High Court · 2025

1. Heard Sri Surya Prakash, learned counsel for the petitioner as well as learned Standing Counsel for respondent nos. 1 to 5 and Sri Mohammad Ehtesham Khan, learned counsel has received notice on behalf of respondent nos. 6 and 7. Sri Himanshu Shekhar, Advocate has filed vakalatnama on behalf of respondent nos. 8, 9 and 12, same is taken on record.

2. By means of present writ petition the petitioner has assailed the validity of order dated 16.11.2024, passed by the District Magistrate, Sitapur as well as consequential order dated 28.11.2024, passed by the District Supply Officer, Sitapur.

3. It has been submitted by learned counsel for the petitioner that the petitioner was allotted petrol pump to be installed and run on Gata No. 378, situated at Village - Ataria, Pargana - Manwa, Tehsil - Sidhauli, District - Sitapur. The petitioner had taken lease of Gata No. 378 from its tenure holders namely Rohit Vikram Singh, Jitendra Vikaram Singh and others and on the basis of said lease deed petitioner had applied for no objection certificate from the District Magistrate, which was duly granted by the District Magistrate, Sitapur on 10.01.1996, permitting the petitioner to install and run petrol pump on Gata No. 378, situated at Village - Ataria, Pargana - Manwa, Tehsil - Sidhauli, District - Sitapur, measuring 45 x 37 meters. On the basis of no objection certificate granted by the District Magistrate, Sitapur the petrol pump was installed by the Bharat Petroleum corporation Ltd. and was run by the petitioner in the name and style of M/s Shiv Filling Station.

4. It is next submitted by learned counsel for the petitioner that certain objections were raised by the private respondents, who are lease holders of Gata No. 377, alleging that the petrol pump has been installed on Gata No. 377 area 0.064 hectares rather then on Gata No. 378. It has been submitted that the said matter was duly inquired into by the Sub Divisional Magistrate, Sidhauli, Sitapur and it was determined that infact petitioner had wrongly installed the said petrol pump on Gata No. 377, whereas in the proceedings for allotment were undertaken pertaining to Gata No. 378. On 25.06.2007, the Sub Divisional Magistrate, Sidhauli had directed the petitioner to vacate the said land inasmuch as, the said land had been given on patta to the complainant and it was further recorded that the petitioner does not have any right to install petrol pump on the said land.

5. The petitioner continued to operate the petrol pump on the said land and it is only in 2024 i.e. after eight years the petitioner filed a writ petition being Writ Petition No. 11296 of 2024, assailing the order of District Magistrate, wherein he had cancelled the no objection certificate dated 10.01.1996 which was granted to the petitioner, by means of impugned order dated 16.11.2024.

6. This Court decided the said matter by means of order judgment and order dated 07.01.2025. This Court was of the view that it has to be determined as to whether no objection certificate granted by the District Magistrate for establishment of retail outlet on Gata No. 378 was valid and correct or not and if it was not, whether the District Magistrate could have recalled the no objection certificate which was granted on 10.01.1996, by order dated 16.11.2024. After considering the entire issue this Court was of the view that the matter pertains to demarcation and the writ petition was disposed of by granting liberty to the lessors who are the tenure holders of Gata No. 378 to move an application for demarcation of the said Gata.

7. Learned counsel for the petitioner has further submitted that no application for demarcation had been filed by the lessors of the said land and has again approached this Court by means of present writ petition assailing the validity of impugned order dated 16.11.2024, passed by the District Magistrate, Sitapur.

8. There is no material or document annexed by the petitioner to indicate that the petrol pump was infact installed on Gata No. 378. From the findings recorded by the District Magistrate and repeated complaints made by the private respondents, clearly indicate that petitioner had infact installed the petrol pump on Gata No. 377.

