National Green Tribunal
Surat Green Precast Pvt. Ltd vs Reliance Industries Ltd. & Ors on 5 October, 2020
Item No. 01 (In Chamber by Circulation)
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(Through Video Conferencing)
Review Application No. 11/2020 (WZ)
In
Original Application No. 26/2020 (WZ)
Surat Green Precast Pvt. Ltd. Applicant(s)
Versus
Reliance Industries & Ors. Respondent(s)
Date of hearing: 05.10.2020
CORAM: HON'BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. SATYAWAN SINGH GARBYAL, EXPERT MEMBER
ORDER
1. The review application contains following law points:
i. Compliance of the Construction and Demolition Waste Management Rules, 2016.
ii. Judicial review in contractual matters.
iii. As to whether by way of filing this review application the agreement which was entered into between applicant and the Municipal Corporation can be enforced against the third party.
iv. As to whether the platform of this Tribunal can be used for providing business.
v. As to whether agreement as stated by the applicant is binding on the third party.1
vi. As to whether any alternate remedy is available to the applicant for enforcement of his agreement or performance of contract.
vii. As to whether there is a compliance of natural justice.
viii. As to whether there is a frivolous litigation relating to commercial activities and it requires to be restrained by way of imposing cost.
2. In exercise of the powers conferred by Section 3, 6 and 25 of the Environment (Protection) Act, 1986 and in supersession of the Municipal Solid Wastes (Management and Handling) Rules, 2000, the Central Government made the rules called the Construction and Demolition Waste Management Rules, 2016 and the relevant provisions are as follows:
"(4) Duties of the waste generator -
(1) Every waste generator shall prima-facie be responsible for collection, segregation of concrete, soil and others and storage of construction and demolition waste generated, as directed or notified by the concerned local authority in consonance with these rules.
(2) The generator shall ensure that other waste (such as solid waste) does not get mixed with this waste and is stored and disposed separately.
(3) Waste generators who generate more than 20 tons or more in one day or 300 tons per project in a month shall segregate the waste into four streams such as concrete, soil, steel, wood and plastics, bricks and mortar and shall submit waste management plan and get appropriate approvals from the local authority before starting construction or demolition or remodeling work and keep the concerned authorities informed regarding the relevant activities from the planning stage to the implementation stage and this should be on project to project basis.
(4) Every waste generator shall keep the construction and demolition waste within the premise or get the waste deposited at collection centre so made by the local body or handover it to the authorised processing facilities of construction and demolition waste; and ensure that there is 2 no littering or deposition of construction and demolition waste so as to prevent obstruction to the traffic or the public or drains.
(5) Every waste generator shall pay relevant charges for collection, transportation, processing and disposal as notified by the concerned authorities; Waste generators who generate more than 20 tons or more in one day or 300 tons per project in a month shall have to pay for the processing and disposal of construction and demolition waste generated by them, apart from the payment for storage, collection and transportation. The rate shall be fixed by the concerned local authority or any other authority designated by the State Government.
(5) Duties of service provider and their contractors -
(1) The service providers shall prepare within six months from the date of notification of these rules, a comprehensive waste management plan covering segregation, storage, collection, reuse, recycling, transportation and disposal of construction and demolition waste generated within their jurisdiction.
(2) The service providers shall remove all construction and demolition waste and clean the area every day, if possible, or depending upon the duration of the work, the quantity and type of waste generated, appropriate storage and collection, a reasonable timeframe shall be worked out in consultation with the concerned local authority.
(3) In case of the service providers have no logistics support to carry out the work specified in subrules (1) and (2), they shall tie up with the authorised agencies for removal of construction and demolition waste and pay the relevant charges as notified by the local authority.
(6) Duties of local authority-The local authority shall,-
(1) issue detailed directions with regard to proper management of construction and demolition waste within its jurisdiction in accordance with the provisions of these rules and the local authority shall seek detailed plan or undertaking as applicable, from generator of construction and demolition waste;
(2) chalk out stages, methodology and equipment, material involved in the overall activity and final clean up after completion of the construction and demolition ;
(3c) seek assistance from concerned authorities for safe disposal of construction and demolition waste contaminated with industrial hazardous or toxic material or nuclear waste if any;
(4) shall make arrangements and place appropriate containers for collection of waste and shall remove at regular intervals or when they are filled, either through own resources or by appointing private operators;3
(5) shall get the collected waste transported to appropriate sites for processing and disposal either through own resources or by appointing private operators;
(6) shall give appropriate incentives to generator for salvaging, processing and or recycling preferably in-situ;
(7) shall examine and sanction the waste management plan of the generators within a period of one month or from the date of approval of building plan, whichever is earlier from the date of its submission;
(8) shall keep track of the generation of construction and demolition waste within its jurisdiction and establish a data base and update once in a year;
(9) shall device appropriate measures in consultation with expert institutions for management of construction and demolition waste generated including processing facility and for using the recycled products in the best possible manner;
(10) shall create a sustained system of information, education and communication for construction and demolition waste through collaboration with expert institutions and civil societies and also disseminate through their own website;
(11) shall make provision for giving incentives for use of material made out of construction and demolition waste in the construction activity including in non-structural concrete, paving blocks, lower layers of road pavements, colony and rural roads.
