Satya Narain Shukla ... vs State Of U.P. Chief Secy. ...
2015 Latest Caselaw 762 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved Judgment/A.F.R
 
Court No. - 3
 
Case :- MISC. BENCH No. - 3536 of 2015
 
Petitioner :- Satya Narain Shukla ,I.A.S.(Retd), Advocate [ P.I.L. ]
 
Respondent :- State Of U.P. Chief Secy. Sachivalaya Lucknow & 3 			     Ors.
 
Counsel for Petitioner :- S.N. Shukla (In Person-I),G.N. Pandey(In 				            Person-2)
 
Counsel for Respondent :- C.S.C.,A.S.G.,Sudhanshu Chauhan
 

 
Hon'ble Rajan Roy,J.

I have gone through the judgment of my esteemed brother Shri Narayan Shukla, J. wherein he has held the writ petition to be maintainable after rejecting the plea of the opposite parties that the same was barred by res judicata on account of dismissal of the earlier writ petition filed by the petitioners before the Supreme Court under Article 32 of the Constitution of India (hereinafter referred to as 'constitution'), thereafter, his Lordship has considered the merits of the case and has rejected the same on the ground that it is not the role of the courts to legislate or perform legislative functions, or to take over functions of the executive in its own hands, or to issue directions for implementation of directive principles enshrined in part IV of the Constitution and has accordingly dismissed the writ petition on merits after entertaining the same. Though I agree with the views expressed by my esteemed brother on the merits of the issues, however, as I am unable to convince myself on the issue of maintainability of this writ petition after dismissal of the earlier writ petition filed by the petitioners before the Supreme Court under Article 32 of the Constitution, therefore I am rendering my judgment separately in the matter.

Heard Sri Satya Narain Shukla, petitioner no.1 in person, Sri Ashok Mehta, learned Additional Solicitor General of India, assisted by Mr. Ajay Kumar Singh, learned Senior Standing Counsel for Union of India and Mr. H.K. Bhatt, learned Additional, Chief Standing Counsel for the Government of U.P.

The petitioners herein had earlier filed a writ petition under Article 32 of the Constitution before the Supreme Court bearing Writ Petition (Civil) Nos.125 of 2015, Lok Prahri, through its General Secretary S.N. Shukla v. Union of India & ors., seeking the following reliefs:

"For the reasons stated above it is most respectfully prayed that in the interest of justice to the sizable BPL population of the country, as also for upholding the Constitution and safeguarding the future of democracy in the country, this Hon'ble Court may graciously be pleased to -

(1) direct the respondents to prepare a separate  Five      	Year Plan and Annual Plans for BPL People,
 
(2) direct the respondents to provide adequate 	funds      	for the implementation of the aforesaid  plans,
 
(3) direct the respondents no.1 and 3 to set up a 	separate Ministry/Department for poverty 	alleviation for preparation of the aforesaid plans 	and for getting these implemented in a 	time 	bound manner.
 
(4) direct the respondent no.3 to ensure that the 	number of persons living below the poverty line 	is brought down to the level of national average by 	the end of the 13th Five Year Plan,
 
(5)  direct the respondents to -
 
(i) clearly spell out the income and other criteria for identifying persons/families below the poverty line in urban and rural areas and update the same at regular intervals,
 
(ii) give wide publicity to these criteria so that the eligible persons are aware of their entitlement under the various schemes,
 
(iii) evolve a reliable and effective system of monitoring and evaluating the impact and outcome of various schemes for poverty reduction to ensure that the benefits of these schemes is not cornered by well off ineligible persons.
 
(6) grant any other relief which this Hon'ble Court 	deems fit and proper in the circumstances of 	the present case to meet the ends of justice,
 
(7) award the cost of this petition to the 	petitioners."
 
The first and second paragraph of the said writ petition read as under:
 

"1. That the instant PIL writ petition is being filed for securing to the poor people of the country economic justice (without which there can be no real social and political justice) promised in the Preamble of the Constitution and for enforcement of its Articles 14 and 21 and securing implementation of the Directive Principles of State Policy contained in Part IV of the constitution. Significantly, the population of poor people (fondly called 'Daridranarayan' by Gandhiji) constitutes more than one-fourth population of the country and more than one-third population of its largest state, Uttar Pradesh.