9. With regard to the fact that petitioner has earlier approached this Court challenging the order dated 16.11.2024 and same has been assailed in the present writ petition. It is noticed that according to Chapter XXII Rule 7 of the Allahabad High Court Rules, 1952, no second application for the same facts is maintainable. It is no doubt that principle of resjudicata applies only when the Court decides a matter on merits. The present case is not related to principle of resjudicata and same is related to public policy.

10. The relevant provisions of the Allahabad High Court Rules, 1952 and Code of Civil Procedure, 1908, in this regard are : (i) Rule 7 Chapter XXII of the Rules of the Court, 1952, (ii) Order 23 Rule 1 of Code of Civil Procedure, 1908.

11. The aforesaid provisions are quoted herein below for ready reference :- Chapter XXII Rule 7 No second application on same facts.- Where an application has been rejected, it shall not be competent for the applicant to make a second application on the same facts. Order XXIII Rule 1 Withdrawal of suit or abandonment of part of claim- (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim: Provided that where the plaintiff is a minor or other person to whom the provisions contained in Rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court. (2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other, person. (3) Where the Court is satisfied,- (a)that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject- matter of such suit or such part of the claim. (4) Where the plaintiff- (a) abandons any suit or part of claim under sub-rule (1), or (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. (5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiff.] [1-A.When transposition of defendants as plaintiffs may be permitted.?Where a suit is withdrawn or abandoned by a plaintiff under rule 1, and a defendant applies to be transposed as a plaintiff under rule 10 of Order I the Court shall, in considering such application, have due regard to the question whether the applicant has a substantial question to be decided as against any of the other defendants.]

12. Rule 7 of the Chapter XXII provides that "where an application has been rejected it shall not be competent for an applicant to make second application on the same facts. According to the principles envisaged in order 23, Rule 1, second suit is not maintainable if liberty has not been granted for instituting the same."

13. No doubt, that the principle of res-judicata would only apply where the Court decides the issues on merits but the present case is not related with the principles of res-judicata and in fact is related to the public policy and principles flowing from Rule 1 of Order 23 of CPC as well as provisions of Rule 7 of Chapter XXII of Rules of the Court, 1952. According to principles borne out from the above quoted provisions, the second application or suit or writ petition would not be maintainable in absence of liberty to institute afresh.

14. The principle of maintainability of the second writ petition, if the liberty has not been granted by the Court for filing the second writ petition has been considered by the Hon'ble Apex Court as well as by this Court and it has been held that second writ petition on the same issue, is not maintainable if the liberty is not granted by the Court for filing a fresh writ petition.

15. In the case of Sarguja Transport Service vs. State Transport Appellate Tribunal, Gwalior and others, AIR 1987 SC 88 the Hon'ble Apex Court after considering the principles envisaged in order XXIII Rule 1 of CPC in para 9 has held that second writ petition, if filed without the permission/liberty to file afresh, would not be maintainable. The Para 9 of the judgment is quoted below:- "The point for consideration is whether a petitioner after withdrawing a writ petition filed by him in the High Court under Article 226 of the Constitution of India without the permission to institute a fresh petition can file a fresh writ petition in the High Court under that Article. On this point the decision in Daryao's case is of no assistance. 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 a 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 of India since such withdrawal does not amount to res judicata, the remedy under Article 226 of the Constitution of India 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 fight 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. 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 fight guaranteed under Article 21 of the Constitution since such a case stands on a different footing altogether. We, however leave this question open."

16. The preposition settled is clearly in favour of preliminary objection raised on behalf of respondents. Principle of maintainability of second writ petition, if liberty is not granted by the Court for filing second writ petition has been considered by the Hon'ble Apex Court as well as this Court, which are discussed herein below.

17. The Hon'ble Supreme Court in the case of Avinash Nagra vs. Navodaya Vidyalaya Samiti and others, (1997) 2 SCC 534, in paragraph 13, has held that where the first writ petition challenging the order of termination of service was withdrawn without grant of liberty by the Court to file a second writ petition, the second writ petition for that very purpose would attract the principle of constructive res judicata and would, therefore, not be maintainable.

