JUDGMENT
B.C. Patel, J.
1. Detenu, by filing this petition under Article 226 of the Constitution of India has challenged the order of detention passed by District Magistrate, Ahmedabad on June 18, 1995 in exercise of powers conferred on him by Sub-section (2) of Section 3 of the Gujarat Prevention of Anti-Social Activities Act, 1985 (‘PASA’ for short) and has prayed for issuance of a writ of Habeas Corpus directing his release and quashing the order.
2. Earlier, the petitioner filed Special Civil Application No. 4914 of 1995 challenging the same order of detention, before surrendering. The said petition was withdrawn unconditionally on July 5, 1995.
3. It appears that immediately after surrendering to the authorities, the detenu filed Special Civil Application No. 6370 of 1995 in the month of July 1995. From the record, it appears that the matter was heard by this Court (Coram: S.D. Shah, J.) and the learned Counsel for the petitioner was fully heard. The matter was adjourned for hearing at the instance of learned Additional Government Pleader. The matter was thereafter placed before another Bench (Coram: J.M. Panchal, J.) since the previous Bench was not able to take up the matter. The petitioner insisted for giving priority, but learned Advocates appearing in other matters objected to the same. It appears that the petitioner sought permission to withdraw the petition, which was granted and by an order dated 10th October 1995, the petition was disposed of accordingly.
4. The petitioner thereafter challenged the order of detention before the Honourable Supreme Court by filing a petition under Article 32 of the Constitution and the same was withdrawn on 12-12-1995. Learned Counsel appearing for the petitioner before the Supreme Court made a statement before the Honourable Court that the petitioner would file a fresh petition before the High Court to seek appropriate relief and make a request to the High Court for disposal of the writ petition keeping in view the date of the detention and the writ petition may be dismissed as withdrawn. The Supreme Court recorded the said statement and dismissed the writ petition as withdrawn.
5. The petitioner has thereafter filed the present petition before this Court under Article 226 of the Constitution of India challenging the same order of detention.
Before the learned single Judge, on behalf of the respondents, learned Additional Government Pleader raised a preliminary objection about the maintainability of the petition and contended that successive petitions under Article 226 of the Constitution are not tenable and for that purpose, has placed reliance on the decision of this Court in the case of Chandrakant Ambalal Gandhi v. B.K. Jha Commissioner of Police Ahmedabad City and Ors. reported in 1987(1) GLH 109.
6. On the other hand, Mr. Rawal, learned Senior Advocate appearing for the petitioner submitted that a second petition is maintainable and requested the Court to refer the matter to a larger Bench, in view of the decision rendered in the case of Virumal Gurumukhdas Saheta v. Commissioner of Police, Baroda City and Ors. Special Civil Application No. 1562 of 1993 decided by a Division Bench (Coram: S.D. Dave & S.M. Soni, JJ.) on 22-12-1993.
7. Learned Counsel also relied on the observations made by the Apex Court in the case of Sarguja Transport Service v. S.T.A. Tribunal Gwalior .
The learned single Judge (Coram: J.M. Panchal, J.), by order dated 11th March 1996, directed the office to place this matter before a larger Bench after obtaining necessary orders from the Honourable the Acting Chief Justice. This matter has accordingly been placed before this Bench.
8. The learned Judge (Coram: J.M. Panchal, J.) has referred the following question to the larger Bench for its consideration:
Whether second petition challenging the order of detention on the same grounds or on fresh grounds, would be maintainable if earlier petition is withdrawn unconditionally without reserving liberty to the petitioner to institute second petition?
After taking us through various judgments, learned Counsel for the detenu contended that even if the earlier petition was withdrawn without liberty to file a fresh petition, successive petition is not barred on the ground of res judicata, and, therefore, the petition is required to be disposed of on merits.
9. Mr. Dave, learned A.G.P. submitted that even before the learned single Judge, It was pointed out that the decision in the case of Virumal Gurumukhdas Saheta v. Commissioner of Police, Baroda City and Ors. (supra) is not a binding decision, as the judgment is per incuriam. Learned A.G.P. relied on the judgments of this Court in the case of Ratilal Navik v. State as well as Chandrakant Ambalal Gandhi v. B.K. Jha, Commissioner of Police, Ahmedabad City (supra). He submitted that in view of the aforesaid decisions, there was no question to refer the matter to a larger Bench. He further submitted that in the case of Sarguja Transport Service v. S.T.A. Tribunal, Gwalior (supra), the Supreme Court (in paragraph 9) has observed:
…While the withdrawal of a writ petition filed in the High Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under Article 32 of the Constitution since such withdrawal does not amount to res judicata, the remedy under Article 226 of the Constitution should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission.
