Kamal Galani vs The Assistant Commissioner Of ...
2017 Latest Caselaw 5896 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
              ORDINARY ORIGINAL CIVIL JURISDICTION
                       WRIT PETITION NO.1033 OF 2017
                                   WITH
                       WRIT PETITION NO.1258 OF 2017
                                   WITH
                       WRIT PETITION NO.1259 OF 2017
                                   WITH
                       WRIT PETITION NO.1260 OF 2017
                                   WITH
                       WRIT PETITION NO.1261 OF 2017


 Kamal Galani,
 Age-59, Occ: Business
 801, Gym. View,
 16th Road, Khar (West),
 Mumbai-400 052.                                     ....  Petitioner

          - Versus -

 1. The Assistant Commissioner of 
     Income-tax, 23(3), 104-A, 1st Floor,
     Matru Mandir, Tardeo Road,
     Mumbai-400 007.

 2. The Joint Commissioner of Income-tax
     - 23(3), 1st Floor, Matru Mandir,
     Tardeo Road, Mumbai-400 007.

 3. The Commissioner of Income-tax
     - 23, 1st Floor, Matru Mandir,
     Tardeo Road, Mumbai-400 007.

 4. The Union of India,
     Through the Secretary,
     Ministry of Finance, 

                                                                 Page 1 of 31


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     Department of Finance,
     Government of India,
     North Block,
     New Delhi - 110 001.                                        ....  Respondents


 Mr. J.D. Mistri, Senior Counsel with Mr. Madhur
 Agrawal i/by Mr. Atul K. Jasani for the Petitioner.
 Mr. Anil C. Singh, Additional Solicitor General with
 Mr. Abhay Ahuja, Mr. A. Narayanan, Ms Indrayani
 Deshmukh & Ms Geetika Gandhi for the Respondents.


                               CORAM: S.C. DHARMADHIKARI &
                                              SMT. VIBHA KANKANWADI, JJ.

DATE : AUGUST 14, 2017

ORAL ORDER ( Per Shri S.C. DHARMADHIKARI, J.

) :-

1. By these petitions under Article 226 of the

Constitution of India, the petitioner is seeking the following

reliefs:-

"(a) that this Hon'ble Court be pleased to issue a Writ of Certiorari or any other writ order or direction under Article 226 of the Constitution of India calling for the records of the case leading to the issue of the impugned notice, passing of the impugned order and issuing of the impugned penalty notice and after going through the same and examining the question of legality thereof quash, cancel and set aside the impugned notice dated 30th March, 2015 (Exhibit C), impugned order dated 19th August, 2015 (Exhibit M)

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and impugned penalty notice dated 24 th August, 2015 (Exhibit Q).

(b) that this Hon'ble Court may be pleased to issue a Writ of Mandamus or a Writ in the nature of Mandamus, or any other appropriate Writ, Order or Direction under Article 226 of the Constitution of India, ordering and directing the Respondents to withdraw the impugned notice dated 30th March, 2015 (Exhibit C), impugned order dated 19th August, 2015 (Exhibit M) and impugned penalty notice dated 24 th August, 2015 (Exhibit Q);"

2. Upon such petitions and on copies thereof being

served, an affidavit in reply in each of these petitions has been

filed on behalf of the respondents in which they have raised a

preliminary issue to the maintainability of these petitions. The

argument is that this very petitioner had filed a earlier petition

being Writ Petition No.2823 of 2015 on the same cause of action

and claiming identical reliefs, as are reproduced above. That

writ petition was heard for admission by this Court on two

occasions and reliance is placed on an order passed in that writ

petition and which is dated 21-12-2016. That order reads as

under:-

"On 30th November, 2016 when this Petition was heard, the learned Additional Solicitor General submitted that Petition should not be entertained by us in our writ

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jurisdiction under Article 226 of the Constitution of India. This for the reason that the Petition contains incorrect statements.

2 In particular, attention was drawn to paragraph 4(b) thereof to the effect "The Petitioner did not have any property in India and as a non-resident, as the Petitioner has no source of income in India, the Petitioner has not filed any return of income in India",. This, the learned Additional Solicitor General states is not correct and places reliance upon an Assessment Order dated 30 th July, 2004 which records statements on the Petitioner's behalf indicating that the Petitioner did have property in India during the period covered these Petitions.

