Chaitanya Samkshema Sangham Vs. State of A.P. and ors. - Court Judgment

Excerpt:
- cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as of the kind or degree indicated or implied by the context. therefore, the term such board will have to mean a divisional board of or the level of divisional board or the state board. the divisional board holds the examination and issues certificates after 10th and 12th standard examinations. the state board advises the state government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. the cantonment board does not discharge any of such duties nor is there any other board or body under the cantonments act discharging any such duties. the duties of the cantonment board are laid down in section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. the cantonment board is not required to enter into the area of secondary education. therefore, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. that being the position, it is not possible to accept it to be a recognised school for being a private school under the act. for the reasons state above, the school tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - 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 art. it is well-settled that the constitutional courts will never examine the constitutionality of a law as an academic issue. it is also well-settled that the constitutional courts shall not undertake examination of constitutionality of a statute unless the decision on constitutionality becomes absolutely necessary to resolve a lis brought before the court.orders.r. nayak, j.1. this writ petition is filed by one chaitanya sankshema sangham, a society registered under the societies registration act, represented by its secretary, impleading state of andhra pradesh represented by its principal secretary, revenue department, the sub-collector, vijayawada; mandal revenue officer, vijayawada urban mandal, vijayawada and the village administrative officer, bhavanipuram, vijayawada, as respondents 1 to 4 respectively. after filing of the writ petition, respondents 5 to 11 impleaded themselves as party-respondents by filing w.p.m.p.no. 21910 of 2001, which was ordered by this court on 9-9-2002. in the writ petition, the following reliefs are sought:'for the reasons stated in the accompanying affidavit the petitioner herein prays that this hon'ble court may be pleased to call for the records culminating in issuance of the impugned proceedings dated 9-3-2001 from the concerned authorities and the special court and issue an appropriate writ, order or direction more particularly one in the nature of writ of mandamus-(i) declaring the provisions of a.p. land grabbing (prohibition) act, act 12 of 1982, as void, illegal, ineffective being violative of arts. 14 and 21 of the constitution of india.(ii) further declaring that the impugned proceedings dated 9-3-2001 of the 2nd respondent directing 3rd respondent to take possession of the land from the schedule-i members of the petitioner-society and deliver possession to the owners is viod, non est;(iii) and pass such other order/s as this hon'ble court may deem fit and proper in the circumstances of the case in the interests of justice.the impleaded respondents, in the counter-affidavit filed opposing the writ petition, have raised a preliminary contention regarding maintainability of this writ petition. according to them, this writ petition is not maintainable in view of the order made by this court in w.p.no. 3486 of 2000 dated 6-12-2000 and w.p.no. 8724 of 2001 dated 27-4-2001. on an earlier occasion, the members of the petitioner-sangham, 192 in number, had filed w.p.no. 3486 of 2000 in this court praying for the following relief:--'...in the circumstances stated in the affidavit filed herein the high court will be pleased to issue an appropriate writ, order or direction more particularly one in the nature of writ of mandamus, declaring section 8(6) of the a.p. land grabbing (prohibition) act, 1982 as amended by act 16 of 1987 to be unfair, unreasonable, arbitrary, unconstitutional violative of the principles of natural justice besides being violative of arts. 14, 19 and 21 of the constitution of india and to consequently set aside the judgment in l.g.o.p.no. 335 of 1983 dated 27-10-1986 passed by the court of i addl. district judge, krishna at machilipatnam, as the procedure 'established by law' was not followed in enquiring into and deciding the l.g.o.p.no. 335/83 and to grant such other relief or reliefs as this hon'ble court deems fit and proper in the circumstances of the case.'that writ petition, after notice to the respondents, was disposed of on merits. the order reads as follows:--'this writ petition is filed by as many as 192 persons who are the residents to bhavanipuram in vijayawada questioning the validity and legality of the judgment and order in l.g.o.p. no. 335 of 1983 dated 27-10-1986 on the file of the i addl. district judge, krishna at machilipatnam. admittedly, the petitioners herein are not parties to the above judgment. the claim of the petitioners as set out in the present writ petition is that they are entitled to be in possession of the subject property covered by the judgment. we decline to entertain this writ petition and take up adjudication of the claim put forth by the petitioners touching upon the title to the property. suffice it to state that since the petitioners are not parties to the judgment in l.g.o.p.no. 335 of 1983 dated 27-10-1986, it will not bind the petitioners, and if the petitioners are entitled to the property covered by the judgment and be in possession of the same, the petitioners can work out the legal remedies by way of private law review and seek declaration, injunction or damages, as the case may be, to suit their grievances. it is trite to state that in order to grant the relief to the petitioners, the court should necessarily to into the realm of facts and factum of possession. in that view of the matter, we decline to entertain the writ petition.the writ petition is accordingly dismissed reserving liberty to the petitioners to workout remedies as indicated above, if they are so advised. no costs.'it appears, after disposal