Kamal Galani v. The Assistant Commissioner of Income-­tax, 23(3), Mumbai / The Joint Commissioner of Income­-tax 23(3), Mumbai / The Commissioner of Income­-tax,­ 23, Mumbai / The Union of India
[Citation -2017-LL-0814-2]

Citation 2017-LL-0814-2
Appellant Name Kamal Galani
Respondent Name The Assistant Commissioner of Income-­tax, 23(3), Mumbai / The Joint Commissioner of Income­-tax 23(3), Mumbai / The Commissioner of Income­-tax,­ 23, Mumbai / The Union of India
Court HIGH COURT OF BOMBAY
Relevant Act Income-tax
Date of Order 14/08/2017
Judgment View Judgment
Keyword Tags reassessment proceedings • voluntary retirement • source of income • public policy • penalty • advance
Bot Summary: Mr. Singh has taken us through the memo of the earlier writ petitions and the prayers, and the memo of the present writ petitions and the prayers to submit that everything therein is identical. Mr. Mistri would rely upon the averments in the earlier petitions and the present petitions about the status of the petitioner. Mr. Mistri submits Page 8 of 31 ::: Uploaded on - 22/08/2017 ::: Downloaded on - 24/08/2017 14:22:45 ::: suresh 9-WPG-1033.2017.doc that the allegation is that there was a misstatement about a material fact in the earlier writ petitions and when it is discovered now, there is no such misstatement on a material fact the effect of the orders passed in the earlier petitions should not influence the maintainability of the present writ petitions. Mr. Mistri would elaborate this contention by submitting that Sarguja Transport's principle is applied when a petitioner argues a petition before a Bench of the High Court, takes his chance, finds it inconvenient or not convenient to argue the case any further, applies for withdrawal and such petition is dismissed as withdrawn, it is then a second petition at the instance of such a petitioner on the same cause of action and claiming identical relief, was held to Page 9 of 31 ::: Uploaded on - 22/08/2017 ::: Downloaded on - 24/08/2017 14:22:45 ::: suresh 9-WPG-1033.2017.doc be not maintainable. In memo of the earlier petition, he clarified, that he has challenged notice dated 30 3 2015 issued by the Assistant Commissioner of Income tax at Mumbai under Section 148 of the Income Tax Act, 1961 and order dated 19 8 2015 passed by that very respondent, rejecting the objections of the petitioner Page 10 of 31 ::: Uploaded on - 22/08/2017 ::: Downloaded on - 24/08/2017 14:22:45 ::: suresh 9-WPG-1033.2017.doc challenging the validity of the reassessment proceedings for the Assessment Year 2002 03, and notice dated 24 8 2015 issued by respondent No.1 to that petition under Section 274 of the I.T. Act seeking to levy penalty under Section 271(1)(b) of the I.T. Act. The Page 14 of 31 ::: Uploaded on - 22/08/2017 ::: Downloaded on - 24/08/2017 14:22:45 ::: suresh 9-WPG-1033.2017.doc main contention was that the High Court was in error in rejecting the writ petition out of which the cases arises, on the ground that the petitioner had withdrawn the earlier writ petition without permission of the High Court to file a fresh petition. In the instant case the High Court was fight 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.


IN HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1033 OF 2017 WITH WRIT PETITION NO.1258 OF 2017 WITH WRIT PETITION NO.1259 OF 2017 WITH WRIT PETITION NO.1260 OF 2017 WITH WRIT PETITION NO.1261 OF 2017 Kamal Galani, Age 59, Occ: Business 801, Gym. View, 16th Road, Khar (West), Mumbai 400 052. .... Petitioner Versus 1. Assistant Commissioner of Income tax, 23(3), 104 A, 1st Floor, Matru Mandir, Tardeo Road, Mumbai 400 007. 2. Joint Commissioner of Income tax 23(3), 1st Floor, Matru Mandir, Tardeo Road, Mumbai 400 007. 3. Commissioner of Income tax 23, 1st Floor, Matru Mandir, Tardeo Road, Mumbai 400 007. 4. Union of India, Through Secretary, Ministry of Finance, Page 1 of 31 ::: Uploaded on - 22/08/2017 ::: Downloaded on - 24/08/2017 14:22:45 ::: suresh 9-WPG-1033.2017.doc Department of Finance, Government of India, North Block, New Delhi 110 001. .... Respondents Mr. J.D. Mistri, Senior Counsel with Mr. Madhur Agrawal i/by Mr. Atul K. Jasani for Petitioner. Mr. Anil C. Singh, Additional Solicitor General with Mr. Abhay Ahuja, Mr. A. Narayanan, Ms Indrayani Deshmukh & Ms Geetika Gandhi for Respondents. CORAM: S.C. DHARMADHIKARI & SMT. VIBHA KANKANWADI, JJ. DATE : AUGUST 14, 2017 ORAL ORDER ( Per Shri S.C. DHARMADHIKARI, J. : ) 1. By these petitions under Article 226 of Constitution of India, petitioner is seeking following reliefs: (a) that this Hon'ble Court be pleased to issue Writ of Certiorari or any other writ order or direction under Article 226 of Constitution of India calling for records of case leading to issue of impugned notice, passing of impugned order and issuing of impugned penalty notice and after going through same and examining question of legality thereof quash, cancel and set aside impugned notice dated 30th March, 2015 (Exhibit C), impugned order dated 19th August, 2015 (Exhibit M) Page 2 of 31 ::: Uploaded on - 22/08/2017 ::: Downloaded on - 24/08/2017 14:22:45 ::: suresh 9-WPG-1033.2017.doc and impugned penalty notice dated 24 th August, 2015 (Exhibit