(7) Criteria for storage, processing or recycling facilities for construction and demolition waste and application of construction and demolition waste and its products-
(1) The site for storage and processing or recycling facilities for construction and demolition waste shall be selected as per the criteria given in Schedule I;
(2) The operator of the facility as specified in sub- rules (1) shall apply in Form I for authorization from State Pollution Control Board or Pollution Control Committee.
(3) The operator of the facility shall submit the annual report to the State Pollution Control Board in Form II.
(3) Application of materials made from construction and demolition waste in operation of sanitary landfill shall be as per the criteria given in Schedule II.
(8) Duties of State Pollution Control Board or Pollution Control Committee-
(1) State Pollution Control Board or Pollution Control Committee shall monitor the implementation of these rules by the concerned local bodies and the competent authorities and the annual report shall be sent to the 4 Central Pollution Control Board and the State Government or Union Territory or any other State level nodal agency identified by the State Government or Union Territory administration for generating State level comprehensive data. Such reports shall also contain the comments and suggestions of the State Pollution Control Board or Pollution Control Committee with respect to any comments or changes required;
(2) State Pollution Control Board or Pollution Control Committee shall grant authorization to construction and demolition waste processing facility in Form-III as specified under these rules after examining the application received in Form I;
(3) State Pollution Control Board or Pollution Control Committee shall prepare annual report in Form IV with special emphasis on the implementation status of compliance of these rules and forward report to Central Pollution Control Board before the 31st July for each financial year.
(9) Duties of State Government or Union Territory Administration-
(1) The Secretary in-charge of development in the State Government or Union territory administration shall prepare their policy document with respect to management of construction and demolition of waste in accordance with the provisions of these rules within one year from date of final notification of these rules.
(2) The concerned department in the State Government dealing with land shall be responsible for providing suitable sites for setting up of the storage, processing and recycling facilities for construction and demolition waste.
(3) The Town and Country planning Department shall incorporate the site in the approved land use plan so that there is no disturbance to the processing facility on a long term basis.
(4) Procurement of materials made from construction and demolition waste shall be made mandatory to a certain percentage (say 10-20%) in municipal and Government contracts subject to strict quality control."
3. It is stated that the applicant had entered into a concession agreement for 20 years for the work of collection, transportation and treatment of construction and demolition waste generated in the Surat city. Respondent no. 1 has built a township at Reliance Tower, Ward no. 25, Athwa Umra. The building was very old and 5 required to be demolished and as per guidelines, the building was demolished and there is approximately 30,000-35,000 MT waste generated by the respondent no. 1 from the demolition site. It is further alleged that the respondent no. 1 has not taken necessary authorization under the rules for disposal of the waste and disposing it in an unscientific way. The applicant is owner of a company working to the management of the construction and demolition waste and the disposal material are utilized to recycle and recover valuable material and used in sanitary landfill for municipal solid waste of the city or region as mentioned at Schedule I of the C&D Rules. It is further stated that residual recovered from construction and demolition waste processing or recycling industries shall be land filled in the sanitary landfill for solid waste. Since the applicant has entered into an agreement with the Municipal Corporation for disposal of C&D waste and the respondent no. 1 has not given the work of C&D waste to the applicant, thus, this application with the prayer that the respondent no. 1 should be directed to dispose of the C&D waste in accordance with the Rules.
4. It is further submitted that being in profession of C&D waste, the applicant is compelling the respondent no. 1 to give the applicant business for which and for the collection of C&D waste, the applicant charges him some amount at a rate fixed by the applicant and after that if the respondent is in need of C&D waste for landfilling then the respondent has to purchase the same from the applicant on the rate to be fixed by the respondent. In this way, the applicant is doing business on the cost of the respondent no. 1. It is further submitted that respondent no. 1 is a reputed company 6 and requires the C&D waste for own purposes to use for landfilling for which the respondent no. 1 has taken the permission from the competent authority and doing the work in accordance with the Rules.
5. Vide order dated 19.06.2020, direction was issued to Gujarat State Pollution Control Board (GSPCB) to submit a report. In compliance thereof, the GSPCB has submitted a report which is as follows:
"Inspection of Reliance Industries Ltd, residential township Demolition Site located at Piplod, Surat (Surat Municipal Corporation area) and demolition waste disposal site located at Block/Survey No. 435-P 1/1, Village: Damka, Ta: Choryasi, Dist: Surat situated outside limits of Surat Municipal Corporation (SMC) were carried out by the Board on 01/07/2020 (Inspection report attached herewith as Annexure-II) with reference to Hon'ble NGT order dated 19/06/2020 in Original Application No. 26/2020.
Summary of the inspection report is as under:
Three residential townships of Reliance Industries Ltd, are located at 1) Final Plot (F.P.) No. 66/P &67/P, total two tower (Tower T & U), 2) Final Plot (F.P.) No. 62, total six tower (Tower A to F) and 3) Final Plot (F.P.) No. 63, total six tower (J, K, L & O, P, Q) in Town Planning Scheme (TP Scheme) Number 6, Piplod, Surat where demolition is carried out. Total 14 high- rise buildings each of 12 stories. All the three sites are surrounded by residential buildings of Piplod area.
