Rajasthan High Court - Jodhpur
Adaras Vidya Mandir Society vs State & Ors on 22 March, 2011
Author: A.M.Sapre
Bench: A.M.Sapre
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
JUDGMENT
D.B. CIVIL SPECIAL APPEAL (WRIT) NO.415/2000
ADARSH VIDYA MANDIR SOCIETY, UDAIPUR
VS.
STATE OF RAJASTHAN & ORS.
Date of Judgment : 22.03.2011
PRESENT
HON'BLE MR.JUSTICE A.M.SAPRE
HON'BLE MR.JUSTICE C.M.TOTLA
Mr. M.S. Singhvi, Sr. Advocate assisted by Mr. Ramit Mehta &
Mr. Tribhuvan Singh, for the appellant.
Mr. Pradhuman Singh for Mr. Anand Purohit, AAG, for the
respondents.
BY THE COURT: (PER HON'BLE A.M. SAPRE, J)
This is an intra court appeal filed by the writ petitioner of Writ petition No. 1478 of 2000 under Rule 134 of the Rajasthan High Court Rules aginst the order dt. 16.5.2000 passed by single judge in the aforesaid writ petition.
2. By impugned order, the Single Judge dismissed the writ petition and in consequence upheld the impugned notice dt. 18.7.80 and 5.4.99 (Annexure-9) sent to the writ petitioner and the order dt 15.12.99 (Annexure-10) passed by the Collector pursuant to the said notices.
3. So the question that arises for consideration in this writ appeal is whether learned Single Judge was justified in dismissing the writ petition and if so whether the reasoning for its dismissal is legal or /proper?
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4. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the intra court appeal and while setting aside of the impugned order, remand the case to the writ court for its fresh decision on merits in accordance with law.
5. Since we have formed an opinion, to remand the case, and hence we do not wish to record any finding on the merits of the controversy. It will be now for the writ court to examine the issues arising in the writ petition and then record its finding on merits in light of the pleadings of the parties. We only record the findings in support of the remand to show as to why the remand in this case is called for.
6. Facts of the case are short.
7. The appellant (writ petitioner) is a society engaged in the activities of education and running a school. They were served with a show cause notice dt. 18.7.80 by the collector stating therein that since the writ petitioner (appellant) has not been using or has not used 6 bighas and 6 biswas of the land out of the total grant allotted to them by way of patta as back as on 7.10.43 for establishing and running the school and hence why patta granted to them be not cancelled for commission of breach of its term which entitles the grantor (State/Collector) to cancel the grant. The writ petitioner on its receipt filed their reply. The Collector then by its order dt. 30.5.85 cancelled the grant. This gave rise to filing of writ petition by the writ petitioner being writ petition No. 1767/85. The writ court allowed the writ petition by order dt. 27.1.99 and while quashing the order dt. 30.5.85 remanded the case to the collector for redeciding the matter afresh after affording an opportunity to the writ petitioner for hearing and submitting their case. After remand, the Collector issued notice dt. 5.4.99 and then by order dt. 15.12.99 again { 3} cancelled the grant. In other words, the Collector maintained his earlier order for all practical purpose. It is against this order, the writ petitioner again felt aggrieved and filed the writ petition out of which this intra court appeal arise. As stated supra, the writ court dismissed the writ petition and upheld the order of collector cancelling the grant. It is against this order, the writ petitioner has felt aggrieved and filed this intra court appeal.
8. The writ court dismissed the writ petition essentially on two grounds. Firstly, since the writ petitioner did not seek any liberty to file second writ petition while prosecuting the first one i.e writ petition no 1767/85 in relation to this very dispute and hence the second writ petition i.e the one out of which this intra court appeal arise is not really tenable. The second ground was that jurisdiction of the writ court under article 227 of the Constitution of India is very narrow and since it is confined to only jurisdictional issues and hence no interference in the order of collector impugned in the writ petition is called for.