Q). (b) that this Hon'ble Court may be pleased to issue Writ of Mandamus or Writ in nature of Mandamus, or any other appropriate Writ, Order or Direction under Article 226 of Constitution of India, ordering and directing Respondents to withdraw impugned notice dated 30th March, 2015 (Exhibit C), impugned order dated 19th August, 2015 (Exhibit M) and impugned penalty notice dated 24 th August, 2015 (Exhibit Q); 2. Upon such petitions and on copies thereof being served, affidavit in reply in each of these petitions has been filed on behalf of respondents in which they have raised preliminary issue to maintainability of these petitions. argument is that this very petitioner had filed earlier petition being Writ Petition No.2823 of 2015 on same cause of action and claiming identical reliefs, as are reproduced above. That writ petition was heard for admission by this Court on two occasions and reliance is placed on order passed in that writ petition and which is dated 21 12 2016. That order reads as under: On 30th November, 2016 when this Petition was heard, learned Additional Solicitor General submitted that Petition should not be entertained by us in our writ Page 3 of 31 ::: Uploaded on - 22/08/2017 ::: Downloaded on - 24/08/2017 14:22:45 ::: suresh 9-WPG-1033.2017.doc jurisdiction under Article 226 of Constitution of India. This for reason that Petition contains incorrect statements. 2 In particular, attention was drawn to paragraph 4(b) thereof to effect Petitioner did not have any property in India and as non resident, as Petitioner has no source of income in India, Petitioner has not filed any return of income in India ,. This, learned Additional Solicitor General states is not correct and places reliance upon Assessment Order dated 30 th July, 2004 which records statements on Petitioner's behalf indicating that Petitioner did have property in India during period covered these Petitions. 3 On above facts being pointed out, Mr. Mistri, learned Senior Counsel appearing for Petitioner took time to take instructions from Petitioner with regard to correctness of statement made by him in Petition. Petition was adjourned to 7 th December, 2016 and thereafter on 7th December, 2016 at instance of Petitioner, to today. 4 Today, Mr. Mistri, learned Senior Counsel appearing for Petitioner, on instructions, states that Petitioner at relevant time, did have property in India. However, it is contention of Mr. Mistri, learned Senior Counsel that same would make no material difference for purposes of this Petition being entertained. Prima facie, we are not convinced but would take final view on same only after hearing Petitioner. Moreover, in case, Mr. Mistri, learned Senior Counsel is able to explain apparently incorrect statement as not affecting invocation of extra ordinary remedy under Article 226 of Constitution of India, then there are other issues which would be required to be considered for admission of Petition. We are informed by Counsel for both sides that submission may take time. 5 Considering fact that this Court closes for Page 4 of 31 ::: Uploaded on - 22/08/2017 ::: Downloaded on - 24/08/2017 14:22:45 ::: suresh 9-WPG-1033.2017.doc vacation from 24th December, 2016, we may not be able to hear parties fully before 24 th December, 2016, coupled with likelihood of change in assignments, post vacation, it may not be advisable to hear Petitions partly i.e. only on one issue. Therefore, it would be best that Petition be heard fully at stage of admission by Bench hearing Income Tax matters post vacation. 6 We, therefore, adjourn hearing of this Petition th to 18 January, 2017 at date convenient to both parties. 3. It is then claimed that earlier petition was placed on 17 2 2017 and noting earlier order, this Court had heard petition for some time on 15 2 2017 but eventually on 17 2 2017 it passed following order: 2. Thereafter petition was heard for sometime on th 15 February, 2017 and then it was adjourned to today and shown as part heard. 3. Today Mr. Mistri, learned Senior Counsel appearing for petitioner seeks to withdraw these petitions. 4. Petition's are allowed to be withdrawn. 5. Ad interim orders, if any, stand vacated. 6. Petitions dismissed as withdrawn. No order as to costs. 4. Mr. Anil Singh, learned Additional Solicitor General, Page 5 of 31 ::: Uploaded on - 22/08/2017 ::: Downloaded on - 24/08/2017 14:22:45 ::: suresh 9-WPG-1033.2017.doc appearing for respondents, would rely upon first affidavit in reply filed on behalf of respondents in these petitions on 23 6 2017 raising preliminary objection. He would submit that additional affidavit in reply has been tendered today by respondents without prejudice to their rights and contentions on point of maintainability of these writ petitions. Mr. Anil Singh would submit that he has been instructed to invite objection on preliminary point, particularly on maintainability of these petitions. 