Punjab-Haryana High Court
Baldev Singh Sekhon And Ors vs State Of Punjab And Ors on 27 November, 2014
Equivalent citations: AIR 2015 (NOC) 242 (P.&H.)
Author: Hemant Gupta
Bench: Hemant Gupta, Hari Pal Verma
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision: 27.11.2014
CWP No.18312 of 2013
Col. Baldev Singh Sekhon & others ...Petitioners
Versus
State of Punjab & others ...Respondents
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE HARI PAL VERMA
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Ms. Madhu Dayal, Advocate, for the petitioners.
Mr. P.S.Bajwa, Addl. AG, Punjab, for respondent Nos.1 & 2.
Mr. Nitin Kaushal, Advocate, for respondent No.3.
HEMANT GUPTA, J.
The present writ petition has been preferred on behalf of 29 entrepreneurs owning industrial plots in Industrial Focal Point, Phase VIII- A & VIII-B, Mohali.
The grievance of the petitioners is that though the 'industrial housing' being part of the industrial use and essential part of the Focal Point, but the respondents are denying the entrepreneurs the allotment of plots for industrial housing on the wrong premise that change of land use from 'industrial' to 'residential' has been denied by the State Government on 05.08.2004.
A perusal of the record shows that State of Punjab acquired VIMAL KUMAR 2014.12.03 11:34 634 acres of land for setting up of Industrial Focal Point in Phases VIII-A I attest to the accuracy and integrity of this document Chandigarh CWP No.18312 of 2013 2 & VIII-B, Mohali in the year 1994 & 1996. The area so acquired was handed over to the Punjab Small Industries and Export Corporation (for short 'the PSIEC'). The lay out plan approved by the Plan Approval Committee on 20.09.1996 provides for residential area for Industrial Housing Scheme to cater to the housing needs of industrial workers and entrepreneurs.
The PSIEC approved the policy for disposal of residential plots in its meeting held on 27.01.2000. The Board of Directors of PSIEC in its meeting held on 15.10.2001 sent a proposal to the State Government for approval of the earmarking of 20-30% area for industrial housing in all existing as well as upcoming Industrial Focal Points and growth centers. The State Government granted approval on 26.12.2001.
On 21.07.2002, the PSIEC initially advertised 138 residential plots under industrial housing in Phase VIII-B, Mohali. Thereafter, on 20.12.2003, the PSIEC again advertised 280 residential plots in Industrial Focal Point, Phase VIII-A and Phase VIII-B, Mohali. The applications were invited from two categories i.e. (i) those persons, who owned industrial plot in this Focal Point; & (ii) General category, who have no industrial plots in the Focal Point. The petitioners are one of the 87 applicants, who applied under the category of the plot-holders. Since the candidates were less than the plots advertised, the General category candidates were considered against the category of the plot-holders as well. After the draw of lots held on 31.03.2004, the earnest money deposited by the unsuccessful candidates was refunded. The total applicants being around 3500. But allotment letters were not issued to any of the applicants. It is, thereafter, the State Government issued a communication dated VIMAL KUMAR 2014.12.03 11:34 I attest to the accuracy and integrity of this document Chandigarh CWP No.18312 of 2013 3 05.08.2004 that it will not be desirable to change the land use from industrial to residential. The said communication reads as under:
"The matter regarding conversion of Industrial land into residential use in Mohali, by Punjab Small Industries & Export Corporation has been considered by the Government. It has been decided that in the overall interest of the State, it would not be desirable to change the land use from industrial to residential. The Corporation should, therefore, immediately withdraw the scheme for allotment of residential plots and refund the application money of the applicants so that there are no legal complications."
Thereafter, the petitioners alongwith many others filed writ petitions before this Court, inter alia, on the ground that they are successful in the draw of lots, therefore, they are entitled for issuance of letter of allotment of plots raising plea of promissory estoppel. The said writ petitions were decided by this Court vide common order passed in CWP No.13343 of 2004 titled 'Jasbir Singh Chhabra & others Vs. State of Punjab & others' on 23.09.2005, whereby the communication of the State Government dated 05.08.2004 was set aside, but all the writ petitions were dismissed. The Court formulated four questions for adjudication, which reads as under:
(a) Whether the holding of a draw of lots for allotment of residential plots confers a right on the petitioners for the allotment of the plots on the principle of promissory estoppel and legitimate expectations?
(b) Whether in any case a concluded contract has come into existence between the parties and if so, whether the petitioners can enforce the same by way of writ petition?
