Chattisgarh High Court
Ultratech Cement Limited vs The Union Of India And Ors on 16 November, 2021
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
W.A.No.342/2021
Page 1 of 14
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Writ Appeal No.342 of 2021
(Arising out of order dated 28-9-2021 passed by the learned Single Judge in
W.P.(C)No.2989/2021)
Order reserved on: 29-10-2021
Order delivered on: 16-11-2021
Ultratech Cement Limited, A Company registered under the provisions
of Companies Act, 1956 and having its registered office at 'B' Wing,
Ahura Centre, 2nd Floor, Mahakali Caves Road, Andheri (East),
Mumbai - 400 093 (Maharashtra) and its Cement Plant/Unit at Rawan
Cement Works, P.O. Grasim Vihar, Village Rawan, District Baloda
Bazar-Bhatapara (C.G.) and Hirmi Cement Works, Post Hirmi - 493
195, Village Hirmi, District Baloda Bazar-Bhatapara (C.G.) through its
authorized representative.
(Petitioner)
---- Appellant
Versus
1. Union of India, through the Secretary, Ministry of Railways,
Government of India, Rail Bhavan, New Delhi (India)
2. Chairman, Railway Board, Rail Bhawan, Raisina Road, New Delhi -
110 001
3. South East Central Railway, Zonal Office, Bilaspur, through its General
Manager, Bilaspur.
4. Senior Divisional Operational Manager, South East Central Railway.
Divisional Office, Raipur (C.G.)
5. Shree Cement Limited, Bangur Nagar, Post Box No.33, Beawar,
Rajasthan - 305 901
(Respondents)
---- Respondents
------------------------------------------------------------------------------------------------------
For Appellant: Dr. Abhishek Manu Singhvi and Mr. Ashish Shrivastava,
Senior Advocates with Mr. Aman Pandey, Advocate.
For Respondents No.2 to 4 / Railways: -
Mr. R.K. Gupta, Advocate, on advance copy.
For Respondent No.5: -
Mr. C. Aryama Sundaram and Mr. Abhishek Sinha, Senior
Advocates with Mr. Ujjawal Rana, Mr. D.L. Dewangan and
Mr. Aditya Pandey, Advocates, on caveat.
------------------------------------------------------------------------------------------------------
W.A.No.342/2021
Page 2 of 14
Hon'ble Shri Justice Sanjay K. Agrawal and
Hon'ble Shri Justice Arvind Singh Chandel.
C.A.V. Order
Sanjay K. Agrawal, J.
1. This writ appeal has been preferred under Section 2(1) of the Chhattisgarh High Court (Appeal to Division Bench) Act, 2006 (for short, 'the Act of 2006'), calling in question legality, validity and correctness of the order dated 28-9-2021 passed by the learned Single Judge in W.P.(C)No.2989/2021, by which the earlier order passed by the learned Single Judge, dated 26-7-2021 has been modified and the application for vacating stay filed by respondent No.5 herein has been granted and respondents No.1 to 4 have been allowed to finalize the project of putting up a freight terminal at the risk and cost of respondent No.5.
Preliminary Objection: -
2. When the matter is taken-up for hearing on admission and on I.A. No.1/2021 for grant of stay, Mr. C. Aryama Sundaram, learned Senior Counsel appearing for respondent No.5, would raise preliminary objection as to maintainability of writ appeal and submit that the impugned order dated 28-9-2021 is a pure and simple interlocutory order as contemplated by the proviso to Section 2(1) of the Act of 2006 and as such, the writ appeal is barred. He would further submit that the learned Single Judge has only considered the application for vacating stay and has modified the order dated 26-7-2021 by directing respondents No.1 to 4 to proceed to finalise the project of putting up a freight terminal at the risk and cost of respondent No.5 and subject to final adjudication of the case and as such, it is a pure interlocutory W.A.No.342/2021 Page 3 of 14 order and therefore writ appeal would not be maintainable and is liable to be dismissed. He would rely upon the Full Bench decision of this Court in the matter of Ajay Gupta v. State of Chhattisgarh and others 1 and the decision of this Court in the matter of Shrinivas Tiwari v. Preeti Rani Chouhan and others2 to buttress his submission.