3 On the above facts being pointed out, Mr. Mistri, learned Senior Counsel appearing for the Petitioner took time to take instructions from the Petitioner with regard to the correctness of the statement made by him in the Petition. The Petition was adjourned to 7 th December, 2016 and thereafter on 7th December, 2016 at the instance of the Petitioner, to today.

4 Today, Mr. Mistri, learned Senior Counsel appearing for the Petitioner, on instructions, states that the Petitioner at the relevant time, did have property in India. However, it is the contention of Mr. Mistri, learned Senior Counsel that the same would make no material difference for the purposes of this Petition being entertained. Prima facie, we are not convinced but would take a final view on the same only after hearing the Petitioner. Moreover, in case, Mr. Mistri, learned Senior Counsel is able to explain the apparently incorrect statement as not affecting the invocation of the extra ordinary remedy under Article 226 of the Constitution of India, then there are other issues which would be required to be considered for admission of the Petition. We are informed by Counsel for both the sides that the submission may take time.

          5        Considering   the   fact   that   this   Court   closes   for 






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vacation from 24th December, 2016, we may not be able to hear the parties fully before 24 th December, 2016, coupled with the likelihood of change in assignments, post vacation, it may not be advisable to hear the Petitions partly i.e. only on one issue. Therefore, it would be best that Petition be heard fully at the stage of admission by the Bench hearing Income Tax matters post vacation.

6 We, therefore, adjourn the hearing of this Petition th to 18 January, 2017 at a date convenient to both parties.

3. It is then claimed that the earlier petition was placed

on 17-2-2017 and noting the earlier order, this Court had heard

the petition for some time on 15-2-2017 but eventually on

17-2-2017 it passed the following order:-

"2. Thereafter the petition was heard for sometime on th 15 February, 2017 and then it was adjourned to today and shown as part heard.

3. Today Mr. Mistri, learned Senior Counsel appearing for the petitioner seeks to withdraw these petitions.

4. Petition's are allowed to be withdrawn.

5. Ad-interim orders, if any, stand vacated.

6. Petitions dismissed as withdrawn. No order as to costs."

4. Mr. Anil Singh, learned Additional Solicitor General,

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appearing for the respondents, would rely upon the first

affidavit in reply filed on behalf of the respondents in these

petitions on 23-6-2017 raising a preliminary objection. He

would submit that an additional affidavit in reply has been

tendered today by the respondents without prejudice to their

rights and contentions on the point of maintainability of these

writ petitions. Mr. Anil Singh would submit that he has been

instructed to invite an objection on the preliminary point,

particularly on the maintainability of these petitions.

5. The learned Additional Solicitor General would

submit that the earlier writ petitions were withdrawn simpliciter

without seeking any liberty to file fresh petitions with same

reliefs and on the same cause of action. The orders at pages 144

and 147 of the paper-books would indicate that the petitioner

argued the petitions for some time, took his chance and when

the Court was not inclined to grant any relief, withdrew the

petitions simpliciter. The order for withdrawal of the petitions is

allowed to be made without seeking any liberty to file fresh writ

petitions on the same cause of action. Such being the order of

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this Court, the learned Additional Solicitor General would

submit that these fresh petitions, having been filed on 12-4-2017

and 5-6-2017, be dismissed as not maintainable.

6. Mr. Singh has taken us through the memo of the

earlier writ petitions and the prayers, and the memo of the

present writ petitions and the prayers to submit that everything

therein is identical. The writ petitions are filed on the same

cause of action.

7. Mr. Singh also submits that except deleting one

paragraph from the earlier petitions about the petitioner having

no property in India, there is absolutely no change. In such

circumstances and relying upon the Judgments of the Hon'ble

Supreme Court rendered in the cases of Sarguja Transport

Service v. State Transport Appellate Tribunal, Gwalior and

others, reported in AIR 1987 SC 88 and Upadhyay & Co. v.

State of U.P. and others, reported in (1999) 1 SCC 81, it is

urged that the present petitions be dismissed.