The Apex Court further observed that:
…We, however, make it clear that whatever we have stated in this order may not be considered as being applicable to a writ petition involving the personal liberty of an individual in which the petitioner prays for the issue of a writ in the nature of Habeas Corpus or seeks to enforce the fundamental right guaranteed under Article 21 of the Constitution since such a case stands on a different footing altogether. We, however, leave this question open.
Mr. Dave further submitted that in view of the decision of a Constitution Bench of the Apex Court in the case of Ghulam Sarwar v. Union of India , a Division Bench of this Court has held that successive writ petition even for Habeas Corpus is not maintainable, and, therefore, there was no question of a reference.
10. In the case of Ratilal Navik v. State (supra), a Special Criminal Application came up for hearing before the Division Bench of this Court, which by its judgment and order dated July 21, 1983, rejected the application upholding the order of detention. The petitioner again challenged the validity of the detention order stating that the grounds which are urged are fresh grounds. On behalf of the respondents, objection was raised that a second petition for a writ of Habeas Corpus is not competent since earlier petition stands dismissed by a Division Bench of this Court and as per the correct practice and legal principles, a second petition even for the sake of arguments that fresh grounds are there, is not competent and maintainable.
11. The Court’s attention was drawn to a Full Bench’s decision of the Bombay High Court in the case of In Re. Prahlad Krishna . An application for review of the order made by another Division Bench of the same Court rejecting the application of detenu made under Section 491 of the Criminal Procedure Code, 1898 was tendered. A Full Bench of the Bombay High Court in the case of Emperor v. Malhari reported in AIR 1948 Bom. 326 held that such an application is not competent. In view of this, it appears that another application was made by the petitioner for a writ of Habeas Corpus under Article 226 of the Constitution of India contending that successive Judges of the Court can hear the application and contended that it was the right of the petitioner that he should be heard by Judges other than the Judges who made that order. In the case of In Re Prahlad Krishna, (supra) the Full Bench of Bombay High Court, speaking through Chagla, C.J., after referring to the legal position in U.K., ruled as under:
6. Therefore, when Dixit and Shah, JJ, rejected the application of the applicant on 12-6-1950, it was the decision of the High Court and the question is whether it is open to the applicant to approach any other Judge of the High Court for a similar purpose notwithstanding the decision of the High Court to the contrary. When one analyses the situation, the effect of the argument of the applicant comes to this that the decision of the High Court on an application for a writ for the enforcement of the fundamental rights under Article 226 is subject to review by the High Court. It is clear that no Court has an inherent power of review. A power of review like a power of appeal must be conferred by statute. As far as the Criminal Procedure Code is concerned, no power of review is given to the High Court in criminal matters, and there is nothing in Article 226 which would induce us to hold that the Constitution has conferred a power upon the High Court of review in matters falling under that Article. The reason why no power of review is given in criminal case is obvious; it is to give a finality to a judgment of a criminal Court; and we see nothing in Article 226 which impliedly goes contrary to that fundamental principle which applies to all criminal trials and all criminal judgments. Indeed, Mr. Sule partly concedes the principle of finality because he admits that he would have no right to approach the same Judge who has once decided the application either under Section 491 or under Article 226. If the principle of finality applies to a Judge of this Court, it is difficult to understand why the principle of finality should not apply to the High Court as such. As I said before, under Article 226 it is the High Court that is dealing with applications under Article 226 and not a Judge or Judges of that High Court.
12. Whether the decision of the High Court on an application for a writ for enforcement of fundamental right under Article 226 of the Constitution is subject to the review was the question posed before the Full Bench of the Bombay High Court to which the High Court answered that there is no such power and observed that the power of review is like the power of appeal, and must be conferred by statute. No such power is available under the Code of Criminal Procedure and there is also nothing in Article 226 of the Constitution which could induce the Full Bench to hold that the Constitution has conferred a power upon the High Court to review any matters falling under that Article.
