Hon'ble Dr. Satish Chandra,J.
(Per Uma Nath Singh, J.) This Writ Petition has been filed with prayers for issuance of (i) a writ, order or direction in the nature of Certiorari for quashment of the order dated 3.6.2007 passed by the Governor of Uttar Pradesh whereby he has refused to grant sanction for prosecution of opposite parties no. 8 and 9, namely, Ms. Mayawati, former Chief Minister, U.P. and the then Member of Parliament (Rajya Sabha) and Shri Naseemuddin Siddiqui, Member of Legislative Assembly in the case arising out of charge sheet dated 15.2.2007 filed in the FIR RC-00620033A0018 vide Criminal Case No. 4 of 2007 registered under Sections 120B, 420, 467, 468 and 471 IPC and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act; (ii) a writ, order or direction in the nature of mandamus directing the C.B.I. to proceed in the matter in accordance with law and (iii) any other order or direction, deemed fit and proper in the facts and circumstances of the case.
The petitioner claims to have filed this writ petition in public interest as according to him the subject matter affects the public at large. The Petitioner has stated that he has no personal or private interest in the matter and there is no authoritative pronouncement by Hon'ble the Supreme Court of India or by this Court on the questions raised in this petition. He claims to be a practising Advocate at the Lucknow Bench of the Allahabad High Court and also states that he is devoted to the cause of upholding the Rule of Law. He wants that the persons who are occupying the High Public Offices and are involved in misappropriation of public funds be punished in accordance with law. It is alleged that the present Writ Petition, filed in public interest, is an attempt on the part of the petitioner to highlight the well entrenched nexus of corrupt politicians and Constitutional functionaries in order to scuttle the course of law and the process of prosecution by abusing their offices.
The petitioner filed Writ Petition No. 733 (MB) of 2011 wherein he impugned the order dated 5.6.2007 passed by the then Special Judge (CBI) refusing to take cognizance against Ms. Mayawati and Shri Naseemuddin Siddiqui on the ground that the statutory sanction under Section 197 Cr.P.C. has not been obtained by the investigating agency, i.e. the Central Bureau of Investigation (hereinafter to be referred to as the CBI). That Writ Petition was dismissed by this Court vide the order dated 5.11.2012 with following observations:-
"We are not deciding the controversy as supra as we have already stated in earlier part of the judgment that the sanctioning authority considers the facts and materials of the case which are collected by the investigating officer during investigation. In this case, sanctioning authority has already refused to accord sanction for the prosecution and the order of sanctioning authority is not challenged before us.
Next submission of the counsel for the petitioners is that this court should direct the CBI to challenge the order of the magistrate of refusal to take cognizance or direct the designated court to proceed in accordance with law. In connection with this submission, it is necessary to point out that in the absence of sanction for the prosecution magistrate or designated court can not proceed in accordance with law. Therefore, this court can not issue any such direction which is not in accordance with law. The protection given under Section 197 Cr.P.C. is to protect responsible public servants against the institution of possible vexatious criminal proceedings for offence alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servant to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause and power to grant or refuse sanction is the exclusive jurisdiction of the sanctioning authority. As observed by the Apex Court in the case of Army Head Quarter Vs. CBI (supra) 'the legislature has conferred "absolute power" on the statutory authority to accord sanction or to withhold the same and the court has no role in this subject. In such a situation the court would not proceed without sanction of the competent statutory authority." In the case of Rambhai Nathabhai Gadvi Vs. State of Gujrat (supra) it has been held, "If the Designated Court has taken cognizance of the offence without a valid sanction, such action is without jurisdiction and any proceedings adopted thereunder will also be without jurisdiction."
In view of the above, there can not be any such direction to trial court to proceed after refusal of sanction for the prosecution."
According to the averments made in the petition, from a bare perusal of the aforesaid observations, it appears that the Coordinate Bench which decided the aforesaid writ petition declined to interfere in the matter on the ground that it is the absolute power of the sanctioning authority to accord or not to accord the sanction and the court has no role on the subject. And in such a situation the court could not proceed without sanction of the competent authority.
It is also stated in the petition that the order of sanctioning authority dated 3.6.2007 was not challenged earlier because no sanction was needed for the prosecution in the present matter and it was mala fide exercise on the part of the CBI to approach the sanctioning authority and to obtain an order of refusal of sanction. But since this Court has categorically held that once the sanctioning authority refused to accord sanction, the Court is absolutely barred to take cognizance, therefore, it has become necessary to challenge the order of the sanctioning authority dated 03.06.2007.
Since the right and need to challenge the order of sanctioning authority has arisen from the judgment of this Court passed on 05.11.2012, there is no delay and laches in filing the writ petition. The physical running of time has not resulted in creating a vested right in favour of any individual, which this Court may not be inclined to disturb. Besides, it is a public interest litigation against the corrupt practices of persons holding high public offices, therefore, it is always open to court to condone the delay and laches and proceed with the matter. It is also pleaded in the petition that this Court has to keep in mind the well established cardinal principle of criminal jurisprudence that a crime never dies and it is the solemn duty of courts to bring the perpetrators of crime to book as a matter of public policy even if the opportunity comes after a lapse of some time.
It is submitted that against the refusal of sanction by the Governor, an application was filed before Hon'ble the Apex Court in the pending Writ Petition (C) No. 13381 of 1984, M.C. Mehta vs. Union of India, inter alia with following prayer:
"...... this Hon'ble Court may kindly be pleased to issue an appropriate writ direction or order:
(i)Concerning the legal validity of CBI seeking a sanction for the prosecution of Uttar Pradesh Chief Minister Ms. Mayawati and Minister Naseemuddin Siddiqui under Section 197 Cr.P.C. by calling for the record of the materials It placed before the Governor for seeking such sanction.
(ii)Directing CBI to produce a copy of the June 3, 2007 sanction order of His Excellency the Governor of U.P. passed in connection with the case pending before the Special Judge/competent court based on FIR RC 0062003A0018.
(iii)Passing appropriate directions on the legal validity or otherwise of the June 3, 2007 order of His Excellency the U.P. Governor refusing under Section 197(1) Cr.P.C. sanction for the prosecution of Chief Minister Ms. Mayawati and Minister Naseemuddin Siddiqui in relating to FIR RC 0062003A0018 registered against them by the CBI pursuant to the September 18,2003 order of this Hon'ble Court in IA 376 in CWP No. 13381 of 1984 and the investigation on which with the opinion of the CBI Superintendent of Police was directed by this Hon'ble Court on November 27, 2006 to be placed the court/Special Judge concerned for deciding the matter in accordance with law, and
(iv)Declaring that the sanction orders passed under Section 197(1) Cr.P.C. are in the public domain and hence cannot be classified as secret."
The aforesaid application was dismissed with the following observations:
"We may observe that while entertaining public interest litigation in a given case, this Court may exercise a jurisdiction to set aside the decision of a constitutional authority, but we are not concerned with such a situation. We, therefore, are of the view need not go further than what we have already said in our order, dated 27.11.2006 to go into the correctness or otherwise of the order of the Governor. If no sanction of the Governor was required or if he has committed an error in passing the said order, the appropriate court, in our opinion, would be entitled to deal therewith, but not this Bench." (Annexure-3) During the earlier tenure from 2002-2003 of opposite parties no. 8 and 9, as the Chief Minister and Cabinet Minister of the State, a plan to beautify the Taj Mahal in Agra and in the process, to reclaim land from the Yamuna river and to divert its course, was mooted. During the course of implementation of the said project, financial bungling to the tune of Rs. 17 crores came to light.
Subsequently, an interlocutory application was filed in Hon'ble the Apex Court by someone, in Writ Petition (C) No. 13381 of 1984, M.C.Mehta vs. Union of India and others, praying for, inter alia, stern action against those who were involved in the aforesaid misdeeds.
During the course of disposal of aforesaid application, Hon'ble the Apex Court vide the order dated 16.7.2003 directed the CBI to conduct a preliminary enquiry and submit a report before the court, and by another order dated 21.8.2003, the Hon'ble Court directed the CBI to enquire into the assets of the persons involved in the Taj Corridor scam. However, the later order and the investigation in pursuance of the said order is not relevant for the purpose of the present petition.
After the receipt of the report of the preliminary enquiry conducted by the CBI, Hon'ble the Apex Court vide the order dated 18.9.2003 directed the CBI to register an FIR against the persons involved in the offences including opposite parties no. 8 and 9.
In pursuance of the direction issued by Hon'ble the Apex Court, the CBI registered a case as RC No. 0062003A0018 against opposite parties no. 8 and 9 and probably some other persons under Sections 120B, 420, 467, 468 and 471 IPC.
After conclusion of the investigation, the CBI drew a charge sheet against opposite parties no. 8 and 9 under sections 120B read with Sections 420, 467, 468 and 471 IPC and under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act.
From a perusal of the charge sheet it would be revealed that the CBI itself had taken a stand that for prosecution of the private respondents, sanction under Section 197 Cr.P.C. is required. Consequently, in stead of filing the charge sheet and seeking the attendance of the private respondents before the trial court, it placed the charge sheet before the Governor of U.P. for the purpose of obtaining sanction.
Shri T.B. Rajeshwar, holding the office of the Governor of U.P., vide his order, dated 3.6.2007 refused to grant sanction for prosecution of the opposite parties no. 8 and 9 in the matter pertaining to the FIR RC0062003A0018.
According to the petitioner the action of the CBI in making an attempt to obtain sanction for prosecution of the private respondents, apart from being illegal, was in violation of the direction given by Hon'ble the Apex Court in its order dated 27.11.2006 wherein the CBI was asked to place the charge sheet along with the evidence/material collected by it.
Thereafter the CBI filed the charge sheet before the concerned court on the ground that the CBI has not been able to procure the necessary sanction under Section 197 Cr.P.C. refused to take cognizance and issue process.
The investigating officer submitted the prayer as under in the charge sheet:
"47 That the aforesaid facts disclose commission of offences under Section 120B read with Section 420, 467, 468, 471, IPC and 120B read with Section 13(2) and 13(1)(d) of P.C. Act 1988, and substantive offence thereof against Ms. Mayawati Govt. U.P.
48 That it is further submitted that requirement of prosecution sanction against each accused under Section 19 of P.C. Act and 197 of Cr.P.C. is mentioned as below:
S.No.
