State Of Gujarat & 5 ­

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 250 of 2012 For Approval and Signature:

HONOURABLE MR.JUSTICE R.M.CHHAYA =========================================================

========================================================= DAHYABHAI LALLUBHAI PATEL & 4 ­ Petitioner(s) Versus STATE OF GUJARAT & 5 ­ Respondent(s) ========================================================= Appearance :

MR DK PUJ for Petitioner(s) : 1 ­ 5.

MS ASMITA PATEL, AGP for Respondent(s) : 1 ­ 3, None for Respondent(s) : 4 ­ 6.

========================================================= CORAM : HONOURABLE MR.JUSTICE R.M.CHHAYA Date : 26/07/2012 CAV JUDGMENT

1. By way of this petition under Article 226 of the Constitution of India, the petitioners have prayed for the following reliefs:­ “(A) Admit and allow present petition,

(B) Issue a writ of certiorari or any other writ, order or direction quashing and setting aside the orders dated 14/02/1989 passed by the Assistant Collector, Valsad in LND/Sharatbhang/02/1988, Order dated 30/12/1989 passed by the Collector, Valsad in LND/Appeal/no.02/1989 and order dated 04/11/1992 passed by the Secretary, Revenue Department, State of Gujarat in SRD/Jamana/Valasa/01/1990;

(C) Pending admission, hearing and final disposal of the present petition, stay the execution and implementation of the orders dated: 14/02/1989 passed by the Assistant Collector, Valsad in LND/Sharatbhang/02/1988, Order dated 30/12/1989 passed by the Collector, Valsad in LND/Appeal/no. 02/1989 and order dated 04/11/1992 passed by the Secretary, Revenue Department, State of Gujarat in SRD/Jamana/Valasa/01/1990;

(D) Pass the other and further order/s as deemed fit in the interest of justice.”

2. The facts which can be carved out from the record of the petition are that the petitioners were original owners of land bearing block No.968 of Village Atagam, Taluka District Valsad. It is averred in the petition that respondent Nos.4 to 6 purchased the land in question from the petitioners by way of a registered sale deed dated 2.7.1986. It is the case of the petitioners that at the relevant time, the land in question was running in the revenue records as old tenure land and even at the time of consolidation, entry No.5458 came to be mutated in the revenue records and at that time also, no restrictions were reflected over the land in question. It is further the case of the petitioners that under the bonafide belief that the land in question is old tenure land, the petitioners transferred the said land in question in favour of respondent Nos.4 to 6. It is further averred that on such a transfer, entry No.8391 came to be posted in village form No.6 dated 17.7.1986 recording the fact of having executed the said sale deed. It is also the case of the petitioners that when entry No.8391 came to be posted, the Mamlatdar made an endorsement that it is a new tenure land and therefore, actions for breach of condition are required to be initiated.

3. It transpires from the record that the Deputy Collector, Valsad initiated the proceedings for breach of condition of registering case No. LND/Breach of Condition/02/1988. By an order dated 14.2.1989, the Deputy Collector, Valsad came to the conclusion that it is a new tenure land and there is breach of condition and accordingly, passed an order of forfeiture of land in favour of the State.

4. It appears that being aggrieved by the aforesaid order dated 14.2.1989 passed by the Deputy Collector, the present petitioners along with respondent Nos.4 to 6 filed an appeal before the Collector, Valsad, which came to be dismissed by the Collector vide order dated 30.12.1989. It further transpires that being aggrieved by the aforesaid order dated 30.12.1989, the petitioners along with respondent Nos.4 to 6 preferred Revision Application before the Secretary, Revenue Department (Appeals), Gujarat State and vide order dated 4.11.1992, the Revisional Authority also dismissed the aforesaid Revision Application. It also transpires that the petitioners herein thereafter filed a writ petition being Special Civil Application No.9102 of 1994 before this Court and by order dated 25.8.2010, the aforesaid petition came to be withdrawn, wherein this Court (Coram: D.H. Waghela, J.) passed the following order:­ “Learned counsel, Mr.P.J.Vyas sought permission to withdraw the petition. Learned AGP having no objection and no one else being present for other respondents, permission is granted and the petition is disposed as withdrawn. Rule is discharged and interim relief is vacated with no order as to costs.”