of w.p.no. 3476 of 2000 on 6-12-2000, the petitioner-sangham filed o.s.no. 15 of 2001 in the court of the senior civil judge, vijayawada on 20-1-2001 for bare injunction. after filing of the said suit, the petitioner-sangham filed w.p. no. 8724 of 2001 in this court praying for the following relief:--'........the high court will be pleased to call for the records and issue an appropriate writ, order or direction more in the nature of mandamus declaring the impugned proceedings with dt. 9-3-2001 in form no. v issued by the 1st respondent authorizing the 2nd respondent to take the possession of the lands and deliver to the complainants in l.g.o.p.no. 335/83, 90/85-91/85283/84, 117/85 action pursuant thereto, are arbitrary, illegal, capricious, and violative of arts. 14, 21 and 300-a of the constitution of india and that the members of the petitioner-society shown in schedule no. 1 annexed herewith are not liable to be dispossessed from the lands in s.nos. 39/1, 38/1, 37/1, 36/1, 35/1 of bhavanipuram, vijayawada urban mandal, vijayawada, krishna district in the interest of justice.from the order of the learned single judge made on 27-4-2001 in the above writ petition, it appears that at the admission stage itself, the petitioner-sangham did not press the writ petition and on the other hand sought leave of the court to withdraw the writ petition. the learned single judge, by his order dated 27-4-2001, granted leave and dismissed the writ petition as withdrawn. when the matter stood thus, the present writ petition no. 10362 of 2001 was presented in this court on 3-5-2001 praying for the reliefs already noticed above. subsequently, the petitioner-sangham filed w.p.m.p. no. 23583 of 2002 in the above writ petition seeking amendment of the prayer. the additional prayer sought to be incorporated in the prayer column reads as follows:--'...consequently the judgment and decree dated 27-10-1986 in l.g.o.p. no. 335 of 1983 on the file of the court of the addl. district judge, krishna at machilipatnam are vitiated and became null and void....'2. sri p.v. rama sarma, learned counsel appearing for the petitioner-sangham vehemently contended that the orders made by this court in w.p.no. 3486 of 2000 on 6-12-2000 and w.p.no. 8724 of 2001 on 27-4-2001 would not operate as res judicata and, therefore, the present writ petition is maintainable. elaborating the contention, the learned counsel pointed out that in w.p.no. 3486 of 2000 though the constitutional validity of section 8(6) of the a.p. land grabbing (prohibition) act, 1982 (for short, 'the act'), as amended by act 16 of 1987 was challenged and the judgment and decree passed in l.g.o.p.no. 335 of 1983 dated 27-10-1986 was assailed, the court without deciding either the constitutional validity of the impugned provision or the validity of the order passed in l.g.o.p.no. 335 of 1983, disposed of the writ petition by directing the writ petitioners to work out their legal remedies before competent civil court. the learned counsel contended that in such fact-situation, simply because the order made in l.g.o.p.no. 335 of 1983 dated 27-10-1986 by the i addl. district judge, krishna at machilipatnam and the constitutional validity of section 8(6) of the act were assailed, it cannot be said that the order made by this court in w.p.nos. 3486 of 2000 on 6-12-2000, would operate as res judicata so as to bar institution of the present writ petition. mr. rama sarma, further contended that though the validity of the proceedings of the sub-collector, vijayawada dated 9-3-2001 was assailed in w.p.no. 8427 of 2001, the court was not called upon to decide the validity of the said proceeding on merit and, therefore, the order passed in that writ petition dismissing the writ petition as withdrawn will not come in the way of the petitioner-sangham assailing that order again in the present writ petition. be that as it may, the learned counsel contended that even assuming that the reliefs relating to the order made in l.g.o.p.no. 335 of 1983 and the order of the sub-collector, vijayawada dated 9-3-2001 are not maintainable, there cannot be any bar for the petitioner-sangham and its members to question the constitutional validity of the act, because, that is the remedy available to them by way of judicial review only under art. 226 of the constitution of india and such question cannot be raised either before the civil court or before any other judicial forum.3. cumulatively, the following are the reliefs sought by the petitioner-sangham and its members in the aforementioned three writ petitions, (i) declaring the provisions of the act as unconstitutional being violative of arts. 14, 19 and 21 of the constitution of india; (ii) declaring the judgment and decree in l.g.o.p.no. 335 of 1983 dated 27-10-1986 on the file of the court of the i additional district judge, krishna at machilipatnam as invalid; and (iii) declaring that the impugned proceedings of the sub-collector, vijayawada dated 9-3-2001 directing the mandal revenue officer, rural mandal, vijayawada mandal, to take possession of the land in question from the members of the petitioner-sangham and deliver possession of the same to the owners as invalid. it is true that in w.p.no. 3486 of 2000, the members of the petitioner-sangham did not question the constitutional validity of the entire act. as could be seen from the prayer in the said writ petition, they questioned the constitutionality of section 8(6) of the act only whereas in the present writ petition, the petitioner-sangham has assailed the constitutional validity of the entire act. regarding the remaining two reliefs, it is pertinent to notice that in w.p.no. 3486 of 2000, the members of the petitioner-sangham questioned validity of the judgment and decree made in l.g.o.p.no. 335 of 1983 dated 27-10-1986, whereas in w.p.no. 8724 of 2001, the petitioners have not questioned validity of the judgment and decree passed in the above l.g.o.p., but they only questioned the validity of the proceedings of the sub-collector, vijayawada dated 9-3-2001 directing the mandal revenue officer, vijayawada rural mandal, vijayawada to take possession of the subject land from the members of the petitioner-sangham