Name of the accused 19 PC Act 197 Cr.P.C.
Competent authority 1 Ms. Mayawati Not required Required Hold official position abused Govt. of U.P.
Mr. Naseemuddin Siddiqui Not required Hold official position abused Govt. of U.P.
49.That it is submitted that this report is being filed pursuance to the direction of Hon'ble Supreme Court vide judgment, dated 27.11.2006 in IA no. 431 in W.P. (C) No. 13381 of 1981 of M.C. Mehta (petitioner) vs. Union of India and others (copy enclosed) in which, it was directed inter alia as below:
"We accordingly direct the CBI to place the evidence material collected by the investigation team along with the report of the S.P. as required under Section 173(2) Cr.P.C. before the concerned court/special judge, who will decide the matter in accordance with law."
According to the petitioner from a perusal of the charge sheet, it is evident that the prosecution sanction order under Section 19 of the Prevention of Corruption Act is not required against Ms. Mayawati and Shri Naseemuddin Siddiqui. However, the sanction for prosecution under Section 19 of the Prevention of Corruption Act was also refused by His Excellency the Governor, which is patently illegal.
It is also the submission that the order of the Governor of U.P. is actuated with mala fide because when the CBI had collected sufficient evidence in support of its case against Ms. Mayawati and Shri Naseemuddin Siddiqui, there was hardly any occasion for the Governor to have applied his mind in the matter. It is also a contention in the petition that the malafide is obviously on account of the fact that during the relevant point of time, the Congress Party, which had come in power at the centre and had appointed a new Governor, had solicited the support of Bahujan Samaj Party, headed Ms. Mayawati for the presidential elections. As a quid pro-quo gesture, the members of the Congress Party had offered to bail out Ms. Mayawati and her associate, Shri Naseemuddin Siddiqui in the pending criminal proceeding related to the Taj Corridor. In fact, Ms. Mayawati is herself on record to have said that the Congress Party had offered her to bail out in pending criminal cases on the consideration of an electoral alliance.
A bare reading of the impugned order, shows that the Governor passed the same after seeking opinion of legal experts. The opinion of Mr. Gopal Subramanium, the then Additional Solicitor General of India was sought and on the basis of his opinion dated 31.5.2007, the impugned order was passed.
The relevant portion of the impugned order passed by the Governor has been referred to and is reproduced in the petition as under:
"The CBI had forwarded a report of the Superintendent of Police C.B.I., Lucknow, on the Taj Heritage Corridor case, along with the documents, to the Chief Secretary, Govt. of U.P. on 22.02.2007, with the request for grant of sanction from the competent authority, the Governor, under Section 197 of Cr.P.C. against Ms. Mayawati, Chief Minister of Uttar Pradesh and Mr. Naseemuddin Siddiqui, Minister in the Government of Uttar Pradesh, in CBI Case No.RC 0062003A0018 U/s 120B read with 420, 467, 468, 471 and Section 120B IPC read with 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988 and substantive offences thereof. The file was retained in the Law Department and was put up to the Chief Minister, Mr. Mulayam Singh Yadav along with the brief opinion of the Advocate General, U.P. on 07.05.2007. The Chief Minister signed the same day and sent the file to Raj Bhavan on 08.05.2007."
It is also pointed out that if the file submitted to the Governor already contained the opinion of Advocate General of the State of U.P., that opinion also should have been reflected in the impugned order. There is no any mention as for what reasons the Governor was required to seek the advice of Additional Solicitor General of India, who is not a Law Officer of the State of U.P. It is also submitted that in considering the materials for grant of sanction, the Governor exercises the executive power of the State and does not act as an agent of the Central Government (and certainly not as an agent of any political party). There is yet another caustic averment in the petition that the act of obtaining the opinion of Additional Solicitor General of India, clearly indicates that the opinion was managed by the Congress Party which had solicited the support of Ms. Mayawati for election to the President of India.
It is also an argument that Shri T. B. Rajeshwar, who was holding the office of the Governor of U.P. having been appointed at the behest of the Congress Party, rushed to help Ms. Mayawati on the line of action planned by the managers in Congress Party. The Governor not only refrained from acting on the advice of the Council of Ministers but also referred the matter to the Additional Solicitor General for latter's advice against the mandate of constitution and in violation of the duty of State Law officers.
It is submitted that the Council of Ministers has to consider grant of sanction first, before it is to be placed before the Governor and there is presumption that the Council of Ministers would normally act in a bonafide manner, fairly, honestly and in accordance with law. However, there may be rare occasions when on facts, bias becomes apparent and the decision of the Council of Ministers is shown to be irrational and based on non-consideration of relevant facts. In that case the Governor would be right, on the facts of that case, to act in his own discretion.
It is further submitted that the impugned order does not disclose that before exercising his own discretion in the matter of refusal to grant sanction, the Governor has considered the decision of Council of Ministers and after having found that it was irrational, and is also based on non-consideration of the relevant facts that he proceeded to exercise his own discretion. Therefore the petitioner has alleged malice in law in the action of the Governor.
In order to establish the fact that the Governor took keen interest in the matter and did not act impartially, the petitioner has again extracted a part of the impugned order as:
"The CBI has requested for grant of sanction under Section 197 of Cr.P.C., however, perusal of the record, sent by the CBI, shows that the CBI has leveled charges under Section 13(1)(d), Section 13(2) of the Prevention of Corruption Act, 1988 also against Ms. Mayawati and Mr. Naseemuddin Siddiqui. It appears that the CBI did not request for grant of sanction under Section 19(1) of the Prevention of Corruption Act, 1988 in its letter dated February 22, 2007 because at that time Ms. Mayawati as well as Mr. Naseemuddin Siddiqui were not public servants. However, while I was examining the case after the file was received in Raj Bhawan, Ms. Mayawati and Mr. Naseemuddin Siddiqui were sworn in as Chief Minister and Minister respectively in the newly formed Government of Uttar Pradesh with effect from May 13, 2007. In the changed circumstances, since the S.P.'s report makes out a case under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 against Ms. Mayawati and Mr. Naseemuddin Siddiqui, I thought it proper to examine their cases for grant of sanction under Section 19(1) of the Prevention of Corruption Act also and hence requested the Additional Solicitor General to treat the reference of the CBI as one which sought the sanction of the competent authority under Section 19(1) of the Prevention of Corruption Act, 1988 also and give his opinion on this as well."
Thus, according to the petitioner, such an extraordinary interest could have been created only due to some ulterior motive and out of extraneous consideration.
Thus, it has been prayed that the impugned order is liable to be quashed only on the ground that it was passed with malafide intention; ulterior motive and on extraneous consideration.
It is also a pleading that the scope of application of Section 197 of the Criminal Procedure Code has been dealt with in great detail in the matter of Rakesh Kumar Mishra vs. State of Bihar (2006) 1 SCC 557. Hon'ble the Apex Court has held as under:
"12. It has been widened further by extending protection to even those acts or omissions which are done in purported exercise of official duty; that is' under the colour of office. Official duty, therefore, implies that the act or omission must have been done by the public servant in the course of his service and such act or omission must have been performed as part of duty which further must have been official in nature. The section has, thus, to be construed strictly, while determining its applicability to any act or omission in the course of service. Its operation has to be limited to those duties which are discharged in the course of duty. But once any act or omission has been found to have been committed by a public servant in the discharge of his duty then it must be given liberal and wide construction so far its official nature is concerned. For instance a public servant is not entitled to indulge in criminal activities. To that extent the section has to be construed narrowly and in a restricted manner. But once it is established that an act or omission was done by the public servant while discharging his duty then the scope of its being official should be construed so as to advance the objective of the section in favour of the public servant. Otherwise the entire purpose of affording protection to a public servant without sanction shall stand frustrated. For instance a police officer in the discharge of duty may have to use force which may be an offence for the prosecution of which the sanction is necessary. But if the same officer commits an act in the course of service but not in the discharge of his duty and without any justification therefore then the bar under Section 197 of the Code is not attracted."
Further, according to the petitioner, the above view has been reiterated in the case of Hamidbhai Azambhai Malik vs. State of Gujrat, (2009) 2 SCC 402. Hon'ble the Apex Court has observed as given below:
"18. The direction which had been given by this Court, as far back as in 1971 in Bhagwan Prasad Srivastava case holds good even today. All acts done by a public servant in the purported discharge of his official duties cannot as a matter of course be brought under the protective umbrella of Section 197 Cr.P.C. On the other hand, there can be cases of misuse and/or abuse of powers vested in a public servant which can never be said to be a part of the official duties required to be performed by him. As mentioned in Bhagwan Prasad Srivastava case the underlying object of Section 197 Cr.P.C. is to enable the authorities to scrutinize the allegations made against a public servant to shield him/her against frivolous, vexatious or false prosecution initiated with the main object of causing embarrassment and harassment to the said official. However, as indicated hereinabove, if the authority vested in a public servant is misused for doing things which are not otherwise permitted under the law, such acts cannot claim the protection of Section 197 Cr.P.C. and have to be considered dehors the duties which a public servant is required to discharge or perform. Hence, in respect of prosecution for such excesses or misuse of authority, no protection can be demanded by the public servant concerned."
In view of the aforesaid legal proposition laid down by Hon'ble the Apex Court, it is pleaded that no protection has been provided against prosecution of a public servant in respect of commission of an act which is not permitted under the law. It is already settled that allegations which lead to commission of an offence under Section 467, 468 and 471 read with 120B of Indian Penal Code cannot be termed as a part of duty of a public servant.
According to the petitioner, the Governor has dealt with the report of CBI as an Appellate Authority. He has evaluated every piece of evidence collected by the Investigating Officer and came to the conclusion that the evidence is not trustworthy and reliable. As an illustration, para-22 of the impugned order has been extracted as given below:
"22. The approval of the Chief Minister as recorded by Mr. Punia on 31.10.2002, is the crux of the whole case as far as Ms. Mayawati is concerned. She categorically denies that this file was ever shown to her by Mr. Punia. Mr. Punia in his statement under Section 161 Cr.P.C. deposed on 17.5.2004, says that he showed this file to the C.M. and explained the contents to her. However, Mr. Punia had given a different statement on 26.8.2003, during his examination at the time of preliminary enquiry when he said that he had given the statement under pressure. Since the question during the preliminary enquiry, had been put to Mr. Punia, his statement in the preliminary enquiry becomes relevant to this case. A perusal of the preliminary enquiry shows that Mr. Punia had categorically stated at that time that he did not show the file to Ms. Mayawati and recorded approval on her behalf, without consulting the Chief Minister, because in his opinion it was merely a routine matter. The prevarication by Mr. P.L. Punia was clearly meant to exculpate himself. If his first statement during the preliminary enquiry was incorrect, his subsequent statement u/s 161 should also be deemed to be unreliable. There is no evidence to prove that Ms. Mayawati gave approval on the file except for the oral evidence of Mr. Punia, who himself is named in the FIR and was a co-accused. Hence, it cannot be held beyond doubt that Ms. Mayawati had accorded her approval on the file."
