- (1.) SINCE both these writ petitions have been filed by the same petitioner for the same relief and on the same subject-matter, hence both are heard and decided together by this common judgment.
(2.) HEARD Sri A. C. Tiwari, who is learned Counsel for the petitioner in both the writ petitions, Sri K. K. Chaurasia, who is learned Counsel for the petitioner in the first writ petition only and Sri A. B. Sinha, who is learned Counsel for the petitioner in the second writ petition only. It so happened that while fresh cases were being taken up today, the writ petition No. 20740 of 2007 was taken up. After hearing learned Counsel for the petitioner at a considerable length, an order was passed directing learned Standing Counsel to file counter-affidavit within 3 weeks and rejoinder affidavit within 3 weeks thereafter. The writ petition was directed to be listed for admission after expiry of aforesaid period. At that stage learned Counsel for the petitioner did not whisper about filing of any other petition by the petitioner. But while taking up the listed matters, this Court was shocked and very much pained to see that successive petitions have been filed by the same petitioner. The first writ petition filed by the petitioner was listed at SI. No. 41 in the listed matters whereas the second writ petition filed by the same petitioner was listed at SI. No. 6 in the fresh matters. From perusal of records it transpired that the first writ petition was taken up on 3-4-2007 when it was directed to be listed on 10-4-2007. On 10-4- 2007 learned Counsel for the petitioner was not present, so Sri Alok Kumar Singh, learned Standing Counsel undertaken to inform the learned Counsel for the petitioner in writing that the matter will be taken up on 16-4-2007. On 16-4-2007 a request was made and the case was ordered to be put up on 18- 4-2007. On 18-4-2007 again request was made and the case was directed to be listed on 25-4-2007 and this is how this case is listed today.
(3.) THEREAFTER, learned Counsel for the petitioner in both the writ petitions were called but this Court was further surprised to see the conduct of the learned Counsel for the petitioner that instead of fairly conceding the fault, they tried to justify the filing of successive petitions by the same petitioner in the same subject-matter. For considering the justification of filing of successive petitions, it is relevant to consider the relief sought by these writ petitions. The relief sought by the first writ y petition is quoted below : " (i) issue a writ, order or direction in the nature of mandamus directing the respondents not to realize the transit fee by the petitioner for doing mining products and its lifting and transportation. (ii) issue a writ, order or direction for which this Hon'ble Court may deem fit and proper in the circumstances of the present case. (iii) Award the costs of this writ petition in favour of the petitioner throughout. " The relief sought by the second writ petition is as under : (i) issue a writ, order or direction in the nature of certiorari by declaring the provision of Section 2 (4) IV of Indian Forest Act, 1927 as ultra vires to the Indian Mines Act, 1952 as well as of Article 14 of the Constitution of India. (ii) Issue a writ, order or direction which this Hon'ble Court may deem fit and proper under the circumstances of the case. (iii) Award costs of this petition in favour of the petitioner. " From perusal of record of both the writ petitions including the above quoted relief clauses, it is abundantly clear that the cause of action for filing the first writ petition arose due to charging of the transit fee from the petitioner and no fresh cause of action arose at all for filing the second writ petition. In the stay applications made in both the writ petitions, the interim relief sought by the petitioner is a direction not to realize the transit fee from him and therefore the main relief sought by means of both these writ petitions is virtually the writ of mandamus directing the respondents not to realize the transit fee from the petitioner However, learned Counsel for the petitioner submitted that the main relief sought by the second writ petition is the writ of certiorari declaring the provisions of Section 2 (4) IV of Indian Forest Act, 1927as ultra vires and this relief has not been sought in the first writ petition. In this context, suffice it to say that the petitioner is seeking declaration of the said provision as ultra vires only because the transit fee is being charged from him and that is why in the stay applications of both the writ petitions the petitioner his categorically sought interim direction for not charging the transit fee from him. Moreover, even after filing of the first writ petition, if the petitioner felt it necessary to get the aforesaid provisions declared as ultra vires, he could have fairly applied for amending the first writ petition itself by adding the relief of declaration of the said provision as ultra vires and that was the only proper course open for the petitioner.;