Calcutta High Court
Smt. Urmila Bharuka vs Union Of India (Uoi) And Ors. on 22 February, 1995
Equivalent citations: [1999]97COMPCAS16(CAL)
Author: Satya Brata Sinha
Bench: Satya Brata Sinha
JUDGMENT Satya Brata Sinha, J.
1. This application is directed against an order dated February 1, 1994, passed by the Joint Director (SE), Government of India, Ministry of Finance, Department of Economic Affairs, in exercise of his powers conferred upon him under Section 22 of the Securities Contracts (Regulation) Act, 1956, allowing the appeal preferred by Coventry Spring and Engineering Company Limited, respondent No. 5 (hereinafter called and referred to as "the company"), against a purported deemed order of rejection of the Calcutta Stock Exchange Association Limited, respondent No. 3 herein relating to the application filed for listing of the shares. The facts of the matter are as follows :
2. On or about February 24, 1993, the company offered 21,70,000 equity shares of Rs. 10 each at a premium of Rs. 35 per share aggregating to Rs. 976.50 lakhs to the public for subscription on terms and conditions contained in the prospectus which is contained in annexure "A" to the writ application. In terms of the said prospectus the public issue was to open on March 30, 1993, and the first date of closing thereof was April 3, 1993, whereas the last date of closing was April 10, 1993. The petitioner applied for allotment of 100 shares on April 7, 1993. On June 5, 1993, a publication was issued in the daily newspaper Business Standard wherein the following particulars were stated :
(i) The total number of shares that have been applied for pursuant to the said public issue was only 1,24,800 as against 21,70,000 shares offered to the public for subscription.
(ii) The total number of applications received were 1,036.
(iii) The total amount of money which had been deposited pursuant to the said offer was Rs. 28,08,000.
(iv) Only 5.75 per cent. of the issue had been subscribed.
3. The contention of the petitioner is that 120 days having expired from February 24, 1993, i.e., the date of first issue of the shares, and as no permission has been granted by the concerned stock exchanges permitting shares of the company being offered to the public to be dealt with in any of the stock exchanges and only 5.75 per cent. of the said issue has been subscribed to the company as also in view of the fact that guidelines for listing of securities on recognised stock exchanges in terms of the circular letter dated November 2, 1992, as also the provisions of sections 69 and 73 of the Companies Act, 1956, having not been satisfied, the company was under an obligation to forthwith refund all moneys received from the applicants. It is, however, admitted that the company obtained relaxation in terms of Rule 19(2)(b) of the Securities Contracts (Regulation) Rules, 1957, to the effect that in place and instead of 60 per cent. of the shares offered to the public it might offer 41.33 per cent. thereof.
4. It has been urged that despite non-compliance with the aforementioned provisions, a publication was issued in the Statesman, Calcutta, on July 19, 1993, which is contained in annexure "D" to the writ application, purporting to contend therein that on July 16, 1993, allotment of shares had been made by the company on 1 : 1 basis to the applicants thereof.
5. The petitioner filed a suit in this court in its ordinary original jurisdiction being Suit No. 259 of 1993. She, in the said suit, also obtained leave of this court to sue in a representative capacity in terms of Order 1, Rule 8 of the Code of Civil Procedure. Various interim orders had been passed in the said suit as also by the appellate court on appeal taken therefrom.
6. It is stated that the injunction application filed in the said suit has been rejected. In an appeal from an interim order, before the appellate court, however, the company disclosed that an appeal preferred by it before the Central Government in terms of Section 22 of the Securities Contracts (Regulation) Act, 1956, was pending. The Division Bench of this court by an order dated December 23, 1993, directed the Central Government to hear all the parties interested in the matter before taking any decision. The said order was communicated to respondent No. 2 (the appellate authority), on December 27, 1993. The petitioner was given an opportunity of hearing by respondent No. 2 on January 18, 1994, whereafter by reason of the impugned order dated February 1, 1994, and the said appeal was allowed. It is contended that the petitioner also filed a written note of submissions before the said authority.
7. The petitioner in this application has raised several contentions. It is, firstly, contended that there has been a flagrant violation of the provisions as contained in sections 69 and 73 of the Companies Act.
8. My attention was drawn to the fact that on April 15, 1993, the company issued a certificate to the following effect :
"This is to certify that based on the collections reported by the various collecting bank-branches to the public issue of Coventry Spring and Engineering Company Ltd. the tentative collection figures as on April 10, 1993, are as follows :
Total applications ; 1,036 ;
Total shares applied for : 1,21,800 ;
Total amount received : Rs. 28,08,000."
9. However, on June 14, 1993, a letter was issued to respondent No. 2 wherein the company disclosed that-
"Firstly, the company had obtained 1,420 numbers of applications assumed from the public as on April 10, 1993. The figure 1,163 quoted in the letter is based on 1,036 numbers applications from the public and 127 numbers of application from the underwriters, The figure 127 numbers of application from the underwriters is based on the contention that the underwriters will send in one application to honour his obligations. This contention is not entirely correct as clause No. 4(b) of the underwriting agreement clearly states that :
"The underwriters shall within fourteen days from the notification referred to in Sub-clause (a) above, apply for shares or procure them to be applied for, the application being accompanied by a remittance equal to the amount fixed by the prospectus as due upon application,' A copy of the said agreement is annexed for your record. So at the stage it cannot be ascertained how many applications will be sent by the underwriters to honour 130 their commitment till the expiry of the time limit to meet their obligations.
We feel that unless the correct figures are made available to you it will be very difficult to form an opinion on the subject."
10. On July 3, 1993, the company had written a letter to one of the underwriters stating :
"It is stated that ;
(1) The company has till date received 2,085 numbers of applications from the public and 18 underwriters.
(2) The minimum number of applications still to be received from the reasoning underwriters including yourself is 109 numbers.
In respect of the requirement of a minimum subscription amount of 901 of the issue, it is essential that the underwriters (including yourself) immediately send in the applications for the shares committed. As per section (sic) of the Companies Act, 1956, it is assured that the shares have been applied for by the underwriters.
We hope it is now clear that the shares of the company shall definitely be listed in the said stock exchanges. Already applications have been made to the appropriate authority for permission to listing of the shares."
11. It has been submitted that respondent No. 5 had given different figures relating to applications for allotment of shares at different points of time. It has also been submitted that even assuming that there were 130 underwriters, although, according to the petitioner, an underwriter agreement cannot be treated to be an application for allotment of shares, there had been 1,036+130 applicants which is far below the required number applications in terms of the said prospectus.
12. It has further been submitted that there is nothing on record to show as to when the appeal petition was filed but the authorised representative of the company at the hearing of the appeal categorically stated that the appeal petition is dated April 20, 1993, which allegedly was recorded in the notes of argument submitted to respondent No. 2 with a copy to the advocate for the company at Calcutta.