The Governor, thus, while examining the report under Section 173 Cr.P.C., has held that the ingredients of the alleged offences committed by the Respondent nos.8 and 9 are not made out. It is noteworthy that the power of the Governor under Section 197 is not in the nature of judicial review, but an administrative power and is limited to the extent of examining as to whether the act done by the public officer has been done in the discharge of his official duty. As such, the Governor has acted beyond his jurisdiction.
It is also submitted that in the impugned order, the Governor has appreciated Additional Solicitor General for his opinion, which is totally out of context. It is also in the pleadings that the opinion was obtained in lieu of appreciation or other consideration. The relevant portion of the impugned order has been extracted in the petition as:
"Before parting I would like to emphasize that the opinion of ld. A.S.G. was sought with a view to dispose of the matter objectively and lawfully and also to ensure dispensation of justice at my end. The opinion of ld. A.S.G. is so exhaustive and comprehensive on the points of law and facts that I am indeed grateful to him for his efforts. Mr. Gopal Subramanium has waived his privilege for making his opinion public and therefore a copy of the same is enclosed along with my order."
It is also an averment that investigation in the case was carried out under the monitoring of Hon'ble the Supreme Court. The CBI filed its report under Section 173 Cr.P.C. after collecting all relevant materials and came to the conclusion that the offences as alleged are made out against Respondent nos.8 and 9. Thus, according to the petitioner, there is overwhelming material to show that a prima facie case is made out. The Governor has acted unfairly and unreasonably to hold that no case is made out against Respondent nos.8 and 9.
In the case of M.P. Special Police Establishment vs. State of M.P. (2004) 8 SCC 788, the Supreme Court has held that in a matter where a prima facie case is clearly made out, if the sanction to prosecute high functionaries is refused or withheld, the survival of democracy itself will be in danger. It would then lead to a situation where people in power may break the law with impunity under the confidence that they will not be prosecuted as the requisite sanction will not be granted in their cases.
It has also been pleaded that so far as the offence under Section 120B of the Indian Penal Code is concerned, it may not be possible in a given case even to prove conspiracy by direct evidence. It was for the court to arrive at the conclusion about the commission of offence of conspiracy upon materials placed on record during the course of trial which may also include the oral testimony of witnesses. Such a relevant consideration was apparently absent in the mind of the Governor when he passed an order refusing to grant sanction. It is now well settled that refusal to take into consideration a relevant fact or acting on the basis of irrelevant and extraneous factors not germane to the purpose of arriving at the conclusion would vitiate an administrative order. In this case, on the evidence collected by the CBI, it could not have been concluded at the preliminary stage that no case is made out.
It is well settled that the exercise of administrative power will stand vitiated if there is a manifest error on record or the exercise of power is arbitrary. Similarly, if the power has been exercised on non-consideration or non-application of mind to relevant facts the exercise of power will be regarded as manifestly erroneous.
Shri C.B. Pandey, learned counsel for the petitioner, relying upon the judgment of Hon'ble the Apex Court in the matter of M.P. Special Police Establishment (supra) submitted that in the matter of grant of sanction under Section 197 Cr.P.C., the Governor exercises power as Executive Head. Thus, he should act on advice of council of Ministers. However, on such rare occasions when on facts the advice becomes apparent and/or decision of the council of Minister is shown to be irrational and based on non-consideration of relevant facts that the Governor would be right on the facts of the case to act in his own discretion.
Besides, it may not be possible in a given case even to prove conspiracy by direct evidence. It was for the court to arrive at the conclusion regarding the commission of the offence of conspiracy upon the material placed on record of the case during trial, which would include oral testimonies of the witnesses.
He also referred to the judgment of Hon'ble the Apex Court in the matter of B.R. Kapur vs. State of T.N. & another, reported in (2001) 7 SCC 231, and contends that Advocate General is appointed by the Governor under Article 165. It is the duty of Advocate General is to give advice to the Government of the State upon such legal matters and to perform such other duties of a legal character as may from time to time be referred or assigned to him by the Governor. Therefore, unless a situation arises as a result whereof the Advocate General disables or disentitles himself, the Governor may not pick and choose legal experts for opinion.
He also contends that the Governor cannot in the exercise of his discretion or otherwise do anything that is contrary to the Constitution and Laws.
He also referred to and relied upon the judgments of Hon'ble the Apex Court in the case of Rakesh Kumar Mishra Vs. State of Bihar & ors reported in (2006) 1 SCC 557, and Hamidbhai Azambhai Malik Vs. State of Gujarat, reported in (2009) 3 SCC 403. He thus, submits that the scope of application of Section 197 Cr.P.C. is very limited and there is no protection to prosecute a public servant for commission of an act, which is not permitted under the law. It is already settled that the allegations which lead to commission of an offence under Section 467, 468 and 471 read with 120B of Indian Penal Code cannot be termed as a part of duty of a public servant.
It is also submitted that the Governor's powers under Section 197 is not in the nature of judicial review, but is an administrative power which is limited only to the extent to examine as to whether the act done by the public officer has been done in the discharge of his official duty.
He also asserts that sanction under Section 19 of Prevention of Corruption Act was not required as on the date of taking cognizance, the accused held the office in different capacity. Therefore, the Governor erroneously considered question of sanction under Section 19 of Prevention of Corruption Act and rejected the application illegally contrary to the ratio of judgment of Hon'ble the Apex Court passed in the case of Abhay Singh Chautala Vs. C.B.I. reported in (2011) 7 SCC 141.
Learned counsel further contends that the Governor enjoys complete immunity and he is not answerable to any Court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties. The immunity granted by Article 361(1) does not, however, take away the power of the Court to examine the validity of his action including on the decision taken on the ground of malafides as held by Hon'ble the Apex Court in the case of Rameshwar Prasad Vs. Union of India, reported in (2006) 2 SCC 61.
In the counter affidavit filed on behalf of opposite party no. 4, Union of India, by way of preliminary submissions, it is pointed out that the writ petition being misconceived is not maintainable on facts as well as in law and it deserves to be dismissed in limine. The petitioner herein had earlier approached this Court by way of filing writ petition no. 733 (M/B) 2011, which was also instituted allegedly in public interest against the order dated 03.06.2007. The order is of the year 2007 but the petitioner has again chosen to file the present petition in the year 2012, and that too, after a detailed judgment has been rendered by a Division Bench of this Hon'ble Court dated 05.11.2012 dismissing all writ petitions including the one filed by the petitioner. It is also submitted that filing of the present petition not only suffers from the vice of gross delay and laches but in praying for a relief by way of challenge to the order passed by the Governor of Uttar Pradesh dated 3.6.2007, also amounts to a grossest abuse of process of law. The petitioner was himself before a Division Bench of this Court and availed the fullest opportunity to pray for all the reliefs, including the one prayed herein, in earlier group of petitions including writ petition No. 733 (M/B) of 2011 filed by the very petitioner on the subject matter again impugned herein. The contention that the cause of action to challenge the order dated 3.6.2007 for the first time arose after the judgment of the Division Bench was pronounced on 5.11.2012, is a wholly untenable and is only an eyewash, urged, to overcome the laches and delay on the part of the Petitioner. The present petition was filed only in the year 2012 after a lapse of five and half years of the order dated 3.6.2007 giving rise to cause of action, if any. It is, therefore, liable to be dismissed on this ground alone without entering into any other contention urged by the petitioner.
It is urged that the writ petitioner, namely, Shachindra Pratap Singh had earlier filed Writ Petition No. 733 (MB) of 2011 before this Court challenging the Order dated 05.06.2007 passed by the Ld. Designated Court whereby it was held that "in the absence of sanction to prosecute Ms. Mayawati and Shri Naseemuddin Siddiqui, the Court has no jurisdiction either to take cognizance or to proceed further in respect of Ms. Mayawati and Shri Naseemuddin Siddiqui in the case". The Governor of Uttar Pradesh vide his Order dated 03.06.2007 had declined to grant sanction to the CBI to prosecute Ms. Mayawati and Shri Naseemuddin Siddiqui in exercise of his statutory power under Section 19 of the Prevention of Corruption Act, 1988 and Section 197 of the Code of Criminal Procedure . It is also submitted that the petitioner herein had earlier only challenged the Order dated 05.06.2007 in his earlier Writ Petition No.733 (MB) of 2011 and did not challenge the order dated 03.06.2007 passed by the Governor knowing fully well that this Court vide the Order dated 18.09.2009 in W.P. No. 2019 (MB) of 2009, Kamlesh Verma Vs. Union of India had rejected the prayer to quash the aforesaid order dated 03.06.2007.Writ Petition No. 733 (MB) of 2011 was connected with W.P.No. 2019 (MB) of 2009 and final judgment came to be passed on 05.11.2012 by a Division Bench dismissing all the six Writ Petitions. In this background, according to Union of India, it has to be considered as to whether a second Writ Petition under Article 226 of the Constitution of India filed by the Petitioner challenging the order dated 03.06.2007 passed by the Governor of Uttar Pradesh which formed basis for issuing the order dated 05.06.2007 passed by the Ld. Designated Court could lie. In other words, after the final judgment of this Court on 05.11.2012, the adjudication on the order dated 05.06.2007 has attained finality not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated having found them to be incidental to or essentially connected with subject matter of the litigation and also every such matter coming into the legitimate purview of the original matter. Thus the present Writ Petition being the second Petition will be barred on the principle of res-judicata, constructive res-judicata and /or on principles analogous there to. It is submitted that these principles would be equally applicable to the exercise of writ jurisdiction of this Court under Article 226 and 227 of the Constitution of India.