• Present status at each Final Plots are as under:
1) Final Plot (F.P.) No. 66/P &67/P, total two tower (Tower T & U), Total two towers T & U are completely demolished and almost all the demolition waste - concrete, bricks, mortar waste about 8000 MT is shifted at their own land located at Block/Survey No. 435-P 1/1, Village Damka, Dist: Surat. Remaining some concrete, bricks waste is used at site for land-levelling purpose. This building site is located on bank of River Tapi.
2) Final Plot (F.P.) No. 62, total six tower (Tower A to F).
Total six towers (A to F). From top to 3rd floor demolition work i.e. about 90 % of demolition work is completed. About 9000 MT demolition waste - concrete, bricks, mortar waste are found lying at the site. This premises gate was observed sealed by Surat Municipal Corporation (SMC).
3) Final Plot (F.P.) No. 63, total six tower (J, K, L & O, P, Q). 7 Total six towers (J, K, L & O, P, Q) demolition work is completed. About 5500 MT demolished waste - concrete, bricks, mortar waste are found lying at the site. About 7000 MT demolition waste - concrete, bricks, mortar waste is shifted at their own land located at Block/Survey No. 435-P 1/1, Village: Damka, Dist.: Surat and remaining waste is observed at site. This premises gate was observed sealed by Surat Municipal Corporation (SMC).
o During inspection demolition work was not going on. They have stopped demolition work on 18thJune, 2020 as per direction of SMC vide letter dated 18/06/2020 (Annexure-B of inspection report).
• Present status at Disposal site:
o Their C & D waste disposal site is located at Block/Survey No. 435-P 1/1, Village: Damka, Ta: Choryasi, Dist: Surat having total area of Damka site is about 2.69 Lakhs Sq. Meter.
o About 15,000 MT of demolition waste generated from demolition sites is disposed at their own land located at Block/Survey No. 435-P 1/1, Village: Damka, Dist: Surat.
o The land is observed Low-lying and presently utilize for heavy vehicle parking. No heaps of C & D waste and fugitive emission is observed at site. Fencing is provided surrounding the site. They have started to develop Green Belt (Buffer Zone) surrounding the plot area.
o Tena creek Coastal Regulation Zone (CRZ) area is more than 600 Meters away from the disposal site.
o No residential area is observed within one Kilometer of the Damka disposal site.
o Demolition waste is being shifted in covered trucks/dumpers to above-said open plot situated outside limits of Surat Municipal Corporation (SMC) for filling low lying area utilized for trucks parking.
• Statutory compliance:
o Reliance Industries Ltd has received notice from Surat Municipal Corporation (SMC) dated 09/05/2019 to demolish the buildings (Annexure-A of inspection report) and accordingly they have started demolition work in May-2019 with calculated approximate quantity of Demolition Waste is about 30,000 MT.
o Reliance industries has submitted C & D waste management plan to SMC vide their letter dated 26/02/2020 (Annexure-C of inspection report) in which it is proposed to disposed of the waste in their own land Block/Survey No. 435-P 1/1, Village:
Damka, Ta: Choryasi, Dist: Surat for filling purpose as it is low lying area. They have also submitted undertaking to SMC on 11/03/2020 (Annexure-D of inspection report).8
o In an Annexure-II of the Guidelines on environmental Management of construction and demolition wastes dated 26/05/2017 issued by Central Pollution Control Board. (attached herewith as Annexure-III) potential uses of Debris is described as under:
"Construction debris can be recycled to manufacture paver blocks which can be used in light traffic areas and masonry blocks. Other uses of processed debris include use in lean concrete for leveling purpose, as mortar for masonry, as bedding mortar for pavement tiles and used for land filling materials is comparable with new materials."
Inspection Report
Name and Address of Reliance Industries Ltd. (Piplod site and Damka site)
Unit Dist: Surat
Date & Time of Visit 01-07-2020 at 14.30 Hrs
Visited by D. M. Rathod (D.E.E.)
N. K. Valand (S.S.A.)
Person Contacted Shri Rashesh Desai (Sr. General Manager)
Reference Hon'ble NGT Original Application No. 26/2020, order dated
19-07- 2020.
Relevant Information Reliance Industries Ltd residential township Demolition
Site at: Piplod, Surat and demolition waste disposal site at: Village Damka, Dist. Surat were visited with reference to Hon'ble NGT Original Application No. 26/2020, order dated 19-07-2020.
Reliance Industries Ltd, residential township is located at Town Planning Scheme (TP Scheme) Number 6, Piplod, 1) Final Plot (F.P.) No. 66/P &67/P, total two tower (Tower T & U), 2) Final Plot (F.P.) No. 62, total six tower (Tower A to U) and 3) Final Plot (F.P.)No. 63, total six tower (J, K, L & O, P, Q). Total 14 high-rise buildings each of 12 stories.
All the three sites are surrounded by residential buildings of Piplod area.