2. That the instant petition has been necessitated because even after 67 years of independence the aforesaid sizable population of the country is living in pecuniary and sub-human conditions without proper satisfaction of even the basic needs of food, clothing and shelter. Obviously, the efforts made by the successive governments in this regard have not been adequate and have left much to be desired. As a result, while the gap between the rich and the poor has been increasing, a sizable section of population continues to be poor as per government's own figures. Apparently, concerted time-bound measures at the level of the Central and state governments are required if India has to translate into reality the theme of the recently held Global Citizen Festival-Removal of poverty by 2030. Since the poor are not in a position to approach the Hon'ble Court, the petitioners have decided to take up their cause."

A copy of the aforesaid writ petition was produced by the petitioners before this court during the course of hearing and the same has been taken on record.

The memo of the writ petition shows that the petitioner no.2 herein was also petitioner no.2 in the aforesaid writ petition before the Supreme Court.

The aforesaid writ petition was dismissed by the Supreme Court vide judgment and order dated 10.4.2015, which reads as under:

"Permission to appear and argue in person granted.

Heard Mr. S.N. Shukla appearing in person.

The writ petition is dismissed."

Now the petitioners have filed this writ petition bearing Writ Petition (PIL) No.3536(MB) of 2015, Satya Narain Shukla & anr.v. State of U.P. & ors. The petitioner no.1 herein is the General Secretary of Lok Prahri, which had filed the writ petition before the Supreme Court through him. The reliefs prayed in the writ petition before us are as under:

"For the reasons stated above it is most respectfully prayed that in the interest of justice to the sizeable Below Poverty Line (BPL) population of the state/country, as also for upholding the Constitution and safeguarding the future of democracy in the country, this Hon'ble Court may graciously be pleased to -

1. issue a writ order or direction in the nature of Mandamus to the respondents to-

(i) come out with a comprehensive concrete time-bound action plan for fulfilling by 2030 the promise in the Preamble of Constitution and mandate in the Directive Principles for eradication of poverty,

(ii) ensure that the number of persons living below the poverty line in the state of Uttar Pradesh is brought down to the level of national average by the end of the 13th Fifth Year Plan,

(iii) consider seriously and ensure prompt and effective action on the suggestion in para 54 of the writ petition in order to achieve the objectives in (i) and (ii) above.

2. constitute a high level committee to monitor and apprise this Hon'ble Court six monthly the action taken by the respondents on the directions in respect of 1 above.

3. grant any other relief which this Hon'ble Court deems fit and proper in the circumstances of the present case to meet the ends of justice."

In paragraph 54 of the writ petition referred in clause 1(iii) of the relief clause reads as under:

"54. That in view of the position stated above it is necessary that a comprehensive concrete time-bound action plan is prepared both at the Centre and State levels for fulfilling by 2030 the promise in the Preamble of Constitution and mandate in the Directive Principles for eradication of poverty. Special efforts are required in case of states like U.P. which have larger percentage of BPL population as compared to the national average. To achieve the desired results on both these issues the following unexceptionable suggestions need serious consideration and prompt effective action on the part of the respondents-

(1) Preparation of separate Five Year and Annual Sub-Plans for BPL People.

(2) Provide adequate funds for the implementation of the aforesaid plans.

(3) Set up a separate Department/Ministry for poverty alleviation for preparation of the aforesaid Plans and for getting these implemented in a time-bound manner.

(4) Ensure that the number of persons living below poverty line is brought down to the level of national average by the end of the 13th Fith Year Plan.

(5) Clearly spell out the income and other criteria for identifying persons/families below the poverty line in urban and rural areas and regularly update the same.

(6) Give wide publicity to these criteria so that the eligible persons are aware of their entitlement under the various schemes.

(7) Evolve a reliable and effective system of monitoring and evaluating the impact and outcome of various schemes for poverty reduction to ensure that the benefits of these schemes is not cornered by well off ineligible persons."

