DARYAO AND OTHERS versus THE STATE OF U. P. AND OTHERS

1961 Amending Act making notices which were in accord-ance with the previous law ineffective. In these cir-Pu,,holtam Jivabkai cumstances t l cutta ig ourt was right in v. holding that the amendment did not affect notices Chhagan Ka•son already given. No such question however arises in & Othm the present case. The period of notice is the same before and after the amendment in the present case, Wanchoo f. and what we have to sec is whether the crucial date for the application of the new sub-section (2-A) is the date of the notice or the date of the termination of the tenancy. We have already held that that date must be the date of the termination of the tenancy. In the circumstances the appeal fails and is hereby dismissed with costs.

Appeal dismissed.

klarc!t 27.

DARYAO AND OTHERS

THE STATE OF U. P. AND OTHERS

(and Connected Petitions)

(P. B. G.AJENDRAGADKAR, A. K. SARKAR,

K. N. WANCHOO, K. C. DAS GUPTA and

N. RAJAGOPALA AYYANGAR, JJ.)

Fundamental Right-Res juaicata-Dismissal of writ petition by High Court-If and when bar to petition in Supreme Court-Constitution of India, Arts. 32, 226.

Where the High Court dismisses writ petition under Art. 226 of the Constitution after hearing the matter on the merits on the ground that no fundan1ental right was proved or contraw vened or that its contravention was constitutiona11y justified, subsequent petition to the Supreme Court under Art. 32 of the Constitution on the same facts and for the same reliefs filed by the same party would be barred by by the general principle of general principle of res judicata.

the same party would be barred by by the general principle of general principle of res judicata. There is no substance in the plea that the judgment of the High Court cannot be treated as res judicata because it cannot [-]

1 S.C.R. SUPREME COURT REPORTS

under Art. 226 entertain petition under Art. 32 of the Con-stitution.

Citizens have ordinarily the right to invoke Art. 32 for Daryao &- Others appropriate relief if their fundamental rights are illegally or v. unconstitutionally violated and it is incorrect to say that Art. The State [0]!. U. P. 32 merely gives this Court discretionary power as Art. 226 & Otheis does to the High Court.

Basheshar Nath v. Commissioner of Income-tax, Delhi and Rajasthan, [r959] Supp. I li.C.R. 528, referred to.

Laxmanappa Hanumantappa Jamkhandi v. The Union of India, [1955] r S.C.R. 769, and Diwan Bahadur Seth Gopal Das Mohta v. The Union of India, [r955] r S.C.R. 773, considered.

The right given to the citizens to move this Court under Art. 32 is itself fundamental right and cannot be circumscrib-ed or curtailed except as provided by the Constitution. The expression "appropriate proceedings" in Art. 32 (r). properly construed, must mean such proceedings as may be appropriate to the nature of the order, direction or writ the petitioner seeks from this Court and not appropriate to the nature of the case.

Ramesh Thappar v. The State of Madras, [1950] S.C.R. 594, referred to.

Even so the general principle of res judicata, which has its founrtation on considerations of public policy, namely, (1) that binding decisions of courts of competent jurisdiction should be final and (2) that no person should be made to face the same kind of litigation twice over, is not mere technical rule that cannot be applied to petitions under Art. 32 of the Constitition. Duchess of Kingston's case, 2 Smith Lead. Cas. r3th Ed . 644, referred to.

The binding character of judgments of courts of competent jurisdiction is in essence part of the rule of Jaw on which the administration of justice, so much emphasised by the Constitu-tion, is founded and judgment of the High Court under Art. 226 passed after hearing on merits as aforesaid must bind the parties till set aside in appeal as provided by the Constitution and cannot be circumvented by petition under Art. 32.

Pandit M. S. M. Sharma v. Dr. Shree Krishna Sinha, [1961] I S.C. R. 96 and Raj Lakshmi Dasi v. Banamali Sm, [1953] S.C.R. I 54, relied on.

Janardan Reddy v. The State of Hyderabad, [r95r] S.C.R. 344, Syed Qasim Rezvi v. The State of Hyderabad, [1953] S.C.R. 589 and Bhagubhai Dullabhabhai Bhandari v. The District Magistrate, Thana, [1956] S.C.R. 533, referred to.

It was not correct to say that since remedies under Art. 226 and Art. 32 were in the nature of alternate remedies the adoption of one could not bar the adoption of the other, Mussammat Guiab Koer v. Badshah Bahadur, (1909) 13 C.W.N. rr97, held inapplicable.

576 SUPREME OOURT REPORTS [1962]

r96r Consequently, (r) where the petition under Art. 226 is considered on the merits as contested matter and dismissed by Daryao & Others the High Court, the decision pronounced is binding on the par-v. ties unless modified or reversed by appeal or other appropriate

1'he State of U. T. proceedings under the Constitution;

(2) Where the petition under Art. 226 is dismissed not on the merits but because :of !aches of the party applying for the \Vrit or because an alternative remedy is available to him, such dismissal is no bar to subsequent petition under Art. 32 except in cases where the facts found by the High Court may them-selves be relevant even under Art. 32;

& Others

(3) Where the writ petition is dismissed in limine and an· order is pronounced, whether or not such dismissal is bar must depend on the nature of the order;

(4) if the petition is dismissed in limine without speaking order, or as withdrawn, there can be no bar of res judicata.