13. The Court was called upon to exercise the jurisdiction as the question of liberty of person was involved. The Full Bench did record that an appeal on the ground of individual liberty is difficult to resist, but it is unnecessary to be apprehensive as to the right of a citizen to enforce his fundamental rights since the decision of the High Court is final qua the High Court only and the Constitution has provided other remedies to the citizen; He has an independent right to approach the Supreme Court under Article 32. The Full Bench further held that the powers of the High Court and the Supreme Court in this respect are concurrent, and notwithstanding the refusal of the High Court to enforce the fundamental rights of the citizen, he can approach the Supreme Court in its primary jurisdiction. Apart from that, there is a right of appeal also. The net result of this decision is that under Article 226, a citizen has no right to present successive applications before other Judges.
14. This Court in the case of Ratial Navik v. State (supra) considered the above decision as well as the decisions of various other Courts including Madras High Court and the Full Bench of Allahabad High Court (AIR 1949 All. 147), which took a similar view. The Court also considered the contrary view expressed by the Calcutta High Court and also the views expressed by the Full Bench of Punjab High Court. Full Bench of the Punjab High Court ruled that no second petition for a writ of Habeas Corpus lies to the Court on a ground on which a similar petition has already been dismissed by the Court. However, a second such petition would lie when a fresh and a new ground of attack against the legality of detention or custody has arisen after the decision on the first petition and also where for some exceptionable reason a ground has been omitted in an earlier petition, in appropriate circumstances, the High Court will hear the second petition on such a ground for ends of justice. (See ).
15. In the above decision, the Full Bench of Punjab High Court clarified that the second petition would, however, not be competent on the same ground merely because an additional argument is available to urge with regard to the same.
16. In the case of P.L. Lakhanpal v. Union of India the petitioner preferred a fresh writ petition under Article 32 of the Constitution of India. The Apex Court ruled that in a subsequent writ petition, the petitioner cannot be permitted to reagitate the same contentions when no new circumstances have arisen justifying their reagitation.
17. In the case of Ghulam Sarwar v. Union of India (supra) there is a specific finding that successive petitions under Article 226 of the Constitution before the same Court is not competent while in other cases on which reliance is placed by Mr. Rawal, there is no reference of previous petitions under Article 226 of the Constitution. In the case of Ghulam Sarwar v. Union of India (supra), the Court held that: “When High Court functions as a Bench it speaks for the entire Court and, therefore, it cannot set aside the order made in a writ petition for a writ of Habeas Corpus earlier by another Division Bench and that this principle will not apply to different Courts.”
18. In the case of Kiritkumar v. Union of India , after considering the case of Ghulam Sarwar v. Union of India (supra), the Apex Court held as under in paragraph 10:
…The doctrine of finality of judgment or the principles of res judicata are founded on the basic principles that where a Court of competent jurisdiction has decided an issue, the same ought not allowed to be agitated again and again. Such a doctrine would be wholly inapplicable to cases where the two forums have separate and independent jurisdictions.
19. In the case of Ratilal Navik v. State (supra), therefore, this Court took the following view (paragraph 12) of the judgment:
It, therefore, appears to be settled legal position so far as this Court is concerned, that successive writ petitions are not permissible on the same grounds which have been urged, agitated and decided in the earlier petition by the High Court. The question which arises is whether such a writ petition on fresh grounds is competent or not. We find it difficult to persuade ourselves in view of the position unequivocally set out by the Supreme Court in Ghulam Sarwar’s case (supra) and also in view of the Full Bench’s decision of the Bombay High Court in In Re. Prahlad Krishna Kurna’s case (supra).
