fit to be dismissed on the ground of res judicata"
25. In view of such authoritative pronouncement of the Constitution Bench of the Supreme Court, there can be no doubt that the principles of constructive res judicata, as explained in explanation IV to Section 11 of the CPC, are also applicable to writ petitions.
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26. Thus, the attempt to reargue the case which has been finally decided by the Court of last resort is a clear abuse of process of the Court, regardless of the principles of res judicata, as has been held by the Supreme Court in K.K. Modi v. K.N. Modi and Ors. (1998) 3 SCC 573 :
(AIR 1998 SC 1297).In paragraph 44 of the report, this principle has been very lucidly discussed by this Court and the relevant portions whereof are extracted below:
"One of the examples cited as an abuse of the process of the court is relitigation. It is an abuse of the process of the court and contrary to justice and public policy for a party to relitigate the same issue which has already been tried and decided earlier against him. The reagitation may or may not be barred as res judicata ..."
27. In coming to the aforementioned finding, the Supreme Court relied on the Supreme Court Practice 1995 published by Sweet and Maxwell. The relevant principles laid down in the aforesaid practice and which have been accepted by this Court are as follows:
"This term connotes that the process of the court must be used bona fide and properly and must not be abused. The court will prevent improper use of its machinery and will in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation. ... The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed but depend on all the relevant circumstances. And for this purpose considerations of public policy and the interests of justice may be very material." [See: 'M. Nagabhushana Vs. State of Karnataka and Ors.' reported in AIR 2011 SC 1113]
28. In the case of 'Mohanlal Goenka Vs. Benoy Kishna Mukherjee Page 13 of 15 HC-NIC Page 13 of 15 Created On Thu Mar 17 00:12:56 IST 2016 C/SCA/8557/2015 ORDER and Ors.' reported in AIR 1953 SC 65(1), His Lordships Mr. Ghulam Hasan, J observed in Para23 as under:
23. There is ample authority for the proposition that even an erroneous decision on a question of law operates as 'res judicata' between the parties to it. The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as 'res judicata'. A decision in the previous execution case between the parties that the matter was not within the competence of the executing court even though erroneous is binding on the Parties; see'Abhoy Kanta v. Gopinath Deb,' AIR (30) 1943 Cal 460.
29. In the case of 'Tamil Nadu Consumers Cooperative Federation Ltd; T A Jayalakshmi; V Haridas; V Ravindran and V Sudhakar Partners, Vasu Studios Versus T A Jayalakshmi and Ors; Government of Tamil Nadu', reported in 2008 LawSuit (Mad) 987, the Madras High Court observed as under: [14] In Forward Construction Company v. Prabhat Mandal, 1986 1 SCC 100, the Supreme Court had observed that 'an adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to or essentially connected with the subjectmatter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matters of claim or defence.'
30. I am afraid, if I accept the argument of Mr. Joshi, it would be as good as sitting in appeal over the earlier judgments of this Court rendered by the learned Single Judge as well as by the Division Bench. The assertion on the part of the learned counsel that Rule 327 was not considered, is also not correct.
31. In the case in hand, the petitioner had resigned from service and after a period of eight years was given a fresh appointment. In my view, no case worth the name is made out. No error not to speak of any error of law could be said to have been committed by the State Government. I Page 14 of 15 HC-NIC Page 14 of 15 Created On Thu Mar 17 00:12:56 IST 2016 C/SCA/8557/2015 ORDER was inclined to impose heavy costs for this third round of unnecessary litigation. However, considering the fact that the petitioner has retired from service, I have refrained from imposing any costs. This writ application fails and is hereby rejected. Notice is discharged.
(J.B.PARDIWALA, J.) aruna Page 15 of 15 HC-NIC Page 15 of 15 Created On Thu Mar 17 00:12:56 IST 2016