ORIGINAL JURISDICTION: Writ Petitions Nos. 66 and 67 of 1956, 8 of 1960, 77of1957, 15 of 1957 and 5 of 1958.

Writ Petitions under Article 32 of the Constitution of India for the enforcement of Fundamental Rights. N aunit Lal, for the petitioner in W. Ps. Nos. 66 and 67 of 1956.

C. P. Lal, for respondent No. 1 in W. Ps. Nos. 66 and 67 of 1956.

Bhawani Lal and P. C. Agarwal, for respondents Nos. 3a and 4 in ,V, Ps. Nos. 66 and 67 of 1956.

C. B. Agarwala and J(. P. Gupta, for the petitioner in W. P. No. 8 of 1960.

Veda Vayasa and 0. P. Lal, for respondent in \V. P. No. 8 of 1960.

Pritam Singh Safeer, for the petitioner in W. P.

No. 77 of 1957.

S. M. Sikri, Advocate-General, Punjab, N. S. Bindra and D. Gupta, for respondent No. 1 in W. P. No. 77 of 1957.

Govind Saran Singh, for respondent. No. 2 in W. P. No. 77 ofl957.

A. N. Sinha and Raghunath, for petitioner in W. P.

No. 15 of 1957.

C. K. Daphtary, Solicitor-General for India, N. S Bindra and R.H. Dhebar, for respondent in W.P. No 15 of 1957.

1 S.C.R. SUPREME COUR'r REPOR'rs 577

B. R. L. Iyengar, for the petitioner in W. P. No. 5 of 1958. 1958.

5 of 1958. 1958. Da,yao &· Othm C. K. Daphtary, Solicitor-General for India, R. Gan?'-'v. pathy Iyer and R. H. Dhebar, for the respondent m Tlw Stafo of u. P. W. P. No. 5 of 1958. &· Othm

1961. March 27. The Judgment of the Court was delivered by

GAJENDRAGADKAR, J.-These six writ petitions filed Gojend,agadka' .f. under Art. 32 of the Constitution have been placed before the Court for final disposal in group because though they arise between separate parties and are unconnected with each other common question of law arises in all of them. The opponents in all these petitions have raised preliminary objection against the maintainability of the writ petitions on the ground that in each case the petitioners had moved the High Court for similar writ under Art. 226 and the High Court has rejected the said petitions. The argument is that the dismissal of writ petition filed by party for obtaining an appropriate writ creates bar of res judicata against similar petition filed in this Court under Art. 32 on the same or similar facts and pray-ing for the same or similar writ. The question as to whether such bar of res judicata can be pleaded against petition filed in this Court under Art. 32 has been adverted to in some of the reported decisions of this Court but it has not so far been fully considered or finally decided; and that is the preliminary question for the decision of which the six writ petitions have been placed together for disposal in group. In dealing with this group we will set out the facts which give rise to Writ Petition No. 66 of 1956 and decide the general point raised for our decision. Our decision in this writ petition will govern the other writ peti-tions as well.

Petition No. 66 of 1956 alleges that for the last fifty years the petitioners and their ancestors have been the tenants of the land described in Annexure atta-ched to the petition and that respondents 3 to 5 are ·-+ the proprietors of the said land. Owing to communal

z96z disturbances in the Western District of Uttar Pradesh aryao -::-v'. <.!.>' <.!.>' 0 I I ers in 1947, July, 1947; the later petitioners m November, 1947, . had to leave their they village returned in The State of u. P. but they found that during their temporary absence & Others respondents 3 to 5 had entered in unlawful possession . --of the said land. Since the said respondents refused Ga1endrngadka' J. to deliver possession of the land to the petitioners the petitioners had to file suits for ejectment under s. 180 of the U. P. Tenancy Act, 1939. These suits were filed in June, 1948. In the trial court the petitioners succeeded and decree was passed in their favour. The said decree was confirmed in appeal which was taken by respondents 3 to 5 before the learned Addi-tional Commissioner. In pursuance of the appellate decree the petitioners obtained possession of the land through Court.

-::-D aryao v'. <.!.>' <.!.>' 0 I I

Respondents 3 to 5 then preferred second appeal

before the Board of Revenue under s. 267 of the U. P. Tenancy Act, 1939. On March 29, 1954, the Board allowed the appeal preferred by respondents 3 to 5 and dismissed the p~titioner's suit with respect to the land described in Annexure A, whereas the said res-pondents' appeal with regard to other lands were dis-missed. The decision of the Board was based on the ground that by virtue of the U. P. Zamindary Aboli-tion and Land Reforms (Amendment) Act XVI of 1953 respondents 3 .to 5 had become entitled to the possession of the land.Aggrieved by this decision the petitioners moved the High Court at Allahabad under Art. 226 of the Constitution for the issue of writ of certiorari to quash the said judgment. Before the said petition was filed Full Bench of the Allahabad High Court had already interpreted s. 20 of the U. P. Land Reforms Act as amended by Act XVI of 1953. The effect of the said decision was plainly against the petitioners' contentions, and so the learned advocate who appeared for the petitioners had no alternative but not to press the petition before the High Court .. In consequence the said petition was dismissed on March 29, 1955. It appears thats. 20 has again been amended by s. 4 of Act XX of 1954. It is under these

