Aaryavart Infrastructure ... vs Sardar Sarovar Narmada Nigam ...
2021 Latest Caselaw 16574 Guj

     C/SCA/8824/2021                            JUDGMENT DATED: 22/10/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 8824 of 2021
                                  With
              R/SPECIAL CIVIL APPLICATION NO. 15929 of 2020

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE J.B.PARDIWALA                               Sd/-
and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA                              Sd/-
================================================================

1     Whether Reporters of Local Papers may be allowed              YES
      to see the judgment ?

2     To be referred to the Reporter or not ?                       YES

3     Whether their Lordships wish to see the fair copy              NO
      of the judgment ?

4     Whether this case involves a substantial question              NO
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

================================================================
              AARYAVART INFRASTRUCTURE PRIVATE LIMITED
                               Versus
               SARDAR SAROVAR NARMADA NIGAM LIMITED
================================================================
Appearance:
MR D.K.PUJ, ADVOCATE for the Petitioner(s) No. 1
MR SANJAY A MEHTA, ADVOCATE for the Respondent(s) No. 1,2,3
================================================================

    CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
          and
          HONOURABLE MR. JUSTICE NIRAL R. MEHTA

                            Date : 22/10/2021

                       COMMON ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)

1. Since the issues raised in both the captioned writ applications are interrelated and the parties are also the same,

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those were taken up for hearing analogously and are being disposed of by this common judgement and order.

2. For the sake of convenience, the Special Civil Application No.8824 of 2021 is treated as the lead matter.

3. By this writ application under Article 226 of the constitution of India, the writ applicant has prayed for the following reliefs :

"(A) This Hon'ble Court may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus quashing and setting aside the order of debarment dated 22.02.2019 passed by the respondent no.1 as the said order is absolutely illegal, unlawful, contrary to the facts and evidence on record against the settled principles of law, equity and justice and in violation of the principles of natural justice;

(B) This Hon'ble Court may be further pleased to issue a writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus directing the respondent authorities to deposit the disputed amount of Rs.6,23,27,000/- illegally recovered by the respondents and paid by the petitioner in good faith under protest in a fixed deposit with any Nationalized Bank so that if the petitioner ultimately succeeds in its litigations with the respondents, the interest of the petitioner would be secured;

C/SCA/8824/2021 JUDGMENT DATED: 22/10/2021

(C) This Hon'ble Court may be further pleased to issue a writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus quashing and setting aside the letter dated 29.08.2020 issued by the respondents to the petitioner alleging additional recovery of Rs.2,77,48,484/- as well as the Recovery Notice dated 19.10.2020;

(D) During the pendency and final disposal of this petition, this Hon'ble Court may be pleased to restrain the respondent authorities from, not considering any tender bids submitted by the petitioner, blacklisting the petitioner or taking any other actions against the petitioner based on the debarment order issued on 22.02.2019;

(E) During the pendency and final disposal of this petition, this Hon'ble Court may be pleased to grant stay against operation, implementation and execution of the letter dated 29.08.2020 issued by the respondents to the petitioner alleging additional recovery of Rs.2,77,48,484/- as well as the Recovery Notice dated 19.10.2020;

(F) This Hon'ble Court may be pleased to pass any other and further orders of grant of relief as may be deemed fit in the interest of justice."

4. The facts giving rise to this writ application may be summarised as under :

C/SCA/8824/2021 JUDGMENT DATED: 22/10/2021

5. The writ applicant is a class "AA" Government approved contractor and claims that it has undertaken many major projects of construction within the State of Gujarat and also at other States successfully. The respondent no.1, i.e. the Nigam, a State, within Article 12 of the Constitution of India, invited tenders for supplying, installing and testing of the underground pipeline system of sub-minor canal for irrigation through the 'kundi' in the chak area for the Sardar Sarovar Project (SSP Command Area).

6. It is the case of the writ applicant that the Nigam issued work orders which were successfully executed and completed by the writ applicant. It is also the case of the writ applicant that upon inspection and verification of the work of contract, the completion certificate also came to be issued by the officers of the Nigam.

7. It is the case of the writ applicant that thereafter the accounts department of the Nigam crosschecked the quantity of the work done and the payments were accordingly released in favour of the writ applicant

8. It appears that the Nigam unearthed a fraud alleged to have been committed at the instance of many contractors, including the writ applicant herein.

