Rajasthan High Court - Jaipur
Ganga Sahai Sharma vs State Of Raj & Anr on 28 February, 2013
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. ORDER Ganga Sahai Sharma Vs. The State of Raj. & ors. SB CIVIL WRIT PETITION NO.6401/2003. DATE OF ORDER: 28th February, 2013. PRESENT HON'BLE MR. JUSTICE RAGHUVENDRA S. RATHORE Mr. R.D. Rastogi for the petitioner. Mr. R.K. Agrawal, senior advocate with Ms. Sunita Pareek) Mr. N.K. Maloo, senior advocate with Mr. V.K. Tamoliya ) Mr. Bhawani Shankar Sharma respondent no.5- in person. REPORTABLE BY THE COURT:
The framers of the Constitution had thought it proper to provide special remedy to the Citizens in High Courts by incorporating provisions in Article 226 of the Constitution of India. The High Courts are empowered with the jurisdiction, which is of an extra-ordinary nature, for redressal of grievance of the citizens with the object of immediate relief. But it is often found that grievances raised before the said forum are not genuine and in fact it is misused by certain people, resulting in wasting of precious time of the court and creating hurdles for those who really need justice from it. In some cases proceedings are initiated and interim relief obtained but lateron the proceedings are brought to an end by those very persons.
2. In the case of Anant Prasad Pandey Vs. Secretary, Madhyamik Shiksha Mandal, Bhopal & others- [(2002)2 MPLJ 369] decided by the High Court of Madhya Pradesh at Jabalpur, an observation was made by Mr. Justice Deepak Mishra, as he then was, as under:
'Occasions do arise in certain cases where the litigants try to take advantage of certain situations by seeking withdrawal of the application which they have moved seeking certain reliefs. But when the attempt is quite adroit and the intention is not sanguine and the effort is made to frustrate the cause of justice and to have an advantage because of withdrawal, the Courts are under an obligation not to grant permission to withdraw. A litigant cannot visit the Court as if it is a laboratory. He cannot endeavour to play a game of Chess. He cannot be permitted to box the compass. The purpose of saying so is that when the case was called the learned counsel for the petitioner stood up and sought permission seeking withdrawal of the adjudication the sacrosanctity of law has to be saved. In that backdrop, this Court thought it apposite not to grant leave to withdraw the writ petition. The pristine purity of law has to be maintained and no one should be allowed to spoil the alter of the temple.'
3. Some what similar situation had arisen in the instant case when it was taken up for hearing. This court was informed that both the counsels for the Jaipur Development Authority are no more representing it. Therefore, directions were given by this court, with the consent of the Secretary, Jaipur Development Authority who was present in person, to Shri N.K. Maloo, Senior advocate to represent the said respondent. Thereafter, an application came to be filed by one Bhawani Shankar Sharma to be impleaded as party to the writ petition. After thoroughly considering the facts and circumstances of the case, this court vide order dated 25.7.2012 allowed the application under Order 1 Rule 10 CPC for impleading the applicant as party respondent. The newly impleaded party then filed a detailed reply to the writ petition. It had also filed a stay application along with documents with the prayer to issue directions to the Jaipur Development Authority to remove the encroachment from Khasra nos. 224, 225, 295 and 297, measuring 6 bighas 14 biswas situated at village Chainpura Tehsil Sanganer District Jaipur. Further, it was prayed that stringent action be taken against the petitioner as well as the defaulting officers/officials of the Jaipur Development Authority.
4. When the matter came up before the court on 8.8.2012 to consider the stay application filed by Bhawani Shankar Sharma- respondent no.5, the counsel for the petitioner submitted that an application on behalf of the petitioner has been filed for withdrawal of the writ petition and, accordingly, the petitioner may be permitted to do so. To this, a serious objection was raised by the counsels for the Jaipur Development Authority as well as the respondent no.4, namely, the New Pink City Grah Nirman Sahkari Samiti Limited. Therefore, arguments were advanced from both the sides on the question of withdrawal of the writ petition and objection to it by the respondents.
5. Before considering the prayer of the petitioner to permit withdrawal of the writ petition and the objection raised by the other side to grant of such relief, it would be appropriate to consider the material facts; the point of adjudication; the relief sought by the petitioner in the writ petition and the contest to it having been made by the respondents.