1 S.C.R. SUPREME COURT REPORTS

circumstances that the petitioners have filed the pre-z96z sent petition und~r Art. 32 on March 14, 19?~· It is Daryao-;: Others plain that at the time when the present pet1t10n has v. been filed the period of limitation prescribed for an The State of u. P. appeal under Art. 136 against the dismissal of the & Others petitioners' petition before the Allahabad High· Court . -had already expired. It is also clear that the grounds GaJendragadkar J. of attack against the decision of the Board which the petitioners seek to raise by their present petition are exactly the same as the grounds which they had raised before the Allahabad High Court; and so it is urged by the respondents that the present petition is barred by res judicata.

Mr. Agarwala who addressed the principal argu-ments on behalf of the petitioners in this group contends that the principle of res judicata which is no more than technical rule similar to the rule of estoppel cannot be pleaded against petition which seeks to enforce the fundamental rights guaranteed by the Constitution. He argues that the right to move the Supreme Court for the enforcement of the fund-amental rights which is guaranteed by Art. 32(1) is itself fundamental right and it would be singularly inappropriate to whittle down the said fundamental right by putting it in the straight jacket of the techni-cal rule of res judicata. On the other hand it is urged by the learned Advocate-General of Punjab, who led the respondents, that Art. 32(1) does not guarantee to every citizen the right to make petition under the said article but it merely gives him the right to move this Court by appropriate, proceedings, and he con-tends that the appropriate proceedings in cases like the present would be proceedings by way of an application for special leave under Art. 136 or by way of .appeal under the appropriate article of the Con-stitution. It is also suggested that the right to move which is guaranteed by Art. 32( l) does not impose on this Court an obligation to grant the relief, because as in the case of Art. 226 so in the case of Art. 32 also the granting of leave is discretionary.

In support of the argument that it is in the discretion of this Court to grant an appropriate relief or refuse to do so reliance has been placed on the observations

r9[61 ]made in two reported decisions of this Court. --;;;:- Oth In Laxmanappa Hanumantappa Jamkhandi v. The aryao v. ers Union of India & Another (1), this Court held that as The Sta:e of u. P. there is special provision in Art. 265 of the Constitu-& Others tion that no tax shall be levied or collected except by . --authority of law, cl. 1 of Art. 31 must be regarded as GaJendrngadhar f. concerned with deprivation of property otherwise than by imposition or collection of tax and as the right conferred by Art. 265 is not fundamental right con-ferred by Part III of the Constitution, it cannot be enforced under Art. 32. In other words, the decision was that the petition filed before this Court under Art. 32 was not maintainable; but Mahajan, C. J., who spoke for the Court, proceeded to observe that "even otherwise in the peculiar circumstances that have arisen it would not be just and proper to direct the issue of any of the writs the issue of which is dis-cretionary with this Court". The learned Chief Justice has also added thut when this position ·was p.!lt to Mr. Sen he fairly and rightly conceded that it was not possible for him to combat this position. To the same effect are the observations made by the same learned Chief Justice in Dewan Bahadur Seth Gopal Das M ohta v. The Union of India & Another ([2]). It will, however, be noticed that the observatfons m1ide in both the cases are obiter, and, with respect, it would be difficult to treat them as decision on the question that the issue of an appropriate writ under Art. 32 is matter of discretion, and that even if the petitioner proves his fundamental rights and their unconstitutional in-fringement this Court n.evertheless can refuse to issue an appropriate writ in his favour. Besides, the subsequent decision of this Court in Basheshar Nath v. The Commissioner of Income-tax, Delhi and Rajas-than (') tender to show that if petitioner makes out case of illegal contravention of his fundamental rights he may be entitled to claim an appropriate relief and plea of waiver cannot be raised against his claim. . It is true that the question of res judicata did not fall to be considered in that case but the tenor of all the judgments, which no doubt disclose II) [1955] I S.C.R. 76Q, 772, 773· (2) [1955] I S.C.R. 773, 776. t3) [t959] Supp. I S.C.R. 528.

I S.C.R. SUPREME COURT REPORTS

difference in approach, seems to emphasise the basic z96z importan~e o.f the fundamental rights g?~ranteed by Da,vao-;: Others the Const1tut10n and the effect of the dems10n appears · v. to be that the citizens are ordinarily entitled to appro- The State of u. P. priate relief under Art. 32 once it is shown that their & Othm fundamental rights have been illegally or unconstitu--tionally violated. Therefore, we are not impressed by Gajend,agadka' f. the argument that we should deal with the question of the applicability of the rule of res judicata to petition under Art. 32 on the basis that like Art. 226 ArL 32 itself gives merely discretionary power to the Court to grant an appropriate relief.·The argument that Art. 32 does not confer upon citizen the right to move this Court by an original petition but merely gives him the right to move this Court by an appropriate. proceeding according to the nature of the case seems to us to be unsound. It is urged that in case where the petitioner has moved the High Court by writ petition under Art. 226 all that he i8 entitled to do under Art. 32( I) is to move this Court by an application for special leave under Art. 136; that, it is contended, is the effect of the expres-sion "appropriate proceedings" used in Art. 32(1). In our opinion, on fair construction of Art. 32(1) the expression "appropriate proceedings" has reference to proceedings which may be appropriate having regard ' to the nature of the order, direction or writ which the petitioner seeks· to obtain from this Court. The appro-priateness of the proceedings would depend upon the particular writ or order which he claims and it is in that sense that the right has been conferred on the citizen to move this Con.rt by appropriate proceedings. That is why we must proceed to deal with the ques-tion of res judicata on the basis that fundamental right has been guaranteed to the citizen to move this Court by an original petition wherever his grievance is that his fundamental rights have been illegally con-travened.