18. The Full Bench of this Court in Surya Deo Mishra Vs. State of U.P. through Chief Secretary and others (2006) IILLJ 583 All, has observed as under :- "The rules of this Court clearly prohibit such course of action. Rule 7 of Chapter XXII of the Allahabad High Court Rules 1952 provides that, where an application has been rejected, it shall not be competent for the applicant to move a second application on the same fact. Even if the petitioner has withdrawn the earlier writ petition without a prayer to file a fresh writ petition, a second writ petition for the same cause of action is not maintainable. This cardinal rule of public policy to discourage multiplicity of proceedings, also incorporated in Order 2 Rule 2 of the Code of Civil Procedure, the principles whereof are also applicable to writ proceedings, is too well settled to merit any elaboration. For this, it will be sufficient to refer to the judgments in B.N. Singh v. State of U.P. 1979 ALJ 1184 Dr. Ramji Dwivedi v. State of and Ors. equivalent to 1983 UPLBEC 426; Niranjan Rai v.District Inspector of Schools (1991) 2 UPLBEC 1416; Sahib Ram v. State of Haryana ; Harish Chandra Srivastava v. State of U.P. and Ors. (1967) 3 UPLBEC 1840 (DB); Keshav Tripathi v. State of U.N.P. and Ors. 1997 ALJ 28 (DB) and S.L. Bathla v. State Bank of India (1999) 1 UPLBEC 233. This rule was succinctly explained in State of U.P. and Anr. v. Labh Chand by the Apex Court in paragraph 20 as follows:-

20. When a Judge of Single Judge Bench of a High Court is required to entertain a second writ petition of a person on a matter, he cannot, as a matter of course, entertain such petition, if an earlier writ petition of the same person on the same matter had been dismissed already by another Single Judge Bench or a Division Bench of the same High Court, even if such dismissal was on the ground of laches or on the ground of non availing of alternative remedy. Second writ petition cannot be so entertained not because the learned Single Judge has no jurisdiction to entertain the same, but because entertaining of such a second writ petition would render the order of the same court dismissing the earlier writ petition redundant and nugatory, although not reviewed by it in exercise of the recognized power. Besides, if a learned Single Judge could entertain a second writ petition of a person respecting a matter on which his first writ petition was dismissed in limine by another learned Single Judge or a Division Bench of the same court, it would encourage an unsuccessful writ petition to go on filing writ petition after writ petition in the same matter in the same High Court, and have it brought up for consideration before one Judge and another. Such a thing, if is allowed to happen, it could result in giving full scope and encouragement to an unscrupulous litigant to abuse the process of the High Court exercising its writ jurisdiction under Article 226 of the Constitution in that any order of any bench of such court refusing to entertain a writ petition could be ignored by him with impunity and relief sought in the same matter by filing a fresh writ petition. This would only lead to introduction of disorder, confusion and chaos relating to exercise of writ jurisdiction by Judges of the High Court for there could be no finality for an order of the court refusing to entertain a writ petition. It is why, the rule of judicial practice and procedure that a second writ petition shall not be entertained by the High Court on the subject matter respecting which the first writ petition of the same person was dismissed by the same court even if the order of such dismissal was in limine, be it on the ground of laches or on the ground of non-exhaustion of alternative remedy, has come to the accepted and followed as salutary rule in exercise of writ jurisdiction of courts."

19. In sum and substance, from the entire material placed before us, it seems that at the time of making application for grant of retail outlet of petrol pump the petitioner disclosed that he is the lease holder with regard to Gata No. 378 and it is in respect of the said plot of land that he was granted no objection certificate by the District Magistrate, Sitapur and was also granted permission to construct and operate retail outlet over the said plot. Infact the said retail outlet was constructed over Gata No. 377 rather then Gata No. 378 and this facts is clearly determined by the Sub Divisional Magistrate, Sidhauli, Sitapur, when he directed eviction of petitioner from Gata No. 377.