(c) What is the power of the State Government to issue direction to the PSIEC in terms of Article 90 of the memorandum of Association of the PSIEC and if so, what is VIMAL KUMAR 2014.12.03 11:34 I attest to the accuracy and integrity of this document Chandigarh CWP No.18312 of 2013 4 its binding effect? Besides, whether only the Governor can issue such direction in his personal capacity and not the State Government?
(d) What is the scope of judicial review of the policy decision of the State Government, whereby it has vide its impugned decision dated 05.08.2004 (Annexure P-12), decided not to be desirable to change the land use from industrial to residential and whether such policy decision is amenable to the writ jurisdiction of this Court?
In respect of question (a), the Division Bench concluded as under:
".....Therefore, we repeal the claim of the petitioners based on the foundation of the doctrine of legitimate expectation and/or promissory estoppel. The petitioners in the circumstances off the case cannot base their claim solely on these principle and there being a more offer of allotment of residential plot in an industrial area would not be such a circumstances that would entitle them for the allotment of possession, the specious plea of legitimate expectation and promissory estoppel."
In respect of question (b), the Division Bench held to the following effect:
"......Therefore, the dispute in case regarding the terms of offer is a dispute in relation to a contract in respect of which a writ Court has been held is not the proper forum. It is, however, a different matter where a writ court enforces a statutory right or duty, but where it is a matter simpliciter of a right to enforce a contractual obligation it would generally not be entertained by a writ court. The dispute herein is whether the mere deposit of earnest money for the allotment of the plot confers a right of the allottees to the allotment of plot. Keeping in view the conditions of the contract and the nature of the dispute, the writ court, in view of the law laid down by the Hon'ble Supreme Court no be the proper forum."VIMAL KUMAR 2014.12.03 11:34 I attest to the accuracy and integrity of this document Chandigarh CWP No.18312 of 2013 5
In respect of question (c), it was held that the Government is entitled to give directions and instructions primarily on question of broad policy and as to what broad policy will depend upon the facts and circumstances of each case. However, in respect of question (d), the Bench struck down the communication dated 05.08.2004, but in view of the decision in the earlier questions, all the writ petitions were dismissed.
Aggrieved against the said judgment, the State Government as well as the writ petitioners including the present petitioners went in appeal before the Hon'ble Supreme Court. Vide judgment reported as Jasbir Singh Chhabra & others Vs. State of Punjab & others (2010) 4 SCC 192, the appeals preferred by the writ petitioners were dismissed, whereas the appeal filed by the State was allowed holding that the communication dated 05.08.2004 is not vitiated.
Though the writ petitions filed by the petitioners were dismissed, the petitioners caused a legal notice dated 22.7.2012 through an Advocate on behalf of Mohali Industries and Commerce Association, Phase VIII-B, Mohali through its Vice President namely Col. B.S.Sekhon - petitioner No.1, served upon the respondents, claiming the following relief:
"Now through this legal notice, I hereby on behalf of my client call upon you to issue allotment letters and consequential benefits to the 87 successful applicants of the residential plots in the preferential entrepreneurs/workers category as per announcement made on 31.03.2004 for the Industrial Housing Scheme floated by you on 20.12.2003 within a period of 15 days from the receipt of this legal notice failing which my client shall be constrained to initiate the legal proceedings against you in the competent court of law and in that eventuality you shall be liable for all the costs and expenses which my client shall have to incur."VIMAL KUMAR 2014.12.03 11:34 I attest to the accuracy and integrity of this document Chandigarh CWP No.18312 of 2013 6
Petitioner No.1 on his behalf and one Nikhil Saraf, representing himself to be the President (not the petitioner in the present writ petition), submitted a representation on 04.06.2012 for issuance of allotment letters to 87 applicants. The relevant extract from such representation reads as under:
"11. The association thereof requests you to kindly issue allotment letters to 87 applicants, who are preferred allottees under the subject industrial housing as the Hon'ble Supreme Court has upheld their right because of having their running units in Phase VIII-B, Mohali. Since development of industrial area is directly linked to the investments by the entrepreneurs in setting up their units and help the Government in providing jobs to the youth of the State, allotting of residential plots to them is like an incentive.
12. In this respect, the association also draws your attention to the legal notice by Advocate Rajinder Goyal dated 22.01.2012."