5. learned Additional Solicitor General would submit that earlier writ petitions were withdrawn simpliciter without seeking any liberty to file fresh petitions with same reliefs and on same cause of action. orders at pages 144 and 147 of paper books would indicate that petitioner argued petitions for some time, took his chance and when Court was not inclined to grant any relief, withdrew petitions simpliciter. order for withdrawal of petitions is allowed to be made without seeking any liberty to file fresh writ petitions on same cause of action. Such being order of Page 6 of 31 ::: Uploaded on - 22/08/2017 ::: Downloaded on - 24/08/2017 14:22:45 ::: suresh 9-WPG-1033.2017.doc this Court, learned Additional Solicitor General would submit that these fresh petitions, having been filed on 12 4 2017 and 5 6 2017, be dismissed as not maintainable. 6. Mr. Singh has taken us through memo of earlier writ petitions and prayers, and memo of present writ petitions and prayers to submit that everything therein is identical. writ petitions are filed on same cause of action. 7. Mr. Singh also submits that except deleting one paragraph from earlier petitions about petitioner having no property in India, there is absolutely no change. In such circumstances and relying upon Judgments of Hon'ble Supreme Court rendered in cases of Sarguja Transport Service v. State Transport Appellate Tribunal, Gwalior and others, reported in AIR 1987 SC 88 and Upadhyay & Co. v. State of U.P. and others, reported in (1999) 1 SCC 81, it is urged that present petitions be dismissed. Page 7 of 31 ::: Uploaded on - 22/08/2017 ::: Downloaded on - 24/08/2017 14:22:45 ::: suresh 9-WPG-1033.2017.doc 8. Mr. Mistri, learned Senior Counsel appearing on behalf of petitioner, in meeting this preliminary objection, would submit that true it is that earlier petitions were withdrawn. Further true it is that there is no liberty sought to file fresh writ petitions. However, it is respondents' fault for they alleged that petitioner suppressed material fact about his status, particularly about his citizenship. He suppressed fact that he was Indian resident, according to respondents. However, according to Mr. Mistri, record would indicate that despite prolonging matter, seeking to re open assessment and after substantial period, it is discovered that there is no suppression. There is no suppression of material fact which was sought to be highlighted in earlier round of litigation. If there is no such suppression and that is evident from statement made in para 10 of additional affidavit in reply tendered today, then, this Court should not uphold hyper technical objection. Mr. Mistri would rely upon averments in earlier petitions and present petitions about status of petitioner. Mr. Mistri submits Page 8 of 31 ::: Uploaded on - 22/08/2017 ::: Downloaded on - 24/08/2017 14:22:45 ::: suresh 9-WPG-1033.2017.doc that allegation is that there was misstatement about material fact in earlier writ petitions and when it is discovered now, there is no such misstatement on material fact, then, effect of orders passed in earlier petitions should not influence maintainability of present writ petitions. 9. Mr. Mistri would submit that in later Judgments of Hon'ble Supreme Court, Hon'ble Supreme Court has confined and restricted applicability of doctrine in Sarguja Transport Service (supra) to cases, firstly, of nature which are serious, namely, suppression of material fact and secondly, involving Bench hunting tactics. Mr. Mistri would elaborate this contention by submitting that Sarguja Transport's principle is applied when petitioner argues petition before Bench of High Court, takes his chance, finds it inconvenient or not convenient to argue case any further, applies for withdrawal and such petition is dismissed as withdrawn, it is then second petition at instance of such petitioner on same cause of action and claiming identical relief, was held to Page 9 of 31 ::: Uploaded on - 22/08/2017 ::: Downloaded on - 24/08/2017 14:22:45 ::: suresh 9-WPG-1033.2017.doc be not maintainable. We should not, according to Mr. Mistri, extend Sarguja Transport's principle to facts and circumstances of present case. Consequently, he would submit that writ petitions be entertained and preliminary objection be overruled. 10. With able assistance of learned Senior Counsel appearing for both sides, we have perused petitions. copy of one of earlier writ petitions filed was handed in by learned Additional Solicitor General. It is not in dispute that very petitioner who is before this Court in present petitions was petitioner in earlier round. Mr. Kamal Galani had impleaded same parties as party respondents. In para 1 of earlier petition, he had stated that he is individual and is citizen of India. In memo of earlier petition, he clarified, that he has challenged notice dated 30 3 2015 issued by Assistant Commissioner of Income tax at Mumbai under Section 148 of Income Tax Act, 1961 (for short, I.T. Act ) and order dated 19 8 2015 passed by that very respondent, rejecting objections of petitioner Page 10 of 31 ::: Uploaded on - 22/08/2017 ::: Downloaded on - 24/08/2017 14:22:45 ::: suresh 9-WPG-1033.2017.doc challenging validity of reassessment proceedings for Assessment Year 2002 03, and notice dated 24 8 2015 issued by respondent No.1 to that petition under Section 274 of I.T. Act seeking to levy penalty under Section 271(1)(b) of I.T. Act. 11. same facts and circumstances were narrated. 