Mohamedaly Sarefaly and Co. vs Income Tax Officer, Central Circle III, Madras, and Others

Veeraswami, J.—This petition under article 226 of the Constitution is to direct the first respondent, who is the Income Tax Officer, Central

Circle III, Madras-34, to desist from taking recovery proceedings pursuant to his notice dated May 17, 1966, u/s 226(3) of the Income Tax Act,

1961, against the petitioner. the petitioner had filed Write Petition No. 2328 of 1966, for an identical relief on certain grounds, which was

dismissed by this court by an order dated August 10, 1967. In the present petition the petitioner takes certain additional grounds, namely, that

section 226 of the Income Tax Act, 1961, violates article 14, that section 226(3)(x) is beyond the ambit of entry 82 of List I in the Seventh

Schedule to the Constitution and also that section 226 suffers from excessive delegation. Two other grounds relate to the legality of the certificate

issued by the Income Tax Officer, the main ground of petitioner being that the amount for which the certificate was issued was larger than what

was due actually from the assessee on the date of issue of the certificate.

It is not stated that none of the above points was available to the petitioner in the earlier petition. In fact, learned counsel for the petitioner could

not give any explanation whatever as to why those points were not taken. His only answer is that the points did not occur to him at the time the

earlier petition was filed. While we sympathise with the counsel, it has, however, to be realised that a second writ on an identical subject-matter

cannot be allowed. It is not merely on the principle that there should be a finality to the litigation which we think is applicable to proceedings under

article 226 of the Constitution but allowing successive petitions to be filed as and when the parties or counsel dig up new points will lead to abuse

of process of the court. We cannot overlook the mischief which is likely to result by allowing such successive petitions. It is true that the jurisdiction

of this court under article 226 is wide and is not trammelled or limited by any restriction. It is also true that under that article the power is not

confined to particular forms of the English writs. Nevertheless, certain broad principles have to be inevitably followed by courts in exercise of the

jurisdiction. One of them is that a party who comes to court asking for a particular relief in relation to the particular subject-matter must state all

facts and circumstances and urge all the grounds on which he seeks relief and failure to do so either by negligence or oversight cannot be an excuse

for starting of a litigation all afresh. That wholesome principle, as we think, must apply to proceedings under article 226 as well. Halsbury says in

the Laws of England, third edition, volume II (Simonds edition) :

When an application for an order of certiorari, prohibition or mandamus has been made, argued, and refused on the ground of defects in the case

as disclosed in the affidavits supporting the application, it is not competent for the applicant to make a second application for the same order on

amended affidavits containing fresh materials. The rule applies even in cases where defects in the case which caused the refusal of the first

application are remedied in the second and it makes no difference whether the motion is made in a private capacity or by a law officer on public

grounds.

Though this passage relates to disposal of the earlier application due defects in the affidavits, the rule on principle should equally apply to failure

to urge grounds, whether factual or legal, which were available and might and ought to have been urged in the earlier application. In Mangat Ram

Kuthiala v. Commissioner of Income Tax the above passage from Halsburys Laws of England, was cited, and it was pointed out :

It is thus a settled rule that the court will not allow a part to succeed, on a second application, when it has previously applied for the very same

thing and failed, except in case of alteration in the form of a title or jurat in the affidavit.

We are opinion, therefore, that we cannot allow a second petition on the subject-matter.

The petition is dismissed with costs of the first respondent. Counsels fee Rs. 100.

Petition dismissed.