2005 Supreme(SC) 870

2005(4) Supreme 689
Supreme Court of India
(Under Art. 32 of the Constitution of India)
R.C. Lahoti, CJI, H.K. Sema & G.P. Mathur, JJ.
K. Vidya Sagar —Petitioner
versus
State of Uttar Pradesh & Ors. —Respondents
Writ Petition (Criminal) No. 182 of 2004
Decided on 12-7-2005
Counsel for the Parties :
For the Petitioner : K.K. Venugopal, Sr. Advocate (A.C.).
For the Petitioner : In-person.
For the Respondents : Vishwajit Singh, Ritesh Agrawal and Praveen Swarup, Advocates.

Important point
Where a writ petition under Article 226 of the Constitution is disposed of on merits and order of dismissal of petition is a speaking order that would amount to res judicata and would bar a petition under Article 32 of the Constitution on same facts.

Headnote:Constitution of India—Articles 32 and 226—Writ jurisdiction—Applica­bility of principal of res-judicata—Where writ petition is disposed of by High Court on merits and order of dismissal of petition is a speaking order that would operate res-judicata—Petition under Article 32 of the Constitution on same facts would not lie irrespective of whether notice was issued to other side or not before the decision was taken—Writ of mandamus by petitioner praying reliefs on a plea that he was tenant inducted by respondent landlady and was evicted illegally when he was away from the house—Criminal case was registered and landlady had already been charge-sheeted—Counter-affidavit of landlady revealed that petitioner was in huge arrears of rent and vacated premises surreptitiously—Questions raised by petitioner in writ were all disputed questions of facts—On the same facts and for same relief writ petition filed before High Court was dismissed with observation that disputed facts could not be decided in writ—Writ petition was liable to be dismissed.

       Held : The specific case of the petitioner is that he was a tenant of the ground floor in flat No. B-99, Sector 15, NOIDA, which is owned by Smt. Tara Bhatt and he had taken the same on rent in September, 1995 on a monthly rent of Rs. 3,000/-. It is also pleaded by him that a lease deed was executed for eleven months, which contained a stipulation that the rent would be increased by 10 every year. The case of the petitioner further is that he left for his hometown Kakinada in Andhra Pradesh on 15.5.1998 after locking the premises and during his absence the landlady illegally took possession of the premises. In paragraph 2(x) of the writ petition it is averred that after the petitioner returned from his home town and found that the respondent No. 4 had taken possession of the premises, he lodged an FIR at the concerned police station on 9.7.1998. In the same paragraph it is averred that when the accused/respondent No. 4 did not accept the rent, the arrears of rent amounting to Rs. 40,000/- were deposited in the bank by the petitioner. This statement is very vague, as no details of any kind have been given like the account number or the name of the bank. It is nowhere averred by the petitioner that he had either paid up-to-date rent to respondent No. 4 or that he had deposited the aforesaid amount of Rs. 40,000/- in the account of respondent No. 4. The case of the respondent No. 4, as disclosed from the counter affidavit filed by her in special leave petition (C) No. 16237 of 1998, is that the petitioner had not paid any rent from February, 1997 and he had surreptitiously vacated the premises on 15.5.1998 and had removed his goods. It may be mentioned here that the UP Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 is not applicable to buildings for a period of 40 years from the date of their construction and, therefore, the said Act is currently is not applicable to buildings in NOIDA as the Authority itself has been established some time after 1976. The questions raised by the petitioner in this writ petition are all disputed questions of facts. For resolving the factual controversy oral and documentary evidence would have to be examined which is not feasible for this Court in a writ petition under Article 32 of the Constitution. As mentioned earlier the petitioner had filed a writ petition under Article 226 of the Constitution before the Allahabad High Court seeking virtually the same reliefs, which have been sought in the present writ petition. The High Court dismissed the writ petition on the ground that the questions raised were all disputed questions of facts, which could not be adjudicated in a writ petition under Article 226 of the Constitution. The High Court further observed that the petitioner could approach the civil or criminal court or any other authority for this purpose. In the special leave petition preferred against the decision of the High Court it was observed in the order dated 13.8.1999 that it was not appropriate for this Court to examine the rival contentions which raised disputed questions of fact and the said questions were left open. It was further observed that whatever other grievances remain in spite of the report of the CBI, so far as the petitioner is concerned, he may ventilate the same in accordance with law. In Virudhunagar Steel Rolling Mills Ltd. vs. The Government of Madras 1968(2) SCR 740 it was held that where a writ petition under Article 226 of the Constitution is disposed of on merits and the order of dismissal of the petition is a speaking order that would amount to res judicata and would bar a petition under Article 32 of the Constitution on the same facts irrespective of whether notice was issued to the other side or not before such a decision was given. In T.P. Moideen Koya vs. Government of Kerala and others JT 2004(8) SC 383, the entire law regarding bar of res judicata was reviewed and it was held that a decision rendered by this Court in proceedings under Article 136 of the Constitution, which has attained finality would bind the parties and the same issue cannot be re-agitated or re-opened in a subsequent petition under Article 32 of the Constitution. This being the settled position of law, the reliefs claimed by the petitioner in the present petition under Article 32 of the Constitution cannot be granted as he had claimed the same reliefs in the writ petition, which was filed under Article 226 of the Constitution in the Allahabad High Court, which was dismissed and the special leave petition preferred against the said decision was disposed of by this Court with a direction that he may ventilate the same in accordance with law. (Paras 7 to 10)