6. The petitioner had come with the case that one Pratap Sharma was the khatedar of the land bearing khasra nos.224, 225 and 297 (old khasra no. 144, 145 and 174) totally ad-measuring 2 bighas 3 biswas, situated in village Chainpura Tehsil Sanganer District Jaipur (Jawahar Circle, Jaipur). The said khatedar died on 15.11.2001 but before his death he had executed a will in favour of the petitioner on 14.8.2001 and on that basis he claims to be khatedar tenant of the land. The petitioner is said to be in possession of the land and pucca house had been constructed on it. It is also stated that the petitioner and his family are residing therein.
Further, the case of the petitioner is that the State Government for Urban Improvement Trust, Jaipur, had initiated land acquisition proceedings by publishing a notice under section 4 of the Rajasthan Land Acquisition Act. It is said by the petitioner that neither any compensation had been paid nor possession thereof has been taken so far.
7. According to the petitioner, a co-operative society, namely, The New Pink City Grah Nirman Sahakari Samiti Limited- respondent no.4, had started claiming the land on the basis of some forged documents and a dispute in this regard is pending before the civil court. The society never got the possession of the land. The said society started proceedings for regularization of the land in its favour by giving it the name as Siddharth Nagar 'A'. Before any camp for regularization in favour of the society could be held, a reference was filed in Jaipur Development Authority Appellate Tribunal which was decided on 25.4.2003, holding that the Jaipur Development Authority- respondent no.2, could not prove that the possession of the land in question was ever taken over by it, in execution proceedings and it has not been alleged that the khatedar had encroached upon the land thereafter. It was also held that the alleged agreement relied upon by the society was executed after commencement of the proceedings for acquisition and it did not confer any right upon it. Accordingly, the Tribunal held that the Jaipur Development Authority will not regularize the land until the decision of the dispute as to ownership is decided by an appropriate court of law (copy of the order dated 25.4.2003 passed by the appellate tribunal is placed as Annexure-4 on record).
8. The case of the petitioner further is that after commencement of the acquisition proceedings, decades ago in 1969, the land was not required for any public purpose by the local authority. The possession of the land having not been taken in acquisition proceedings and the compensation having not been paid actually to the khatedar so far, then the government ought to have exercised its power in releasing the land from acquisition proceedings so that the petitioner is not uprooted from the land and residence. Such like decisions had been taken by the government in many similarly situated cases. The petitioner had also given a notice for demand of justice through his counsel on 27.8.2003 with the prayer that the aforesaid land be released from the proceedings of acquisition within one month, otherwise, recourse to legal remedies before the appropriate court of law is to be taken.
9. The petitioner had sought the following reliefs from the court in this writ petition:
(i) to direct the respondents to deacquire the aforesaid land in dispute under the provisions of Land Acquisition Act, 1894;
(ii) in the alternative, if for any reason relief (i) is not granted, the respondents may be directed to regularize the possession of land in favour of the petitioner as per the circulars already issued by the respondents in this regard;
(iii) to issue any other appropriate relief which this Hon'ble Court may deem fit, just and proper in the facts and circumstances of the case in favour of the petitioner;
(iv) to allow the cost of the writ petition in favour of the petitioner.
10. The Jaipur Development Authority- respondent no.2 has contested the case of the petitioner by way of filing a detail reply. It had raised certain preliminary objections to the maintainability of the writ petition itself.
Firstly, that the writ petition lacks material particulars, in as much as, that the petitioner has not disclosed complete facts about the acquisition of the land in question which are (a) notification under section 4 of the Rajasthan Land Acquisition Act, 1953 was issued on 16.8.1969 to acquire the land bearing 224, 225 and 297; (b) declaration under section 6 came to be issued on 28.2.1973; (c) the land acquisition officer passed an award on 17.5.1975 which duly completed the acquisition proceedings, (d) thereafter, the mutation was entered in the name of UIT; (e) the compensation for the acquisition was deposited in the court on 9.12.1999. Accordingly, it is the case of the respondent Jaipur Development Authority that the acquisition proceedings in the instant case stood completed almost 30 years ago.
Secondly, the petitioner has no locus standi to file the writ petition for the simple reason that he is not the person interested, through a person authorized. The acquisition proceedings admittedly were completed in the year 1975 and the land in question has been entered in the name of UIT.