During visit demolition work is not going on. Present status at each Final Plots are as under:
Sr. F.P. Land Present status No. No Area (Sq.9
M) 1 66/P 3,405 Total two towers T & U are & completely demolished and almost 67/P all the demolished waste -
concrete, bricks, mortar waste about 8000 MT is shifted at their own land located at Block/ Survey No. 435-P 1/1, Village Damka Dist:
Surat. Remaining some concrete, bricks waste is used at site for landlevelling purpose. This building site is located on bank of River Tapi.
2 62 7,000 Total six towers (A to F). From top to 3rd floor demolition work i.e. about 90 % of demolition work is completed. About 9000 MT demolished waste - concrete, bricks, mortar waste are found lying at the site. This premises gate was observed seal by Surat Municipal Corporation (SMC).
3 63 12,015 Total six towers (J, K, L & O, P, Q).
Demolition work is completed.
About 5500 MT demolished waste
- concrete, bricks, mortar waste are found lying at the site. About 7000 Mt demolished waste - concrete, bricks, mortar waste is shifted at their own land located at Block/Survey No. 435-P 1/1, Village: Damka, Dist: Surat and remaining waste is observed at site. This premises gate was observed seal by Surat Municipal Corporation (SMC).
About 15,000 MT is disposed at their own land located at Block/Survey No. 435-P 1/1, Village Damka Dist: Surat.
About total 14,500 MT of demolished waste is lying at F.P. No. - 62 & 63.
As per contacted person of Reliance Industries Ltd, they have received notice from Surat Municipal Corporation (SMC) dated 09-05-2019 to demolish the building (Annexure - A) and accordingly they have started demolition work in May - 2019 with calculate approximate quantity of Demolition Waste is about 30,000 MT. They have stopped demolition work on 18th 10 June, 2020 as per direction of SMC vide letter dated 18-06-2020 (Annexure - B).
Reliance industries has submitted C & D waste management plan to SMC vide their letter dated 26-02- 2020(Annexure-C), they have also submitted undertaking to SMC on 11-03-2020. (Annexure - D).
C&D Waste Disposed at their own land Block/Survey No. 435-P 1/1, Village: Damka, Ta: Choryasi, Dist: Surat.
Total area of Damka site is about2.69 Lakhs Sq. Meter and fencing is provided surrounding the site. They have started to develop Green Belt (Buffer Zone) surrounding the plot area.
Lat-Long: Five Corners of the plot
Corner No. Lat Long
1 N21.188084 E 72.692415
2 N 21.186320 E 72.691480
3 N 21.185530 E 72.693177
4 N 21.187558 E 72.702851
5 N 21.191348 E 72.699316
The land is observed Low-lying and presently utilize for heavy vehicle parking. No heaps of C&D Waste and fugitive emission is observed at site.
Tena crick CRZ area is more than 600 Meters away from the disposal site (Annexure - E) (CZMP map attached).
"
No residential area is observed within ONE km of the disposal site of Damka.
It has been informed that demolition waste is being shifted in covered trucks/dumpers to RIL's above-said open plot situated outside limits of Surat Municipal Corporation (SMC) for filling low lying area utilized for trucks parking.
During site visit it is informed to submit following details:
Please submit the details of total building demolition area and total quantity of C&D waste generated with present status.
Please submit the date of demolition.
Please submit the waste management plan.
Please submit all the details of C&D waste storage area.11
6. It is further argued on behalf of the respondent that the applicant by way of filing this application wants to be double benefitted because of the reason that the respondent has to give the waste to the applicant at a rate which is fixed by the applicant and again purchase it for its landfilling. He has further submitted that the application is time barred and not maintainable.
7. Section 4 provides for disposal of waste by a waste generator and to segregate the waste into four streams such as concrete, soil, steel, wood and plastics, bricks and shall submit waste management plan and get appropriate approvals from the local authority before starting construction or demolition or remodeling work and to dispose it in accordance with law.
8. The State PCB examined the site and submitted a report which reveals that the disposal by the respondent no. 1 is in accordance with C&D Rules and there is no violation of any rules. Due permission has been taken from the competent authority and thus, the allegation by the applicant that the C&D waste is not disposed of in accordance with the rule is not maintainable and not to be acceptable as per report submitted by the State PCB.
9. Nothing has been reported by the Gujarat State Pollution Control Board as to Respondent No. 1 is not complying the rules. Rule 4 of the C&D Waste Rules provides that the waste generator shall prima facie be responsible for collection and segregation of concrete, soil and others and storage of construction and demolition waste 12 generated, as directed or notified by the concerned local authorities in consonance with these rules and shall ensure that other waste does not get mixed with these wastes this waste and restored and dispose separately.
10. Nothing has been reported by the review applicant that there is a violation of any condition of the rules. Thus, the matter has been directly disposed off and it is a duty of the Gujarat State Pollution Control Board to monitor the activities and compliance of the rules and nothing has been reported about non-compliance. Gujarat State Pollution Control Board is a regulatory and monitoring authority and may monitor in future also.
11. Next question which is to be decided by this Tribunal as to whether this Tribunal can enforce the contractual matters.