3. Replying to the preliminary submission, Dr. Abhishek Manu Singhvi, learned Senior Counsel appearing for the writ appellant, would submit that the interim order dated 26-7-2021 was passed in presence of learned counsels for respondents No.1 to 5 and thereafter, when the matter came-up for hearing on 28-9-2021, copy of rejoinder was served to learned counsels for the respondents and time was sought to file reply to the application for vacating stay which was filed along with return by respondent No.5, but the application for vacating stay was taken-up for hearing, though notices were not issued on that application for stay and no time was granted to file reply to the said application by which the writ petitioner / writ appellant herein has been deprived of filing reply to the said application, as right to file reply to the application for vacating stay was important right of the writ appellant. He would further submit that further more, finding on merits of the case has been recorded by the learned Single Judge affecting the writ appellant's right in the writ petition having finality attached to it and thus the impugned order cannot be held to be a purely interlocutory order and as such, writ appeal would be maintainable in view of the decision rendered by the Supreme Court in the matter of Shah Babulal Khimji v. Jayaben D. Kania and another 3. He invited our attention towards paragraph 113 of the said report to buttress his 1 AIR 2017 Chh 45 2 2020 SCC OnLine Chh 2110 3 (1981) 4 SCC 8 W.A.No.342/2021 Page 4 of 14 appeal, wherein the meaning of a final judgment, a preliminary judgment and intermediary or interlocutory judgment has been delineated and their distinction have been brought out by their Lordships of the Supreme Court.
4. Mr. R.K. Gupta, learned counsel appearing for respondents No.2 to 4 / Railways, while supporting the submission of Mr. C. Aryama Sundaram, learned Senior Counsel for respondent No.5, would submit that writ appeal would not be maintainable as the order is totally interlocutory and the writ appellant is required to demonstrate that the impugned order is interlocutory order which is vitally affecting his right in the writ petition in order to make the writ appeal maintainable and competent, which he has failed to demonstrate, as such, the writ appeal be dismissed as not maintainable.
5. We have heard learned counsel for the parties on the maintainability of this writ appeal and considered their rival submissions made herein- above and also went through the record with utmost circumspection.
6. The question whether the proviso to Section 2(1) of the Act of 2006 is an absolute bar to entertain an appeal against the interlocutory order without considering the scope of order and without considering whether the interlocutory order has decided the rights of parties and has an element of finality attached to it, came-up for consideration before the Full Bench of this Court in Ajay Gupta (supra) in which the issue was answered in paragraph 45 of the judgment and it has been held as under: -
"45. In view of the majority judgment rendered, the question referred to the Full Bench is answered in the following terms:W.A.No.342/2021 Page 5 of 14
"We therefore answer the question referred to us by holding that proviso to Section 2(1) of the Chhattisgarh High Court (Appeal to Division Bench) Act, 2006 bars appeals against those interim orders which are totally interlocutory in nature, do not decide matters of moment and do not have an element of finality attached to them. Conversely, if the order vitally affects rights of the parties having bearing on the final adjudication of the case, then even though the order is interim, it cannot be termed as interlocutory order and an appeal would lie. An appeal would also lie against those orders which cannot be undone at the time of final hearing and which have an element of finality attached to them. The orders, effect of which cannot be undone at the time of final hearing, cannot be termed to be interlocutory orders and in such eventuality, an appeal would lie against such orders.""
7. A careful perusal of the aforesaid conclusion of the Full Bench of this Court would show that the Full Bench has clearly held that against a totally interlocutory order, writ appeal would not be maintainable being barred by the proviso to Section 2(1) of the Act of 2006, however, it has been held that if the order vitally affects rights of the parties having bearing on the final adjudication of the case, then even though the order is interim, it cannot be termed as interlocutory order and writ appeal would lie. The Full Bench further held that appeal would also lie against those orders which cannot be undone at the time of final hearing and which have an element of finality attached to them, and the orders, effect of which cannot be undone at the time of final hearing, cannot be termed to be interlocutory orders and in such eventuality, appeal would lie against such orders.