Thirdly, the petitioner has raised his claim on the basis of an un-registered will dated 14.8.2001 when the right of owner-ship of khatedar Pratap Sharma stood extinguished on account of acquisition proceedings and therefore he could not have, conferred a better title of property to the petitioner then what he had himself enjoyed during his life time.
Fourthly, once a notification under section 4 had been issued, the rights of the khatedar are frozen and, therefore, the so-called will is totally irrelevant.
Fifthly, the will on the basis of which the petitioner has raised his claim is admittedly an unregistered one. The khatedar Pratap Sharma had no right to give away the land which came to be vested in JDA after acquisition. As a matter of fact, the petitioner is trying to get his right in respect of land in question through a will and by using the same as a basis, he has invoked the extraordinary remedy under Article 226 of the Constitution for having his title declared, without obtaining a probate.
Sixthly, regularization of a land is not a vested right under the statute, therefore, the same cannot be enforced under Article 226 of the Constitution of India. A regularization is an act through which an illegality is compounded.
Seventhly, the Jaipur Development Authority has recently started construction of road, connecting Jawahar Circle to Airport and the land in question forms a part of it. The utilization of the land in question for construction of road for airport as such and the relief sought by the petitioner is also against the public interest at large. Therefore, the respondents have prayed that the writ petition deserves to be dismissed with costs, as being wholly misconceived.
11. Reiterating the contentions raised in the reply, the learned counsel for the Jaipur Development Authority has submitted that once a notification for acquisition had been issued then the transfer of a land in any manner is against the provisions of Rajasthan Land (Restriction of Transfer) Act, 1976. Therefore, the transfer of land in favour of the petitioner is null and void. In fact, such transfers attracts the penal provisions under the Act of 1976.
12. Similar contentions have been raised by the other respondents, namely; the New Pink City Grah Nirman Sahakari Samiti Limited and Bhawani Shankar Sharma.
13. It is submitted that the petitioner has concealed material facts and is guilty of making incorrect and mis-statement in the writ petition. The revenue record of village Chainpura goes to show that firstly, the UIT and thereafter, the JDA, had been in possession of the land in question. The electric connection is in the name of original khatedar, namely; Pratap Sharma. The petitioner has concealed the fact that he had already entered into an agreement to sell with Sunil Dasot in the year 2004 (photo-stat copy of the same is on record as Annexure R-4/1). The real brother of the petitioner, namely Damodar Prasad had also filed a reference (407/2004) before the Jaipur Development Authority Appellate Tribunal, wherein the petitioner was a party and the said reference had been dismissed on 17.3.2006. Being aggrieved of the said order, a writ petition (4426/2006) was preferred by Damodar Prasad which was also dismissed on 18.7.2006.
As a matter of fact, the petitioner had himself prepared a will which is said to have been executed by Pratap Sharma in his favour. The said will was examined by hand writing and finger print expert and the report given on 26.6.2009 opines that the signature on the will does not match with the thumb impression of Pratap Sharma (Annexure R-4/4). It has also been stated that even the officers of the Jaipur Development Authority are in collusion with the petitioner and despite of the fact that the stay order passed in the present writ petition stood vacated on 2.5.2005, the Jaipur Development Authority has not taken any appropriate steps with regard to possession of the land in question. The Jaipur Development Authority had issued notice under Section 72 of the Jaipur Development Authority Act since long to dispossess the petitioner who has trespassed on government land. The respondent Bhawani Shankar Sharma has further made allegations against number of persons, in his reply, under whose influence proper steps had not been taken by the Jaipur Development Authority, as a result of which it has not been able to utilize the land acquired for it long back in any housing scheme for the public.
14. Now, reverting to the application for withdrawal filed by the petitioner and the submissions made by his counsel, it is to be noted that the prayer for withdrawal of writ petition is made on the basis of some subsequent developments. Though specific prayer in the term that the petitioner be allowed to withdraw the writ petition with liberty to file a fresh one, has not been made in the application but the counsel for the petitioner has submitted that the withdrawal of the writ petition be allowed with the permission of the court. In other words, the learned counsel for the petitioner has, on one hand, emphasized that the petitioner has all rights to withdraw the writ petition and no respondent can object to it but on the other hand, he has submitted that permission of the court be granted for that purpose. This would tantamount that in case need arises, he may file a writ petition before the court.
