Andhra HC (Pre-Telangana)
P.V. Ranga Rao vs Union Of India (Uoi), Rep., By Its ... on 27 April, 2001
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, C.J.
1. This appeal is directed against a judgment and order dated 16.2.2000 passed by a learned single Judge of this Court in Writ Petition No.24646 of 1999 whereby and whereunder the Writ Petition filed by the appellant herein was dismissed. The learned Judge directed:
"While examining the record of this case I am of the prima facie view that the petitioner is in contempt of this Court as he has not obeyed the orders of this Court for vacating the premises; neither has he complied with the undertakings which he had given in this Court while applying for extension of time on various occasions. Therefore, the Registry shall frame a rule against the petitioner to show-cause as to why he should not be convicted for committing the contempt of this Court. Since the earlier orders have been passed by the Hon'ble Mr Justice G.Bikshapathy, the contempt matter be placed before his Lordship.
The learned Senior Counsel appearing for the petitioner seeks one week's time to vacate the premises in order to enable him to file an appeal. Since this Court has not asked the petitioner in this writ petition to vacate the premises, there is no need of passing any such order. This request is also negatived on the ground that if time is granted, that will amount to negation of orders passed in W.P.No.7019 of 1999."
2. The basic fact of the matter is not in dispute.
3. The appellant herein was allotted Quarter No.4, Kundanbagh while he was the Minister for Education. He was permitted by letter dated 7.7.1995 to continue to occupy the quarter. However, the Government of Andhra Pradesh has taken a decision not to allow the appellant to continue in occupation of the quarter any further for the reason that there is mounting pressure for provision of accommodation to the officials, Ministers as well as Judges of the High Court; whereafter the appellant was given a notice on 5.3.1998 to vacate the quarter. When he did not vacate the quarter the Estate Officer issued a notice to him on 5.3.1998 under Section 4(1) of A.P. Public Premises (Eviction of Unauthorised Occupants) Act, 1968 calling upon him to appear on 15.4.1998 to represent his case. Without appearing before the Estate Officer as directed, he sought for 12 weeks' time on medical ground. The Estate Officer did not accede to his request and directed his eviction by order dated 20.4.1998 against which he filed Civil Miscellaneous Appeal No.141 of 1999 before the Civil Court on the ground that proper opportunity was not given to him. The said application was allowed directing the Estate Officer to issue fresh notice. Thereupon the Estate Officer issued fresh notices to the appellant. Without responding to the said notices, the appellant approached the High Court by filing Writ Petition No.7019 of 1999. The said writ petition was disposed of on 2.4.1999 directing:
Considering the facts and circumstances of the case and also keeping in view the health condition of the petitioner, the writ petition is disposed of with a direction that the petitioner shall vacate the premises on or before July 1, 1999. It is also made clear that the petitioner shall not seek any further extension of time under any circumstances.
4. However, the appellant filed another application seeking extension of time in the said writ proceedings whereupon it was directed:
Keeping in view the health condition of the petitioner and also the requirement of accommodation being in Z category, I am inclined to grant extension of time to vacate the premises. Accordingly, as a last chance, extension of time is granted upto 30.9.1990. The petitioner shall vacate the premises by 30.9.1999 and the learned counsel for the petitioner also submits that the petitioner shall not seek any extension of time under any circumstances.
Accordingly, the WPMP is disposed of and the petitioner shall vacate the premises on or before 30.9.1999 as directed above. No petition for extension of time shall be entertained by this Court as this extension itself is under very compelling circumstances namely health condition of the petitioner.
5. In spite of the above direction, another application seeking extension of time was filed and again time for vacation of the quarter was extended upto 30.10.1999. But despite the same the appellant did not vacate the quarter, the 2nd respondent herein requested the appellant by letter dated 26.11.1999 to vacate the quarter.
6. Assailing the said letter the appellant filed Writ Petition No.24646 of 1999. As referred to hereinbefore, the said writ petition was dismissed. Questioning the said order of the learned singe Judge the present appeal is filed.
7. Mr S.Ramachandra Rao, the learned senior counsel appearing on behalf of the appellant raised three contentions in support of this appeal.
The learned counsel firstly submitted that the decision of the Government not to allow the appellant to continue to occupy quarter No.4, Kundanbagh was not preceded by any show cause notice nor any reason therefor was assigned.
It was next contended that although several proceedings had emanated leading to the purported undertaking given by the appellant's counsel, the same is not binding on him having regard to the fact that he was entitled to special protection in terms of the provisions of Special Protection Group Act, 1988.
The learned counsel would contend that the right to residence being a fundamental right of a person under Article 21 of the Constitution of India, such undertaking is not binding. In support of the said contention strong reliance has been placed on OLGA TELLIS v BOMBAY MUNICIPAL CORPORATION1, U.P. AVAS EVAM VIKAS PARISHAD v FRIENDS COOP. HOUSING SOCIETY LTD2, SHIV SAGAR TIWARI v UNION OF INDIA3 as also AHMEDABAD MUNICIPAL CORPN. v NAWAB KHAN GULAB KHAN4.