20. Even if we agree with the contention of the petitioner, for the first time he has filed writ petition in 2024 i.e. 17 years after passing of order dated 23.06.2007. Meanwhile, this Court has been informed that the several first information reports were lodged against various authorities under the SC/ST Act. There is overwhelming material on record indicating that the petitioner has installed the petrol pump retail outlet over Gata No. 377, on which he does not have any right to occupy and accordingly, it seems that retail outlet has been illegally built on Gata No. 377.

21. We find that the prayer made in the present writ petition assailing the validity of order dated 16.11.2024, passed by the District Magistrate was also subject matter of previous writ petition being Writ Petition No. 11296 of 2024, which was disposed of by granting liberty to the lessors to move appropriate application for demarcation. Once the said order has been assailed before this Court and judgment in this regard has been passed, same order could not be challenged subsequently in another writ petition as the same is barred by constructive resjudicata as enshrined under Order 2 Rule 2(3) of the C.P.C. as well as under Chapter XXII Rule 7 of the Allahabad High Court Rules, 1952.

22. Accordingly, this Court would not interfere with the impugned order dated 16.11.2024, which was subject matter of previous writ petition. Accordingly, in this regard prayer no. 1 made by the petitioner is rejected.

23. The petitioner has no right over Gata No. 377, but it has been submitted that lease deed which was executed in favour of petitioner is still in existence and in case respondent no. 6 intents to continue the retail outlet, same can be shifted to Gata No. 378, but the same would be at the discretion of the concerned Oil Company and accordingly, liberty is granted to the petitioner to move suitable application before respondent no. 6, which may be considered and disposed of by them in accordance with law.

24. So far as present writ petition is concerned, no interference can be made and to that extent, present writ petition stands dismissed. Order Date :- 23.6.2025 A. Verma (Arun Kumar Singh Deshwal, J.) (Alok Mathur, J.) ANURAG VERMA High Court of Judicature at Allahabad, Lucknow Bench

1. Heard Sri Surya Prakash, learned counsel for the petitioner as well as learned Standing Counsel for respondent nos. 1 to 5 and Sri Mohammad Ehtesham Khan, learned counsel has received notice on behalf of respondent nos. 6 and 7. Sri Himanshu Shekhar, Advocate has filed vakalatnama on behalf of respondent nos. 8, 9 and 12, same is taken on record.

2. By means of present writ petition the petitioner has assailed the validity of order dated 16.11.2024, passed by the District Magistrate, Sitapur as well as consequential order dated 28.11.2024, passed by the District Supply Officer, Sitapur.

3. It has been submitted by learned counsel for the petitioner that the petitioner was allotted petrol pump to be installed and run on Gata No. 378, situated at Village - Ataria, Pargana - Manwa, Tehsil - Sidhauli, District - Sitapur. The petitioner had taken lease of Gata No. 378 from its tenure holders namely Rohit Vikram Singh, Jitendra Vikaram Singh and others and on the basis of said lease deed petitioner had applied for no objection certificate from the District Magistrate, which was duly granted by the District Magistrate, Sitapur on 10.01.1996, permitting the petitioner to install and run petrol pump on Gata No. 378, situated at Village - Ataria, Pargana - Manwa, Tehsil - Sidhauli, District - Sitapur, measuring 45 x 37 meters. On the basis of no objection certificate granted by the District Magistrate, Sitapur the petrol pump was installed by the Bharat Petroleum corporation Ltd. and was run by the petitioner in the name and style of M/s Shiv Filling Station.

4. It is next submitted by learned counsel for the petitioner that certain objections were raised by the private respondents, who are lease holders of Gata No. 377, alleging that the petrol pump has been installed on Gata No. 377 area 0.064 hectares rather then on Gata No. 378. It has been submitted that the said matter was duly inquired into by the Sub Divisional Magistrate, Sidhauli, Sitapur and it was determined that infact petitioner had wrongly installed the said petrol pump on Gata No. 377, whereas in the proceedings for allotment were undertaken pertaining to Gata No. 378. On 25.06.2007, the Sub Divisional Magistrate, Sidhauli had directed the petitioner to vacate the said land inasmuch as, the said land had been given on patta to the complainant and it was further recorded that the petitioner does not have any right to install petrol pump on the said land.