Further, he has submitted that where the petitioner seeks to withdraw a writ petition, the High Court should permit to do so and not to proceed to decide the same on merits. In this regard, learned counsel for the petitioner has placed reliance on the following judgments:
(i) Bijayananda Patnaik Vs. Satrughna Sahu and thers- AIR 1963 SC 1566;
(ii) Smt. Raisa Sultana Begam and others Vs. Abdul Qadir and others- AIR 1966 Allahabad 318;
(iii) M/s Hulas Rai Baij Nath Vs. Firm K.B. Bass and Co.- AIR 1968 SC 111;
(iv) Shaik Hussain and sons Vs. M.G. Kannaiah and another- (1981) 3 SCC 71; and
(v) Sandesh Ltd. Vs. Chandulal Jethalal Jaiswal and another- Air 2005 Gujarat 219.
15. The counsel for the respondents has raised strong objection to the prayer for withdrawal of the writ petition, in the facts and circumstances of the case and submitted that in case the petitioner so desires then the same should be done on his own and not with the permission of the court. He has submitted that the permission for withdrawal of a writ petition need not be given in expressed terms. It is sufficient if it can be implied from the order read with the application on which the order was made. Further, he has submitted that even if it has been stated in the petition that the petitioner reserves his right to file a fresh case, if necessary, and the court permits him to withdraw the case, then in that case, permission to institute a fresh case, can be said to be, impliedly granted. If an order is passed by this court in the terms that the application is allowed while permitting the petitioner to withdraw the writ petition, then also it would be construed, even if no order is passed in respect of seeking liberty to file fresh petition. An inference in regard to grant of permission can also be drawn from the conduct of the parties as also from the order passed by the court.
In a situation where if an application containing composite prayer to the effect that the plaintiff be permitted to withdraw the writ petition with liberty to file fresh one, then no other inference can be drawn than the one that the composite prayer as it stands has been granted in toto because the court cannot split up the prayers and accept only one of the prayers and reject the other. Since the court does not have jurisdiction to pass an order by splitting up the prayers contained in an application for withdrawal of the petition and as such no inference can be drawn that second prayer was refused, although not so said expressly in the order. Therefore, it has been submitted by the counsel for the respondents that the petitioner should not be permitted to withdraw this writ petition, particularly in view of the contents of the withdrawal application as this would tantamount to give liberty to him to file a fresh writ petition.
The petitioner had filed this writ petition in the year 2003 claiming his right in the land in question and praying for specific reliefs but as it has been given in the application, he intends to file a fresh writ petition on the same cause and in the garb of some notices subsequently issued by the Jaipur Development Authority on the ground that the land in question belongs to them. Learned counsel for the respondents has, in support of the above submissions, placed reliance on the following cases:
(i) Radha Krishna and another Vs. The State of Rajasthan and others- AIR 1977 Rajasthan 131(D.B.);
(ii) Sukumar Banerjee Vs. Dilip Kumar Sarkar and others- AIR 1982 Calcutta 17;
(iii) Bharat and others Vs. Ram Pratap and others- AIR 1985 Allahabad 61;
(iv) Sarguja Transport Service Vs. State Transport Appellate Tribunal, M.P., Gwalior and others- (1987) 1 SCC 5; and
(v) Vimlesh Kumari Kulshrestha Vs. Sambhajirao and another- (2008)5 SCC 58.
16. Having carefully perused the pleadings of the parties as revealed from the material on record and the submissions made by the learned counsels on their behalf, it is deemed appropriate to first consider the application for withdrawal and the prayer made therein.
17. In the instant application filed by the petitioner, following averments have been made:
1. That the petitioner has filed the aforesaid writ petition seeking directions from this Hon'ble Court to direct the respondents to de-acquire the land in question and further alternative prayer has been made to regularise the land in question.
2. That after filing of the writ petition subsequent developments have taken place and in view of the same, the petitioner wants to withdraw the aforesaid writ petition. The respondent JDA illegally issued notices dated 21.2.2012 and 12.3.2012 for dispossessing the petitioner from the land in question and the petitioner filed Appeal No.31/2012 before learned JDA Appellate Tribunal challenging the said notices. The aforesaid appeal came to be decided by the learned Tribunal on 19.3.2012 with certain directions to JDA and petitioner. The petitioner was directed to submit reply to the aforesaid notices before JDA Authorities and JDA was directed to consider the same and then proceed as per provisions of law. The JDA without considering anything passed order on 17.4.2012 and that order has been challenged by filing appeal No.83/2012 before JDA Appellate Tribunal and prayer has also been made to direct the JDA to regularize the land under possession of petitioner in view of the policy decision of the State Government and so many lands under same acquisition have been regularized. The learned JDA Appellate Tribunal has already heard the arguments in aforesaid appeal finally and the fact of pendency of present writ petition was brought in the notice of learned JDA Appellate Tribunal.