12. The parameters of the Court's power have been analyzed by the Supreme Court in Commissioner of Income-tax, Bombay & Ors. Vs. Mahindra & Mahindra Ltd. & Ors., AIR 1984 SC 1182. We reproduce paragraph-11 of the said judgment-:
"By now, the parameters of the Court's power of judicial review of administrative or executive action or decision and the grounds on which the Court can interfere with the same are well settled and it would be redundant to recapitulate the whole catena of decisions of this Court commencing from Barium Chemicals, 1966 Supp SCR 311: (AIR 1967 SC 295) case on the point. Indisputably, it is a settled position that if the action or decision is perverse or is such that no reasonable body of persons, properly informed, could come to, or has been arrived at by the authority misdirecting itself by adopting a wrong approach, or has been influenced by irrelevant or extraneous matters the Court would be justified in interfering with the same. This Court in one of its later decisions in Smt. Shalini Soni Vs. Union of India, (1981) 1 SCR 962; (AIR 1981 SC 431), has observed thus: "It is an unwritten rule of the law, constitutional and administrative, that whenever a decision-making function is entrusted to the subjective satisfaction of a statutory functionary, there is an implicit obligation to apply his mind to pertinent and 13 proximate matters only, eschewing the irrelevant and the remote". Suffice it to say that the following passage appearing at pages 285-86 in Prof. de Smith's treatise 'Judicial Review of Administrative Action' (4th Edn.) succinctly summarises the several principles formulated by the Courts in that behalf thus: "The authority in which a discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general, a discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it: it must not act under the dictation of another body or disable itself from exercising a discretion in each individual case. In the purported exercise of its discretion it must not do what it has been forbidden to do, nor must it do what it has not been authorised to do. It must act in good faith, must have regard to all relevant considerations, must not be swayed by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously. Nor where a judgment must be made that certain facts exist can a discretion be validly exercised on the basis of an erroneous assumption about those facts. These several principles can conveniently be grouped in two main categories; failure to exercise a discretion, and excess or abuse of discretionary power. The two classes are not, however, mutually exclusive. Thus, discretion may be improperly fettered because irrelevant considerations have been taken into account; and where an authority hands over its discretion to another body it acts ultra vires. Nor, is it possible to differentiate with precision the grounds of invalidly contained within each category".
13. In State of U.P. & Ors., Vs. Renusagar Power Co. & Ors., AIR 1988 SC 1737 it was held that exercise of administrative power will be set aside if there is a manifest error in the exercise of such power or the exercise of the power is manifestly arbitrary.
14. The famous "Wednesbury Case" Associated Provincial Picture Houses Ltd. Us. Wednesbury Corp. (1947) 2 All ER 680 (CA) is considered to be the landmark in so far as the basic principles relating to judicial review of administrative or statutory direction are concerned. We quote a passage from the judgment of Lord Greene which is as follows:-
14
"It is true that discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology used in relation to exercise of statutory discretions often use the word 'unreasonable' in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters, which he is bound to consider. He must exclude from his consideration matters, which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting 'unreasonably'. Similarly, there may be something so absurd that no sensible person could even dream that it lay within the powers of the authority...... . In another, it is taking into consideration extraneous matters. It is unreasonable that it might almost be described as being done in bad faith; and in fact, all these things run into one another."
15. The principles of judicial review of administrative action were further summarized in 1985 by Lord Diplock in Council of Civil Service Unions Vs. Minister for the Civil Service 1984 (3) Al. ER. 935, (commonly known as CCSU case) as illegality, procedural impropriety and irrationality. He said more grounds could in future become available, including the doctrine of proportionality which was a principle followed by certain other members of the European Economic Community. Lord Diplock observed in this case as follows:-
"....... Judicial review has I think, developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call 'illegality', the second 'irrationality' and the third 'procedural impropriety'. That is not to say that further development on a case-by-case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of 'proportionality' which is recognized in the administrative law of several of our fellow members of the European Economic Community."
Lord Diplock explained 'irrationality' as follows: 15
"By 'irrationality' I mean what can by now be succinctly referred to as 'Wednesbury unreasonableness'. It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it."
16. In Union of India & Anr,. Vs. G.Ganayutham (1997) 7 SCC 463 the Supreme Court after referring to the aforesaid two cases namely Wednesbury case and CCSU case held as follows:-
"We are of the view that even in our country-in cases not involving fundamental freedoms-the role of our courts/tribunals in administrative law is purely secondary and while applying Wednesbury and CCSU principles to test the validity of executive action or of administrative action taken in exercise of statutory powers, the courts and tribunals in our country can only go into the matter, as a secondary reviewing court to find out if the executive or the administrator in their primary roles have arrived at a reasonable decision on the material before them in the light of Wednesbury and CCSU tests. The choice of the options available is for the authority; the court/tribunal canot substitute its view as to what is reasonable."
17. In Indian Railway Construction Co. Ltd. Vs. Ajay Kumar (2003) 4 SCC 579 the Supreme Court held as follows-
"It is trite law that exercise of power, whether legislative or administrative, will be set aside if there is manifest error in the exercise of such power or the exercise of the power is manifestly arbitrary. ............If a power (whether legislative or administrative) is exercised on the basis of facts which do not exist and which are patently erroneous, such exercise of power will stand vitiated."