5. The petitioner continued to operate the petrol pump on the said land and it is only in 2024 i.e. after eight years the petitioner filed a writ petition being Writ Petition No. 11296 of 2024, assailing the order of District Magistrate, wherein he had cancelled the no objection certificate dated 10.01.1996 which was granted to the petitioner, by means of impugned order dated 16.11.2024.

6. This Court decided the said matter by means of order judgment and order dated 07.01.2025. This Court was of the view that it has to be determined as to whether no objection certificate granted by the District Magistrate for establishment of retail outlet on Gata No. 378 was valid and correct or not and if it was not, whether the District Magistrate could have recalled the no objection certificate which was granted on 10.01.1996, by order dated 16.11.2024. After considering the entire issue this Court was of the view that the matter pertains to demarcation and the writ petition was disposed of by granting liberty to the lessors who are the tenure holders of Gata No. 378 to move an application for demarcation of the said Gata.

7. Learned counsel for the petitioner has further submitted that no application for demarcation had been filed by the lessors of the said land and has again approached this Court by means of present writ petition assailing the validity of impugned order dated 16.11.2024, passed by the District Magistrate, Sitapur.

8. There is no material or document annexed by the petitioner to indicate that the petrol pump was infact installed on Gata No. 378. From the findings recorded by the District Magistrate and repeated complaints made by the private respondents, clearly indicate that petitioner had infact installed the petrol pump on Gata No. 377.

9. With regard to the fact that petitioner has earlier approached this Court challenging the order dated 16.11.2024 and same has been assailed in the present writ petition. It is noticed that according to Chapter XXII Rule 7 of the Allahabad High Court Rules, 1952, no second application for the same facts is maintainable. It is no doubt that principle of resjudicata applies only when the Court decides a matter on merits. The present case is not related to principle of resjudicata and same is related to public policy.

10. The relevant provisions of the Allahabad High Court Rules, 1952 and Code of Civil Procedure, 1908, in this regard are : (i) Rule 7 Chapter XXII of the Rules of the Court, 1952, (ii) Order 23 Rule 1 of Code of Civil Procedure, 1908.

11. The aforesaid provisions are quoted herein below for ready reference :- Chapter XXII Rule 7 No second application on same facts.- Where an application has been rejected, it shall not be competent for the applicant to make a second application on the same facts. Order XXIII Rule 1 Withdrawal of suit or abandonment of part of claim- (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim: Provided that where the plaintiff is a minor or other person to whom the provisions contained in Rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court. (2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other, person. (3) Where the Court is satisfied,- (a)that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject- matter of such suit or such part of the claim. (4) Where the plaintiff- (a) abandons any suit or part of claim under sub-rule (1), or (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. (5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiff.] [1-A.When transposition of defendants as plaintiffs may be permitted.?Where a suit is withdrawn or abandoned by a plaintiff under rule 1, and a defendant applies to be transposed as a plaintiff under rule 10 of Order I the Court shall, in considering such application, have due regard to the question whether the applicant has a substantial question to be decided as against any of the other defendants.]

12. Rule 7 of the Chapter XXII provides that "where an application has been rejected it shall not be competent for an applicant to make second application on the same facts. According to the principles envisaged in order 23, Rule 1, second suit is not maintainable if liberty has not been granted for instituting the same."

13. No doubt, that the principle of res-judicata would only apply where the Court decides the issues on merits but the present case is not related with the principles of res-judicata and in fact is related to the public policy and principles flowing from Rule 1 of Order 23 of CPC as well as provisions of Rule 7 of Chapter XXII of Rules of the Court, 1952. According to principles borne out from the above quoted provisions, the second application or suit or writ petition would not be maintainable in absence of liberty to institute afresh.

