Gujarat High Court
State Of Gujarat Through Secretary & vs Indian Rayon ( A Unit Of Aditya Birla Nuvo ... on 6 March, 2014
Author: K.J.Thaker
Bench: Vijay Manohar Sahai, K.J.Thaker
C/LPA/862/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 862 of 2013
In SPECIAL CIVIL APPLICATION NO. 17953 of 2011
With
CIVIL APPLICATION NO. 6932 of 2013
In
LETTERS PATENT APPEAL NO. 862 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI
and
HONOURABLE MR.JUSTICE K.J.THAKER
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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STATE OF GUJARAT THROUGH SECRETARY & 1....Appellant(s)
Versus
INDIAN RAYON ( A UNIT OF ADITYA BIRLA NUVO LTD.)....Respondent(s)
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Appearance:
MR P.K. JANI GOVERNMENT PLEADER for the Appellants
MR BHASKAR P. TANNA SENIOR ADVOCATE with MR BHAVDUTT H.
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C/LPA/862/2013 JUDGMENT
BHATT for TANNA ASSOCIATES, ADVOCATE for the Respondent No. 1
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CORAM: HONOURABLE MR.JUSTICE VIJAY MANOHAR
SAHAI
and
HONOURABLE MR.JUSTICE K.J.THAKER
Date : 06/03/2014
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE K.J.THAKER)
1. At the time when the matter was heard, both the learned advocates have agreed to the final disposal of this Letters Patent Appeal, as the Special Civil Application is pending before the learned Single Judge.
2. By way of this intra-court appeal, the State has felt aggrieved by the interim order passed by the learned Single Judge. The operative portion of the said order dated 9.4.2013 reads as follows:
"Rule returnable on 26th June, 2013. Interim relief, granted earlier, to continue till final hearing and disposal of the present petition."
3. The facts of the present case in brief are that the respondent herein is a Public Limited Page 2 of 20 C/LPA/862/2013 JUDGMENT Company and is having a well nearby the Hiran River. It was found by the Executive Engineer, Irrigation Division, Junagadh as a canal officer that the said well from which the respondent- company is deriving water for industrial purpose is 332 meters away from the Hiran-II dam and 39.20 meters away from the right side of downstream of Hiran river and hence, under Section 48(A)(1) of the Bombay Irrigation Act, 1879, by communication dated 9th January, 2004, issued by the Executive Engineer, the respondent- company was called upon to make the payment of water charges towards the usage of water from the well. Thereafter, the company, respondent herein, preferred an appeal under section 67 of the Bombay Irrigation Act before the Collector, Junagadh. However,by an order dated 27th May, 2004, Collector Junagadh sent the matter back to the Executive Engineer to take a fresh decision in the matter. Subsequent to the aforesaid, Executive Engineer, by order dated 11.6.2007 passed an order to the effect that the well from which the respondent-company is deriving percolation water from such river and is using the water for the purpose of Non-irrigation (Industrial) and hence ordered to recover the water charges under section 48(A) of the Bombay Irrigation Act, 1879.
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4. That the above referred order dated 11.6.2007 passed by the Executive Engineer, Irrigation Division, Junagadh has been challenged by the respondent-company under section 67 of the Bombay Irrigation Act, 1879 before the Collector, Junagadh. It is submitted that by an order dated 16.10.2009, the above referred appeal has been allowed in favour of the respondent-company by Collector, Junagadh.
5. Subsequently, the aforesaid order passed by the Collector, Junagadh had been taken into consideration by the State Government through its Narmada Water Resources, Water Supply and Kalpsar Department and State of Gujarat and issued a common show-cause notice dated 21.11.2011 under section 67 of the Bombay Irrigation Act, 1879 to the respondent-Company as well as all the parties i.e. Executive Engineer, Superintending Engineer and Deputy Executive Engineer to show cause as to why the order dated 16.10.2009 passed by the Collector should not be cancelled or to confirm, and thereby informed to the respondent company and all the parties to remain present with written submission before the Special Secretary (Water Resources). It is further submitted that subsequent to the aforesaid notice, some more time has been provided with respect to earlier show-cause notice and thereby, fresh/amended Page 4 of 20 C/LPA/862/2013 JUDGMENT show-cause notice dated 30.11.2011 was issued.