9. It is the case of the Nigam that bogus bills were raised of the works sought to have been undertaken and the payment was

C/SCA/8824/2021 JUDGMENT DATED: 22/10/2021

accordingly obtained running into crores of rupees. The same led to issue of a show cause notice dated 20 th February 2019 (Annexure-D, Page-55) calling upon the writ applicant to show cause why it should not be blacklisted for the alleged acts of misconduct and fraud. The writ applicant filed its reply to the aforesaid show cause notice dated 27th February 2019.

10. It appears that in the aforesaid background, the writ applicant came before this High Court and filed the Special Civil Application No.2684 of 2019.

11. On 11th February 2019, a Coordinate Bench of this Court passed the following order :

"1. Heard Mr.Thakore, learned senior counsel with Mr.Pandya, learned advocate for the petitioner.

2. Learned advocate for the petitioner seeks leave to amend the petition in terms of Draft Amendment dated 11.2.2019. Leave granted. Amendment to be carried out today/forthwith.

3. The petitioner has placed under challenge Notice/ Order dated 25.1.2019 issued by respondent Nos.1 to 3.

4. Prima facie it appears that the said Circular is issued on account of certain irregularities allegedly committed by the petitioner which subsequently came to the notice to said respondents and with a view to protecting its interest, the said respondents issued the Circular.

C/SCA/8824/2021 JUDGMENT DATED: 22/10/2021

5. Mr.Thakore, learned senior counsel for the petitioner relied on paragraph Nos.5 to 7 of the reply dated 5.2.2019 submitted by present petitioner in response to the Notice/ Order dated 25.1.2019 issued by the respondents.

6. Mr.Thakore, learned senior counsel for the petitioner further submitted that in view of the provisions under the agreement, the petitioner is ready and willing to take dispute for arbitration, however, in the meanwhile, protective measures are required, more particularly in view of the intimation by the respondents to the Bank for invoking Bank Guarantee.

7. It emerges from plain reading of the said Notice/ order dated 25.1.2019 issued by the respondents that the said respondent No.2 has issued said Notice/Order with reference to the Bank Guarantee.

8. Ordinarily the Court would not grant any interim relief and would not stay invocation of Bank Guarantee, more particularly when the letter invoking Bank Guarantee is already issued and served to the Bank.

9. However, in the present case, learned counsel for the petitioner asserts that on inquiry with the Bank, it is given to understand that though the Bank has received instructions invoking Bank Guarantee, the amount in question has not been released and transferred.

C/SCA/8824/2021 JUDGMENT DATED: 22/10/2021

10. In this context, Mr.Thakore, learned senior counsel submitted that the petitioner is ready and willing to deposit entire amount in question (Rs.6.23 crores) and on that condition invocation of Bank Guarantee/transfer of funds to the respondent may be stayed.

11. It is also submitted that the petitioner would approach Arbitral Tribunal in accordance with the provisions under the Contract.

12. In this view of the matter following order is passed:

Issue Notice returnable on 18.2.2019.

In the meanwhile and until returnable date, if any action is required to be taken, then that may be done after notice and opportunity of hearing to the petitioner.

It is further clarified and directed, by way of ad- interim relief, that if upon invocation of Bank Guarantee the Bank has already not transferred the amount in question (namely Rs.2.39 crores) then in that event until next date the respondent herein will not demand/transfer of the amount in its favour/to their credit. This ad-interim relief is granted on the condition that the petitioner shall deposit entire amount of Rs.6.23 crores with the Registry of this Court on or before 14.2.2019.

       C/SCA/8824/2021                                      JUDGMENT DATED: 22/10/2021



                 On that condition coupled with the condition that                     the
                 petitioner     would          undertake       to approach             the
                 learned      Arbitral      Tribunal    and further         payment/
                 transfer       of       the        amount       in favour of the
                 respondents will remain stayed until               next      date       of
                 hearing.      Any further action pursuant to Annexures-

F & J may not be taken without granting opportunity of hearing to the petitioner.

Direct service is permitted."

12. The order passed by the Coordinate Bench later came to be modified vide order dated 19th June 2019. The same reads thus :

"Heard Mr. Sukhwani, learned advocate for Mr. Chetan K Pandya, learned advocate for the petitioner and Mr. P.K. Jani, learned Senior Counsel with Mr. Desai, learned advocate for the respondent No.3.

Mr. Sukhwani, learned advocate for the petitioner submitted that the petitioner has deposited Rs.6.23 Crores and thereafter the petitioner has already approached the learned Arbitral Tribunal by filing Reference Case and that therefore, at this stage the petitioner withdraws and does not press this petition so as to pursue the remedy availed by it.

Mr. P.K.Jani, learned Senior Counsel for the respondent No.3 submitted that the respondent will contest the said proceeding on all contentions / objections which may be available in law.

