# M/s Gokul Dairy and others v. State

- **Citation:** (2002) 1 ILRA 151
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001-12-20
- **Case number:** Civil Misc. Writ Petition No. 41020 of 2001
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-gokul-dairy-and-others-v-state-39785
- **Pages:** 6

## Headnote

Rules of the Court- Rule 7 - Chapter
XXII- the order dismissing the first writ
petition
operates
as
res-judicata
between the parties and the person
against whom the order has been passed
has got no right to file second petition on
the same facts. (Held in para 14).

Cases relied on-
1995 (3) SCC P. 757
AIR 1986 SC P.391
1990 (1) AWC P.732

I am of the view that the petitioners are
guilty of concealment and misstatement
of material facts, violation of orders
passed by this Court, violation of Rule 7
of Chapter XXII of the Rules of Court,
abuse of process of Court and they have
not approached this Court with clean
hands as they have been attempting to
usurp the money of the Bank.

## Text

1All] Kant Kumar Singh V. Gomti Gramin Bank and another
151
Sudha Salhan 1998 S.C.C. (L&S) 884,
copy of which is Annexure 17 to the
petition. On the strength of this decision,
learned
counsel
for
the
petitioner
submitted that the petitioner's name could
not have been kept in sealed cover as the
memorandum was given subsequent to
the D.P.C. In our opinion, the aforesaid
decision of the Supreme Court is
distinguishable.
No
absolute
legal
proposition can be laid down that if a
misconduct is alleged to be committed
subsequent to a selection then that
misconduct cannot be the basis for
withholding the promotion. Take for an
example of a case where an employee is
selected for promotion but he commits
murder
before
he
could
get
appointment/promotion order. In our
opinion, in such cases the appointment/
promotion can certainly be held up until
the person is cleared of the charge.

4. In the present case the petitioner
is an officer in bank where highest
standard of discipline and integrity has to
be
maintained.
The
allegation
of
embezzlement
is
subsequent
to the
meeting of the selection committee in our
opinion, the petitioner's promotion must
be held up until he is cleared of that
charge.

5. In the circumstances of the case
we dispose of this petition with the
direction to the authority concerned that
the enquiry against the petitioner must be
completed preferably within two months
of production of a certified copy of this
order before the authority concerned in
accordance with law. If the petitioner is
exonerated in the enquiry he may be
promoted. The petitioner will cooperate in
the enquiry.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD DECEMBER 20, 2001

BEFORE
THE HON'BLE R.H. ZAIDI, J.

Civil Misc. Writ Petition No. 41020 of 2001

M/s Gokul Dairy and others ...Petitioners
Versus
State
of
U.P.
through
the
District
Magistrate, Allahabad and others

 ...Respondents

Counsel for the Petitioners:
Shri Bushra Maryam
Shri K.P. Agarwal

Counsel for the Respondents:
S.C.
Shri Pankaj Bhatia

Rules of the Court- Rule 7 - Chapter
XXII- the order dismissing the first writ
petition
operates
as
res-judicata
between the parties and the person
against whom the order has been passed
has got no right to file second petition on
the same facts. (Held in para 14).

Cases relied on-
1995 (3) SCC P. 757
AIR 1986 SC P.391
1990 (1) AWC P.732

I am of the view that the petitioners are
guilty of concealment and misstatement
of material facts, violation of orders
passed by this Court, violation of Rule 7
of Chapter XXII of the Rules of Court,
abuse of process of Court and they have
not approached this Court with clean
hands as they have been attempting to
usurp the money of the Bank.

(Delivered by Hon'ble R.H. Zaidi, J.)

1. Heard learned counsel for the
petitioners, Mr. Pankaj Bhatia, Advocate,
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
152
who has appeared for respondent no. 4
and also perused the record.

2. By means of this petition filed
under Article 226 of the Constitution of
India, petitioners pray for issuance of a
writ, order or direction in the nature of
mandamus commanding the respondents
to get the claim of the bank satisfied first
by sale of properties, which have been
mortgaged, the details of which, are stated
to have been given in the recovery
certificate, contained in Annexure-3, not
to use any other coercive measure, more
particularly, the arrest of the petitioners
till the claim of the respondent bank is not
satisfied by sale of the properties. Further,
to command the respondents not to
initiate any recovery proceedings in
pursuance of the recovery certificate,
contained in Annexure-2 to the writ
petition.