The aforesaid binding decision of this Court rendered in group of writ petitions being writ petition No. 2087( MB) of 2009 (Anupama Singh Vs. CBI and others) connected, amongst other writ petitions, also with Writ Petition No. 733 (MB) of 2011 (Sachindra Pratap Singh Vs. Union of India) cannot be ignored either on the ground that the earlier proceedings did not contain or consider a challenge to the decision of the Governor of Uttar Pradesh dated 03.06.2007 or on the ground that the issue about the legality and validity of the order dated 3.6.2007 only collaterally or incidentally arose at the time of this Court's decision dated 5.11.2012 in the said group of writ petitions. It is also submitted that such an attempt on the part of the petitioner, to belittle the earlier proceedings and judgment of this Court is not only perverse but also amounts to gross abuse of process of law which may perhaps also come within the purview of contempt of this Court. It is so because the petitioner was not only aware of the order dated 3.6.2007 but also had fullest opportunity to challenge that order. But at no point of time, the petitioner chose to challenge the order dated 3.6.2007. It is presumably so because the petitioner was well aware that even at the time of instituting the earlier petition such a challenge by him to the order dated 3.6.2007 was barred in law. It is a matter of fact that the order dated 3.6.2007 was impugned directly in a writ petition filed under Article 32 of the Constitution of India before Hon'ble the Apex Court vide Writ Petition No. (Crl.) No 29/2009 titled Satish Kumar Vs. Union of India and others which was dismissed by an order of the Hon'ble Court on 24.7.2009. Thus, in view of the dismissal of a writ petition on the same cause of action by Hon'ble the Apex Court, the challenge to the legality and validity of the order dated 3.6.2007, is set at rest. It is in this background that the petitioner chose to challenge only the order dated 5.6.2007 of the competent Court. As such, the attempt to file the present petition by relying upon certain observations of the Division Bench while dealing with the petition filed by the petitioner earlier with a group of matters is a patent abuse of process of this Court.
It is reiterated that the genesis of the Order dated 05.06.2007 of the learned Designated Court is the order dated 03.06.2007 of the then Governor of Uttar Pradesh, therefore, the order dated 05.06.2007 does not give rise to a separate cause of action. On the contrary the issues are so interwoven, overlapping and congruent that challenging the one in law would amount to challenging the other in so far as the issue of cause of action is concerned.
According to Union of India, apart from what have been submitted hereinabove, the petition is legally not maintainable and is liable to be dismissed at the outset also for the following reasons:-
(i) This Court vide its Order dated 18.09.2009 in W.P.No. 2019 (MB) of 2009, Kamlesh Verma Vs. Union of India rejected the amendment application seeking to challenge the Order dated 03.06.2007 passed by the Governor of the State of Uttar Pradesh.
(ii) This Court vide final judgment dated 05.11.2012, while deciding Six writ petitions bearing Writ Petition Nos. 2087 (MN) of 2009, 2019 (MB) of 2009,700 (MB) of 2011, 2795 (MB) of 2009, 733 (MB) of 2011 and 701 (MB) of 2011 also noticed the order dated 18.9.2009 rejecting the amendment application challenging the order of the Governor dated 3.6.2007 and observed thus:
" At this juncture , it would be useful lto quip here that challenge to the validity of order refusing sanction is not before us. This Court in the Writ Petition No. 2019 (MB) of 2009, Kamlesh Verma, had rejected the amendment application on the premises that petitioner did not want to propose relief (1-B) namely; for quashing the order passed by his Excellency , the Governor , refusing sanction".
It is submitted that Writ Petition No. 733 (MB) of 2011 which was disposed of with the bunch of petitions was filed by the petitioner himself. He was represented at the time of hearing through the same learned counsel Shri C.B.Pandey, Advocate who did not choose to make any submissions qua the Order dated 03.06.2007 passed by the Governor of the State of Uttar Pradesh as is evident from the prayer part of the writ petitions.
The Coordinate Division Bench in its final judgment dated 05.11.2012 also noticed the challenge to the Order dated 03.06.2007 passed by the Governor of the State of Uttar Pradesh refusing to grant sanction to prosecute respondent Nos.8 and 9 in as many as four different proceedings filed by four different petitioners which were dismissed by Hon'ble the Apex Court. These proceedings are as under:-
a) Criminal Misc. Petition No. 8587 of 2007, Ram Mohan Garg Vs. State of U.P. & Anr.
b) Writ Petition (C) No. 434 of 2007, Rohtash Singh Nagar Vs. Union of India & Ors..
c) I.A No. 465 of 2007 filed by Amicus Curiae in W.P. No. 13381 of 1984 , M.C. Mehta Vs. Union of India & Ors.
d) Writ Petition (Crl) No. 29 of 2009, Satish Kumar Vs. Union of India & Ors.
It is also a submission that this Court vide its final judgment dated 05.11.2012 has dismissed all the aforesaid six Writ Petitions including the Writ Petition No. 733 (MB) of 2011 filed by the Petitioner, holding the Order dated 05.06.2007 passed by the Ld. Designated Court to be perfectly in accordance with law and the petitioners are not entitled to any relief as claimed. The order dated 05.06.2007passed by the learned Designated Judge is reproduced as:-
"5.6.2007.
In compliance of order of Hon'ble Supreme Court in Writ Petition No. 13381/1984 M.C. Mehta Vs. Union of India dated 27.11.2006, the CBI has filed police report u/s 173 (2) Cr.P.C along with report of SP and entire related material against Ms. Mayawati Sh. Naseemuddin Siddiqui Sh. R.K.Sharma and Sh. Rajendra Prasad u/s 120 B, 420, 467, 468 and 471 I.P.C and Sec. 13(2) read with 13 (1) (d) of Prevention of Corruption Act, 1988 on 15.2.2007.
Since the sanction to prosecute was not filed on that date i.e 15.2.2007 the accused persons being public servants, CBI sought time to file sanction u/s 197 Cr.P.C and Se. 19 (1) of Prevention of Corruption Act, alleging that the process for obtaining sanction may entail three months time. Thereafter court passed an order stating that in the absence of sanction to prosecute u/s 197 Cr.P.C and Sec. 19 (1`) of Prevention of Corruption Act, 1988 it is not possible for the court to take cognizance against the accused persons and posted the case for 15.5.2007 for taking cognizance.
On 15.5.2007 CBI moved an application alleging that sanction against accused persons is till awaited, further date may be fixed accordingly.
Today the CBI has filed an application stating in para 3 of the same that H.E the Governor of U.P. who is competent authority to accord sanction for prosecution in respect of Ms. Mayawati and Sh. Naseemuddin Siddiqui has declined to give sanction u/s 197 Cr.P.C and Sec. 19 (1) of Prevention of Corruption Act, 1988 for the prosecution of Ms. Mayawati and Sh. Naseemuddin Siddiqui for the offences u/s 120 B r/w 420,467,468,471 IPC and substantive offences thereof along with Sec. 120 IPC r/w 13 (2) r/w 13(1) (d) of Prevention of Corruption Act , 1988 vide order dated 3.6.2007. The order of competent authority along with opinion of Additional Solicitor General of India has also been submitted by the CBI.
As observed earlier by the Court in the order dated 15.2.2007 that in the absence of sanction to prosecute Ms. Mayawati and Sh. Naseemuddin Siddiqui , this Court has no jurisdiction either to take cognizance or to proceed further in respect of Ms. Mayawati and Sh. Naseemuddin Siddiqui in this case .
An adjournment application has been moved on behalf of Sh. R.K.Sharma seeking time to file supplementary replication which is granted and the case is fixed on 5.7.2007 for filing of supplementary replication/ disposal and for further proceedings in respect of other accused persons."
In this background, the maintainability of writ petition becomes questionable. The prayers as made in the present writ petition no.10057 (MB) of 2012 are referred to as:-
"1. To issue a Writ, Order or direction of or in the nature of Certiorari to quash the impugned order dated 03.062007, passed by his Excellency the Governor, contained in Annexure No. 1 to this Writ Petition.
2.To issue a Writ, Order or direction or in the nature of Mandamus directing the CBI to proceed in the matter in accordance with law"
In his earlier petition No. 733 (MB) of 2011, the petitioner had made the following prayers:-
"(1) to issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 05.06.2007 , contained in Annexure No. 1 to this writ petition and direct the designated court to proceed in accordance with law; or (2) to issue any other order or direction deemed fit and proper in the facts and circumstances of the case to ensure that the prosecution in the Taj Corridor scam case is taken to its logical conclusion; (3) to allow this writ petition with costs"
Thus, according to Union of India, the issue of validity or otherwise of the order dated 3.6.2007 passed by the Governor of Uttar Pradesh while declining the sanction to prosecute could be well contended to have already been considered by the Division Bench decision dated 5.11.2012 rendered in a group of petitions. Having discussed the decision of sanctioning authority extensively it is held that-
"Power of granting sanction for the prosecution or refusing sanction for prosecution is in the exclusive domain of the sanctioning authority."
It is further held that-
"for granting or withholding the sanction, the satisfaction of the sanctioning authority is sufficient"
The Coordinate Division Bench in the aforesaid judgment has also observed in the following terms:
"When the Government refuse to sanction section 114 (e) of the Evidence Act raises presumption that official acts have been regularly performed."
In view of the said categorical findings of the Division Bench, it is contended that it is now established beyond the shade of doubt that the issue relating to refusal of sanction to prosecute cannot once again be re-opened in the garb of the present Public Interest Litigation. Furthermore, it has also been held in the said decision by the Division Bench as:
"We are not deciding the controversy as Supra as we have already stated in earlier para of the judgment that sanctioning authority considers the facts and material of the case which are collected by the Investigating Officer during the investigation."
In the light of all the above observations and findings of the Coordinate Division Bench, it is averred on behalf of Union of India that the petitioner cannot be permitted to maintain the present writ petition merely on the ground of an observation of the Division Bench that the order of the sanctioning authority is not challenged before us. It is reiterated that the Division Bench in dismissing the group of Public Interest Litigations was fully cognizant with the facts that the sanctioning authority in its discretion on the facts and circumstances of the case had declined to grant the sanction. The Coordinate Division Bench while relying upon the observations of Hon'ble the Supreme Court in the case of Army Headquarters v. CBI (2012) 6 SCC 228 has also observed that the:
"Legislature has conferred absolute power on the statutory authority to accord sanction or withhold the same and the court has no role in the subject."