C/SCA/8824/2021 JUDGMENT DATED: 22/10/2021

In view of said statement and submission by learned advocate, the petition is disposed of as withdrawn / not pressed. Notice is discharged. Ad-interim / interim relief if any, stands vacated forthwith.

Order in Civil Application No.1 of 2019

In view of the order dated 19.6.2019 passed in the petition, present Civil Application does not survive and the same is disposed of."

13. It appears that the writ applicant thereafter filed the Arbitration Reference No.9 of 2019 before the Arbitral Tribunal, praying for an award of Rs.6,23,27,000/- in its favour with interest at the rate of 18% per annum.

14. As regards the proceedings initiated by the Nigam to blacklist the writ applicant, the writ applicant preferred the Special Civil Application No.4962 of 2019. A Coordinate Bench of this Court passed the following order dated 11 th March 2019 in the Special Civil Application No.4962 of 2019 :

"Heard Mr.K.G.Sukhwani, learned advocate appearing with Mr.Chetan K.Pandya, learned advocate for the petitioner.

At the outset, learned counsel for the petitioner clarified and declared that at this stage, the petitioner does not press and withdraws the reliefs prayed for in paragraphs 34(a) and

(e), including the alternative prayer made in paragraph

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34(a). Learned advocate for the petitioner clarified that if any order is passed in pursuance of the show-cause notice, then, at that stage, the petitioner will take appropriate action as may be available under law.

In view of such submission and statement, reliefs prayed for in paragraphs 34(a) and (e), including the alternative prayer made in paragraph 34(a), is treated as withdrawn and cancelled.

Before preferring the present petition, the petitioner filed a Special Civil Application No.2684 of 2019. In the said petition, this court passed below quoted order:-

1. Heard Mr.Thakore, learned senior counsel with Mr.Pandya, learned advocate for the petitioner.

2. Learned advocate for the petitioner seeks leave to amend the petition in terms of Draft Amendment dated 11.2.2019. Leave granted. Amendment to be carried out today / forthwith.

3. The petitioner has placed under challenge Notice/Order dated 25.1.2019 issued by respondent Nos.1 to 3.

4. Prima facie it appears that the said Circular is issued on account of certain irregularities allegedly committed by the petitioner which subsequently came to the notice to said respondents and with a view to protecting its interest, the said respondents issued the Circular.

C/SCA/8824/2021 JUDGMENT DATED: 22/10/2021

5. Mr.Thakore, learned senior counsel for the petitioner relied on paragraph Nos.5 to 7 of the reply dated 5.2.2019 submitted by present petitioner in response to the Notice/Order dated 25.1.2019 issued by the respondents.

6. Mr.Thakore, learned senior counsel for the petitioner further submitted that in view of the provisions under the agreement, the petitioner is ready and willing to take dispute for arbitration, however, in the meanwhile, protective measures are required, more particularly in view of the intimation by the respondents to the Bank for invoking Bank Guarantee.

7. It emerges from plain reading of the said Notice/Order dated 25.1.2019 issued by the respondents that the said respondent No.2 has issued said Notice/Order with reference to the Bank Guarantee.

8. Ordinarily the Court would not grant any interim relief and would not stay invocation of Bank Guarantee, more particularly when the letter invoking Bank Guarantee is already issued and served to the Bank.

9. However, in the present case, learned counsel for the petitioner asserts that on inquiry with the Bank, it is given to understand that though the Bank has received instructions invoking Bank Guarantee, the amount in question has not been released and transferred.

C/SCA/8824/2021 JUDGMENT DATED: 22/10/2021

10. In this context, Mr. Thakore, learned senior counsel submitted that the petitioner is ready and willing to deposit entire amount in question (Rs.6.23 crores) and on that condition invocation of Bank Guarantee / transfer of funds to the respondent may be stayed.

11. It is also submitted that the petitioner would approach Arbitral Tribunal in accordance with the provisions under the Contract.

12. In this view of the matter following order is passed:

"Issue Notice returnable on 18.2.2019.

In the meanwhile and until returnable date, if any action is required to be taken, then that may be done after notice and opportunity of hearing to the petitioner.

It is further clarified and directed, by way of adinterim relief, that if upon invocation of Bank Guarantee the Bank has already not transferred the amount in question (namely Rs.2.39 crores) then in that event until next date the respondent herein will not demand/transfer of the amount in its favour/to their credit. This ad-interim relief is granted on the condition that the petitioner shall deposit entire amount of Rs.6.23 crores with the Registry of this Court on or before 14.2.2019.