Thereafter, the petitioners or some of them filed a writ petition before this Court bearing CWP No.826 of 2013 titled 'Col. Baldev Singh Sekhon & others Vs. State of Punjab & others', which was disposed of on the very first day i.e. 16.01.2013 on the basis of assertion of the petitioners that industrial housing policy floated by the State Government has been duly approved by the Hon'ble Supreme Court in Jasbir Singh Chhabra's case (supra). In view of the said assertion, this Court issued direction to the respondents to take a decision with reference to the petitioners' claim and communicate it by way of a speaking order. It is, thereafter, the order impugned in the present writ petition was communicated on 22.04.2013. In the order impugned, the Managing Director, PSIEC, referring to the orders passed by the Hon'ble Supreme Court, concluded as under: VIMAL KUMAR 2014.12.03 11:34 I attest to the accuracy and integrity of this document Chandigarh CWP No.18312 of 2013 7
"20. That the grievance of the petitioners that despite 'Industrial Housing' being a part of the 'industrial use' and part of Industrial Focal Point, the respondents are denying the entrepreneur/worker category applicants the allotment of plots for industrial housing in Focal Point in Phase VIII-A and VIII-B, Mohali is wrong. Their pleadings that there is no further requirement for change of land use for the purpose of industrial housing i.e. preferential category are not tenable and change of land use is required to be obtained under the 1995 Act. The decision taken by the Plan Approval Committee of the Corporation to approve the lay outs of residential pockets in Phase VIII A & B, Mohali was not final. The same was subject to sanction of change of land use in accordance with the provisions of the 1995 Act. Since the State Government did not allow change of land use from industrial to residential for the said pockets of Phase VIII-A & B, Focal Point, Mohali, it was/is not feasible to utilize the said land for residential purpose even for the 87 provisionally successful applicants who had applied under preferential category. It is relevant to mention here that Hon'ble Supreme Court of India vide its judgment dated 09.03.2010 has held that State Government was well within its power to take appropriate decision on the proposal made by the Corporation to change the land use from industrial to residential and no fault has been found with its decision not to sanction such change.
21. The Hon'ble Supreme Court of India vide its judgment dated 09.03.2010 has further held as under:
"The plea of discrimination raised by the appellants is being mentioned only to be rejected because no similarity has been pointed out between their cases and the cases of those who had applied for allotment of plots in focal point, Patiala and Phase VIII (Jeevan Nagar), Ludhiana except that a common draw was held in furtherance of advertisement dated 23.3.2004. In any case, in view of our interpretation of the policy decision contained in Memo dated 26.12.2001, the allotment made in two other focal points, cannot enure to the appellants' advantage and a mandamus cannot be issued in their favour because that would result in compelling the competent authority to sanction change of land use from VIMAL KUMAR 2014.12.03 11:34 I attest to the accuracy and integrity of this document Chandigarh CWP No.18312 of 2013 8 industrial to residential in contravention of the policy decision taken by the State Government."
In view of the facts and circumstances detailed above, PSIEC on its part have already refunded the earnest money deposited by the all provisionally successful applicants for allotment of residential plots in Phase VIII-A & B, Focal Point, Mohali in response to the advertisement dated 20.12.2013. However, some of the applicants have not yet accepted and got encashed their cheques of earnest money despite having been repeatedly sent by PSIEC. The pleadings made by petitioners for allotment of residential plots and issues raised by them have already attained finality by virtue of judgment passed by the Hon'ble Apex Court dated 09.03.2010 detailed above and therefore, no relief can be considered to the petitioners at this stage."
It is, thereafter, the petitioners have invoked the writ jurisdiction of this Court.
After hearing arguments for some time and keeping in view the fact that the earlier writ petition filed by the petitioners stands dismissed not only by this court but also by the Hon'ble Supreme Court, an opportunity was given to the petitioners, as to whether they would like to withdraw the present writ petition. But learned counsel for the petitioners stated that she has instructions to argue the matter. Therefore, we have heard learned counsel for the parties and with their assistance gone through the record.
Learned counsel for the petitioners vehemently argued that the Hon'ble Supreme Court in para 29 of the judgment in Jasbir Singh Chhabra's case (supra) has approved the proposal of the PSIEC for ear- marking 20-30% of the land for industrial housing. The Hon'ble Supreme VIMAL KUMAR Court has drawn distinction between phrase 'industrial housing' and the 2014.12.03 11:34 I attest to the accuracy and integrity of this document Chandigarh CWP No.18312 of 2013 9 'residential', which is evident from the communication dated 26.10.2001. It is thus argued, that keeping in view the distinction between the 'industrial housing' and 'residential use' noticed by the Hon'ble Supreme Court, the claim of the petitioner for allotment of residential plots merits acceptance. In response to specific query, the argument that 'industrial housing' and 'residential use' are separate and distinct was available to the petitioners at the time of decision of the writ petition earlier by this Court and later by the Hon'ble Supreme Court could not be disputed. However, the learned counsel for the petitioners relies upon Jeypore Suger Company Ltd. Vs. Sales Tax Officer & others (1998) 9 SCC 358; Inacio Martins Vs. Narayan Hari Naik & others (1993) 3 SCC 123; Sajjadanashin Sayed Md. B.E. EDR.(D) by LRs Vs. Musa Dadabhai Ummer & others (2000) 3 SCC 350 and Dunlop India Limited Vs. A.A. Rahna & another (2011) 5 SCC 778 to contend that since the plea is independent, therefore, the doctrine of constructive res-judicata cannot be raised against the petitioners.