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8. Mr. Mistri, learned Senior Counsel appearing on

behalf of the petitioner, in meeting this preliminary objection,

would submit that true it is that the earlier petitions were

withdrawn. Further true it is that there is no liberty sought to

file fresh writ petitions. However, it is the respondents' fault for

they alleged that the petitioner suppressed a material fact about

his status, particularly about his citizenship. He suppressed the

fact that he was an Indian resident, according to the

respondents. However, according to Mr. Mistri, the record

would indicate that despite prolonging the matter, seeking to

re-open the assessment and after a substantial period, it is

discovered that there is no suppression. There is no suppression

of the material fact which was sought to be highlighted in the

earlier round of litigation. If there is no such suppression and

that is evident from the statement made in para 10 of the

additional affidavit in reply tendered today, then, this Court

should not uphold a hyper-technical objection. Mr. Mistri would

rely upon the averments in the earlier petitions and the present

petitions about the status of the petitioner. Mr. Mistri submits

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that the allegation is that there was a misstatement about a

material fact in the earlier writ petitions and when it is

discovered now, there is no such misstatement on a material

fact, then, the effect of the orders passed in the earlier petitions

should not influence the maintainability of the present writ

petitions.

9. Mr. Mistri would submit that in the later Judgments

of the Hon'ble Supreme Court, the Hon'ble Supreme Court has

confined and restricted the applicability of the doctrine in

Sarguja Transport Service (supra) to cases, firstly, of the

nature which are serious, namely, suppression of material fact

and secondly, involving Bench hunting tactics. Mr. Mistri would

elaborate this contention by submitting that Sarguja Transport's

principle is applied when a petitioner argues a petition before a

Bench of the High Court, takes his chance, finds it inconvenient

or not convenient to argue the case any further, applies for

withdrawal and such petition is dismissed as withdrawn, it is

then a second petition at the instance of such a petitioner on the

same cause of action and claiming identical relief, was held to

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be not maintainable. We should not, according to Mr. Mistri,

extend the Sarguja Transport's principle to the facts and

circumstances of the present case. Consequently, he would

submit that the writ petitions be entertained and the preliminary

objection be overruled.

10. With the able assistance of the learned Senior

Counsel appearing for both sides, we have perused the petitions.

A copy of one of the earlier writ petitions filed was handed in by

the learned Additional Solicitor General. It is not in dispute that

the very petitioner who is before this Court in the present

petitions was the petitioner in the earlier round. Mr. Kamal

Galani had impleaded the same parties as party-respondents. In

para 1 of the earlier petition, he had stated that he is an

individual and is a citizen of India. In memo of the earlier

petition, he clarified, that he has challenged notice dated

30-3-2015 issued by the Assistant Commissioner of Income-tax

at Mumbai under Section 148 of the Income Tax Act, 1961 (for

short, "the I.T. Act") and order dated 19-8-2015 passed by that

very respondent, rejecting the objections of the petitioner

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challenging the validity of the reassessment proceedings for the

Assessment Year 2002-03, and notice dated 24-8-2015 issued by

respondent No.1 to that petition under Section 274 of the I.T.

Act seeking to levy penalty under Section 271(1)(b) of the I.T.

Act.

11. The same facts and circumstances were narrated.

12. The memo of the present petitions would indicate

that paragraphs from the memo of the earlier petitions are

reproduced. There may have been a statement here or there

about the petitioner's status and citizenship, but the fact remains

that the entire memo reveals a challenge to that very notices and

order, namely, 30-3-2015, 19-8-2015 and 24-8-2015.

13. It is common ground that the earlier writ petitions

were heard by this Court on several occasions. When Writ

Petition No.2823 of 2015 was heard on 21-12-2016, the learned

Additional Solicitor General pointed out that the petition should

not be entertained for it contains incorrect statements. Thus,

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incorrect statements were referred to and extensively in the

order passed on 21-12-2016. When the order was passed on

21-12-2016, the Court noted that the petitioner is making an

attempt to satisfy it that there is no suppression of any material

fact. However, the hearing of the earlier writ petition was

adjourned and when it was placed on 15-2-2017, it was argued

and was treated as a part-heard case. When it was placed again

on 17-2-2017, the above reproduced order came to be passed.