20. In the abovesaid case of Ratilal Navik v. State (supra), in paragraph 5 of the judgment, this Court also considered the judgment of the five Judges Bench of the Supreme Court in the case of Ghulam Sarwar v. Union of India (supra), and attention of the Court was also drawn to the decision in the cases of Lallubhai Jogibhai v. Union of India , Kiritkumar v. Union of India , Sunil Dutt v. Union of India for substantiating the ground that doctrine of constructive res judicata is not to be applied wherein an order of detention is challenged and the dismissal of a writ petition under Article 226 would not operate as a bar to the maintainability of a second petition under the said Article. Learned Advocate pointed out that the Apex Court in all the three cases was concerned with the successive writ petition filed under Article 32 of the Constitution. In paragraph 14 of the judgment, the Division Bench of this Court recorded reasons for disagreement with the submissions, which are as under:
The reasons for our disagreement are obvious. In the first place, the five Judges’ Full Bench decision in Ghulam Sarwar’s case (supra) in respect of the competency of such an application before the same High Court which has already heard and decided an earlier application on behalf of the same detenu against the same order, rules the field and stands as a good law since the decision has been approvingly referred to in the basic decision of the Supreme Court in Lallu Jogi’s case (supra) and Kiritkumar’s case (supra). Secondly, the Supreme Court in all the three cases was concerned with the successive writ petitions filed under Article 32 of the Constitution. Thirdly, in the decision in Ghulam Sarwar’s case (supra), no exception has been made by the Supreme Court while dealing with the competency of such an application before the same High Court that a second petition is competent on fresh grounds. The opinion expressed by the Supreme Court in the said ruling appears to us to be absolute. No decision of the Supreme Court has been pointed out to us which qualified or clarified the principles enunciated by the Supreme Court in Ghulam Sarwar’s case (supra).
In the said decision, this Court has also considered the Full Bench’s decision of Calcutta High Court, which expressed its view after considering the two decisions of the Supreme Court. The Court held (in paragraph 14) that:
…On the contrary, in Ghulam Sarwar’s case, the position has been already stated in absolute terms to the effect that when High Court functions as a Bench it speaks for the entire Court and, therefore, it cannot set aside the order made in a writ petition for a writ of Habeas Corpus earlier by another Division Bench and that this principle will not apply to different Courts.
21. Mr. Dave, relying on these decisions referred to hereinabove submitted That so far as this Court is concerned, the decision of the Court cannot be reviewed but if two different forums are provided and the other forum is empowered to decide the question irrespective of the fact that this Court has decided the same, the same question can be agitated before the other forum.
22. In the case of Chandrakant Ambalal Gandhi v. B.K. Jha, Commissioner of Police, Ahmedabad City (supra), the detenu’s petition was heard fully and when the matter reached the stage of judgment, on behalf of Mr. M.R. Barot, learned Advocate Mr. V.M. Barot sought permission from the Court to withdraw the petition with leave to file a fresh petition as contended by the petitioner before the Division Bench. However, the Court passed the order as under:
Learned Counsel Mr. M.R. Barot appearing for the petitioner concluded his arguments on 17th September 1985. Today, when we were about to start dictating the judgment, Mr. V.M. Barot for Mr. M.R. Barot seeks leave to withdraw this Special Criminal Application as he proposes to file a fresh petition raising certain additional contentions. The learned Public Prosecutor appearing for the respondent – State has no objection. Permission, is therefore, granted.
Petition disposed of as withdrawn. Rule discharged.
23. Before another Division Bench, when a fresh petition was filed, a preliminary objection was raised about the maintainability of the petition, as earlier petition was withdrawn and second petition was not competent. The learned Advocate appearing contended that the petition had been permitted by the earlier Bench to be withdrawn reserving liberty to file a fresh petition, challenging the same detention order. The respondent joined issue as to whether permission was so granted as claimed. Hence, the matter was referred to the earlier Bench for clarification. The earlier Bench clarified the position as under:
After hearing the learned Advocates for both the sides, it is clarified that when we disposed of Special Criminal Application No. 618 of 1985, permission to file a fresh petition was not specifically sought for. But Mr. Barot had stated to the Court that he wanted to file a fresh petition because his oral request to amend the petition was objected to by the other side. We had, therefore, merely recorded the statement made by Mr. Barot; and since no specific prayer was made, we had neither granted nor refused to grant permission to file a fresh petition. Within a few days thereafter, another petition, i.e., the present petition was filed challenging the same order of detention and we had thought it fit to issue Rule therein.