On the other hand, learned counsel for the respondents pointed out that the claim of the petitioners for allotment of plots on the plea of promissory estoppel was negated by this Court itself. The appeals filed by the writ petitioners stand dismissed and it is the appeal of the State, which has been allowed. Once the prayer for allotment of plots on the basis of applications submitted has remained unsuccessful, invocation of writ jurisdiction of this Court again is gross abuse of process of law. In view of the judgment of the Division Bench of this Court and of the Hon'ble Supreme Court, the action in filing the present writ petition is wholly unwarranted; is against the judicial propriety, and that the writ petition warrants dismissal with exemplary costs.
VIMAL KUMAR2014.12.03 11:34 I attest to the accuracy and integrity of this document Chandigarh CWP No.18312 of 2013 10
Having heard learned counsel for the parties at length, we find that the writ petitioners have abused the process of Court by filing successive writ petition after having remained unsuccessful not only before this Court, but also before the Hon'ble Supreme Court.
The distinction sought to be drawn by the petitioners in respect of 'industrial housing' and 'residential use' is reading a line out of context in para 29 of the judgment of the Hon'ble Supreme Court in Jasbir Singh Chhabra's case (supra). The Bench while noticing only a fact that in December, 2001, the State Government approved the proposal of the Corporation for ear-marking 20-30% of land for industrial housing in the existing and coming up focal points and growth centers, observed as under:
"29. In December 2001, the State Government approved the proposal of the Corporation for earmarking 20-30% of the land for Industrial Housing in the existing and coming up focal points and growth centres developed by the Corporation. The object underlying this policy decision was to provide some land for residential purpose to those who had set up or were intending to set up industrial units and the workers already employed or to be employed in such units. It was felt that the availability of residential facility within the focal point or growth centre will help in accelerating industrialization of the area. This is the reason why the phrase `Industrial Housing' was used in contrast to the term `residential' in Memo dated 26.10.2001. This is................"
The petitioners rely upon the said observations to contend that the expression 'industrial housing' has been used in contrast to the term 'residential', therefore, the Hon'ble Supreme Court has not set aside the policy of the Corporation as approved by the State Government for allotment of plots for the purposes of industrial housing.
VIMAL KUMAR 2014.12.03 11:34 I attest to the accuracy and integrity of this document Chandigarh CWP No.18312 of 2013 11
We find that such inferences cannot be drawn nor such extract can be used in isolation to file another writ petition on the same cause of action. After observing so, the Hon'ble Supreme Court has observed that though the Allotment Committee recommend amendments in Industrial Policy to facilitate development of industrial parks/estates/agro-parks/I.T. parks and multiplex complexes, but unequivocally opposed the idea of allotment of land for housing purposes in the Focal Point. The State Government has taken an unequivocal decision not to allow change of land use from industrial to residential. The record produced does not show that the State Government had sanctioned change of land use in Phases VIII-A and VIII-B, Mohali from industrial to commercial and allowed setting up of multiplex complexes within the focal points or growth centres. The relevant observation reads as under:
"30. In its meeting held on 5.2.2004, the Allotment Committee did recommend amendments in Industrial Policy 2003 to facilitate development of industrial parks/estates/agro-parks/I.T. parks and multiplex complexes, but unequivocally opposed the idea of allotment of land for housing purposes. The issue was then considered by the State Government and an unequivocal decision was taken not to allow change of land use from industrial to residential.