14. At this stage, one must notice the Judgment in the

case of Sarguja Transport Service (supra), which is heavily relied

upon by the Additional Solicitor General. The appellant before

the Hon'ble Supreme Court, Sarguja Transport Service, alleged

that on the expiry of the period of permit to run a stage carriage,

issued under the Motor Vehicles Act, 1939 in favour of one Janta

Transport Co-operative Society, Sarguja and some others filed

applications for grant of the said permit in their favour. The

earlier licencee/permit holder, Janta Transport Co-operative

Society, also made an application for renewal of the permit in its

favour. The application for renewal filed by Janta Transport

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Co-operative Society was rejected by the Regional Transport

Authority on the ground that it was barred by time. On a

consideration of the relative merits of the other applicants,

namely, Sarguja and others, the Regional Transport Authority

granted the permit in favour of Sarguja. That order was

challenged in appeal by one M/s. Ali Ahmed & Sons, the third

respondent before the Supreme Court, who was also an

applicant for the said permit before the State Transport

Appellate Tribunal. The other unsuccessful applicants also filed

separate appeals questioning the grant in favour of Sarguja

Transport. All these appeals were taken together and heard

extensively and on 19-9-1985 the Tribunal set aside the order

granting the permit in favour of Sarguja Transport on two

grounds. It granted permit in favour of M/s. Ali Ahmed & Sons.

Aggrieved by that order of the Tribunal, Miscellaneous Petition

No.2945 of 1985 was filed in the High Court of Madhya Pradesh

at Jabalpur, invoking Articles 226 and 227 of the Constitution of

India. That petition was taken up for hearing on 4-10-1985. On

that day, the High Court passed an order recording the

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statement of seeking of leave by the petitioner to withdraw the

petition. Leave was granted and the petition was dismissed as

withdrawn. Later on another writ petition was filed before the

High Court being Miscellaneous Petition No.188 of 1986. That

came up for admission/hearing on 17-1-1986. The High Court

passed the following order:-

"Shri P.R. Bhave for the petitioner heard on admission.

This writ petition is directed against the order of the State Transport Appellate Tribunal setting aside the grant in favour of the petitioner, and instead giving the permit to the respondent No.3. The petitioner earlier filed writ petition No.M.P.No.2945/85 against the impugned order which was withdrawn on 4-10-1985. No second writ petition lies against the same order. The earlier petition was not withdrawn with permission to file a fresh petition. Besides, we do not find any merit in this petition. The Appellate Tribunal has granted the permit to the respondent No.3 as he has been found superior to the petitioner. Besides, he being a practising lawyer could not be doing the transport business. Similar petition of other operators has already been dismissed by this Court.

Accordingly, the petition is dismissed summarily."

15. Aggrieved by this order of the High Court dismissing

the writ petition at the stage of admission, Sarguja Transport

filed a Special Leave Petition in the Hon'ble Supreme Court. The

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main contention was that the High Court was in error in

rejecting the writ petition out of which the cases arises, on the

ground that the petitioner had withdrawn the earlier writ

petition without permission of the High Court to file a fresh

petition. The argument canvassed precisely was that the earlier

petition was not decided on merits but simpliciter withdrawn.

That would not constitute a bar to the maintainability of the

second/subsequent writ petition. Pertinently, the cause of action

was identical, so also reliefs and the parties. The precise

argument before the Hon'ble Supreme Court was that Articles

226 and 227 find a place in the Constitution of India. That is a

remedy which is extra-ordinary, equitable and discretionary, but

vesting in the High Court for rendering complete and substantial

justice. That is not comparable to the remedy of a suit which can

be brought in the Competent Civil Court. If that is withdrawn,

the consequences enshrined in Order XXIII, Rule 1 of the Code

of Civil Procedure, 1908 (for short, "the CPC") coupled with

Section 11 of the CPC would be visited on the

appellant/plaintiff. Meaning thereby, a suit being withdrawn,

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without liberty to file a fresh suit on the same cause of action,

would result in the dismissal of the subsequent suit as not

maintainable. That is in consonance with the rule and principle

of res judicata. While in that regard Section 11 was relied upon,

the argument was that this should be confined and restricted to

a suit and governed by the CPC. The procedural, so also the

substantive provisions in CPC would not govern the disposal of a

writ petition under Article 226 of the Constitution of India.