18. In People's Union for Civil Liberties & Anr. Vs. Union of India & ors., 2004 AIR SCW 379 while dealing with the same issue, the Supreme Court observed as under:-
"The jurisdiction of this Court in such matter is very limited. The Court will not normally exercise its power of judicial review in such matters unless it is found that formation of belief by the statutory authority suffers from mala fide, dishonesty or corrupt practice. The order can be set aside if it is held to be beyond the limits for which the power has been 16 conferred upon the authorities by the Legislature or is based on the grounds extraneous to the legislation and if there are no grounds at all for passing it or if the grounds are such that no one can reasonably arrive at the opinion or satisfaction required thereunder."
19. In State of N.C.T. of Delhi & Anr. Vs. Sanjeev alias Bittoo 2005 AIR SCW 1987 the Supreme Court in paragraphs 16 and 18 held as follows:-
"16.................................................................................. ...................One can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground is 'illegality' the second 'irrationality' and the third 'procedural impropriety'."
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18. The Court will be slow to interfere in such matters relating to administrative functions unless decision is tainted by any vulnerability enumerated above; like illegality, irrationality, and procedural impropriety. Whether action falls within any of the categories has to be established. Mere assertion in that regard would not be sufficient."
20. The principles applied in judicial review of administrative decisions relating to acceptance of the terms and conditions set out in the contract have been considered by the Supreme Court in Tata Cellular Vs. Union of India AIR 1996 SC 11 and the same are as follows:-
"The principles deducible from the above are:
(1) The modern trend points to judicial restraint in administrative action.
(2) The Court does not sit as a court of appeal but merely reviews the manner in which the decision was made. (3) The Court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible. (4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts.
(5) The Government must have freedom of contract. In other words, a fairplay in the joints is a necessary concomitant for 17 an administrative body functioning in an administrative sphere or quasi administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides.
(6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure."
21. In Sterling Computers Ltd., Vs. M/s. M & N Publications Ltd & Ors., AIR 1996 SC 51 the Supreme Court observed as follows:-
"While exercising the power of judicial review, in respect of contracts entered into on behalf of the State, the Court is concerned primarily as to whether there has been any infirmity in the "decision making process".
............................................... .............................................. By way of judicial review the Court cannot examine the details of the terms of the contract which have been entered into by the public bodies or the State. Courts have inherent limitations on the scope of any such enquiry."
22. In Monarch Infrastructure (P) Ltd. Vs. Commissioner, Ulhasnagar Municipal Corporation & Ors,. (2000) 5 SCC 287 it was held by the Supreme Court:-
"Broadly stated, the courts would not interfere with the matter of administrative action or changes made therein, unless the Government's action is arbitrary or discriminatory or the policy adopted has no nexus with the object it seeks to achieve or is mala fide."
23. In Air India Ltd. Vs. Cochin International Airport Ltd. & Ors,. (2000) 2 SCC 617 the Supreme Court held as follows:-
"Even when some defect is found in the decision-making process the court must exercise its discretionary power under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the court should intervene."18
24. After considering the aforesaid two decisions the Supreme Court in Directorate of Education & Ors,. Vs. Educomp Datamatics Ltd. & Ors,. (2004) 4 SCC 19 observed as follows:-
"It has clearly been held in these decisions that the terms of the invitation to tender are not open to judicial scrutiny, the same being in the realm of contract. That the Government must have a free hand in setting the terms of the tender. It must have reasonable play in its joints as a necessary concomitant for an administrative body in an administrative sphere. The courts would interfere with the administrative policy decision only if it is arbitrary, discriminatory, mala fide or actuated by bias. It is entitled to pragmatic adjustments which may be called for by the particular circumstances. The courts cannot strike down the terms of the tender prescribed by the Government because it feels that some other terms in the tender would have been fair, wiser or logical. The courts can interfere only if the policy decision is arbitrary, discriminatory or mala fide."
25. The same principles were followed by the Supreme Court in M/s.
Master Marine Services Pvt. Ltd. Vs. Metcalfe & Hodgkinson Pvt. Ltd. & Anr., 2005 AIR SCW 2189.
26. The matter of contractual matter was discussed in Modicare Limited v. Gautam Bali 2019 SSC online DEL 10511 agreements in restraint of profession, trade or business are void under Section 27 of the Contract Act. It is incongruous to suggest that the law would disable a party from enforcing such an agreement on the one hand, but enable the same party to the same relief under the law of tort, on the other. What is not contractually enforceable cannot be enforced by invoking the law of tort;
Unlike the United Kingdom, which recognises the tort of unlawful interference in contractual relationships as well as reasonable restraints on trade, the same does not have any place in India in view of Section 27 of the Contract Act. Principles of English law cannot be imported once the Parliament has codified the law. 19
27. The right to carry on trade or business or to practice any profession is a fundamental right under Article 19 of the Constitution of India and any restriction thereon can be imposed only by making a law as provided in Article 19 itself.
28. A claim founded on unlawful interference with business or of enticement to commit a breach of contract is not enforceable in a court of law, whether contractually or by invoking the law of tort. The court was of the view that the principles laid down in Modicare (supra), in the context of employers and ex-employees, are equally applicable to competitors.
