The dismissal of a writ petition as withdrawn without permission to file a fresh petition bars the maintainability of a subsequent petition on the same subject matter, and the principle of constructive res judicata applies to writ petitions filed under Article 226 of the Constitution.

S.C. VARMA, J.

1. A preliminary point was raised by the Respondents regarding the maintainability of the petition.

2. The fact, in short, may be briefly stated. 21 excise shops of country spirit of Bisalpar, District Pilibhit were put to auction on 7-3-1991 for the excise year 1991-92. The Petitioners who are 14 in number offered the highest bid of Rs. 91,05.000 and were required to deposit half of the security amount as envisaged in Rule 20(1)(i) of the U.P. Excise Licencees (Tender cum auction) Rules, 1991. The claim of the Petitioners is that the auction was over at 6.00 p.m. and they delivered Bank draft of Rs. 94,0000/- at 11.30 p.m. to the Excise Inspector. A First information report was lodged by the District Excise Officer, Pilibhit against the Petitioners that the bidders did not deposit the security amount of the auction. However, the Excise Inspector handed over the Bank draft on 8-3-1991 to the District Excise Officer. The Excise Commissioner accepted G-12 statement of the bid of the Petitioners on 1-5-1991. The Respondent No. 4 who had offered the second highest bid challenged the approval of the Excise Commissioner before the State Government. On reference made by the State Government to the Excise Commissioner, the application of Respondent No. 4 was rejected on 30-3 191, upholding the order accepting the bid in favour of the Petitioners. The Respondent again challenged the order dated 30-3-199 before the State Government and the State Government passed an exparte order directing the Excise Commissioner not to accord final sanction. However, the Excise Commissioner, by an order dated 1-5-1991 accepted form 12A in respect of the aforesaid auction subject to the result of the proceedings before the State Government initiated by the Respondent No. 2. It was made clear that in case the application is allowed, the auction would stand automatically cancelled. The State Government ultimately, by an order dated 10-12-1991, cancelled the auction dated 7-3-1991, and directed for reduction of 21 country spirit shops of Bisalpur. It may be stated that the Petitioners operated the licence during this period. At this stage the 14 Petitioners who were excise licencees presented the present writ petition No. 1588 of 1991 before the Stamp Reporter and thereafter filed it before the Joint Registrar on 18-12-1991 which came up for consideration on 19-12-1991. Simultaneously another writ petition challenging the same order of the State Government dated 10-12-1991 was presented for reporting before the Stamp report Lucknow Bench on 17-12-1991 by 7 Petitioners out of the aforesaid 14 and the Petitioners reported as cognizable by a Division Bench. This petition also came up for consideration on 19-12-1991. On 19-12-1991 this petition was got dismissed by a Division Bench by the following order:

It is stated by Sri M. Naseerullah, Learned Counsel for the Petitioners that the petition may be dismissed as withdrawn.

We accordingly dismissed the petition as withdrawn.

sd. Section Ahmad

sd. Shobha Dikshit.

19-12-1991.

3. On 19-12-1991, writ petition No. 1588 of 1991 was taken up for hearing before the learned Single Judge. The case was directed to be put up on the next date to enable the Learned Counsel for the Respondent No. 4 to file a counter affidavit. On 20-12-1991, an application along with an affidavit was filed to dismiss the writ petition as not maintainable in view of the fact that similar petition has been dismissed by the Lucknow Bench on 19-12-1991. The Respondents were directed to file a certified copy of the order dated 19-12-1991 and the case was fixed for orders on 2-1-1992.

4. Another petition by the same 14 Petitioners by the same counsel was filed during vacations on 27-12-1991 and a Bench of Hon'ble K.K. Birla and Hon'ble B.P. Singh, JJ was nominated. Copy of this petition was given to the learned standing counsel who accepted notices for Respondents 1, 2 and 3. An application was alleged to have been filed by Respond