C/SCA/8824/2021 JUDGMENT DATED: 22/10/2021

On that condition coupled with the condition that the petitioner would undertake to approach the learned Arbitral Tribunal and further payment/transfer of the amount in favour of the respondents will remain stayed until next date of hearing. Any further action pursuant to Annexures-F & J may not be taken without granting opportunity of hearing to the petitioner.

Direct service is permitted."

Now, the petitioner has approached this court with present petition and the allegations that despite said order dated 11.2.2019 in Special Civil Application No.2684 of 2019, present respondent has passed impugned order, without issuing notice and without granting opportunity of hearing and the petitioner has ascertained the said statement in paragraph No.23 of the petition, which reads as under:-

"23. The petitioner submits that the respondent No.2 by order dated 22/02/2019 has passed an order that the petitioner has been debarred from the work under the banner of Sardar Sarovar Narmada Nigam Limited without there being any show cause notice and opportunity of hearing. A copy of the order dated 22/02/2019 is annexed herewith and marked as "Annexure-L".

In view of the submission by the petitioner that the impugned order dated 22.2.2019 (Annexure-L, page 166) is

C/SCA/8824/2021 JUDGMENT DATED: 22/10/2021

passed not only in violation of principles of natural justice, but also by ignoring the order dated 11.2.2019, we pass following order.

Issue notice, returnable on 18.3.2019.

Until the returnable date, the operation of impugned order dated 22.2.2019 (Annexure-L, page 166), is suspended.

Direct service today is permitted."

15. The aforesaid Special Civil Application No.4962 of 2019 ultimately came to be withdrawn unconditionally. The order passed by the Coordinate Bench dated 24 th September 2019 reads thus:

"Mr.Chetan Pandya, learned advocate for the petitioner under the written instructions seeks permission to withdraw the present petition. Permission as prayed for, is granted. Present petition is withdrawn as disposed of. However, withdrawal of present petition shall not affect the other petitions filed by the other petitioners. Notice discharged."

16. The present writ application has been filed for the very same cause of action, for which the Special Civil Application No.4962 of 2019 was filed and withdrawn unconditionally.

17. Mr.Sanjay Mehta, the learned counsel appearing for the Nigam, has raised a preliminary objection as regards the

C/SCA/8824/2021 JUDGMENT DATED: 22/10/2021

maintainability of the present writ application, on the ground that the earlier writ application, i.e. the Special Civil Application No.4962 of 2019 filed for the very same cause of action, having been withdrawn unconditionally, the present writ application is not maintainable.

18. In such circumstances referred to above, Mr.Mehta prays that the present writ application deserves to be rejected solely on the ground that the same is not maintainable.

19. Mr.Shalin Mehta, the learned counsel appearing for the writ applicant, while replying to the aforesaid preliminary objection raised on behalf of the Nigam, submitted that it is the unexpected conduct of the Nigam which has led to the filing of the present writ application. Mr.Mehta fairly submitted that he cannot escape from the fact that the earlier petition, i.e. the Special Civil Application No.4962 of 2019, filed for the same cause of action was withdrawn, but there was a good reason for his client to withdraw the Special Civil Application No.4962 of 2019 unconditionally at the relevant point of time.

20. In the aforesaid context, with Mr.Mehta invited the attention of this Court to the averments made in paragraphs Nos.3.12, 3.13 and 3.14 respectively of the memorandum of the writ application. According to Mr.Mehta, the circumstances narrated in all the above referred paragraphs led the writ applicant to believe that the Nigam would now not take any action and would also not give effect to the order of blacklisting.

C/SCA/8824/2021 JUDGMENT DATED: 22/10/2021

21. Since the entire case put up by the writ-applicant in the present writ application is based on the averments made in the above referred paragraphs Nos.3.12, 3.13 and 3.14 respectively of the memorandum of the writ application, we must at least look into what is sought to be conveyed. It appears that the writ applicant is laying much stress on the fact that it deposited the entire amount of Rs.6,23,27,000/- under protest, i.e. the amount sought to be recovered by the Nigam from the writ applicant. Upon deposit of such amount, the writ applicant is said to have bona fide believed that the Nigam would now not carry the matter further and the order of debarment would not survive, and secondly, the writ-applicant was also instructed by the Nigam to continue with the ongoing project. These two circumstances, according to the writ applicant, made it believed that there was no good reason to continue with the Special Civil Application No.4962 of 2019, and as a mark of good gesture, thought fit to close the litigation.

