Gauhati High Court
Gunajit Nath vs The State Of Assam And 3 Ors on 12 August, 2024
Author: Suman Shyam
Bench: Suman Shyam
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GAHC010115812024
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/207/2024
GUNAJIT NATH
S/O LATE JOGENDRA NATH, RESIDENT OF GALIAHATI COLLEG ROAD,
BARPETA, ASSAM 781301
VERSUS
THE STATE OF ASSAM AND 3 ORS
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM, PUBLIC WORKS (ROAD) DEPARTMENT DISPUR GUWAHATI
ASSAM 781006
2:THE SECRETARY TO THE GOVT. OF ASSAM
PUBLIC WORKS(ROAD) DEPARTMENT
DISPUR
GUWAHATI 781006
3:THE CHIEF ENGINEER
PUBLIC WORKS DEPARTMENT (BORDER ROAD) CHANDMARI GUWAHATI
ASSAM 781003
4:THE EXECUTIVE ENGINEER
PUBLIC WORKS (ROADS) DEPARTMENT
BARPETA, BAGHBAR
CHENGA TERRITORIAL ROADS DIVISION
BARPETA, PO BARPETA, ASSAM 78130
For the petitioners : Mr. K. N. Choudhury, Sr. Advocate
Assisted by Mr. D.J. Das, Advocate
For respondent(s) : Mr. D. Nath, SC, PWD
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- BEFORE -
HON'BLE THE CHIEF JUSTICE MR. VIJAY BISHNOI
HON'BLE MR. JUSTICE SUMAN SHYAM
12.08.2024
(Vijay Bishnoi, CJ
This instant writ appeal has been filed by the appellant being aggrieved with the
order dated 10.05.2024 and 20.09.2023 passed by the learned Single Judge in Review
Petition No. 120/2023 and WP(C) No. 5183/2023, respectively.
2. By the order dated 20.09.2023, the learned Single has dismissed the writ petition
as withdrawn on the basis of the submission made by the learned counsel appearing
for the writ petitioner. By the order dated 10.05.2024 passed in Review Petition No.
120/2023, the prayer of the review petitioner for review of the order dated
20.09.2023, passed in WP(C) No. 5183/2023 has been rejected by the learned Single
Judge.
3. Before the writ court, the appellant essentially challenged the validity of the letter
dated 21.08.2023, issued by the respondent PWD, Assam, whereby the contract
agreement executed between the appellant and the PWD, in respect of a contract
work, viz. "Upgradation of Roads from MRL03-Mandia Palhaji Road to Salimpur via
Bamundongra Road including cross drainage works and routine maintenance of the
works for five year under Package No. AS-01-522, MPGSY-III, Batch-1, 2022-2023"
was cancelled. However, on 20.09.2023, when the writ petition was taken up for
consideration by the learned Single Judge, the learned counsel, who was engaged by
the writ petitioner in the writ court, made a submission that the writ petitioner was
not pressing the writ petition in order to avail appropriate remedy available under the
law. The learned Single Judge, considering the submission so made by the learned
counsel for the writ petitioner, has dismissed the writ petition, on withdrawal,
reserving the liberty to the writ petitioner to avail appropriate remedy permissible
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under the law. The learned Single Judge has also recorded that the learned counsel
appearing for the respondent PWD did not object to the prayer of the learned counsel
for the writ petitioner for withdrawal of the writ petition.
4. As revealed from the record, soon after the dismissal of the writ petition as
withdrawn on 20.09.2023, the appellant, through his Advocate issued notice to the
respondent PWD on 23.09.2023 under Section 80 of the Code of Civil Procedure, 1908
indicating the reliefs he was likely to seek by instituting appropriate proceedings. It is
also revealed that pursuant to the said notice, no suit has ever been instituted by the
appellant against the respondent PWD.
5. Be that as it may, the appellant thereafter preferred a review petition before the
learned Single Judge seeking review of the order dated 20.09.2023 passed in WP(C)
5183/2023 mainly on the ground that the counsel engaged by the appellant before the
writ court had never been instructed to withdraw the writ petition with liberty to the
petitioner to avail appropriate remedy under the law.