13. My attention has further been drawn to the fact that no express order was passed by the Calcutta Stock Exchange refusing the prayer of the petitioner to list the shares. It has been pointed out that a prayer was made by the company before respondent No. 3 for relaxation of the provisions of Rule 19(2)(b) of the Securities Contracts (Regulation) Rules for listing of shares. By another letter dated April 20, 1993, the company requested the secretary of respondent No. 3 to the following effect :
"The company expects to receive minimum subscription amount of 90 per cent. of the issue within 120 days from the date of opening of the issue from public including development of underwriters. The company will be able to submit formal application for listing only after getting minimum subscription of 90 per cent. of the issue. The underwriters to the above public issue have asked the company to obtain necessary letters from the stock exchanges where listing is proposed that prima facie there is no objection to the listing and that listing permission shall be granted subject to 90 per cent. subscription being received by the company. The receipt of these letters is a precondition for discharge of their underwriting obligation.
We, therefore, request you to kindly issue us a letter confirming your in-principle grant of permission for listing of the company's equity shares provided 90 per cent. subscription is received by the company."
14. However, respondent No. 3 in terms of its letter dated May 8, 1993, requested the company to proceed as per the provisions of Section 73 of the Companies Act, 1956, and the guidelines issued by the Securities and Exchange Board of India.
15. It has been submitted that the petition of appeal dated June 21, 1993, filed by the company from the said order dated May 8, 1993, was barred by limitation, It is submitted that no prayer had been made for condonation of delay and in any event keeping in view the fact that more than one month had elapsed from the date of the order passed by respondent No. 3 dated May 8, 1993, the delay in filing the appeal could no! have been condoned. It was further submitted that in any event 120 days having expired from the date of opening of the issue on April 10, 1933, the appeal was barred by limitation as the order refusing to list would be deemed to have been rejected on expiry thereof.
16. It has been contended that on the date of closure of the issue no application for listing of the shares was filed and thus the appeal was wholly misconceived, as would be evident from the company's letter dated April 20, 1993. It has further been pointed out that the requirement of Clause 13(c) of the guidelines issued by the Central Government having not been waived ; the company was also bound to comply with the said condition. It has further been submitted that respondent No. 2 misdirected itself in passing the impugned order as it had heard the company behind the back of the petitioner. It was contended that there has been a gross violation of the principles of natural justice as some authorities had been quoted although the same had not been cited before the advocate of the petitioner nor had the documents referred to in the impugned order been filed in his presence. It was further pointed out that a note of argument was filed on January 29, 1994, which is at page 236 of the writ petition wherein it has categorically been recorded that the representative of the company merely stated that except the petition of appeal he does not intend to rely upon any documents or make any other submission.
17. Mr. Pratap Chatterjee, learned counsel appearing on behalf of the petitioner, submitted that keeping in view the fact that there has been a gross violation of the principles of natural justice, this court should set aside the impugned order. Learned counsel in support of the aforementioned contention has relied upon a decision in National Textile Workers' Union v. Ramakrishnan (P. R.) , and D. K. Yadav v. J. M. A Industries Ltd. .
18. Learned counsel submitted that, in the circumstances of this case, this court should issue a writ of certiorari.
19. Reliance in this connection has been placed on Syed Yakoob v. K. S. Radhakrishnan, , and Calcutta Shipping Bureau v. Calcutta Port Trust, ,
20. Learned counsel submitted that compliance with the provisions of Section 73 of the Companies Act was mandatory and failure to do so would invalidate the listing.
21. Reliance in this connection has been placed on Mannalal Khetan v. Kedar Nath Khetan and Raymond Synthetics Ltd. v. Union of India [1992] 73 Comp Cas 762 (SC).
22. It has been urged that although the aforementioned decisions were cited before respondent No. 2, he did not take the same into consideration whereas he took into consideration the decision of the Supreme Court as also a decision of the Punjab and Haryana High Court in Naini Gopal Lahiri v. State of U. P. [1965] 35 Comp Cas 30 (SC) and Pioneer Co. v.
Kaithal Cotton and General Mills Ltd. [1970] 40 Comp Cas 562 (P & H) although the same had not been cited by the company in the presence of counsel for the petitioner.
23. Learned counsel submitted that in this case respondent No. 5 has agreed to treat the application for vacating the stay as its affidavit-in-oppo-sition and in view of the fact that the allegations made in the writ petition particularly those made in paragraphs 16, 18, 19 and 20 having not been specifically denied, they would be deemed to have been admitted. Reference in this connection has been made to 5m*. Naseem Bano v. State of U. P., .
24. Learned counsel submitted that as the appeal was barred under the law of limitation, it could not have been condoned in exercise of its inherent jurisdiction or in terms of Section 5 of the Limitation Act.
25. Reliance, in this connection, has been made to Sakuru v. Tanaji, .
26. It was also submitted that as the petitioner has directed substantial interest in the subject-matter of the appeal, this writ petition is maintainable at her instance. Reliance, in this connection, has been placed on-
(i) Municipal Committee, Bhatinda v. Land Acquisition Collector ;
(ii) Milapa Ram v. State of Jammu and Kashmir, AIR 1976 J & K 78 ;
(iii) Rex v. Richmond Confirming Authority Ex parte Howitt [1921] 1 KB 248 ;
(iv) Jasbhai Motibhai Desai v. Roshan Kumar, Haji Bashir Akmed, .
26. It was also submitted that the order dated February 1, 1994, passed by the Central Government is beyond the scope of the suit.
27. Reliance, in this connection, has been placed on Century Spinning and Manufacturing Co. Ltd. v. Ulhasnagar Municipal Council, .
28. Mr. Anindya Mitra, learned counsel appearing on behalf of respondent No. 5, inter alia, submitted that keeping in view the fact that issuance of writ by this court is discretionary, this court should not exercise its jurisdiction under Article 226 of the Constitution as the petitioner has already filed a suit covering the same subject-matter which is still pending. It has been submitted that the petitioner had made prayers for grant of interlocutory orders in the said suit having failed to obtain the same this writ application has been filed. Mr. Mitra further submitted that the writ petitioner has no locus standi to question the order of the Central Government as before the Central Government, only the company and the stock exchange were necessary parties. It has been submitted that in terms of the provisions of Section 22 of the Securities Contracts (Regulation) Act, the appeal was to be heard only in the presence of the stock exchange and the company but the hearing was given to the petitioner only pursuant to the order of this court and in this view of the matter, the petitioner cannot contend that there has been a violation of the principles of natural justice.
29. It was submitted that as the petitioner was not the affected party, she did not have any legal right to question the appellate order passed by the Central Government, Reliance in this connection has been placed on Ved Gupta v. Apsara Theatres . It was further submitted that this writ application essentially involves a private dispute between the petitioner and respondent No. 5 and, thus, the same is not entertainable. Reliance in this connection has been placed in Mohan Pandey v. Smt. Usha Rani Rajgaria, . It was further sub-mitted that, in any event, the petitioner had been given a patient and adequate hearing which was acknowledged by her by a letter dated January 29, 1994.
