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Swami Sadashiva Brahmendra Sar (Nil)     15 September 2009

SLP against common judgment

Two writ petitions have been allowed by the High Court by a common judgment. The State  has filed SLP in the supreme court in respect of only one writ petition.

 Now, the question is :

1)      Can this action of State  be challenged on the ground of arbitrariness? If so, by what proceedings?

2)      Whether a preliminary objection in the  SLP can be raised that, the State can not arbitrarily deny  benefit of judgment to petitioners in only one case whereas, other similarly situated petitioners in other petition are being allowed to enjoy the fruits of judgment and therefore the SLP is not maintainable?

3)      Is the SLP barred by principles of Res Judicata as the impugned has attained finality as not being challenged in respect of identical and connected writ petition?

 



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 4 Replies

R.R. KRISHNAA (Legal Manager)     15 September 2009

1.  There is no arbitrariness.  The act of the state is permissible.

2.  In my opinion there is no need to file two SLPs.  Since it is against a common judgment, one SLP is sufficient.  The order obtained from the SLP will also be binding on the other petitioners as the issue involved is the same.  The other petitioners also can use the copy of the judgment to establish their right or claim.  Even the supreme court while passing order in the SLP can also make it a point that the order and its ruling in the SLP shall be binding on the other petitioners also.

3. There cannot be resjudicata in this matter.

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A Mishra (Director)     23 September 2009

1.     Yes theoretically, you can by filing a writ petition under Article 32 of the Constitution of India.

2.     Kindly bear in mind that this is arbitrariness argument is somewhat shaky. What if the state of UP files a SLP against the Other Writ petition later.ALL States are notorious in filing SLP after much delay. You can always point out this fact to the court at and/or after notice that State is not serious in prosecuting the case.This will force State’s counsel to say as well as follow it up,by filing SLP against the other Writ Petition.

3.     It is not barred by resjudicata.

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A Mishra (Director)     23 September 2009

You can also file WP under Article 226 but WP under Article 32 is a better option and you can always get the WP tagged along with the state's SLP.This ,as well as the action suggested earlier will force the State to file SLP against the other WP.If State decides not to file Slp even after this,it would show the hollowness of the state's case.Either way,decision in Supreme Court would depend on the predilections of the bench which hears it.If the bench is technical,it might appreciate your arbitrariness argument.But generally speaking decision in SC would depend on the facts as well as equity,if at all nitice is issued by SC.

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B.N.Rajamohamed (advocate / commissioner of oaths)     28 September 2009

Sir,

                   you can file your objections in the SLP but you cannot say that, when one set of persons are allowed to enjoy some benefits siumilar benefits should be allowed to others also because,the common judgememt would have provided certain unchallegeable aspects for them unlike the subject matter in challenge through the SLP.So, you concentrate in the SLP alone.

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