24. The Court in the circumstances was required to decide as to whether the preliminary objection is well founded or not. The Court accepted the preliminary contention. We need not refer to the decisions referred to in this case but we may just mention that the cases of Ratilal Navik v. State (supra), Ghulam Sarwar v. Union of India (supra), In Re. Prahlad Krishna Kurna (supra), Emperor v. Malhari (supra), Lakhanpal v. Union of India (supra), Kiritkumar v. Union of India (supra), Sunil Dutt v. Union of India (supra), Daryao v. State of U.P. , Workmen, Cochin Trust v. Board of Trustees , State of U.P. v. Nawab Hussain , Hoshnak Singh v. Union of India , and State of U.P. v. B.N. Singh referred in the said judgment.
25. In the case of Chandrakant Ambalal Gandhi v. B.K. Jha, Commissioner of Police, Ahmedabad City (supra), a contention was also raised that the earlier decision do not operate as a res judicata since the decision was not rendered on merits and the earlier petition stood disposed of as withdrawn. For this, reliance was placed by the petitioner on the decision of the Apex Court in the case of Daryao v. State of U.P. . In this case, the Apex Court has laid down that if a petition is dismissed as withdrawn, it cannot be a bar for a petition under Article 32 because in such a case, there is no decision on merits. The Apex Court did not express any opinion on the question as to whether repeated applications for Habeas Corpus would be competent under Constitution since the Court was not concerned in that case with such a question.
26. In the case of Sarguja Transport Service v. S.T.A. Tribunal, Gwalior (supra), the petitioner filed a writ petition under Articles 226/227 of the Constitution which came to be withdrawn on 4-10-1985 when it came up for hearing. The High Court passed the following order:
Shri Y.S. Dharmadhikari, learned Counsel for the petitioner seeks permission to withdraw the petition. He is permitted to do so. The petition is dismissed as withdrawn.
Later on, another petition was filed before the High Court and when it came up for hearing on 17-1-1986, at the conclusion of the hearing, the High Court passed the following order:
Shri P.R. Bhave for the petitioner heard on admission.
This writ petition is directed against the order of the State Transport Appellate Tribunal setting aside the grant in favour of the petitioner, and instead giving the permit to the respondent No. 3. The petitioner earlier filed writ petition No. M.P. 2945 of 1985 against the impugned order which was withdrawn on 4-10-1985. No second writ petition lies against the same order. The earlier petition was not withdrawn with permission to file a fresh petition. Besides, we do not find any merit in this petition. The Appellate Tribunal has granted the permit to the respondent No. 3 as he has been found superior to the petitioner. Besides, he being a practising lawyer could not be doing the transport business. Similar petition of other operators has already been dismissed by this Court.
Accordingly, the petition is dismissed summarily.
Aggrieved by the said order, the petitioner moved the Supreme Court. The Supreme Court, after considering Daryao v. State of U. P’s case (supra), held as under in paragraph 9 of the judgment:
…But we are of the view that the principle underlying Rule 1 of Order XXIII of the Code should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy as explained above. It would also discourage the litigant from indulging in Bench-hunting tactics. In any event, there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution once again. While the withdrawal of a writ petition filed in High Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under Article 32 of the Constitution since such withdrawal does not amount to res judicata, the remedy under Article 226 of the Constitution should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission. In the instant case, the High Court was right in holding that a fresh writ petition was not maintainable before it in respect of the same subject-matter since the earlier writ petition had been withdrawn without permission to file a fresh petition.
27. The Full Bench of the Bombay High Court in the case of In Re. Prahlad Krishna Kurna (supra) pointed out that the decision would be final qua the High Court, subject to other remedy which the Constitution provides for the citizen, who has an independent right to approach the Supreme Court under Article 32 since powers of both the Courts are concurrent. In the case of Ghulam Sarwar v. Union of India (supra) the Apex Court held that successive petitions for a writ of Habeas Corpus are not competent before the same Court. The learned single Judge while referring the present matter to a larger Bench has also considered the view expressed by the Apex Court in the case of Sarguja Transport Service v. S.T.A. Tribunal, Gwalior (supra), wherein the Apex Court has observed that:
…We, however, make it clear that whatever we have stated in this order may not be considered as being applicable to a writ petition involving the personal liberty of an individual in which the petitioner prays for the issue of a writ in the nature of Habeas Corpus or seeks to enforce the fundamental right guaranteed under Article 21 of the Constitution since such a case stands on a different footing altogether. We, however, leave this question open.
In that case, the Court was not called upon to decide the issue with regard to the matters pertaining Habeas Corpus and, therefore, it appears that the Court kept this question open.