31. The record produced before the High Court and the documents produced before this Court do not show that the State Government had sanctioned change of land use in Phases VIII-A and VIII-B, Mohali from industrial to commercial and allowed setting up of multiplex complexes within the focal points or growth centres. The writ petitioners have also not placed any material before this Court to show that the State Government had approved conditional allotment of land to M/s Quark by the Allotment Committee or accepted the tentative recommendation made by it for allotment of land to M/s A.B.Motion (P) Ltd. Rather, the events which followed the State Government's refusal to sanction change of land use from industrial to residential demonstrate that the said decision was in consonance with the policy of industrialization which was unquestionably in public interest.VIMAL KUMAR 2014.12.03 11:34 I attest to the accuracy and integrity of this document Chandigarh CWP No.18312 of 2013 12
xx xx
33. The High Court appears to have been unduly influenced by the fact that the Allotment Committee had considered a proposal for allotment of land to M/s A.B.Motions (P) Ltd. However, in the absence of any tangible or substantive evidence to show that the State Government had taken a conscious decision to allot the surplus land in Phases VIII-A and VIII-B, Mohali for construction of multiplex complexes or for any purpose other than industrial, the Division Bench of the High Court was not at all justified in recording a finding that the decision contained in Memo dated 5.8.2004 is vitiated due to mala fides."
It is well-settled that the judgment has to be read as a whole and not by picking up a line that too out of context. Reference may be made to three Judges' judgment reported as Union of India Vs. Dhanwanti Devi, (1996) 6 SCC 44, wherein it was held as under:
"9. ............It is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a Judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well-settled theory of precedents, every decision contains three basic postulates--(i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and
(iii) judgment based on the combined effect of the above. A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in the judgment. Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there is not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. It would, therefore, be not profitable to extract a sentence here and there from the judgment and to build VIMAL KUMAR 2014.12.03 11:34 I attest to the accuracy and integrity of this document Chandigarh CWP No.18312 of 2013 13 upon it because the essence of the decision is its ratio and not every observation found therein. The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. The concrete decision alone is binding between the parties to it, but it is the abstract ratio decidendi, ascertained on a consideration of the judgment in relation to the subject-matter of the decision, which alone has the force of law and which, when it is clear what it was, is binding. It is only the principle laid down in the judgment that is binding law under Article 141 of the Constitution. A deliberate judicial decision arrived at after hearing an argument on a question which arises in the case or is put in issue may constitute a precedent, no matter for what reason, and the precedent by long recognition may mature into rule of stare decisis. It is the rule deductible from the application of law to the facts and circumstances of the case which constitutes its ratio decidendi.
10. Therefore, in order to understand and appreciate the binding force of a decision it is always necessary to see what were the facts in the case in which the decision was given and what was the point which had to be decided. No judgment can be read as if it is a statute. A word or a clause or a sentence in the judgment cannot be regarded as a full exposition of law. Law cannot afford to be static and therefore, Judges are to employ an intelligent technique in the use of precedents. It would, therefore, be necessary to see whether Union of India v. Hari Krishan Khosla, 1993 Supp (2) SCC 149 would form a binding precedent."
Later in State of Orissa Vs. Mohd. Illiyas, (2006) 1 SCC 275, the Court again reiterated the principle that the judgments are to be read as whole and not like a statute. It was held as under:
"12. ..............A decision is an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically flows from the various observations made in the judgment. The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. (See State of Orissa v.VIMAL KUMAR
Sudhansu Sekhar Misra, AIR 1968 SC 647 and Union of India v.2014.12.03 11:34 I attest to the accuracy and integrity of this document Chandigarh CWP No.18312 of 2013 14
Dhanwanti Devi,(1996)6 SCC 44) A case is a precedent and binding for what it explicitly decides and no more. The words used by Judges in their judgments are not to be read as if they are words in an Act of Parliament. In Quinn v. Leathem, 1901 AC 495 the Earl of Halsbury, L.C. observed that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which are found there are not intended to be the exposition of the whole law but governed and qualified by the particular facts of the case in which such expressions are found and a case is only an authority for what it actually decides."
In the present case, the earlier writ petitions claiming allotment of plots raising a plea of promissory estoppel were dismissed. The civil appeals against the said order stand dismissed. The communication of the state Government dated 05.08.2004 was upheld. The said communication was in the context of approval to change the industrial purpose to industrial housing on the ground that the residential purpose is not warranted. What is decided is that the industrial purpose cannot be changed. Therefore, the claim of the petitioners for allotment of plots on the basis of applications submitted stands categorically denied in the earlier round of litigation. Once the claim of the petitioners has been denied, it is not open to the petitioners to re-agitate the same issue time and again. The present writ petition is, thus, gross abuse of process of law.
Even in the earlier writ petition i.e. CWP No.826 of 2013, wherein the direction was issued, this Court believed the assertion of the petitioners that the industrial housing policy has been approved by the Hon'ble Supreme Court in Jasbir Singh Chhabra's case (supra). The minute details of the policy, as discussed in the said judgment, were not VIMAL KUMAR 2014.12.03 11:34 I attest to the accuracy and integrity of this document Chandigarh CWP No.18312 of 2013 15 brought to the notice of the Court. Therefore, an intentional mis-statement was made at the time of hearing of the writ petition on 16.01.2013 as well.