There can be no doubt that the fundamental right guaranteed by Art. 32(1) is very important safegu-ard for the protection of the fundamental rights of the citizens, and as result of the said guarantee this

'9[6]' Court has been entrusted with the solemn task of up-D aryao ~ , Oth ers holding the fundamental rights . of the citizens . of this v. country. The fundamental rights are mtended not The stato of u. P. only to protect individual's rights but they are based & Othm on high public policy. Liberty of the individual and . -the protection of his fundamental rights are the very Ga;endragadkar J. essence of the democratic way of life adopted by the Constitution, and it is the privilege and the duty of this Court to uphold those rights. This Court would naturally refuse to circumscribe them or to curtail them except as provided by the Constitution itself. It is because of this aspect of the matter that in Ramesh Thappar v. The State of ~Madras ([1]), in the very first year after the Constitution came into force, this Court rejected preliminary objection raised against the competence of petition.filed under Art. 32 on the ground that as matter of orderly procedure the peti-tioner should first have resorted to the High Court under Art. 226, and observed that "this Court in thus constituted the protector and guarantor of the fund-amental rights, and it cannot, consistently with the responsibility so laid upon it, refuse to entertain applications seeking protection against infringements of such rights". Thus the right given to the citizen to move this Court by petition under Art. 32 and claim· an appropriate writ against the unconstitutional , infringement of his fundamental rights itself is matter of fundamental right, and in dealing with the objection based on the application of the rule of res .iitdicata this aspect of the matter had no doubt to be borne in mind.

But, is the rule of res j11.dicata merely technical rule or is it based on high public policy? If the rule of res judicata itself embodies principle of public policy which in turn is an essential part of the rule of law then the objection that the rule cannot be invoked where fundamental rights are in question may lose much of its validity. Now, the rule of res judica~a n,s indicated in s. 11 of the Code of Civil Procedure has no doubt some technical aspects, for instance the rule of constructive res judicata may be said to be techni-cal; but the basis on which the said rule rests is (r) [r950J S.C.R. 594-

. ...i,

I S.C.R. SUPREME COURT REPORTS

founded on considerations of public policy. It is in r96r the interest of the public at large that finality should 0 0 -. "-"- 0 attach to the binding decisions pronounced by Courts "'Y":; t of competent jurisdiction, and it is also in the public The state of u. P. interest that individuals should not be vexed twice e;. Othm over with the same kind of litigation. If these two -principles form the foundation of the general rule ofGajendrngadka• /. res judicata they cannot be treated as irrelevant or inadmissible even in dealing with fundamental rights in petitions filed under Art. 32.

-. "-"-0 0 :; t "'

In considering the essential elements of res judicata one inevitably harks back to the judgment of Sir William de Grey, (afterwards Lord Walsingham) in the leading Duchess of Kingston's case('). Said Sir vVilliam.de Grey, (afterwards Lord Walsingham) "from the variety of cases relative to judgments being given in evidence in civil suits, these two deductions seem to follow as generally true: First, that the judgment of court of concurrent jurisdiction, directly upon the point, is as plea, bar, or as evidence, conclusive between the same parties, upon the same matter, directly in question in another court; Secondly, that the judgment of court of exclusive jurisdiction, directly upon the point, is in like manner conclusive upon the same matter, between the same parties, com-ing incidentally in question in another court for different purpose". As has been observed by Halsbury, "the doctrine of res judicata is not technical doctrine applicable only to records; it is fundamental doctrine of all courts that there must be an end of litiga-tion"('). Hals bury also adds that the doctrine applies equally in all courts, and it is immaterial in what court the former proceeding was taken, provided only that it was court of competent jurisdiction, or what form the proceeding took, provided it was really for the same cause" (p. 187, paragraph 362). "Res judi-cata", it is observed in Corpus Juris, "is rule of universal Jaw pervading every well regulated system of jurisprudence, and is put upon two grounds embodi-ed in various maxims of the common law; the one,

Said Sir

... ! 11

(1) 2 Smith Lead. Cas. 13th Ed., pp. 644, 645.

(:2) Halsbury's Laws of England, 3rd, Ed., Vol. 15, para. 357, p. 185.

(2) Ibid. p. 745.