5. The aforesaid orders passed by the authorities on 14.2.1989, 30.12.1989 and 4.11.1992 are again challenged by way of filing this petition.

6. Heard Mr. D.K. Puj, learned advocate for the petitioners and Ms. Asmita Patel, learned AGP for respondent Nos.1 to 3 on advance copy served.

7. Mr. D.K. Puj, learned advocate for the petitioners pointed out that the orders impugned in the present petition are ex­facie, illegal and bad in law and that the land in question was unalienated land and therefore, cannot be termed as new tenure land. It is submitted that the revenue authorities ought not to have passed the order of forfeiture of land in favour of the State Government. The learned advocate for the petitioners has relied upon the judgment of the Hon'ble Supreme Court in the case of Ahmedabad Manufacturing and Calico Printing Co. Ltd. Vs. The Workmen and another, reported in AIR 1981 SC 960 and has urged that even though the earlier writ petition being Special Civil Application No.9102 of 1994 came to be withdrawn, it cannot operate as res judicata as the same is not decided on merits and therefore, this Court may be pleased to entertain the present petition. No further submissions are made by the learned advocate for the petitioners.

8. Per contra, Ms. Asmita Patel, learned AGP has not only supported the impugned orders, but has pointed out that the present petition is filed challenging the orders which were passed way back in the year 1989 and 1992 i.e. after a period of almost two decades. Learned AGP submitted that having withdrawn the earlier petition i.e. Special Civil Application No.9102 of 1994 vide order dated 25.8.2010, the present petition is filed challenging the very same orders and therefore, the present petition is not maintainable.

9. In the case of Ahmedabad Manufacturing and Calico Printing Co. Ltd. (supra), the petitioner in that petition challenged the judgment and award passed by the Labour Court by filing a petition being Special Leave to Appeal under Article 136 of the Constitution of India which came to be withdrawn and thereafter, a petition under Article 226 of the Constitution of India was filed before Hon'ble High Court. In the said factual circumstances, the Hon'ble Apex Court has come to a conclusion that the order permitting withdrawal of Special Leave to Appeal for the same reason cannot operate as res judicata. Whereas in the instant case, the petitioners had challenged the very said order by way of filing a writ petition under Article 226 of the Constitution of India before this Court which has been withdrawn, as aforesaid and therefore, the ratio laid down by the Hon'ble Supreme Court in the case of Ahmedabad Manufacturing and Calico Printing Co. Ltd. (supra) is not applicable in the present case and does not take the case of the petitioners any further.

