Atiq Ahmad vs Chief Minister, State of U.P. and Others

N.L. Ganguly, J.—This writ petition was initially filed on 6.7.1995 and ways placed before the Bench consisting of Hon''ble G. Malaviya and Hon''ble M.B. Asthana. JJ. on the same day. The Court on that date was pleased to pass an order directing that the papers of the petition be placed before Hon''ble the Chief Justice for nominating another Bench. Thereafter the instant writ petition was placed before the Bench consisting of Hon''ble S.N. Sashay and Hon''ble S.N. Saxena, JJ. on 7.7.1995, and, it was prayed that the petition be listed again on 10.7.1995.

On 10.7.1995 Hon''ble the Chief Justice was pleased to assign the matter before the Bench consisting of Hon''ble A.P. Misra and Hon''ble D.P.S. Calhan, JJ. on 11.7.1995. The Bench presided over by Hon''ble A.P. Misra J. was pleased to pass the following order:

The file was placed in chambers after nomination of this case. Let this case be listed before another Bench of which one of us (Hon. A.P. Misra. J.) is not a member.

Thereafter, the matter was re-assigned and placed before the Bench consisting of Hon''ble U.P. Singh and Hon''ble J.S. Sided. JJ. on 11.7.1995, and the said Bench also declined to hear the matter on personal grounds.

There after, the matter was assigned to this Bench and was placed before us on 13.7.1995 for initial hearing.

The case was heard by this Court on 13.7.1995, 14.7.1995 and today on 18.7.1995 at length.

The prayer sought for in the present writ petition is quoted as Under:

(i) issue a writ of certiorari quashing the order of detention passed against the Petitioner on 25.6.1995 identical to the orders passed against other co-accused Arum Shanker Shukla alias Anna and Asia Hessian Khan.

(ii) issue a writ in the nature of mandamus from detaining the Respondents against the provision of Section 3(2) of the N.S.A.

(iii) issue a writ of mandamus directing the Respondents to provide armed guard to the Petitioner which were withdrawn after 20.6.95.

(iv) issue any other writ, order or direction to which the Petitioner might be found entitled in the circumstances of the case.

(v) award the costs of this petition.

Sri P.P. Srivastava, learned Additional Advocate General, pointed out before the Bench that an earlier writ petition was filed by the Petitioner. The Additional Advocate General raised preliminary objection that the earlier writ petition, being Curl. Misc. Writ Petition No. 17006 of 1995, filed by the Petitioner is already pending. Therefore, this second petition filed by the Petitioner is not maintainable. He also submitted that this Court lacks territorial jurisdiction to entertain the present writ petition as according to him, the entire cause of action arose within the Jurisdiction of Lucknow Bench of tills Court.

We, on the earlier date, had directed that the present writ petition be listed along with the record of earlier writ petition No. 17006 of 1995, which was filed on 25.6.1995, and, thereafter, it was directed to place the petition which was placed before Hon. K. Narayan, J. on 25.6.1995. Hon''ble Mr. Justice K. Narayan, was pleased to pass the orders on 25.6.1995, which is quoted herein below:

Heard learned Counsel for the Petitioner and Sri Mahendra Pratap, A.G.A. Considering the averments about danger to the life, it is directed that the applicant/Petitioner may present/surrender himself before any magistrate judicial or executive in the Distt. of Allahabad, Aligarh, Lucknow or Fatehpur and he shall accept the surrender irrespective of enquiry about the offence or absence thereof. He shall inform the police officer concerned of the area in which he is living who in his turn arranges for taking custody of the person of the Petitioner and keep him in protective custody. He shall be produced before the Judicial Magistrate concerned in the next morning for further orders but shall not be released for one week except on application of the Petitioner in his own hand and attested by his counsel and his father.

The learned Additional Advocate General placed the relief claimed in the earlier writ petition being Curl. Misc. Writ Petition No. 17006 of 1995, which is being reproduced herein below:

(a) To issue a writ or mandamus commanding the Respondents to produce in original entire record with regard to required arrest and encounter of the Petitioner ;

(b) To issue a writ of certiorari calling for record of the case and quashing orders of the Respondents and in particular that of Respondent Nos. 1 and 2 calculated to arrest and encounter the Petitioner, including the proceedings preceding the same and consequent thereto ;

(c) To issue a writ of mandamus commanding the Respondents neither to arrest nor encounter the Petitioner and make domiciliary visits at his office, residence and farm house on any ground and in any manner whatsoever except in accordance with law and principle of natural Justice and fair play;

(d) To issue a writ of ad interim mandamus restraining the Respondents neither to arrest nor encounter the Petitioner and make domiciliary visits at his office, residence and farm house on any ground and in any manner whatsoever;

(e) To issue any other writ, order or direction which this Hon''ble Court may deem fit and proper in the nature and circumstances of the case, and

(f) To award the costs of the petition to the Petitioner."