(I) Corpus Juris, Vol. 34, p. 743·

(3) Halsbury's Laws of England, 3rd Ed., Vol. 22, p. 780, par:igrapb 166')•

1 S.C.R.

action between the same parties for the same cause in '9[6]' the same conrt or in another court, whether the latter -~- Olk l rns concurrent or ot 1er iuris l . . d. 10 t. .wn. Tl . HS rue I rn . aryao v. L-ers subject to the limitation that the judgmtint in then,, stat~ of u. P. former action must have been rendered by court or &, Others tribunal of competent jurisdiction" ([1]). ·, "It is, how--ever, essential that there should have been judicial Gajendragadkar f. determination of rights in controversy with final decision thereon" ('). In other words, an original petition for writ under Art. 32 cannot take the place of an appeal against the order passed by the High Court in the petition filed before it under Art. 226. There can be little doubt that the jurisdiction of this Court to entertain applications under Art. 32 which are original cannot be confused or mistaken or used for the appelh1te jurisdiction of this Court which alone can be invoked for correcting errors in the decisions of High Courts pronounced in writ petitions under Art. 226. Thus, on general considerations of public policy there seems to be no reason why the rule of res judicata should be treated as inadmissible or' irrele-vant in dealing with petitions filed under Art. 32 of the Constitution. It is true that the general rule can be invoked only in cases where dispute between the parties has been referred to court of competent jurisdiction, there has been contest between the parties before the court, fair opportunity has been given to both of them to prove their case, and at the end the court has pronounced its judgment or deci-sion. Such decision pronounced by court of com-petent jurisdiction is binding between the parties unless it is modified or reversed by adopting proce-dure prescribed by the Constitution. In our opinion, therefore, the plea that the general rule of res judicata should not be allowed to be invoked cannot be sustained.

This Court had occasion to consider the application of the rule of res judicata to petition filed under Art. 32 in Pandit M. S. M. Sharma v. Dr. Skree Krjshna Sinha ('). In that case the petitioner had moved thi~ (1) Corpus Juris Secundum, Vol. 50 (Judgments), p. 603. \~\\bid.. p. 608. '' (3) [1961] 1 S.C.R. 96.

1961 Court under Art. 32 and claimed an appropriate writ against the Chairman and the Members of the Com-Da,yao & Others m1ttee o --· P · r1v1 "l eges o th St t L · l eg1s t' 1ve ssem · y. bl Th• s1a1:-_,,f u. r. The said petition was dismissed. Subsequently he filed a;. Others another petition substantially for the same relief and . -substantially on the same allegations. One of the Ga;endrn~adka' J. points which then arose for the decision of this Court was· whether the second petition was competent, and this Court held that it was not because of the rule of res judicata. It is true that the earlier decision on which res judicata was pleaded was decision of this Court in petition filed under Art. 32 and in that sense the background of the disput&- was different, because the jadgment on which the plea was based was judgment of this Court and not of any High Court. Even so, this decision affords assistance in determining the point before us. In upholding the plea of res judicata this Court observed that the question determined by the previous decision of this Court cannot be reopened in the present case and must govern the rights and obligations of the parties which are substantially the same. In support of this decision Sinha, C. J., who spoke for the Court, referred to the earlier decision of this Court in Raj Lakshmi Dasi v. Banamali Sen ([1]) and observed that the principle underlying res judicata is applicable in respect of question which has been raised and. decided after full contest, even though the first Tribunal which decided the matter may have no jurisdiction to try the subse-quent suit and even though the subject-matter of the dispute was not exactly the same in the two proceed-ings. We may add incidentally that the Court which tried the earlier proceedings in the case of Raj Lakshmi Dasi (1) was Court of exclusive jurisdiction. Thus this decision establishes the principle that the ):"ule of res judicata can be invoked even against petition filed under Art. 32.

We may at this stage refer to some of the earlier decisions of this Court where the present problem was posed but not finally or definitely answered. In Janardan Reddy v. The State of Hyderabad ([2]), it (I) (1953}S.C.R. 154. (2) [1951] S.C.R. 344, 370.

1 S.C.R. SUPREME COURT REPORTS

appeared that against the decision of the High Court '9[6]' petition for special leave had been filed but the --::- Oth same ha een reJecte · an t h" 1s was o owe J] db y pe t" 1-aryao v. ~· ers tions under Art. 32. These petitions were in fact The state of u. P. entertained though on the merits they were dismis-& Others sed, and in doing so it was observed by Fazl Ali, J., . who delivered the judgment of the Court, that "it Ga1endragadkar J. may, however, be observed that in this case we have not considered it necessary to decide whether an application under Art. 32 is maintainable after simi-lar application under Art. 226 is dismissed by the High Court, and we reserve our opinion on that question". To the same effect are the observations made by Mukherjea, J., as he then was, in Syed Qasim Razvi v. The State of Hyderabad ([1 ]).On the other hand, in Bhagubhai Dullabhabhai Bhandari v. The District Magistrate, Thana (')the deci-sion of the High Court was treated as binding bet-ween the parties when it was observed by reference to the said proceedings that "but that is closed chapter so far as the Courts including this Court also are concerned inasmuch as the petitioner's conviction stands confirmed as result of the refusal of this Court to grant him special leave to appeal from the judgment of the Bombay High Court". In other words, these observations seem to suggest that the majority view was that if an order of conviction and sentence passed by the High Court would be binding on the convicted person and cannot be assailed subse-quently by him in proceeding taken under Art. 32 when it appeared that this Court had refused special leave to the said convicted person to appeal against the said order of conviction.