22. Mr.Mehta would submit that in the circumstances narrated above, as an exceptional case and having regard to the fact that blacklisting is for all times to come, the successive writ application, i.e. the present petition, may be entertained.

23. According to Mr.Mehta, ordinarily the High Court would not entertain a successive writ application for the same cause of action and more particularly when the earlier writ application has been withdrawn unconditionally. Having regard to the drastic consequences and effect of the order of blacklisting for all times to come, Mr.Mehta made a fervent appeal to this Court to

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entertain this writ application for a limited purpose, and that is, to ask the Nigam to consider whether the order of blacklisting should operate for all times to come ?

ANALYSIS :

24. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is, whether the writ applicant, after withdrawing the writ application filed by him in the High Court under Article 226 of the Constitution of India without the permission to institute a fresh writ application can file a fresh petition in the High Court under Article 226 of the Constitution of India ?

25. One of the earlier cases where the above question came under consideration was the case of Daryao Singh vs. State of U.P. and others, (1962) 1 SCR 574, wherein the Supreme Court was confronted with the question as to whether the dismissal of the writ petitions filed by a party under Article 226 of the Constitution of India would create a bar of res judicata against a similar petition filed by the same party under Article 32 of the Constitution of India. Answering the said question the Supreme Court held as under :

"The next question to consider is whether it makes any difference to the application of this rule that the decision on which the plea of res judicata is raised is a decision not of this Court but of a High Court exercising its jurisdiction under Article 226. The argument is that one of the essential

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requirements of Section 11 of the Code of Civil Procedure is that the Court which tries the first suit or proceeding should be competent to try second suit or proceeding, and since the High Court cannot entertain an application under Article 32 its decision cannot be treated as res judicata for the purpose of such a petition. It is doubtful if the technical requirement prescribed by Section 11 as to the competence of the first Court to try the subsequent suit is an essential part of the general rule of res judicata; but assuming that it is, in substance even the said test is satisfied because the jurisdiction of the High Court in dealing with a writ petition filed under Article 226 is substantially the same as the jurisdiction of this Court in entertaining an application under Article 32. The scope of the writs, orders or directions which the High Court can issue in appropriate cases under Article 226 is concurrent with the scope of similar writs, orders or directions which may be issued by this Court under Article

32. The cause of action for the two applications would be the same. It is the assertion of the existence of a fundamental right and its illegal contravention in both cases and the relief claimed in both the cases is also of the same character. Article 226 confers jurisdiction on the High Court to entertain a suitable writ petition, whereas Article 32 provides for moving this Court for a similar writ petition for the same purpose. Therefore, the argument that a petition under Article 32 cannot be entertained by a High Court under Article 226 is without any substance; and so the plea that the judgment of the High Court cannot be treated as res judicata on the ground that it cannot entertain a petition under Article 32 must be rejected.

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It is, however, necessary to add that in exercising its jurisdiction under Article 226 the High Court may sometimes refuse to issue an appropriate writ or order on the ground that the party applying for the writ is guilty of laches and in that sense the issue of a high prerogative writ may reasonably be treated as a matter of discretion. On the other hand, the right granted to a citizen to move this Court by appropriate proceedings under Article 32(1) being itself a fundamental right this Court ordinarily may have to issue an appropriate writ or order provided it is shown that the petitioner has a fundamental right which has been illegally or unconstitutionally contravened. It is not unlikely that if a petition is filed even under Article 32 after a long lapse of time considerations may arise whether rights in favour of third parties which may have arisen in the meanwhile could be allowed to be affected, and in such a case the effect of laches on the part of the petitioner or of his acquiescence may have to be considered; but, ordinarily if a petitioner makes out a case for the issue of an appropriate writ or order he would be entitled to have such a writ or order under Article 32 and that may be said to constitute a difference in the right conferred on a citizen to move the High Court under Article 226 as distinct from the right conferred on him to move this Court. This difference must inevitably mean that if the High Court has refused to exercise its discretion on the ground of laches or on the ground that the party has an efficacious alternative remedy available to him then of course the decision of the High Court cannot generally be pleaded in support of the bar of res judicata. If, however, the matter has been considered on

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the merits and the High Court has dismissed the petition for a writ on the ground that no fundamental right is proved or its breach is either not established or is shown to be constitutionally justified there is no reason why the said decision should not be treated as a bar against the competence of a subsequent petition filed by the dame party on the same facts and for the same reliefs under Article 32.