16. It is that argument which is extensively dealt with in

Sarguja Transport, and in paras 7, 8 and 9, the Hon'ble Supreme

Court held thus:-

"7. The Code as it now stands thus makes a distinction between 'abandonment' of a suit and 'withdrawal' from a suit with permission to file a fresh suit. It provides that where the plaintiff abandons a suit or withdraws from a suit without the permission referred to in sub-rule (3) of R. 1 of O. XXIII of the Code, he shall be precluded from instituting any fresh suit in respect of such subject-

matter or such part of the claim. The principle underlying R. 1 of O. 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 the same subject-matter again after abandoning the earlier suit or by withdrawing it without the permission of the Court to file fresh suit. Invito benificium non datur. The law

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confers upon a man no rights or benefits which he does not desire. Whoever waives, abandons or disclaims a right will loose 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 R. 1 of O. 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 suit or 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 R. 1 of O. 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.

8. The question for our consideration is whether it would or would not advance the cause of justice if the principle underlying R. 1 of O. XXIII of the Code is adopted in respect of writ petitions filed under Articles 226/227 of the Constitution also. 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

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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. 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 v. State of U.P., (1962) SCR 574 : (AIR 1961 SC 1457) in a case involving the question of enforcement of fundamental rights file a petition before the Supreme Court under Art. 32 of the Constitution of India because in such a case there has been no decision on the merits by the High Court. The relevant observation of this Court in Daryao's case (supra) is to be found at page 593 and it is as follows:

"If the petition is dismissed as withdrawn it cannot be a bar to a subsequent petition under Art. 32, because in such a case there has been no decision on the merits by the Court. We wish to make it clear that the conclusions thus reached by us are confined only to the point of res judicata which has been argued as a preliminary issue in these writ petitions and no other."

9. The point for consideration is whether a petitioner after withdrawing a writ petition filed by him in the High Court under Art. 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 R. 1 of O. 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

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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 Art. 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 Art. 32 of the Constitution of India since such withdrawal does not amount to res judicata, the remedy under Art. 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 Art. 21 of the Constitution since such a case stands on a different footing altogether. We, however, leave this question open."

17. The Hon'ble Supreme Court had elevated the issue

and considered it on the touchstone of public policy. It has not

rested its conclusion by merely saying or holding that this is a

technical rule and should not, therefore, result in injustice or

miscarriage of justice. It did not hold that this rule would apply

only to such a litigant who abuses the process of the Court by

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instituting suits again and again on the same cause of action,

without any reason. The law insists that he should obtain the

permission of the Court to file a fresh proceeding and that is

how it held that 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 CPC. It is in these

circumstances that the rule was applied also to writ petitions

under Articles 226 and 227 of the Constitution of India to hold

that the second writ petition was not maintainable and rightly

dismissed.

18. This very Judgment was followed in the case of

Upadhyay & Co. (supra) and the principle was extended

because the petitioner before the Hon'ble Supreme Court,

Upadhyay & Co., was allowed to collect the toll at specified rates

for a period of one year at Shastri Bridge at Allahabad, running

across River Ganga. For a succeeding period of three years, the

petitioner competed with other bidders in a public auction and

when his bid was not accepted by the authorities, he filed Writ

Petition No.32974 of 1991 before the Allahabad High Court and

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got an interim order by which he was permitted to continue to

collect toll charges from vehicles passing over the bridge. By a

Notification issued by the Government of India on 19-2-1992,

the rates of toll were raised. That is how another writ petition

was filed taking advantage of the enhanced rates being Writ

Petition No.22439 of 1992 so as to enable the collection of toll

at the revised rates. That petition was placed before a learned

single Judge of the Allahabad High Court who passed the order

quoted in para 3 of the Judgment of the Hon'ble Supreme Court.

That order remained alive for a period of less than two years

until the Hon'ble Supreme Court interfered with it and as noted

in para 4.

19. Undaunted by the order of the Hon'ble Supreme

Court, a new writ petition was filed in the Allahabad High Court

by the very petitioner Upadhyay in which, on 23-3-1997, a

Division Bench passed the order quoted in para 5. The State of

Uttar Pradesh challenged that order by a Special Leave Petition

in the Supreme Court and when it was pending, another

Division Bench of the High Court vacated the earlier order dated

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23-3-1997. When the said development was brought to the

notice of the Hon'ble Court, the Special Leave Petition came to

be disposed of. Then the petitioner being aware of the said order

of the Hon'ble Supreme Court adopted another strategy by

reporting to the High Court that he was not pressing his earlier

petition of 1991. The Division Bench before which that writ

petition was placed was alerted on account of several

intervening circumstances. It is in these circumstances that the

petitioner Upadhyay & Co. was directed to deposit a sum of

Rs.2,07,63,556/- by the Commissioner of Allahabad Division on

1-6-1996 pursuant to the order of the Division Bench dated

3-5-1996 in Writ Petition No.32974 of 1991.

