Patel Kohlabhai Savsibhai vs State of Gujarat

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Abhilasha Kumari, J.—This petition under Article 226 of the Constitution of India, has been preferred with the following prayers:

"(A) YOUR LORDSHIPS be pleased to admit and allow this petition, in the interest of justice;

(B) YOUR LORDSHIPS be pleased to issue a appropriate writ, order or direction, quashing and setting aside the impugned notice dated 29.11.2014 issued by respondent No. 5 u/s. 105 of the Gujarat Panchayat Act and all actions in pursuance thereto, as being illegal, bad in law and also violative of Art. 14 of the Constitution of India.

(C) YOUR LORDSHIPS be pleased to stay the implementation, operation and execution of impugned notice dated 29.11.2014 issued by respondent No. 5, pending the admission, hearing and final disposal of this petition;

(D) YOUR LORDSHIPS be pleased to grant such other and further reliefs as may be deemed fit and proper by this Hon''ble Court in the interest of justice;"

According to the petitioners, they are agriculturists of village Fatepura (Malotra), having purchased different plots situated in Survey No. 103 of old village Fatepura, in the auction held on 24-5-2012. It is stated in the petition that the petitioners have paid the necessary consideration. The petitioners are aggrieved by the issuance of the impugned notice dated 29-11-2014, issued by the Sarpanch of Malotra Gram Panchayat (respondent No. 5) under Section 105 of the Gujarat Panchayats Act,1993 ("the Panchayats Act" for short), directing them to remove the encroachments made by them.

Mr. Mahendra U. Vora, learned advocate for the petitioners has submitted that the petitioners have made representations to the respondents, which have not been decided so far, therefore, without considering the representation, the impugned notice ought not to have been issued.

3.1 The second submission made by learned advocate for the petitioner is that the final notice has been issued to the father of petitioners Nos. 2 to 4, who is not the holder of the plot, and not to the plot-holders.

Having heard learned counsel for the petitioners and after perusal of the record it transpires that earlier, the petitioners had filed Special Civil Application No. 15116 of 2014, on the same cause of action, impugning the earlier notice dated 4-10-2014, issued by respondent No. 5 - Sarpanch of the very same Gram Panchayat, under Section 105 of the Panchayats Act.

This Court has called for the record of Special Civil Application No. 15116 of 2014, wherein the prayers made are as follow:

"(A) YOUR LORDSHIPS be pleased to admit and allow this petition, in the interest of justice;

(B) YOUR LORDSHIPS be pleased to issue a appropriate writ, order or direction, quashing and setting aside the impugned notice dated 4.10.2014 issued by respondent No. 5 u/s. 105 of the Gujarat Panchayat Act and all actions in pursuance thereto, as being illegal, bad in law and also violative of Art. 14 of the Constitution of India.

(C) YOUR LORDSHIPS be pleased to stay the implementation, operation and execution of impugned notice dated 4.10.2014 issued by respondent No. 5, pending the admission, hearing and final disposal of this petition;

(D) YOUR LORDSHIPS be pleased to grant such other and further reliefs as may be deemed fit and proper by this Hon''ble Court in the interest of justice;"

From the above, it will be seen that the cause of action in the earlier petition and in this petition are essentially the same, except for the date of the notice. However, in both the petitions the cause of action arises from the issuance of notices under Section 105 of the Panchayats Act, 1993.

Special Civil Application No. 15116 of 2014 was permitted to be withdrawn by order dated 17.10.2014, of this Court. The said order is reproduced hereinbelow:

"Mr. Mahendra U. Vora, learned advocate for the petitioners states, upon instructions, that the petitioners do not want to press the present petition, with a view to approaching the concerned Authority.

Permission to withdraw the petition, is granted.

The petition is disposed of, as withdrawn."

A perusal of the above order goes to show that the petition was permitted to be withdrawn without reserving liberty to the petitioners to approach the Court again, on the same cause of action.

In the case of Sarguja Transport Service Vs. State Transport Appellate Tribunal, M.P., Gwalior and Others, the Supreme Court has spelt out the following principles of law:

"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 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 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 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 Art. 21 of the Constitution since such a case stands on a different footing altogether. We, however, leave this question open."

(emphasis supplied)

As liberty was not reserved to the petitioners while permitting the withdrawal of the earlier petition, the petitioners could not have approached this Court on the same cause of action, by filing the present petition.

The petition is, therefore, not maintainable. As the earlier petition was not adjudicated on merits the contentions raised by the learned advocate for the petitioners, cannot be gone into.

The petition is, therefore, rejected.