The next question to consider is whether it makes ·any difference to the application of this rule that the decision on which the plea of res judicata is raised is decision not of this Court but of High Court exer-cising its jurisdiction under Art. 226. The argument is that one of the essential requirements of s. 11 of the Code of Civil Procedure is that the Court which ~ _. tries the first suit or proceeding should be competent (I) [1953] S.C.R. 589. (z) [1956] S.C.R. 533.

'9[[6]]' to try the second suit or proceeding, and since the Dar ao---;: OthersHigh Court cannot entertain an application under Y v. Art. 32 its decision cannot be treated as res judicata Th• State of u. P. for the purpose of such petition. It is doubtful if &· Others the technical requirement prescribed by s. 11 as to the . -- k competence of the first Court to try the subsequent Ga;endragad ar ]. SUI 't. rs an essen t" rn 1 par t o ti ie genera I ru 1 o res J1l . a· i-cata; but assuming that it is, in substa.nce even the said test is satisfied because the jurisdiction of the High Court in dealing with writ petition filed under Art. 226 is substantially the same as the jurisdiction of this Court in entertaining an application under Art. 32. The scope of the writs, orders or directions which the High Court can issue in appropriate cases under Art. 226 is concurrent with the scope of similar writs, orders or directions which may be issued by this Court under Art. 32. The cause of action for the two applications would be the same. It is the asser-tion of the existence of fundamental right and its illegal contravention in both cases and the relief claimed in both the cases is also of the same character. Article 226 confers jurisdiction on the High Court to entertain suitable writ petition, whereas Art. 32 provides for moving this Court for similar writ peti-tion for the same purpose. Therefore, the argument that petition under Art. 32 cannot be entertained by High Court under Art. 226 is without any sub-stance; and so the plea that the judgment of the High Court cannot be treated as res judicata on the ground that it cannot entertain petition under Art. 32 must be rejected.

It is, however, necessary to add that in exercising its jurisdiction under Art. 226 the High Court may some-times refuse to issue an appropriate writ or order on the ground that the party applying for the writ is guilty of !aches and in that sense the issue of high prerogative writ may reasonably be treated as mat-ter of discretion. On the other hand, the right grant-ed to citizen to move this Court by appropriate proceedings under Art. 32(1) being itself fundamen-tal right this Court ordinarily may have to issue an ~ " appropriate writ or order provided it is shown that

1 S.C.R. SUPREME COURT REPORTS

the petitioner has fundamental right which has been r96r illegally or unconstitutionally contravened. It is not --;;: Oth unlikely that if petition is filed even under Art. 32 aryao v. · ers after long lapse of time considerations may arise The state of u. P. whether rights in favour of third parties which may & Others have arisen in the meanwhile could be allowed to be affected, and in such case the effect of !aches on the Gajendrngodkar J. part of the petitioner or of his acquiescence may have to be considered; but, ordinarily if petitioner makes out case for the issue of an appropriate writ or order he would be entitled to have such writ or order under Art. 32 and that may be said to consti-tute difference in the right conferred on citizen to move the High Court under Art. 226 as distinct from the right conferred on him to move this Court. This difference must inevitably mean that if the High Court has refused to exercise its discretion on the ground of !aches or on the ground that the party has an efficacious alternative remedy available to him then of course the decision of the High Court cannot generally be pleaded in support of the bar of res juiii-cata. If, however, the matter has been considered on the merits and the High Court has dismissed the peti-tion for writ on the ground that no fundamental right is proved or its breach is either not established or is shown to be constitutionally justified there is no reason why the said decision should not be treated as bar against the competence of subsequent petition filed by the same party on the same facts and for the same reliefs under Art. 32.

In this connection reliance has been placed on the fact that in England habeas corpus petitions can be filed one after the other and the dismissal of one habeas corpus petition is never held to preclude the ,. making of subsequent petition for the same reason. In our opinion, there is no analogy between the peti-tion for habeas corpus and petitions filed either under Art. 226 or under Art. 32. For historical reasons the writ for habeas corpus is treated as standing in category by itself; but, even with regard to habeas corpus petition it has now been held in England in Re Hastings (No. 2) (') that "an applicant for writ

(1) (1958) 3 All E.R. Q.B.D. 625.

i96r of habeas corpus in criminal matter who has once --;- 0 been heard by Divisional Court of the Queen's aryao v. "" t ers enc D' ' · iv1s10n lS · no en i t t"tl t o ear secon The State of u. P, time by another Divisional Court in the same Divi-& Others sion, since decision of Divisional Court of the . . -Queen's Bench Division is equivalent to the decision Ga;cndrngadkar J. of all the judges of the Division, just as the decision of one of the old common law courts sitting in bane was the equivalent of the decision of all the judges of that Court." Lord Parker, C. J., who delivered the judgment of the Court, has elaborately examined the historical genesis of the V>Tit, several dicta pronounced by different judges in dealing with successive writ peti-tions, and has concluded that "the authorities cannot be said to support the principle that except in vacation an applicant could go from judge to judge as opposed to going from court to court" (p. 633), so that even in regard to habeas corpus petition it is now settled in England that an applicant cannot move one Divi-sional Court of the Queen's Bench Division after ano-ther. The said decision has been subsequently applied in Re Hastings (No. 3) (1) to writ petition filed for habeas corpus in Divisional Court of the Chancery Division. In England, technically an order passed on petition for habeas corpus is not regarded as judgment and that places the petitions for habeas corpus in class by themselves. Therefore we do not think that the English analogy of several habeas cor-pus applications can assist the petitioners in the pre-sent case when they seek to resist the application of res judicata to petitions filed under Art. 32. Before we part with the topic we would, however, like to add that we propose to express no opinion on the question as to whether repeated applications for habeas corpus would be competent under our Constitution. That is matter with which we are not concerned in the pre-sent proceedings.