8. In order to decide the plea as to whether the order is totally and purely interlocutory in nature or whether it would be an appealable order in terms of paragraph 45 of the judgment of the Full Bench of this Court in Ajay Gupta (supra), it is quite vivid to note that in the present case, W.A.No.342/2021 Page 6 of 14 in the writ petition filed by the writ appellant herein questioning the In Principle Approval (IPA) dated 8-4-2021 for the proposed construction of Green Field Private Freight Terminal (PFT) granted by respondents No.1 to 4 in favour of respondent No.5, the interim order dated 26-7- 2021 was passed in presence of all the parties directing the respondents herein not to precipitate further things by any order and thereafter, return was filed by the official respondents No.2 to 4 on 19- 8-2021, but they did not choose to file any application for vacating stay and application for vacating stay of order dated 26-7-2021 along with return was filed by respondent No.5 only on 26-8-2021. The application for vacating stay came to be listed before the learned Single Judge on 28-9-2021 along with admission of writ petition and I.A.No.1 for grant of stay on that day, it is the case of the writ appellant herein that no notice was issued on the said application for vacating stay to the writ appellant herein. It has also been mentioned in paragraphs 31 & 54D and also in paragraphs 54X & 54AA of the writ appeal that opportunity to file reply to the application for vacating stay was not given and without affording any opportunity to file reply, the application for vacating stay has been heard and allowed and interim order dated 26-7-2021 was partly vacated, even though no urgency has been pleaded by respondent No.5 by which the writ appellant have suffered great prejudice.
9. Thus, on perusal of records, following facts would emerge on the face of records: -
1. In the writ petition filed by the writ appellant questioning the IPA dated 8-4-2021, interim order was passed in presence of all the W.A.No.342/2021 Page 7 of 14 parties including respondent No.5 on 26-7-2021 at the admission stage.
2. Return was filed by the official respondents No.2 to 4 on 19-8-
2021 and they did not seek vacation of interim order dated 26-7- 2021, though reply to interim application was filed.
3. Return was also filed by the private respondent No.5 on 26-8- 2021 along with application for vacating the interim order dated 26-7-2021.
4. The writ appellant served a copy of rejoinder to the return filed by respondents No.2 to 4 to the counsel for respondents No.2 to 4 and to the counsel for respondent No.5 on 28-9-2021 and filed it on 29-9-2021.
5. The writ petitioner also filed rejoinder to the return filed by respondent No.5 on 29-9-2021 after serving copy to the counsel for the respondents.
6. Application for vacating stay filed by respondent No.5 came-up for hearing for the first time along with admission of the writ petition and grant of stay only on 28-9-2021.
7. Application for vacating stay was considered and decided on 28-9-2021.
10. It is well settled law that the whole object of pleading is to give fair notice to each party of what the opponent's case is, and to ascertain, with precision, the points on which the parties agree and those on which they differ, and thus to bring the parties to a definite issue. The purpose of pleading is also to eradicate irrelevancy. In order to have a fair trial it is imperative that the party should state the essential facts W.A.No.342/2021 Page 8 of 14 so that other party may not be taken by surprise (see Ram Sarup Gupta v. Bishun Narain Inter College4).
11. Right to make pleading in a writ petition is more important than right to make pleading in a civil suit. Distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter affidavit filed in a writ petition has been brought-out by their Lordships of the Supreme Court in the matter of Bharat Singh and others v. State of Haryana and others5 in following words: -
"While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter-affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it."
12. In the aforesaid judgment, their Lordships of the Supreme Court have clearly held that while in a pleading that is a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or as in the counter-affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. As such, right to file counter-affidavit in a writ petition is an extremely valuable right of the parties and reasonable opportunity to file counter- affidavit has to be afforded to the parties before considering the writ petition / interlocutory application.