The writ petition before this court is a verbatim reproduction of the writ petition filed before the Supreme court under Article 32 except for a few paragraphs which have been added which do not materially change the nature of the case. A conjoint reading of the relief clause of the two writ petitions and para 1 and 2 thereof makes it evident that the reliefs claimed in this writ petition is substantially the same as claimed in the writ petition filed before the Supreme Court, except for minor difference in phraseology here and there. Relief no.1(i) claimed herein for coming out with "comprehensive concrete time-bound action plan for fulfilling by 2030 the promise in the Preamble of Constitution and mandate in the Directive Principles for eradication of poverty" was an issue involved in the writ petition filed before the Supreme Court also, as is evident from a reading of paragraph nos.1 and 2 of the said writ petition, quoted hereinabove. Paragraphs 1 and 2 of this writ petition are also verbatim similar to paragraphs 1 and 2 of the petition filed before the Supreme Court.

Paragraph 3 of this writ petition before us inter alia states " A similar writ petition under Article 32 was filed in the Apex court by lok prahari, of which the petitioners are also members, but the same was dismissed in limine saying "The writ petition is Dismissed" without indicating any reason for not entertaining the said petition." Thus, it is not in dispute that this writ petition is similar to the one filed before the supreme court and the same is also borne out from the records.

Now, the question is when the Supreme Court, which is the highest court of the land, has dismissed the earlier similar writ petition under Article 32 of the Constitution filed by the petitioners against the opposite parties based on the same cause, even if by a single line order, can the High Court entertain it under Article 226 of the constitution?

When confronted, Sri Shukla, appearing in person, relying upon paragraph 19 of the Constitution Bench decision in Daryao v. State of U.P., AIR 1961 SC 1457, contended that as the petition before the Supreme Court had been dismissed in limine without assigning any reason, therefore, it did not constitute a bar on the principle of res judicata for entertaining a subsequent writ petition under Article 226 of the Constitution.

When asked, "whether a second writ petition under Article 32 for the same relief would lie before the Supreme Court, based on the same reasoning" he fairly replied in the negative and also stated that the remedy would be by way of a review petition.

Though the reply of Sri Shukla is self-speaking and sufficiently answers the question framed by the court, yet in order to allay any doubts in this regard the same is being considered hereinafter.

Article 32 of the constitution confers a fundamental right to approach the Supreme Court in case of infringement of any of the fundamental rights contained in Part III of the Constitution and for the enforcement thereof. If the litigant is able to establish his fundamental right or violation thereof, then the writ would be issued by the Supreme Court as a matter of right. In this context reference may be made to the Constitution Bench decision in Daryao (supra) wherein their lordships have observed as under:

"6. ............. It will, however, be noticed that the observations made in both the cases are obiter, and, with respect, it would be difficult to treat them as a decision on the question that the issue of an appropriate writ tinder Art. 32 is a matter of discretion, and that even if the petitioner proves his fundamental rights and their unconstitutional infringement this Court nevertheless can refuse to issue an appropriate writ in his favour. Besides, the subsequent decision of this Court in Basheshar Nath v. Commissioner of Income-tax, Delhi and, Rajasthan, 1959 Sup. (1) S.C.R. 528: (AIR 1959 SC 149) tends to show that if a petitioner makes out a case of illegal contravention of his fundamental rights he may be entitled to claim an appropriate relief and a plea of waiver cannot be raised against his claim. It is true that the question of res judicata did not fall to be considered in that case but the tenor of all the judgments, which no doubt disclose a difference in approach, seems to emphasise the basic importance of the fundamental rights guaranteed by the Constitution and the effect of the decision appears to be that the citizens are ordinarily entitled to appropriate relief under Art. 32 once it is shown that their fundamental rights have been illegally or unconstitutionally violated. ........."

The High Court under Article 226 of the Constitution has also been vested with the same powers to issue writs for enforcement of fundamental rights contained in Part III of the Constitution. The power of the High Court to issue such writs is concurrent with that of the Supreme Court, as has also been held in Daryao (supra). Relevant extract of paragraph 15 thereof is being quoted hereinbelow:

"15. ........ The scope of the writs, orders or directions which the High Court can issue in appropriate cases under Article 226 is concurrent with the scope of similar writs, orders or directions which may be issued by this Court under Art. 32. The cause of action for the two applications would be the same. It is the assertion of the existence of a fundamental right and its illegal contravention in both cases and the relief claimed in both the cases is also of the same character. Article 226 confers jurisdiction on the High Court to entertain a suitable writ petition, whereas Art. 32 provides for moving this Court for a similar writ petition for the same purpose. Therefore, the argument that a petition under Art. 32 cannot be entertained by a High Court under Article 226 is without any substance; and so the plea that the judgment of the High Court cannot be treated as res judicata on the ground that it cannot entertain a petition under Art. 32 must be rejected.