6. It is submitted that against the above show- cause notice dated 21.11.2011 issued by the State Government, the respondent company has challenged by way of above referred Special Civil Application under Article 226 of the Constitution of India, inter-alia, contending to the effect that "in the facts and circumstances of the case, it is the Revenue Department of the Government of Gujarat which has required to see whether Collector had acted as a quasi-judicial appellate authority correctly or not and by wildest dream it cannot be the authority and the jurisdiction of Irrigation Department which is the first complainant regarding the issue. Again, as stated earlier, if the Collector has acted in accordance with law, question of interference by any Department of the Government was and is out of question. It is doubtful whether any Department of the Government could have interfered with a proper and just decision given by the Collector. It is contended that the Collector acts as a delegate of the State Government, and therefore, it is not permissible for any department of the State Government to re-hear the matter, accept the judgment or revoke the judgment as that is not contemplated by 'control and supervision' by the Government."
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7. The said Special Civil Application came to be contested by the appellate authorities, inter- alia, contending that the petition is not maintainable against the show-cause notice and final adjudication is yet to be arrived. However, it has been also contended to the effect that Section 67 of the Bombay Irrigation Act, 1879, gives full authorities to the State Government to supervise and control over the proceedings of Collector and it's order.
8. It is submitted that after hearing the matter, the learned Single Judge has issued Rule, and thereby, confirmed the inter-relief granted earlier and observed that the interim relief, granted earlier, to continue till final hearing and disposal of the present petition, which is impugned in this Letters Patent Appeal.
9. This has aggrieved the State, at the interim stage, when lis is pending, the extra-ordinary jurisdiction is exercised under Article 226 of the Constitution of India, though it has vast scope and magnitude but it also imposes a greater obligation on the courts to observe due caution while exercising such powers. We spent sleepless nights to find out a solution, Seldom society Page 6 of 20 C/LPA/862/2013 JUDGMENT cares or knows the mental and psychological trauma in such situations Judges undergo, especially, when they are called upon to decide an issue touching public exchequer and public or private rights. This is to ensure that the principles enunciated for exercise of powers at the interim stage are not disgraced and to see that there is no occasion of impertinent exercise of judicial discretion. The fetters are self imposed so that by interim direction, the prayer which could be granted at the final stage, gets concluded and nothing remains to be decided.
10. Mr. P.K. Jani learned Government Pleader has submitted that the learned Single Judge has failed to appreciate the fact that the Special Civil Application has been filed only against the issuance of show-cause notice. It is settled principle of law that the proceedings against the show-cause notice are premature in nature, and therefore, normally, the writ petition cannot be entertained. Moreover, when the State Government has not taken any final decision with respect to the subject matter, at present it will not be proper on the part of the learned Single Judge to interfere with the proceedings initiated by the State Government, which is in accordance with the provisions of law.
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11. Mr. Jani learned Government Pleader further submitted that interpretation put forward by the learned Single Judge of section 67 of the Bombay Irrigation Act, 1879 and granting stay on the ground that the State Government itself cannot be a judge in their own cause. It is submitted that fetters of section 67 of the Bombay Irrigation Act, 1879 are vast enough and the Principal Secretary of the Department is under a mandate of the statute to see that under the Gujarat Irrigation Act, orders of Collector are subject to scrutiny, and it is, at the stage of scrutiny, and the respondent-company has come before this Court against the show-cause notice. It is further submitted that in a case, if the Collector has erroneously decided the case against the assessee, then in those circumstances the State authorities will have powers vested in it to over view the said action under section 67 of the Bombay Irrigation Act, 1879. It is not that the same authority is reviewing the thing.
