Gaddela Srinu, vs The State Of Andhra Pradesh
2021 Latest Caselaw 2525 AP

     IN THE HIGH COURT OF ANDHRA PRADESH : AMARAVATI


HON'BLE MR. JUSTICE ARUP KUMAR GOSWAMI, CHIEF JUSTICE
                                     &
            HON'BLE MR. JUSTICE NINALA JAYASURYA

                    WRIT APPEAL No.382 of 2021

                   (Taken up through video conferencing)

Gaddela Srinu S/o. G. Durga Rao,
Aged about 45 years, Occ: Agriculture,
R/o.D.No.5-21, Yepigunta Village,
T-Narasapuram Mandal, West Godavari District,
and another.
                                                        .. Appellants.
       Versus

The State of Andhra Pradesh (Revenue Department),
Represented by its Principal Secretary,
Velagapudi, Amaravati, Guntur District, and others.
                                                        ..Respondents.

Counsel for the appellants : Mr. G. Ramakrishna Prasad, for Mr. M.R.K. Chakravarthy

Counsel for respondent Nos.1 to 3 : Mr. G.L. Nageswara Rao, GP for Revenue

Counsel for respondent No.6 : Mr. J. M. Naidu

ORAL JUDGMENT

Dt: 22.07.2021

(per Arup Kumar Goswami, CJ)

Heard Mr. G. Ramakrishna Prasad, learned counsel appearing for

the appellants. Also heard Mr. J.M. Naidu, learned counsel appearing for

respondent No.6/writ petitioner.

2. This writ appeal is preferred against an interlocutory order dated

05.05.2021 passed by the learned single Judge in I.A.No.1 of 2021 in

W.P.No.9445 of 2021, directing the respondent Nos.1 to 5 herein not to

interfere with the possession and enjoyment of the land in an extent of HCJ & NJS,J

Ac.2.00 cents in R.S.No.500/1 of Epigunta Revenue Village,

T. Narasapuram Mandal, West Godavari District. The appellants are

respondent Nos.6 and 7 in the writ petition.

3. It is submitted by Mr. G. Ramakrishna Prasad, learned counsel

appearing for the appellants, that respondent No.6/writ petitioner had

earlier filed a writ petition, being W.P.No.8256 of 2021, on the same

cause of action and the said writ petition was dismissed as withdrawn by

an order dated 16.04.2021. It is pointed out by him that as would be

evident from the order dated 16.04.2021, which is available at page

No.12, no liberty was prayed for by respondent No.6/writ petitioner to file

a writ petition afresh on the same cause of action and accordingly, the

said writ petition was dismissed as withdrawn without granting any such

liberty. However, another writ petition, being W.P.No.9445 of 2021, came

to be filed in which the interim order, which is under assailment in the

present appeal, was passed.

4. Learned counsel has further submitted that in paragraph 14 of the

subsequent writ petition, it is stated that respondent No.6/writ petitioner

had not filed any writ, suit or proceedings for the same relief and another

averment was also made to the effect that W.P.No.8256 of 2021 was

withdrawn with liberty to file a fresh writ petition. Therefore, it is

submitted that respondent No.6/writ petitioner had suppressed the

material facts and the writ petition, in the attending facts and

circumstances, is not maintainable in law. He relies on a decision of the

Hon'ble Supreme Court in Sarguja Transport Service v. State

Transport Appellate Tribunal, M.P., reported in (1987) 1 SCC 5.

5. Mr. J.M. Naidu, learned counsel appearing for respondent No.6/writ

petitioner, on the other hand, submits that there is no suppression of HCJ & NJS,J

material facts and respondent No.6/writ petitioner was under the

impression that liberty was granted to file a fresh writ petition while

dismissing the earlier writ petition on withdrawal.

6. At the outset, it will be appropriate to take note of the prayer made

in W.P.No.8256 of 2021, which reads as follows:

"....to issue an appropriate writ order or direction more

particularly one in the nature of Writ of Mandamus declaring

the action of the Respondent No.3 in not online the details of

petitioner's land in RS.No.500/11 to an extent of Ac.2.00

cents situated at Epigunta Revenue Village, T.Narasapuram

Mandal, West Godavari District, duly showing boundaries in

the record and inaction of the respondent No.5 to provide the

protection to the petitioner and to his land by taking

appropriate action against the respondent No.6 and 7 as per

the orders of the 2nd Respondent in L.Dis.No.1494/2020/C,

dated 7.12.2020, is illegal, arbitrary, unjust, unconstitutional

and in violation of Articles 14, 21 and 300A of the

Constitution of India and consequently direct the Respondent

Nos.3 and 5 to protect the petitioner and his land in R.S.No.

500/11 to an extent of Ac. 2.00 cents situated at Epigunta

Revenue Village, T.Narasapuram Mandal, West Godavari

District, by taking appropriate action against the Respondent

No.6 and 7 as per the orders of the 2nd respondent in L.Dis

No.1494/2020/C, dated 7.12.2020."

7. The prayer made in the subsequent writ petition, W.P.No.9445 of

2021, reads as follows:

HCJ & NJS,J

"....to issue an appropriate Writ, Order or direction

more particularly one in the nature of Writ of Mandamus

declaring the action of the Respondent No.3 in not online the

details of Petitioner's Land to an extent of Ac. 2.00 in

R.S.No.500/11 situated at Epigunta Revenue Village,

T.Narasapuram Mandal, West Godavari District, duly showing

boundaries in the record and inaction of the respondent No.5

to provide the protection to the petitioner and to his land by

taking appropriate action against the respondent No.6 and 7

as per the orders of the 2nd Respondent in L.Dis.No.

1494/2020/C, dated 7.12.2020, is illegal, arbitrary, unjust,

unconstitutional and in violation of Articles 14, 21 and 300A

of the Constitution of India and consequently direct the

Respondents No.3 and 5 to protect the petitioner and his land

to an extent of Ac. 2.00 in R.S.No.500/11 situated at

Epigunta Revenue Village, T.Narasapuram Mandal, West

Godavari District, by taking appropriate action against the

Respondent No.6 and 7 as per the orders of the 2nd

Respondent in L.Dis No.1494/2020/C, dated 7.12.2020."

8. A perusal of the aforesaid prayers goes to show that both the

prayers are identical. It is on record that W.P.No.8256 of 2021 was

dismissed on withdrawal and without any liberty being granted to file a

fresh writ petition.

9. In Sarguja Transport Service (supra), the Hon'ble Supreme

Court had considered the maintainability of a fresh writ petition filed after

withdrawing a writ petition in respect of the same subject matter without HCJ & NJS,J

permission to institute a fresh petition. At paragraph 9 of the judgment, it

was held as under:

"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 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 HCJ & NJS,J

before it in respect of the same subject-matter since the

earlier writ petition had been withdrawn without permission to

file a fresh petition..."

10. A perusal of the above goes to show that the Hon'ble Supreme

Court had observed 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. While observing that 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 Hon'ble Supreme Court held that 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.

11. In view of the above, there being no permission granted for filing a

fresh writ petition while withdrawing the earlier petition filed for the same

subject matter, we are of the considered opinion that the interim order is

not called for.

12. Accordingly, the writ appeal is allowed setting aside the interim

order dated 05.05.2021 passed by the learned single Judge in I.A.No.1 of

2021 in W.P.No.9445 of 2021. No costs. Pending miscellaneous

applications, if any, shall stand closed.

ARUP KUMAR GOSWAMI, CJ                            NINALA JAYASURYA, J
                                                                              IBL