There is one more argument which still remains to be considered. It is urged that the remedies avai-lable to the petitioners to move the High Court under Art. 226 and this Court under Art. 32 are

(>) [1959] I All E.R. Ch.D. 698.

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alternate remedies and so the adoption of one remedy z96z cannot bar the adoption of the other. These remedies --;; Oth . . a.yao ~ ers are not exclusive ut are cumulative and so no ar o v. res judicata can be pleaded when party who has The state of u. P. filed petition under Art. 226 seeks to invoke the & Others jurisdiction of this Court under Art. 32. In support of . --this contention reliance has been placed on the deci- Ga;endragadhar f. sion of the Calcutta High Court in Mussammat Gulab Kaer v. Badshah Bahadur (1 ). In that case party who had unsuccessfully sought for the review of consent order on the ground of fraud brought suit for simi-lar relief and was met by plea of res judicata. This plea was rejected by the Court on the ground that the two remedies though co-existing were not inconsistent so that when party aggrieved has had recourse first to one remedy it cannot be precluded from subsequ-ently taking recourse to the other. In fact the judg-ment shows that the Court took the view that an application for review was in the circumstances an inappropriate remedy and that the only remedy avail-able to the party was that of suit. In dealing with the question of res judicata the Court examined the special features and conditions attaching to the appli-cation for review, the provisions with regard to the finality of the orders passed in such review proceed-ings and the limited nature of the right to appeal provided against such orders. In the result the Court held that the two remedies cannot be regarded as parallel and equally efficacious and so no question of election of remedies arose in those cases. We do not think that this decision can be read as laying down general proposition of law that even in regard to alternate remedies if party takes recourse to one remedy and contest arising therefrom is tried by court of competent jurisdiction and all points of con-troversy are settled the intervention of the decision of the Court would make no difference at all. In such case the point to consider always would be what is the nature of the decision pronounced by Court of competent jurisdiction and what is its effect. Thus considered there can be no doubt that if writ peti-tion filed by party has been dismissed on the merits (I) (1909) Ij c.w.N. II97·

by the High the High High Court the judgment thus pronounced is thus pronounced is pronounced is binding between the parties and it cannot be circum-b . k" vented or or y-passe y his ta ta mg recourse to Art. 32 of the the Constitution. Therefore, we are not satisfied that the ground of alternative remedies is well founded. We must now proceed to state our conclusion on the now proceed to state our conclusion on the state our conclusion on the our conclusion on the the preliminary objection raised by the respondents. W hold that if writ petition filed by party under Art. 226 is considered on the merits as contested matter and is dismissed the decision thus pronounced would continue to bind the parties unless it is otherwise modifie.d or reversed by appeal or other appropriate proceedings permissible under the Constitution. It would not be open to party to ignore the said judg-ment and move this Court under Art. 32 by an original petition made on the same facts and for obtaining the same or similar orders or writs. If the petition filed in the High Court under Art. 226 is dismissed not on the merits but because of the !aches of the party applying for the writ or because it is held that the party had an alternative remedy available to it, then the dismissal of the writ petition would not constitute bar to subsequent petition under Art. 32 except in cases where and if the facts thus found by the High Court may themselves be relevant even under Art. 32. If writ petition is dismissed in limine and an order is pronounced in that behalf, whether or not the dis-missal would constitute bar would depend upon the nature of the order. If the order is on the merits it would be bar; if the order shows that the dismissal was for the reason that the petitioner was guilty of !aches or that he had an alternative remedy it would not be bar, except in cases which we have already indicated. If the petition is dismissed in limine with-out passing speaking order then such dismissal can-not be treated as creating bar of res judicata. It is true that, prima facie, dismissal in limine even without passing speaking order in that behalf may strongly su"gest 0 that the Court took the view that there was nosubstance in the petition at all; but in the absence of speaking order it would not be easy to decide

z96z by the High the High High Court the judgment thus pronounced is thus pronounced is pronounced is Daryao ---;;-~ 0 I ers binding between the the parties . and it cannot be circum-k" it cannot be circum-cannot be circum-v. vented or or y-passe y his ta ta mg recourse to Art. 32 The state oJ u. P. of the the Constitution. Therefore, we are not satisfied & Othm that the ground of alternative remedies is well founded. Gajcndragadkar J. We must now proceed to state our conclusion on the now proceed to state our conclusion on the state our conclusion on the our conclusion on the the

I S.C.R. SUPREME COURT REPORTS

what factors weighed in the mind of the Court and z9[6]z that makes it difficult and nnsafe to hold that such -----; Oth summary dismissal is dismissal on merits and as aryao v. such constitutes bar of res judicata against similar The State of u. P. u. P. P. petition filed under Art. 32. If the petition is dismis-& Othm sed as withdrawn it cannot be bar to subsequent -petition under Art. 32, because in such case there Gajendragadkar J. has been no decision on the merits by the Court. We wish to make it clear that the conclusions thus reach-ed by us are .confined only to the point of res judicata which has been argued as preliminary issue in these writ petitions and no other. It is in the light of this decision that we will now proceed to examine the position in the six petitions before us.