Thus in the light of the above findings of the Division Bench coupled with the fact that a writ petition calling in question the order dated 03.06.2007 whereby the sanction to prosecute was declined has been dismissed by Hon'ble the Supreme Court [Writ Petition (Crl.) No. 29/2009] vide an order dated 27.4.2009, none of the contentions urged by the petitioner deserves consideration for maintaining the present writ petition. That apart, it is also submitted that this Court may apply the principle of estoppels and dismiss the petition. Besides, the petitioner who was earlier also a litigant before this Court is now not entitled to maintain the present petition by merely changing the nature of relief when the subject matter of the issue remains the same.
It is also contended that this Court in its final judgment dated 05.11.2012 has recorded a finding that there is no illegality in applying for sanction to prosecute when the investigating officer was of the opinion that the alleged offences have been committed in discharge of official duty. The Coordinate Division Bench of this Court was of the view that the action of the investigating officer cannot be said to be wrong because the sanctioning authority refused to grant sanction, while exercising the absolute power to grant or decline was vested in it.
It is also submitted that grant of any relief to the petitioner in terms of the prayer made above would amount to review of the order dated 18.09.2009 whereby this Court had rejected the amendment application challenging the order dated 03.06.2007 passed by the Governor of the State of Uttar Pradesh. The petitioner who filed writ petition in the year 2011 has almost repeated the same prayers as made in the other five writ petitions. It was already open to him to pray for quashing of the order dated 03.06.2007 in the said petitions, however, not only he consciously did not choose to challenge the said order but also preferred to accept the earlier order dated 18.09.2009 which was not even interfered with by Hon'ble the Supreme Court in SLP (C) No.25937 of 2009-Ms. Mayawati v. Kamlesh Verma and others. It is also submitted that after final decision of this Court on 05.11.2012 in Writ Petition No.733 (MB) of 2011, it is impermissible to raise the same issue once again. It is barred by the principles of constructive res-judicata or the analogous principles, apart from being barred by delay and laches.
It is also a contention on behalf of Union of India that Hon'ble the Apex Court in the case of M. Nagabhushana v. State of Karnataka & Ors.-2011 (3) SCC 408, disapproved such an attempt like the one, made herein, to re-agitate the same issue. It is not permissible to disregard the earlier judgment of the Court on the same issue.
It is further contended in the preliminary reply to the averments made by the petitioner that the petitioner has filed the instant writ petition feeling aggrieved by the common judgment and order dated 05.11.2012 passed by this Court in Writ Petition Nos. 2087 (MB) of 2009, 2019 (MB) of 2009, 700 (MB) of 2011, 2795 (MB) of 2009, 733 (MB) of 2011 and 701 (MB) of 201, which is clear from the last date mentioned at the bottom of list of dates, as given hereinbelow:
12. 05.11.2012 This Court vide common judgment and order, dismissed all the writ petitions on the ground that the Governor had refused sanction in the matter and there is no remedy once the sanction is refused.
Therefore, the need to challenge the Governor's order has arisen.
Hence, the present writ petition.
Thus, such a cause is not open to the petitioner.
It is pointed out that in the contents of para 9 of the writ petition, the petitioner has misinterpreted the judgment dated 05.11.2012 so as to assail the order dated 03.06.2007 on an absolutely erroneous premise which is unknown to constitutional law for invoking the writ jurisdiction under Article 226 of the Constitution of India. The matter has also to be looked into from the perspective that what is being challenged is not a mere administrative order but the order passed in exercise of powers by a High Constitutional Functionary. Para 9 of the writ petition no.10057 (MB) of 2012 dated 30.11.2012 challenging the order dated 03.06.2007 after five years is an abuse of process of the Court. Moreover, that order was well within the knowledge of the petitioner. It is not only the question of inordinate delay of five years in filing the second writ petition but it is also an illegal attempt to re-agitate the validity of the order dated 03.06.2007 after such a challenge was rejected by this Court on 18.09.2009, and also by Hon'ble the Supreme Court on four occasions in four different proceedings concluded vide orders dated 06.08.2007 in Criminal Misc. Petition No.8587 of 2007 and Writ Petition (C) No.434 of 2007, the order dated 10.10.2007 in I.A. No.465 of 2007 filed by Amicus Curiae in Writ Petition No.13381 of 1984, and the order dated 27.04.2009 passed in Writ Petition (Crl.) No. 29 of 2009. In such an event, it is clear that the petitioner has abused the process of Court and filed the writ petition contrary to the principles of justice and public policy. The issue has already been decided and the order dated 03.06.2007 passed by the Governor of Uttar Pradesh refusing to grant sanction has attained finality. The said orders dated 03.06.2007 passed by the Governor declining sanction to prosecute and dated 05.06.2007 passed by the learned Designated Court are interwoven and cannot be separated for fresh adjudication by stretch of misinterpretation.
It is also pointed out that vide para-25 of the writ petition the petitioner has alleged malafide against the then Governor of Uttar Pradesh impleading him as Opposite Party No.10 in the writ petition, for passing the order dated 03.06.2007 after seeking legal opinion from one of the Additional Solicitor Generals of India. All the allegations in the para are said to be baseless, unfounded and wrong and, thus, have been denied. The Governor is not amenable to the process of the Court in respect of his official acts even if there is an allegation of malafide because of the immunity granted to him in the Constitution by virtue of Article 361. This issue is well settled by the Constitution Bench of Hon'ble the Supreme Court in the case of Rameshwar Prasad & Ors. v. Union of India, 2006 (2) SCC 61, in para 179. The position in law has been summed up thus:
"179. The position in law, therefore, is that the Governor enjoys complete immunity. Governor is not answerable to any Court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties. The immunity granted by Article 361(1) does not, however, take away the power of the Court to examine the validity of the action including on the ground of malafides."
It is further submitted that the exercise of powers by the Governor for grant of sanction or refusal to grant sanction is an act performed in the capacity of a High Constitutional Functionary, who in turn has acted on the advice received from a Law Officer of Union of India. Such action of the Hon'ble the Governor is not justiciable in law. It is not correct to say that the CBI did not seek sanction under Section 19 of the Prevention of Corruption Act while applying for sanction to prosecute Respondent Nos.8 and 9. The CBI in its charge sheet dated 15.02.2007 had already mentioned the offence U/s 13(2) r/w Sec. 13(1)(d) of the Prevention of Corruption Act. It was stated by the CBI that the sanction under Section 19 of the Prevention of Corruption Act was not required on the ground that she had ceased to hold the official position at the time of filing of charge sheet. But in the present case the sanctioning authority while considering the case for grant of sanction U/s 197 of Cr.P.C. found it necessary to consider the provisions of Section 19 of the Prevention of Corruption Act as well, since both opposite parties nos.8 and 9 had become Chief Minister and Minister on 13.05.2007 in the newly formed Government in the State of Uttar Pradesh. The sanction order cannot be faulted on the ground that Section 19 of the Prevention of Corruption Act was not invoked by the prosecuting agency. Section 19 of the Prevention of Corruption Act goes to the roots of the matter. It is, therefore, now vulnerable to attack. Ultimately, the test to apply is: whether the relevant material that formed the basis of the allegation constituting the offence were placed before the sanctioning authority and whether the same were perused while declining to grant sanction. The order dated 03.06.2007 on its face indicates that all relevant materials viz. the FIR, Statements, Charge-sheet and other particulars on the record were placed before the sanctioning authority. Having carefully considered and also scrutinized them threadbare, the sanctioning authority came to conclusion that no case is made out for grant of sanction. In these circumstances, it is not open for the petitioner to challenge the order dated 03.06.2007 on frivolous grounds that the Governor has shown extraordinary interest due to ulterior motive and extraneous considerations as stated in Ground 'C' of the writ petition. Such a ground is bereft of any substance and sans merit. It is further stated that malafides cannot be urged in a vague manner as the petitioner has averred herein. The petitioner herein has failed to give any particular acts, actions, commissions or omissions to support the ground of malafide. There is, certainly, no factual ambit to support the ground of malafide urged by the petitioner.
This is also the averment that in the judgment of a Coordinate Division Bench of this Court dated 05.11.2012 passed in Writ Petition No.2082 (MB) of 2009 and other connected matters including the case of the writ petitioner, all such aspects as to whether sanction in respect of other offences U/s 467, 468, 471 and 120-B IPC is required, has already been dealt with. The findings rendered by the Division Bench are extracted as:
"The power of granting sanction for the prosecution or refusing sanction for the prosecution is in the exclusive domain of the sanctioning authority.
The submission of the counsel for the petitioner substantially is that no sanction is required for offences under Sections 467, 468, 471 and 120-B IPC and 19 of the Prevention of Corruption Act when the public servant ceases to hold the office which he is alleged to have misused, in view of the law laid down by the Apex Court in the cases of Prakash Singh Badal and Bholu Ram. The submission has been considered extensively supra. It may be noted here that if the offence has been committed by a public servant in the discharge of official duty, for a certain class of public servants obtaining sanction from competent authority is a pre-requisite. It is a sine qua non before taking cognizance. In connection with the above submission, we feel called to refer to a decision of the Apex Court in Matajog Dube's case (1956 Crl.L.J. 140) in which it was observed "that the absolute power to accord or withhold sanction conferred on the Government is irrelevant and foreign to the duty cast on the court, which is the ascertainment of the true nature of the act."
(Emphasis supplied)"
Shri P.P. Malhotra, learned Additional Solicitor General, appearing for Union of India elaborating on his written submissions submitted that Hon'ble the Apex Court while monitoring the Environment conditions around Taj Mahal had passed various orders from time to time in W.P. No. 13381/84, M.C. Mehta vs. Union of India for removal of industries from Agra and nearly places regarding felling of trees and maintenance of approach roads etc. vide the order dated 10.4.1996 which has been reported later in 2012 (8) SCC 123. Hon'ble the Apex Court vide the order dated 18.9.2003 also passed various directions and on the basis thereof, the CBI registered two cases, namely, RC No 00662003A0018 and RC 0062003A0019 against Ms.Mayawati and Shri Naseemuddin Siddiqui. Relevant portion of Para 13 of the order dated 18.9.2003 passed by Hon'ble the Apex Court reads as under:
"13. Considering the aforesaid report and the serious irregularities/illegalities committed in carrying out the so-called Taj Heritage Corridor Project, we direct:
...
...