29. When a writ petition is filed in the High Court challenging the award of a contract by a public authority or the State, the court must be satisfied that there is some element of public interest involved in entertaining such a petition. If, for example, the dispute is purely between two tenderers, the court must be very careful to see if there is any element of public interest involved in the litigation. A mere difference in the prices offered by the two tenderers may or may not be decisive in deciding whether any public interest is involved in intervening in such a commercial transaction. It is important to bear in mind that by court intervention, the proposed project may be considerably delayed thus escalating the cost far more than any saving which the court would ultimately effect in public money by deciding the dispute in favour of one tenderer or the other tenderer. Therefore, unless the court is satisfied that there is a substantial amount of public interest, or the transaction is entered into mala fide, the court should not intervene under Article 226 in disputes between two rival tenderers.
20
30. In the matter of Air India Ltd. v. Cochin International Airport Ltd., the Supreme Court laid down the principles as to how the discretionary jurisdiction under Article 226 should be cautiously exercised in the matter of awarding contract keeping in view the public interest. It has held as under:
"7. The law relating to award of a contract by the State, its corporations and bodies acting as instrumentalities and agencies of the Government has been settled by the decision of this Court in Ramana Dayaram Shetty v. International Airport Authority of India, Fertilizer Corpn. Kamgar Union (Regd.) v. Union of India, CCE v. Dunlop India Ltd., Tata Cellular v. Union of India, Ramniklal N. Bhutta v. State of Maharashtra and Raunaq International Ltd. v. I.V.R. Construction Ltd. The award of a contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction. In arriving at a commercial decision considerations which are paramount are commercial considerations. The State can choose its own method to arrive at a decision. It can fix its own terms of invitation to tender and that is not open to judicial scrutiny. It can enter into negotiations before finally deciding to accept one of the offers made to it. Price need not always be the sole criterion for awarding a contract. It is free to grant any relaxation, for bona fide reasons, if the tender conditions permit such a relaxation. It may not accept the offer even though it happens to be the highest or the lowest. But the State, its corporations, instrumentalities and agencies are bound to adhere to the norms, standards and procedures laid down by them and cannot depart from them arbitrarily. Though that decision is not amenable to judicial review, the court can examine the decision-making process and interfere if it is found vitiated by mala fides, unreasonableness and arbitrariness. The State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision-making process the court must exercise its discretionary power under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the court should intervene."
31. In the matter of Master Marine Services (P) Ltd. v. Metcalfe & Hodgkinson (P) Ltd. and another, their Lordships of the Supreme 21 Court have held that fair play in joints is necessary concomitant for an administrative body. It was held as under:-
"12. After an exhaustive consideration of a large number of decisions and standard books on administrative law, the Court enunciated the principle that the modern trend points to judicial restraint in administrative action. The Court does not sit as a Court of appeal but merely reviews the manner in which the decision was made. The Court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise, which itself may be fallible. The Government must have freedom of contract. In other words, fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principles of reasonableness but also must be free from arbitrariness not affected by bias or actuated by mala fides. It was also pointed out that quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure."
32. In the matter of Jagdish Mandal v. State of Orissa, the Supreme Court noticed earlier pronouncement in Sterling Computer (supra), Tata Cellular (supra), Air India (supra) and indicated the relevant factors to be kept in mind before interfering in tender or contractual matter in exercise of power of judicial review. It was held as under:-
"22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made "lawfully" and not to check whether choice or decision is "sound". When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a 22 grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interference s, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold. Therefore, a court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions:
(i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone;
OR Whether the process adopted or decision made is so arbitrary and irrational that the court can say: "the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached";
(ii) Whether public interest is affected.
If the answers are in the negative, there should be no interference under Article 226. Cases involving blacklisting or imposition of penal consequences on a tenderer/contractor or distribution of State largesse (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action."
33. The High Court of Himachal Pradesh, in the matter of Reliance Infrastructure Limited v. State of Himanchal Pradesh and others, after considering the entire law and the principles laid down in Tata Cellular (supra) and Reliance Airport Developers Pvt. Ltd. v. Airport Authority of India, the Division Bench speaking through one of us (Deepak Gupta, CJ) (as then his Lordship was Honourable Judge of Himachal Pradesh High Court) held as under:-
"31. There can be no manner of doubt that while taking administrative decisions relating to contractual matters, the Government cannot be put into a straitjacket. It must have the power to negotiate and to ensure that the best deal is available to it. In contractual matters the State is like any other contracting party and therefore, must ensure that in case it is purchasing goods it purchases the best quality goods at the cheapest price and if it is distributing the assets of the State then it gets the highest price for the same. The State, therefore, has to have some leeway and 'play in the 23 joints' to negotiate in a business like fashion. However, this power of 'paly in the joints' must be exercised reasonably and fairly and not in an arbitrary or biased manner. Furthermore, decision of the arbitrator should not be irrational and must be based on the material on record. What this Court has to decide is not whether the decision is right or wrong but whether there is any infirmity in the decision making process. ....."
34. In Reliance Energy Ltd. (supra), the Supreme Court emphasised the need that terms and conditions must be certain and it should not be vague, and observed as under:-
"38. When tenders are invited, the terms and conditions must indicate with legal certainty, norms and benchmarks. This "legal certainty" is an important aspect of the rule of law. If there is vagueness or subjectivity in the said norms it may result in unequal and discriminatory treatment. It may violate doctrine of "level playing field".
