(Judgment of the Court was delivered by D.MURUGESAN,J) The Secretary of Sri Samundeeswari Amman Temple, Mariyam Thattu Vilai Veedu, Elavilai Post, Kanyakumari District, is the appellant. It appears that earlier, in his individual capacity, the appellant had approached this Court in W.P.(MD)No.6642 of 2008 seeking for a direction to the District Collector, Kanyakumari District at Nagercoil, to consider his representation, dated 12.02.2008 and proceed further in accordance with law. That representation relates to construction of a Library Building. The said writ petition came to be withdrawn, without any liberty. Later, the petitioner again filed another writ petition in W.P.(MD)No.6690 of 2008 for a direction to the Executive Officer, Killiyyoor Town Panchayat, the 4th respondent, not to put up any construction over Chittar Pattanam Channel or Re.Survey No.229/16 of Nattalam Village. That construction also relates to the very same library building, which was projected in the earlier writ petition. In the earlier writ petition, the President, Killiyyorr Town Panchayat, is also a party.
2.In those circumstances, a learned Single Judge of this Court has dismissed the writ petition on the ground that the appellant had already withdrawn the earlier writ petition and therefore he cannot maintain another writ petition on the same ground and apart from that, on merits, the learned Single Judge has found that the proposed construction would not in any way be a hindrance to the public. Further, as the appellant had suppressed the earlier proceedings, namely withdrawal of W.P.(MD)No.6642/2008, the learned Single Judge imposed a costs of Rs.5000/- on the appellant, with a further direction that the said amount paid by the appellant to the 4th respondent Panchayat shall be utilised for purchase of books to be kept in the library which is to be constructed. Hence the present appeal.
3.We have heard the learned counsel for the appellant as well as the learned counsel appearing for the respective respondents.
4.Learned counsel for the appellant would submit that the earlier writ petition was filed in the individual name and the present writ petition has been filed in the capacity of the Secretary of the temple. Moreover, the earlier writ petition was only for a direction to consider the representation and the subsequent writ petition is seeking for a direction to the Executive Officer of the Panchayat concerned not to put up construction. Hence, according to the learned counsel for the appellant, the principle of resjudicata may not arise in the case and consequently the learned Single Judge ought not to have rejected the writ petition on the ground that the appellant had suppressed the earlier writ petition.
5.In our opinion, both the submissions are liable to be rejected. What is relevant for the consideration as to resjudicata is the cause of action and the parties to the writ petition. In the earlier writ petition, the petition was filed by the appellant himself by name R.Saravana Prasadh. That writ petition relates to the construction of the very same library building and in that writ petition, the president of Killiyyoor Town Panchayat was also a party. In fact, in the representation dated 12.02.2008, the appellant has requested the District Collector, Kanyakumari District and the Executive Officer, Public Works Department, Nagercoil, to direct the president of Killiyyoor Town Panchayat not to put up the library building. Later on, the said writ petition was withdrawn without any liberty. In the subsequent writ petition, the very same Saravana Prasadh has filed the writ petition, of course in the capacity of the Secrtary of the temple. The relief is again in respect of the construction of the very same library building. Therefore, in all fairness, the appellant, who, in his own capacity filed the earlier writ petition, should have disclosed the withdrawal of the same while filing the subsequent writ petition. That apart, when a writ petition is withdrawn, without preserving the liberty, it would operate as resjudicata. The Apex Court in the judgment reported in (1987) 1 SCC 5 - Sarguja Transport Service v. S.T.A.T has held as follows:
"The point for consideration is whether a petitioner after withdrawing a writ petition filed by him in the High Court under
Article 226 of the Constitution of India without the permission to institute a fresh petition can file a fresh writ petition in the High Court under that article. On this point the decision in Daryao case (AIR 1961 SC 1457) is of no assistance. But we are of the view that the principle underlying Rule 1 of Order XXIII of the Code should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy as explained above. It would also discourage the litigant from indulging in bench-hunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under
Article 226 of the Constitution once again. While the withdrawal of a writ petition filed in a High Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under
Article 32 of the Constitution of India since such withdrawal does not amount to res judicata, the remedy under
Article 226 of the Constitution of India should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission. In the instant case the High Court was right in holding that a fresh writ petition was not maintainable before it in respect of the same subject-matter since the earlier writ petition had been withdrawn without permission to file a fresh petition. We, however, make it clear that whatever we have stated in this order may not be considered as being applicable to a writ petition involving the personal liberty of an individual in which the petitioner prays for the issue of a writ in the nature of habeas corpus or seeks to enforce the fundamental right guaranteed under
Article 21 of the Constitution since such a case stands on a different footing altogether. We, however leave this question open."
The same law has been reiterated by the Apex Court subsequently in Haryana State Coop.Land Development Bank v. Nelam - (2005) 5 SCC 91.
6.Hence the second writ petition cannot be entertained, as it is barred on the ground of res judcata and the claim should be considered as abandoned when the earlier writ petition was withdrawn, without liberty. That apart, as has been found by the learned single Judge, the appellant, in all fairness, should have disclosed the filing of the writ petition on the very same cause of action and later withdrew the said writ petition. Even on merits, the learned Single Judge has found that there is no case made out and such a finding is on appreciation of factual materials placed. Therefore, we are not inclined to go into that question again.
7.Mr.Pala.Ramasamy, learned counsel appearing for the 4th respondent, has submitted that the library building has already been constructed and the same is put in use. Even on that ground, the appellant's request does not survive as on date.
8.As far as the direction for payment of a costs of Rs.5000/-, it would be treated as one of donation by the temple to the library for the purpose of purchasing books.
9.With the above modification in the costs, the writ appeal is dismissed. No order as to costs.
Sd/-
To:
1.The District Collector, Nagercoil, Kanyakumari District,
2.The Executive Engineer, PWD (Irrigation), Kothaiyaru Basin Division, Nagercoil.
3.The Executive Officer, Nalloor Town Panchayat, Nalloor, Marthandam Post, Kanyakumari District.
4.The Executive Officer, Killiyyoorr Town Panchayat, Killiyyoor, Tholayavattom Post, Kanyakumari District.