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CASE NO.: Appeal (civil)  6490-6491 of 2004

PETITIONER: MOHANPRASAD TRIPATHY                           

RESPONDENT: STATE OF MAHARASHTRA & ORS                     

DATE OF JUDGMENT: 23/05/2006

BENCH: Dr.AR.LAKSHMANAN & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T

Dr.AR.Lakshmanan, J.  

       Heard the learned counsel appearing on behalf of the appellant and the learned  counsel appearing on behalf of the respondent-State of Maharashtra.  Since respondent  Nos.2 to 15 are not apparently interested in contesting these appeals, notice of lodgment of   petition of these appeals were ordered to be issued only to respondent No.1 for hearing.           The present appeals are directed against the order passed by the High Court of  Judicature at Bombay, Nagpur Bench, Nagpur against the judgment and final order  dt.25.09.2003 in Civil Application No.3778 of 2003 in Writ Petition No.2564 of 2002 and  the judgment and final order dt.24.11.2003 passed in Civil Application No.6770 of 2003 in  Civil Application No.3778 of 2003 in the same Writ Petition whereby the High Court  finally dismissed both the aforesaid applications of the petitioner therein who is the  appellant in these two appeals.           The Writ Petition No.2564 of 2002 was filed by the petitioners as Public  Interest Litigation.  According to the appellant, he is associated with various social  organisations and devoted to the cause of the poor and needy persons and fighting against  the evils of corruption.  He filed the above Writ Petition for an enquiry into the affairs i n the  episode of mustering support for the trust motion concluded on 13.06.2002 in the  Maharashtra State Legislative Assembly in favour of respondent No.5 (Mr.Vilasrao  Deshmukh), the then Chief Minister of the State of Maharashtra.           The High Court vide order dt.24.07.2002 directed the appellant to deposit a sum  of Rs.1 lac within a period of four weeks otherwise the Writ Petition would be dismissed  without reference to the Court.  It is beneficial in this context to reproduce the order pas sed  by the High Court on 24.07.2002 which is as under :-   

       "Matter is not on board.

        Mentioned.

        This is a public interest Litigation filed by the Petitioners seeking various  directions from this court and an order for enquiry into the affairs which took  place at the time of motion taken out in the Legislative Assembly to repose Trust  in favour of the Chief Minister.

       We direct the Petitioners to deposit a sum of Rs.one lakh within a period of  four weeks.  On such amount being deposited, this Court would taken up the  matter for admission otherwise it would be dismissed without reference to the  Court.

       It is made clear that no extension of time for depositing the amount will be  granted."

       Pursuant to the said order dt.24.07.2002, the appellant on 29.07.2002 deposited  an amount of Rs.1 lakh vide C.No.002327.  The High Court, after deposit of the said amount

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of Rs.1 lakh by the appellant, issued notice to the respondents vide order dt.05.08.2002.  During the pendency of the said Writ Petition, the respondent No.5, the then Chief Minister  of Maharashtra, resigned, for inquiry against whom the said Writ Petition revolved around  for mustering support for the trust motion concluded on 13.06.2002 in the Maharashtra State  Legislative Assembly in favour of respondent No.5 and, therefore, the said Writ Petition  became infructuous. The appellant filed an application being Civil Application No.3229 of  2003 dt.11.06.2003 for permission to withdraw the said Writ Petition and for further  permission to withdraw the amount of Rs.1 lakh deposited vide C.No.002327 dt.29.07.2002.   The said application is marked  as Annexure P-3 in these appeals.  It is stated in the said  application that the Chief Minister himself had resigned from the post of Chief Minister and   thus the prayer in the Writ Petition for inquiry against him became infructuous and,  therefore, the appellant do not want to prosecute the petition further and, therefore, sough t  for withdrawal of the same.  A prayer for withdrawal of the amount of Rs.1 lakh which was  deposited by the appellant was also made.         The High Court vide order dt.13.06.2003 dismissed the said Writ Petition as  infructuous as the cause of action in the said Writ Petition has come to an end.  However,  the High Court dismissed the Civil Application No.3229 of 2003 directing the appellant to  file a separate application for withdrawal of the said amount of Rs.1 lakh deposited by him  in the court pursuant to the order dt.24.07.2002.  The appellant thereafter filed the Civil  application No.3778 of 2003 for permission to withdraw the said amount of Rs.1 lakh  deposited by him.  The said Civil Application No.3778 of 2003 was listed for hearing on  11.08.2003.  The High Court adjourned the matter for filing additional affidavit disclosing  therein the source from which the appellant collected the said amount of Rs.1 lakh for  depositing the same in the court.  Pursuant to the said order, the appellant filed an affida vit  on 23.08.2003 giving details of the sources through which the said amount was generated  for depositing in the Court.  The High Court, however, was not satisfied with the said  affidavit and vide order dt.02.08.2003 directed the appellant to file proper affidavit  disclosing the the exact source of the said amount of Rs.1 lakh.  Thereafter, the appellant  filed another affidavit on 24.09.2003 giving details of the amount collected through various   sources.  The first affidavit is marked as Annexure P-7 and the second affidavit marked as  Annexure P-8 reads as under :-         "2. I say and submit that in an affidavit dated 23/08/2003 I have already  explained regarding my financial status.  I have made categorical statement in  the said affidavit that the amount of Rs.1,00,000/- (Rupees one lakh only)  deposited in the Court on 29/07/2002 was the amount generated from various  sources like pension, post retirement benefits, income received by me and by  my wife from the business of publication of newspaper, agricultural income,  rental income and the amount of compensation  received by us because of  death of my son and cash credit facility of Shikshak Sahakari Bank Limited.  I  say, submit, assert and reiterate that the amount of Rs.1,00,000/- (Rupees one  lakh only) deposited in the Court on 29/07/2002 was the amount generated  from the aforesaid sources.  Because of the aforesaid facts, it cannot be said  that the amount of Rs. 1,00,000/- (Rupees one lakh only)  deposited in the  Court on 29/07/2002 was from a particular individual source.    3.However, as I can gather, on the said date I arranged the said amount of  Rs.1,00,000/- (Rupees one lakh only) required to be deposited in the Court  in the following manner.