The only distinction noted by the Supreme Court in the exercise of powers under Articles 226 and 32 of the Constitution is as under:

"16. It is, however, necessary to add that in exercising its jurisdiction under Art. 226 the High Court may sometimes refuse to issue an appropriate writ or order on the ground that the party applying for the writ is guilty of laches and in that sense the issue of a high prerogative writ may reasonably be treated as a matter of discretion. On the other hand, the right granted to a citizen to move this Court by appropriate proceedings under Art. 32(1) being itself a fundamental right this Court ordinarily may have to issue an appropriate writ or order provided it is shown that the petitioner has a fundamental right which has been illegally or unconstitutionally contravened. It is not unlikely that if a petition is filed even under Article 32 after a long lapse of time considerations may arise whether rights in favour of third parties which may have arisen in the meanwhile could be allowed to be affected, and in such a case the effect of laches on the part of the petitioner or of his acquiescence may have to be considered; but, ordinarily if a petitioner makes out a case for the issue of an appropriate writ or order he would be entitled to have such a writ or order under Art. 32 and that may be said to constitute a difference in the right conferred on a citizen to move the High Court under Art. 226 as distinct from the right conferred on him to move this Court. ............"

Dismissal of an S.L.P. in limine vis.-a-vis. dismissal of a writ petition stand on different footings. Reference may be made in this regard to the pronouncement of the Supreme Court in The Workmen of Cochin Port Trust v. The Board of Trustees of the Cochin Port Trust and anr., AIR 1978 Supreme Court 1283, wherein it considered the question as to whether dismissal of Special Leave Petition by the Supreme Court operated as a bar of res judicata in the entertainment of writ petition by the High Court, and in that context it drew a distinction between the proceedings in Special Leave Petition and writ proceedings and after considering Daryao's case (supra), in paragraphs 8 and 9 thereof it observed "a writ proceedings is a different proceeding.". Thereafter it went on to hold as under-

".......... What is, however, to be seen is whether from the order dismissing the special leave petition in limine it can be inferred that all the matters agitated in the said petition were either explicitly or implicitly decided against the respondent. Indisputably nothing was expressly decided. The effect of a non-speaking order of dismissal without anything more indicating the grounds or reasons of its dismissal must, by necessary implication, be taken to have decided that it was not a fit case where special leave should be granted. It may be due to several reasons. It may be one or more. It may also be that the merits of the award were taken into consideration and this Court felt that it did not require any interference. But since the order is not a speaking order, one finds it difficult to accept the argument put forward on behalf of the appellants that it must be deemed to have necessarily decided implicitly all the questions in relation to the merits of the award. A writ proceeding is a different proceeding. Whatever can be held to have been decided expressly, implicitly or even constructively while dismissing the special leave petition cannot be reopened. But the technical rule of res judicata, although a wholesome rule based upon public policy, cannot be stretched too far to bar the trial of identical issues in a separate proceeding merely on an uncertain assumption that the issues must have been decided. It is not safe to, extend the principle of res judicata to such an extent so as to found it on mere guess work. To illustrate our view point, we may take an example. Suppose a writ petition is filed in a High Court for grant of a writ of Certiorari to challenge some order or decision on several grounds. If the Writ Petition is dismissed after contest by a speaking order obviously it will operate as res judicata in any other proceeding, such as, of suit, Art. 32 or Art. 136 directed from the same order or decision. If the Writ Petition is dismissed by a speaking order either at the threshold or after contest, say, only on the ground of laches or the availability of an alternative remedy, then another remedy open in law either by way of suit or any other proceeding obviously will not be barred on the principle of res judicata. Of course, a second writ petition on the same cause of action either filed in the same High Court or in another will not be maintainable because the dismissal of one petition will operate as a bar in the entertainment of another writ petition. Similarly even if one writ petition is dismissed in limine by a non- speaking one word order 'dismissed', another writ petition would not be maintainable because even the one word order, as we have indicated above, must necessarily be taken to have decided impliedly that the case is not a fit one for exercise of the writ jurisdiction of the High Court. Another writ petition from the same order or decision will not lie. But the position is substantially different when a writ petition is dismissed either at the threshold or after contest without expressing any opinion on the merits of the matter, then no merit can be deemed to have been necessarily and impliedly decided and any other remedy of suit or other proceeding will not be barred on the principle of res judicata".

