Second writ petitions are not maintainable if the previous petition was withdrawn without permission, and former members of the legislature have no vested right to retain government accommodations after ceasing office.

JUDGMENT :

ALOK KUMAR SINHA, J

Heard the parties.

2. In the present appeal the appellant/petitioner has challenged the order dated 13.01.2021 passed by learned Single Judge in CWJC No.19359 of 2016 by which the writ application filed by the appellant/petitioner was dismissed on the ground that for claiming the same relief, the appellant/petitioner had earlier filed CWJC No.19237 of 2015, which was withdrawn unconditionally by the appellant/petitioner without seeking any liberty to move afresh. Hence, the learned Single Judge was not inclined to allow the appellant/petitioner to re-agitate the same issue in the second writ petition bearing CWJC No.19359 of 2016. Being aggrieved with this order of the learned Single Judge, the appellant/petitioner has filed the present LPA as against the aforesaid order.

3. Considering the maintainability of a second writ petition, under Article 226 of the Constitution of India in similar circumstances, the learned Single Judge rightly relied upon a decision of the Apex Court, in the case of Joint Action Committee of Air Line Pillots’ Associations of India and others vs. Director General of Civil Aviation and others reported in (2011) 5 SCC 435 wherein at paragraph-12 and 13 of the said judgment, the Apex Court held and observed as follows:

“12. The doctrine of election is based on the rule of estoppel – the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppels in pais (or equitable estoppel), which is a rule in equity. By that law, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had. Taking inconsistent pleas by a party makes its conduct far from satisfactory. Further, the parties should not blow hot and cold by taking inconsistent stands and prolong proceedings unnecessarily. … … …

13. In view of the above, it is clearly evident that some of the present appellants had challenged CAR 2007, wherein it had been submitted that AIC 28 of 1992 was based on better scientific studies. The same remained in operation for more than 17 years and no one had even raised any grievance in respect of its contents or application. However, it appears that during the pendency of the said writ petition, grievance of those petitioners stood redressed and, thus, they withdrew the writ petition. They did not even ask the court to reserve their right to file a fresh petition challenging the same, in case the need arose, as required in the principle enshrined in Order 23 of the Code of Civil Procedure, 1908. Such a conduct of those appellants in blowing hot and cold in the same breath is not worth approval.”

4. Recently also in the case of State Of Orissa and Anr. vs Laxmi Narayan Das (Dead) through Legal Representative and Ors. reported in (2023) 15 SCC 273 , the Hon’ble Apex Court in paragraph-37 and 38 has held and observed as follows:

“37. On the question, as to whether after the withdrawal of a suit claiming the same relief without having permission to institute fresh one for the same relief, a writ petition will be maintainable before the Court, the guidance is available from the judgment of this Court in M.J. Exporters Private Limited v. Union of India and others, (2021) 13 SCC 543, wherein the principle of constructive res judicata was applied. The case concerns a litigant who sought to file a fresh writ petition after withdrawal of the earlier writ petition filed for the same relief without permission to file fresh one. The Court held that the principles contained in Order 23, Rule 1 CPC are applicable even in writ proceedings. Para 15 thereof is extracted below:

“15. In these circumstances, w