The C/M Public Education, ... vs Yogendra Singh And 7 Others
2013 Latest Caselaw 6146 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

										A.F.R.
 
										Court No. 29
 
		        Special Appeal Defective No. 878 of 2013
 
		Committee of Management Public Education Society
 
		and another ......................................................Appellants 
 
					versus
 
		Yogendra Singh and others ........................... Respondents 
 

 
Hon. Sheo Kumar Singh, J. 

Hon. Brijesh Kumar Srivastava-II, J.

This appeal has been filed by the appellants against the order of learned Single Judge dated 23.4.2013 by which a very innocuous order of deciding representation has been given.

There is some delay in filing the appeal which has been explained in the affidavit.

Ground is that the present appellants who were respondent no. 6 and 7 in the writ petition were not noticed and they had no information/intimation about the writ petition. They only came to know about the order when notices were given by the educational authorities to them to appear and prove certain facts.

Argument is that in the garb of innocuous order of deciding the representation, here is a case where the frivolous and stale claim of the writ petitioners has been permitted to be reopened and the validly elected Committee of Management on account of political influence in the garb of verifying correct facts is in serious threat of harassment and the great injustice.

Argument is that in normal situation the direction as claimed may be innocuous and that may be given but if a party comes to this Court and demonstrates that either the claim is not triable or that is frivolous or that is stale and that is capable of just causing the injury and harassment to the other side then that exercise is either not to be done or if the direction has been given that is to be withdrawn.

Counsel for the respondents vehemently submits that direction given by the learned Single Judge is quite harmless and as appellants have been directed to place their version in respect to certain issues they should not hesitate rather they should offer themselves to show their bonafides and correctness in their claim.

Submission is that only when something goes against them, they can feel aggrieved and may challenge the same but mere exercise of asking certain things may in itself be not claimed to be a prejudice.

In view of the rival submissions advanced by the parties, primarily following questions may need attention of the Court :

(i) If a writ petition is dismissed as withdrawn, without taking liberty to file fresh petition virtually on the same cause of action, for the same relief and that too by the same petitioner, whether filing of second petition and a direction can be justified.

(ii) Whether in the garb of getting innocuous direction for deciding the representation any serious issue, frivolous claim or stale matter can be permitted to be examined.

(iii) Whether on filing an application or otherwise on taking the matter by the respondents stating his harassment and unwarranted exercise pursuant to the directions of the Court, if was passed ex-parte, without any notice to him is to be recalled and any order if required to be passed, is to be passed after giving an opportunity of hearing to the respondents.

We are to just notice certain facts for passing the appropriate orders.

The present respondents no. 1 and 2 are the son and father who have filed writ petition in which the impugned order has been passed. One Public Interest Litigation i.e. 56183 of 2012 was filed only by Girendra Pal Singh (father) (present respondent no. 2) which stood disposed of.

Appellant no. 1 is the elected Committee of Management to a society namely Public Education Society registered under the Societies Registration Act . Respondent no. 2 was an office bearer (President of the Committee of Management of the Society) but he did not participate in the election held in 2010 and so far the respondent no. 1 is concerned he is said to be not the member of the society. G. P. Singh, respondent no. 2 with one Vomesh Singh filed complaint before the Deputy Registrar (Firms, Societies and Chits) who upon hearing the parties on 26.10.2010 passed an order on 30.10.2010 rejecting the complaint of the respondent no. 2 (annexure no. 1 to the affidavit).

Thereafter on 26.9.2011 and 10.5.2011 complaints were filed by G. P. Singh, respondent no. 2 before various authorities for making necessary enquiries against the present appellants. When no action was taken G.P. Singh filed Public Interest Litigation i.e. 56183 of 2012 claiming the relief for a direction to the respondents to make an enquiry into the complaints. Prayer made in the writ petition referred above is quoted here :

"(i) issue writ, order or direction in the nature of mandamus commanding the respondent no. 1, 2 and 4 to forthwith make enqiry on the complaints moved by petitioner before them on 10.2.2011 and 26.9.2011 (Annexure No. 8 to the writ petition) within specific period.

(ii) Issue any other writ, order or direction which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.

(iii) Award cost of the petition to the petitioner."

The aforesaid writ petition was got dismissed as withdrawn without taking any liberty to file fresh petition. Order passed on 29.9.2012 is hereby quoted below :

"Learned Counsel appearing for the petitioner has submitted that the petitioner wants to withdraw the writ petition.

