Kerala High Court
District Collector, Palakkad vs Devayani on 20 September, 2001
Equivalent citations: 2002 A I H C 353, (2001) 3 KER LT 697, (2002) 1 SCT 219, (2001) 2 KER LJ 568
Author: K.S. Radhakrishnan
Bench: K.S. Radhakrishnan
JUDGMENT K.A.Radhakrishnan, J.
1. Writ Appeal No. 356 of 2001 is filed by the District Collector and two other Officers against the order dated 15.1.2001 passed by the learned single Judge in C.M.P. No. 2576 of 2001 in C.M.P. No. 59154 of 2000 in O.P. No. 34593 of 2000. Writ Appeal No. 461 of 2001 is also filed by the same appellants against the order dated 19.1.2001 passed by the learned single Judge in C.M.P. No. 2576 of 2001 in C.M.P. No. 59154 of 2000 in O.P. No. 34593 of 2000.
2. Writ Petition was filed by the first respondent in the appeals seeking writ of certiorari to quash Ext.P2 notice of attachment dated 20.10.1998 in respect of 2.41 acres of land in survey number 68/3, 4, 5 of Karimpuzha village for realisation of an amount of Rs. 2,96,721/- being arrears towards toddy workers welfare fund. She has also challenged Ext. P3 notice of attachment dated 7.11.1998 issued by the Tahsildar, Ottappalam for realisation of Rs. 9,22,729/- towards abkari dues. She has also challenged Ext.P4 proceeding dated 23.12.1998 initiated by the Tahsildar, Ottappalam for recovery of an amount of Rs. 12,26,538/- towards abkari dues as well as amount due to toddy workers welfare fund. Notice dated 22.11.2000 issued by the Tahsildar, Ottapalam was also challenged in the Writ Petition. Direction was also sought for to consider Ext.P7 and pass appropriate orders. Writ of mandamus was also sought for directing the revenue authorities to proceed against respondents 4 and 5 therein for realisation of the welfare fund as well as abkari dues. Writ Petition was admitted on 12.12.2000 and the learned single Judge passed an interim order on the same day in C.M.P. No. 59154 of 2000 of follows:
"Urgent notice.
Further proceedings pursuant to Ext. P6 as against the petitioner will stand stayed on condition that petitioner pays an amount of Rs.5 lakhs within a period of one month. In the meanwhile, the second respondent will pursue the possibilities for recovering the amounts that are due from the fourth and fifth respondents as well.
Post for further orders on 22.1.2001"
First respondent then filed C.M.P. No. 2576 of 2001 in C.M.P. No. 59154 of 2000 in O.P. No. 34593 of 2000 to enlarge the time for making the payment. It was stated in the affidavit filed in support of the petition that she had approached the Tahsildar and offered to pay Rs. 1 lakhs but the Tahsildar refused to accept the same. Consequently she wanted extension of time to pay the balance of Rs. 4 lakhs. The learned single Judge on 15.1.2001 passed the following order:
"Taking note of the averments in the affidavit, I direct that time granted for payment as per order on C.M.P. No. 59154 of 2000 is extended upto 16.2.2001. The balance stated to be payable is Rupees four lakhs. Petitioner should pay rupees one lakh before 25th January 2001. On such payment, the articles that have been attached from the property may be released and the petitioner will be permitted to occupy the building subject to final orders that are to be passed in this O.P."
Against the above interim order W.A. No. 356 of 2001 was filed by the appellants. On 22.1.2001 a Division Bench of this Court passed the following order.
"It is unfortunate that the petitioner did not make any reference to her earlier approach to this court by filing O.P. No. 1201 of 1999 and obtaining order of stay of recovery of the amounts due from her from the year 1997 onwards. There is also no reference made to the order of stay obtained from the Government during the pendency of O.P. No. 1201 of 1999.
When the Writ Appeal came up for admission the learned counsel appearing on behalf of the Writ Petitioner pointed out that after the impugned order learned single Judge had passed another order on 19.1.2001 and the matter is posted to 25.1.2001. The learned Government Pleader submits that steps are being taken to challenge the interim order passed on 19.1.2001 also."
