Court No. - 1
Case :- WRIT - C No. - 41990 of 2019 Petitioner :- Rajeev Kumar Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Kamleshwar Singh,Zafeer Ahmad Counsel for Respondent :- C.S.C.
Hon'ble Ramesh Sinha,J. Hon'ble Ajit Kumar,J.
Heard Sri Kamleshwar Singh, learned counsel for the petitioner, learned Standing Counsel for respondent nos. 1, 2, 3 and 4 and perused the record.
By means of this petition under article 226 of the constitution, the petitioner has challenged the order dated 18th of January, 2018 whereby his contract has come to be cancelled.
It transpires from the record that the petitioner even earlier approached this Court by Writ-C No. 31501 of 2018 in which this Court has been pleased to pass the following order on 17.9.2018:-
"Heard Mr Gaurav Tiwari, learned counsel for the petitioner and Mr Rajeev Singh, learned Standing Counsel appearing for the respondent- State.
The only prayer made in the instant writ petition, reads thus:
"I. Issue a writ, order or direction in the nature mandamus commanding the respondent authorities to allow the petitioner to complete the contract work accordingly and may further release the bill of the petitioner amounting to Rs.72,71,744/- towards the contract work completed under the project Kanha Pashu Ashray Yojana."
Apart from the fact that this writ petition arises from a contract that was given to the petitioner, it appears from the letter dated 18.1.2018 (Annexure-12) that the petitioner's contract has been cancelled.
That order has not been challenged in the instant writ petition. In view thereof and this being a contractual matter, the writ petition deserves to be dismissed. Order accordingly. "
The petitioner then subsequently also challenged the advertisement as a consequence to the cancellation of his contract in Writ-C No. 7452 of 2019 which has also come to be dismissed on 7th March, 2019 by the Division Bench.
In our considered opinion, even if, the order was not challenged by the petitioner in those writ petitions, the opportunity was very much there for the petitioner to challenge the same. Applying the principles of civil law a party instituting a case does not come up with a particular relief which may be primary or incidental to the relief already prayed for, then it is not open for such party to institute a fresh civil proceeding in that regard. The principle of constructive res judicata as conceived of under section 11 of C.P.C. is fully attracted in the present case. Even otherwise, we are of the opinion that since the petition has been filed with the same ground and on same facts, the same is clearly barred under Rule 7 of chapter XXII of the Rules of the Court, 1952.
The writ petition is misconceived and is, accordingly, dismissed.
(Ajit Kumar, J.) (Ramesh Sinha, J.) Order Date :- 18.12.2019 Shiraz