Such prayer is allowed.

The writ petition is dismissed for non-prosecution, however, without imposing any cost."

After dismissal of that writ petition now the father and son have filed the present writ petition with a prayer that two different complaints dated 21.5.2012 and 24.1.2013 may be directed to be enquired. The prayer as made in writ petition no. 22425 of 2012 is hereby quoted :

"(a) issue a writ, order or direction in the nature of mandamus commanding the respondent nos. 1, 2 and 4 to make an enquiry on the complaint moved by the petitioner before them on 21.5.2012 and 24.1.2013 (Annexure No. 9 and 10 to the writ petition) respectively forthwith within specified period as directed by this Hon'ble Court.

(b) issue any other writ, order or direction which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case;

(c) Award the cost of the petition to the petitioner."

Copy of the complaint dated 21.5.2012 and 24.1.2013 are part of the present affidavit which were part of the writ petition (annexure no. 9 and 10) and so far the complaint dated 26.9.2011 and 10.2.2011 are concerned they were given to the court by learned counsel for the respondents during the course of the arguments.

The court has carefully perused/read all the four complaints i.e. 10.5.2011 and 26.9.2011 subject matter of the Public Interest Litigation writ and dated 21.5.2012 and 24.1.2013 subject matter of the present writ in which impugned order has been passed.

The complaint is mainly in respect to incorrect renewal of the society on the basis of forged papers in the year 2003. Invalid sale in respect to plot nos. 380, 381, 383 etc. Sale of bricks, iron and malwa etc. for a lesser price.

On a careful perusal of all the four complaints we are satisfied that they in substance, are to the same effect.

Various directions, as prayed, by the writ petitioners, which on being accepted, may be in the shape of dissipation of the property of the institution or otherwise, could have been very well within the jurisdiction of the court in the public interest litigation but the petitioner chose to withdraw that writ petition with no liberty to file fresh petition.

Here is a case where now by filing a writ as an educational matter a direction for disposal of the complaint/representation has been sought. Complaint is about renewal of the society, transfer of the land, sale of certain items.

There may not be any dispute that examination of any issue is to be permitted by the competent authority in a competent forum. For redressal of the grievance for each and every cause of action forum is provided, having appellate/revisional stages.

Here we are to notice judgment given by the Apex Court in the case of Sarguja Transport Service Vs. State Transport Appellate Tribunal and others reported in AIR 1987 SC 88.

In the aforesaid judgment it has been clearly held that petitioner after withdrawing the writ filed by him in the High Court under Article 226 without permission to institute fresh petition cannot file a fresh writ petition in respect to the same cause of action in the High Court.

Observation as made in para 9 of the judgment referred to above is hereby quoted below :

"The point for consideration is whether a petitioner after withdrawing a writ petition filed by him in the High Court under Article 226 of the Constitution of India without the permission to institute a fresh petition can file a fresh writ petition in the High Court under that Article. On this point the decision in Daryao's case (supra) is of no assistance. 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 resjudicata 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 a 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 of India since such withdrawal does not amount to resjudicata, the remedy under Article 226 of the Constitution of India 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 fight 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. We, however. make it clear that whatever we have stated in this order may not be considered as being applicable to a writ petition involving the personal liberty of an individual in which the petitioner prays for the issue of a writ in the nature of habeas corpus or seeks to enforce the fundamental fight guaranteed under Article 21 of the Constitution since such a case stands on a different footing altogether. We however leave this question open."

There is another Full Bench judgment of this Court in the case of Surya Deo Mishra Vs. State of U. P. and others, reported in 2006 (1) (All) 379 which has referred several judgments of the Apex Court for making the following observations. The observation as made in para 23 of the said judgment is hereby quoted :