20. It is in these circumstances that the petitioner filed a

writ petition challenging the order dated 1-6-1996 being Writ

Petition No.19593 of 1996 in the Allahabad High Court. When

that petition was pending, the petitioner also filed a Special

Leave Petition challenging the order of the Allahabad High

Court dated 3-5-1996, which was passed in its 1991 petition.

Once the above events were noted by the Hon'ble Supreme

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Court, the Hon'ble Supreme Court found that the very order of

3-5-1996 cannot be challenged over again by the very writ

petitioner because it withdrew the Special Leave Petition which

had been filed earlier challenging the same order. That is how

the principle in Sarguja Transport (supra) was extended and the

Additional Solicitor General appearing before us is right in

relying upon paras 9, 11, 12 and 13 of the Judgment in

Upadhyay's case (supra). In para 15, the Hon'ble Supreme Court

once again emphasised the rule of public policy.

21. Mr. Mistri has relied upon two Judgments of the

Hon'ble Supreme Court, the first in the case of Arunima Baruah

v. Union of India and others, reported in (2007) 6 SCC 120

and the other in Sarva Shramik Sanghatana (KV), Mumbai v.

State of Maharashtra and others, reported in (2008) 1 SCC

494.

22. In the first Judgment in the case of Arunima Baruah

(supra), the Hon'ble Supreme Court was considering a peculiar

situation. The appellant before the Supreme Court filed a suit in

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the District Court and moved an application for grant of

injunction therein. On such an application, the trial Court issued

only a notice to the defendant but did not grant injunction. The

appellant before the Supreme Court/plaintiff in that suit filed a

writ petition in the High Court on 10-4-2001. The suit was filed

on 28-3-2001 and the application for interim injunction was

filed on 9-4-2001. However, the pendency of the suit was not

disclosed in the writ petition. Before the writ petition came up

for preliminary hearing, the appellant/plaintiff filed an

application in the suit for withdrawal of the same. That

application was filed on 12-4-2001 but on account of Lawyers

strike, it could not be moved. In the meanwhile, the writ petition

came up for preliminary hearing, notice was issued. In the

meanwhile, the trial Court took up the application for

withdrawal of the suit and allowed the withdrawal on

30-4-2001. A learned single Judge of the Delhi High Court,

however, dismissed the writ petition on the ground of

suppression of material facts. The intra-court appeal was also

dismissed on the same ground.

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23. That is why the appellant approached the Supreme

Court and urged that as on the date of the hearing of the writ

petition, the suit already stood withdrawn and in such

circumstances the writ petition could not have been dismissed

on the ground of availability of alternate remedy. It is in this

context that all the observations relied upon by Mr. Mistri have

been made. We cannot forget this context and the background.

Secondly, existence of an alternate remedy by itself and without

anything more may not be a relevant factor as the Hon'ble

Supreme Court holds but additionally even if that remedy is

existing, efficacious, still, it is the discretion of the High Court to

entertain a writ petition despite the existence of an alternate,

equally efficacious remedy. It is a rule of caution and prudence

rather than an absolute bar for entertainment of a writ petition.

Similarly, when there is no suppression of material fact as was

found in that case, then, the judicial review cannot be denied.

24. The fact situation before us is not identical. It is not

that earlier a suit was filed and thereafter a writ petition and

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when the writ petition was taken up, the suit was withdrawn.

Therefore, the issue of alternate remedy would not be relevant.

The situation before us is completely different. Hence, the

Judgment in Arunima Baruah would not be of any assistance to

the petitioner.

25. In the second Judgment in the case of Sarva

Shramik Sanghatana (supra), there as well, we should note the

facts. The Century Industries Textiles Limited, a company before

the Hon'ble Supreme Court, third respondent, had entered into

certain agreement with its recognised Union and to reduce the

work force. There was a scheme of voluntary retirement offered.

The scheme was improved upon after discussion and

negotiations. After the manufacturing activities came to an end

in the textile mill, the company made an application under

Section 25-O of the Industrial Disputes Act, 1947 seeking

permission for closure. That application was dated 13-2-2007.

