Full Judgment Text
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CASE NO.:
Appeal (civil) 512 of 2008
PETITIONER:
Homfraygunj Martyrs Memorial Committee
RESPONDENT:
Union of India & Ors.
DATE OF JUDGMENT: 18/01/2008
BENCH:
TARUN CHATTERJEE & DALVEER BHANDARI
JUDGMENT:
J U D G M E N T
O R D E R
Arising out of S.L.P. (C) 2523 of 2007)
1. Delay of 14 days in filing this Special Leave Petition is
condoned.
2. Leave granted.
3. This appeal is directed against the final order dated
20th of July, 2006 passed in Writ Petition No. 93 of 2006 and
also the order dated 18th of August, 2006 in Review Petition
No. 12 of 2006 passed by the Division Bench of the High
Court at Calcutta, Circuit Bench at Port Blair, whereby the
High Court had dismissed the Writ Application as well as the
Review Petition by the aforesaid two orders.
4. Having heard the learned counsel for the parties and
after going through the impugned orders, we are of the view
that the order of the High Court, dismissing the Writ
Application on the ground of maintainability of the same,
cannot be sustained. It appears that an application under
Article 32 of the Constitution was filed before this Court, which
came to be registered as W.P. (C) 141 of 2006, which was
dismissed as withdrawn. The order of this Court runs as
under:
\023The learned senior counsel appearing for the
petitioner seeks leave of the Court to withdraw this
Writ Petition. Permission granted. The Writ Petition
is allowed to be withdrawn and is dismissed as
such.\024
5. After the Writ Petition under Article 32 of the
Constitution was withdrawn, a fresh Writ Application was filed
in the High Court, which was dismissed on the ground that
since the point taken in the Writ Petition was already urged
before this Court and the Writ Application under Article 32 of
the Constitution of India was withdrawn, there could not be
any question to entertain the Writ Application. A Review
Application was filed, which was also dismissed by the High
Court and the appellants have filed this appeal against the
aforesaid two orders.
6. In our view, the High Court had gone wrong in
dismissing the Writ Application on the ground that it was not
maintainable after the Writ Petition under Article 32 of the
Constitution was withdrawn. It is now well settled that when a
Writ Petition filed under Article 32 of the Constitution is
dismissed as withdrawn, that would not take away the right of
the Writ Petitioner to move a fresh writ application under
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Article 226 of the Constitution for the same relief. That being
the position, we have no other alternative but to set aside the
impugned order, including the order passed in the Review
petition and restore the writ application for decision afresh in
accordance with law. We request the High Court to decide
the writ application after giving hearing to the parties and after
passing a reasoned and speaking order within four months
from the date of supply of a copy of this order to the High
Court.
7. The impugned orders, therefore, are set aside. The
appeal is allowed to the extent indicated above. There will be
no order as to costs.
8. We, however, make it clear that we have not gone
into the merits of the Writ Petition, which shall be decided by
the High Court in accordance with law.