and deliver the same to the owners. it is quite apparent from the order made by this court on 6-12-2000 in w.p.no. 3486 of 2000 that the constitutionality of section 8(6) of the act was abandoned by the petitioners. be that as it may, the order made by this court in the above writ petition is allowed to become final. similarly, the challenge to the judgment and decree in l.g.o.p.no. 335 of 1983 dated 27-10-1986 was abandoned and that order of the court was also allowed to become final. further, in w.p.no. 8724 of 2001, though the petitioner assailed the validity of the proceedings of the sub-collector, vijayawada dated 9-3-2001, that challenge was abandoned and the writ petition was dismissed as withdrawn. the resultant position is that the challenge to the validity of the judgment and decree in l.g.o.p.no. 335 of 1983 dated 27-10-1986 in w.p.no. 3486 of 2000 and the challenge to the validity of the order of the sub-collector, vijayawada dated 9-3-2001 in w.p.no. 8724 of 2001 were abandoned without reserving liberty to institute fresh writ petition on the same cause of action. therefore, the question is whether in such fact-situation, and in the absence of leave granted by this court to file fresh writ petition on the same cause of action, fresh writ petition is maintainable. this question is no more res integra. the supreme court in sarguja transport service v. state transport appellate tribunal, m.p., gwalior, gwalior, : [1987]1scr200 , specifically dealt with similar question and held that in the absence of leave granted by the court, second writ petition on the same cause of action is not maintainable. the observations made by the supreme court in paragraph 9 are quite apposite and they are as follows:'the point for consideration is whether a petitioner after withdrawing a writ petition filed by him in the high court under art. 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 v. state of u.p. : [1962]1scr574 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 petitions 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 art. 226 of the constitution of india 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 art. 32 of the constitution of india since such withdrawal does not amount to res judicata, the remedy under art. 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 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. 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 issuance of a writ in the nature of habeas corpus or seeks to enforce the fundamental right guaranteed under art. 21 of the constitution of india since such a case stands on a different footing altogether. we, however, leave this question open.'as could be seen from the above observations, the supreme court did not hold that the second writ petition is not maintainable by applying the doctrine of res judicata. on the other hand, it is made clear that res judicata in such a case would not apply. the supreme court held that the remedy under art. 226 of the constitution of india should be deemed to have been abandoned by the petitioner in the first writ petition itself and, therefore, it is not permissible for instituting a fresh writ petition on the same cause of action without the leave of the court. to the same effect is the judgment of the supreme court in upadhyay and co. v. state of u.p., : air1999sc509 . 4. it is true that in none of the earlier two writ petitions, the petitioner-sangham or its members had assailed the constitutionality of the entire act. it is also true that res judicata has no application in the matter of assailing the constitutionality of a statute simply because earlier the validity of an order passed under the said statute was assailed and decided. that is not the point that arises for our consideration and decision in the present case. the petitioner-sangham wanted this court to decide the constitutionality of the entire act regardless of the fact whether this court could grant any substantive relief to the petitioner-sangham or not with regard to the judgment and decree passed in l.g.o.p. no. 335 of 1983 dated 27-10-1986 and the proceedings of the sub-collector, vijayawada dated 9-7-2003. as pointed out supra, since the petitioner-sangham did not seek permission of this court while withdrawing w.p.no. 8724 of 2001 to file fresh writ petition on the same cause of action, it should be deemed, in terms of the judgment of the supreme court in sarguja transport service case (1 supra), that the petitioner-sangham has abandoned the reliefs sought in the above writ petition and, therefore, it is not permissible for the sangham now to file a fresh writ petition seeking the very same reliefs sought in w.p.no. 8724 of 2001. if the substantive reliefs cannot be granted to the petitioner-sangham, deciding the constitutionality of the entire act, at this stage, would not arise. it is well-settled that the constitutional courts will never examine the constitutionality of a law as an academic issue. it is also well-settled that the constitutional courts shall not undertake examination of constitutionality of a statute unless the decision on constitutionality becomes absolutely necessary to resolve a lis brought before the court. in other words, if a lis brought before the court could be resolved on any other ground, the constitutional courts shall not decide the constitutionality question. inasmuch as granting substantive reliefs to the petitioner would not arise in the light of the judgment of the supreme court in sarguja transport service case (1 supra), it is trite, we cannot, at this stage, take up the constitutionality question raised by the petitioner-sangham for decision in the present writ petition as an academic matter.5. in the result and for the foregoing reasons, we dismiss the writ petition. no costs.6. since we have dismissed the writ petition, w.p.m.p. no. 23583 of 2002 filed by the petitioner-sangham seeking amendment of the prayer would not survive for decision on merits. it is dismissed as unnecessary. however, we make it clear that this order shall not come in the way of the petitioner-sangham or its members to question the constitutionality of the act at an appropriate stage. no. costs.

