Crux:
If and when to bar a petition in Supreme Court w.r.t Articles 32 and 226 of the Constitution of India.
Bench:
Gajendragadkar, P.B., Sarkar, A.K., Wanchoo, K.N., Gupta, K.C. Das, and Ayyangar, N. Rajagopala
Appellant:
Daryao
Respondent:
State of UP
Issue
Whether moving a case to Supreme Court for the enforcement of the Fundamental Rights which is guaranteed by Article 32 can be contravened by the principle of Res Judicata?
Facts
- Since the last fifty years, the petitioners and their ancestors have been the tenants of the land. Respondents 3 to 5 are the proprietors of the said land.
- Owing to communal disturbances in Uttar Pradesh in 1947, the petitioners had to leave their village in July, 1947; In November, 1947, they returned but they found that during their temporary absence, respondents 3 to 5 had entered in unlawful possession of the said land.
- Since the said respondents refused to deliver possession of the land to the petitioners the petitioners had to file suits for ejectment.
- Aggrieved by the negative decision the petitioners moved the High Court at Allahabad under Article 226 of the Constitution for the issue of a writ of certiorari to quash the said judgment.
- The petitioners then filed the present petition under Article 32.
Appellant’s contentions
- It was contended that the 'principle of res judicata which is no more than a technical rule, similar to the rule of estoppel cannot be pleaded against a petition which seeks to enforce the Fundamental Rights guaranteed by the Constitution.
- He also urged that the right to move the Supreme Court for the enforcement of the Fundamental Rights which are guaranteed by Article 32(1) is itself a Fundamental Right.
- Thus, it is impossible to whittle down the said Fundamental Right by putting it in the straitjacket of the technical rule of res judicata.
Respondent’s contentions
- It was contended that Article 32(1) does not guarantee to every citizen the right to make a petition under the said article but it merely gives him the right to move this Court by appropriate proceedings.
Relevant Paragraphs of the original judgement
- Whether or not a writ petition is dismissed in limine and an order is issued in its place, the substance of the order will determine whether or not the dismissal is a bar. If the decision is on the merits, it will be a bar; if the order reveals that the petitioner was dismissed because of laches or because he had an alternative remedy, it will not be a bar, save in the instances we have already mentioned. If the petition is dismissed in limine without a spoken order, the dismissal cannot be used to establish a res judicata bar.
- It is true that dismissal in limine, even without a speaking order, may strongly suggest that the Court believed the petition lacked merit; however, in the absence of a speaking order, it would be difficult to determine what factors weighed in the Court's mind, making it difficult and dangerous to hold that such a summary dismissal was proper. The petition was submitted under Article 32 of the Constitution.
- Because there has been no judgement on the merits by the Court, if the petition is dismissed as withdrawn, it cannot be used to preclude a subsequent Gaj petition under Art. 32. We want to be clear that our conclusions are limited to the issue of res judicata, which has been raised as a preliminary issue in these writ petitions, and nothing more. We shall now proceed to assess the position in the six petitions before us in light of this ruling.
Judgement
The writ petition failed and was dismissed. There was no order as to costs.
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