30. Alternatively, it was submitted that the order of this court dated December 23, 1993, passed in the aforementioned suit, did not entitle the petitioner to be heard as she was not a party interested therein and, in any event, if there was a violation of the said order, the petitioner should have filed an application in the aforementioned suit and on that ground too the writ application was not maintainable.
31. Mr. Mitra further submitted that the grievance of the petitioner to the effect that the appellate authority heard the Calcutta Stock Exchange and respondent No. 5 on January 12 and 18, 1994, is immaterial as on those days adjournment had been sought for by the petitioner. It has been submitted that prior notice had been given to the petitioner by the appellate authority through a fax message, which fact has been suppressed by the petitioner. Learned counsel further submitted that keeping in view the fact that the representative of the stock exchange as also respondent No. 5 came from Calcutta at the time fixed by the court, hearing had been given to the parties who were present. Mr. Mitra submitted that, in fact, the petitioner wanted to stall the hearing by seeking adjournment. Mr. Mitra submitted that this court is not concerned with the merits of the decision of the appellate authority but its decision-making process. It was further submitted that the conduct of the petitioner is mala fide and on that ground too no relief should be granted to her. In respect of the aforesaid submission the following facts have been brought to my notice :
(a) The writ petitioner applied for only 100 shares at the rate of Rs. 45 each (including premium) aggregating to Rs. 4,500 out of which a sum of Rs. 2,500 was paid with the application.
(b) Although the stake of the petitioner was only Rs. 2,500 she had taken many legal proceedings challenging public issue involving Rs. 976.5 lakhs particularly when in terms of provisions of Section 71 of the Companies Act, 1956, the person concerned can avoid their allotment and obtain refund.
(c) She filed Suit No. 259 of 1993 on July 20, 1993, moved for an interim order and obtained an ex parte order and again orally applied for further interim order in the court of S. K. Hazari J. which was supported by the underwriters.
32. It was further stated that even before notice under Order 1, Rule 8 of the Civil Procedure Code was advertised in the Economic Times on July 31, 1994, two underwriters appeared in the case on July 28, 1994, and July 29, 1994, and obtained further interim orders. The matter appeared on various days either before the trial judge or before the appeal court and ultimately on November 9, 1994, all interim orders were vacated and the application was dismissed by A. N. Ray J. On November 15, 1994, the petitioner again preferred an appeal from the said order and obtained an ex parte interim order, which is said to have been dismissed during the pendency of this petition. The contention of respondent No. 5, therefore, is that the petitioner appears to have spent a huge amount which is totally disproportionate to her involvement in the matter which is for a sum of Rs, 2,500 and thus it is obvious that the underwriters have filed this writ application through the petitioner with a view to avoid their contractual liabilities.
33. It was submitted that as interim order has been refused to be passed by the learned trial judge as also by the learned appellate court, the allotment letters have been despatched to the applicants and the remaining payments have been received. The shares of respondent No. 5 have also been listed by the stock exchanges and thus the order of the Central Government has already been given effect to and implemented. Mr. Mitra further submitted that the public issue of over Rs. 9 crores would be jeopardised in the event any order is passed in this writ application and, therefore, justice demands that this court should not exercise its extraordinary constitutional writ jurisdiction, particularly ; in view of the fact that the petitioner can adequately be compensated in damages.
34. Mr. Mitra further submitted that all other points which have been ques tioned in this application are, viz. :
(a) non-compliance with Section 69 of the Companies Act ;
(b) non-compliance with Section 73 of the Companies Act ;
(c) Rule 19(2)(b) of the Securities Contracts (Regulation) Rules ;
(d) public issue is void ;
(e) no proper application to stock exchanges ;
(f) no proper appeal ; and
(g) appeal, if any, is time-barred, and pending consideration in the aforementioned suit.
35. It was further submitted that it is not correct to contend that the appeal was barred by limitation. According to Mr. Mitra, respondent No. 5 filed an application for listing of shares on February 3, 1993, as would be evident from the prospectus itself. It is stated that the date of closure of the issue was April 10, 1993. It was submitted that ten weeks from the said date expired on June 19, 1993, and the appeal was filed on June 21, 1993. Learned counsel submitted that, in any event, the Central Government in terms of the provisions of the said Act could have condoned the delay in filing the appeal and it having entertained the appeal, the same would be deemeu to have been condoned. Learned counsel submitted that it is not correct to contend that respondent No. 5 sought for listing of the shares before the different stock exchanges by its letter dated April 20, 1993, as it would appear from the said letter that only provisional confirmation had been asked for. It is now well known that the court does not countenance trial in two proceedings simultaneously.
36. Keeping in view the fact that a suit is pending in this court relating to the self-same subject-matter, I do not intend to consider the respective submissions made by learned counsel with regard to the issues involved in the suit. In Jai Singh v. Union of India , it was held :
"In our opinion, the appellant cannot pursue two parallel remedies in respect of the same matter at the same time."
37. The only question, therefore, which can be considered in this writ application is as to whether the impugned judgment and order passed by the Central Government as an appellate authority in terms of the provisions of the Securities Contracts (Regulation) Act, as contained in annexure "W" to the writ application is invalid or not. It is not in dispute that the petitioner, but for the order of this court was not entitled to an opportunity of being heard inasmuch as in terms of Section 22 of the said Act the stock exchange and the company who had made the application for listing of shares are the necessary parties. According to respondent No. 5, the petitioner was asking the appellate authority not to dispose of the appeal on the ground that the matter is sub judice in this court in the aforementioned suit.
38. Respondent No. 5 got the matter listed for a clarification as to whether the interim order passed in such a situation stands in the way of the Central Government to dispose of the appeal. By order dated December 23, 1993, as contained in annexure "P" to the writ application, a Division Bench of this court directed the Central Government to hear all the parties interested in the matter in connection with the appeal preferred by the company purported to be in terms of Section 22 of the said Act and the decision thereof was directed to be communicated within six weeks. Admittedly, pursuant to the aforementioned order a hearing had been given to the petitioner. A copy of the petition of appeal filed by the respondent-company was also served on the petitioner without prejudice to its rights.
39. From the records it appears that the petitioner's advocate filed an appli-cation for a short adjournment on the date fixed, viz., January 18, 1994. The prayer for the petitioner was acceded to but according to the respondents, counsel for the stock exchange as also the respondent No. 5 were heard as their counsel had come from Calcutta.
40. From the letter dated January 20, 1994, issued by the advocates of the petitioner and addressed to respondent No. 2, it appears that while forwarding a copy of the order of this court dated December 27, 1993, in Suit No. 259 of 1993, it was specifically requested that one week's notice of hearing be given for further hearing. Evidently, therefore, counsel for the petitioner was aware that at least on January 18, 1994, hearing had taken place. Despite the same, the petitioner did not ask for a de novo hearing nor did she ask for any information with regard to the arguments advanced by the stock exchange and/or the petitioner.