"23.The second question need not detain us any longer. In the first writ petition relief of mandamus was sought not to retire the petitioner on 31.1.1994 instead of 31.1.1996 and salary was also claimed. The writ petition was dismissed as infructuous. He therefore, cannot be permitted to take up the same issue by means of any subsequent writ petition. The rules of this Court clearly prohibit such course of action. Rule 7 of Chapter XXII of the Allahabad High Court Rules 1952 provides that, where an application has been rejected, it shall not be competent for the applicant to move a second application on the same fact. Even if the petitioner has withdrawn the earlier writ petition without a prayer to file a fresh writ petition, a second writ petition for the same cause of action is not maintainable. This cardinal rule of public policy to discourage multiplicity of proceedings, also incorporated in Order 2 Rule 2 of the Code of Civil Procedure, the principles whereof are also applicable to writ proceedings, is too well settled to merit any elaboration. For this, it will be sufficient to refer to the judgments in B. N. Singh Vs. State of U. P. 1979 ALJ 1184; Dr. Ramji Dwivedi Vs. State of UI. P. and others, AIR 1984 SC 1506 equivlent to 1983 UPLBEC 426; Niranjan Rai Vs. District Inspector of Schools (1991) 2 UPLBEC 1416; Sahib Ram Vs. State of Haryana, JT 1995 (1) SC 24; Harish Chandra Srivastva Vs. State of U. p. and others, 1996 (3) ESC 317 (DB); Keshav Tripathi Vs. Stae of U. P. and others, 1996 (3) ESC 10 (All) and S.L. Bathla Vs. State Bank of India, 1999 (1) ESC 649 (All). "

We may refer to another Division Bench judgment of this Court in the case of Guru Charan Lal Srivastava Vs. Hindustan Aeronautics Limited and others reported in (2001 ) 3 U.P.L.B.E.C. 2365. The observation as made in para 9 to 11 of the aforesaid judgment is hereby quoted below :

"9. The learned counsel for the respondent, on the other hand, submitted that under Chapter XXII, Rule 7 of the Rules of the Court, the second writ petition on the same fact and relief was not competent as the earlier writ petition has been dismissed by this Court vide order dated December, 19, 1995 without giving any liberty to the appellant-writ petitioner to file another writ petition. According to her, it is immaterial as to whether the earlier writ petition has been dismissed as withdrawn or on any technical ground. Until and unless liberty is given by the Court to file a fresh writ petition, the second writ petition is not maintainable. She also relied upon the decision of the Supreme Court in the case of Sarguja Transport Service Vs. Sttae Transport Appellate Tribunal, Gwalior and others MANU/SC/0114/1986: AIR 1987 SC 88, and also a decision of this Court in the case of Abdul Ghaffar and another Vs. Ishtiyaq Ahmad and others 1989 AWN 297.

10. It is not in dispute that the appellant-writ petitioner had earlier filed Civil Misc. Writ Petition No. 33778 of 1995 claiming substantially the same relief which he has claimed in Civil Misc. Writ Petition No. 37496 of 1995. Reliefs claimed in both the writ petitions have already been reproduced above. From a perusal of the reliefs claimed in the two writ petitions, it will be seen that in both the writ petitions, the appellant-writ petitioner has claimed the same reliefs. The writ petition no. 33778 of 1995, has been dismissed by this Court vide the judgment and order dated December 19, 1995. The said order is reproduced below :

"Heard.

Counsel for the petitioner wants to withdraw the writ petition.

The petition is dismissed as withdrawn"

11. No liberty or permission to file another writ petition was given to the petitioner by this Court while dismissing the writ petition as withdrawn. The effect of the order dated December 19, 1995 is that the writ petition has been rejected. Thus, the provisions of Rule 7, Chapter XXII of the Rules of the Court which reads as follows :

		"7.	No second application on same facts. --Where 			an application has been rejected, it shall not be 			competent for the applicant to make a second 			application on the same facts."
 
			Is fully applicable and the second writ petition 			was not maintainable."
 

 
	Similar view has been taken by a Bench of this Court in the case of Khacher Singh Vs. State of U. P. and others reported in AIR 1995 ALD 338. The observation as made in para 6 of the judgment is hereby quoted below : 
 

"6. In view of the provisions contained in Rule 7 of Chapter XXII of the Rules of the Court second writ petition on the same facts is not maintainable. A Division Bench of this Court in L.S. Tripathi v. Banaras Hindu University, 1993 (1) UPLBEC 448 (wrongly reported as judgment of single Judge) has laid down that besides the aforesaid rule filing of the successive writ petition is against public policy apart from being the abuse of the process of the Court. Division Bench of this Court in Saheb Lal v. Assistant Registrar, (1995) (1) UPLBEC 31) has again reiterated the same principles. Supreme Court in Sarguja Transport Service Vs. State Transport Appellate Tribunal MANU/SC/0114/1986 : AIR 1987 SC 88 has laid down that if the earlier writ petition has been withdrawn without permission of the Court to file a fresh writ petition, the second writ petition for the same cause will not be maintainable on the ground of public policy. The Supreme Court in this connection applied the underlying principles contained in Rule I of Chapter XXIII of the Code of Civil Procedure."