12. memo of present petitions would indicate that paragraphs from memo of earlier petitions are reproduced. There may have been statement here or there about petitioner's status and citizenship, but fact remains that entire memo reveals challenge to that very notices and order, namely, 30 3 2015, 19 8 2015 and 24 8 2015. 13. It is common ground that earlier writ petitions were heard by this Court on several occasions. When Writ Petition No.2823 of 2015 was heard on 21 12 2016, learned Additional Solicitor General pointed out that petition should not be entertained for it contains incorrect statements. Thus, Page 11 of 31 ::: Uploaded on - 22/08/2017 ::: Downloaded on - 24/08/2017 14:22:45 ::: suresh 9-WPG-1033.2017.doc incorrect statements were referred to and extensively in order passed on 21 12 2016. When order was passed on 21 12 2016, Court noted that petitioner is making attempt to satisfy it that there is no suppression of any material fact. However, hearing of earlier writ petition was adjourned and when it was placed on 15 2 2017, it was argued and was treated as part heard case. When it was placed again on 17 2 2017, above reproduced order came to be passed. 14. At this stage, one must notice Judgment in case of Sarguja Transport Service (supra), which is heavily relied upon by Additional Solicitor General. appellant before Hon'ble Supreme Court, Sarguja Transport Service, alleged that on expiry of period of permit to run stage carriage, issued under Motor Vehicles Act, 1939 in favour of one Janta Transport Co operative Society, Sarguja and some others filed applications for grant of said permit in their favour. earlier licencee/permit holder, Janta Transport Co operative Society, also made application for renewal of permit in its favour. application for renewal filed by Janta Transport Page 12 of 31 ::: Uploaded on - 22/08/2017 ::: Downloaded on - 24/08/2017 14:22:45 ::: suresh 9-WPG-1033.2017.doc Co operative Society was rejected by Regional Transport Authority on ground that it was barred by time. On consideration of relative merits of other applicants, namely, Sarguja and others, Regional Transport Authority granted permit in favour of Sarguja. That order was challenged in appeal by one M/s. Ali Ahmed & Sons, third respondent before Supreme Court, who was also applicant for said permit before State Transport Appellate Tribunal. other unsuccessful applicants also filed separate appeals questioning grant in favour of Sarguja Transport. All these appeals were taken together and heard extensively and on 19 9 1985 Tribunal set aside order granting permit in favour of Sarguja Transport on two grounds. It granted permit in favour of M/s. Ali Ahmed & Sons. Aggrieved by that order of Tribunal, Miscellaneous Petition No.2945 of 1985 was filed in High Court of Madhya Pradesh at Jabalpur, invoking Articles 226 and 227 of Constitution of India. That petition was taken up for hearing on 4 10 1985. On that day, High Court passed order recording Page 13 of 31 ::: Uploaded on - 22/08/2017 ::: Downloaded on - 24/08/2017 14:22:45 ::: suresh 9-WPG-1033.2017.doc statement of seeking of leave by petitioner to withdraw petition. Leave was granted and petition was dismissed as withdrawn. Later on another writ petition was filed before High Court being Miscellaneous Petition No.188 of 1986. That came up for admission/hearing on 17 1 1986. High Court passed following order: Shri P.R. Bhave for petitioner heard on admission. This writ petition is directed against order of State Transport Appellate Tribunal setting aside grant in favour of petitioner, and instead giving permit to respondent No.3. petitioner earlier filed writ petition No.M.P.No.2945/85 against impugned order which was withdrawn on 4 10 1985. No second writ petition lies against same order. earlier petition was not withdrawn with permission to file fresh petition. Besides, we do not find any merit in this petition. Appellate Tribunal has granted permit to respondent No.3 as he has been found superior to petitioner. Besides, he being practising lawyer could not be doing transport business. Similar petition of other operators has already been dismissed by this Court. Accordingly, petition is dismissed summarily. 15. Aggrieved by this order of High Court dismissing writ petition at stage of admission, Sarguja Transport filed Special Leave Petition in Hon'ble Supreme Court. Page 14 of 31 ::: Uploaded on - 22/08/2017 ::: Downloaded on - 24/08/2017 14:22:45 ::: suresh 9-WPG-1033.2017.doc main contention was that High Court was in error in rejecting writ petition out of which cases arises, on ground that petitioner had withdrawn earlier writ petition without permission of High Court to file fresh petition. argument canvassed precisely was that earlier petition was not decided on merits but simpliciter withdrawn. That would not constitute bar to maintainability of second/subsequent writ petition. Pertinently, cause of action was identical, so also reliefs and parties. precise argument before Hon'ble Supreme Court was that Articles 226 and 227 find place in Constitution of India. That is remedy which is extra ordinary, equitable and discretionary, but vesting in High Court for rendering complete and substantial