There is one more argument which still remains to be considered. It is urged that the remedies available to the petitioners to move the High Court under Article 226 and this Court under Article 32 are alternate remedies and so the adoption of one remedy cannot bar the adoption of the other. These remedies are not exclusive but are cumulative and so no bar of res judicata can be pleaded when a party who has filed a petition under Article 226 seeks to invoke the jurisdiction of this Court under Article 32. In support of this contention reliance has been placed on the decision of the Calcutta High Court in Mussammat Gulab Koer vs. Badshah Bahadur [13 C.W.N. 1197]. In that case a party who had unsuccessfully sought for the review of a consent order on the ground of fraud brought a suit for a similar relief and was met by a plea of res judicata. This plea was rejected by the Court on the ground that the two remedies though co-existing were not inconsistent so that when a party aggrieved has had recourse first to one remedy it cannot be precluded from subsequently taking recourse to the other. In fact the judgment shows that the Court took the view that an application for review was in the circumstances an inappropriate remedy and that the only remedy available to the party was that of a suit. In dealing with the question

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of res judicata the Court examined the special features and conditions attaching to the application for review, the provisions with regard to the finality of the orders passed in such review proceedings and the limited nature of the right to appeal provided against such orders. In the result the Court held that the two remedies cannot be regarded as parallel and equally efficacious and so no question of election of remedies arose in those cases. We do not think that this decision can be read as laying down a general proposition of law that even in regard to alternate remedies if a party takes recourse to one remedy and a contest arising therefrom is tried by a court of competent jurisdiction and all points of controversy are settled the intervention of the decision of the Court would make no difference at all. In such a case the point to consider always would be what is the nature of the decision pronounced by a Court of competent jurisdiction and what is its effect. Thus considered there can be no doubt that if a writ petition filed by a party has been dismissed on the merits by the High Court the judgment thus pronounced is binding between the parties and it cannot be circumvented or by-passed by his taking recourse to Article 32 of the Constitution. Therefore, we are not satisfied that the ground of alternative remedies is well founded."

26. From the aforesaid judgment, it would be manifest that the Supreme Court was primarily dealing with a question as to whether the second petition based on the same facts would be barred by the principles of res judicata or not. The Supreme Court in a passing reference also held that if the petition is

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dismissed as withdrawn, it cannot be a bar to a subsequent petition under Article 32 of the Constitution because in such a case there has been no decision on the merits of the case by the court. While laying down this law, the court was conscious enough to clarify that the conclusion reached by them was confined only to the point of res judicata and in the light of this position the facts of those six petitions were examined.

27. In the matter of Sarguja Transport Service vs. State Transport Appellate Tribunal, M.P., Gwalior and others, (1987) 1 SCC 5, the Supreme Court was dealing with a precise question that "where the petitioner withdraws a petition filed by him under Article 226 of the Constitution of India without seeking a permission to institute a fresh petition, then in such a case will the remedy of the petitioner to file a suit or a writ petition under Article 32 before the Supreme Court remain open to him or not?" It would be apt to mention here that the facts of the said case are more near and similar to the facts of the case at hand as here also this court is dealing with an issue where the petitioner had withdrawn the petition filed under Article 32 of the Constitution of India and based on the same facts and the same cause of action has filed this petition under Article 226 of the Constitution of India. The Apex Court in the above case examined the principles of public policy envisaged under Order 23 Rule (1) of the Code of Civil Procedure and held as under :

"The question for our consideration is whether it would or would not advance the cause of justice if the principle underlying Rule 1 of Order XXIII of the Code is adopted in

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respect of writ petitions filed under Articles 226/227 of the Constitution of India 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 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 and others vs. The State of U.P. and others [1962] 2 S.C.R. 575 in a case involving the question of enforcement of fundamental rights file a petition before the Supreme Court under Article 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 Article 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

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to the point of res judicata which has been argued as a preliminary issue in these writ petitions and no other."

The point for consideration is whether a petitioner after with-drawing 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's case (supra) 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

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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 right guaranteed under Article 21 of the Constitution since such a case stands on a different footing altogether. We, however leave this question open."

28. It would be worth mentioning here that the judgment of the Supreme Court in Daryao Singh's case (supra) was referred in the above judgment and the court clearly took a view that the decision in Daryao Singh's case would be of no assistance as there the court was confronted with the issue as to whether the second petition filed under Article 32 of the Constitution of India would be barred by the principles of res judicata. In that case the Supreme Court did not go into the question of principle of law and the public policy envisaged under Order 23 Rule (1) of the CPC. The Supreme Court in Sarguja Transport Service's case (supra) also left the question open so far as the applicability of the said principle in the writ petition involving the personal liberty of an individual or where the writ in the nature of habeas corpus or also where the petitioner seeks to enforce the fundamental rights granted under Article 21 of the Constitution of India are concerned.