It is, therefore, humbly and most respectfully prayed that in view of the above facts, this application may kindly be allowed and the writ petition may be permitted to be withdrawn.
18. In other words, the petitioner has sought permission to withdraw the writ petition purporting to be on subsequent developments having taken place. The said developments mentioned in the application are based on notices issued by the JDA in February, 2012 for dispossessing the petitioner; the appeal No. 31/2012 filed by him before the Jaipur Development Authority Appellate Tribunal so as to challenge the said notices; the same having been decided on 19.3.2012; the order passed by the JDA on 17.4.2012 and the appeal (83/2012) filed by the petitioner against the said order. It is note-worthy that in the appeal (83/2012), prayer has been made by the petitioner to direct the JDA to regularize the land in possession of the petitioner in view of the policy decision of the State Government and that many lands under same acquisition have been regularized. It was informed, during the course of arguments on the application for withdrawal, that the appeal (83/2012) has been decided by the JDA Appellate Tribunal on 20.7.2012.
19. The primary controversy raised in the writ petition and the relief sought, as given in the prayer clause mentioned here-in-above, that the land be de-acquired and in the alternative, the respondents be directed to regularize the possession of the land in favour of the petitioner, is of similar nature as raised by the petitioner in the subsequent appeal (83/2012) filed before the JDA Appellate Tribunal. It is pertinent to mention here that the petitioner has specifically mentioned in the application for withdrawal that the fact of pendency of the present writ petition was brought to the notice of the learned JDA Appellate Tribunal. It is in these circumstances that the petitioner has come up before this court, by way of application for withdrawal of the writ petition, as the question of regularization of land had also been raised before the JDA Appellate Tribunal in appeal (83/2012) and the fact of pendency of this writ petition being brought before the Tribunal has led the petitioner to file this application for withdrawal, which is obvious because the primary relief sought in both the proceedings are similar. Therefore, the petitioner has decided to withdraw the instant writ petition filed in the year 2003 wherein the interim relief had also been granted for quite a long time.
Therefore, this court has to see as to what would be the consequence, before granting permission to the petitioner for withdrawal of the present writ petition. In the facts and circumstances of the case, the petitioner has not made a prayer for filing a fresh writ petition. But a perusal of the application for withdrawal clearly shows that the object of withdrawal of the writ petition is to continue with the proceedings in furtherance of the appeal (83/2012) filed before the JDA Appellate Tribunal and the fact that the primary relief sought therein, namely; to regularize the land in possession of the petitioner, being the same as in the present writ petition.
20. Coming to the settled principle of law in respect of the question involved herein and to mention a few of them, it may be stated that as back as in the year 1977, a Division Bench of this court in the case of Radha Krishna and another (supra), had laid down, in para 6, that '------ it is true that the permission mentioned in O.23, R.1 CPC need not be given in express terms. It is sufficient if it can be implied from the order read with the application on which the order was made.' Similarly in the case of Bharat and others (supra), in a reference made to a Division Bench, it has been laid down in para 15 as under:
15. An application under O.23 R.1(2) of the Code for permission to withdraw the suit with liberty to institute a fresh suit on the same subject matter has got to be treated as an indivisible whole and the court cannot split up the prayer while refusing permission to institute a fresh suit and that it could not treat the application to be one under O.23 R.1(1) of the Code (old) for withdrawal of the suit simpliciter and, as such, the order allowing the application without expressly granting or refusing permission to institute a fresh suit is to be taken to have been passed granting the composite prayer made in the application under O.23 R.1(2) of the Code, under which an order either allowing the application in toto or rejecting it in toto, could alone be legally passed by the Court. Therefore, when an application moved under O.23 R.1(2) is allowed, there is no escape from the conclusion that the prayer made in the application has been allowed in toto although no specific order is passed granting permission to institute fresh suit in respect of same subject matter and on the same cause of action.