Learned Counsel for the Petitioner submitted that the earlier writ petition has no connection with the present writ petition. It was filed on behalf of the Petitioner through his father on 25.6.1995, on which date the Petitioner was not present at Allahabad, and, under an apprehension of the Petitioner''s father that the Petitioner may be killed in by encounter, the aforesaid writ petition was filed.

It has also been pointed out that the petitions had been filed before the Lucknow Bench also, copy of the said order dated 23.6.1995, passed by the Lucknow Bench is annexed as Annexure-3 to the earlier writ petition. The aforesaid order was passed by the Hon''ble S.H.A. Raza, J.

We have perused the present writ petition and the earlier writ petition filed on behalf of the Petitioner through his father, though it is not mentioned in the said writ petition that the same was filed through his father. A vakalatriama of the Petitioner is, however, on record of the earlier writ petition, and the accompanying affidavit of the same writ petition was sworn in by one Mohammad Farooq aged about 32 years. Thus, it is apparent that the said person cannot be the father of the Petitioner.

The learned Counsel for the Petitioner submitted that the earlier writ petition was filed on behalf of the Petitioner through his father, thus, is baseless and is not spurted by the record of the earlier writ petition.

In the present writ petition the Petitioner admittedly, has not disclosed the fact that he has filed the earlier writ petition No. 17006 of 1995. It was since questioned by the Court, he had no option but to admit the fact that the earlier writ petition was filed and he came with the explanation of filing the earlier writ petition and the ignorance of the fact that the aforesaid writ petition was filed. Although the learned Counsel for the Petitioner tried to explain it but we do not accept the explanation to be just and bona fide.

A perusal of the facts of the present writ petition, and of the earlier writ petition, if examined cursorily, it may be clear that the relief sought for was not exactly in the same words, but the prayer clause are similar.

The question as to whether the present writ petition should be entertained is the first question, and it is the preliminary objection of the learned Additional Advocate General. On this aspect, there are several decisions; such as Anand Kumar Gupta v. State of U.P. and Ors. (1993) 1 UPLBEC 165) (Division Bench decision); Manna Industries v. State of U.P. and Ors. 1994 AU 1116 (DB) and Saheb Lai v. Assistant Registrar 1995UPLBEC (1)31.

The aforesaid three decisions of the Division Benches of this Court have consistently, held that during pendency of earlier writ petition, filing of second writ petition is unwarranted and such writ petitions are not maintainable.

The argument of the learned Counsel for the Petitioner is that fresh cause of action arose for filing the subsequent writ petition. Similar argument was advanced in the earlier aforesaid three Division Benches, which was repelled In all the aforesaid three decisions on the ground that such argument was misconceived. The cause of action, if subsequently arise, it is open for the Petitioner to incorporate the same in the pending writ petition by seeking necessary amendments. Thus, argument of the learned Counsel for the Petitioner about fresh cause of action is also devoid of merits.

The next argument advanced by learned Counsel for the Petitioner is that subsequent writ petition is not barred, for which, he relied on decisions reported In Devendra Pratap Narain Rai Sharma v. State of U.P. and Ors. AIR 1962 SC 1334. He pointed out that in paragraph 12 of the said decision; Hon''ble Supreme Court has dealt with provision contained in Order II, Rule 2, Code of Civil Procedure. It was held that Order II, Rule 2, Code of CPC may not apply to the writ petitions Under Article 226 of the Constitution.

The decisions in Anand Kumar Gupta; Manna Industries and Saheh Lai (Supra), decided the controversy about maintainability of second writ petition relying the provisions of High Court Rules, 1952 (Chapter XX11, Rule 7). In Saheb Lai (supra), the Division Bench had deprecated the filing of successive writ petitions on the same set of facts and grounds, apart from being abuse of process of court, as held to be against public policy. See G.K. Dudani and Others Vs. S.D. Sharma and Others, .

After considering the argument of learned Counsel for the parties, I am of the view that the writ petition of the Petitioner deserves to be dismissed on the sole ground of non-maintainability in view of the aforesaid decisions.

Apart from above observation, I would also like to further observe that since Petitioner has not disclosed a very important fact that he had already filed a writ petition before this Court in which an order was passed by a learned Single Judge of this Court for surrendering before Magistrate, he has again filed the present writ petition by concealing the said fact, which amounts to lack of candor. On that ground also, the writ petition deserves to be dismissed summarily.

In the result, the writ petition is dismissed. All interim orders passed earlier are hereby vacated. Prayer for grant of leave is rejected.

Per P.K. Mukherjee, J.

I have heard Sri S.S. Bhatnagar, Former Advocate General and learned Counsel for Sri Ate Ahmad, assisted by Sri D.S. Misra and Smt. Poonam Srivastava, as well as, Sri P.P. Srivastava, learned Additional Advocate General appearing for the State and assisted by learned Standing Counsel.

My learned Brother, Ganguly, J has elaborately dealt with the facts of the case in his judgment, which has been dictated just now. Therefore, without repeating the facts of the case, I proceed to add my views.