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29. The said principle under Order 23 Rule (1) as extended to the writ jurisdiction again came up for the consideration in the case of Upadhyay & Company vs. State of U.P. and others, (1999) 1 SCC 81, where the Supreme Court again took a view that the withdrawal of a writ petition filed in the High Court without the 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, but 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 in the writ petition when he withdraws it without such permission. The relevant para of the said judgment is referred as under :

"The aforesaid ban for filing a fresh suit is based on public policy. This Court has made the said rule of public polity applicable to jurisdiction under Article 226 of the Constitution (Sarguja Transport Service v. State Transport Appellate Tribunal, Gwalior : [1987] 1 SCR 200 ). The reasoning for adopting it in writ jurisdiction-is that very often, it happens, when the petitioner or his counsel finds that the court is not likely to pass an order admitting the writ petition after it is heard for some time, that a request is made by the petitioner or his counsel to permit him to withdraw it 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 withdrawal of the petition.

When once a writ petition filed in a High Court is withdrawn by the party concerned he is precluded from filing an appeal against the order passed in the writ petition because he

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cannot be considered as a party aggrieved by the order passed by the High Court. If so, he cannot file a fresh petition for the same cause once again. The following observations of E.S.Venkataramiah, J. (as the learned Chief Justice then was) are to be quoted here:

"We are of the view that the principle underlying Rule 1 of Order 23 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 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 since such withdrawal does not amount to res judicata, the remedy under Article 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."

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30. Yet, in another case which is relevant to the controversy at hand is that of Sarva Shramik Sanghatana (KV) vs. State of Maharashtra and others (2008) 1 SCC 494, where also the Supreme Court placed reliance on the principle enunciated in Sarguja Tranport's case (supra) but since the facts of the case being dealt by them were distinguishable as there the court was dealing with an application of the petitioner company filed under Section 25-O (1) of the Industrial Disputes Act which was withdrawn reserving its right to move fresh application as and when necessary and hence in the background of such facts the court found that the withdrawal by the petitioner for trying to arrive at an amicable settlement with the workers was a bona fide exercise on the part of the petitioner and it was not a case of bench hunting, and therefore, held that the principle settled in Sarguja Transport's case to be distinguishable. It would be, however, relevant to reproduce the relevant para of the said judgment here :

"We have carefully examined the decision of the Sarguja Transport Service's case (supra). In the said decision it is mentioned in paragraph 8 as follows :

"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 the writ petition without seeking permission to institute a fresh writ petition. A Court which is

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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."

In paragraph 9 of the said decision, it is also mentioned as follows:

"But we are of the view that the principle underlying Rule 1 of Order XXIII of the Code should be extended in the interest 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."

We are of the opinion that the decision in Sarguja Transport case (supra) has to be understood in the light of the observations in paragraphs 8 & 9 therein, which have been quoted above. The said decision was given on the basis of public policy that, if while hearing the first writ petition the Bench is inclined to dismiss it, and the learned Counsel withdraws the petition so that he could file a second writ petition before what he regards as a more suitable or convenient bench, then if he withdraws it he should not be allowed to file a second writ petition unless liberty is given to do so. In other words, bench-hunting should not be permitted.

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It often happens that during the hearing of a petition the Court makes oral observations indicating that it is inclined to dismiss the petition. At this stage the counsel may seek withdrawal of his petition without getting a verdict on the merits, with the intention of filing a fresh petition before a more convenient bench. It was this malpractice which was sought to be discouraged by the decision in Sarguja Transport case (supra)."

31. It would also be worthwhile to reproduce the relevant portion of the judgment of the Supreme Court in Ramesh Chandra Sankla and others vs. Vikram Cement, (2008) 14 SCC 58 where again the Supreme Court after referring to the principles of law laid down in the previous judgments of Daryao Singh, Sarguja Transport and Sarva Shramik, held as under :

"From the above case law, it is clear that it is open to the petitioner to withdraw a petition filed by him. Normally, a Court of Law would not prevent him from withdrawing his petition. But if such withdrawal is without the leave of the Court, it would mean that the petitioner is not interested in prosecuting or continuing the proceedings and he abandons his claim. In such cases, obviously, public policy requires that he should not start fresh round of litigation and the Court will not allow him to re-agitate the claim which he himself had given up earlier.

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In Sarguja Transport Service, extending the principles laid down in Daryao, Venkataramiah, J. (as His Lordship then was) concluded :

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."

