Allahabad High Court
Court No. – 10 A.F.R.
Case :– SPECIAL APPEAL No. – 360 of 2017
Appellant :- Ummed Ali Tyagi
Respondent :– State Of U.P. And 4 Others
Counsel for Appellant :– Murli Dhar Mishra,Sachida Nand Tiwari
Counsel for Respondent :- C.S.C.,Kunwar Bahadur Srivastava
Hon’ble Arun Tandon,J.
Hon’ble Ritu Raj Awasthi,J.
In our opinion this intra court appeal is a manifest abuse of the process of this Court and manifestly ill advise.
In this judgment and order in appeal the learned Single Judge has reproduce, the judgment of the writ Court in Petition No. 31387 of 2003 filed by the present petitioner himself from paragraph Nos. 7 to 21 details of the 15th petitions filed before this Court from time to time and order which were passed by the Courts, have been noticed. Para 7 to 21 read as under:-
“7. The petitioner filed a writ petition No. 5715 of 1998 (1st writ petition) to quash the orders dated 23-10-1998 and 13-1-1998 of the Assistant Registrar directing that the charge be taken over from the petitioner and for cancelling his powers to operate the Bank accounts. The writ petition was dismissed on 14-2-1998.
8. In writ petition No. 16538 of 1998 (2nd writ petition), the petitioner challenged the order dated 18-3-1998 passed by District Assistant Development Officer directing petitioner to deposit the so called embezzled money. This writ petition was disposed of with liberty to the petitioner to file an Arbitration case under Section 70 of the U.P. Co- operative Societies Act, 1965.
9. The writ petition No.37085 of 1998 (3rd writ petition) was filed by petitioner with a prayer to direct the Assistant Registrar, Co-operative District Muzaffar Nagar to declare result of the enquiry against him to misuse of Rs. 1,12,576.00. The petitioner had also made representations concerning this charge with the District Magistrate and Assistant Registrar. This third writ petition, was decided on 7-12-1998 directing the Assistant Registrar to decide the representation. It is contended that by his order dated 17-2-1998, the Assistant Registrar, Co- operative Societies exonerated petitioner from embezzlement.
10. On 27-2-1998, the District Assistant Registrar directed Sri Shushil Kumar Tyagi, the Secretary of the Society to withdraw/give up the charge of the society. The petitioner filed writ petition No. 13312 of 1999 (4th writ petition) with a prayer that after the order dated 27-2-1998, the earlier position should be revived and that the Assistant Registrar should not interfere with his working. This writ petition was withdrawn by the petitioner on 1-4-1999 with liberty to approach appropriate authority for the desired relief.
11. The petitioner, thereafter, made a representation to the District Magistrate, requesting him to restore the charge of secretary taken from him by Sri Shushil Kumar Tyagi on 21-1-1998. He pleaded that after he has been exonerated from the charge of embezzlement the charge must be restored. He also requested to initiate an enquiry against the District Co-operative Bank for its failure and not to adjust Rs. 85,000 / from its saving bank account for the settlement of the loan taken by the society and to take appropriate action concerning the arbitration filed by the petitioner against the District Co-operative Bank for recovery of Rs. 48,435. The writ petition No. 22371 of 1999 (the 5th writ petition) was disposed of by the Court with direction to respondents to decide his representation.
12. The Assistant Registrar, Co-operative Societies decided petitioner’s representation on 14-7-1999. He did not accept the prayers of the petitioner and observed that an Arbitration case concerning recovery of Rs. 48,436.89 is pending with the competent authority. With regard the demand of petitioner to allow him to continue as secretary, the Court found that a Cadre Secretary has already been appointed. The petitioner filed writ petition No. 39385 of 1999 (6th writ petition) challenging the order of the Assistant Registrar, Co-operative Society dated 14-7-1999 in which notices were issued. The writ petition was dismissed in default on 18-3-2002. A restoration application is said to be pending.
13. Thereafter the petitioner represented to the Collector, District Muzaffarnagar on 28-1-2000 to allow him to function as Secretary and to pay him his salary w.e.f. 1-1- 1998. The writ petition No.21976 of 2000( 7th writ petition) was filed by the petitioner with a prayer to allow him to function as Secretary and for payment of salary. This writ petition was disposed off by this Court on 9-5-2000 directing the Collector to decide petitioner’s representation.