13. In the instant case, it is quite apparent that the application for vacating stay was taken-up for hearing for the first time on 28-9-2021, but it is the case of the writ petitioner that he has been deprived of an opportunity to file reply to that application and interim order granted on 26-7-2021 came to be vacated by granting that application and the 4 AIR 1987 SC 1242 5 AIR 1988 SC 2181 W.A.No.342/2021 Page 9 of 14 official respondents have been granted liberty to go ahead with the project and to finalise the project of putting up a freight terminal at the risk and cost of respondent No.5 which has not been claimed by the official respondents by making application for vacating stay or even by filing reply to the application for interim relief filed by the writ appellant.
14. However, a careful perusal of the impugned order would show that while considering the application for vacating stay, finding has been recorded by the learned Single Judge on merits of the matter though prima facie and thereafter, in the concluding paragraph, respondents No.1 to 4 have been granted liberty to finalize the project of putting up a freight terminal at the risk and cost of respondent No.5 and subject to final adjudication of the case. The finding recorded by the learned Single Judge states as under: -
"Reading of the aforesaid clause prima facie would show that the permission to use the siding or any extension or part thereof to a third party can be allowed upon payment by such person or persons to the petitioner of either such portion of the cost originally paid by the petitioner to the Railway Administration. The railway in its reply had contended that the quantum of traffic mentioned by the petitioner is exaggerated as the maximum number of rakes loaded in a month of March, 2021 was 239 and with the entire including of back loading it comes to 412 rakes. It is also stated in the reply that the train operation would be purely a technical subject and the railway administration will accommodate the petitioner's traffic if the respondent No.5 is allowed to use the line. Meaning thereby if at all respondent No.5 is allowed to use the line then in such case they will be able to handle the traffic and the traffic of the petitioner shall be given preference.
After looking into the map of the railway line and the siding, it shows that after 9.3 Km apart from one existing diversion to the factory of the petitioner, Freight Terminal which is to be set up by Shree Cement is towards the left side and the existing line to the Ultratech Hirmi Plant and Rawan Plant is on the right side. The fact cannot loose W.A.No.342/2021 Page 10 of 14 sight in teeth of agreement that if with the passage of time in future if number of plants increases and freight terminals are intended to be set up from Hathband Station, it cannot be presumed that for each Freight Terminal for different plant there would be separate line. For example if 10-15 factories are established in those areas, then there cannot be 10-15 separate railway line are required to be set up and it sans all practical logic. The agreement prima facie allows the sharing of the proportion of cost in case of use of line by another which appears to be reasonable. Therefore, the balance of convenience and irreparable loss would also not cause to the petitioner when the traffic on the racks are managed by the railways read with specific undertaking of railways that in movements of the racks the preference would be given to the petitioner. The reply filed by the railway wherein certain number of racks have been shown for the month of March nearby 412 do not appear to be exorbitant."
15. After hearing learned counsel for the parties at length and noticing the importance of rights of parties to make pleading in the writ petition and after going through the record, in view of the factual position noticed herein-above, particularly the writ appellant could not have an opportunity to file counter-affidavit to the application for vacating stay filed by private respondent No.5 which was his valuable right to file counter-affidavit of that application opposing it and to defend the interim order granted after hearing the parties by which he has suffered prejudice, and further taking note of the fact that the writ appellant had promptly served copy of rejoinder to the respondents on 28-9-2021 and findings as noticed above have been recorded on the merits of the matter which has vital bearing on the final adjudication of writ petition as respondents No.1 to 4 have been allowed to finalise the project of putting up a freight terminal though at the risk and cost of respondent No.5 and subject to final adjudication of the writ petition, we are of the considered opinion that the order impugned dated 28-9- W.A.No.342/2021 Page 11 of 14 2021 cannot be termed as a pure and simple interlocutory order within the meaning of proviso to Section 2(1) of the Act of 2006 and as such, the writ appeal cannot be held to be barred in terms of paragraph 45 of the judgment of this Court in Ajay Gupta (supra) and consequently, the writ appeal is held to be maintainable and the preliminary objection raised in this behalf qua the maintainability of appeal, is hereby repelled.
Issue of admission of writ appeal: -
16. We have heard Dr. Abhishek Manu Singhvi, learned Senior Counsel, on the question of admission of writ appeal.
17. After hearing learned Senior Counsel for the writ appellant, after going through the record and considering the finding recorded and further considering the submissions of learned Senior Counsel for the writ appellant, we are of the considered opinion that the writ appeal is arguable on merits and accordingly, it is admitted for hearing.