12. Mr. Jani further contended that the writ petition itself at the show-cause notice stage was not maintainable under Article 226 of the Constitution of India, because it was premature and the interim relief is such that it has negatived the legislative mandate. He has relied on the provisions of statute and has contended Page 8 of 20 C/LPA/862/2013 JUDGMENT that inbuilt mechanism is there, and therefore, the interim relief granted by the learned Single Judge requires interference in this Letters Patent Appeal under clause 15 of the Letters Patent, and has relied on the following authoritative pronouncements so as to substantiate his submissions on all his grounds urged, both, in oral submissions and memo of appeal.
1. 2012(0) GLHEL-HC 228284 (Bajrang Oil Mills,Thro its Partners, Jayeshkumar vs. Rajkot District Cooperative Bank Ltd.),
2. 2013(0) GLHEL-HC 229686 (Hiralal L. Patel v. Snehalben Bharatbhai Patel)
13. Mr. Tanna learned senior counsel appearing for the respondent-company has raised a preliminary objection that (i) the Irrigation Department was itself a complainant and now it has issued notice, and therefore, directions were given, and; (ii) the Letters Patent Appeal is not maintainable as impugned order is not a judgment but an order and does not fall within the purview of clause 15 of the Letters Patent and the view which is expressed by the learned Single Judge is tentative and the petition is fixed for arguments Page 9 of 20 C/LPA/862/2013 JUDGMENT on 12.3.2014 by the learned Single Judge, and therefore, this Court should not entertain this appeal. Mr. Tanna learned Senior Counsel for the respondent has relied on the following authoritative pronouncements to bring home the aforesaid submissions.
1. (1981) 4 SCC 8 (Shah Babulal Khimji v. Jayaben D. Kania & Anr.)
2. (1974)2 SCC 387 (Shantikumar R. Canji vs. The Home Insurance Co. of New York)
3. (2006)5 SCC 399 Mindapore Peoples' Coop. Bank Ltd. vs. Chunilal Nanda & Ors.)
4. (2003) 10 SCC 691 Mithailal Dalsangar Singh & Ors. vs. Annabai Devram Kini & Ors.
14. The first question raised about maintainability of writ petition and whether the writ petition was maintainable does not require to be delved into. We would not like to delve into the said issue the reason being that the writ petition is pending before the learned Page 10 of 20 C/LPA/862/2013 JUDGMENT Single Judge and any view being expressed whether writ petition is maintainable or not would prejudice either side, and therefore, the same is left open to be decided by the writ court. The second issue whether the Letters Patent Appeal is maintainable or not is required to be gone into.
15. In light of the decisions and plain interpretation of Clause 15 of the Letters Patent, it cannot be said that the appeal is not maintainable as there is no bar and hence the submission of Mr. Tanna learned senior counsel for the respondent-company that the present Letters Patent Appeal is not maintainable, cannot be accepted.
16. Section 67 of the Bombay Irrigation Act, 1879, reads as under:
"Every order passed by canal officer under Section 13, 18 [20A, 20F], 25,30, 45, 46, [48 & 48A] shall be appealable to the Collector:
Provided that the appeal be presented within 30 days of the date on which the order appealed against was communicated to the appellant.Page 11 of 20
C/LPA/862/2013 JUDGMENT
All orders and proceedings of a
Collector under this Act shall be
subject to the supervision and control of the [State Government]."
17. Therefore, whether the petition is maintainable or not we are not delving into it as the same is much large before the learned Single Judge.