I fully agree with the reasons and conclusions contained in the judgment, having been delivered by learned Brother, Ganguly, J that the writ petition should be dismissed as the Petitioner has not disclosed the fact of filing of an earlier writ petition before Hon''ble K. Narayan, J on June 26, 1995, at his residence, inter alia, praying for similar relief, although not, absolutely identical in nature, and obtained certain orders, but no effective interim order; restraining the Respondents from detaining Petitioner and taking him into custody In terms of similar alleged order of detention supposedly passed on 25.6.1995 in respect of other accused persons, namely, Arun Shankar Shukla alias Anna (who happens to be Member of Legislative Assembly) and Azte Hassan Khan.

Before parting with, in the facts and circumstances of the present case, as I have already stated in the preceding paragraphs, I would like to add a few words of my own.

Although, on different times, Hon''ble Supreme Court has laid down law relating to anticipatory writs'', as reported in State of Madhya Pradesh Vs. Bhailal Bhai and Others, : D.A.V. College v. State of Punjab AIR 1971 SCI 731; and, sitting as Single Bench at Calcutta High Court, I have had also occasion to confront with such type of cases, which are enumerated herein below:

In Sri Sri Copalji v. State of West Bengal (1988)(1) CHN 420 and Satya Broio Som v. West Bengal Industrial Corporation, 1988(1) Calcutta Law Times 95, although I have followed the laws laid down by Hon''ble Supreme Court in the aforesaid cases, relating to ''anticipatory writs yet on the facts and in the circumstances of the present case, this Court is also not unmindful of the relevant fact that in the present writ petition the order of detention allegedly passed against the Petitioner under the National Security Act, or any other Preventive Detention Laws, has not been annexed, or disclosed in the writ petition.

Sri P.P. Srivastava, learned Additional Advocate General has apprised this Court that on the relevant date, ie., on 25th June. 1995, no order of detention was passed in respect of Sri Atiq Ahmad, the present Petitioner. Thus, the writ petition, moved on the relevant date, was wholly premature.

Learned Additional Advocate General also referred to the case of Additional Secretary to Government of India and Ors. v. Smt. Alka Subhas Gadia and Anr. Judgment Today 1991(1) SC 549. A Bench, consisting of Hon''ble Mr. AM. Ahmadi (as His Lordship then was), Hon''ble P.B. Sawant, J. and Hon''ble S.C. Agrawal, J. of the Apex Court dealing with ''detention order'', held that non-interference with detention order at pre-execution stage does not amount to abandonment of the power or denial to the proposed detenu, but prevents abuse and perversion of the law COFEPOSA, 1974, Section 3(1) and SAFEMA, 1976, Section 6, and Articles 14, 19, 21 and 22 of the Constitution of India, 1950.

This judgment in Smt. Alka Subhash Gadia (supra) was consistently followed by the Apex Court. In a very recent case, In Subhash Muljimal Gandhi v.L. Himingliana and Anr. XXXI (1994) ACC 754, a Bench consisting of Hon''ble P.B. Sawant and Hon''ble M.K. Mukerjee, JJ. of the Supreme Court has relied upon the earlier decision in Alka Subhas Gadia (supra).

As already stated, this Court is not unmindful of the fact that in the present writ petition, the order of detention, allegedly passed on 25.6.1995, has not been produced before this Court and in the absence of it, this Court, is actually in handicapped position, to assess the legality, or otherwise of the so-called detention order.

Moreover, it is not an application for issuance of a writ, in the nature of Habeas Corpus, directing the opposite party to produce the body before the Court to examine as to whether the order of detention has been rightly passed, after permission of the detaining authority.

In my considered opinion, apart from the view taken by learned Brother. Ganguly, J., it is not open to the court to Judge merits or demerits, of such hypothetical order. Legality and validity of an order can be judged only after going through the same. This Court cannot form any independent opinion, merely on the basis of bald averments, surmises and conjectures.

In arriving to my conclusion, I find support from a decision of Supreme Court in Chanan Singh Vs. Registrar, Co-op. Societies, Punjab and Others, , wherein a Division Bench of Hon''ble Supreme Court, comprising of Hon''ble Justice Y.B. Chandrachud (as His Lordship then was) and Hon''ble Justice V.R. Krishna Iyer has held that no punitive action having been taken, it is difficult to state, apart from speculation, what the outcome of the proceedings will be. In that case, Hon''ble Supreme Court did not interfere with the second show cause notice and dismissed the writ petition.

In the light of aforesaid observations, in my view, the writ petition is entitled to be dismissed on this ground alone that it is premature.

It is, however, made clear that this Court is not expressing any opinion so far as merits of the order, if any is concerned, as the same is not before this Court and is non-existent.

In the result, the writ petition is dismissed. All interim orders, existing in the present writ petition, are hereby vacated.

We have passed our separate judgments. The result is that the writ petition stands dismissed. Interim orders, passed earlier, are vacated. Prayer for grant of leave is rejected.