8. The learned senior counsel would also contend that the threat perception as would appear from various letters issued by the authorities must be considered having regard to the legislative wisdom contained in Special Protection Group Act, 1988.
9. The learned Advocate-General appearing on behalf of the respondents on the other hand submitted that the quarter in question was allotted in favour of the appellant when he was a Cabinet Minister of the State in the year 1992 and even after he had ceased to hold the said office, he was allowed to continue but having regard to a public interest litigation before this Court as regards non-availability of accommodation for the Ministers and Judges a decision had been taken by the State not to allow the petitioner to continue to occupy the said premises.
10. It was pointed out that out of three children of the former Prime Minister Sri P.V.Narasimha Rao who had been granted such accommodation, two had acceded to the request of the Government and vacated the accommodation provided to them by the State.
11. It was further pointed out that when the proceeding had been initiated against the appellant, he had been approaching this Court only for grant of some time to vacate the quarter on the representation that he being a heart patient, some reasonable time therefor should be allowed. According to the learned Advocate-General, the appellant, having obtained such relief on the basis of such representation, is now estopped and precluded from contending that he is entitled to continue in the bunglow in question. It was submitted that in the aforementioned situation, the appellant cannot be permitted to raise the questions raised in this appeal for the first time, having regard to the rule of estoppel as also the principles of constructive res judicata. It was urged that filing of a writ petition questioning a letter of the Chief Secretary requesting him to vacate having regard to the undertaking given before this Court, was not maintainable as the same was a gross abuse of the process of court. The learned Advocate-General submits that the appellant herein even has not paid a huge amount towards electricity charges nor did he even tender the nominal rent fixed towards occupation charges.
12. It was strenuously urged that the right of residence claimed by the appellant in a situation of this nature must be held to be gross distortion of the constitutional protection as the appellant is neither a pavement dweller nor living in abject poverty.
Both socially and economically and politically, the learned Advocate-General would contend, the appellant is a man of high status and thus is not entitled to free residence from the State under the bogey of the special protection. It was pointed out that so far as the proceedings for initiation of a contempt is concerned, the same is not an appealable order.
13. It is beyond any cavil of doubt that the general principles of res judicata / constructive res judicata are applicable in a writ proceeding.
14. It is also well settled that general principles of Order II Rule 2 of the Code of Civil Procedure, 1908 also apply in a writ proceedings. The petitioner had been approaching this Court as would appear from the narrations of facts noticed hereinbefore for extension of time enabling him to vacate the quarter in question. Times without number the Court had bestowed sympathy upon the petitioner. But probably the petitioner thought that he could go on filing one writ petition or the other and delay the proceedings.
15. In MYSORE STATE ROAD TRANSPORT CORPORATION V. BABJAN5, the Apex Court held that where a declaratory relief asked for by a party in an earlier petition was not granted, that relief would be deemed to have been refused and such relief cannot be claimed in a subsequent writ petition.
16. In SWATANTRA KUMAR AGRAWAL V. MANAGING DIRECTOR, U.P.F.C, KANPUR6 a Division Bench of the Allahabad High Court held:
Rule 7 of the Allahabad High Court Rules, 1952 as quoted above is explicit and unequivocal. It clearly provides that a second application on the same facts will not be entertained by the Court. It is clear that the facts of the present petition are 100% similar to the facts contained in the earlier petition. The monumental Judgment of the Hon'ble Supreme Court in Mahesh Chandra's case ( Mahesh Chandra v. Regional Manager, UP Financial Corporation, 1992(2) UPLBEC 1313) had already been delivered and it was the law of the land binding on all the judicial and quasi-judicial authorities in India. Therefore, if any authority has passed an order, it will be believed that it was conscious of the implications and directions contained in that judgment...."
Another leg of the argument advanced by the learned counsel for the respondents is that provisions of Order 2, Rule 2 C.P.C. also hit the entertainment of the present petition. The law aims at avoiding multiplicity of the petitions. It requires that a party who comes to the Court, must plead all the grounds available to it and seek all the reliefs which it can seek in the first case itself, so that the Court may decide the case once for all and the door of the Court may be slammed for ever for raising the same points in subsequent litigations. The principle is based on public policy and cannot be taken exception to otherwise.
