Allahabad High Court
Pradeep Kumar Dwivedi vs Union Of India And 5 Others on 29 March, 2019
Bench: Sudhir Agarwal, Rajendra Kumar-Iv
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No. - 34
Case :- PUBLIC INTEREST LITIGATION (PIL) No. - 58596 of 2017
Petitioner :- Pradeep Kumar Dwivedi
Respondent :- Union Of India And 5 Others
Counsel for Petitioner :- In Person
Counsel for Respondent :- A.S.G.I.,Ajeet Kumar Singh,Jayant Prakash Singh,Neeraj Tripathi,Vinod Kumar Shukla
Hon'ble Sudhir Agarwal,J.
Hon'ble Rajendra Kumar-IV,J.
1. Heard petitioner-Pradeep Kumar Dwivedi, in person, and perused the record.
2. Petitioner, challenging appointment of Respondent-6 earlier came to this Court in Public Interest Litigation No. 55547 of 2017 which was dismissed as withdrawn vide order dated 22.11.2017 as under:
"The petitioner in person prays for withdrawal of the writ petition with liberty to take appropriate remedy for redressal of his grievance. Petition is accordingly disposed of, as withdrawn, with liberty as prayed."
3. Petitioner did not seek any liberty to file a fresh writ petition but made a statement that he may be allowed to pursue appropriate remedy for redressal of his grievance. Appropriate remedy in respect of decision of University is by invoking jurisdiction of Chancellor under Section 10 of University of Allahabad Act, 2005. Since earlier writ petition was not dismissed as withdrawn with liberty to file second writ petition, this writ petition for the same cause of action is not maintainable. The law in this regard has been settled by Apex Court in Sarguja Transport Service v. S.T.A.T., (1987) 1 SCC 5. In paragraph 9 of judgment, apex Court held as under :-
"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 case AIR 1961 SC 1457 : (1962) 1 SCR 574 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. 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 rignt guaranteed under Article 21 of the Constitution since such a case stands on a different footing altogether. We, however leave this question open."
4. In Mahendra and others v. State of Uttaranchal and another, (2007) 10 SCC 158, Court while considering the said issue issued guidelines to the High Court to make provision in the relevant rules. In para 9 of judgment, Court held as under:-
"9. Before we part with the case, it has to be noted that several instances have come to our notice that several writ petitions of similar nature are being filed without disclosing that earlier a petition had been filed. It would be therefore appropriate for the High Courts to make provision in the relevant rules that in every petition it shall be clearly stated as to whether any earlier petition had been filed and/or is pending in respect of the same cause of action. It shall also be indicated as to what was the result of the earlier petition. If this procedure is followed, the confusion of the kind which has surfaced in this case can be ruled out."
5. Similar controversy has also been decided by Supreme Court in Manubhai J. Patel v. Bank of Baroda, 2000 (10) SCC 253; Union of India v. Ranbir Singh Rathaur, 2006 (11) SCC 696; and, Ishwar Dutt v. Land Acquisition Collector, AIR 2005 SC 3165.
6. Considering the proposition of law propounded by Apex Court in aforesaid cases, we hold that present writ petition filed by petitioner is not maintainable. Dismissed accordingly.
Order Date :- 29.03.2019
AK