Though the Hon'ble Supreme Court has unequivocally held that the refusal of the State Government to sanction change of land use from 'industrial' to 'residential' is in consonance with the policy of Industrialization, which is in public interest. Therefore, the petitioners could not raise an argument that the Court has only declined residential use and not the industrial housing. The context in which the State Government has decided and the decision of the Hon'ble Supreme Court is the policy of allotting residential houses under the heading 'Industrial Housing'. Once the decision has been taken on the said issue, the petitioners cannot be permitted to dispute the said decision subsequently.
Even assuming for the sake of argument, the particular argument was not raised though available to the petitioners at the time of hearing of the writ petition before this Court or at the time of hearing of the Civil Appeals before the Hon'ble Supreme Court, that will not entitle the petitioners to start another round of litigation. In Union of India Vs. S.P. Sharma, (2014) 6 SCC 351, the Supreme Court examined the concept of finality of the judgments and as to when the judgments cannot be permitted to disputed in collateral proceedings. The Court held as under:
"76. A decision rendered by a competent court cannot be challenged in collateral proceedings for the reason that if it is permitted to do so there would be "confusion and chaos and the finality of proceedings would cease to have any meaning".
77. In Mohd. Aslam v. Union of India, (1996)2 SCC 749 a writ petition under Article 32 of the Constitution was filed seeking reconsideration of the judgment rendered by this Court on the ground that the said judgment is incorrect. Rejecting the prayer, this Court held that Article 32 of the Constitution is not available to VIMAL KUMAR 2014.12.03 11:34 I attest to the accuracy and integrity of this document Chandigarh CWP No.18312 of 2013 16 assail the correctness of the decision on merit or to claim its reconsideration.
78. In Babu Singh Bains v. Union of India,(1996)6 SCC 565 this Court reiterated the settled principle of law that once an order passed on merits by this Court exercising the power under Article 136 of the Constitution has become final no writ petition under Article 32 of the Constitution on the self-same issue is maintainable. The principle of constructive res judicata stands fast in his way to raise the same contention once over.
79. In Khoday Distilleries Ltd. v. Supreme Court of India, 1996(3) SCC 114, this Court reiterated the view as under: (SCC p. 117, para
7) "7. ... In a case like the present, where in substance the challenge is to the correctness of a decision on merits after it has become final, there can be no question of invoking Article 32 of the Constitution to claim reconsideration of the decision on the basis of its effect in accordance with law. Frequent resort to the decision in A.R. Antulay v. R.S. Nayak, (1988)2 SCC 602 in such situations is wholly misconceived and impels us to emphasise this fact."
80. In M. Nagabhushana v. State of Karnataka, (2011)3 SCC 408 this Court held that the doctrine of res judicata is not a technical doctrine but a fundamental principle which sustains the rule of law in ensuring finality in litigation. The main object of the doctrine is to promote a fair administration of justice and to prevent abuse of process of the court on the issues which have become final between the parties. The doctrine 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.
81. Thus, the principle of finality of litigation is based on a sound firm 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 to litigation. The doctrine of res judicata has been evolved to prevent such anarchy.
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82. In a country governed by the rule of law, the finality of a judgment is absolutely imperative and great sanctity is attached to the finality of the judgment and it is not permissible for the parties to reopen the concluded judgments of the court as it would not only tantamount to merely an abuse of the process of the court but would have far-reaching adverse effect on the administration of justice. It would also nullify the doctrine of stare decisis, a well-established valuable principle of precedent which cannot be departed from unless there are compelling circumstances to do so. The judgments of the court and particularly of the Apex Court of a country cannot and should not be unsettled lightly.
83. Precedent keeps the law predictable and the law declared by this Court, being the law of the land, is binding on all courts/tribunals and authorities in India in view of Article 141 of the Constitution. The judicial system "only works if someone is allowed to have the last word" and the last word so spoken is accepted and religiously followed. The doctrine of stare decisis promotes a certainty and consistency in judicial decisions and this helps in the development of the law. Besides providing guidelines for individuals as to what would be the consequences if he chooses the legal action, the doctrine promotes confidence of the people in the system of the judicial administration. Even otherwise it is an imperative necessity to avoid uncertainty and confusion. Judicial propriety and decorum demand that the law laid down by the highest court of the land must be given effect to".