When the petitioner came for the first time with the earlier petition, he could have taken all these pleas and sought all the reliefs which he has claimed in the present writ petition, in fact he did all that in the earlier petition though in a modified language but the spirit and substance were the same. He tried his luck for the first time and failed. Then the second trial of luck has begun. The law does not encourage such a litigation. "
17. In M/S MUNNA INDUSTRIES v STATE OF U.P.7 it was observed:
The filing of successive writ petitions for the same cause of action with additional cause of action arising during the pendency of the earlier writ petitions gives rise to multiplicity of writ petitions and the multiplicity of the interim orders obtained by the parties also create problems before the respondents many a time. It is well known and settled that subsequent order which is said to be a subsequent cause of action needs no filing of fresh writ petition but by seeking appropriate amendment in the pending writ petition, such relief which may be needed in respect of subsequent order, could easily be incorporated in the pending writ petition. This is not done and successive writ petitions are filed which is adding to accumulations of number of writ petitions before this Court. The provisions of Chapter 22, Rule 7 of the High Court Rules, no doubt provides that no second application on the same facts, where an application has been rejected, shall be entertained on the same facts. This rule does not cover the situation arising presently in large number of writ petitions. We considerate necessary and appropriate that amendment in Chapter 22 of the High Court Rules are required which may require a petitioner to categorically state in the first paragraph of the writ petition that no earlier writ petition in the same matter or arising out of the same matter is pending or decided before this Court. If such statement is made by the petitioner in the writ petition, multiplicity of the writ petitions by the same parties could be avoided and for subsequent orders, if any, passed requiring a relief by the petitioner, could be added in the writ petition itself by seeking appropriate amendments. "
18. In DIRECT RECRUIT CLASS II ENGINEERING OFFICERS ASSOCIATION V. STATE OF MHARASHTRA8 it has clearly been held by the Apex Court that the principles of res judicata are applicable to writ proceedings also. It was held:
"...a Constitution Bench of this Court in Daryao v. State of U.P. held that where the High Court dismisses a writ petition under Art.226 of the Constitution after hearing the matter on the merits, a subsequent petition in the Supreme Court under Art.32 on the same facts and for the same relief filed by the same parties will be barred by the general principle of res judicata. The binding character of judgments of Courts of competent jurisdiction is in essence a part of the rule of law on which the administration of justice, so much emphasized by the Constitution, is founded and a judgment of the High Court under Art.226 passed after hearing on the merits must bind the parties till set aside in appeal as provided by the Constitution and cannot be permitted to be circumvented by a petition under Art.32. An attempted change in the form of the petition or the grounds cannot be allowed to defeat the plea as was observed at page 595 (of SCR) : (at p.1467 of AIR 1961) of the reported judgment, thus:
"We are satisfied that a change in the form of attack against the impugned statute would make no difference to the true legal position that the writ petition in the High Court and the present writ petition are directed against the same statute and the grounds raised by the petitioner in that behalf are subsequently the same".
The decision in Forward Construction Co. v. Prabhat Mandal (Regd.), Andheri, , further clarified the position by holding 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 decided as incidental to of essentially connected with subject matter 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."
19. It may be true that in a case where infringement of fundamental right of a person is alleged, the principles of res judicata may not apply. But even in such a situation the Court may refuse to exercise its discretionary jurisdiction in the event it is found that the conduct of the petitioner is such which disentitles him from being favoured with exercise of discretionary jurisdiction.
20. In the aforementioned context let us now consider as to whether the fundamental right of the petitioner under Article 21 of the Constitution of India has been infringed or not.
21. A person may have a right of residence but he does not have a right of residence in a particular house nor relying on or on the basis of Article 21 of the Constitution of India he can ask for a particular house to be left in his favour by the State. The State constructs the bunglows and quarters for certain purposes. If the occupant of such quarter is not entitled to occupy the same, the State cannot be forced to take a decision in his favour on the plea of purported violation of Article 21 of the Constitution of India. The petitioner is not a pavement dweller as was the case in OLGA TELLIS (1 supra).
22. For the views we have taken, we are of the opinion that the decisions of the Apex court in U.P. AVAS EVAM VIKAS PARISHAD's case (2 supra) and AHMEDABAD MUNICIPAL CORPN's case (4 supra) are not applicable in the facts and circumstances of this case.
23. Yet again, the petitioner cannot be permitted to continue to live in the same house only on the ground that he is entitled to the protection in terms of Special Protection Group Act. It is for him, in absence of any statutory or constitutional right to live in the quarter, to find out a suitable house but neither the said statute mandates the State to allot a house of a particular nature in favour of the petitioner nor can he ask for any. It is now a well settled principle of law that a decision taken by the State should not be interfered with by this Court unless the same is held to be ex facie arbitrary or unreasonable. The decision of the State Government, in a situation of this nature, can neither be termed to be arbitrary or unreasonable and a judicial review in relation to an administrative action is maintainable only when the writ petitioner shows that in its decision making process the State has committed an illegality, irrationality or procedural irregularity.
24. We, therefore, do not find any merit in this appeal which is accordingly dismissed. So far as the order directing the petitioner to show cause as to why a proceeding under the Contempt of Courts Act shall not be initiated, suffice it to state that having regard to the various decisions and in particular STATE OF MAHARASHTRA v MAHBOOB S. ALLIBHOY9 it must be held that the appeal is not maintainable against such an order. The impugned order does not adversely affect any right of the petitioner. In BARADA KANTA v ORISSA H.C.10 it was held:
.... Only those orders or decisions in which some point is decided or finding is given in the exercise of jurisdiction by the High Court to punish for contempt, are appealable under Section 19 of the Contempt of Courts Act, 1971. The order in question is not such an order or decision. It is an interlocutory order pertaining purely to the procedure of the Court.
25. For the reasons aforementioned, there is no merit in this appeal. It is dismissed with costs which is quantified at Rs.5,000/- (Rupees five thousand only).