14. The principle of maintainability of the second writ petition, if the liberty has not been granted by the Court for filing the second writ petition has been considered by the Hon'ble Apex Court as well as by this Court and it has been held that second writ petition on the same issue, is not maintainable if the liberty is not granted by the Court for filing a fresh writ petition.

15. In the case of Sarguja Transport Service vs. State Transport Appellate Tribunal, Gwalior and others, AIR 1987 SC 88 the Hon'ble Apex Court after considering the principles envisaged in order XXIII Rule 1 of CPC in para 9 has held that second writ petition, if filed without the permission/liberty to file afresh, would not be maintainable. The Para 9 of the judgment is quoted below:- "The point for consideration is whether a petitioner after withdrawing a writ petition filed by him in the High Court under Article 226 of the Constitution of India without the permission to institute a fresh petition can file a fresh writ petition in the High Court under that Article. On this point the decision in Daryao's case is of no assistance. 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 a 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 of India since such withdrawal does not amount to res judicata, the remedy under Article 226 of the Constitution of India 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 fight 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. 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 fight guaranteed under Article 21 of the Constitution since such a case stands on a different footing altogether. We, however leave this question open."

16. The preposition settled is clearly in favour of preliminary objection raised on behalf of respondents. Principle of maintainability of second writ petition, if liberty is not granted by the Court for filing second writ petition has been considered by the Hon'ble Apex Court as well as this Court, which are discussed herein below.

17. The Hon'ble Supreme Court in the case of Avinash Nagra vs. Navodaya Vidyalaya Samiti and others, (1997) 2 SCC 534, in paragraph 13, has held that where the first writ petition challenging the order of termination of service was withdrawn without grant of liberty by the Court to file a second writ petition, the second writ petition for that very purpose would attract the principle of constructive res judicata and would, therefore, not be maintainable.

18. The Full Bench of this Court in Surya Deo Mishra Vs. State of U.P. through Chief Secretary and others (2006) IILLJ 583 All, has observed as under :- "The rules of this Court clearly prohibit such course of action. Rule 7 of Chapter XXII of the Allahabad High Court Rules 1952 provides that, where an application has been rejected, it shall not be competent for the applicant to move a second application on the same fact. Even if the petitioner has withdrawn the earlier writ petition without a prayer to file a fresh writ petition, a second writ petition for the same cause of action is not maintainable. This cardinal rule of public policy to discourage multiplicity of proceedings, also incorporated in Order 2 Rule 2 of the Code of Civil Procedure, the principles whereof are also applicable to writ proceedings, is too well settled to merit any elaboration. For this, it will be sufficient to refer to the judgments in B.N. Singh v. State of U.P. 1979 ALJ 1184 Dr. Ramji Dwivedi v. State of and Ors. equivalent to 1983 UPLBEC 426; Niranjan Rai v.District Inspector of Schools (1991) 2 UPLBEC 1416; Sahib Ram v. State of Haryana ; Harish Chandra Srivastava v. State of U.P. and Ors. (1967) 3 UPLBEC 1840 (DB); Keshav Tripathi v. State of U.N.P. and Ors. 1997 ALJ 28 (DB) and S.L. Bathla v. State Bank of India (1999) 1 UPLBEC 233. This rule was succinctly explained in State of U.P. and Anr. v. Labh Chand by the Apex Court in paragraph 20 as follows:-

