ASHIM KUMAR BANERJEE, J. - (1.) THE Port Blair Municipal Council would permit various advertising agencies to set up hoardings within the Municipal limits of Port Blair upon payment of fees. Such licence was given periodically with option for renewal. The dispute arose when the authority attempted to enhance the renewal fee that became the subject matter in various writ proceedings. This appeal would relate to one of the writ petitioners namely M/s. G.V.R. Advertising Marketing who was initially a party to the writ petition being W.P. No. 699 of 2012 along with others wherein the petitioners questioned the increase in annual rent of hoardings and banners imposed by the Municipal Council as well as the amendment of advertisement Bye laws of 2009 through the amended Bye -laws of 2012. The learned Single Judge dismissed the writ petition being W.P. No.699 of 2012. The petitioners therein along with the present appellant filed an appeal. The Division Bench affirmed the decision of the learned Single Judge by judgement and order dated June 07, 2013. The writ petitioners in W.P. No. 699 of 2012 did not question the judgement and order of the Division Bench before the Apex Court and thus the said decision attained finality. The present appellant along with two other similarly circumstanced advertisers filed a second writ petition being W.P. No.13673(W) of 2013 asking for the identical relief. Perusal of the writ petition would depict, the writ petitioners mentioned about the earlier writ proceedings however, deliberately suppressed the subsequent order of the Division Bench. The writ petitioners in WP No.13673(W) of 2013 contended that they did not raise the legal issues in the earlier writ proceeding. Paragraph 17 being relevant herein is quoted below: - ''17. That writ petitioners along with other challenged the impugned Notification dated 29.6.2012 in writ proceeding Vide W.P. No.699 of 2012 which was dismissed by an order dated 12.12.2012. In the said writ petition the writ petitioners did not raise the legal issues as regard nonfulfillment of the requirement of the clause 204 Andaman and Nicobar Islands (municipal) Regulation - 1994 by the respondent authorities in promulgating the impugned Bye -law and as such those legal issues have raised in the present writ petition for the first time. '' Judgement and order impugned
(2.) THERE were altogether three writ petitioners. Out of three the first and third writ petitioners including the present appellant were parties to the earlier writ petition being W.P. No.699 of 2012 and the subsequent appeal referred to above. It is more surprising, although in the subsequent writ petition they would claim they did not raise the legal issue in the earlier proceeding, they sought to amend their Memorandum of Appeal that the Division Bench specifically rejected. The learned Single Judge dismissed the writ petition mainly on the ground of suppression. His Lordship also dealt with the legal issue that we would be discussing little later. The relevant paragraphs on suppression being Paragraphs 13 and 19 are quoted below: - ''13. Mr. Arul Prasanth and Mrs. Anjili Nag, learned advocates representing the Council raised preliminary objection to the maintainability of W.P. No. 13673 (W) of 2013 and W.P. No. 332 of 2013. According to them, the three petitioners in W.P. No. 13673 (W) of 2013 and the first and third petitioners in W.P. No. 332 of 2013 had earlier jointly presented a writ petition, being W.P. No. 699 of 2012, questioning the increase in annual rent of hoardings and banners imposed by the Council as well as the amendment of the Advertisement Bye -laws of 2009 by the Amendment Bye -laws of 2012. The said writ petition was considered by a learned Judge on 12th December, 2012 and upon contested hearing, His Lordship was pleased to hold that the increase in licence fees had been brought about lawfully and that the Court would not review the decision taken by the Council in respect of fiscal matters regarding garnering of funds and expenditure, which are exclusively within its domain. The order dated 12th December, 2012 had been carried in appeal and the Hon 'ble Division Bench by its order dated 7th June, 2013 accepted the reasons for dismissal of the writ petition and, consequently, dismissed the appeal. The order of the Hon 'ble Division Bench dated 7th June 2013 was not questioned before the Hon 'ble Supreme Court and thus attained finality. According to Mr. Prasanth and Mrs. Nag, the said two writ petitions are hit by res judicata and/or analogous principles. 19.In W.P. No. 13673 (W) of 2013, the three petitioners have pleaded that they are not guilty of suppression of material facts. There is, however, no disclosure therein of presentation of W.P. No. 699 of 2012 by them together with 5 (five) other petitioners and its dismissal by the order dated 12th December, 2012. Similar is the case in W.P. No. 332 of 2013. The first and third petitioners therein have not disclosed dismissal of W.P. No. 699 of 2012 by the order dated 12th December, 2012. There is also no disclosure of the order of the Hon 'ble Division Bench passed on 7th June, 2013. The said petitioners having unsuccessfully approached this Court earlier, W.P. No. 13673 (W) of 2013 and W.P. No. 332 of 2013 (at the instance of the first and third petitioners) are liable to be dismissed not only on the ground of constructive res judicata, but also on the ground of suppression of material facts. The submission of Mr. Jayapal that the provisions of the Code do not apply to writ proceedings in view of the explanation appended to Section 141 thereof and hence the principles of res judicata cannot be invoked, has been advanced to be rejected. In a catena of decisions, the Hon 'ble Supreme Court has ruled that the principles flowing from the Code could be applied to writ proceedings, as far as practicable. Reference in this connection may be made to the decision reported in (2011) 3 SCC 408: M.Nagabhushana -vs - State of Karanataka, wherein it was ruled that principles of constructive res judicata are applicable to writ proceedings. That apart, Rule 53 of the writ rules framed by this Court provides that the provisions of the Code in regard to suits shall be followed, as far as it can be made applicable in all proceedings under Article 226 of the Constitution of India. '' The legal issue that the second writ petition would seek to raise was, as to whether the authority was entitled to enhance the fees through amendment of Bye -laws without adhering to the requirement of Rule204 that would oblige the Municipal Council to place the proposed amendment before both Houses of Parliament. Regulation 204 being relevant herein is quoted below: - ''204. Every rule and every bye -law made under this Regulation shall be laid as soon as may be after is made before each House of Parliament. While it is in session or a total period of thirty days which may be comprised in one session or in two or more successive sessions and if before the expiry of the session immediately following the session or the successive sessions as aforesaid both Houses agree for making any modification in the rule or bye -law or both houses agree that the rule or bye -law should not be made, the rule or bye -law shall thereafter have effect only in modified from or be of no effect as the case may be, so however that any such modification or annfulment shall be without prejudice to the validity of anything previously done under that rule or bye -law. ''
(3.) IT is true that the amendment was not placed before the Parliament contemporaneously. Mrs. Nag, learned advocate appearing for the Municipal Council, would contend, it was placed subsequently and duly approved by the Parliament. The learned Single Judge held, mere non -approval by the Parliament was not fatal. His Lordship relied on the Apex Court decision in the case of Jan Mohammed Noor Mohammed Bagban - vs. -State of Gujarat and another reported in All India Reporter 1966 Supreme Court 385 and K.T. Plantation (P) Ltd. -vs. -State of Karnataka reported in 2011 Volume 9 Supreme Court Cases 1. His Lordship imposed a cost of Rs.10,000/ - against each of the writ petitioners. Being aggrieved, one of the five writ petitioners involved therein, preferred the instant appeal that we heard on the abovementioned date. Contentions;