justice. That is not comparable to remedy of suit which can be brought in Competent Civil Court. If that is withdrawn, consequences enshrined in Order XXIII, Rule 1 of Code of Civil Procedure, 1908 (for short, CPC ) coupled with Section 11 of CPC would be visited on appellant/plaintiff. Meaning thereby, suit being withdrawn, Page 15 of 31 ::: Uploaded on - 22/08/2017 ::: Downloaded on - 24/08/2017 14:22:45 ::: suresh 9-WPG-1033.2017.doc without liberty to file fresh suit on same cause of action, would result in dismissal of subsequent suit as not maintainable. That is in consonance with rule and principle of res judicata. While in that regard Section 11 was relied upon, argument was that this should be confined and restricted to suit and governed by CPC. procedural, so also substantive provisions in CPC would not govern disposal of writ petition under Article 226 of Constitution of India. 16. It is that argument which is extensively dealt with in Sarguja Transport, and in paras 7, 8 and 9, Hon'ble Supreme Court held thus: 7. Code as it now stands thus makes distinction between 'abandonment' of suit and 'withdrawal' from suit with permission to file fresh suit. It provides that where plaintiff abandons suit or withdraws from suit without permission referred to in sub rule (3) of R. 1 of O. XXIII of Code, he shall be precluded from instituting any fresh suit in respect of such subject matter or such part of claim. principle underlying R. 1 of O. XXIII of Code is that when plaintiff once institutes suit in Court and thereby avails of remedy given to him under law, he cannot be permitted to institute fresh suit in respect of same subject matter again after abandoning earlier suit or by withdrawing it without permission of Court to file fresh suit. Invito benificium non datur. law Page 16 of 31 ::: Uploaded on - 22/08/2017 ::: Downloaded on - 24/08/2017 14:22:45 ::: suresh 9-WPG-1033.2017.doc confers upon man no rights or benefits which he does not desire. Whoever waives, abandons or disclaims right will loose it. In order to prevent litigant from abusing process of Court by instituting suits again and again on same cause of action without any good reason Code insists that he should obtain permission of Court to file fresh suit after establishing either of two grounds mentioned in sub rule (3) of R. 1 of O. XXIII. principle underlying above rule is founded on public policy, but it is not same as rule of res judicata contained in section 11 of Code which provides that no court shall try any suit or issue in which matter directly or substantially in issue has been directly or substantially in issue in former suit between same parties, or between parties under whom they or any of them claim, litigating under same title, in Court competent to try such subsequent suit or suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. rule of res judicata applies to case where suit or issue has already been heard and finally decided by Court. In case of abandonment or withdrawal of suit without permission of Court to file fresh suit, there is no prior adjudication of suit. or issue is involved, yet Code provides, as stated earlier, that second suit will not lie in sub rule (4) of R. 1 of O. XXIII of Code when first suit is withdrawn without permission referred to in sub rule (3) in order to prevent abuse of process of Court. 8. question for our consideration is whether it would or would not advance cause of justice if principle underlying R. 1 of O. XXIII of Code is adopted in respect of writ petitions filed under Articles 226/227 of Constitution also. It is common knowledge that very often after writ petition is heard for some time when petitioner or his counsel finds that Court is not likely to pass order admitting petition, request is made by petitioner or by his counsel, to permit petitioner to withdraw from Page 17 of 31 ::: Uploaded on - 22/08/2017 ::: Downloaded on - 24/08/2017 14:22:45 ::: suresh 9-WPG-1033.2017.doc writ petition without seeking permission to institute fresh writ petition. Court which is unwilling to admit petition would not ordinarily grant liberty to file fresh petition while it may just agree to permit withdrawal of petition. It is plain that when once writ petition filed in High Court is withdrawn by petitioner himself he is precluded from filing appeal against order passed in writ petition because he cannot be considered as party aggrieved by order passed by High Court. He may as stated in Daryao v. State of U.P., (1962) SCR 574 : (AIR 1961 SC 1457) in case involving question of enforcement of fundamental rights file petition before Supreme Court under Art. 32 of Constitution of India because in such case there has been no decision on merits by High Court. relevant observation of this Court in Daryao's case (supra) is to be found at page 593 and it is as follows: "If petition is dismissed as withdrawn it cannot be bar to subsequent petition under Art. 32, because in such case there has been no decision on merits by Court. We wish to make it clear that conclusions thus reached by us are confined only to point of res judicata which has been argued as preliminary issue in these writ petitions and no other." 