20. When a Judge of Single Judge Bench of a High Court is required to entertain a second writ petition of a person on a matter, he cannot, as a matter of course, entertain such petition, if an earlier writ petition of the same person on the same matter had been dismissed already by another Single Judge Bench or a Division Bench of the same High Court, even if such dismissal was on the ground of laches or on the ground of non availing of alternative remedy. Second writ petition cannot be so entertained not because the learned Single Judge has no jurisdiction to entertain the same, but because entertaining of such a second writ petition would render the order of the same court dismissing the earlier writ petition redundant and nugatory, although not reviewed by it in exercise of the recognized power. Besides, if a learned Single Judge could entertain a second writ petition of a person respecting a matter on which his first writ petition was dismissed in limine by another learned Single Judge or a Division Bench of the same court, it would encourage an unsuccessful writ petition to go on filing writ petition after writ petition in the same matter in the same High Court, and have it brought up for consideration before one Judge and another. Such a thing, if is allowed to happen, it could result in giving full scope and encouragement to an unscrupulous litigant to abuse the process of the High Court exercising its writ jurisdiction under Article 226 of the Constitution in that any order of any bench of such court refusing to entertain a writ petition could be ignored by him with impunity and relief sought in the same matter by filing a fresh writ petition. This would only lead to introduction of disorder, confusion and chaos relating to exercise of writ jurisdiction by Judges of the High Court for there could be no finality for an order of the court refusing to entertain a writ petition. It is why, the rule of judicial practice and procedure that a second writ petition shall not be entertained by the High Court on the subject matter respecting which the first writ petition of the same person was dismissed by the same court even if the order of such dismissal was in limine, be it on the ground of laches or on the ground of non-exhaustion of alternative remedy, has come to the accepted and followed as salutary rule in exercise of writ jurisdiction of courts."

19. In sum and substance, from the entire material placed before us, it seems that at the time of making application for grant of retail outlet of petrol pump the petitioner disclosed that he is the lease holder with regard to Gata No. 378 and it is in respect of the said plot of land that he was granted no objection certificate by the District Magistrate, Sitapur and was also granted permission to construct and operate retail outlet over the said plot. Infact the said retail outlet was constructed over Gata No. 377 rather then Gata No. 378 and this facts is clearly determined by the Sub Divisional Magistrate, Sidhauli, Sitapur, when he directed eviction of petitioner from Gata No. 377.

20. Even if we agree with the contention of the petitioner, for the first time he has filed writ petition in 2024 i.e. 17 years after passing of order dated 23.06.2007. Meanwhile, this Court has been informed that the several first information reports were lodged against various authorities under the SC/ST Act. There is overwhelming material on record indicating that the petitioner has installed the petrol pump retail outlet over Gata No. 377, on which he does not have any right to occupy and accordingly, it seems that retail outlet has been illegally built on Gata No. 377.

21. We find that the prayer made in the present writ petition assailing the validity of order dated 16.11.2024, passed by the District Magistrate was also subject matter of previous writ petition being Writ Petition No. 11296 of 2024, which was disposed of by granting liberty to the lessors to move appropriate application for demarcation. Once the said order has been assailed before this Court and judgment in this regard has been passed, same order could not be challenged subsequently in another writ petition as the same is barred by constructive resjudicata as enshrined under Order 2 Rule 2(3) of the C.P.C. as well as under Chapter XXII Rule 7 of the Allahabad High Court Rules, 1952.

22. Accordingly, this Court would not interfere with the impugned order dated 16.11.2024, which was subject matter of previous writ petition. Accordingly, in this regard prayer no. 1 made by the petitioner is rejected.

23. The petitioner has no right over Gata No. 377, but it has been submitted that lease deed which was executed in favour of petitioner is still in existence and in case respondent no. 6 intents to continue the retail outlet, same can be shifted to Gata No. 378, but the same would be at the discretion of the concerned Oil Company and accordingly, liberty is granted to the petitioner to move suitable application before respondent no. 6, which may be considered and disposed of by them in accordance with law.

24. So far as present writ petition is concerned, no interference can be made and to that extent, present writ petition stands dismissed. Order Date :- 23.6.2025 A. Verma (Arun Kumar Singh Deshwal, J.) (Alok Mathur, J.) ANURAG VERMA High Court of Judicature at Allahabad, Lucknow Bench