18. Issue notice to the respondents.
18.1) Copy of the memo of writ appeal and annexed documents be served upon Mr. Ramakant Mishra, Assistant Solicitor General of India, who appears for the Union of India / respondent No.1. 18.2) Mr. R.K. Gupta, learned counsel, accepts notice for respondents No.2 to 4 / Railways. Let three extra sets of the memo of writ appeal and annexed documents be served upon him within seven days from today.
18.3) Mr. D.L. Dewangan, learned counsel, assisting learned Senior Counsels Mr. C. Aryama Sundaram and Mr. Abhishek Sinha, accepts notice on behalf of respondent No.5. Let an extra set of the memo of W.A.No.342/2021 Page 12 of 14 writ appeal and annexed documents be served upon him within seven days from today.
I.A.No.1/2021, application for grant of ad-interim stay
19. Dr. Singhvi, learned Senior Counsel appearing for the writ appellant, would submit that the writ appellant has a prima facie case for grant of stay of the impugned order dated 28-9-2021, as the learned Single Judge by its impugned order has given liberty to respondents No.1 to 4 to finalise the project which will bring the project to a final stage, if it is allowed to continue and it would be irreversible and likely to cause irreparable loss to the writ appellant. Therefore, the order dated 28-9- 2021 be stayed and respondents No.1 to 4 be restrained from further considering the application submitted by respondent No.5 for construction of the purported PFT.
20. Mr. R.K. Gupta, learned counsel for respondents No.2 to 4 / Railways, would oppose the interim application and would submit that the writ appellant is not entitled for any interim relief and the application deserves to be rejected.
21. Mr. Sundaram, learned Senior Counsel for respondent No.5, while opposing the submissions of Dr. Singhvi, learned Senior Counsel for the writ appellant, on interim stay of the impugned order, having filed caveat, would submit that the scope of interference against the order of the Single Judge in appeal is quite limited and the order impugned is a purely discretionary interlocutory order, it ought not to be stayed and / or interfered with. He would further submit that unless it can be shown that the discretion has been exercised wrongly or arbitrarily, or capriciously or perversely or where the Court had ignored the settled principles of law or if the Court has considered irrelevant factors or W.A.No.342/2021 Page 13 of 14 has ignored relevant material available on record or has ignored relevant consideration, this Court being the appellate Court would not reassess the material or seek to reach a different conclusion, if the one reached by the Single Judge was reasonably possible on the material. He would rely upon the decision of the Supreme Court in the matter of Wander Ltd. v. Antox India (P) Ltd.6 (paragraph 14) in support of his submission. He would also submit that granting of any interim order would amount to interim relief sought by the appellant which is in the nature of final relief and would rely upon the decision of the Supreme Court in the matter of State of U.P. v. Ram Sukhi Devi7 to buttress his submission.
22. Issue notice on that application also, as above. Learned counsels appearing for the respondents accept notice on the said application also, as above and three weeks' time is granted to the respondents to file reply to the said application.
23. Having heard learned Senior Counsels and learned counsel for respondents No.2 to 4 / Railways and in view of the fact that the writ appellant has been deprived of his valuable right to file counter- affidavit opposing the application for vacating stay (I.A.No.2) in the writ petition and respondents No.1 to 4 have been allowed to finalise the project of putting up a freight terminal by respondent No.5, we deem it appropriate to direct that part of the impugned order dated 28- 9-2021 directing and granting liberty to respondents No.1 to 4 to proceed to finalise the project of putting up a freight terminal, shall remain stayed till the next date of hearing. It is ordered accordingly. 6 1990 Supp SCC 727 7 (2005) 9 SCC 733 W.A.No.342/2021 Page 14 of 14
24. List the appeal after three weeks. Meanwhile, reply of I.A.No.1/2021 be filed by the respondents.
Sd/- Sd/-
(Sanjay K. Agrawal) (Arvind Singh Chandel)
Judge Judge
Soma