The last few lines of the above paragraph permits other remedies such as suits or other proceedings for enforcement of a legal right after dismissal of the writ petition at the threshold or after contest without expressing any opinion on the merits, but, not a writ petition, as, it is covered by the earlier and immediately preceding observations. Any other understanding would be incongruous. Reference may also be made in this regard to the dictum of the Supreme Court in Sarguja Transport Service Vs State Transport Appellate Tribunal (1987)1SCC5 (paragraph 8 and 9)wherein it considered the maintainability of a second writ petition before the High court under Article 226 after withdrawl of the first without liberty to file a fresh and after considering Daryao (Supra) it held that the second writ petition was not maintainable not because of the principle of res judicata as there was no decision in the earlier petition on merits but on grounds of public policy and principles analogous to order XXIII Rule 1CPC, however a suit or a writ petition before the Supreme court under Article 32 for enforcement of a Fundamental Right would not be barred as held in Daryao , but a second writ petition would be barred. Paragrph 8 and 9 of Sarguja (Supra) are as under:-

"8. ........... It is plain that when once a writ petition filed in a High Court is withdrawn by the petitioner himself 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. He may as stated in Daryao and Ors. v. The State of U.P. & Ors., [1962] 2 S.C.R. 575 in a case involving the question of enforcement of fundamental rights file a petition before the Supreme Court under Article 32 of the Constitution of India because in such a case there has been no decision on the merits by the High Court. .............

9. 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 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 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 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 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. ..........."

The last few lines of Cochin Trust (Supra) have to be understood accordingly.

There are only two forums available for enforcement of fundamental rights contained in Part III of the Constitution - one, before the Supreme Court under Article 32 of the Constitution, and the other, before the High Court under Article 226 of the Constitution. No suit or other proceeding lies for enforcement of Fundamental Rights before any other court.

Further, in paragraph 10 of Cochin Port Trust (Supra) after noticing paragraph 19 of Daryao's case (supra) it elucidated the matter further by holding -

"...........We have thought it proper to elucidate this aspect of the matter a bit further to indicate that dismissal of a writ petition in limine by a non-speaking order could certainly create a bar in the entertainment of another writ petition filed by the same party on the same cause of action."

This judgment has been rendered after considering Daryao's case,especially paragraph 19 thereof which has been relied upon by the petitioners herein.

The distinction between the proceedings of Special Leave Petition under Article 136 and a writ petition under Article 32 has also been noted by the Supreme Court in Indian Oil Corporation v. State of Bihar & ors., 1986(4) SCC 146, where also somewhat similar words as used in Cochin Port Trust case (supra) "Writ proceeding is wholly a different and distinct proceeding." have been used, therefore, the said judgment also does not help the cause of the petitioners, specially as the said case involves the dismissal of Special Leave Petition in limine, and not the dismissal of a writ petition under Article 32 of the Constitution. For the same reason the dictum of the Supreme Court in Arti Ray Chaudhary v. Union of India & ors., reported in AIR 1974 SC 532, relied upon by the petitioners, is not applicable.