Judgment:
ORDER

S.R. Nayak, J.

1. This writ petition is filed by one Chaitanya Sankshema Sangham, a society registered under the Societies Registration Act, represented by its Secretary, impleading State of Andhra Pradesh represented by its Principal Secretary, Revenue Department, the Sub-Collector, Vijayawada; Mandal Revenue Officer, Vijayawada Urban Mandal, Vijayawada and the Village Administrative Officer, Bhavanipuram, Vijayawada, as respondents 1 to 4 respectively. After filing of the writ petition, respondents 5 to 11 impleaded themselves as party-respondents by filing W.P.M.P.No. 21910 of 2001, which was ordered by this Court on 9-9-2002. In the writ petition, the following reliefs are sought:

'For the reasons stated in the accompanying affidavit the petitioner herein prays that this Hon'ble Court may be pleased to call for the records culminating in issuance of the impugned proceedings dated 9-3-2001 from the concerned authorities and the Special Court and issue an appropriate writ, order or direction more particularly one in the nature of Writ of Mandamus-

(i) declaring the provisions of A.P. Land Grabbing (Prohibition) Act, Act 12 of 1982, as void, illegal, ineffective being violative of Arts. 14 and 21 of the Constitution of India.

(ii) Further declaring that the impugned proceedings dated 9-3-2001 of the 2nd respondent directing 3rd respondent to take possession of the land from the schedule-I members of the petitioner-society and deliver possession to the owners is viod, non est;

(iii) And pass such other order/s as this Hon'ble Court may deem fit and proper in the circumstances of the case in the interests of justice.