9. point for consideration is whether petitioner after withdrawing writ petition filed by him in High Court under Art. 226 of Constitution of India without permission to institute fresh petition can file fresh writ petition in High Court under that Article. On this point decision in Daryao's case (supra) is of no assistance. But we are of view that principle underlying R. 1 of O. XXIII of Code should be extended in interests of administration of justice to cases of withdrawal of writ petition also, not on ground of res judicata but on ground of public policy as explained above. It would also discourage litigant Page 18 of 31 ::: Uploaded on - 22/08/2017 ::: Downloaded on - 24/08/2017 14:22:45 ::: suresh 9-WPG-1033.2017.doc from indulging in bench hunting tactics. In any event there is no justifiable reason in such case to permit petitioner to invoke extraordinary jurisdiction of High Court under Art. 226 of Constitution once again. While withdrawal of writ petition filed in High Court without permission to file fresh writ petition may not bar other remedies like suit or petition under Art. 32 of Constitution of India since such withdrawal does not amount to res judicata, remedy under Art. 226 of Constitution of India should be deemed to have been abandoned by petitioner in respect of cause of action relied on in writ petition when he withdraws it without such permission. In instant case High Court was fight in holding that fresh writ petition was not maintainable before it in respect of same subject matter since earlier writ petition had been withdrawn without permission to file fresh petition. We, however, make it clear that whatever we have stated in this order may not be considered as being applicable to writ petition involving personal liberty of individual in which petitioner prays for issue of writ in nature of habeas corpus or seeks to enforce fundamental fight guaranteed under Art. 21 of Constitution since such case stands on different footing altogether. We, however, leave this question open. 17. Hon'ble Supreme Court had elevated issue and considered it on touchstone of public policy. It has not rested its conclusion by merely saying or holding that this is technical rule and should not, therefore, result in injustice or miscarriage of justice. It did not hold that this rule would apply only to such litigant who abuses process of Court by Page 19 of 31 ::: Uploaded on - 22/08/2017 ::: Downloaded on - 24/08/2017 14:22:45 ::: suresh 9-WPG-1033.2017.doc instituting suits again and again on same cause of action, without any reason. law insists that he should obtain permission of Court to file fresh proceeding and that is how it held that principle underlying above rule is founded on public policy, but it is not same as rule of res judicata contained in Section 11 of CPC. It is in these circumstances that rule was applied also to writ petitions under Articles 226 and 227 of Constitution of India to hold that second writ petition was not maintainable and rightly dismissed. 18. This very Judgment was followed in case of Upadhyay & Co. (supra) and principle was extended because petitioner before Hon'ble Supreme Court, Upadhyay & Co., was allowed to collect toll at specified rates for period of one year at Shastri Bridge at Allahabad, running across River Ganga. For succeeding period of three years, petitioner competed with other bidders in public auction and when his bid was not accepted by authorities, he filed Writ Petition No.32974 of 1991 before Allahabad High Court and Page 20 of 31 ::: Uploaded on - 22/08/2017 ::: Downloaded on - 24/08/2017 14:22:45 ::: suresh 9-WPG-1033.2017.doc got interim order by which he was permitted to continue to collect toll charges from vehicles passing over bridge. By Notification issued by Government of India on 19 2 1992, rates of toll were raised. That is how another writ petition was filed taking advantage of enhanced rates being Writ Petition No.22439 of 1992 so as to enable collection of toll at revised rates. That petition was placed before learned single Judge of Allahabad High Court who passed order quoted in para 3 of Judgment of Hon'ble Supreme Court. That order remained alive for period of less than two years until Hon'ble Supreme Court interfered with it and as noted in para 4. 19. Undaunted by order of Hon'ble Supreme Court, new writ petition was filed in Allahabad High Court by very petitioner Upadhyay in which, on 23 3 1997, Division Bench passed order quoted in para 5. State of Uttar Pradesh challenged that order by Special Leave Petition in Supreme Court and when it was pending, another Division Bench of High Court vacated earlier order dated Page 21 of 31 ::: Uploaded on - 22/08/2017 ::: Downloaded on - 24/08/2017 14:22:45 ::: suresh 9-WPG-1033.2017.doc 23 3 1997. When said development was brought to notice of Hon'ble Court, Special Leave Petition came to be disposed of. Then petitioner being aware of said order of Hon'ble Supreme Court adopted another strategy by reporting to High Court that he was not pressing his earlier petition of 1991. Division Bench before which that writ petition was placed was alerted on account of several intervening circumstances. It is in these circumstances that petitioner Upadhyay & Co. was directed to deposit sum of Rs.2,07,63,556/ by Commissioner of Allahabad Division on 1 6 1996 pursuant to order of Division Bench dated 3 5 1996 in Writ Petition No.32974 of 1991. 