41. It is, however, true that so far as hearing dated January 12, 1994, is concerned, no notice was served upon the petitioner.
42. From the impugned order dated February 1, 1994, as contained in annexure "W" to the writ application it appears therefrom that respondent No. 2 did not intimate the advocate of the petitioner that on January 12, 1994, the matter would be heard. However, it appears from the impugned order that on the said date submissions had been made by the Calcutta Stock Exchange as also the representative of the company. From the minutes of the proceedings held on January 12, 1994, which is contained in paragraphs 3 to 5 of the impugned judgment, it does not appear that any contention had been raised therein on behalf of respondent No. 5 regarding the factual aspect which had not been within the knowledge of the petitioner. It is, however, evident, that on that date a judgment of the Supreme Court and a judgment of the Punjab and Haryana High Court had been cited. Again, in the second hearing the representative of the stock exchange and the company were heard.
43. The petitioner was given an opportunity of being heard on January 27, 1994. The petitioner also filed detailed notes of submission covering both factual as also the legal aspects of the matter which is at page 236 of the writ petition. In the said written submission also it was clearly stated that the entire matter including the issue and allotment of shares is sub judice before this court in the aforementioned Suit No. 259 of 1993. Paragraphs 6 and 7 of the said written notes of submission dealt with the merits of the matter. Therein a decision of the Supreme Court in Man-nalal Khetan v. Kedar Nath Khetan , had also been cited. Thus, it cannot be said that the petitioner was in any way prejudiced by reason of her being not represented on January 12, 1994, and January 18, 1994, before respondent No. 2.
44. The order dated December 23, 1993, passed by this court if literally interpreted, as is sought to be done by Mr. Chatterjee, would entail an impossible result inasmuch as it is not possible for the appellate authority to give hearing to all parties interested on all the dates fixed therefor, particularly, in view of the fact that on the showing of the petitioner herself, there were 1,036 applicants. Moreover, by reason of the impugned order no civil consequence had ensued so far as the petitioner is concerned. The petitioner would be entitled to raise all the contentions on the merits of the matter in the aforementioned suit itself.
45. It may also be noted that this court merely directed that a hearing be given by the Central Government prior to taking any decision in the matter. The order of this court, therefore, has substantially been complied with. Even if the petitioner had any grievance with regard to non-compliance with this court's order, it could have filed an application for amendment of plaint in the suit itself but for that matter, in my opinion, without showing any real prejudice, the petitioner cannot be permitted to question the legality of the impugned order on the ground of violation of the principles of natural justice.
46. However as learned counsel for the parties have addressed me at great length on the said issue, the same may be considered.
47. So far as non-furnishing of the letter dated June 29, 1993, is concerned, it appears that the petitioner had sought for inspection of the documents from the respondent-company. The company stated that as all the letters of its file are before the appellate authority, the petitioner may take inspection of the relevant documents from the said records. It is stated that despite the same an inspection has been taken by the petitioners. The contention of Mr. Chatterjee to the effect that from the impugned order it does not appear that the said letter dated June 29, 1993, was placed before the Central Government on January 27, 1994, in the presence of the petitioner, cannot be accepted as there is nothing on record to show that the said letter was not already on records of the Central Government.
48. It appears from the letter dated January 24, 1994, addressed by Sri Tarun Kumar Gupta to Messrs. Khaitan and Co., that therein it was specifically stated that "all necessary and relevant documents have duly been filed with all statutory authorities as required and if your client so requires and/or if you are permitted ; you can have inspection of the same therein".
49. The petitioner also in the grounds in the writ application had referred to the said letter dated June 29, 1993, stating that the figures contained therein were contrary to the figures submitted by the company in its earlier letters. The other letter dated July 3, 1993, wherein the figures relating to the number of application, etc., appear at page 188 of the writ application. Evidently, the aforementioned letter dated July 3, 1994, contains similar information and on that ground too it cannot be said that any real prejudice has been caused to the petitioner.
50. There cannot be any doubt that the principles of natural justice are required to be complied with by any authority exercising administrative, quasi judicial or judicial functions.
51. In Ved Gupta v. Apsara Theatres the Supreme Court held that a partner of a firm which was a licensee under the Cinematographic Act is not entitled to hearing.
52. In Bishnu Ram Borah v. Parag Saikia, , the apex court observed in para. 16, at page 904 :
"Normally, the Board is entitled to rely upon the word of the Deputy Commissioner. It is expected that the Deputy Commissioner would always act with a sense of responsibility. Secondly, the report of the Deputy Commissioner was confidential in nature. There was no question of the Board disclosing the contents of the report to respondents Nos. 1 and 2. Further, respondents Nos. 1 and 2 never made a demand for a copy of the report, and even if such a request was made, the Board would have been fully justified in not furnishing the same. Such a refusal would not amount to denial of natural justice for the obvious reason that the rules of natural justice must necessarily vary with the nature of the right and the attendant circumstances."
53. It was also held (page 903) :
"There was nothing on record to show that the Board had acted in excess of jurisdiction or there was an error apparent on the face of the record which resulted in manifest injustice."
54. In Mohinder Singh Gill v. Chief Election Commissioner, , it was held (page 876) :
It was argued, based on rulings relating to natural justice, that unless civil consequences ensued, hearing was not necessary. A civil right being adversely affected is a sine qua non for the invocation of the audi alteram partem rule. This submission was supported by observations in Ram Gopal Chaturvedi v. State of Madhya Pradesh, ; Union of India v. J. N. Sinha, . Of course, we agree that if only spiritual censure is the penalty temporal laws may not take cognizance of such consequences since human law operates in the material field although its vitality vicariously depends on its morality. But what is a civil consequence, let us ask ourselves, by passing verbal booby-traps ? 'Civil consequences' undoubtedly cover infraction of not merely property or personal rights but of civil liberties, material deprivations and non-pecuniary damages. In its comprehensive connotation, everything that affects a citizen in his civil life inflicts a civil consequence.
55. "Civil" is defined by Black Law Dictionary, 4th edition, at page 311 :
"Ordinally, pertaining or appropriate to a member of a civitas of free political community ; natural or proper to a citizen. Also, relating to the community, or to the policy and government of the citizens and subjects of a State.
The word is derived from the Latin civilis, a citizen ..... In law, it has various significations."