The impleaded respondents, in the counter-affidavit filed opposing the writ petition, have raised a preliminary contention regarding maintainability of this writ petition. According to them, this writ petition is not maintainable in view of the order made by this Court in W.P.No. 3486 of 2000 dated 6-12-2000 and W.P.No. 8724 of 2001 dated 27-4-2001. On an earlier occasion, the members of the petitioner-Sangham, 192 in number, had filed W.P.No. 3486 of 2000 in this Court praying for the following relief:--

'...in the circumstances stated in the affidavit filed herein the High Court will be pleased to issue an appropriate writ, order or direction more particularly one in the nature of Writ of Mandamus, declaring Section 8(6) of the A.P. Land Grabbing (Prohibition) Act, 1982 as amended by Act 16 of 1987 to be unfair, unreasonable, arbitrary, unconstitutional violative of the principles of natural justice besides being violative of Arts. 14, 19 and 21 of the Constitution of India and to consequently set aside the Judgment in L.G.O.P.No. 335 of 1983 dated 27-10-1986 passed by the Court of I Addl. District Judge, Krishna at Machilipatnam, as the procedure 'established by law' was not followed in enquiring into and deciding the L.G.O.P.No. 335/83 and to grant such other relief or reliefs as this Hon'ble Court deems fit and proper in the circumstances of the case.'

That writ petition, after notice to the respondents, was disposed of on merits. The order reads as follows:--

'This writ petition is filed by as many as 192 persons who are the residents to Bhavanipuram in Vijayawada questioning the validity and legality of the Judgment and order in L.G.O.P. No. 335 of 1983 dated 27-10-1986 on the file of the I Addl. District Judge, Krishna at Machilipatnam. Admittedly, the petitioners herein are not parties to the above Judgment. The claim of the petitioners as set out in the present writ petition is that they are entitled to be in possession of the subject property covered by the Judgment. We decline to entertain this writ petition and take up adjudication of the claim put forth by the petitioners touching upon the title to the property. Suffice it to state that since the petitioners are not parties to the Judgment in L.G.O.P.No. 335 of 1983 dated 27-10-1986, it will not bind the petitioners, and if the petitioners are entitled to the property covered by the Judgment and be in possession of the same, the petitioners can work out the legal remedies by way of private law review and seek declaration, injunction or damages, as the case may be, to suit their grievances. It is trite to state that in order to grant the relief to the petitioners, the Court should necessarily to into the realm of facts and factum of possession. In that view of the matter, we decline to entertain the writ petition.

The writ petition is accordingly dismissed reserving liberty to the petitioners to workout remedies as indicated above, if they are so advised. No costs.'

It appears, after disposal of W.P.No. 3476 of 2000 on 6-12-2000, the petitioner-Sangham filed O.S.No. 15 of 2001 in the Court of the Senior Civil Judge, Vijayawada on 20-1-2001 for bare injunction. After filing of the said suit, the petitioner-Sangham filed W.P. No. 8724 of 2001 in this Court praying for the following relief:--

'........the High Court will be pleased to call for the records and issue an appropriate writ, order or direction more in the nature of mandamus declaring the impugned proceedings with dt. 9-3-2001 in Form No. V issued by the 1st respondent authorizing the 2nd respondent to take the possession of the lands and deliver to the complainants in L.G.O.P.No. 335/83, 90/85-91/85283/84, 117/85 action pursuant thereto, are arbitrary, illegal, capricious, and violative of Arts. 14, 21 and 300-A of the Constitution of India and that the members of the petitioner-Society shown in Schedule No. 1 annexed herewith are not liable to be dispossessed from the lands in S.Nos. 39/1, 38/1, 37/1, 36/1, 35/1 of Bhavanipuram, Vijayawada Urban Mandal, Vijayawada, Krishna District in the interest of justice.

From the order of the learned single Judge made on 27-4-2001 in the above writ petition, it appears that at the admission stage itself, the petitioner-Sangham did not press the writ petition and on the other hand sought leave of the Court to withdraw the writ petition. The learned single Judge, by his order dated 27-4-2001, granted leave and dismissed the writ petition as withdrawn. When the matter stood thus, the present writ petition No. 10362 of 2001 was presented in this Court on 3-5-2001 praying for the reliefs already noticed above. Subsequently, the petitioner-Sangham filed W.P.M.P. No. 23583 of 2002 in the above writ petition seeking amendment of the prayer. The additional prayer sought to be incorporated in the prayer column reads as follows:--

'...consequently the judgment and decree dated 27-10-1986 in L.G.O.P. No. 335 of 1983 on the file of the court of the Addl. District Judge, Krishna at Machilipatnam are vitiated and became null and void....'

