Rajasthan High Court - Jaipur
Rajasthan Art Emporium vs Rajasthan State Industrial And ... on 6 May, 1998
Equivalent citations: AIR1998RAJ277, 1999(1)WLC16
Author: B.S. Chauhan
Bench: B.S. Chauhan
ORDER B.S. Chauhan, J.
1. The instant writ petition has been filed for quashing the impugned order dated 25-7-96, contained in Annexure-3 to the writ petition, including the condition that the petitioner shall be liable for liabilities incurred by the previous occupier of the premises, and for quashing the order dated 26-7-97, contained in Annexure-11 to the petition, by which the application of the petitioner to delete the Condition No. 4, has been rejected.
2. The facts and circumstances giving rise to this case are that one M/s. Shyam Oil & Cake Limited (hereinafter called "the firm") was the lessee of an industrial plot situated at B-57. Marudhar Industrial Area, II Phase, Basni. While the lease was subsisting, the petitioner entered into an agreement with the said lessee to purchase-the said premises for a consideration of Rs. 21 lacs. As it was not a free-hold property, the original lessee, i.e. the firm applied for permission to transfer the lease-hold rights in favour of petitioner, to the Rajasthan Industrial and Investment Corporation (RIICO), which is a Government Company registered under the Companies Act. Vide letter dated 25-7-96, RIICO replied to the said firm that the transfer of the lease-hold right was permissible subject to certain conditions. The Condition, with which the Court is concerned, reads as under:--
"(4). That M/s. Rajasthan Art Emporium will bear all past and future liabilities of old firm pertaining to Government and Semi-Government Department."
3. In fact, even in the original agreement entered into between the parties on 21-10-94, contained in Annexure-1 to this petition, there was a Clause VI-B, which reads as under :--
"The assignor shall be liable for all taxes including income tax, sales tax, municipal tax, electricity charges, assessed land and building tax and any other tax, charges or expenses prior to 1-4-93; and the assignee shall be liable for all these charges and tax pertaining to period on or after 1 -4-93."
4. On imposition of such conditions vide order dated 25-7-96 by the RIICO, the petitioner and previous occupier, the firm entered into a supplementary agreement dated 21-10-94, (Annexure-2) by which they agreed to delete Clause VI-B from the agreement dated 21-10-94 with retrospective effect as if such Clause had not been contained in the original agreement. The petitioner was fastened with certain liability of sales tax which was with respect to the previous occupier, i.e. the firm, and prior to the date of occupation by the petitioner. Being aggrieved, the petitioner challenged the said demand by filing an Original Application before the Rajasthan Taxation Tribunal as O.A. No. 148/1997, in which the RIICO as well as the previous occupier were the parties and in that Original Application, petitioner challenged that Condition No. 4 in the impugned order dated 25-7-96 could not have been imposed; it was illegal, arbitrary and beyond the scope of the authority, i.e., RIICO to impose such a condition. The matter was heard and decided by the Rajasthan Taxation Tribunal vide its judgment and order dated 8-7-97, contained in Annexure-R. 1, by which the case of the petitioner was rejected on the ground that the petitioner had entered into the contract, voluntarily with his eyes open and there was no misrepresentation on the part of the other party.
5. Being aggrieved and dissatisfied, petitioner filed D.B. Civil Writ Petition No. 2908/1997. The said writ petition was dismissed as withdrawn vide order dated 3-9-97. It appears that after withdrawing the said writ petition, petitioner filed another O.A. No. 174/1997 before the Rajasthan Taxation Tribunal for deleting the said Clause mentioned in Annexure-3 and the said O.A. is still pending before the Tribunal for consideration., Petitioner had applied to the RIICO to delete the Condition No. 4 from the impugned order dated 25-7-96, however, the representation has been rejected by the said Authority vide order dated 26-7-97, contained in Annexure-11 to the writ petition. Being aggrieved and dissatisfied, petitioner has again approached this Court in the writ jurisdiction.
6. Heard Mr. Vineet Kothari, learned counsel for the petitioner and Mr. Vineet Mathur, learned counsel for the respondents.
7. Mr. Mathur has raised the following preliminary objections that : (i) as the petitioner has approached this Court earlier by filing a writ petition before the Division Bench against an order of the Taxation Tribunal and the said writ petition has been dismissed as withdrawn, the instant writ petition is not maintainable as the petitioner did not obtain the permission of the Court to have liberty to file writ petition subsequently; (ii) the petitioner has filed another Original Application before the Rajasthan Taxation Tribunal challenging the said condition which is still pending and the petitioner cannot choose to use several Forums for the same relief at the same time; (iii) the petitioner is guilty of suppressing the material facts as the petitioner did not disclose in the writ petition regarding the earlier litigation before the Taxation Tribunal or filing the earlier writ petition before this Court and, thus, it should be held by this Court that the petitioner has not come before this Court with clean hands and, thus, not entitled for any relief; and (iv) the petitioner cannot be permitted to dispute contractual obligations in writ jurisdiction.