3. We notice the first respondent - writ petitioner filed C.M.P. No. 2576 of 2001 seeking direction to enlarge the time for remitting Rs. 4 lakhs by another month, pursuant to order dated 12.12.2000 in C.M.P. No. 59154 of 2000 in O.P.No. 34583 of 2000. Learned single Judge on 19.1.2001 passed the following order:
"An order had been passed on 15.1.2001 directing that if the petitioner makes a deposit of Rs.1 lakh before 25th January, 2001, the articles that have been attached from the property was to be released and the petitioner was to be permitted to occupy the building subject to further orders passed. Adv. Sri. M.C. John counsel for the petitioner submitted that the order has not been complied so far. An affidavit has been filed by the Tahsildar concerned on 18.1.2001. He has referred to earlier proceedings in the matter. However, the matter could be decide only after a detailed examination. Respondents should also see that orders as on 15.1.2001 are obeyed by the parties, if petitioner comply with the directions. Post for further orders on 25.1.2001."
Against the above interim order, District Collector and others filed W.A. No. 461 of 2001. The appeal was admitted by this Court on 1.2.2001. In C.M.P. No. 987 of 2001 the Division Bench passed the following order.
"Mr M.C. John takes notice for first respondent. Sri K.K. Babu takes notice for fourth respondent. Notice to respondents 2 and 3. Interim stay as prayed for."
We notice against the order dated 1.2.2001 in C.M.P. No. 987 of 2001 in W.A. No. 461 of 2001 and the order dated 1.2.2001 in C.M.P. No. 766 of 2001 in W.A. No. 356 of 2001, first respondent filed Special Leave Petitions (Civil) Nos. 2959-2960/2001 before the Supreme Court. Supreme Court by order dated 26.2.2001 dismissed both the Special Leave Petitions. On 7.3.2001, the Division bench made the stay absolute.
4. When the matter came up for hearing we heard both the appeals as well as the Writ Petition. We have already indicated that the Writ Petition was filed challenging the revenue recovery proceedings initiated against the first respondent for realisation of amount due under toddy workers welfare fund as well as abkari dues. On receipt of revenue recovery certificates, statutory demand notices were issued under Section 7 of the Kerala Revenue Recovery Act to the first respondent as well as to one Santhakumar, co-defaulter. Enquiry revealed that Santhakumar does not possess any properties which could be proceeded against under the provisions of the Revenue Recovery Act. Since the first respondent did not pay the amount demanded, her properties measuring 2.41 acres situated in survey number 68/3,4,5 of Kulikilliyad desom in Karimpuzha I village were attached and sold in public auction. Since there was no bidders, auction sale was confirmed in the name of State. Even though conditional interim orders have been passed by the learned single Judge, those orders have not been complied with.
5. We also notice that challenging the very same revenue recovery proceedings first respondent had approached this court by filing O.P. No. 1201 of 1999 raising indentical contentions. In that Writ Petition she obtained an interim order on 15.1.1999 and got the same extended from time to time. By order dated 24.6.1999 this court restricted the stay till 30.6.1999. On 5.7.1999 this court again extended the stay on condition of remitting Rs. 2 lakhs within one month from that date. On 12.8.1999 this court extended the time for remittance of the amount by one week and since the same was not remitted even within the extended time, on 20.8.1999 stay was not extended and the amount was not paid. Subsequently the Original Petition was dismissed on 11.2.2000 as not pressed.
6. We notice while filing the present Writ Petition, the fact of filing of the earlier Writ Petition was not disclosed. The earlier Writ Petition was dismissed as not pressed. We notice in the affidavit filed by the first respondent along with O.P. No. 34593 of 2000, it is stated as follows:
"I respectfully submit that I have not filed any Original Petition earlier before this Hon'ble Court seeking for identical reliefs based on similar cause of action."