56. "Civil rights" are such as belong to every citizen of the State or country, or, in a wider sense, to all its inhabitants, and are not connected with the organisation or administration of the Government. They include the rights of property, marriage protection by the laws, freedom of contract, trial by jury, etc..... Or, as otherwise defined, civil rights are rights appertaining to a person in virtue of his citizenship in a State or community. Rights capable of being enforced or redressed in a civil action. Also a term applied to certain rights secured to citizens of the United States by the Thirteenth and Fourteenth Amendments to the Constitution, and by various Acts of congress made in pursuance thereof, (page 1487 Black's Legal Dictionary),
57. The interest of a candidate at an election to Parliament regulated by the Constitution and the laws comes within this gravitational orbit. The most valuable right in a democratic polity is the "little man's little pencil marking, assenting or dissenting, called his vote. A democratic right, if denied, inflicts civil consequences. Likewise, the little man's right, in a representative system of government, to rise to Prime Ministership or Presidentship by use of the right to be candidate, cannot be washed away by calling it of no civil moment. If civics means anything to a self-governing citizenry, if participatory democracy is not to be scuttled by the law, we shall not be captivated by catchwords. The straightforward conclusion is that every Indian has a right to elect and be elected and this is a constitutional as distinguished from a common law right and is entitled to cognizance by courts subject to statutory regulation. We may also notice the further refinement urged that a right accrues to a candidate only when he is declared returned and until then it is incipient, inchoate and intangible for legal assertion--in the twilight zone of expectancy, as it were. This too, in our view, is legicidal sophistry. Our system of "ordered" rights cannot disclaim cognizance of orderly processes as the right means to a right end. Our jurisprudence is not so jejune as to ignore the concern with means as with the end, with the journey as with the destination. Every candidate, to put it cryptically, has an interest on right to fair and free and legally run election. To draw lots and decide who wins, if announced as the electoral methodology, affects his right, apart from his luckless rejection at the end. A vested interest in the prescribed process is a pro-cessual right, actionable if breached the Constitution permitting. What is inchoate, viewed from the end, may be complete, viewed midstream. It is a subtle fallacy to confuse between the two. Victory is still an expectation ; quo modo is a right to the statutory procedure. The appellant has a right to have the election conducted not according to humour or hubris but according to law and justice. And so natural justice cannot be stumped out on this score. In the region of public law locus standi and person aggrieved, right and interest have a broader import. But, in the present case, the Election Commission contends that a hearing has been given although the appellant retorts that a vacuous meeting where nothing was disclosed and he was summarily told off would be strange electoral justice. We express no opinion on the factum or adequacy of the hearing but hold that where a candidate has reached the end of the battle and the whole poll is upset, he has a right to notice and to be heard, the quantum and quality being conditioned by the concatenation of circumstances.'
58. In Bihar School Examination Board v. Subhas Chandra Sinha, , the apex court held that in a case of mass copying, the Board was not obliged to comply with the principles of natural justice.
59. Mr. Chatterjee has relied upon the decision in National Textile Workers' Union v. P. R. Ramakrishnan . In that case, the question which arose for consideration before the Supreme Court was as to whether in a winding up proceeding of a company under Section 433 of the Companies Act, the workmen are necessary parties or not. The Supreme Court observed in paragraph 11 of the said decision at page 88 (page 207 of Comp Cas) ;
"We are, therefore, of the view that the workers are entitled to appear at the hearing of the winding up petition whether to support or to oppose it so long as no winding up order is made by the court. The workers have a locus to appear and be heard in the winding up petition both before the winding up petition is admitted and an order for advertisement is made as also after the admission and advertisement of the winding up petition until an order is made for winding up the company. If a winding up order is made and the workers are aggrieved by it, they would also be entitled to prefer an appeal and contend in the appeal that no winding up order should have been made by the company judge. But when a winding up order is made and it has become final, the workers ordinarily would not have any right to participate in any proceeding in the course of winding up the company though there may be rare cases where in a proceeding in the course of winding up, the interest of the workers may be involved and in such a case it may be possible to contend that the workers must be heard before an order is made by the court."
60. In D. K. Yadav v. J. M. A. Industries Ltd. , the Supreme Court was considering as to whether the provisions of certified standing orders in terms whereof the services of a workman can automatically be terminated were ultra vires Article 14 of the Constitution and Section 23 of the Indian Contract Act. The Supreme Court observed that there can be no distinction between quasi-judicial function and administrative functions for the purpose of the principles of natural justice. The aim of both administrative inquiry as well as the quasi-judicial inquiry is to arrive at a just decision and if a rule of natural justice is calculated to secure justice, or to put it negatively, to prevent miscarriage of justice, it is difficult to see why it should be applicable only to quasi-judicial inquiry and not to administrative inquiry. It must logically apply to both.
61. There cannot be any dispute so far as the aforementioned proposition of law is concerned.
62. The basic principles of natural justice, as is well known, are based upon two basic principles, viz., audi alteram partem and nemo debet esse judex in propria causa.
63. The principles of natural justice have been developed by the apex court from time to time adding new concepts therein. In some decision, the apex court has held that the principles of natural justice are established in Article 14 of the Constitution.
64. It is also well known that the rule of natural justice must not be stretched too far as only too often, the people who have done wrong seek to invoke the rules of natural justice so as to avoid the consequence (see 1976 AIR 696).
65. In Union of India v. Tulsi Ram Patel, , the Supreme Court of India held :
"Principles of natural justice are not the creation of Article 14 of the Constitution of India but merely they are constitutional guardian. The principles of natural justice can trace their ancestry to ancient civilizations and long past history."
66. The Supreme Court in that case traced the history of the principles of natural justice in paragraphs 72 to 80 of the judgment and, thereafter, discussed various principles involved therein in paragraphs 81 to 83 thereof.
67. The Supreme Court held :
"The principles of natural justice have thus come to be recognised as being a part of the guarantee contained in Article 14 because of the new and dynamic interpretation given by this court to the concept of equality which is the subject-matter of that article,"
68. Shortly put the syllogism runs thus : violation of a rule of natural justice results in arbitrariness which is the same as discrimination, where discrimination is the result of State action, it is a violation of Article 14. Article 14, however, is not the sole repository of the principles of natural justice. What it does is to guarantee that any law or State action violating them will be struck down. The principles of natural justice, however, apply not only to legislation and State action but also where any tribunal, authority or body of men, not coming within the definition of 'State' in Article 12, is charged with the duty of deciding a matter. In such a case, the principles of natural justice require that it must decide such matter fairly and impartially."
69. In Tulsi Ram Patel's case, , the Supreme Court thereafter held that a statutory provision either specifically or by necessary implication may exclude application of the principles of natural justice. The Supreme Court, concluded that the principles of natural justice not only can be modified but also can be excluded.