Further, in para 16, it has been laid down as under:
In our opinion, if the Court passed an order allowing the application containing the composite prayer to the effect that the plaintiff be permitted to withdraw the suit with liberty to file fresh suit, then no other inference can be drawn than the one that the composite prayer as it stands has been granted in toto because the court could not split up the prayers and accept only one of the prayers and reject the other. Since the Court would have no jurisdiction to pass an order by splitting up the prayers contained in an application moved under O.23 R.1(2) of the Code, and, as such, no such inference can be drawn that the second prayer was refused, although not said so expressly in the order.
21. The High Court of Calcutta, in the case of Sukumar Banerjee (supra) has, in para 5, observed as under:
It appears that Title Suit No.284 of 1977 was permitted to be withdrawn by the learned Munsif. The plaintiff made a prayer for liberty to bring a fresh suit. No order was given thereon, but that prayer was not refused. In the Bench case of Golam Mahomed v. Shibendra reported in (1908) ILR 35 Cal 990 at p. 995, it has been stated that when the plaintiff files an application to withdraw from the suit with liberty to sue afresh, on which an order was passed on the same date giving permission to withdraw the suit and although nothing was said in that order as to the plaintiff's liberty to institute a fresh suit on the same cause of action that order ought to be read along with the application, on which it was passed. It has already been indicated that that prayer was not refused. Hence, it is held that that order has the effect of granting permission to the plaintiff with liberty to sue afresh on the same cause of action.
Similar was the view of a Division Bench of Orissa High Court in the case of Hari Basudev Vs. State of Orissa- AIR 2000 Orissa 125.
22. In the celebrated work of Mulla's Code of Civil Procedure, 17th Edn., p. 674, it is stated
(g) Permission need not be express.- The permission mentioned in this section need not be given in express terms. It is sufficient if it can be implied from the order read with the application on which the order was made. No formal order is necessary for withdrawal of a suit. But the proceedings must show that the plaintiff has withdrawn the suit or part of the claim. However, if either from the application of the plaintiff or from the order permitting withdrawal, it transpires that while permitting withdrawal, the court had also granted liberty to institute fresh suit, the subsequent suit would be barred. Thus, in a case, the Delhi High Court held that the words 'without prejudice to the right of plaintiff' endorsed on the application for withdrawal would only mean that the suit was sought to be withdrawn as compromised and not on merits.
An application for withdrawal of suit was made, seeking liberty to file a fresh suit. The order passed by the court was that 'The application is, therefore, allowed while permitting the plaintiff to withdraw the suit.' It was held that this should be construed as an order also granting liberty, as prayed. The court cannot split the prayer made by the applicant.'
23. In light of the aforesaid settled principle of law, when we revert to the instant application filed by the petitioner, it is noted that the same has been filed mainly on the ground of some subsequent developments and also in view of the question with regard to pendency of his writ petition having been raised before the JDA Appellate Tribunal in Appeal (83/2012) wherein the primary prayer is with regard to regularization of the land in possession of the petitioner that the petitioner has thought of withdrawing the present writ petition with the permission of the court. It has been specifically mentioned in the prayer clause of the application for withdrawal that the same is being made 'in view of the above facts'. In other words, though no specific prayer has been made in the instant application for liberty to file fresh writ petition but when the similar relief has been sought in the appeal before the JDA Appellate Tribunal and the instant writ petition is being withdrawn for the purpose of carrying that appeal, would tantamount that even after withdrawing the instant writ petition which has been filed for the cause and the relief sought therein, subsequent writ against the order passed in the appeal by the JDA Appellate Tribunal, if need arises, would be filed. The petitioner would have liberty to file another writ petition after the decision of the Tribunal in appeal no.83/2012, if need arises. Therefore, this court is of the considered opinion that in case permission is granted to the petitioner and the present writ petition is allowed to be withdrawn on the basis of the averments made in the application so filed, then it would be inferred, at subsequent time if a writ petition is filed against the order of the Tribunal in appeal no.83/2012, that liberty was granted for the same and withdrawal of the instant writ petition though with the cause and relief being similar as that of appeal (83/2012) before the JDA Appellate Tribunal, the petitioner was given liberty and there is no impediment in filing the writ petition at a subsequent point of time for similar cause and relief.