8. So far as the preliminary objections are concerned, the issues involved are no more res integra. In Sarguja Transport Service v. S.T.A. Tribunal, Gwalior, AIR 1987 SC 88, the Hon'ble Apex Court has observed as under (Paras 7, 8 and 9) :--
"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 they 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 lose 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 suitor 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.
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.
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 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 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 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 since such withdrawal does not amount to res judicata, the remedy under Article 226 of the Constitution 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.
9. Similar view has been taken subsequently by the Apex Court in Avinash Nagra v. Navodaya Vidhyalaya Samiti, (1997) 2 SCC 534, wherein the Hon'ble Supreme Court has held that in such a case, by application of the principle of constructive res judicata, subsequent writ petition is not maintainable. In Ashok Kumar v. Delhi Development Authority, (1994) 6 SCC 97 : (1994 AIR SCW 5155), the Supreme Court has held that filing successive writ petitions for the same relief, being opposed to public policy, amounts to abuse of the process of the Court. Same view has been taken by a Division Bench of Allahabad High Court in Kacher Singh v. State of U. P., AIR 1995 All 338.
10. In the instant case, as the petitioner has approached this Court earlier, the submission made by Mr. Mathur that the petition is not maintainable is full of substance. Mr. Kothari, learned counsel for the petitioner has submitted that the earlier writ petition had been filed against the judgment and order of the Tax Tribunal and this petition is filed against the order dated 26-7-97, which was subsequent to the judgment of the Tax Tribunal and by the said order dated 26-7-97, the RIICO has rejected his application to delete the said condition, therefore, being a separate cause of action, it cannot be said that the writ petition is barred by the principle enshrined in Order XXIII, Rule 1. I.P.C. In the facts and circumstances of the case, as the same Condition had been challenged before the Rajasthan Taxation Tribunal and the contention raised by the petitioner had been negatived and the judgment and order of the Tax Tribunal had been challenged before this Court by filing the earlier writ petition, and as the petitioner was not likely to get any relief from the Court, he had chosen to withdraw the said writ petition without getting the liberty to file another writ petition, the submissions made by Mr. Kothari are not tenable.
11. So far as another important issue regarding disputing the contractual obligation in the writ jurisdiction is concerned, it has been said from time and again by the Hon'ble Supreme Court that a party cannot be permitted to dispute the contractual obligations by invoking the extraordinary writ jurisdiction. In Bareilly Development Authority v. Ajay Pal Singh, AIR 1989 SC 1076, a similar contention was raised. The Apex Court considered a catena of judgments, particularly, Radha Krishna Agarwal v. State of Bihar, AIR 1977 SC 1496; Premji Bhai Parmar v. Delhi Development Authority, AIR 1980 SC 738; and Divisional Forest Officer v. Vishwanath Tea Company Ltd., AIR 1981 SC 1368, and arrived at the conclusion that where the contract entered into between the State and the persons agreed is non-statutory and purely contractual and the rights are governed only by the terms of the contract, writ petition under Article 226 of the Constitution of India is not maintainable. Similar view has been taken in Stale of Gujarat v. Meghji Pethraj Shah Charitable Trust, (1994) 3 SCC 552 : (1994 AIR SCW 2584); and Noida Entreprenuers Association v. U. P. Financial Corporation. (1994) 2 SCC 108.
12. However, in Indore Development Authority v. Smt. Sadhna Agarwal. (1995) 3 SCC 1 : (1995 AIR SCW 1613), the Supreme Court affirmed and approved the view taken by the Apex Court in Bareilly Development Authority (AIR 1989 SC 1076) (supra), but it further observed that the High Court, while exercising its extraordinary jurisdiction under Article 226 of the Constitution, may satisfy itself on the materials on record that the State has not acted in an arbitrary or erratic manner. A similar view has been taken by the Supreme Court in Union of India v. Graphic Industries Company, (1994) 5 SCC 398 : (AIR 1995 SC 409). In the said judgment the Apex Court referred to its earlier judgments, particularly, in Kumari Srilekha Vidyarthi v. State of U. P.. (1991) I SCC 212 : (AIR 1991 SC 537); Mahavir Auto Stores v. Indian Oil Corporation. (1990) 3 SCC 752: (AIR 1990 SC 1031); Dwarka Das Marfatia v. Board of Trustees of the Port of Bombay, (1989) 3 SCC 293 : (AIR 1989 SC 1642) and observed that even in contractual matters public authorities have to act fairly and if the State or its instrumentalities have failed to do so, then writ jurisdiction of the High Court under Article 226 of the Constitution can be resorted to because acting unfairly would amount to flagrant violation of Article 14 of the Constitution.
13. In Life Insurance Corporation of India v. Consumer. Education and Research Centre, (1995) 5 SCC 482: (AIR 1995 SC 1811), the Apex Court, after considering a catena of decisions, observed as under (Para 28):--
"While exercising the power under Article 226, the Court would be circumspect to adjudicate the disputes arising out of the contract depending on the facts and circumstances in a given case.....each case is to be examined on its own facts and circumstances to find out the nature of the activity or scope and nature of the controversy.....If a contract or a clause in a contract is found unreasonable or unfair or irrational, one must look to the relative bargaining power of the contracting parties."
