Delhi High Court
M/S Shreeyans Educational ... vs Delhi Development Authroity & Ors on 24 August, 2016
$~32
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 7456/2016 & C.M.No.30654/2016
M/S SHREEYANS EDUCATIONAL SOCIETY ..... Petitioner
Through Mr.Saurabh Kirpal with Mr.Karan
Bharihoke, Mr.Ashish Baka and
Mr.Wattan Sharma, Advocates.
versus
DELHI DEVELOPMENT AUTHROITY & ORS ..... Respondents
Through Ms.Mrinalini Sen, Advocate for R-1.
Ms.Meenakshi Midha, Advocate for
R-2 & 3.
% Date of Decision : 24th August, 2016
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
JUDGMENT
MANMOHAN, J: (Oral)
1. Present writ petition has been filed with the following prayers:-
a) an appropriate writ of Mandamus or any other writ/order or
directions praying for issuance of appropriate writ in the nature
thereof to restrain the respondent DDA, from interfering with and
obstructing, the administration of justice and to comply with the
directions contained in the orders passed by this Hon'ble Court,
04.05.2006 in WP(C) No.15196/2004 and dated 15.01.2014 in
LPA No.1670-1671/2006; and
b) an appropriate writ/order or directions praying for issuance of
appropriate writ in the nature of Mandamus, directing the
Respondents to restore the sponsorship of the Petitioner for setting
up the school in Vasant Kunj, with all consequential relief;
c) issue a writ of prohibition restraining the Respondent No.2 and
3 from cancelling/withdrawing the extension of the Essentiality
Certificate granted to the petitioner vide order of the respondents
dated 10.06.2004 and for quashing of the order, if any, passed for
withdrawing/cancellation of the extension of the Essentiality
Certificate;
d) A writ of mandamus commanding the respondent, DDA to allot
the land to the petitioner to set up a middle school in Zone 20;
e) Any other writ, order or direction as this Hon'ble Court may
deem fit in the nature and circumstances of the case and in the
interest of justice.
2. Petitioner's initial writ petition being W.P.(C) No.15169/2004
was disposed of with a mandamus issued to the respondent/DDA to
process the petitioner's application for allotment of land.
3. While the respondent/DDA accepted the judgment of the
learned Single Judge, the Govt. of NCT of Delhi filed an LPA
No.1670-71/2006, which was disposed of on 15th January, 2014
wherein it was clarified that in case the direction given by the learned
Single Judge has not been complied with, in view of the pendency of
the appeal, the appellants shall comply with the same within eight
weeks.
4. In fact during the pendency of the appeal, the Deputy Director
(IL), DDA had disposed of the petitioner's application for allotment of
land vide order dated 23rd August, 2006. In the said order, the
respondent/DDA had observed that no right in favour of the petitioner
had ever crystallized as no demand letter had been issued to it.
5. It was also pointed out that as the mode of allotment of land has
since been changed to auction, the petitioner's application could not be
allowed.
6. Petitioner challenged the said rejection by way of separate writ
petition being W.P.(C) No.18530/2006, which was dismissed as
withdrawn on 15th September, 2014. The order disposing of the
petitioner's W.P.(C) No.18530/2006 is reproduced hereinbelow:-
"1. After brief submissions, the learned senior counsel for the
petitioner states that she may be permitted to withdraw the
writ petition. The learned counsel for the respondent does not
have any objection to the same.
2. In view of the statement made by the learned senior
counsel, the writ is dismissed as withdrawn.
3. Dasti".
7. Today, Mr. Saurabh Kirpal, learned counsel for the petitioner
submits that in view of the statement of learned counsel for DDA
recorded by the learned Single Judge, the petitioner is eligible for
allotment of Nazul land. In support of his contention, he relies upon
para 22 of the judgment of the learned Single Judge in W.P.(C)
No.15169/2004.
8. At this stage, learned counsel for the respondent/DDA submits
that the present writ petition is not maintainable in view of the
withdrawal of W.P.(C) No.18530/2006. Learned counsel for the
respondent/DDA points out that in the said writ petition, the order
dated 23rd August, 2006 had been impugned, by virtue of which
petitioner's application for allotment of land, had been rejected in
pursuance to the directions given by the learned Single Judge in
W.P.(C) No.15169/2004.
9. In rejoinder, learned counsel for the petitioner states that in
view of the subsequent disposal of LPA No.1670-71/2006 vide
judgment and order dated 15th January, 2014, it was obligatory on the
respondent/DDA to have passed a fresh order.
10. Mr.Kirpal also states that the order dated 23rd August, 2006
passed by DDA is not in consonance with the directions given by the
learned Single Judge vide judgment and order dated 4th May, 2006.
11. Having heard learned counsel for the parties, this Court is of the
opinion that the respondent/DDA had accepted the judgment of the
learned Single Judge in W.P.(C) No.15169/2004 and had thereafter
processed the petitioner's application for allotment of land in
accordance with the mandate given in the order dated 4th May, 2006.
12. Only GNCTD had filed an appeal challenging the order of the
learned Single Judge. Even the Division Bench vide its judgment and
order dated 15th January, 2014 had clarified that in case the directions
of the learned Single Judge had not been complied with, in view of the
pendency of the appeal, the appellants shall comply with the same
within eight weeks.
13. Since in the present case, the order of the learned Single Judge
had already been complied with by the respondent/DDA by passing an
order dated 23rd August, 2006 and the challenge to the said order was
withdrawn by withdrawing W.P.(C) No.18530/2006, this Court is of
the view that the present petition is barred by the principle of
constructive res judicata. The Supreme Court in Sarguja Transport
Services Vs. State Transport Appellate Tribunal, Gwalior and others,
(1987) 1 SCC 5 has 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 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 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 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 since such
withdrawal does not amount to res judicata, the remedy
under Art. 226 of the Constitution 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....."
14. In view thereof, present writ petition and application are
dismissed as barred by constructive res judicata.
MANMOHAN, J
AUGUST 24, 2016
KA