(g) CBI shall take appropriate steps for holding investigation against Chief Minister Ms.Mayawati and Nasimuddin Siddiqui, former Minister for Environment, U.P.and other officers involved;
(h)...
(i) CBI would take into consideration all the relevant Acts, i.e. IPC/Prevention of Corruption Act and the Water (Prevention and Control of Pollution) Act, 1974 etc."
Shri Malhotra pointed out that the CBI had registered two cases, namely, the one under Sections 120B, 420, 467, 468 and 471 IPC vide Case RC No. 0062003A0018 and the other being RC No. 0062003A0019 under the Prevention of Corruption Act against Ms. Mayawati and Shri Naseemuddin Siddiqui.
The case No. RC No. 0062003A0019 under the Prevention of Corruption Act has been quashed by Hon'ble the Apex Court vide its order dated 6.7.2012 in WP (Cri) No. 135 of 2008, reported in 2012 (8) SCC 106.
In Case RC No. 0062003A0018, the CBI placed charge sheet before the Court of learned Special Judge on 15.2.2007 and also requested the Court that since the sanction to prosecute had not been obtained, the matter may be adjourned to await sanction of the Governor. The matter was adjourned and fixed for 15.5.2007. By that time the sanction was not received, therefore, the matter was further adjourned to 5.6.2007 on that count.
It is stated that vide Notification dated 13.3.2007 the elections for the State of Uttar Pradesh were announced. The polling was to take place between 7.4.2007 to 8.5.2007, in seven segments. The polling in six segments took place between 7.4.2007 to 3.5.2007 and in the seventh one, on 8.5.2007. The counting was completed on 11.5.2007 and Ms. Mayawati took oath of the office of Chief Minister on 13.5.2007 and formed her Cabinet.
Before taking of oath of the office of Chief Minister by Ms. Mayawati, on 8.5.2007, the outgoing Chief Minister is stated to have sent his views to the Governor of Uttar Pradesh along with advice dated 7.5.2007 of the Advocate General for grant of sanction to prosecute Ms Mayawati and Shri Naseemuddin Siddiqui.
It thus appears that at the time when the Governor was considering the matter, Ms. Mayawati had back to office as Chief Minister. Hence, apparently keeping in view the facts that she had formed the Government having won the elections, the Governor thought it proper that he should not be bound, in the peculiar circumstances of the case, by the advice of the outgoing Chief Minister and the Advocate General. They is why, he consulted one of the then Additional Solicitor Generals of India, namely, Shri Gopal Subramanium and applied his mind independently to the facts of the case. Consequently, he declined to grant the sanction vide the order dated 3.6.2007.
On the basis of the said order of the Governor, refusing to grant sanction, learned Special Judge vide the order dated 5.6.2007 dropped the proceedings and observed as under :
"....that in absence of sanction of prosecute Ms. Mayawati and Shri Naseemuddin Siddiqui, this court has no jurisdiction either to take cognizance or to proceed further in respect of Ms. Mayawati and Shri Naseemuddin Siddiqui in the case."
In the light of the facts mentioned herein above, Shri P.P. Malhotra, learned Additional Solicitor General, on behalf of Union of India raises the following contentions:
(1) Whether this petition should at all be entertained because it is in the nature of a grossest abuse of process of law.
(2) Whether the Writ Petition is barred by the principle of res judicata and/or constructive res judicata and/or by the law of estoppel.
(3) Whether the Governor was bound by the aid and advice of the Council of Ministers in view of the peculiar facts and circumstances of the case in hand.
Submission no. 1 Learned Additional Solicitor General contends that the present petition is a gross abuse of process of Court. This petition cannot be said to be a Public Interest Litigation as the petitioner has approached this Court without disclosing true, correct and essential facts. It is submitted that challenge to the order dated 3.6.2007 and the order dated 5.6.2007 has already been rejected by Hon'ble the Apex Court in various proceedings between the years 2007 and 2009. The details of the same are as:
(1)Crl. Misc. Petition No. 8587 in Special Leave to Appeal (Cri) No. 5408 of 2007, Ram Mohan Garg vs. State of U.P. which was dismissed vide order dated 6.8.2007 passed by Hon'ble the Apex Court.
(2)WP No. 434 of 2007, Rohitash Singh Nagar vs. Union of India & ors, which was dismissed vide order dated 6.8.2007 passed by Hon'ble the Apex Court wherein the order of the Governor dated 3.6.2007 and the order of Special Judge dated 5.6.2007, both, were challenged.
(3)Application No.IA. No. 465 of 2007 in WP No. 13381/84; MC.Mehta vs. Union of Inida which was dismissed vide order dated 10.10.2007 of Hon'ble the Apex Court.
(4)WP (Cri) No.29 of 2009; Satish Kumar vs. Union of India which was dismissed vide the order dated 27.4.2009 of Hon'ble the Apex Court.
Learned Additional Solicitor General also summed up the court proceedings in the aforesaid matters as:
The order dated 3.6.2007 passed by the Governor was challenged before Hon'ble the Apex Court by one Ram Mohan Garg vide Cri Misc. Petition 8587 in Special Leave Petition (Cri) No. 5408 of 2007 [Ram Mohan Garg vs. State of U.P.]. The Special Leave Petition and Writ Petition No. 434 of 2007 [Rohitash Singh Nagar vs. Union of India & ors] filed under Article 32 of the Constitution were placed before a three Judge Bench of Hon'ble the Apex Court, and after hearing on both the Petitions, Hon'ble the Apex Court vide the order dated 6.8.2007 dismissed them as withdrawn. The order dated 6.8.2007 passed in Cri Misc. Petition No.8587 of 2007 listed with W.P. (C) No. 434 of 2007 by Hon'ble the Apex Court reads as:
"Learned senior counsel for the petitioners seeks permission to withdraw the application as well as the writ petition. Permission sought for is granted. The application as well as the writ petition are dismissed as withdrawn."
The Amicus Curiae also filed an application being I.A. No. 465 of 2007 before Hon'ble the Apex Court challenging the order dated 3.6.2007 passed by the Governor. The said application was declined by Hon'ble the Apex Court vide the order dated 10.10.2007which is reported in 2008 (1) SCC 407. Para-15 of the order dated 10.10.2007 reads as under:
"15. We, therefore, are of the opinion n that this bench should not entertain the application filed by the learned amicus curiae. The said application is dismissed with the aforesaid observations".
On dismissal of the said I.A. of Amicus Curiae by Hon'ble the Apex Court, a writ petition under Article 32 was filed before the Hon'ble Court being W.P. (Crl.) No.29 of 2009 - Satish Kumar v. Union of India. After hearing the parties, the said writ petition was dismissed vide the order dated 27.4.2009, as follows:
"Heard the petitioner in person. The writ petition is dismissed."
Thus, according to Shri P.P. Malhotra, it is clearly noticeable that the order dated 03.06.2007 passed by the Governor of U.P. was under challenge in Special Leave to Appeal No.5408 of 2007 titled as "Ram Mohan Garg Vs. State of U.P." and the orders dated 03.06.2007 and 05.06.2007 were also a subject matter of writ petition no.434 of 2007 titled as "Rohitash Singh Nagar Vs. Union of India".
The Amicus Curiae had also challenged the order dated 03.06.2007 passed by the Governor and the order dated 05.06.2007 passed by learned Special Judge.
Thus, it would been seen that after final dismissal of the challenge to the orders dated 03.06.2007 and 05.06.2007 by Hon'ble the Supreme Court, the matter has attained finality and now no petition could be filed to challenge the said orders again.
However, despite the above orders, several writ petitions were filed before this Bench (Lucknow Bench) of the Allahabad High Court claiming the same or similar reliefs. The said writ petitions are as under -
(i)WP No.2087 (MB)/09 - Anupama Singh v. CBI and ors
(ii)WP No.2795 (M/B)/09 - Mohd.Kateel Ahmad v. UOI & ors.
(iii)WP No.2019 (M/B)/2009 - Kamlesh Verma v. UOI & ors.
Shri Malhotra, learned Additional Solicitor General, also pointed out that when the hearing of the aforesaid writ petitions was in progress, the petitioner herein and two others also filed the following three writ petitions:
Shri Malhotra, learned Additional Solicitor General, further pointed out that another application was also moved in writ petition no.2019 (MB) of 2009 titled as Kamlesh Verma v. UOI & ors. whereby the petitioner wanted to amend the petition to challenge the order dated 3.6.2007 but that prayer was later withdrawn.
It is submitted that the aforesaid six petitions were finally dismissed by the Lucknow Bench of the Allahabad High Court vide the common order dated 5.11.2012.
Thus the orders dated 3.6.2007 and 5.6.2007 in question have attained finality by virtue of the orders passed by Hon'ble the Apex Court as well as the orders passed by this High Court as referred to above and the present writ petition, thus, deserves to be dismissed on the ground it is certainly the grossest abuse of process of the court.
Shri Malhotra, learned Additional Solicitor General, submits that some of the petitioners in the writ petitions decided on 05.11.2012 by another Division Bench of the High Court have filed an Special Leave Petition before Hon'ble the Apex Court but the petitioner herein does not seen to have challenged the order of High Court dated 5.11.2012 before Hon'ble the Supreme Court and as a grossest abuse of process of the Court has filed the present writ petition which is not at all maintainable. If he is at all aggrieved, the only remedy open to him was to challenge the order of High Court by way of Special Leave Petition.
Submission No.(ii) Regarding the submission as to whether this writ petition is barred by the principle of res judicata and/or constructive res judicata and also by the law of estoppels, learned Additional Solicitor General submits that still not being deterred by the above mentioned orders, the petitioner has again, in a fresh round of litigation, challenged the order dated 3.6.2007 by way of present writ petition. The said order had already been challenged in his earlier writ petition bearing Writ Petition No.733(MB) of 2011 - Shachindra Pratap Singh v. Union of India & ors.
Learned Additional Solicitor General submits that, firstly, in the earlier Writ Petition 733 of 2011 the petitioner herein had challenged the orders dated 3.6.2007 & 5.6.2007 and the said challenge having failed with dismissal order passed by Hon'ble the Apex Court, in second round of litigation before the High Court, he questioned it again. However, the same has also been decided by the High Court vide the order dated 5.11.2012. In this situation, the petitioner could not have filed the present writ petition for the same cause of action because it would be barred by the principles of res judicata. It is submitted that in case the petitioner had any grievance against the order dated 5.11.2012 the only remedy available with him was to have challenged the order dated 5.11.2012 by way of a review or an SLP. It is, therefore, submitted by Shri Malhotra, learned Additional Solicitor General, that since the petitioner has not challenged the order dated 5.11.2012, the same is final and binding on him.
