NAND KISHORE KANAUDIA Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) Heard learned counsel for the petitioners. The petitioners seek quashing the First Information Report dated 29-4-1989 giving rise to Case Crime No. 149 of 1989, Police Station, Robertsganj, District Sonbhadra including stay of their arrest, The petitioners have further sought for quashing the provisions contained under Ss, 3 and 4 of the Prevention of Adulteration of Food, Drugs and Cosmetics (U. P. Amendment.) Act, 1974 (Act No. 47 of 1975) being ultra, vires of the Constitution of India. It is not disputed that the petitioners even earlier filed a writ petition (Writ Petition No,. 12088 of. 1989) in this Court for quashing the same aforesaid First Information Report giving rise to the same Case Crime No. 149 of 1989 and also for stay of their arrest which was dismissed by this Court vide its order 5/05/1989, Annexure-9 of the writ petition. The writ petition after hearing learned counsel for the petitioners was dismissed with a direction that in case petitioners surrender with an application for bail under Section 273, I.P.C. to the court concerned. Their hail application should be considered and disposed of on the same day. After having obtained the aforesaid relief the petitioners have now again filed this second writ petition for quashing the same First Information, Report in the same ease prime number and also for staying their arrest on additional ground of the validity of Ss. 3 and 4 of Prevention of Adulteration of Food, Drugs and Cosmetics (U.P. Amendment) Act, 1974 (U.P. Act No. 47 of 1975). It is on this basis learned counsel for the petitioners has urged that this new ground and relief were not taken earlier and, therefore, he has, filed the present writ petition. Sole relief of declaration of any provision as ultra vires cannot be taken by any person, it can only. be taken by a person affected by that provision. In the present case the petitioners are affected by the aforesaid First Information Report and their arrest for which they have filed the earlier writ petition and for the same relief they have filed the present writ petition on additional ground of challenging the provision of the aforesaid sections of the said Act. Challenging the validity of the aforesaid provisions correlates to the relief sought for by the petitioners in the earlier writ petition that is for quashing the First Information Report and staying the arrest of the petitioners. In fact, challenging the aforesaid provisions of the said sections of the aforesaid Act, though is also one of the reliefs but in effect it could be an additional ground, in our considered opinion, for challenging the same First Information Report and for the same relief.

(2.) In strict sense Section 11 may not be applicable in proceedings under Article 226 of the Constitution of India but its underlying principle is and has always been made applicable to these proceedings. But for this no finality could be reached in any litigation. Principle of constructive res judicata is a point which ought to be taken if not taken could also be covered by the principle of res judicata. Unless this is done a party for the same relief may seek his redress on few grounds and being unsuccessful on few grounds could in the second innings by filing fresh petition again raise the remaining grounds for the same relief. It is for this Court to see whether subsequent proceeding arises out of the same cause of action or different. If cause of action in the same, second proceeding would not be maintainable.

(3.) Learned counsel for the petitioners has relied on a decision given by the Supreme Court in the case of Indian Oil Corporation Ltd. v. State of Bihar, (1986) 4 SCC 146 : (AIR 1986 SC 1780). Reliance placed by the petitioners' counsel is that since the earlier writ petition was dismissed in limine, hence the principles of either res judicata or constructive res judicata will not apply even if he has filedthe second writ petition in this court for quashing the First Information Report. In the aforesaid Supreme Court's decision it has been held;