The judgments referred to by learned counsel for the petitioners are not helpful in the present case. In Jeypore Suger Company Ltd.'s case (supra), the petitioner has claimed benefit of 'C Forms' in calculating the amount of sale tax to be paid. Though initially the challenge to exigibility of the sale tax remained unsuccessful, but the Hon'ble Supreme Court found that such benefit is otherwise due and cannot be denied only for the reason that earlier the question of exigibility of tax remained unsuccessful. It may be noticed that the benefit of 'C Forms' is independent cause that the challenge to levy of tax. VIMAL KUMAR 2014.12.03 11:34 I attest to the accuracy and integrity of this document Chandigarh CWP No.18312 of 2013 18
In Inacio Martins's case (supra), the plea of resjudicata was raised for the reason that the first suit was for a declaration that the plaintiff was a lessee and for injunction to restrain the defendant from interfering with his possession of the suit property. Subsequently, the plaintiff filed suit for possession on the ground that he has been forcibly dispossessed during the pendency of the suit. In these circumstances, it was observed that the first suit was dismissed on a technical ground that the suit for a mere declaration without seeking consequential relief of possession could not lie and that the issue regarding the status of the plaintiff as a lessee was not settled once and for all. The relevant observation reads as under:
"5. ...With respect it is difficult to accept this line of reasoning. As stated earlier, the first suit was dismissed on a technical ground that the suit for a mere declaration without seeking consequential relief of possession could not lie. In that suit the issue regarding the status of the plaintiff as a lessee was not settled once for all and hence that issue could not be stated to be barred by res judicata in the subsequent suit brought by the lessee for possession the demised property. We are, therefore, of the opinion that the High Court was wrong in holding that the second suit was barred by res judicata."
In Sajjadanashin Sayed's case (supra), the Supreme Court was examining Section 11 of the Code of Civil Procedure and the expressions 'directly and substantially' issue appearing in the provision. It was observed as under:
"14. A collateral or incidental issue is one that is ancillary to a direct and substantive issue; the former is an auxiliary issue and the latter the principal issue. The expression 'collaterally or incidentally' in issue implies that there is another matter which is 'directly and substantially' in issue ( Mulla, CPC 15th Ed., p.104).
Difficulty in distinguishing whether a matter was directly in issue or collaterally or incidentally in issue and tests laid down in various Courts:VIMAL KUMAR 2014.12.03 11:34 I attest to the accuracy and integrity of this document Chandigarh CWP No.18312 of 2013 19
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16. ......The authors say that in order to understand this essential distinction, one has always to inquire with unrelenting severity_ - is the determination upon which it is sought to find an estoppel so fundamental to the substantive decision that the latter cannot stand without the former. Nothing less than this will do. It is suggested by Dixon J that even where this inquiry is answered satisfactorily, there is still another test to pass: viz. whether the determination is the 'immediate foundation' of the decision as opposed to merely "a proposition collateral or subsidiary only, i.e. not more than part of the reasoning supporting the conclusion".
It is well settled, say the above authors, "that a mere step in reasoning is insufficient. What is required is no less than the determination of law, or fact or both, fundamental to the substantive decision".
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18. In India, Mulla has referred to similar tests (Mulla, 15th Ed.p.104). The learned author says: A matter in respect of which relief is claimed in an earlier suit can be said to be generally a matter 'directly and substantially' in issue but it does not mean that if the matter is one in respect of which no relief is sought it is not directly or substantially in issue. It may or may not be. It is possible that it was 'directly and substantially' in issue and it may also be possible that it was only collaterally or incidentally in issue, depending upon the facts of the case. The question arises as to what is the test for deciding into which category a case falls? One test is that if the issue was 'necessary' to be decided for adjudicating on the principal issue and was decided, it would have to be treated as 'directly and substantially' in issue and if it is clear that the judgment was in fact based upon that decision, then it would be res judicata in a latter case. (Mulla, p.104) One has to examine the plaint, the written statement, the issues and the judgment to find out if the matter was directly and substantially in issue ( Ishwar Singh Vs. Sarwan Singh:
AIR 1965 SC 948 Mohd.S.Labbai Vs. Mohd. Hanifa: AIR 1965 SC 1569). We are of the view that the above summary in Mulla is a correct statement of the law."
Dunlop India Limited's case (supra), was a case, where the landlord sought eviction on the ground that the tenant ceased to occupy the premises from June, 1998, whereas in the second set of petition, the period of non-occupation commenced from September, 2001. In these VIMAL KUMAR 2014.12.03 11:34 I attest to the accuracy and integrity of this document Chandigarh CWP No.18312 of 2013 20 circumstances, it was said that even though ground for eviction in two sets of petitions are similar, but the same are based upon different causes. Therefore, the finding could be returned that the tenant has ceased to occupy the suit premises continuously for six months without any reasonable cause.