28. In the case of Ghulam Sarwar v. Union of India (supra), the five Judges Bench of the Supreme Court held that successive petition before the same Court is not competent. Therefore, in view of the decision of the Apex Court in the case of Ghulam Sarwar v. Union of India (supra) as followed by this Court in two other cases referred to above, successive petitions even for Habeas Corpus are not maintainable.
29. Mr. Rawal, learned Counsel drew our attention to a decision of the Bombay High Court in the case of Kochu Krishnan v. State of Maharashtra reported in 1987 Cri. LJ 1441 for persuading us to take a view that second petition is maintainable. He drew our attention to paragraph 7 of the judgment and submitted that the decision of this Court in the case of Ratilal Navik v. State (supra) was considered. The Court also considered the decision in the case of In Re. Prahlad Krishna Kurna (supra) and Malhari Ramaji Chikate v. Emperor AIR 1948 Bom. 326. The Bombay High Court, in paragraph 9 of the judgment has considered the case of Ghulam Sarwar v. Union of India (supra). The Court has also considered the judgment in the case of Lallubhai Jogibhai v. Union of India and has quoted paragraph 9 of the judgment, and in paragraph 11, the Bombay High Court held that:
Following the law laid down by the Supreme Court in Lallubhai’s case (supra) atleast three Division Benches of this Court held that the second petition for Habeas Corpus is maintainable on fresh grounds…. In view of the series of judgments of this Court, we are unable to agree with the view taken up by the Division Bench of the Gujarat High Court.
30. Mr. Raval, learned Counsel appearing for the petitioner submitted that the Divisions Bench of Bombay High Court has not followed the decision of the Full Bench of the Bombay High Court in view of Ghulam Sarwar v. Union of India’s case (supra) and Lallubhai’s case (supra). Mr. Rawal, learned Advocate could not point out the reasons from the judgment as to why the Division Bench has taken a different view than the Division Bench of this Court in the case of Ratilal Navik v. State (supra) which, after considering the decision of the Apex Court, has held that successive writ petition is not maintainable. We do not find any reason to disturb the view expressed by this Court in the case of Chandrakant Ambalal Gandhi v. B.K. Jha, Commissioner of Police, Ahmedabad City, (supra) following the case of Ghulam Sarwar v. Union of India (supra).
Mr. Rawal submitted that Delhi High Court as well as Allahabad High Court has taken the view that successive petition is maintainable. Therefore, in his submission, this Court should take the same view that successive petition is maintainable, more particularly when it involves liberty of an individual. We are unable to agree with this submission in view of the opinion expressed by the Division Bench and we are in agreement with the said view. Nothing has been pointed out to us which would induce us to take a different view than the earlier view taken by a Division Bench of this Court, following the law laid down by the larger Bench of the Apex Court.
31. Mr. Dave submitted that the decision rendered by the Division Bench in the case of Virumal Gurumukhdas Saheta v. Commissioner of Police, Baroda City and Ors. (supra) is a decision which has not considered two earlier Division Bench decisions, and, therefore, the judgment is per incuriam. In that case, a preliminary objection was raised about the maintainability of the petition by pointing out that an earlier petition was filed. The Court’s attention was drawn to the case of Lallu Jogi (supra) for persuading that the second petition is maintainable. From the judgment, it appears that the attention of the Court was not drawn to the decisions of this Court in the cases of Ratilal Navik v. State (supra) and Chandrakant Ambalal Gandhi v. B.K. Jha, Commissioner of Police Ahmedabad City (supra) and that of the Apex Court in the case of Ghulam Sarwar v. Union of India (supra). Earlier, the Division Bench of this Court, after considering the law declared by the Supreme Court held that successive writ petition is not maintainable. The later decision in the case of Virumal Gurumukhdas Saheta v. Commissioner of Police, Baroda City and Ors. (supra) is, therefore, per incuriam. Mr. Dave submitted that a decision can be said to be given per incuriam when the Court has acted in ignorance of a previous decision of its own or when the Court has acted in ignorance of a decision of the Supreme Court. He submitted that the doctrine of precedence is to make the law declared by the Supreme Court binding to all the Courts in the country and the decision of the High Court binding to the High Court itself. He relied on the judgment of the Apex Court in the case of Punjab Land Devi. & Reclamation Corpn. Ltd. v. Presiding Officer Labour Court . In paragraph 41 of the judgment, the Apex Court held as under:
…In England a decision is said to be given per incuriam when the Court has acted in ignorance of a previous decision of its own or of a Court of co-ordinate jurisdiction which covered the case before it, or when it has acted in ignorance of a decision of the House of Lords. In the former case, it must decide which decision to follow, and in the latter, it is bound by the decision of the House of Lords. It has been said that the decision of the House of Lords mentioned above, refers to a decision subsequent to that of the Court of Appeal. However, “a prior decision of the House of Lords inconsistent with the decision of the Court of Appeal, but which was not cited to the Court of Appeal will make the later decision of the Court of Appeal of no value as given per incuriam.” But if the prior decision had been cited to the Court of Appeal and that Court has misinterpreted a previous decision of the House of Lords, the Court of Appeal must follow its previous decision and leave the House to rectify the mistake. In Halsbury’s Laws of England, (4th Edn., Vol. 10, para 745) it has been said:
While former decisions of the House are normally binding upon it, the House will depart from one of its own previous decisions when it appears right in the interests of justice and of the proper development of the law to do so. Cases where the House may reconsider its own previous decisions are those involving broad issues of justice or public policy and questions of legal principle. Only in rare cases will the House reconsider questions of construction of statutes or other documents. The House is not bound to follow a previous case merely because it is indistinguishable on the facts.
32. Mr. Dave has submitted that it was pointed out to the learned single Judge that the judgment relied upon is per incuriam and is not a binding decision. He submitted that in view of the decision of the larger Bench consisting of five Judges in the case of Ghulam Sarwar v. Union of India (supra), a Division Bench of this Court held that successive writ petition is not maintainable even if the writ petition is withdrawn without reserving liberty to file a fresh petition. He further submitted that the Division Bench expressed the view after considering subsequent judgments of the Honourable Supreme Court. In the later judgment in the case of Sarguja Transport Service v. S.T.A. Tribunal Gwalior (supra), the question was kept open. Mr. Dave submitted that the decision in the case of Ghulam Sarwar v. Union of India (supra) is by a five Judges Bench while in other cases on which reliance is placed by Mr. Rawal are decisions of Division Bench consisting of two Judges. He submitted that in the case of Ghulam Sarwar v. Union of India (supra), there is a specific finding that successive petitions under Article 226 of the Constitution before the same Court is not competent while in other cases on which reliance is placed by Mr. Rawal, there is no reference of previous petitions under Article 226 of the Constitution.
33. With regard to finality of judgment, Mr. Dave drew our attention to the judgment Kiritkumar v. Union of India, (supra) and submitted that it is not open to agitate the question again and again. He submitted that the Apex Court in the case of State of U.P. v. Ram Chandra held as under in paragraph 22:
It is also to be borne in mind that even in cases where a High Court finds any conflict between the views expressed by larger and smaller Benches of this Court, it cannot disregard or skirt the views expressed by the larger Benches. The proper course for a High Court in such a case, as observed by this Court in Union of India v. K.S. Subramanian Civil Appeal No. 212 of 1975 decided on July 30, 1976) to which one of us was a party is to try to find out and follow the opinion expressed by larger Benches of this Court in preference to those expressed by smaller Benches of the Court which practice, hardened as it has into Rule of law is followed by this Court itself.
34. He submitted that in view of this, when there is a view expressed by a larger Bench of the Apex Court on the point about maintainability of successive petitions, the petitioner cannot take shelter of a decision of the Apex Court delivered by smaller Benches and that too, under Article 32 and not under Article 226 of the Constitution.
35. In view of the settled legal position, the decision delivered by the Division Bench of this Court in the case of Virumal Gurumukhdas Saheta v. Commissioner of Police, Baroda City and Ors. (supra) is a judgment per incuriam and is not a binding decision in view of the prior decision referred earlier.
36. In view of the above discussion, we hold that a second petition challenging the order of detention on the same grounds or on fresh grounds is not maintainable if an earlier petition is withdrawn unconditionally without reserving liberty to the petitioner to initiate a second petition. We, therefore, answer the question referred in negative. The matter be, therefore, now placed before the appropriate Court.