3. The relevant facts of the case
giving rise to the present petition, in brief,
are that on an application made by the
petitioners to the respondent no. 4, the
Bank
of
India,
Branch
Sulemsarai,
Allahabad, a loan of Rs. 13.50 lacs was
sanctioned for establishing of a dairy
farm, in the name of Gokul Dairy Farm.
The amount of loan was disbursed and
paid to the petitioners after performing the
formalities of execution of agreement of
loan etc. There is noting on the record to
show that dairy business was at all started
by the petitioners but according to them
the said business failed and diary was
closed. The petitioners failed to repay the
amount of loan. Consequently, a recovery
certificate
for
an
amount
of
Rs.
17,65,773.00 was issued by the Bank to
the Collector, Allahabad in accordance
with the provisions of U.P. Agriculture
Credit Act to recover the said amount as
arrears of land revenue. On 24.8.2001, the
order of attachment was passed in the
recovery proceedings and the petitioners
were directed not to transfer the property
in dispute in favour of other persons.
Thereafter,
a
citation
and
sale
proclamation are stated to have been
issued by the authorities. The petitioners,
challenging the validity of the aforesaid
order, firstly filed Writ Petition no. 23269
of 1999. The said writ petition was
disposed of finally by this Court by the
judgment and order dated 28.5.1999. This
Court permitted the petitioners to make a
representation to the respondent no. 3 (in
the said petition) and directed the said
respondent to decide the same within the
time specified (two weeks). The recovery
proceedings were directed to remain
stayed during the said period subject to
the condition petitioners deposit an
amount of Rs. 5 lacs by 1st July, 1999, Rs.
5 lacs by 1st August, 1999, Rs. 5 lacs by
1st September 1999 and the balance by 1st
October 1999. The petitioners were also
directed not to alienate the property
movable or immovable till the entire
amount is paid and that in case of default
the entire amount could be realized as
arrears of land revenue. Apparently, the
order passed by this Court was in favour
of the petitioners but petitioners instead of
obeying it, filed Special Appeal No. 504
of 1999 against the said decision. The
special appeal was disposed of by this
Court on 28.6.1999 with the direction that
in case the appellants file any objection
before the recovery officer the same shall
be
considered
and
disposed
of
expeditiously by means of the reasoned
order within a period of two weeks from
the date of production of a certified copy
of the said order. In other respect the
judgment under challenge was maintained
by the Division Bench. The petitioners
1All] M/s Gokul Dairy, Allahabad and others V. State of U.P. through D.M. and others
153
even then did not obey the orders passed
by the Division Bench and filed another
Writ Petition no. 27565 of 2000 in
violation of the provisions of Rule 7
Chapter XXII of the Rules of the Court.
Legally, the said writ petition was not
maintainable but this Court taking very
lenient view in the matter, permitted the
petitioners to deposit Rs. 5 lacs in cash or
by bank draft on or before 20th May,
2001. It was further observed that if the
said deposit was not made, the writ
petition shall be deemed to have been
dismissed and the said order shall come to
an end. It was also observed that if the
said amount is paid, the petitioners shall
be at liberty to make a representation to
the Manager of the Bank alongwith the
proof of deposit of money which shall be
decided by the Manager and if any
amount was found outstanding against the
petitioner, same shall be paid by 15th
September,
2001
in
three
monthly
installments. On payment of whole
amount the recovery certificate was
directed to be recalled. It was also
observed that in case of default on the part
of the petitioners the writ petition shall be
deemed to have been dismissed. The
order was directed to stand automatically
vacated and recovery proceedings to stand
renewed as on date. The petitioners
instead of complying with the aforesaid
order filed a Civil Misc. Application in
Writ Petition no. 27565 of 2000 for
extension of time to deposit the amount in
question. This Court again taking a
lenient view in the matter extended the
time to deposit the amount in question by
one month. The time schedule given in
the
earlier
order
was
accordingly
modified by order dated 15.5.2001. The
aforesaid
orders
are
contained
in
Annexure 7,8,9 and 10 to the writ
petition. It may also be pointed out that
inspite of the aforesaid orders the
petitioners did not deposit the amount in
question or part thereof, on the other
hand, they have also stated to have filed
Original Suit no. 26 of 2000 for
permanent injunction against the Bank.
The fact of filing of suit has deliberately
been concealed in the writ petition.
However, this has been disclosed in the
counter affidavit filed on behalf of the
respondent
no.4
in
the
contempt
proceeding initiated against petitioners
no.2 to 4, but it is not know whether the
suit was still pending or not.

4. The present petition has again
been filed under Article 226 of the
Constitution of India for the above
mentioned reliefs.