14. The Collector did not decide the representation dated 28-2-2000, on which the petitioner filed writ petition No.33989 of 2000 (8th writ petition) which was dismissed by the Court on 17-8-2000. It is contended by counsel for petitioner that the counsel engaged by the petitioner in the said writ petition did not convey to him the result of the writ petition. Record of subsequent writ petition No. 11268 of 2002 shows that this writ petition was dismissed with the following orders:
The petitioner, admittedly, was never appointed as Secretary in the Co-operative Society, but was asked to look after the said post as temporary arrangement. In his earlier writ petition, he prayed for decision of his representation and this Court has directed that it should be decided soon.
This writ petition preceded on the basis that the representation of the petitioner is pending. Sri V.B.S. Negi, learned counsel for the petitioner, apart from the grounds mentioned above, has said that since the petitioner stood exonerated from the allegations levelled against him, he should be permitted to continue to work on the post of Secretary in Muzaffarnagar Paschimi Kisan Sewa Sahkari Samiti Ltd., Muzaffarnagar.
Sri H.R. Misra, the learned counsel appearing on behalf of the respondent states that the representation of the petitioner has been decided inasmuch as the regularly appointed secretary has taken over the charge, where the petitioner was asked to take temporary charge. In view of the aforesaid discussion, the writ petition is, accordingly, dismissed.
Dated 17-8-2000
Sd/-Hon’ble Palok Basu, J.
Sd/ Hon’ble Ratnakar Dash.
15. The petitioner filed writ petition No.45493 of 2000 (9th writ petition) for a writ of mandamus directing the Deputy Registrar to decide his representation dated 10-2-2000 for restoring him to the post of secretary and for payment of salary. This writ petition was again disposed of on 23-10- 2000 with the direction to the Deputy Registrar to decide petitioner’s representation. The writ petition No.5013 of 2001 (10th writ petition) was filed by the petitioner with direction to Deputy Registrar, Co-operative Society to decide the Arbitration case which according to the petitioner was required to be decided within three months under Rule 240 of the U.P. Co-operative Societies Act, 1968. This writ petition is still pending.
16. The petitioner filed writ petition No. 11151 of 2002 (11th writ petition) for direction to the Registrar for payment of salary in which notices have been issued and this writ petition is also pending. On 26-3-2001, this writ petition was directed to be listed in the next cause list.
17. The writ petition No. 6262 of 2002 (12th writ petition) has been filed by the Society through the petitioner as its secretary with a prayer to issue a direction to the respondents including the Registrar; Deputy Registrar, Saharanpur Region; Assistant Registrar, Muzaffarnagar and District Co-operative Bank, Muzaffarnagar to release the seized records, accounts books etc. Kisan Sewa Sahkari Samiti and communicate the result of the enquiry to respondent No. 4. Notices have been issued in this writ petition on 26-2-2002 to which no reply has been filed and that the writ petition is still pending.
18. Writ Petition No. 11268 of 2002 (13th writ petition) was filed by the petitioner as secretary through Sri S.K. Gaur, Advocate with a prayer commanding the respondents to decide and to give award in favour of petitioner in pursuance of his statement dated 17-3-2001 (Arbitration case) for return of Rs. 40,833/-. This writ petition was dismissed on 16-3-2002 with the following orders:
Sri Ummed Ali had filed writ petition No.33989 of 2002. The said writ petition was dismissed. In the order dismissing the said writ petition it was held that the petitioner was never appointed as a secretary in Muzaffarnagar Paschimi Kisan Sewa Samiti. This writ petition at his instance is not maintainable. The writ petition is accordingly dismissed.
Hon’ble Sudhir Narain, J.
Hon’ble B.M. Sahai, J.
Dated 16-3-2002
19. Petitioner filed yet another writ petition No. 11268 of 2002 (13th writ petition) for refund of Rs. 40,833.00 for which he had already filed Arbitration case before the Deputy Registrar against the respondent No. 2. This writ petition was dismissed on 16-3-2002.
20. The writ petition No. 13395 of 2002 (14th writ petition) was filed by the petitioner for payment of salary to him. This writ petition was dismissed on 5-4-2002 imposing a cost of Rs. 10,000/-upon the petitioner. The petitioner approached the Apex Court which reduced the cost to Rs. 2,000/-.