Submission No. [iii] Insofar as the third submission as to whether the Governor of U.P. was bound by the aid and advice of the Council of Ministers in view of the peculiar facts and circumstances of the case in hand, is concerned, Shri Malhotra submits that the present case is an exception to the general rule inasmuch as at the relevant time Ms. Mayawati was the Chief Minister and had recently won the elections when the Governor was considering the request for grant of sanction. Even though the previous Chief Minister had recommended grant of sanction for prosecution, it would have resulted in serious consequences- political or otherwise-and in these circumstances, it appears that the Governor was fully justified in consulting a senior Law Officer and applying his independent mind to the CBI request for grant of sanction and was not bound by the aid and advice of the previous Chief Minister.
Similarly Article 200 indicates another instance where the Governor may act irrespective of any advice from the council of Ministers. In such matters where the Governor is to exercise his discretion he must discharge his duties to the best of his judgment. The Governor is required to pursue such courses which are not detrimental to the State.
Shri Malhotra in view of the aforesaid submissions concludes by reiterating that the Governor was justified in consulting a senior Law Officer and applying his independent mind to the materials on record for grant of sanction and was not bound by the aid and advice of the Council of Ministers.
Thus, the present petition should be dismissed with exemplary cost as the same is nothing but a grossest abuse of process of court.
On due consideration of rival submissions, at the threshold, the most relevant point that we need to address relates to the question of maintainability of this writ petition filed with a delay of five and a half years.
Shri C.B.Pandey, learned counsel appearing for petitioner submitted that the order of sanctioning authority dated 3.6.2007 was not challenged earlier because no sanction was needed for the prosecution in the present matter. Rather it was a malafide exercise on the part of the C.B.I. to approach the Governor of U.P. being the sanctioning authority and to obtain the order of refusal of sanction. It is only after this Court categorically held vide the order dated 05.11.2012 that once the sanctioning authority refused to accord sanction, the Court is absolutely barred to take cognizance that it was felt necessary to challenge the order of sanctioning authority dated 3.6.2007. According to learned counsel, the physical running of time has not created a vested right in favour of any individual, which this Court may not be inclined to disturb. After hearing on the application (Interlocutory Application No. 465 of 2007) filed in Writ Petition No. 13381 of 1984 (M.C. Mehta vs. Union of India and Ors.), Hon'ble the Apex Court made the following observations:
"We may observe that while entertaining public interest litigation in a given case, this Court may exercise a jurisdiction to set aside the decision of a constitutional authority, but we are not concerned with such a situation. We, therefore, are of the view need not go further than what we have already said in our order, dated 27.11.2006 to go into the correctness or otherwise of the order of the Governor. If no sanction of the Governor was required or if he has committed an error in passing the said order, the appropriate court, in our opinion, would be entitled to deal therewith, but not this Bench." (Annexure-3)"
However, both the orders in question, namely, dated 03.06.2007 passed by the Governor of U.P. and the order dated 05.06.2007 passed by learned Special Judge, Lucknow, are so interwoven that consideration of challenge to one would necessarily invite consideration by Court of the other.
We may refer to the judgment of Hon'ble the Apex Court in the case of M. Nagabhushana v. State of Karnataka & Ors.-2011 (3) SCC 408. Paragraphs 19 to 25 of the judgment being relevant are reproduced as:
"19. A Constitution Bench of this Court in Devilal Modi Vs. Sales Tax Officer, Ratlam & Ors. - AIR 1965 SC 1150, has explained this principle in very clear terms:
"7. But the question as to whether a citizen should be allowed to challenge the validity of the same order by successive petitions under Art. 226, cannot be answered merely in the light of the significance and importance of the citizens' fundamental rights. The general principle underlying the doctrine of res judicata is ultimately based on considerations of public policy. One important consideration of public policy is that the decisions pronounced by courts of competent jurisdiction should be final, unless they are modified or reversed by appellate authorities; and the other principle is that no one should be made to face the same kind of litigation twice over, because such a process would be contrary to considerations of fair play and justice, [vide : Daryao Vs. State of U.P. (AIR 1961 SC 1457)]
20.This Court in All India Manufacturers Organisation (supra) explained in clear terms that principle behind the doctrine of Res Judicata is to prevent an abuse of the process of Court. In explaining the said principle the Bench in All India Manufacturers Organisation (supra) relied on the following formulation of Lord Justice Somervell in Greenhalgh Vs. Mallard - (1947) 2 All ER 255 (CA):
"39.......'I think that on the authorities to which I will refer it would be accurate to say that res judicata for this purpose is not confined to the issues which the court is actually asked to decide, but that it covers issues or facts which are so clearly part of the subject-matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them.' The Bench also noted that the judgment of the Court of Appeal in "Greenhalgh" was approved by this Court in State of U.P. Vs. Nawab Hussain.
21.Following all these principles a Constitution Bench of this Court in Direct Recruit Class II Engg. Officers' Assn. Vs. State of Maharashtra - (1990) 2 SCC 715 laid down the following principle:
"35.......an adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had decided as incidental to or essentially connected with subject matter of the litigation and every matter coming into the legitimate purview of the original action both in respect of the matters of claim and defence. Thus, the principle of constructive res judicata underlying Explanation IV of Section 11 of the Code of Civil Procedure was applied to writ case. We, accordingly hold that the writ case is fit to be dismissed on the ground of res judicata."
22.In view of such authoritative pronouncement of the Constitution Bench of this Court, there can be no doubt that the principles of Constructive Res Judicata, as explained in explanation IV to Section 11 of the CPC, are also applicable to writ petitions.
23.Thus, the attempt to re-argue the case which has been finally decided by the Court of last resort is a clear abuse of process of the Court, regardless of the principles of Res Judicata, as has been held by this Court in K.K. Modi Vs. K.N. Modi and Ors. - (1998) 3 SCC 573. In paragraph 44 of the report, this principle has been very lucidly discussed by this Court and the relevant portions whereof are extracted below:
"44. One of the examples cited as an abuse of the process of the court is relitigation. It is an abuse of the process of the court and contrary to justice and public policy for a party to relitigate the same issue which has already been tried and decided earlier against him. The reagitation may or may not be barred as res judicata."
24.In coming to the aforementioned finding, this Court relied on the Supreme Court Practice 1995 published by Sweet & Maxwell. The relevant principles laid down in the aforesaid practice and which have been accepted by this Court are as follows:
"43.......This term connotes that the process of the court must be used bona fide and properly and must not be abused. The court will prevent improper use of its machinery and will in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation. ... The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed but depend on all the relevant circumstances. And for this purpose considerations of public policy and the interests of justice may be very material."
In the premises aforesaid, it is clear that the attempt by the appellant to re-agitate the same issues which were considered by this Court and were rejected expressly in the previous judgment in All India Manufacturers Organisation (supra), is a clear instance of an abuse of process of this Court apart from the fact that such issues are barred by principles of Res Judicata or Constructive Res Judicata and principles analogous thereto."
Out of two namely the order of the Governor of State of U.P. dated 03.06.2007 declining to grant sanction for prosecution and the order dated 05.06.2007 by the learned Designated Court refusing to entertain the CBI case in the absence of sanction and consequently the lack of jurisdiction either to take cognizance or to proceed further, the petitioner in his earlier Writ Petition No.733 (MB) of 2011 had challenged only the order of the learned Designated Court dated 05.06.2007 and he did not choose to challenge the order of the Governor dated 03.06.2007, probably, knowing fully well that this Court vide the order dated 18.09.2009 in Writ Petition No.2019 (MB) of 2009 [Kamlesh Verma vs. Union of India and others] had rejected the prayer to quash the order of the Governor dated 03.06.2007. Petitioner's Writ Petition No.733 (MB) of 2011 was connected with Writ Petition No.2019 (MB) of 2009 and other petitions which came to be finally decided on 05.11.2012 by a Division Bench whereby the group of six writ petitions was dismissed. Thus, challenge to the order dated 03.06.2007 after a gap of five and half years cannot be legitimately explained when earlier, the petitioner had full opportunity to question the order. In fact, after passing of the final order dated 05.11.2012, the adjudication on the order dated 05.06.2007 has attained finality not only as to the actual matter determined but as to every other matter which the parties might, and ought to have litigated and considered as incidental to or essentially connected with the subject matter of the litigation.
In the case of Dr. Buddhi Kota Subbarao Vs. K. Parasaran & Ors, reported in AIR 1996 SC 2687, Hon'ble the Apex Court has observed as under:
"No litigant has a right to unlimited drought on the Court time and public money in order to get his affairs settled in the manner he wishes. However, access to justice should not be misused as a licence to file misconceived and frivolous petitions."
A similar view has been expressed and reiterated by Hon'ble the Apex Court in K.K. Modi Vs. K.N. Modi & Ors, reported in AIR 1998 SC 1297; B. Srinivasa Reddy Vs. Karnataka Urban Water Supply & Drainage Board Employees' Association, reported in AIR 2006 SC 3106; and Raj Kumar Soni Vs. State of U.P. & Ors, reported in (2007) 10 SCC 635.
In Tamil Nadu Electricity Board & Anr Vs. N. Raju Reddiar & Anr, reported in AIR 1997 SC 1005, Hon'ble the Apex Court held that filing of successive misconceived and frivolous applications for clarification, modification or for seeking a review of the order interferes with the purity of administration of law and salutary and healthy practice. Such a litigant must be dealt with a heavy hand.
In Sabia Khan & Ors. Vs. State of U.P. & Ors., reported in AIR 1999 SC 2284, Hon'ble the Apex Court held that filing totally misconceived petition amounts to abuse of process of Court and such litigant is not required to be dealt with lightly.
In Abdul Rahman Vs. Prasoni Bai & Anr., (2003) 1 SCC 488, Hon'ble the Apex Court held that wherever the Court comes to the conclusion that the process of Court is being abused, the Court would be justified in refusing to proceed further and refuse the party from pursing the remedy in law.