In this context the decision of the Supreme Court reported in 1993(2) SCC 495, State of U.P. & anr. v. Labh Chand, wherein the issue of maintainability of a second writ petition after dismissal in limine of the first one on the same subject matter before the same High Court was considered and their Lordships observed as under:

"19. This is one of the two reasons on which the first ground urged in support of the appeal, is founded. This reason is not concerned with the discretionary power of the Judge or Judges of the High Court under Article 226 of the Constitution to entertain a second writ petition of a person, whose earlier Writ Petition was dismissed on the ground of non-exhaustion of alternate remedy but of such Judge or Judges having not followed the well-established salutary rule of judicial practice and procedure that an order of a single Judge Bench or of a larger Bench of the same High Court dismissing the writ petition either on the ground of laches or non-exhaustion of alternate remedy, as well, shall not be bye-passed by a Single Judge Bench or Judges of a larger Bench except in exercise of review or appellate powers possessed by it. In the case on hand, a Division Bench of the High Court of Allahabad dismissed the respondent's Writ Petition challenging the sustainability of the order of his compulsory retirement from the U.P. Government service, while exercising its discretionary jurisdiction under Article 226 of the Constitution in that it took the view that the respondent had the alternate remedy in the matter before the forum of U.P. Police Services Tribunal constituted under the Act. There cannot be any doubt that order of dismissal of the Writ Petition could have been reviewed by the same Division Bench, in exercise of the recognised power of review possessed by it. But, as a learned Single Judge constituting a Single-Judge Bench of the same court, who has, in the purported exercise of his jurisdiction under Article 226 of the Constitution bypassed the order of dismissal of the writ petition made by a Division Bench by entertaining a second writ petition filed by the respondent in respect of the subject-matter which was the subject-matter of earlier writ petition, the question is, whether the well-established salutary rule of judicial practice and procedure governing such matters permitted the learned Single Judge to bypass the order of the Division Bench on the excuse that High Court has jurisdiction under Article 226 of the Constitution to entertain a second writ petition since the earlier writ petition of the same person had been dismissed on the ground of non-availing of alternate remedy and not on merits.

20. When a Judge of Single Judge Bench of a High Court is required to entertain a second writ petition of a person on a matter, he cannot, as a matter of course, entertain such petition, if an earlier writ petition of the same person on the same matter had been dismissed already by another Single Judge Bench or a Division Bench of the same High Court, even if such dismissal was on the ground of laches or on the ground of non-availing of alternate remedy. Second writ petition cannot be, so entertained not because the learned Single Judge has no jurisdiction to entertain the same, but because entertaining of such a second writ petition would render the order of the same court dismissing the earlier writ petition redundant and nugatory, although not reviewed by it in exercise of the recognised power. Besides, if a learned Single Judge could entertain a second writ petition of a person respecting a matter on which his first writ petition was dismissed in limine by another learned Single Judge or a Division Bench of the same Court, it would encourage an unsuccessful writ petitioner to go on filing writ petition after writ petition in the same matter in the same High Court, and have it brought up for consideration before one Judge after another. Such a thing, if is allowed to happen, it could result in giving full scope and encouragement to an unscrupulous litigant to abuse the process of the High Court exercising its writ jurisdiction under Article 226 of the Constitution in that any order of any Bench of such court refusing to entertain a writ petition could be ignored by him with impunity and relief sought in the same matter by filing a fresh writ petition. This would only lead to introduction of disorder, confusion and chaos relating to exercise of writ jurisdiction by Judges of the High Court for there could be no finality for an order of the Court refusing to entertain a writ petition. It is why, the rule of judicial practice and procedure that a second writ petition shall not be entertained by the High Court on the subject-matter respecting which the first writ petition of the same person was dismissed by the same court even if the order of such dismissal was in limine, be it on the ground of laches or on the ground of non-exhaustion of alternate remedy, has come to be accepted and followed as salutary Rule in exercise of writ jurisdiction of Courts."

Based on the aforesaid, the Supreme Court disapproved the entertainment of a second writ petition by a learned Single Judge, when a Division Bench of the same Court had refused to entertain a writ petition on the same subject matter by the same respondent on the ground of non-exhaustion of alternative remedy.

On the same reasoning as referred in Labhchand (Supra), a second petition before the High Court after dismissal of earlier writ petition before Supreme Court will not be maintainable.

It is not out of place to mention that in the event of Dismissal of a writ petition under Article 226 of the constitution as withdrawn without liberty to file a fresh petition, a second writ petition on the same facts and cause is not maintainable irrespective of the principle of res judicata, and this bar is based on public policy. The legal position in this regard is very well settled. Reference may be made in this regard to the dictum of the Supreme Court in Sarguja Transport Services (Supra).It being so, a fortiori a second writ petition in the facts of the present case is also not maintainable irrespective of applicability or otherwise of the principle of res judicata.