Before that application could be decided, the company received

a letter from the Deputy Commissioner of Labour, Mumbai,

which stated that the Hon'ble Minister for Labour, Government

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of Maharashtra has convened a meeting so that the issue could

be discussed. The company gave its willingness but pointed out

that its application under Section 25-O(1) is pending and it is to

be decided within sixty days, failing which it is deemed to have

been allowed. The application was made on 13-2-2007 and the

sixty days would shortly expire. That is why in order to create a

conducive atmosphere for discussion, the respondent-company

withdrew this application but reserved its right to move a fresh

application under Section 25-O, as and when necessary. That is

how the withdrawal was allowed by the Commissioner of

Labour on 12-4-2007. The company then took a stand that it

was interested bona fide in finding an amicable solution but even

after the meeting, as above, such a solution could not be found.

That is how the fresh application under Section 25-O(1) was

filed seeking permission of closure and this application was

moved on 11-5-2007.

26. It is in this context that the challenge raised by the

workmen to the maintainability of the second closure

application was decided by this Court. The writ petition was

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filed in the Bombay High Court by the workmen praying that the

Deputy Commissioner of Labour should be directed not to take

any further proceedings in relation to the second/fresh

application for closure. However, that writ petition was

dismissed. Hence, the Special Leave Petition.

27. It is in this context that the argument of the

workmen/Union and relying upon Sarguja Transport (supra)

was considered by the Supreme Court. Pertinently, Sarguja

Transport's was a case of a writ petition filed in the High Court,

withdrawn unconditionally and without liberty and thereafter a

second writ petition in the High Court on the same cause of

action. The Hon'ble Supreme Court in Sarva Shramik

Sanghatana (supra) refused to extend the principle therein to

the maintainability of the second closure application. Thereafter,

the Hon'ble Supreme Court found and relying upon the

observations in paras 8 and 9 of Sarguja Transport reproduced

above, that Bench hunting should not be permitted. However, in

para 13, the Hon'ble Supreme Court again emphasised that

there is a malpractice prevalent and which is to be discouraged

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and that was discouraged by Sarguja Transport. However, all the

observations in the subsequent paragraphs are to emphasise that

the principle in Sarguja Transport's case cannot be applied as a

formula and in every case. We have, therefore, no hesitation in

agreeing with Mr. Mistri that Sarva Shramik Sanghatana (supra)

would denote that Sarguja Transport's principle cannot have

absolute application and to every case irrespective of the facts

and circumstances therein. However, when we find before us

from the above reproduced order of this Court in the present

petitioner's earlier petitions and the subsequent withdrawal

thereof without any liberty that this petitioner has also indulged

in Bench hunting tactics, then, we would be failing in our duty if

we do not apply Sarguja Transport's principle to the present

facts and circumstances. We have clearly noted the observations

of this Court and which point towards an abuse of this Court's

jurisdiction. The Court was persuaded to go on with the matter

despite the objection raised by the respondents about the status

of the petitioner. The petitioner despite noticing this position

insisted on arguing the writ petition and argued it. After a

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preliminary hearing, on finding that it is not possible to get over

the objection raised and the allegation of suppression of a

material fact, the petitioner withdrew the writ petition, but

without seeking any liberty to file a fresh petition on the same

cause of action. We would be acting contrary to judicial

discipline, if we entertain a second writ petition on the same

cause of action but with a marginal improvement, as pointed

out. This is not a case where substantial justice demands that we

overlook the point of maintainability. This is a clear case where

knowing the state of law and being aware of the legal position, a

decision was taken to withdraw the writ petition without

seeking any liberty, as above. In the circumstances, the bar, as

enacted by the Hon'ble Supreme Court and which is founded on

public policy, is clearly attracted. We do not think that the

second writ petition can be entertained.

28. As a result of the above discussion, we uphold the

preliminary objection of the learned Additional Solicitor General

and dismiss these writ petitions.

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29. Needless to state that disposal of these writ petitions

does not mean the Court has at any time expressed any opinion

on the merits of the controversy, including the contentions

which can be raised and are permitted to be raised in law before

the Assessing Officer and in all further forums.

(SMT. VIBHA KANKANWADI, J.) (S.C. DHARMADHIKARI, J.)