-----; Oth v. "' of u. P. u. P. P. & Othm -

In Petition No. 66 of 1956 we have already seen • that the petition filed in the High Court was on the same allegations and was for the same relief. The petitioners had moved the High Court to obtain writ of certiorari to quash the decision of the Reven11e Board against them, and when the matter was argued before the High Court in view of the previous deci-sions of the High Court their learned counsel did not press the petition. In other words, the points of law raised by the petition were dismissed on the merits. "' That being so, it is clear case where the writ peti-tion has been dismissed on the merits, and so the dis-missal of the writ petition creates bar against the competence of the present petition under Art. 32. The position with regard to the companion petition, No. 67 of 1956, is exactly the same. In the result these two petitions fail and are dismissed; the:ae would be no order as to costs.

In Writ Petition No. 8 of 1960 the position is sub-stantially different. The previous petition for writ filed by the petitioner (No. 68of1952) in the Allahabad High Court was withdrawn by his learned counsel and the High Court therefore dismissed the said peti-tion with the express observation that the merits had not been considered by the High Court in dismissing it and so no order as to costs was passed. This order ...,.dismissing the writ petition as withdrawn which was

r96r passed on February 3, 1955, cannot therefore support --;-the plea of res judietita against the present petition. aryao ~ 0 tht1s · · J v. It appears that co-lessee of the pet1t10ner ha so The State oJ u. P, filed similar ·writ Petition, No. 299 of 1958. On this & Others writ petition the High Court no doubt made certain --observations and findings but in the end it came to GaJendn,gadka• J. the conclusion that writ petition was not the proper proceeding for deciding such old disputes about title and so it left the petitioner to obtain declaration about title from competent civil or revenue court in regular suit. Thus it would be clear that the dis-missal of this writ petition (on 17-3-1958) also cannot constitute bar against the competence of the present writ petition. The preliminary objection raised against this writ petition is therefore rejected and it is ordered that this writ petition be set down for hearing before Constitution Bench.

In Petition No. 77 of 1957 the petitioner has stated in, paragraph 11 of his petition that he had moved the High Court of Punjab by writ petition under Arts. 226 and 227 buf the same was dismissed in limine on July 14, 1957. It is not clear from this statement whether any speaking order was passed on the petition or not. It appears that the petitioner further filed an application for review of the said order under O. 47, r. 1 read with s. 151 of the Code but the said applica-tion was also heard and dismissed in limine on March 1, 1957. It is also not clear whether speaking order was passed on this application or not. That is why, on the material as it stands it is not possible for us to deal with the merits of the preliminary objection. We would accordingly direct that the petitioner should file the two orders of dismissal passed by the Punjab High Court. After the said orders are filed this peti-tion may be placed for hearing before the Constitution Bench and the question of res judicata may be con-sidered in the light of our decision in the present group.

In Petition Ko. 15 of 1957 initially we had bare recital that the writ petition made by the petitioner in the Punjab High Court had been dismissed. Sub- ,.,, sequently, however, tho said order itself has been

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produced and it appears that it gives no reasons for dis-19961 missal. Accordingly we must hold that the said order -;;:-- 0 does not create bar of res judicata and so the petition aryao v. ' will have to be set down for hearing on the merits. The state of of u. P. In Writ Petition No. 5 of 1958 the position is clear. & Othm The petitioner had moved the Bombay High Court . -for an appropriate writ challenging the order of the Ga1end>agadkar I Collector in respect of the land in question. The con-tentions raised by the petitioner were examined in the light of the rejoinder made by the Collector and sub-stantially the petitioner's case was rejected. It was held by the High Court that the power conferred on the State Government by s. 5(3) of the impugned Act, the Bombay Service Inam (Useful to the Community) Abolition Act, 1953, was not arbitrary nor was its exercise in this particular case unreasonable or arbitra-ry. The High Court also held that the land of the petitioner attracted the relevant provisions of the said impugned statute. Mr. Ayyangar for the petitioner realised the difficulties in his way, and so he attempt-ed to argue that the contentions which he wanted to raise in his present petition are put in different form, and in support of this argument he has invited our attention to grounds 8 and 10 framed by him in pamgraph X of the petition. We are satisfied that change in the form of attack against the impugned statute would make no difference to the true legal position that the writ petition in the High Court and the present writ petition are directed against the same statute and the grounds raised by the petitioner in that behalf are substantially the same. Therefore the decision of the High Court pronounced by it on the merits of the petitioner's writ petition under Art. 226 is bar to the making of the present petition under Art. 32. In the result this writ petition fails and is dismissed. There would be no order as to costs.

19961 -;;:-- 0 aryao v. ' "' The state of of u. P. & Othm . -

Petition dismissed.