(i)Cash of around Rs.60,000/- (Rupees sixty thousand only) was  available in our office of M/s.Public Parliament. Generally the  cash is maintained in our office for the purchases like  newsprint,payment to be made to the parties etc.  In our business  we generally receive cash from our agents, hawkers and  customers. (ii) Cash of around Rs.25,000/- (Rupees twenty five thousand only)  was available in my house with my wife.  (iii) Remaining cash of around Rs.15,000/- (Rupees fifteen thousand  only) was arranged."  

       The High Court vide the impugned judgment and order dt.25.09.2003 dismissed

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the application of the appellant refusing permission to withdraw the said amount of Rs.1  lakh deposited by the appellant in the High Court.  The appellant again filed an application   for reviewing the order dt.25.09.2003 which was also dismissed.           According to the learned counsel for the appellant, the High Court has neither  considered the certificate issued by the Chartered Accountant of the appellant nor did  consider the contention and affidavit dt.24.09.2003 in respect of disclosure of source of  amount of Rs.1 lakh.  We have also extracted the second affidavit filed by the appellant in  the High Court and the said affidavit is self-explanatory.  The appellant has also stated th at  the Chartered Accountant on production of books of account as demanded by the Chartered  Accountant, examined the books of account and the cash account produced by the appellant,  issued the Certificate dt.23.10.2003 to the effect that the appellant had cash in hand of  Rs.1,23,293/- as on 27.07.2002 out of which the appellant had withdrawn Rs.60,000/- on  28.07.2002 for court purposes as per the voucher produced.           The High Court in its order dt.25.09.2003 has clearly observed that the cause of  action of the Writ Petition had come to an end and, therefore, no fruitful purpose was to be   served by keeping the petition pending.  Having observed that the Writ Petition has become  infructuous, the High Court ought to have ordered refund of Rs.1 lakh which was ordered to  be deposited by the High Court to show the bonafide of the Public Interest Litigant.  The  appellant has also filed two affidavits clearly explaining the source from which amount of  Rs.1 lakh came to be deposited in the High Court.  However, the High Court made an  observation that the source explained by the appellant for depositing Rs.1 lakh does not  merit acceptance and they have serious doubt about the source from which Rs.1 lakh came  to be deposited before the High Court. The High Court, in our opinion, has entered into an  unwarranted discussion in regard to the deposit made by the appellant and the source from  which the said amount of Rs.1 lakh came to be deposited.  When a petition was filed for  reviewing the earlier order, another Division Bench of the High Court committed the same  error by dismissing the Petition and did not permit the appellant to withdraw the sum of Rs. 1  lakh.          We have perused the affidavits filed by the appellant herein.  No counter  affidavit was filed by any of the respondents disputing the statement made by the appellant  in regard to the deposit made and the source from which the said deposit was made.  The  High Court has unnecessarily gone into an unwarranted controversy and then rendered the  finding by rejecting the request of the appellant for withdrawal of the amount of Rs.1 lakh  in  spite of the dismissal of the Writ Petition as having become infructuous.  The High Court  has also not ordered the payment of Rs.1 lakh to any person.         Before us, the State is the only contesting respondent.  The other respondents  have not appeared before us.         We are of the opinion that the two orders passed by the High Court rejecting the  prayer of the appellant herein is not correct and is liable to be interfered with.  We,  therefore, have no hesitation to set aside the orders passed by the High Court in the Civil  Applications.  The Registry of the High Court of Judicature at Bombay, Nagpur Bench,  Nagpur is directed to refund the sum of Rs.1 lakh forthwith to the appellant.  If the amount   is deposited in any bank, the appellant shall be entitled to Rs.1 lakh together with the int erest  accrued thereon.         The appeals are allowed accordingly.  There shall be no order as to costs.