The learned Single Judge has dismissed the said review petition by a detail order
dated 10.05.2024 observing that the appellant failed to demonstrate any error
apparent on the face of the record, or any other sufficient reasons for review of the
order dated 20.09.2023 passed in the writ petition. The learned Single Judge has also
observed that from the events taken note of, it does not transpire in any manner that
the submission made by the learned counsel for the writ petitioner in the course of the
proceedings on 20.09.2023 was without approval of the petitioner. It is also noted by
the learned Single Judge that soon after dismissal of the writ petition, a notice under
Section 80 CPC was issued by the petitioner through his Advocate on 23.09.2023
indicating the reliefs he was likely to seek by instituting appropriate proceedings and,
in such circumstances, it can be gathered that the appropriate proceeding under the
law, for which the appellant sought liberty while getting the writ petition dismissed as
withdrawn, can only be the proceeding other than the writ proceeding.
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6. Reiterating the submission made by the learned counsel for the review petitioner
before the learned Single Judge, Mr. K. N. Choudhury, learned senior counsel
appearing for the appellant before this Court has submitted that since the writ petition
was withdrawn by the counsel before the writ court without having any such
instructions given by the petitioner, the impugned order dated 20.09.2023 passed in
WP(C) 5183/2023 is liable to be set aside. Learned senior counsel has further
submitted that the learned counsel appearing for the petitioner before the writ court
was never instructed to withdraw the writ petition with liberty to avail appropriate
remedy under the law and, therefore, in the interest of justice the impugned orders
are liable to be set aside. Mr. Choudhury has attempted to justify the said submission
on the ground that, as a matter of fact, there was no occasion for the appellant to
avail appropriate remedy under the law, because the appellant had already
approached the authorities concerned for redressal of his grievances before dismissal
of the writ petition on withdrawal. It is submitted that the Division Bench of this Court
in The State of Assam and another vs. All Assam Secondary Additional
(Contractual) Teachers Association and others (Review Petition No. 14/2017) has
held that a bona fide concession made by a litigant or its counsel, which subsequently
turns out to be legally untenable, can be a valid ground for reviewing an order.
7. Per contra, Mr. D. Nath, learned counsel appearing for the respondent PWD has
submitted that the learned Single Judge has committed no error in passing the
impugned orders and, therefore, the appeal may be dismissed.
8. Heard the learned counsel for the parties and perused the material available on
record.
9. It is not in dispute that soon after dismissal of the writ petition on 20.09.2023 as
withdrawn, the appellant issued notice under Section 80 of the CPC to the respondent
PWD. Therefore, it can be assumed that the appellant had the intention to institute a
suit against the respondent PWD indicating the reliefs claimed by him. Since the
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appellant acted pursuant to the liberty granted to him by this Court, it cannot be said
that the learned counsel appearing on behalf of the petitioner before the writ court
had prayed for withdrawal of the writ petition without the consent or knowledge of the
appellant/writ petitioner.
10. So far as the judgment of the Division Bench of this Court passed in All Assam
Secondary Additional (Contractual) Teachers Association and others (supra), is
concerned, the learned Single Judge has already dealt with the same while dismissing
the review petition and we do not find any reason to differ with the finding of the
learned Single Judge on this aspect.
11. It is also to be noticed that the review petition as well as the present appeal are
filed by an Advocate other than the Advocate who had filed the writ petition and
appeared before the learned Single Judge at the time of its dismissal. The practice of
changing the Advocates and filing subsequent proceedings has been deprecated by
the Hon'ble Supreme Court in Tamil Nadu Electricity Board & Ant. Vs. N. Raju
Reddiar & Anr. reported in (1997) 9 SCC 736.
12. In view of the above discussion, we are of the considered opinion that no case is
made out for interference with the impugned orders and, accordingly, the appeal is
dismissed.
No order as to costs.
JUDGE CHIEF JUSTICE
Comparing Assistant