24. Taking into consideration the peculiar facts and circumstances of the present case; simultaneous proceedings which are carried on before the Jaipur Development Authority Appellate Tribunal and the basis on which permission for withdrawal of the writ petition is being sought, namely; on subsequent development and the question which had arisen before the JDA Appellate Tribunal in appeal (83/2012) pending before it, this court is of the considered opinion that permission is not to be granted to the petitioner to withdraw the writ petition. As a matter of fact, according to the principle of law mentioned above, no specific order from this court is required to be obtained by the petitioner for withdrawing the writ petition and he could do so on his sweet will and risk. After considering the application for withdrawal filed by the petitioner and the submissions made by the counsel in this regard, it is amply clear that permission sought for withdrawal is with the purpose and object.
25. It is now well settled since the case of Sarguja Transport Service (supra), that the principle underlying Rule 1 of Order 23 CPC which is based on public policy is also applicable in case of writ proceedings. In case of withdrawal of a writ petition under Article 226/227 of the Constitution of India without permission to institute a fresh petition thereunder would bar such a petition in the High Court involving the same subject matter. The said principle of law has been laid down by the Hon'ble Supreme Court after elaborately discussing the question in para 7, 8 and 9, which are as under:
'7. The Code as it now stands thus makes a distinction between 'abandonment' of a suit and 'withdrawal' from a suit with permission to file a fresh suit. It provides that where the plaintiff abandons a suit or withdraws from a suit without the permission, referred to in sub-rule (3) of Rule 1 of Order XXIII of the Code, he shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. The principle underlying Rule 1 of Order XXIII of the Code is that when a plaintiff once institutes a suit in a court and thereby avails of a remedy given to him under law, he cannot be permitted to institute a fresh suit in respect of the same subject-matter again after abandoning the earlier suit or by withdrawing it without the permission of the court to file fresh suit. Invito beneficium non datur. The law confers upon a man no rights or benefits which he does not desire. Whoever waives, abandons or disclaims a right will loose 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 XXIII. The principle underlying the above rule is founded on public policy, but it is not the same as the rule of res judicata contained in Section 11 of the Code which provides that no court shall try any suit or issue in which the matter directly or substantially in issue has been 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 XXIII 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.
8. The question for our consideration is whether it would or would not advance the cause of justice if the principle underlying Rule 1 of Order XXIII of the Code is adopted in respect of writ petitions filed under Articles 226/227 of the Constitution of India also. It is common knowledge that very often after a writ petition is heard for some time when the petitioner or his counsel finds that the court is not likely to pass an order admitting the petition, request is made by the petitioner or by his counsel to permit the petitioner to withdraw from the writ petition without seeking permission to institute a fresh writ petition. A Court which is unwilling to admit the petition would not ordinarily grant liberty to file a fresh petition while it may just agree to permit the withdrawal of the petition. It is plain that when once a writ petition filed in a High Court is withdrawn by the petitioner himself he is precluded from filing an appeal against the order passed in the writ petition because he cannot be considered as a party aggrieved by the order passed by the High Court. He may as stated in Daryao v. State of U.P.- AIR 1962 SC 1457, in a case involving the question of enforcement of fundamental rights file a petition before the Supreme Court under Article 32 of the Constitution of India because in such a case there has been no decision on the merits by the High Court. The relevant observation of this court in Daryao case is to be found at page 593 and it is as follows:
'If the petition is dismissed as withdrawn it cannot be a bar to a subsequent petition under Article 32, because in such a case there has been no decision on the merits by the court. We wish to make it clear that the conclusions thus reached by us are confined only to the point of res judicata which has been argued as a preliminary issue in these writ petitions and no other.'
9. The point for consideration is whether a petitioner after with-drawing 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 writ petition in the High Court under that article. On this point the decision in Daryao case (supra) 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 of 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 fresh 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.
22. For the aforesaid reasons, this court is of the considered opinion that no permission for withdrawal needs to be granted to the petitioner by this court and the prayer made by him in this regard deserves to be declined. However, this writ petition may be deemed to have been withdrawn by the petitioner on his own and at his risk.
23. Consequently, the writ petition is dismissed as withdrawn at the instance of the petitioner. The application (30405) is disposed of accordingly.
(RAGHUVENDRA S. RATHORE),J bblm All corrections made in the judgment/ order have been incorporated in the judgment/ order being e-mailed.
BBL Mathur Private Secretary