70. In Union of India v. J. N. Sinha, . it has been held :
"But, if, on the other hand, a statutory provision either specifically or by necessary implication excludes the application of any or all the rules of principles of natural justice then the court cannot ignore the mandate of the Legislature or the statutory authority and read into the concerned provision the principles of natural justice. Whether the exercise of a power conferred should be made in accordance with any of the principles of natural justice or not depends upon the express words of the provision conferring the power, the nature of the power conferred, the purpose for which it is conferred, and the effect of the exercise of that power,"
71. Reference in this connection may also be made to R. S. Das v. Union of India, .
72. It is also well known that there are certain exceptions to the principles of natural justice,
73. In the case of Maharashtra State Board of Secondary and Higher Secondary Education v. K. S. Gandhi , it has been held (page 738) :
"From this perspective, the question is whether omission to record reasons vitiates the impugned order or is in violation of the principles of natural justice. The omnipresence and omniscience (sic) of the principle of natural justice act as a deterrent to arrive at an arbitrary decision in flagrant infraction of fair play. But the applicability of the principles of natural justice is not a rule of thumb or a straitjacket formula as an abstract proposition of law. It depends on the facts of the case, nature of the inquiry and the effect of the order/decision on the rights of the person and attendant circumstances."
74. In National Institute of Mental Health and Neuro Sciences v. K. K. Raman, , it has been held that for selection or non-selection of a person in the absence of a statutory requirement, the authority is under no legal obligation to record reasons in support of his decision and even the principles of natural justice have no application in such a case.
75. The Supreme Court in the case of Dr. Suresh Chandra Verma v. Chancellor, Nagpur University held as follows :
"When, therefore, the services of the appellants are to be terminated in view of the change in the position of law and not on account of the demerits or misdemeanour of individual candidates, it is not necessary to hear the individuals before their services are terminated."
76. Recently, the Supreme Court in Baikuntha Nath Das v. Chief District Medical Officer has held that before passing the order of compulsory retirement principles of natural justice are not required to be complied with nor even adverse remarks against the concerned employees are required to be communicated. The Supreme Court held (page 316) :
"Before parting with the case, we must refer to an argument urged by R. K. Garg. He stressed what is called, the new concept of Article 14 as adumbrated in Maneka Gandhi v. Union of India, , and submitted on that basis that any and every arbitrary action is open to judicial scrutiny. The general principle evolved in the said decision is not in issue here. We are concerned mainly with the question whether a facet of principle of natural justice--audi alterm partem--is attracted in the case of compulsory retirement. In other words, the question is whether acting upon undisclosed material is a ground for quashing the order of compulsory retirement. Since we have held that the nature of the function is not quasi-judicial in nature and because the action has to be taken on the subjective satisfaction of the Government, there is no room for importing the said facet of natural justice in such a case, more particularly when an order of compulsory retirement, is not a punishment nor does it involve any stigma."
77. In U. P. Junior Doctors' Action Committee v. Dr. B. Sheetal Nandwani, , it has been held that the principles of natural justice are not required to be complied with in a case where a candidate had secured admission on the basis of a forged certificate.
78. The Supreme Court in a recent decision in K. Balasubramanian (Ex. Capt.) v. State of Tamil Nadu has held (page 714) :
"This High Court, has in our opinion rightly held that the directions contained in orders dated November 16, 1976, and June 15, 1977, were invalid being contrary to the provisions contained in Rule 35 of the General Rules. Since the said orders were invalid, the petitioners would not claim any right on the basis of the said orders and, there was, therefore, no question of affording them an opportunity of a hearing before passing the order dated March 3, 1980."
79. In Ram Krishna Verma v. State of U. P. , it has been held that a party would not be entitled to his right of natural justice if undue advantage is obtained by protracting a proceeding somehow and nullifying the objective.
80. It is also well known that natural justice has to be viewed in circum-stantial flexibility.
81. It is also well settled that observance of the principle of natural justice is not necessary when it does not entail civil consequences.
82. As noticed hereinbefore, the petitioner had no right to intervene in the appeal preferred by the company. She was, thus, not a party interested in the subject-matter of the appeal. The provisions of the Act by necessary implication exclude hearing of any party other than the company and/or the concerned stock exchange.
83. The order of the writ court dated December 23, 1993, stated that all the parties interested in the matter shall be heard by the stock exchanges.
84. This court by its order could not have expanded the scope of Section 22 of the Act. It does not appear from the records that the provision of Section 22 of the said Acts was brought to the notice of the learned judges.
85. However, there is no doubt that all concerned interpreted the said order to mean that the petitioner as also others shall also be heard in the matter.
86. In General Medical Council v. Spackman [1943] AC 627, upon which Mr. Chatterjee, has relied it has been stated that the court cannot usurp the function of the tribunal nor can it dictate its procedures.
87. The petitioner, however, by reason of the impugned order has not suffered any civil consequences as the reliefs prayed for by her can be granted in the suit.
88. In Mohinder Singh Gill's case, , the apex court observed :
"We may not be taken to say that situational modifications to notice and hearing are altogether impermissible. They are, as the learned Additional Solicitor General rightly stressed. The glory of the law is not that sweeping rules are laid down but that it tailors principles to practical needs, doctors remedies to suit the patients, promotes, not freezes, life's processes, if we may mix metaphors."
89. It is, thus, evident that the order of this court has substantially been complied with.
90. Let me now consider the other decisions relied upon by Mr. Chatterjee.
91. In Mahabir Singh v. Emperor , a Full Bench of this court was considering the jurisdiction of a revisional court under Section 435 of the Criminal Procedure Code, 1898, in the matter of enhancement of sentences. The said decision, therefore, has no application to the facts of the present case.
92. In Bkopal Sugar Industries Ltd. v. ITO , the Supreme Court merely held that administrative discipline demands that the order passed by a superior officer should be obeyed by the inferior officer.
93. In General Medical Council v. Spaceman [1943] AC 627, the House of Lords, inter alia, held that despite a decree nisi passed by a divorce court, the General Medical Council, while seeking to remove a medical practitioner for infamous conduct, complying with the principles of natural justice.
94. In S. L. Kapur v. Jagmohan AIR 1981 SC 126, the Supreme Court laid down the law that the principles of natural justice have to be observed both in judicial proceedings as also in an administrative proceeding having a civil consequence.
95. The aforementioned decisions, therefore, are not applicable in the present case.
96. For the reason stated hereinbefore, I am of the view that in the fact-situation of the present case, there has been a substantial compliance with the principles of natural justice.
97. Moreover, the jurisdiction of this court to issue a writ of certiorari is limited.
98. In Rukmanand Bairoliya v. State of Bihar, , the Supreme Court laid down the parameters of jurisdiction of this court to issue a writ of certiorari stating that the decision of a statutory tribunal cannot be set aside by the High Court on purely assumptions and conjectures and there being no evidence whatsoever.
99. In Syed Yakoob v. K. S. Radhakrishnan, , upon which our challenge relied the Supreme Court held :
"It is, of course, not easy to define or adequately describe what an error of law apparent on the face of the record means. What can be corrected by a writ has to be an error of law ; but it must be such an error of law as can be regarded as one which is apparent on the face of the record. Where it is manifest or clear that the conclusion of law recorded by an inferior court or tribunal is based on an obvious misinterpretation of the relevant statutory provision or sometimes in ignorance of it, or may be, even in disregard of it, or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari."