32. In the case of Avinash Nagra vs. Navodaya Vidyalaya Samiti and others, 1997 (2) SCC 534, it was held as follows :

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"The High Court also was right in its conclusion that the second writ petition is not maintainable as the principle of constructive res judicata would apply. He filed the writ petition in first instance but withdrew the same without permission of the Court with liberty to file the second writ petition which was dismissed. Therefore, the second writ petition is not maintainable as held by the High Court in applying the correct principle of law."

33. A Division Bench of the Allahabad High Court in the case of Pradeep Goval vs. Regional Manager, Region 11, State Bank of India, Zonal Office, Meerut, reported in (1992) 1 UPLBEC 223, after due consideration of all the above referred decisions of the Supreme Court, observed as under :

"As has been noticed above, the first writ petition viz. writ petition No. 1572/91 had been dismissed as withdrawn. An order dismissing the writ petition as withdrawn cannot operate as resjudicata inasmuch as such dismissal cannot be equated with the dismissal on merits. This position is now well established in view of the decision of the Supreme Court in the case of Daryao v. State of U.P., AIR 1961 SC 1457. However, even though the order dated 2-6-91 may not operate as res judicata yet it will debar the petitioner of that writ petition from filing a fresh writ petition for seeking the same relief which was claimed in the earlier writ petition.

This position of law flows from the principle enshrined in Order XXIII, Rule 1 of the Code of Civil Procedure which principle has to be applied to a writ proceeding under Article

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226 of the Constitution of India excepting the habeas corpus writs. This Court in its decision in the case of L.Kashi Nath Seth v. Collector, Central Excuise, Allahabad and Ors., decided by a Division Bench and reported in AIR 1979 Alld. 128, had clarified that inspite of the explanation inserted in Section 141 by the Civil Procedure Code (Amendment) Act, 1976 the salutary principles enshrined in the Code of Civil Procedure governing the trial of the Civil suits may be applied to the proceedings excepting the case of habeas corpus petitions under Article 226 of the Constitution of India. The principles underlying Order XXIII, Rule 1 of the Code of Civil Procedure, in our opinion are such, which would be applicable to petition under Article 226 of the Constitution of India also excepting of course, the petitions relating to habeas corpus. The Apex Court in its decision in the case of Sarguja Transport Service v. State Transport Appellate Tribunal, AIR 1987 SC 38, clearly observed that a fresh petition under Article 226 of the Constitution of India in respect of the same cause of action is not maintainable and the rule of public policy as contained in Order XXIII, Rule 1 of the Code of Civil Procedure applies to such cases. It has been observed that 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 in respect of the same cause of action in the High Court under that Article". The decision of this Court in the case of L. Kashi Nath (supra), thus, stands impliedly approved by the Apex Court."

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34. As observed by the Supreme Court in the case of Sarguja Transport (supra) sometimes this practice of bench hunting is adopted by the petitioner with an intention of filing a fresh petition before a more convenient Bench and this kind of malpractice was sought to be discouraged by the Supreme Court in the said case. We do not say for a moment that the decision of the writ applicant to withdraw the Special Civil Application No.4962 of 2019 unconditionally without seeking liberty to file a fresh writ application was a part of the dubious practice of bench-hunting. It may be a case of bench-hunting or may be not. It is possible that at the relevant point of time the writ applicant might have bona fide believed that having regard to the two circumstances referred to above, it would not be now necessary for the writ applicant to pursue the Special Civil Application No.4962 of 2019 any further, and to withdraw the same. However, judicial propriety and decorum demand, more particularly, having regard to the position of law as discussed above that we should not go into all such issues as the present writ application could be said to be not maintainable in law.

35. In the result, this writ application is rejected on the ground that the same is not maintainable in law.

36. At this stage, Mr.Mehta, the learned senior counsel, submitted that since this Court is not inclined to entertain this writ application and has rejected the same, the only remedy now available to his client is to file an appropriate application for revival of the Special Civil Application No.4962 of 2019, if permissible, or to go before the Nigam with an appropriate

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representation requesting the Nigam to determine the period for which the blacklisting order shall remain in operation.

37. We do not say anything in the aforesaid regard and leave it to the better discretion of the writ applicant.

38. The connected writ application, i.e. the Special Civil Application No.15929 of 2020, would also not survive, more particularly, in view of the statement made by Mr.Premal Joshi, the learned counsel appearing for the respondent, that the tender notice in question has already been given effect to and the contract has been awarded to one particular agency. This writ application also stands rejected accordingly.

(J. B. PARDIWALA, J.)

(NIRAL R. MEHTA, J.) /MOINUDDIN