21.Inspite of imposition of costs and warning to the petitioner for filing the repeated writ petitions, he filed yet another writ petition No. 19780 of 2002 (15th writ petition). In this petition, Sri H.R. Misra counsel for respondents raised preliminary objection that no writ petition lies against a primary agricultural credit society and that the writ petition is liable to be dismissed on this ground alone. This Court vide its order dated 9-5-2002 dismissed this writ petition with observations that in case petitioner prefers petition under Section 128 of U.P. Co-operative Society Act within two weeks, the same shall be disposed of by the competent authority within six weeks thereafter.”
The learned Single Judge noticed that in writ petition No. 33989 of 2000 (8th Petition) which was dismissed vide order dated 17.8.2000, a finding has been returned that the petitioner was never appointed as Secretary, he was only permitted to work on the said post by way of a temporary arrangement.
The order passed in writ Petition No. 13395 of 2012 (14th Petition) for payment of salary for the same period was dismissed on 5.4.2002 imposing cost of Rs. 10,000/- upon the petitioner which order was subjected to challenge before the Apex Court. The Apex Court did not interfere with reasoning assigned of the writ Court in the matter of abuse of the process of Court at hands of the petitioner, it only reduced the cost imposed from Rs. 10,000/- to 2,000/-. Yet the petitioner was not satisfied, he thereafter filed another writ petition No. 69530 of 2010 which was dismissed by the writ Court on 1.12.2010 with cost of Rs. 25000/- after recording that the writ petition was practically for the same relief which was denied in earlier writ petition.
The learned Single Judge has further noticed that filing of writ petitions, 7th and 8th petitions and the order passed therein have been concealed in the writ petition giving rise to the present intra court appeal.
The learned Single Judge has repelled the contention that the relief for salary between the period 1.1.1998 to 27.2.1999 was not claimed by the earlier petition and therefore, he could maintain the 16th Petition (petition giving rise to present appeal) as such relief was available in the earlier writ petitions. His prayer for grant of salary had been rejected in the earlier writ petition as detailed above.
Despite all these findings returned by the learned Single Judge, learned Counsel for the appellant again tried to take the Court though the doucments on record to submit that it was his case that he was appointed under a valid resolution of the Committee of Management of the Cooperative Society as Secretary and he was entitled for salary for the period of 1.1.1998 to 27.2.1999. He therefore, again concealed that order passed in 15th earlier petitions and therefore, will not be a bar in the maintainability of the writ petition giving rise to this appeal.
The contention has only been raised to be rejected.
Even if it is presumed that such relief for payment of salary between 1.1.1998 to 27.2.1999 was not claimed by the petitioner earlier admittedly, the said relief was available to him at the time of filing of the said 15th writ petition earlier and therefore, in view of the principle enshrined under Order II Rule 2 of the Civil Procedure Code, no subsequent writ petition would be maintainable for the relief which was earlier available to the petitioner in the petitions as detailed above.
Even otherwise, there is a categorical finding by the learned Single Judge that earlier writ petition filed for payment of salary had been rejected by the writ Court earlier.
The finding returned in the judgment and order dated 17.8.2000 passed in 8th writ petition qua petitioner having never been appointed as Secretary had been asked to look after the work of Secretary only has become final between the parties and cannot be permitted to re- agitate in the 16th writ petition again. Therefore, the plea for payment of salary nor or even for examintion of the issue salary as the Secretary can be considered at this statge.
We further find that at least on two earlier occasions cost had been imposed upon the petitioner for filing successive writ petitions for the same relief in one case the petitioner had challenged the order of the writ Court before the Apex Court i.e. order passed in the 14th Petition. The Apex Court did not interfere with the order of the writ Court holding that writ petition was abuse of process of Court, the Apex Court only reduce the cost to Rs. 2000/-. Thereafter, in writ petition No. 69530 of 2010 cost of Rs. 25000/- was imposed which order has been affirmed with the dismissal of the special appeal.
We are therefore, of the opinion that not only this Special Appeal is liable to be dismissed. Petitioner-appellant must also pay exceptional costs for loss of valuable time of this Court and for repeatedly abusing of process of the writ Court with impunity.
We, therefore, dismiss the present Special Appeal with the cost of Rs. 5,00,000/-.
Order Date :– 4.7.2017
Akbar