There is another judgment which is to be noticed at this stage. It is in respect to a 'modus of representation' and direction for taking of the decision. Reference may be given to the judgment of the Apex Court in the case of C. Jacob Vs. Director of Geology and Mining and another reported in (2008) 10 SCC 115.

Observation as has been made in the judgment of the Apex Court from para 8 to 11 and para 14 are hereby quoted :

"The modus of `representation'

8. Let us take the hypothetical case of an employee who is terminated from service in 1980. He does not challenge the termination. But nearly two decades later, say in the year 2000, he decides to challenge the termination. He is aware that any such challenge would be rejected at the threshold on the ground of delay (if the application is made before Tribunal) or on the ground of delay and laches (if a writ petition is filed before a High Court). Therefore, instead of challenging the termination, he gives a representation requesting that he may be taken back to service. Normally, there will be considerable delay in replying such representations relating to old matters. Taking advantage of this position, the ex-employee files an application/writ petition before the Tribunal/High Court seeking a direction to the employer to consider and dispose of his representation. The Tribunals/High Courts routinely allow or dispose of such applications/petitions (many a time even without notice to the other side), without examining the matter on merits, with a direction to consider and dispose of the representation.

9. The courts/tribunals proceed on the assumption, that every citizen deserves a reply to his representation. Secondly they assume that a mere direction to consider and dispose of the representation does not involve any `decision' on rights and obligations of parties. Little do they realize the consequences of such a direction to `consider'. If the representation is considered and accepted, the ex-employee gets a relief, which he would not have got on account of the long delay, all by reason of the direction to `consider'. If the representation is considered and rejected, the ex-employee files an application/writ petition, not with reference to the original cause of action of 1982, but by treating the rejection of the representation given in 2000, as the cause of action. A prayer is made for quashing the rejection of representation and for grant of the relief claimed in the representation. The Tribunals/High Courts routinely entertain such applications/petitions ignoring the huge delay preceding the representation, and proceed to examine the claim on merits and grant relief. In this manner, the bar of limitation or the laches gets obliterated or ignored.

10. Every representation to the government for relief, may not be replied on merits. Representations relating to matters which have become stale or barred by limitation, can be rejected on that ground alone, without examining the merits of the claim. In regard to representations unrelated to the department, the reply may be only to inform that the matter did not concern the department or to inform the appropriate department. Representations with incomplete particulars may be replied by seeking relevant particulars. The replies to such representations, cannot furnish a fresh cause of action or revive a stale or dead claim.

11. When a direction is issued by a court/tribunal to consider or deal with the representation, usually the directee (person directed) examines the matter on merits, being under the impression that failure to do may amount to disobedience. When an order is passed considering and rejecting the claim or representation, in compliance with direction of the court or tribunal, such an order does not revive the stale claim, nor amount to some kind of "acknowledgement of a jural relationship" to give rise to a fresh cause of action.

14. We are constrained to refer to the several facets of the issue only to emphasize the need for circumspection and care in issuing directions for `consideration'. If the representation is on the face of it is stale, or does not contain particulars to show that it is regarding a live claim, courts should desist from directing `consideration' of such claims."

Sri K. N. Tripathi, learned Sr. Advocate in support of the submission that second writ petition is maintainable placed reliance on a judgment given by the Apex Court in the case of Hoshank Singh Vs. Union of India reported in 1979 (3) SCC 135.

The Court being satisfied with the submission that innocuous direction to consider and decide the representation as claimed and given by the Court, without any notice and opportunity to the appellants to place their version is to cause serious and irreparable injury to them which may or may not be justified in the given set of facts, we propose to stay operation of the order passed by the learned Single Judge dated 23.4.2013 and all the consequential proceedings thereof.

Respondents no. 3 to 7 are represented by the learned Standing Counsel. Respondent no. 8 is represented by Sri Neeraj Tiwari, learned Advocate. Respondents no. 1 and 2 are represented by Sri U. P. Singh, learned Advocate.

All the respondents may file counter affidavit in Delay Condonation Application as well as in the Appeal or before the date fixed.

Let the matter be listed on 22.10.2013 in the Additional Cause List.

On the fact and analysis so made, we direct that operation of the order passed by the learned Single Judge dated 23.4.2013 impugned in this appeal and all consequential proceedings shall remain stayed till the next date.

30.9.2013

Sachdeva.