18. In view of the facts narrated hereinabove and the decisions cited before us, the provisions of clause-15 of the Letters Patent reads as follows:
15. Appeal from the Courts of original jurisdiction to the High Court in its appellate jurisdiction.- And we do further ordain that an appeal shall lie to the said High Court of Judicature at [Madra],[Bombay], Fort William in Bengal from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court and not being an order made in the exercise of a revisional jurisdiction, and not being a sentence or order passed or made in exercise of the power of superintendence under the provisions of section 107 of the Government of India Act, or in the exercise of criminal jurisdiction) of one Judge of the said High Court or one Judge of any Division Court, pursuant to section 108 of the Government of India Act, and that Page 12 of 20 C/LPA/862/2013 JUDGMENT notwithstanding anything hereinbefore provided, an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to section 108 of the government of India Act, [on or after the first day of February, 1929] in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court where the Judge who passed the judgment declares that the case is a fit one for appeal; but that the right of appeal from other judgments of Judges of th said High Court or of such Division Court shall be to Us, Our heirs or successors in Our or,Their Privy Council, as hereinafter provided.
19. An appeal lies against a decision of a single Judge of the Gujarat High Court in the exercise of the jurisdiction of the High Court under Article 226 of the Constitution under Clause 15 of the Letters Patent; and it is not barred by the wordings of Clause 15 of the Letters Patent. The decision of the learned single Judge cannot be said to be given in the exercise of revisional jurisdiction of the High Court; and there is no other bar under Clause 15 of the Letters Patent.
20. At the out-set, in this case, one thing has to be borne in mind that the remedy is available under the statute is effective. The statutory authority cannot be said to have not acted in Page 13 of 20 C/LPA/862/2013 JUDGMENT accordance with the provisions of enactment in question - (i) Where remedy available under statute is not effective but only mere formality with no substantial relief, (ii) where statutory authority not acted in accordance with provisions of the enactment in question, or (iii) where statutory authority acted in defiance of fundamental principles of judicial procedure, or
(iv) where statutory authority resorted to invoke provisions which are repealed, or (v) where statutory authority passed an order in total violation of principles of natural justice.
21. Mr. Tanna learned Senior Advocate has placed reliance on the decision of the Hon'ble Apex Court in the case of Shanti Kumar R. Canji vs. The Home Insurance Co. of New York, reported in (1974)2 SCC 387 and has submitted that the interference is not permissible as it does not decide the lis between the parties and it is not a judgment. He has relied on para-14 and 15 of the said decision. Mr. Tanna has also relied on the decision of the Hon'ble Apex Court in the case of Mithailal Dalsangar Singh and Ors. vs. Annabai Devram Kini and Ors, reported in (2003)10 SCC 691. As against this, the plain reading of clause-15 of the Letters Patent Appeal, which has been discussed in para- 18 and 19 above, the second issue is answered against the respondent-
Page 14 of 20C/LPA/862/2013 JUDGMENT company as the appeal will lie and will be
maintainable even against the interlocutory order where the order decides the lis or adjudicates.
22. Mr. P.K. Jani learned Government Pleader has relied on the decision of this Court in the case of Rajrang Oil Mills, Through Its partners, Jayeshkumar vs. Rajkot District Cooperative Bank Ltd., reported in GLHEL-HC 228284. Para-15 of the said decision reads as under:
"15. We, therefore, find that in the writ-petition, the appellants have really prayed for exercise of jurisdiction under Article 226 of the Constitution of India, and the present Letters Patent Appeal is, therefore, maintainable."
23. Therefore, in view of above decision of this Court, both, at the interim stage and final, the appeal is maintainable.
