Messrs. Mohamedaly S... v. The Income-Tax Offic...

(Delivered by Veeraswami, J.)

This petition under Art. 226 of the Constitution is to direct the first respondent, who is the Income-tax Officer, Central Circle III, Madras-34 to desist from taking recovery pursuant to his notice dated 17th May, 1966 under S. 226 (3) of the Income-tax Act, 1961, against the petitioner. The petitioner had filed W. P. No. 2328 of 1966 for an identical relief on certain grounds, which was dismissed by this Court by an order dated 10th August, 1967. In the present petition the petitioner takes certain additional grounds, namely, that S. 2/6 (3? of the Income-tax Act 1961, violate Art. 14, that S. 226 (3) (x) is beyond the ambit of entry 82 of List I in the Seventh Schedule to the Constitution and also that S. 226 suffers from excessive delegation. Two other grounds relate to the legality of the certificate issued by the Income-tax Officer, the main ground of the petitioner being that the amount for which the certificate was issued was larger than what was due actually from the assessee on the date of issue of the certificate.

It is not said that none of the above points was available to the petitioner in the earlier petition. In fact learned Counsel for the petitioner could not give any explanation whatever as to why those points were not taken. His only answer is that the points did not occur to him at the time the earlier petition was filed. While we sympathise with the Counsel, it has, however, to be realised that a second writ on an identical subject matter cannot be allowed. It is not merely on the principle that there should be finality to the litigation which we think is applicable to proceedings under Art. 226 of the Constitution but allowing successive petitions to be filed as and when the parties or Counst 1 dig up new points will lead to abuse of process of the Court. We cannot overlook the mischief which is likely to result by allowing such successive petitions. It is true that the jurisdiction of this Court under Art. 226 is wide and is not trammeled or limited by any restriction. It is also true that under that Article the power is not confined to particular forms of the English writs. Nevertheless certain broad principles have to be inevitably followed by courts in exercise of the jurisdiction. One of them is that a party who comes to Court asking for a particular relief in relation to the particular subject matter must state ail facts and circumstances and urge all the grounds on which he seeks relief and failure to do so either by negligence or over light cannot be an excuse for starting of a litigation all afresh. That wholesome principle, as we think, must apply to proceedings under Art. 226 as well. Halsbury says in the Laws of England, 3rd Edn. Volume II (Simonds Edn.):

“When an application for an order of certiorari, prohibition or mandamus has been made, argued and refused on the ground of defects in the case as disclosed in the affidavits supporting the application, it is not competent for the application to make a second application for the same order on amended affidavits containing fresh meterials. The rule applies even in cases where the defects in the case which caused the refusal of the first application are remedied in the second and it makes no difference whether the motion is made in a private capacity or by a law officer on public grounds.”

Though this passage relates to disposals of the earlier application due to defects in the affidavits, the rule on principle should equally apply to failure to urge grounds, whether factual or legal, which were available and might and ought to have been urged in the earlier application. In Mangat Ram Kuthala v. Commissioner of Income-tax(1) the above passage from Halsbury's Laws of England was cited, and it was pointed out:

“It is thus a settled rule that the Court will not allow a party to succeed, on a second application, when it has previously applied for the very same thing and failed, incept in case of alteration in the form of a title or jurat in the affidavit.”

We are of opinion, therefore, that we cannot allow a second petition on the same subject matter.

The petition is dismissed with costs of the first respondent. Counsel's fee Rs. 100.

v.c.s