10. At this juncture, it would be advantageous to refer to the judgment of the Hon'ble Supreme Court in the case of Sarguja Transport Service Vs. State Transport Appellate Tribunal, M.P. Gwalior & Ors., reported in (1987) 1 SCC 5, wherein the Hon'ble Supreme Court has observed thus:­ “5. In this case we are called upon to consider the effect of the withdrawal of the writ petition filed under Art. 226/227 of the Constitution without the permission of the High Court to file a fresh petition. The provisions of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code') are not in terms applicable to the writ proceedings although the procedure prescribed therein as far as it can be made applicable is followed by the High Court in disposing of the writ petitions. Rule 1 of Order XXIII of the Code provides for the withdrawal of a suit and the consequences of such withdrawal. Prior to its amendment by Act 104 of 1976, R. 1 of O. XXIII of the Code provided for two kinds of withdrawal of a suit, namely, (i) absolute withdrawal, and (ii) withdrawal with the permission of the Court to institute a fresh suit on the same cause of action. The first category of withdrawal was governed by sub­rule (1) thereof, as it stood then, which provided that at any time after the institution of a suit the plaintiff might, as against all or any of the defendants 'withdraw' his suit or abandon a part of his claim. The second category was governed by sub­rule (2) thereof which provided that where the Court was satisfied (a) that a suit must fail by reason of some formal defect, or (b) that there were sufficient grounds for allowing the plaintiff to institute a fresh suit for allowing the plaintiff to institute a fresh suit for the subject­matter of a suit or part of a claim, it might, on such terms as it thought fit, grant the plaintiff permission to withdraw from such suit or abandon a part of a claim with liberty to institute a fresh suit in respect of the subject­matter of such suit or such part of the claim. Sub­rule (3) of the former R. 1 of O. XXIII of the Code provided, that where the plaintiff withdrew from a suit or abandoned a part of a claim without the permission referred to in sub­rule (2) he would be liable to such costs as the Court might award and would be precluded from instituting any fresh suit in respect of such subject­matter or such part of the claim. Since it was considered that the use of the word 'withdrawal' in relation to both the categories of withdrawals led to confusion, the rule was amended to avoid such confusion. The relevant part of R. 1 of O. XXIII of the Code now reads thus :­ Rule 1. Withdrawal of suit or abandonment of part of claim­ (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim :

* * *

(3) Where the Court is satisfied,­

(a) that a suit must fail by reason of some formal defect, or

(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject­matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject­matter of such suit or such part of the claim.

(4) Where the plaintiff­

(a) abandons any suit or part of claim under sub­rule (1), or

(b) withdraws from a suit or part of a claim without the permission referred to in sub­rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject­matter or such part of the claim.

6. It may be noted that while in sub­rule (1) of the former R. 1 of O. XXIII of the Code the words 'withdraw his suit' had been used in sub­rule (1) of the new R. 1 of O.

XXIII of the Code, the words 'abandon his suit' are used. The new sub­rule (1) is applicable to a case where the Court does not accord permission to withdraw from a suit or such part of the claim with liberty to institute a fresh suit in respect of the subject­matter of such suit or such part of the claim. In the new sub­rule (3) which corresponds to the former sub­rule (2) practically no change is made and under that sub­rule the Court is empowered to grant subject to the conditions mentioned therein permission to withdraw from a suit with liberty to institute a fresh suit in respect of the subject­matter of such suit. Sub­rule (4) of the new R. 1 of O. XXIII of the Code provides that where the plaintiff abandons any suit or part of claim under sub­rule (1) or withdraws from a suit or part of a claim without the permission referred to in sub­ rule (3), he would be liable for such costs as the Court might award and would also be precluded from instituting any fresh suit in respect of such subject­matter or such part of the claim.

7. The Code as it now stands thus makes a distinction between 'abandonment' of a suit and 'withdrawal' from a suit with permission to file a fresh suit. It provides that where the plaintiff abandons a suit or withdraws from a suit without the permission referred to in sub­rule (3) of R. 1 of O. XXIII of the Code, he shall be precluded from instituting any fresh suit in respect of such subject­matter or such part of the claim. The principle underlying R. 1 of O.

XXIII of the Code is that when a plaintiff once institutes a suit in a Court and thereby avails of a remedy given to him under law, he cannot be permitted to institute a fresh suit in respect of the same subject­matter again after abandoning the earlier suit or by withdrawing it without the permission of the Court to file fresh suit. Invito beneficium non datur. The law confers upon a man no rights or benefits which he does not desire. Whoever waives, abandons or disclaims a right will lose it. In order to prevent a litigant from abusing the process of the Court by instituting suits again and again on the same cause of action without any good reason the Code insists that he should obtain the permission of the Court to file a fresh suit after establishing either of the two grounds mentioned in sub­rule (3) of R. 1 of O.