2. Sri P.V. Rama Sarma, learned counsel appearing for the petitioner-Sangham vehemently contended that the orders made by this Court in W.P.No. 3486 of 2000 on 6-12-2000 and W.P.No. 8724 of 2001 on 27-4-2001 would not operate as res judicata and, therefore, the present writ petition is maintainable. Elaborating the contention, the learned counsel pointed out that in W.P.No. 3486 of 2000 though the constitutional validity of Section 8(6) of the A.P. Land Grabbing (Prohibition) Act, 1982 (for short, 'the Act'), as amended by Act 16 of 1987 was challenged and the Judgment and decree passed in L.G.O.P.No. 335 of 1983 dated 27-10-1986 was assailed, the Court without deciding either the constitutional validity of the impugned provision or the validity of the order passed in L.G.O.P.No. 335 of 1983, disposed of the writ petition by directing the writ petitioners to work out their legal remedies before competent civil Court. The learned counsel contended that in such fact-situation, simply because the order made in L.G.O.P.No. 335 of 1983 dated 27-10-1986 by the I Addl. District Judge, Krishna at Machilipatnam and the constitutional validity of Section 8(6) of the Act were assailed, it cannot be said that the order made by this Court in W.P.NOS. 3486 of 2000 on 6-12-2000, would operate as res judicata so as to bar institution of the present writ petition. Mr. Rama Sarma, further contended that though the validity of the proceedings of the Sub-Collector, Vijayawada dated 9-3-2001 was assailed in W.P.No. 8427 of 2001, the Court was not called upon to decide the validity of the said proceeding on merit and, therefore, the order passed in that writ petition dismissing the writ petition as withdrawn will not come in the way of the petitioner-Sangham assailing that order again in the present writ petition. Be that as it may, the learned counsel contended that even assuming that the reliefs relating to the order made in L.G.O.P.No. 335 of 1983 and the order of the Sub-Collector, Vijayawada dated 9-3-2001 are not maintainable, there cannot be any bar for the petitioner-Sangham and its members to question the constitutional validity of the Act, because, that is the remedy available to them by way of judicial review only under Art. 226 of the Constitution of India and such question cannot be raised either before the Civil Court or before any other judicial forum.

3. Cumulatively, the following are the reliefs sought by the petitioner-Sangham and its members in the aforementioned three writ petitions, (i) declaring the provisions of the Act as unconstitutional being violative of Arts. 14, 19 and 21 of the Constitution of India; (ii) declaring the Judgment and decree in L.G.O.P.No. 335 of 1983 dated 27-10-1986 on the file of the Court of the I Additional District Judge, Krishna at Machilipatnam as invalid; and (iii) declaring that the impugned proceedings of the Sub-Collector, Vijayawada dated 9-3-2001 directing the Mandal Revenue Officer, Rural Mandal, Vijayawada Mandal, to take possession of the land in question from the members of the petitioner-Sangham and deliver possession of the same to the owners as invalid. It is true that in W.P.No. 3486 of 2000, the members of the petitioner-Sangham did not question the constitutional validity of the entire Act. As could be seen from the prayer in the said writ petition, they questioned the constitutionality of Section 8(6) of the Act only whereas in the present writ petition, the petitioner-Sangham has assailed the constitutional validity of the entire Act. Regarding the remaining two reliefs, it is pertinent to notice that in W.P.No. 3486 of 2000, the members of the petitioner-Sangham questioned validity of the judgment and decree made in L.G.O.P.No. 335 of 1983 dated 27-10-1986, whereas in W.P.No. 8724 of 2001, the petitioners have not questioned validity of the Judgment and decree passed in the above L.G.O.P., but they only questioned the validity of the proceedings of the Sub-Collector, Vijayawada dated 9-3-2001 directing the Mandal Revenue Officer, Vijayawada Rural Mandal, Vijayawada to take possession of the subject land from the members of the petitioner-Sangham and deliver the same to the owners. It is quite apparent from the order made by this Court on 6-12-2000 in W.P.No. 3486 of 2000 that the constitutionality of Section 8(6) of the Act was abandoned by the petitioners. Be that as it may, the order made by this Court in the above writ petition is allowed to become final. Similarly, the challenge to the Judgment and decree in L.G.O.P.No. 335 of 1983 dated 27-10-1986 was abandoned and that order of the Court was also allowed to become final. Further, in W.P.No. 8724 of 2001, though the petitioner assailed the validity of the proceedings of the Sub-Collector, Vijayawada dated 9-3-2001, that challenge was abandoned and the writ petition was dismissed as withdrawn. The resultant position is that the challenge to the validity of the judgment and decree in L.G.O.P.No. 335 of 1983 dated 27-10-1986 in W.P.No. 3486 of 2000 and the challenge to the validity of the order of the Sub-Collector, Vijayawada dated 9-3-2001 in W.P.No. 8724 of 2001 were abandoned without reserving liberty to institute fresh writ petition on the same cause of action. Therefore, the question is whether in such fact-situation, and in the absence of leave granted by this Court to file fresh writ petition on the same cause of action, fresh writ petition is maintainable. This question is no more res Integra. The Supreme Court in Sarguja Transport Service v. State Transport Appellate Tribunal, M.P., Gwalior, Gwalior, : [1987]1SCR200 , specifically dealt with similar question and held that in the absence of leave granted by the Court, second writ petition on the same cause of action is not maintainable. The observations made by the Supreme Court in paragraph 9 are quite apposite and they are as follows:

'The point for consideration is whether a petitioner after withdrawing a writ petition filed by him in the High Court under Art. 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 v. State of U.P. : [1962]1SCR574 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 petitions 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 Art. 226 of the Constitution of India 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 Art. 32 of the Constitution of India since such withdrawal does not amount to res judicata, the remedy under Art. 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 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. 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 issuance of a writ in the nature of habeas corpus or seeks to enforce the fundamental right guaranteed under Art. 21 of the Constitution of India since such a case stands on a different footing altogether. We, however, leave this question open.'

As could be seen from the above observations, the Supreme Court did not hold that the second writ petition is not maintainable by applying the doctrine of res judicata. On the other hand, it is made clear that res judicata in such a case would not apply. The Supreme Court held that the remedy under Art. 226 of the Constitution of India should be deemed to have been abandoned by the petitioner in the first writ petition itself and, therefore, it is not permissible for instituting a fresh writ petition on the same cause of action without the leave of the Court. To the same effect is the Judgment of the Supreme Court in Upadhyay and Co. v. State of U.P., : AIR1999SC509 .

4. It is true that in none of the earlier two writ petitions, the petitioner-Sangham or its members had assailed the constitutionality of the entire Act. It is also true that res judicata has no application in the matter of assailing the constitutionality of a statute simply because earlier the validity of an order passed under the said statute was assailed and decided. That is not the point that arises for our consideration and decision in the present case. The petitioner-Sangham wanted this Court to decide the constitutionality of the entire Act regardless of the fact whether this Court could grant any substantive relief to the petitioner-Sangham or not with regard to the Judgment and decree passed in L.G.O.P. No. 335 of 1983 dated 27-10-1986 and the proceedings of the Sub-Collector, Vijayawada dated 9-7-2003. As pointed out supra, since the petitioner-Sangham did not seek permission of this Court while withdrawing W.P.No. 8724 of 2001 to file fresh writ petition on the same cause of action, it should be deemed, in terms of the Judgment of the Supreme Court in Sarguja Transport Service case (1 supra), that the petitioner-Sangham has abandoned the reliefs sought in the above writ petition and, therefore, it is not permissible for the Sangham now to file a fresh writ petition seeking the very same reliefs sought in W.P.No. 8724 of 2001. If the substantive reliefs cannot be granted to the petitioner-Sangham, deciding the constitutionality of the entire Act, at this stage, would not arise. It is well-settled that the constitutional Courts will never examine the constitutionality of a law as an academic issue. It is also well-settled that the constitutional Courts shall not undertake examination of constitutionality of a statute unless the decision on constitutionality becomes absolutely necessary to resolve a lis brought before the Court. In other words, if a lis brought before the Court could be resolved on any other ground, the constitutional Courts shall not decide the constitutionality question. Inasmuch as granting substantive reliefs to the petitioner would not arise in the light of the Judgment of the Supreme Court in Sarguja Transport Service case (1 supra), it is trite, we cannot, at this stage, take up the constitutionality question raised by the petitioner-Sangham for decision in the present writ petition as an academic matter.

5. In the result and for the foregoing reasons, we dismiss the Writ Petition. No costs.

6. Since we have dismissed the writ petition, W.P.M.P. No. 23583 of 2002 filed by the petitioner-Sangham seeking amendment of the prayer would not survive for decision on merits. It is dismissed as unnecessary. However, we make it clear that this order shall not come in the way of the petitioner-Sangham or its members to question the constitutionality of the Act at an appropriate stage. No. costs.