9. With respect, we cannot concur with these two reasoning of the writ court.
10. So far as the first ground of rejection is concerned, suffice it to say, it was not really necessary for the writ petitioner to seek any permission /liberty from the writ court for filing the second writ petition out of which this appeal arises while prosecuting the first writ petition. It was for the reason that the second order passed by the collector being subsequent to the first one, it furnished separate cause of action for its challenge in favour of writ petitioner. In these circumstances, the writ petitioner had every legal right to challenge such order, if it was adverse to them. It is a settled principal of law that plaintiff/writ petitioner can not file two { 4} cases simultaneously or one after another in respect of same cause of action in the same court or in different court nor can file a second suit/writ petition on one cause of action after the dismissal of the earlier one unless express permission is obtained from the court concern to file the second one. Such is not the case here. In this case, the writ petitioner in the earlier round of litigation had challenged the legality and correctness of one order of collector dt 30.5.85. Once the correctness and legality of this order was examined and order was passed, the parties could not have again challenged the same order in the writ petition but the aggrieved party could pursue it in appeal. Any order passed by the collector subsequent to this one, constituted fresh cause of action for its challenge by the writ petitioner only in the fresh writ petition. To challenge such order, no liberty was required to be taken from the writ court in the earlier round of litigation. Indeed, in the earlier round of litigation, the writ court could not have gone into the legality and correctness of the order dt 15.12.99 which had not been passed, at that point of time as it was passed subsequently. Under these circumstances, we fail to appreciate as to how and on what basis and under which law; the writ court called upon the writ petitioner to take such liberty failing which second writ was held as not main tenable. Only because, the subject matter was the same in the first and second writ petition, by itself was no ground to hold that liberty was required to be obtained for filing second writ petition. Indeed any order when passed in one suit/appeal furnishes fresh cause of action to an aggrieved and hence he has a legal right to file a case to challenge such order.
11. In the light of this discussion, the first ground of rejection cannot sustain and is accordingly set aside. It is held that writ petition filed by the appellant out of which this intra { 5} court appeal arises was maintainable independent to that of the first one and it was not necessary for the writ petitioner to have sought any kind of liberty from the writ court in the first round of litigation to file writ petition at a later date.
12. Coming to the second ground, we are of the view that the same too cannot be upheld. We have noticed that writ court did not advert to the factual issues arising in the case at all nor examined as to how and in what manner the collector decided the issue. In order to decide the legality and correctness of the order, it was necessary for the writ court to have first taken note of the ground set out in the show cause notice for cancellation of the patta, then should have taken note of the stand taken by the writ petitioner in their reply to show cause, and then it should have examined the issue in the context of the relevant rules ( if there are ).It is only then a finding should have been recorded as to whether collector rightly decided the issue or not.? In other words, the approach of the writ court should have been on these lines for finding out as to whether collector rightly decided the issue or not because in order to decide as to whether there exists any breach as set out in the show cause, one has to see the proposed breach and the stand of the lessee. This not having been taken note of by the writ court, an error is committed by the writ court while deciding the issue. It is one thing to say that jurisdiction under article 227 of the constitution is very limited and it is another thing to say that there is no case made out on facts. In the present case, since, the writ court did not examine the issue in the light of facts brought on record and rather declined to take note of them, an error of jurisdiction is committed entitling this court to set aside the finding on this issue.
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13. In the light of this discussion, we hold on second ground that writ court was not right in coming to a conclusion that no case of interference due to limited exercise of powers under article 227 of the Constitution is made out.
14. In the light of foregoing discussion, the appeal succeeds and is allowed. Impugned order is set aside. The writ petition is remanded to writ court for deciding the same afresh on merits in accordance with law keeping in view our observations made supra. Let the writ petition be now placed for hearing before writ court as per roaster for its disposal as directed.
( C.M. TOTLA ),J. ( A . M. SAPRE ),J. /Anil/