5. Learned counsel appearing for
respondent no. 4 raised a preliminary
objection to the maintainability of the
present petition. It was vehemently urged
that the present petition was barred by the
provisions of Rule 7 of Chapter XXII of
the Rules of the Court, which prohibits
filing of successive petitions on the same
facts, which is legally not maintainable
and was liable to be dismissed. He stated
the facts of filing of writ petitions, special
appeal, misc. application and the suit
referred to above, in detail. It was urged
that the petitioners failed to comply with
the directions given by this Court. They
have deliberately concealed the material
fact of filing the Suit No. 26 of 2000 and
deliberately misstated the facts that this
was the first writ petition and the
petitioners had not approached this
Hon'ble Court earlier in either writ
jurisdiction or any other jurisdiction. It
was also stated that the petitioners have
deliberately violated and flouted the
orders passed by this Court, they have
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
154
abused the process of the Court and they
did not approach this Court with clean
hands as they wanted to usurp the money
of the Bank. According to him the present
petition was liable to be dismissed with
special costs. It was also stated by the
learned counsel for the respondents that at
present an amount of Rs.20,28,161/- was
outstanding against the petitioners which
is to be recovered as arrears of the land
revenue by the authorities below on the
basis of recovery certificate issued by the
Bank in accordance with law.

6. On the other hand, Mr. K.P.
Agarwal, Senior Advocate appearing for
the petitioners, submitted that in the
present case provisions of Rule 7 of
Chapter XXII, of the Rules of the Court
have got no application. The writ petition
filed by the petitioners was legally
maintainable and under the facts and
circumstances of the present case it
deserves to be allowed.

7. I have considered the submissions
made by the learned counsel for the
parties and also perused the record.

Rule 2 of Chapter XXII of the Rules
of the Court provides as under:-

(only relevant quoted)

"Such affidavit (or affidavits) shall
be restricted to facts which are within
deponent's own knowledge [and such
affidavit shall further state whether the
applicant has filed in any capacity
whatsoever, any previous application or
applications on the same facts and, if so,
the orders passed thereon.]"

8. In paragraph no. 3 of the writ
petition, which has been verified by the
deponent (Ramji Pandey) on his personal
knowledge it has been stated as under:

(only relevant quoted)

"This is the petitioner's first writ
petition. He had not approached this
Hon'ble Court earlier either in writ
jurisdiction or any other jurisdiction."

9. The petitioners themselves have
disclosed in the writ petition the facts of
filing of Writ Petition no. 23269 of 1999.
After disposal of the said writ petition the
fact of filing of Special Appeal no. 504 of
1999 and thereafter filing of Writ Petition
No. 27565 of 2000 and also the fact of
filing of Misc. Application No. 46082 of
2001 in writ petition no. 27565 of 2000
which was disposed of on 15.5.2001. The
petitioners have thus deliberately filed the
self-contradictory and false affidavit.
Filing of false affidavit is a serious matter.
A reference in this regard may be made to
the decisions of the Apex Court in
Dhananjay
Sharma
Vs.
State
of
Haryana and others, reported in 1995
(3) SCC 757. In the aforesaid decisions
the view taken by the Apex Court is that
filing of a false affidavit amounts to the
Criminal contempt and not only the
author of the affidavit but also the person
who has filed the affidavit is liable to be
punished. Earlier in a Full Bench
decision, this Court has also taken serious
view in the matter of concealment of
material facts. A reference in this regard
may be made to the decision in Asiatic
Engineering Company Vs. Acchu Ram,
reported in AIR 1951 Allahabad 746
(FB). Further, in Brij Mohan Rice Mill,
Kishni,
Mainpuri
and
others
Vs.
Regional Manager, U.P.F.C., Agra and
another, 1997 (3) A.W.C. 1458, it was
ruled by this Court as under:-
1All] M/s Gokul Dairy, Allahabad and others V. State of U.P. through D.M. and others
155
"and such affidavit shall further state
whether the applicant has filed in any
capacity
whatsoever,
any
previous
application or applications on the same
facts and, if so, the orders passed therein."

Thus, the above quoted provision
inserted under Chapter XXII, Rule 2 of
the Rules of the Court are quite
comprehensive. As per this provision the
bounden duty cast on every petitioner is
to disclose in his petition as to whether in
any capacity whatsoever, he has filed any
previous petition or application on the
same facts or the matter in issue and if so
he is further bound to disclose the orders
passed thereon. Here the terms 'previous
application or applications' used in the
above quoted provision includes pending
and decided both. Therefore, it is
immaterial whether the previous petition
is pending or has been disposed of. The
fact remains, that once petition is filed,
irrespective of the fact whether it is
pending or disposed of, the petitioner
would be bound to disclose the same in
subsequent petition. In our considered
opinion, if the petitioner does not disclose
about the filing of previous petition and
the orders passed thereon, it would
amount to concealment of material fact
and such petitioner would be guilty of
filing false affidavit and would be liable
to be dealt with according to law."