The aforesaid judgments relied upon by the counsel for the petitioners are not applicable to the facts of the present case.
The practice of invoking the jurisdiction of the Courts by filing frivolous cases is on increase. The Supreme Court noticed this fact in a recent order in the case reported as Subrata Roy Sahara Vs. Union of India,(2014) 8 SCC 470. The Court has suggested some legislative intervention to curb these practices. The Court observed as under:
"191. The Indian judicial system is grossly afflicted with frivolous litigation. Ways and means need to be evolved to deter litigants from their compulsive obsession towards senseless and ill- considered claims. One needs to keep in mind that in the process of litigation, there is an innocent sufferer on the other side of every irresponsible and senseless claim. He suffers long-drawn anxious periods of nervousness and restlessness, whilst the litigation is pending without any fault on his part. He pays for the litigation from out of his savings (or out of his borrowings) worrying that the other side may trick him into defeat for no fault of his. He spends invaluable time briefing counsel and preparing them for his claim. Time which he should have spent at work, or with his family, is lost, for no fault of his. Should a litigant not be compensated for what he has lost for no fault? The suggestion to the legislature is that a litigant who has succeeded must be compensated by the one who has lost. The suggestion to the legislature is to formulate a mechanism that anyone who initiates and continues a litigation senselessly pays for the same. It is suggested that the legislature should consider the introduction of a "Code of Compulsory Costs".VIMAL KUMAR 2014.12.03 11:34 I attest to the accuracy and integrity of this document Chandigarh CWP No.18312 of 2013 21
192. We should not be taken to have suggested that the cost of litigation should be enhanced. It is not our suggestion that the court fee or other litigation related costs should be raised. Access to justice and related costs should be as free and as low as possible. What is sought to be redressed is a habituation to press illegitimate claims. This practice and pattern is so rampant that in most cases disputes which ought to have been settled in no time at all before the first court of incidence are prolonged endlessly for years and years and from court to court up to the highest Court.
193. This abuse of the judicial process is not limited to any particular class of litigants. The State and its agencies litigate endlessly up to the highest Court just because of the lack of responsibility to take decisions. So much so that we have started to entertain the impression that all administrative and executive decision-making are being left to courts just for that reason. In private litigation as well, the litigant concerned would continue to approach the higher Court, despite the fact that he had lost in every court hithertobefore. The effort is not to discourage a litigant in whose perception his cause is fair and legitimate. The effort is only to introduce consequences if the litigant's perception was incorrect and if his cause is found to be not fair and legitimate, he must pay for the same. In the present setting of the adjudicatory process, a litigant no matter how irresponsible he is suffers no consequences. Every litigant, therefore, likes to take a chance even when counsel's advice is otherwise.
194. Does the litigant concerned realise that the litigant on the other side has had to defend himself, from court to court, and has had to incur expenses towards such defence? And there are some litigants who continue to pursue senseless and ill-considered claims to somehow or the other defeat the process of law. The present case is a classic illustration of what we wish to express. Herein the regulating authority has had to suffer litigation from court to court incurring public expense in its defence against frivolous litigation. Every order was consistently and systematically disobeyed. .........Even after the matter had concluded after the controversy had attained finality, the judicial process is still being abused for close to two years. A conscious effort on the part of the legislature VIMAL KUMAR 2014.12.03 11:34 I attest to the accuracy and integrity of this document Chandigarh CWP No.18312 of 2013 22 in this behalf would serve several purposes. It would, besides everything else, reduce frivolous litigation. When the litigating party understands that it would have to compensate the party which succeeds, unnecessary litigation will be substantially reduced. At the end of the day, Court time lost is a direct loss to the nation. It is about time that the legislature should evolve ways and means to curtail this unmindful activity. We are sure that an eventual determination one way or the other would be in the best interest of this country, as also, its countrymen."
In view of the above discussion, we find that the conduct of the petitioners in approaching this Court lacks bona fide and is to abuse the equitable jurisdiction of this Court. Consequently, the present writ petition is dismissed with a cost of Rs.50,000/- payable by each of the petitioners to be deposited with the respondent - PSIEC within a period of two months.
(HEMANT GUPTA)
JUDGE
27.11.2014 (HARI PAL VERMA)
Vimal JUDGE
VIMAL KUMAR
2014.12.03 11:34
I attest to the accuracy and
integrity of this document
Chandigarh