100. In Calcutta Shipping Bureau v. Calcutta Port Trust, , which has again been referred to by Mr. Chatterjee a learned single judge of this court taking into consideration the aforementioned decision of the Supreme Court in Syed Yakoob v. K. S. Radhakrishnan, , held that the notice of demand of charges short-lived under Section 56 and subsequent confirmation of the same was based on no evidence and a writ of certiorari can be issued.
101. In T. C. Basappa v. T. Nagappa, , the Supreme Court again laid down the parameters of the jurisdiction of this court to issue a writ of certiorari.
102. In State of A. P. v. S. Sree Rama Rao, , it was held that this court does not sit as a court of appeal over the decisions of the authorities holding a departmental enquiry against a public servant. The apex court observed that this court is concerned to determine whether the enquiry is held by an authority and competent in that behalf and according to the procedure prescribed in that behalf and whether the rules of natural justice are violated. The Supreme Court further held that it is not concerned with the quantity of the evidence.
103. It is not necessary to multiply the decisions inasmuch as recently the Supreme Court in Tata Cellular v. Union of India held :
104. The duty of the court is to confine itself to the question of legality. Its concern should be (1) whether a decision-making authority exceeded its powers ?
(2) committed an error of law ;
(3) committed a breach of the rules of natural justice ;
(4) reached a decision which no reasonable Tribunal would have reached or ;
(5) abused its powers.
105. It is also a trite law that this court is not concerned with the merits of the decision but with the decision-making process.
106. In the case of Joint Registrar of Co-operative Societies v. P. S. Rajagopala Naidu , the Supreme Court has held that the High Court, under Article 226 of the Constitution, could not act as an appellate court and re-appraise and re-examine the relevant facts and circumstances which led to the making of the orders of supersession as if the matter before it, had been brought by way of appeal. It has been further held that the limits of the jurisdiction of the High Court under Article 226 of the Constitution when a writ in the nature of certiorari is to be issued are well known and well settled by now and it is pointless to re-state the grounds on which any such writ or direction can be issued.
107. In Union of India v. Upendra Singh , the Supreme Court held :
"The function of the court/tribunal is one of judicial review, the parameters of which are repeatedly laid down by this court. It would be sufficient to quote the decision in H. B. Gandhi, Excise and Taxation Officer-cum-Assessing Authority v. Gopi Nath and Sons [1992] Supp. 2 SCC 312. The Bench comprising M. N. Venkatachaliah J. (as he then was) and A, M. Ahmadi J. affirmed the principle thus :
'Judicial review, it is trite, is not directed against the decision but is confined to the decision-making process. Judicial review cannot extend to the examination of the correctness or reasonableness of a decision as a matter of fact. The purpose of judicial review is to ensure that the individual receives fair treatment and not to ensure that the authority after according fair treatment reaches, on a matter which it is authorised by law to decide, a conclusion which is correct in the eyes of the court. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It will be erroneous to think that the court sits in judgment not only on the correctness of the decision-making process but also on the correctness of the decision itself.'"
108. In view of the aforementioned authoritative pronouncement, in my opinion, it would not be proper for this court to exercise its extraordinary constitutional writ jurisdiction.
109. In this case no case has been made out for invoking this court's jurisdiction under Article 226 or 227 of the Constitution of India.
110. Mr. Chatterjee has referred to several decisions on the locus standi of the petitioner to maintain this writ application.
111. It is not and cannot be disputed that but for the aforementioned order dated April 23, 1993, the petitioner had no locus standi to intervene in the appeal preferred by the respondent against the order of the stock exchange. Only because the petitioner had applied for allotment of 100 shares, in my opinion, it cannot be said that the petitioner had a direct or substantial interest in the subject-matter of appeal. There cannot be any dispute over the proposition of law that any person who had a direct or substantial interest in the subject-matter, may maintain a writ application or prefer an appeal. However, in view of the fact that the petitioner was heard by the Central Government in terms of the order of this court dated December 23, 1993, I would presume that the petitioner has locus standi to maintain this writ application.
112. However, in all fairness to Mr. Chatterjee, the decisions cited by learned counsel may be noticed.
113. In Municipal Committee v. Land Acquisition Collector , the Supreme Court was considering the matter under the Land Acquisition Act and it was held that the municipal committee having been made a party by the Additional Deputy Commissioner, it was a necessary party. There cannot be any doubt that under the Land Acquisition Act the municipal committee was a party interested in the matter.
114. In Milapa Ram v. State of Jammu and Kashmir AIR 1976 J & K 78, the Jammu and Kashmir High Court was concerned with the grant of a certificate of permanent residentship in the State of Jammu and Kashmir. It was held that as the petitioner was a person aggrieved he could maintain a writ application.
115. In Rex v. Richmond Confirming Authority Ex parte Howitt [1921] 1 KB 248, the court was concerned with a grant of a licence to a rival trader.
116. In Jasbhai Motibhai Desai v. Roshan Kumar, Haji Bashir Ahmed, , it was held that for the purpose of invoking the certiorari jurisdiction, the petitioner should be an aggrieved person. The apex court observed in para. 12 of the judgment as follows (page 581) :
"According to most English decisions, in order to have the locus standi to invoke certiorari jurisdiction, the petitioner should be an 'aggrieved person' and in a case of defect of jurisdiction, such a petitioner will be entitled to a writ of certiorari as a matter of course, but if he does not fulfil that character, and is a 'stranger', the court will, in its discretion, deny him this extraordinary remedy, save in very special circumstances. This takes us to the further question : Who is an 'aggrieved person' ? And what are the qualifications requisite for such a status ? The expression 'aggrieved person' denotes an elastic, and, to an extent, an elusive concept. It cannot be confined within the bounds of a rigid, exact and comprehensive definition. At best, its features can be described in a broad tentative manner. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of the petitioner's interest, and the nature and extent of the prejudice or injury suffered by him. English courts have some times put a restricted and some times a wide construction on the expression 'aggrieved person'. However, some general tests have been devised to ascertain whether an applicant is eligible for this category so as to have the necessary locus standi or 'standing' to invoke certiorari jurisdiction."
117. The next question which arises for consideration in this application is as to whether the appeal was barred under the law of limitation.
118. According to respondent No. 5, the application was filed on February 3, 1993, and the date of closure of the issue was April 10, 1993, and thus ten weeks expired on June 10, 1993, and in that view of the matter, the appeal filed on June 21, 1993, must be held to be within time.