20. It is in these circumstances that petitioner filed writ petition challenging order dated 1 6 1996 being Writ Petition No.19593 of 1996 in Allahabad High Court. When that petition was pending, petitioner also filed Special Leave Petition challenging order of Allahabad High Court dated 3 5 1996, which was passed in its 1991 petition. Once above events were noted by Hon'ble Supreme Page 22 of 31 ::: Uploaded on - 22/08/2017 ::: Downloaded on - 24/08/2017 14:22:45 ::: suresh 9-WPG-1033.2017.doc Court, Hon'ble Supreme Court found that very order of 3 5 1996 cannot be challenged over again by very writ petitioner because it withdrew Special Leave Petition which had been filed earlier challenging same order. That is how principle in Sarguja Transport (supra) was extended and Additional Solicitor General appearing before us is right in relying upon paras 9, 11, 12 and 13 of Judgment in Upadhyay's case (supra). In para 15, Hon'ble Supreme Court once again emphasised rule of public policy. 21. Mr. Mistri has relied upon two Judgments of Hon'ble Supreme Court, first in case of Arunima Baruah v. Union of India and others, reported in (2007) 6 SCC 120 and other in Sarva Shramik Sanghatana (KV), Mumbai v. State of Maharashtra and others, reported in (2008) 1 SCC 494. 22. In first Judgment in case of Arunima Baruah (supra), Hon'ble Supreme Court was considering peculiar situation. appellant before Supreme Court filed suit in Page 23 of 31 ::: Uploaded on - 22/08/2017 ::: Downloaded on - 24/08/2017 14:22:45 ::: suresh 9-WPG-1033.2017.doc District Court and moved application for grant of injunction therein. On such application, trial Court issued only notice to defendant but did not grant injunction. appellant before Supreme Court/plaintiff in that suit filed writ petition in High Court on 10 4 2001. suit was filed on 28 3 2001 and application for interim injunction was filed on 9 4 2001. However, pendency of suit was not disclosed in writ petition. Before writ petition came up for preliminary hearing, appellant/plaintiff filed application in suit for withdrawal of same. That application was filed on 12 4 2001 but on account of Lawyers strike, it could not be moved. In meanwhile, writ petition came up for preliminary hearing, notice was issued. In meanwhile, trial Court took up application for withdrawal of suit and allowed withdrawal on 30 4 2001. learned single Judge of Delhi High Court, however, dismissed writ petition on ground of suppression of material facts. intra court appeal was also dismissed on same ground. Page 24 of 31 ::: Uploaded on - 22/08/2017 ::: Downloaded on - 24/08/2017 14:22:45 ::: suresh 9-WPG-1033.2017.doc 23. That is why appellant approached Supreme Court and urged that as on date of hearing of writ petition, suit already stood withdrawn and in such circumstances writ petition could not have been dismissed on ground of availability of alternate remedy. It is in this context that all observations relied upon by Mr. Mistri have been made. We cannot forget this context and background. Secondly, existence of alternate remedy by itself and without anything more may not be relevant factor as Hon'ble Supreme Court holds but additionally even if that remedy is existing, efficacious, still, it is discretion of High Court to entertain writ petition despite existence of alternate, equally efficacious remedy. It is rule of caution and prudence rather than absolute bar for entertainment of writ petition. Similarly, when there is no suppression of material fact as was found in that case, then, judicial review cannot be denied. 24. fact situation before us is not identical. It is not that earlier suit was filed and thereafter writ petition and Page 25 of 31 ::: Uploaded on - 22/08/2017 ::: Downloaded on - 24/08/2017 14:22:45 ::: suresh 9-WPG-1033.2017.doc when writ petition was taken up, suit was withdrawn. Therefore, issue of alternate remedy would not be relevant. situation before us is completely different. Hence, Judgment in Arunima Baruah would not be of any assistance to petitioner. 25. In second Judgment in case of Sarva Shramik Sanghatana (supra), there as well, we should note facts. Century Industries Textiles Limited, company before Hon'ble Supreme Court, third respondent, had entered into certain agreement with its recognised Union and to reduce work force. There was scheme of voluntary retirement offered. scheme was improved upon after discussion and negotiations. After manufacturing activities came to end in textile mill, company made application under Section 25 O of Industrial Disputes Act, 1947 seeking permission for closure. That application was dated 13 2 2007. Before that application could be decided, company received letter from Deputy Commissioner of Labour, Mumbai, which stated that Hon'ble Minister for Labour, Government Page 26 of 31 ::: Uploaded on - 22/08/2017 ::: Downloaded on - 24/08/2017 14:22:45 ::: suresh 9-WPG-1033.2017.doc of Maharashtra has convened meeting so that issue could be discussed. company gave