The fact that she had filed O.P. No. 1201 of 1999 was not only not suppressed by it has been specifically stated that she had not filed any Writ Petition before this court seeking identical reliefs based on similar cause of action. The conduct of the first respondent has to be deprecated. Rule.146 of the High Court Rules, 1971 obliges every party to file a statement as to whether the party had filed any petition seeking the very same reliefs earlier and if so the decision thereof. The scope and ambit of Rules 146 and 150 of the High Court Rules came up for consideration before one of us (Radhakrishnan, J.) in K.V. Marakkar v. State of Kerala (1998 (2) KLJ 705). This court took the view that proviso added to Rules 146 and 150 makes it mandatory on the part of the petitioner to make a statement in the Writ Petition as to whether the petition had filed any petition seeking similar reliefs in respect of the same subject matter earlier and if so the result thereof. In this case, first respondent has not only not disclosed the fact of filing of the earlier Writ Petition but she had stated in the affidavit that she had not filed any Writ Petition earlier for same reliefs. The action of the first respondent is nothing but an abuse of process of court.
7. We also notice that the earlier Writ Petition was dismissed as not pressed. On various occasions, in the earlier Writ Petition O.P. 1201 of 1999 and in the present Writ Petition, O.P. No. 34593 of 2000, successive orders have been obtained by the first respondent but she did not comply with any of the conditional orders. Practice of not complying with the conditional orders after obtaining staty for limited periods has to be depricated. By the dismissal of the Original Petition as not pressed, first respondent is estopped from raising all those contentions over and again. She is deemed to have abandoned all her claims. There may be cases where a party may withdraw the Writ Petition seeking liberty to file another one. Only if court finds that there is justifiable ground for withdrawal, court will permit the request for withdrawal lest it may give room for Bench hunting.
8. The apex court in Upadhyay & Co. v. State of U.P. (1999 (1) SCC 81) after referring to Order XXIII Rule 1 C.P.C. held as follows:
"The aforesaid ban for filing a fresh suit is based on public policy. This court has made the said rule of public policy applicable to jurisdiction under Article 226 of the Constitution (Sarguja Transport Service v. STAT 1987 (1) SCC 5). The reasoning for adopting it in Writ jurisdiction is that very often it happens, when the petitioner or his counsel finds that the court is not likely to pass an order admitting the Writ Petition after it is heard for some time, that a request is made by the petitioner or his counsel to permit him to withdraw it 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 withdrawal of the petition. When once a writ petition filed in a High Court is withdrawn by the party concerned, 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. If so, he cannot file a fresh petition for the same cause once again."
The court also quoted the following observation of Venkatarmaiah, J. in Sarguja Transport Service's case.
"(W)e are of the view that the principle underlying Rule 1 of Order 23 of the Code should be extended in the interests of administration of justice to 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 discharge the litigant form indulging in bench-hunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extra-ordinary jurisdiction of the High Court under Article 226 of the Constitution once again. While the withdrawal of a Writ Petition filed in the High Court without permission to a 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 cause of action relied on in the Writ Petition when he withdraws it without such permission."
We may indicate O.P. No. 1201 of 1999 was dismissed as not pressed on 11.2.2000 after the first respondent had obtained stay of revenue recovery proceedings on certain conditions. Stay order was obtained by her on 15.1.1999. She could successfully protract the litigation by getting the stay extended and also by making the plea for remitting the amount within the extended time. She did not comply with the interim order. However, she got the benefit of the stay from 15.1.1999 till 20.8.1999. Subsequently Writ Petition was dismissed as not pressed on 11.2.2000.
9. We are of the view, in this case first respondent had filed the earlier Writ Petition seeking the very same reliefs based on identical facts situation. First respondent has not disclosed the fact that she had earlier filed a Writ Petition and that was dismissed as not pressed. It is nothing but an abuse of process of court. In such circumstances, we allow both the appeals filed by the District Collector and others and dismiss the Writ Petition with costs of Rs.5,00/- to be paid by the first respondent-petitioner to State Government within a period of one month from today.