119. Mr. Chatterjee, on the other hand, submitted that from the letter dated April 20, 1993, which is at page 217 of the writ application, it would appear that a formal application was to be made later, which goes to show that no listing application was made to the stock exchange within time. However, in Clause 12 of the prospectus at page 138 of the writ application, a reference has been made to the initial listing application, which is required to be filed before issuance of the prospectus by the regional stock exchange. However, a second application was also filed before closing of the issue. The respondents contend that the words "formal application" as appearing in the letter dated April 20, 1993, was with reference to the second application and, thus, the contention that no application was made, is not correct. It has, further, been contended, as indicated hereinbefore, that in view of this letter dated April 20, 1993, only provisional confirmation was asked for, which had not specifically been refused.
120. Limitation, as is well known, is a mixed question of law and fact.
121. The appellate authority in its impugned judgment has proceeded on the basis that the appeal was filed against the order of deemed rejection.
122. This court, in view of its limited jurisdiction to issue a writ of certiorari, cannot enter into such a disputed question. If the Central Government upon considering all aspects of the matter was satisfied that the appeal was within time, this court, in my considered opinion, will not enter into a disputed question of fact for the purpose of holding as to whether the appeal was filed within the period of limitation or not.
123. There cannot, however, be any doubt whatsoever that a Tribunal of limited jurisdiction cannot condone the delay in filing an appeal in exercise of its inherent powers or under Section 5 of the Limitation Act, 1963, unless such power is expressly conferred under the statute. Reference, in this connection, may be made to Sakuru v. Tanaji, .
124. However, in terms of the provisions of the said Act, the Central Government could condone the delay in filing the appeal up to a period of one month.
125. In any view of the matter, it is now well known that this court does not exercise its jurisdiction under Article 226 of the Constitution of India merely because it is lawful to do so. In this case, as noticed hereinbefore, the petitioner has already filed a suit on the self-same cause of action. She also filed an application for interim order which, as noticed hereinbefore, has been considered not only by the learned judge trying the suit but also by the appeal court. Recently, by an order dated November 9, 1994, a learned single judge of this court in the aforementioned Suit No. 259 of 1993 dismissed the application for injunction. It was stated at the Bar that an appeal from the said order has also been dismissed. The involvement of the petitioner in the matter of purchase of shares is Rs. 4,500 as she had applied only for 100 shares. She had paid only a sum of Rs. 2,250 whereas the public issue is over Rs. 9 crores. In terms of the provisions of the Companies Act, 1956, the contract of buying of share is voidable at the instance of the petitioner.
126. In the event this application is allowed, the entire sum of Rs. 9 crores would be blocked which would be detrimental to the interest of a large number of applicants. The company also could not be able to utilise the capital in business. On the other hand, the petitioner can, as indicated hereinbefore, raise all questions in the aforementioned suit and in the event of success can be adequately compensated.
127. In Mahanth Motilal Gowsami v. State of Bihar [1994] BBCJ 74 ; [1994] 1 BLJ 130, 136 it has been held :
"Further, in any event, it is now well known that when by quashing of an illegal order by this court in exercise of jurisdiction under Article 226 of the Constitution of India another illegal order may revive, it may not quash the impugned order or may quash both the illegal orders.
Reference in this connection may be made to Pramod Kumar v. State of Bihar [1988] Pat LJR 923 and Suku Mahto v. State of Bihar [1992] 2 PLJR 134."
128. In Akhtar Jama Khan v. State of Bihar [1994] 1 PLJR 57, a Division Bench of the Patna High Court has held :
"It is further well known that sometimes a right of an individual has to give way to a right of the public in general. Reference in this connection may be made to Suku Mahto v. State of Bihar [1992] 2 PLJR 134 wherein it has been held as follows :
"This court, it is now well settled, while exercising its jurisdiction under Article 226 of the Constitution of India may refuse to exercise its jurisdiction in a given case'.
129. In Joy Bharat Transport Co. v. Central Coalfields Ltd. [1988] BLT 192, I had held :
"It is now well known that this court does not interfere with a given case only because it would be lawful to do so. The High Court in exercise of its writ jurisdiction under articles 226 and 227 of the Constitution of India may refuse to issue writ in the event it is found that substantial justice has been done to the parties or in the larger interest it would not be prudent to issue a writ. It is also known that the right of an individual sometimes has got to give way to the right of the public at large. Under Article 226 of the Constitution of India, a High Court may refuse to exercise its jurisdiction in favour of a party who has not approached the court with clean hands."
130. In that case reliance was placed upon the decision of the Supreme Court in Municipal Board, Pratapgarh v. Mahendra Singh Chawla , wherein it has been held as follows :
"What are the options before us, obviously as a logical corollary to our finding we have to interfere with the judgment of the High Court because the view taken by it is not in conformity with the law. It is at this stage that Mr. Sanghi, learned counsel for the respondent, invited us to consider the humanitarian aspect of the matter. The submission is that the jurisdiction of this court under Article 136 of the Constitution is discretionary and, therefore, this court is not bound to tilt at every approach found not in consonance or conformity with law but the interference may have a deleterious effect on the parties involved in the dispute. Laws cannot be interpreted and enforced divorced from their effect on human beings for whom the laws are meant. Undoubtedly, the 'rule of law must prevail but as is often said the rule of law must run akin to rule of life, and the life of law is not logic but experience'."
131. A Division Bench of the Allahabad High Court in Civil Miscellaneous Writ Petition No. 12626 of 1987 in an almost similar situation refused to grant relief to the petitioner therein stating the law thus ;
"Furthermore, the present is not a fit case where under Article 226 of the Constitution any relief could be granted. It has been stated in the counter-affidavit that Rs. 50,00,000 would be suffered per day by the National Thermal Power Corporation Limited if the eucalyptus trees belonging to the petitioner are not cut and the line is not laid, as is planned by respondent No. 2. As a result, the counter-affidavit further says, the supply of electricity to Lucknow, Moradabad and other districts would be hampered. As against the interest of the public at large the interest of the petitioner cannot be given any consideration. The petitioner had been asked by the letter dated July 2, 1987, by respondent No. 3 to be present at the time of cutting of the trees on July 15, 16, 1987, so that woods may be removed by him. This can still be done. In our opinion, the present is not a case fit for granting of any of the reliefs prayed for."
132. Yet, again, in Kamakshwar Prasad Mishra v. State of Bihar [1994] 1 PLJR 613 the law has been laid down in the following terms :
"There cannot be any doubt that in a given case the court may refuse to interfere with a matter where the right of a person is involved if thereby a greater public inconvenience could be caused which may be subject to payrnent of reasonable compensation as may be provided for to the persons aggrieved.
In Birmingham and Midland Motor Omnibus Co. Ltd. v. Worcestershire County Council [1967] 1 All ER 544 (Ch. D) it has been held that such an action must be justified in law."
133. This aspect of the matter has also been reiterated in Anand Shankar Prasad v. State of Bihar [1994] 2 BL] 1.
134. For the reasons aforementioned, in my opinion, it is not a fit case in which this court should exercise its extraordinary writ jurisdiction in favour of the petitioner. This application is, therefore, dismissed ; but in the facts and circumstances of the case there will be no order as to costs.