XXIII. The principle underlying the above rule is founded on public policy, but it is not the same as the rule of res judicata contained in S. 11 of the Code which provides that no court shall try any suit or issue in which the matter directly or substantially in issue has been directly or substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating­ under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. The rule of res judicata applies to a case where the suit or an issue has already been heard and finally decided by a Court. In the case of abandonment or withdrawal of a suit without the permission of the Court to file a fresh suit, there is no prior adjudication of a suit or an issue is involved, yet the Code provides, as stated earlier, that a second suit will not lie in sub­rule (4) of R .1 of O. XXIII of the Code when the first suit is withdrawn without the permission referred to in sub­rule (3) in order to prevent the abuse of the process of the Court.

8. The question for our consideration is whether it would or would not advance the cause of justice if the principle underlying R. 1 of O. XXIII of the Code is adopted in respect of writ petitions filed under Art. 226/227 of the Constitution also. It is common knowledge that very often after a writ petition is heard for some time when the petitioner or his counsel finds that the Court is not likely to pass an order admitting the petition, request is made by the petitioner or by his counsel, to permit the petitioner to withdraw from the writ petition without seeking permission to institute a fresh writ petition. A Court which is unwilling to admit the petition would not ordinarily grant liberty to file a fresh petition while it may just agree to permit the withdrawal of the petition. It is plain that when once a writ petition filed in a High Court is withdrawn by the petitioner himself he is precluded from filing an appeal against the order passed in the writ petition because he cannot be considered as a party aggrieved by the order passed by the High Court. He may as stated in Daryao v. State of U.P., (1962) SCR 574: (AIR 1961 SC 1457) in a case involving the question of enforcement of fundamental rights file a petition before the Supreme Court under Art. 32 of the Constitution because in. such a case there has been no decision on the merits by the High Court. The relevant observation of this Court in Daryao's case (supra) is to be found at page 593 and it is as follows :

"If the petition is dismissed as withdrawn it cannot be a bar to a subsequent petition under Art. 32, because in such a case there has been no decision on the merits by the Court. We wish to make it clear that the conclusions thus reached by us are confined only to the point of res judicata which has been argued as a preliminary issue in these writ petitions and no other."

9. The point for consideration is whether a petitioner after withdrawing a writ petition filed by him in the High Court under Art.

226 of the Constitution of India without the permission to institute a fresh petition can file a fresh writ petition in the High Court under that Article. On this point the decision in Daryao's case (supra) is of no assistance. But we are of the view that the principle underlying R. 1 of O. 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 bench­hunting 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 Art. 226 of the Constitution once again. While the withdrawal of a writ petition filed in High Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under Art. 32 of the Constitution since such withdrawal does not amount to res judicata, the remedy under Art. 226 of the Constitution should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission. 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 subject­matter 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 Art. 21 of the Constitution since such a case stands on a different footing altogether. We, however, leave this question open.”

11. Similarly, the Division Bench of this Court in the case of Gulammiya Husainmiya Malek Vs. Union of India, reported in 2000 (2) GLH 545 in Para 2 observed thus:­ “2. Earlier petition was filed challenging the decision rendered by the Tribunal and the petition was withdrawn. Obviously, the said decision could not be challenged by the petitioner before this Court again. There was no order passed by the Tribunal which could have been challenged by the petitioner. In our opinion, this is nothing but an abuse of process of law. Therefore, we dismiss this petition and we confirm the order passed by the Tribunal in O.A. 269/98 on 12.10.99. Notice is discharged. Copy of this order be forwarded to Tribunal forthwith.”

12. Considering the aforesaid, in the instant case, the petitioners have challenged the very same orders which are challenged by way of filing Special Civil Application No.9102 of 1994 which came to be withdrawn by an order dated 25.8.2010 without a liberty to file a fresh petition and thereafter, the present petition is filed on 11.1.2012 challenging the very same orders. The petition is, therefore, not maintainable. The petitioners cannot challenge the very same orders having withdrawn the earlier matter by way of filing the present petition. The petition is, therefore, dismissed in limine as not maintainable.

mrpandya [R.M.CHHAYA, J.]