In the light of the aforesaid, once the Supreme Court has declined to entertain the writ petition of the petitioners under Article 32 of the Constitution for enforcement of these very alleged fundamental rights, even though by a non-speaking order, but one which does not indicate that it dismissed the petition on any technicality, can the High Court exercising parallel jurisdiction, for the same purpose, entertain this writ petition under Article 226 of the Constitution, specially when no liberty was sought and none was granted by the Supreme Court for approaching the High Court under Article 226 of the Constitution. The answer has to be in the 'negative'. The order of the Supreme Court indicates that the petition was heard and thereafter it was dismissed. Once the Supreme Court has dismissed the writ petition under Article 32 of the Constitution, which itself is a fundamental right, as observed in Daryao (supra), for substantially the same reliefs and the same cause, even if by a one line order, obviously, it did not find infringement of any fundamental right otherwise the remedy being as a matter of right it would have entertained the petition, therefore, a second writ petition, that too before the High Court under Article 226 of the Constitution, will not be maintainable.

Reliance placed by the petitioners upon Daryao is misplaced for the reason in the said case the High Court had dismissed the writ petition under Article 226 of the Constitution in limine by a non-speaking order, thereafter a writ petition was filed before the Supreme Court under Article 32 of the Constitution and it was the maintainability of the latter which was in question. The remedy under Article 32 itself being a Fundamental Right and for enforcement of other fundamental rights it was held to be maintainable, as has also been held in Para 8 and 9 of Sarguja Transport Services (Supra) after considering Daryao (Supra), but a second writ petition under Article 226 was held to be not maintainable. The remedy under Article 226 is not a Fundamental Right. The factual position existing herein is just the opposite, here the Highest court of the land has dismissed the writ petition under Article 32 and now the petitioners have approached the High Court under Article 226 of the Constitution for the same relief based on the same cause against the same opposite parties. Therefore, the observations made in paragraph 19 Daryao (supra) of do not help the petitioners. Moreover, in para 10 of Cochin Port Trust (supra) the Supreme Court after considering paragraph 19 of Daryao (supra) which has been relied by the petitioner herein, has further explained the legal position and has held "that dismissal of a writ petition in limine by a non-speaking order could certainly create a bar in the entertainment of another writ petition filed by the same party on the same cause-of-action". This binding proposition clinches the issue involved herein, against the petitioner. Sarguja Transport Services (Supra) also endorses this point of view.

In the event of dismissal of a writ petition under Article 226 of the Constitution by a non-speaking order or for the reasons mentioned in Daryao (supra) a writ petition under Article 32 of the Constitution before the supreme Court may not be barred, specially if it is a writ of habeas corpus, as the remedy under Article 32 of the Constitution itself is a fundamental right, as has been held in Daryao (supra) and Sarguja (Supra), but vice-versa is not permissible. It would be against the principle of 'Finality of Orders' and Judicial Hirerachy.

In view of the above, the order dated 10.4.2015 passed by the Supreme Court has attained finality and this writ petition before the High Court under Article 226 of the Constitution is not maintainable. Therefore, the principle of "finality of orders" as also judicial propriety demands that this court should decline to entertain this writ petition. The remedy, if any, for the petitioners is to file a review application before the Supreme Court seeking a review of the order dated 10.4.2015, but not a writ petition before this court.

In this case while dismissing the writ petition of the petitioners under Article 32 the Supreme Court has not given any liberty to them to approach the High Court under Article 226 of the Constitution. Filing of this writ petition is an abuse of the process of the court. If such a course is allowed to be adopted, the finality of the order pronounced by the Supreme Court would be affected.

Without doubting the public spiritedness of the petitioners or their zeal to take up a public cause, they should bear in mind that the means to be adopted in fulfilling their objectives, howsoever laudable, have to be permissible in law. The present writ petition is thus not maintainable.

In view of the above, the writ petition is dismissed as not maintainable.

Order Date :- 29.5.2015

A.Nigam

(Rajan Roy,J.)