In view of the final order dated 05.11.2012, simply on the ground that earlier proceedings did not contain or consider a challenge to the decision of the Governor of Uttar Pradesh dated 03.06.2007 or on the ground that the issue about the legality and validity of the order dated 3.6.2007 only collaterally or incidentally arose at the time of this Court's decision dated 5.11.2012 in the above said group of writ petitions, the writ petition would not be maintainable. The petitioner was not only aware of the order dated 03.06.2007 but also had fullest opportunity to challenge that order. Moreover, it is also a matter of fact that the order dated 03.06.2007 was unsuccessfully questioned in four applications/petitions before Hon'ble the Apex Court.
It is only in this background that the petitioner chose not to challenge the order dated 03.06.2007 passed by the Governor, and questioned only the order of the learned Designated Court dated 05.06.2007. In fact in the final order dated 05.11.2012 passed by the Division Bench, it is also noticed as:
"........This Court in the Writ Petition No. 2019 (MB) of 2009, Kamlesh Verma, had rejected the amendment application on the premises that petitioner did not want to propose relief (1-B) namely; for quashing the order passed by his Excellency , the Governor , refusing sanction".
During hearing of the bunch of writ petitions, which was decided and dismissed on 05.11.2012, learned counsel Shri C.B. Pandey did not choose to make any submission qua the order dated 03.06.2007 passed by the Governor of State of Uttar Pradesh. The Coordinate Division Bench which dismissed the group of petitions also observed that the order dated 03.06.2007 passed by the Governor of State of Uttar Pradesh, refusing to grant sanction, was considered in as many as four different proceedings instituted before Hon'ble the Apex Court by four different persons and all were dismissed by the Hon'ble Court. They are as:
(1)Crl. Misc. Petition No. 8587 in Special Leave to Appeal (Cri) No. 5408 of 2007, Ram Mohan Garg vs. State of U.P. which was dismissed vide order dated 6.8.2007 passed by Hon'ble the Apex Court.
(2)WP No. 434 of 2007, Rohitash Singh Nagar vs. Union of India & ors, which was dismissed vide order dated 6.8.2007 passed by Hon'ble the Apex Court wherein the order of the Governor dated 3.6.2007 and the order of Special Judge dated 5.6.2007, both, were challenged.
(3)Application No.IA. No. 465 of 2007 in WP No. 13381/84; MC.Mehta vs. Union of Inida which was dismissed vide order dated 10.10.2007 of Hon'ble the Apex Court.
(4)WP (Cri) No.29 of 2009; Satish Kumar vs. Union of India which was dismissed vide the order dated 27.4.2009 of Hon'ble the Apex Court.
The order dated 6.8.2007 in Cri Misc. Petition No. 8587 with WP (C) No. 434 of 2007 passed Hon'ble the Apex Court reads as:
"Learned senior counsel for the petitioners seeks permission to withdraw the application as well as the writ petition. Permission sought for is granted. The application as well as the writ petition are dismissed as withdrawn."
The Amicus Curiae also filed an application being I.A. No. 465 of 2007 before Hon'ble the Apex Court challenging the order dated 3.6.2007 passed by the Governor. That application was declined by Hon'ble the Apex Court vide the order dated 10.10.2007 which is reported in 2008 (1) SCC 407. Para-15 of the order dated 10.10.2007 reads as under:
"15. We, therefore, are of the opinion n that this bench should not entertain the application filed by the learned amicus curiae. The said application is dismissed with the aforesaid observations".
After the dismissal of the said I.A. of Amicus Curiae by Hon'ble the Supreme Court, a writ petition was filed under Article 32 being WP (Crl.) No.29 of 2009 - Satish Kumar v. Union of India. After hearing the parties, the said writ petition was also dismissed by Hon'ble the Apex Court vide the order dated 27.4.2009, which reads as under:
"Heard the petitioner in person. The writ petition is dismissed."
The order dated 03.06.2007 passed by the Governor of U.P. was under challenge in Special Leave to Appeal No.5408 of 2007 titled as "Ram Mohan Garg Vs. State of U.P." Besides that, the orders in question dated 03.06.2007 and 05.06.2007 were also the subject matter of writ petition no.434 of 2007 titled as "Rohitash Singh Nagar Vs. Union of India".
Thus, after final rejection of the challenge to the orders dated 03.06.2007 and 05.06.2007 by Hon'ble the Supreme Court, the issue herein attained finality and as such no petition could be filed to challenge the order of the Governor dated 03.06.2007.
However, even in the teeth of the above orders, several writ petitions were filed before this Bench (Lucknow Bench) of the Allahabad High Court claiming the same or similar reliefs. The said writ petitions are as under -
1.WP No.2087 (MB)/09 - Anupama Singh v. CBI and ors
2.WP No.2795 (M/B)/09 - Mohd.Kateel Ahmad v. UOI & ors.
3.WP No.2019 (M/B)/2009 - Kamlesh Verma v. UOI & ors.
When the hearing of the aforesaid writ petitions was in progress, the petitioner herein and two others also filed the following three writ petitions:
(i) WP No.733 (MB)/2011 - Sachindra Pratap Singh v. UOI and ors (ii) WP No.700 (M/B)/2011 - Kashi Prasad Yadav v. CBI & ors. (iii)WP No.701 (M/B)/2011 - Mamta Singh v. UOI & ors.
It is obvious that after the orders of Hon'ble the Apex Court, six writ petitions were filed before the Lucknow Bench of the Allahabad High Court challenging the order dated 3.6.2007 passed by the Governor of U.P. and the order dated 5.6.2007 passed by learned Special Judge, which too have been finally dismissed by the Division Bench on 05.11.2012.
An application was also moved in writ petition no.2019 (MB) of 2009 titled as Kamlesh Verma v. UOI & ors. whereby the petitioner wanted to amend the petition to challenge the order dated 03.06.2007 but that prayer was withdrawn.
In addition to what have been discussed hereinabove, the maintainability of this writ petition would also be barred by the Principles of res judicata/constructive res judicata. Hon'ble the Apex Court in State of U.P. v. Nawab Hussain, reported in 1977 (2) SCC 806 in para 4 & 5 has held as under:
"4. But it may be that the same set of facts may give rise to two or more causes of action. If in such a case a person is allowed to choose and sue upon one cause of action at one time and to reserve the other for subsequent litigation, that would aggravate the burden of litigation. Courts have therefore treated such a course of action as an abuse of its process and Somervell, L.J., has answered it as follows in Greenhalgh v.Mallard:
"I think that on the authorities to which I will refer it would be accurate to say that res judicata for this purpose is not confined to the issues which the court is actually asked to decide, but that it covers issues or facts which are so clearly part of the subject-matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them."
This is therefore another and an equally necessary and efficacious aspect of the same principle, for it helps in raising the bar of res judicata by suitably construing the general principle of subduing a cantankerous litigant. That is why this other rule has some times been referred to as constructive res judicata which, in reality, is an aspect or implication of the general principle.
4.These simple but efficacious rules of evidence have been recognized for long, and it will be enough to refer this Court's decision in Gulabchand Chhotalal Parikh v. State of Bombay for the genesis of the doctrine and its development over the years culminating in the present Section 11 of the Code of Civil Procedure, 1908. The section, with its six explanations, covers almost the whole field, and has admirably served the purpose of the doctrine. But it relates to suits and former suits, and has, in terms, no direct application to a petition for the issue of a high prerogative writ. The general principles of resjudicata and constructive res judicata have however been acted upon in cases of renewed applications for a writ. Reference in this connection may be made to exparte Thompson. There A.J.Stephens moved for a rule calling upon the authorities concerned to show cause why a mandamus should not issue. He obtained a rule nisi, but it was discharged as it did not appear that there had been a demand and a refusal. He applied again saying that there had been a demand and a refusal since then. Lord Denman, C.J., observed that as Stephens was making an application which had already been refused, on fresh materials, he could not have "the same application repeated from time to time" as they had "often refused rules" on that ground. The same view has been taken in England in respect of renewed petitions for certiorari, quo warranto and prohibition, and, as we shall show, that is also the position in this country."
The above legal position has been further extensively and elaborately dealt by the Hon'ble Supreme Court in M. Nagabhushna vs. State of Karnataka reported in 2011 (3) SC 408 paras 12 to 22; State of Karnataka vs. All India Manufacturers reported in 2006 (4) SCC 683 paras 32 to 40; Direct Recruit Class II Engg. Offices Assc. Vs. State of Maharashtra reported in 1990 (2) SCC 715 para 35 and Om Prakash Verma vs. State of A. P. reported in 2010 (13) SCC 158 paras 68-82. It is also submitted that the present petition is barred by the law of estoppel and in this regard reference may be made to the judgment of Hon'ble the Apex Court titled as Alka Gupta vs. Narender Kumar Gupta, reported in 2010 (10) SCC 141 para 18, 21-26.
It is also a settled position in law that the principles of resjudicata can be applied to civil as well as criminal proceedings and in this regard, we may refer to the judgments of Hon'ble the Apex Court as under:-
(a)AIR 1956 SC 415, Pritam Singh vs. State of Punjab, Para 15;
(b) 1972 (2) SCC 466, Bhagat Ram vs. State of Rajasthan, Paras 13 & 14.
(c) 1974 (3) SCC 72, State of Rajasthan vs. Tara Chand Jain, paras 13 and 14. Thus, in view of the aforesaid settled position in law, the present petition would also not be maintainable on the ground that it is hit by the principles of res judicata/constructive res judicata and is covered by the law of estoppel.
It appears that some of the petitioners in the group of writ petitions decided on 05.11.2012 by coordinate Division Bench of the High Court have filed an Special Leave Petition before Hon'ble the Apex Court but the petitioner herein does not seem to have challenged the said order dated 05.11.2012 before Hon'ble the Supreme Court, and has rather chosen to file the present writ petition on the same cause of action which is said to have attained finality. Thus, filing of this writ petition may amount to abuse of process of law.
As we are not satisfied with the submissions made on behalf of petitioner regarding maintainability of the writ petition, it deserves to be dismissed without adverting to arguments on merit.
Hence, the writ petition is dismissed.
(Dr. Satish Chandra, J.) (Uma Nath Singh, J.) Order Date: 26.05.14 anb/Irfan/Katiyar/ Rizvi Hon'ble Dr.Satish Chandra, J. Judgment has been pronounced under Chapter VII Rule 1(2) of the Allahabad High Court Rules, 1952. (Dr.Satish Chandra, J.) 26.5.14