its willingness but pointed out that its application under Section 25 O(1) is pending and it is to be decided within sixty days, failing which it is deemed to have been allowed. application was made on 13 2 2007 and sixty days would shortly expire. That is why in order to create conducive atmosphere for discussion, respondent company withdrew this application but reserved its right to move fresh application under Section 25 O, as and when necessary. That is how withdrawal was allowed by Commissioner of Labour on 12 4 2007. company then took stand that it was interested bona fide in finding amicable solution but even after meeting, as above, such solution could not be found. That is how fresh application under Section 25 O(1) was filed seeking permission of closure and this application was moved on 11 5 2007. 26. It is in this context that challenge raised by workmen to maintainability of second closure application was decided by this Court. writ petition was Page 27 of 31 ::: Uploaded on - 22/08/2017 ::: Downloaded on - 24/08/2017 14:22:45 ::: suresh 9-WPG-1033.2017.doc filed in Bombay High Court by workmen praying that Deputy Commissioner of Labour should be directed not to take any further proceedings in relation to second/fresh application for closure. However, that writ petition was dismissed. Hence, Special Leave Petition. 27. It is in this context that argument of workmen/Union and relying upon Sarguja Transport (supra) was considered by Supreme Court. Pertinently, Sarguja Transport's was case of writ petition filed in High Court, withdrawn unconditionally and without liberty and thereafter second writ petition in High Court on same cause of action. Hon'ble Supreme Court in Sarva Shramik Sanghatana (supra) refused to extend principle therein to maintainability of second closure application. Thereafter, Hon'ble Supreme Court found and relying upon observations in paras 8 and 9 of Sarguja Transport reproduced above, that Bench hunting should not be permitted. However, in para 13, Hon'ble Supreme Court again emphasised that there is malpractice prevalent and which is to be discouraged Page 28 of 31 ::: Uploaded on - 22/08/2017 ::: Downloaded on - 24/08/2017 14:22:45 ::: suresh 9-WPG-1033.2017.doc and that was discouraged by Sarguja Transport. However, all observations in subsequent paragraphs are to emphasise that principle in Sarguja Transport's case cannot be applied as formula and in every case. We have, therefore, no hesitation in agreeing with Mr. Mistri that Sarva Shramik Sanghatana (supra) would denote that Sarguja Transport's principle cannot have absolute application and to every case irrespective of facts and circumstances therein. However, when we find before us from above reproduced order of this Court in present petitioner's earlier petitions and subsequent withdrawal thereof without any liberty that this petitioner has also indulged in Bench hunting tactics, then, we would be failing in our duty if we do not apply Sarguja Transport's principle to present facts and circumstances. We have clearly noted observations of this Court and which point towards abuse of this Court's jurisdiction. Court was persuaded to go on with matter despite objection raised by respondents about status of petitioner. petitioner despite noticing this position insisted on arguing writ petition and argued it. After Page 29 of 31 ::: Uploaded on - 22/08/2017 ::: Downloaded on - 24/08/2017 14:22:45 ::: suresh 9-WPG-1033.2017.doc preliminary hearing, on finding that it is not possible to get over objection raised and allegation of suppression of material fact, petitioner withdrew writ petition, but without seeking any liberty to file fresh petition on same cause of action. We would be acting contrary to judicial discipline, if we entertain second writ petition on same cause of action but with marginal improvement, as pointed out. This is not case where substantial justice demands that we overlook point of maintainability. This is clear case where knowing state of law and being aware of legal position, decision was taken to withdraw writ petition without seeking any liberty, as above. In circumstances, bar, as enacted by Hon'ble Supreme Court and which is founded on public policy, is clearly attracted. We do not think that second writ petition can be entertained. 28. As result of above discussion, we uphold preliminary objection of learned Additional Solicitor General and dismiss these writ petitions. Page 30 of 31 ::: Uploaded on - 22/08/2017 ::: Downloaded on - 24/08/2017 14:22:45 ::: suresh 9-WPG-1033.2017.doc 29. Needless to state that disposal of these writ petitions does not mean Court has at any time expressed any opinion on merits of controversy, including contentions which can be raised and are permitted to be raised in law before Assessing Officer and in all further forums. (SMT. VIBHA KANKANWADI, J.) (S.C. DHARMADHIKARI, J.) Page 31 of 31 ::: Uploaded on - 22/08/2017 ::: Downloaded on - 24/08/2017 14:22:45 ::: KamalGalani v. TheAssistantCommissionerofIncome-tax,23(3), Mumbai / TheJointCommissionerofIncome-tax 23(3), Mumbai / TheCommissionerof Income-tax,23, Mumbai / TheUnionofIndia
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