10.

Thus
the
petitioners
if
prosecuted, in view of the aforesaid
decisions, may be held guilty of criminal
contempt. In Brij Mohan's case (supra)
this
Court,
in
paragraph
31
after
discussing in detail the question of
concealment of relevant facts concluded
as under:-

"31. In view of the discussions made
above, we hold that it is mandatory for
each and every petitioner to state in first
paragraph of the writ petition as to
whether he in any capacity whatsoever,
had filed any previous application/
petition in the same matter, on the same
facts or similar facts and if so, the orders
passed thereon and the consequence of its
noncompliance would be that such
petitioner would be treated to have
concealed material fact and has not
approached this Court with clean hands
and would be liable to be dealt with
strictly in accordance with law."

11. So far as the submission of the
learned counsel for the respondents that
the present petition was hit by Rule 7 of
Chapter XXII of the Rules of the Court is
concerned, the same is also well founded.
Rule 7 of Chapter XXII of the Rules of
the Court provides as under:-

"7. No second application on same
facts.- where an application has been
rejected, it shall not be competent for the
applicant to make a second application on
the same facts."

12. The aforesaid Rule came for
consideration and interpretation in the
case of Abdul Ghaffar and another Vs.
Ishtiyaque Ahmad and another reported in
1989 A.L.J. page 297, wherein it was
ruled by this Court that even if the first
petition is rejected for default and not on
merits, there is clear prohibition in Rule 7,
noted above, that the second application
shall not be competent on the same facts.

In Brij Mohan's case (supra) after
considering
and
relying
upon
the
decisions in Forward Construction Co.
and others Vs. Prabhat Mandal (Regd.),
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
156
Andheri, A.I.R. 1986 S.C. 391; B.S.M.
Samiti, Roorkee Vs. D.M., Hardwar and
others (1995) 2 U.P. Local Bodies
Education Cases 1182; M/s Munna
Industries Vs. State of U.P. and others
1994 A.L.J. 1116 and Anand Kumar
Gupta Vs. State of U.P. and others (1993)
1 U.P. Local Bodies Education Cases 165,
it was ruled that Rule 7 of Chapter XXII
of the Rules of the Court prohibits filing
of successive petitions under Article 226
of the Constitution of India.

13. Similar view was taken in 1990
(1) AWC 732. Even the Apex Court in
AIR 1986 SC 391 was pleased to rule that
the order dismissing the first writ petition
operates as res-judicata between the
parties and the person against whom the
order has been passed has got no right to
file second petition on the same facts.

14. In view of the aforesaid
discussion, I am of the view that the
petitioners are guilty of concealment and
misstatement of material facts, violation
of orders passed by this Court, violation
of Rule 7 of Chapter XXII of the Rules of
Court, abuse of process of Court and they
have not approached this Court with clean
hands as they have been attempting to
usurp the money of the Bank. They,
therefore, do not deserve any sympathy;
but looking to the fact that contempt
proceedings have already been initiated
against the petitioners, which are pending
disposal in this Court. I do not consider it
necessary at this stage to impose special
cost or to direct initiation of proceedings
for criminal contempt. I simply admonish
the petitioners not to commit such
mistakes, as pointed out above again,
failing which they will have to suffer very
serious
consequences.
It
is
further
directed that this order shall be without
prejudice to the contempt proceedings,
which are pending against the petitioners
and will not affect them adversely in any
manner.

15. In view of the aforesaid
discussions, the writ petition fails and is
hereby dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.12.2001

BEFORE
THE HON'BLE S.R. SINGH, J.
THE HON'BLE D.R. CHAUDHARY, J.

Civil Misc. Writ Petition No. 49798 of 1999

Ram Anurag Verma, Zila Pichhare Varg
Kalyan Adhikari, Sultanpur and others

 ...Petitioners
Versus
State of Uttar Pradesh and others

 ...Respondents

Counsels for the Petitioners:
Sri R.N. Singh
Sri Ashok Khare
Sri A. Kumar
Sri Tarun Verma

Counsel for the Respondents:
C.S.C.
Sri Kripa Shankar Singh

Constitution
of
India,
Article
226-
appointment on Deputation - on the post
of Zila Pichhra Varg Kalyan Adhikari -
under U.P. Backward Classes Welfare
Department (Gazetted) Officers Service
Rules 1998- admittedly post in Question
falls within the preview of Public Service
Commission
-
Regular
Vacancy
advertised- Can not be questioned by
such deputanits held- No right- direction
issued to make necessary amendment if
Government think proper.