1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.2413 OF 2010 Acharya Swami Trivendrananda Saraswati @ Vikram Mahadeo Wagh .. Petitioner Versus The State of Maharashtra through its Secretary, Ministry of School Education & Sports Department, Mantralaya, Mumbai and ors. .. Respondents Shri Sandeep S.Deshmukh, Advocate for petitioner Shri S.K.Kadam, Assistant Govt.Pleader for respondents 1 to 4 CORAM : P.V. HARDAS AND S.V. GANGAPURWALA, JJ DATE : 24th March 2010 PER COURT : 1. This petition has been filed by the petitioner under Article 226 of the Constitution of India with a prayer at prayer clause (B) for issuance of a direction for recalling the judgment and order passed by the Co-ordinate Bench dated 14.9.2009 in Writ Petition No.6103 of 2009. We may at this juncture highlight the exact wordings of the prayer clause (B). 2 “(B) By an order of this Hon’ble Court, the Judgment and Order dated 14.9.2009 passed by this Hon’ble Court in Writ Petition No.6103 /2009 may kindly be recalled and thereby kindly confirm the Order dated 17.8.2009 of transfer of school from village Aranvihira, Taluka Ashti, District Beed to village Pimpalner (Induvasini Devi), Taluka Shirur, District Beed.” 2. It appears that prior to the filing of the present petition the petitioner had filed Writ Petition No.790 of 2010 before the Division Bench of this Court and the Division Bench has passed the following order on 2.3.2010. “Heard learned Counsel for the parties. 2. Preliminary objection is taken by the learned A.G.P. about the maintainability of this petition in the context of the reliefs claimed in this petition. It is submitted that it is not open to issue writ under Article 226 of the Constitution of India so as to quash and set aside the judicial order passed by the Bench of co- ordinate jurisdiction of this Court. 3. Realizing this position, the learned Counsel for the petitioners prays for permission to amend the writ petition. In our opinion, even that course cannot be permitted. The petitioner, if so advised, may take out appropriate proceedings permissible by law, which may be considered, on its own merits. This petition is dismissed with liberty to file appropriate proceedings, if so advised. 3 At the instance of the learned Counsel for the petitioner, it is once again made clear that the present order is intended only to consider the reliefs as claimed in the present petition and not an expression of opinion either way on whether any other remedy is available to the petitioner and if available, in what form.” 3. According to the petitioner the necessity of filing Writ Petition No.790 of 2010 arose on account of an order which came to be passed by the Division Bench in Writ Petition No.6103 of 2009. According to the petitioner the petitioner was not made a party to the writ petition and, therefore, the petitioner who was adversely affected by the said order, though a necessary party, had filed civil application/review application No.12043 of 2009. The aforesaid review application when listed before the Court on 18.11.2009 came to be withdrawn by the petitioner contending before the Court that the petitioner intends to file a separate petition. The review application, therefore, came to be dismissed as withdrawn. The petitioner thereafter filed Writ Petition No. 790 of 2010 in which the order quoted above came to be passed by the Division Bench. 4. It would be useful to refer to the relief which was claimed by the petitioner in Writ Petition No.790 of 2010. The aforesaid prayer clause i.e. prayer clause (B) of Writ Petition No.790 of 2010 is reproduced as below. 4 “(B) By an order of this Hon’ble Court, the Judgment and order dated 14.9.2009 passed by this Hon’ble Court in Writ Petition No.6103/2009 may kindly be quashed and set aside, thereby confirming the Order dated 17.8.2009 of transfer of school from village Aranvihira, Taluka Ashti, District Beed to village Pimpalner (Induvasini Devi), Taluka Shirur, District Beed.” 5. Comparison of the prayer clause (B) in Writ Petition No.790 of 2010 and the present Writ Petition would disclose only cosmetic changes in the prayer clauses. In Writ Petition No.790 of 2010 what was prayed was that the Judgment and Order of the Division Bench dated 14.9.2009 be “quashed and set aside” while the prayer clause (B) in the present writ petition is for “recall of the Judgment and Order of the Division Bench of this Court dated 14.9.2009” rendered in the same writ petition. Thus, the comparison of the prayer clauses discloses that the prayer clauses are virtually identical except for slight variation in the use of the term “quash” and “recall”. 6. Shri Sandeep Deshmukh, learned Counsel for the petitioner has urged before us that the present writ petition is maintainable and is not barred by the principle of res judicata. In support of this, learned Counsel has referred to the judgment of Supreme Court in Joseph Pothen v. The State of Kerala, AIR 1965 SUPREME COURT 1514. The learned Counsel for the petitioner has also referred to the judgment of 5 Supreme Court in D.D.Suri v. A.K.Barren and others, AIR 1971 SUPREME COURT 175. 7. The question of maintainability of Writ Petition No.790 of 2010, which was a petition preferred by the petitioner after withdrawing the review application, was considered by the Division Bench of this Court and the Division Bench in no uncertain terms opined that the aforesaid petition was not maintainable. The submission as to whether that petition was maintainable or not is not a question which we can dwell into and decide. The Division Bench further granted liberty to the petitioner to file “appropriate proceedings, if advised”. The Division Bench further clarified that the said order was intended only to consider the relief as claimed in the present petition and not an expression of opinion either way on whether any other remedy is available to the petitioner and if available, in what form. 8. This petition, therefore, is liable to be dismissed on the principal of res judicata on twin grounds; (i) The Division Bench while dismissing Writ Petition No.790 of 2010 had clearly opined that the said petition was not maintainable and mere cosmetic change in the prayer clause would not entitle the petitioner to seek virtually the same relief which came to be denied by the Division Bench while deciding Writ Petition No.790 of 2010; 6 (ii) The petitioner had not obtained liberty to file a petition in the High Court as such under Article 226 of the Constitution of India. The liberty that was granted to the petitioner was to file “appropriate proceedings”. Filing of the second petition on the same cause of action with the same relief is certainly not to resort to remedy of filing the appropriate proceedings. 9. Learned Counsel for the petitioner urged before us that despite the bar of res judicata this Court may entertain the petition on the ground the order in Writ Petition No.6103 of 2009 was obtained by the petitioner therein by practicing fraud on the Court. Once we have held that the petition is not maintainable and is barred by the principle of res judicata challenges on the merits cannot be examined. 9. On the background of the aforesaid facts, therefore, according to us the present petition is clearly not maintainable and his hit by the principle of res judicata and the petition therefore deserves to be dismissed and is accordingly dismissed. ( S.V.GANGAPURWALA, J.) ( P.V. HARDAS, J.) (vvr/2413.10wp) 7