14. There is no law of universal application regarding the issue of maintainability of the writ petition in contractual matters, rather it would depend upon the facts and circumstances of an individual case.
15. In the instant case, even if it is assumed that the condition is arbitrary and the case requires consideration on this assumption, Mr. Kolhari made the submission that the petitioner had not been in a position to bargain with the concerned authority, such a stringent condition cannot be imposed and imposing such a liability is arbitrary and liable to be struck down by this Court. In support of his submission, he referred to the judgment of the Hon'ble Supreme Court in Isha Marbles v. Bihar State Electricity Board, (1995) 2 SCC 648, wherein the Apex Court has held that as the said petitioner was an auction-purchaser under Section 29 of the State Financial Corporation Act, of the premises for which supply of the electricity had been disconnected for non-clearance of the consumption charges by the previous owner, the auction-purchaser could not be held liable for the liability of the previous consumer in order to secure reconnection. While deciding the said case, the Hon'ble Supreme Court had placed reliance on various judgments, i.e., Souriyar Luka v. Kerala State Electricity Board, AIR 1959 Ker 199, wherein the test applied was whether the applicant seeking electricity connection was a legal representative of the defaulter and held that the payment of arrears due from the defaulting consumer cannot he insisted for supply of electricity to the premises used by the erstwhile consumer. In National Textile Corporation (M. P. Ltd.) v. M. P. Electricity Board, AIR 1980 Madh Pra 32, it was held that any liability of previous owner/occupier of the National Textile Undertaking prior to the appointed day, cannot be fastened on the successor by mere inference.
16. Petitioner cannot derive any benefit from the said judgments as in none of the cases, referred to above, such a condition had been imposed and here the petitioner has accepted the condition, acted upon it and derived benefit of the same. Thus, the facts and circumstances of the case are distinguishable. After securing the contract, taking into account the terms and conditions, the petitioner cannot be allowed to assail the validity of the contract on any ground by invoking the writ jurisdiction of this Court. Moreover, it was not a case of dotted-line contract.
17. In Har Shanker v. Deputy Excise and Taxation Commr., AIR 1975 SC 1121, the Apex Court has held as under (Para 22):--
"The writ jurisdiction of the High Court under Article 226 of the Constitution is not intended to facilitate avoidance of obligations voluntarily incurred."
18. Similarly, in State of Orissa v. Narain Prasad, (1996) 5 SCC 740 : (AIR 1997 SC 1493) the Apex Court has observed as under (Para 21) "A person who enters into certain contractual obligation with his eyes open and works the entire contract, cannot be allowed to turn round......
and question the validity of these obligations or the validity of the Rules which constitute the terms of contract. The extraordinary jurisdiction of the High Court under Article 226, which is of a discretionary nature and is exercised only to advance the interest of justice, cannot certainly be employed in aid of such persons. Neither justice nor equity is in their favour."
19. In Dr. Buddi Kota Subbarao v. K. Parasaran. (1996) 5 SCC 530 : (AIR 1996 SC 2687), the Supreme Court has observed as under (At p. 2691 of AIR) :--
"The course adopted by the applicant is impermissible and his application is based on misconception of law and facts. No litigant has a right to unlimited drought on the Courts time and public money in order to gel his affairs settled in the manner as he wishes. Easy access to justice should not be misused as a licence to file misconceived or frivolous writ petitions."
20. The contractual obligations are generally not disputed in writ jurisdiction. Petitioner has entered into the agreement with the respondents and he was under no compulsion to purchase the said property if the condition was not suitable to him. Entering into the contract was by no means compulsion for him, thus it cannot be described as Hobson's choice. Petitioner is an industrialist and it was not a case of a weaker person who was not in a position to bargain with a company and even if the condition imposed is arbitrary and liable to be quashed, it cannot be done so as the petitioner had already filed the writ petition and got it dismissed as withdrawn without any further liberty to file the petition and it made the petition not maintainable.
21. Mr. Kothari, learned counsel for the petitioner has tried to urge that the lease-deed was not executed in pursuance of the letter dated 25-7-1996 as the conditions mentioned therein were not complied with by the parties and the contract is to be read independent of the said letter dated 25-7-1996. The submission is preponderous as petitioner cannot succeed by raising such hindered and trivial issues. All the subsequent events are based only on the said permission letter to transfer the property in dispute and, thus, the submission is not tenable.
22. Before parting with the case, I would like to explain that condition No. 4 in the impugned letter has also fastened the petitioner with future liabilities of the previous occupier. So far as the past liabilities are concerned, petitioner may be bound by the terms, but regarding future liabilities, the issue requires reconsideration by the RIICO, as it may have very serious repercussion on the survival of the petitioner. Mr. Mathur has assured the Court that if petitioner makes a representation to RIICO for deleting the future liabilities, it would be considered expeditiously by the said respondent. However, it is clarified that the outcome would not be subject-matter of future litigation.
23, The petition is devoid of merit and hence accordingly dismissed.