24. This takes this Court to the main issue whether interim relief as granted could be granted or not. We are unable to persuade ourselves by the submissions of Mr. Tanna learned Senior advocate for the respondent company that no appeal is maintainable. The Page 15 of 20 C/LPA/862/2013 JUDGMENT judgments cited by both the learned counsels are considered but the answer is found in the decision of the Hon'ble Apex Court in the case of State of Orissa & Ors. vs. Mesco Steels Limited & Anr., reported in 2013(4) SCC 340, wherein, the Hon'ble Apex Court has observed in para-21, 23 & 24, as under:
"21. In the light of what we have said while deciding Question 1 above, this question should not hold us for long. It is true that the High Court had by an interlocutory order directed the parties to maintain status-quo, but whether the said order had the effect of preventing the State Government from issuing a show-cause notice was arguable. The issue of show-cause notice did not interfere with the status quo. It simply enabled the respondent company to respond to the proposed action. Be that as it may, once the show-cause notice was issued, the High Court could have directed the respondent Company to respond to the same and disposed of the writ petition reserving liberty to it to take recourse to such remedy as may have been considered suitable by it depending upon the final order that the Government passed on the said notice. What was significant was that the respondent Company had not assailed the validity of the show-cause notice on the ground of jurisdiction or otherwise. If the validity of the show-cause notice was itself in question on the ground that the Government had no jurisdiction to issue the same, nothing prevented the Company from maintaining a writ petition and challenging the notice on that Page 16 of 20 C/LPA/862/2013 JUDGMENT ground. The High Court would in that event have had an opportunity to examine the validity of the notice. In the absence of any such challenge the High Court could not simply ignore the notice even if it was issued in breach of the order passed by the Court. It was one thing to prevent further steps being taken pursuant to the notice issued by the Government but an entirely different thing to consider the notice to be non est in the eye of the law. The High Court could have taken the show-cause notice as a reason to relegate the parties to a procedure which was just and fair and in which the respondent could urge all its contentions whether on facts or in law. Our answer to Question 2 is, therefore, in the negative.
23. We do not propose to make any comment or express any opinion on the merits of the show-cause notice. So long as the notice is not without jurisdiction as indeed it does not appear to be so, the question whether the grounds taken in the same provide a good basis for proposed action can be left open for the Government to decide. All that we need to say is that the learned counsel for the parties made detailed submissions in regard to the grounds given in the notice and the validity thereof from their respective points of view and in support of their respective versions. Some of these grounds and submissions were quite attractive also. But so long as the matter is yet to be examined by the State Government, we consider it unnecessary to prejudice the issues or express any opinion about the merits of Page 17 of 20 C/LPA/862/2013 JUDGMENT the said contentions on either side. The proper course, in our opinion, would be to the competent authority in the Government who would, in our opinion, do well to carefully consider the reply which the respondent may submit to the said show-cause notice and pass a reasoned order on the subject. Question 3 is answered accordingly.
24. In the result, we allow this appeal, set aside the judgment and order passed by the High Court and direct that the respondent Company shall submit its reply to the show-cause notice dated 6.2.2007 issued by the State Government within three months from today. The Government may then upon consideration of the reply so submitted pass a reasoned order on the subject within two months thereafter under intimation to the respondent. If the order so made is, for any reason found to be unacceptable by the respondent Company, it shall have the liberty to take recourse to appropriate proceedings before an appropriate forum in accordance with law."
25. The present petition is preferred at the show-cause notice stage where the State has thought it not fit to confirm the order of Collector or upturn the order of Collector without hearing the petitioner, and it cannot be said that the State is acting in its own cause and in-built mechanism is there in the Act, and therefore, the present Letters Patent Appeal requires to be allowed. The interim relief could Page 18 of 20 C/LPA/862/2013 JUDGMENT not have been granted for the reasons recorded above and same also requires to be vacated, forthwith.
26. In the result, the present Letters Patent Appeal is allowed. The impugned order dated 9.4.2013 passed in Special Civil Application No. 17953 of 2011 is set aside.
27. The interim relief stands vacated. The learned Single Judge is requested to take up the Special Civil Application No. 17953/2011 as expeditiously as possible and dispose of the same preferably within a period of six weeks from today.
28. At this stage, Mr. Bhaskar Tanna learned Senior Advocate requests this Court to extend the interim relief granted by the learned Single Judge which is operating. Looking to the facts and circumstances of the case, the interim relief cannot be extended for the reasons which we have assigned hereinabove, as the main petition is at the show-cause notice stage. Hence, request to extend the interim relief is rejected.
29. As the main Letters Patent Appeal is disposed of, no orders on Civil Application and the same stands disposed of accordingly.
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(V.M.SAHAI, J.)
(K.J.THAKER, J)
mandora
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