39. In Reliance Airport Developers (P) Ltd. v. Airports Authority of India the Division Bench of this Court has held that in matters of judicial review the basic test is to see whether there is any infirmity in the decision-making process and not in the decision itself. This means that the decision maker must understand correctly the law that regulates his decision-making power and he must give effect to it otherwise it may result in illegality. The principle of "judicial review"
cannot be denied even in contractual matters or matters in which the Government exercises its contractual powers, but judicial review is intended to prevent arbitrariness and it must be exercised in larger public interest. Expression of different views and opinions in exercise of contractual powers may be there, however, such difference of opinion must be based on specified norms. Those norms may be legal norms or accounting norms. As long as the norms are clear and properly understood by the decision-maker and the bidders and other stakeholders, uncertainty and thereby breach of the rule of law will not arise. The grounds upon which administrative action is subjected to control by judicial review are classifiable broadly under three heads, namely, illegality, irrationality and procedural impropriety. In the said judgement it has been held that all errors of law are jurisdictional errors. One of the important principles laid down in the aforesaid judgement is that whenever a norm/ benchmark is prescribed in the tender process in order to provide certainty that norm/standard should be clear. As stated above "certainty" is an important aspect of the rule of law. In Reliance Airport Developers the scoring system formed part of the evaluation process. The object of that system was to provide identification of factors, allocation of marks of each of the said factors and giving of marks at different stages. Objectivity was thus provided.24
35. In the matter of Heinz India (P) Ltd. v. State of U.P., Their Lordships of the Supreme Court have held, that power of judicial review doesn't allow the court of review to examine the evidence with a view to forming its own opinion about the substantial merits of the case, it was observed as under:-
"60. The power of judicial review is neither unqualified nor unlimited. It has its own limitations. The scope and extent of the power that is so very often invoked has been the subject- matter of several judicial pronouncements within and outside the country. When one talks of "judicial review" one is instantly reminded of the classic and oft-quoted passage from Council of Civil Service Unions v. Minister for the Civil Service13, where Lord Dip lock summed up the permissible grounds of judicial review thus:
"...
Judicial review has I think developed to a stage today `when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call 'illegality', the second 'irrationality' and the third 'procedural impropriety'.
...
By 'illegality' as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the Judges, by whom the judicial power of the State is exercisable.
By 'irrationality' I mean what can by now be succinctly referred to as 'Wednesbury15 unreasonableness'. It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that Judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system.
...
I have described the third head as 'procedural impropriety' rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an Administrative Tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice."25
36. We may while parting with the discussion on the legal dimensions of judicial review refer to the following passage from Reid v. Secy. of State for Scotland which succinctly sums up the legal proposition that judicial review does not allow the court of review to examine the evidence with a view to forming its own opinion about the substantial merits of the case.
"Judicial review involves a challenge to the legal validity of the decision. It does not allow the court of review to examine the evidence with a view to forming its own view about the substantial merits of the case. It may be that the tribunal whose decision is being challenged has done something which it had no lawful authority to do. It may have abused or misused the authority which it had. It may have departed from the procedures which either by statute or at common law as a matter of fairness it ought to have observed. As regards the decisions itself it may be found to be perverse, or irrational or grossly disproportionate to what was required. Or the decision may be found to be erroneous in respect of a legal deficiency, as for example, through the absence of evidence, or of sufficient evidence, to support it, or through account being taken of irrelevant matter, or through a failure for any reason to take account of a relevant matter, or through some misconstruction of the terms of the statutory provision which the decision-maker is required to apply. But while the evidence may have to be explored in order to see if the decision is vitiated by such legal deficiencies it is perfectly clear that in case of review, as distinct from an ordinary appeal, the court may not set about forming its own preferred view of evidence."
37. In the matter of Michigan Rubber (India) Limited v. State of Karnataka and others, Their Lordships of the Supreme Court restated the nature and scope of judicial review in contractual matter and held that the court's interference is very restricted and limited and interference is not warranted unless action of tendering authority is malafide and is a misuse of statutory authority and culled out following proposition of law as under:-
"23. From the above decisions, the following principles emerge:
(a) The basic requirement of Article 14 is fairness in action by the State, and non arbitrariness in essence and substance is the heartbeat of fair play. These actions are amenable to the judicial review only to the extent that the State must act 26 validly for a discernible reason and not whimsically for any ulterior purpose. If the State acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities;
(b) Fixation of a value of the tender is entirely within the purview of the executive and the courts hardly have any role to play in this process except for striking down such action of the executive as is proved to be arbitrary or unreasonable. If the Government acts in conformity with certain healthy standards and norms such as awarding of contracts by inviting tenders, in those circumstances, the interference by courts is very limited;
(c) In the matter of formulating conditions of a tender document and awarding a contract, greater latitude is required to be conceded to the State authorities unless the action of the tendering authority is found to be malicious and a misuse of its statutory powers, interference by courts is not warranted;
(d) Certain preconditions or qualifications for tenders have to be laid down to ensure that the contractor has the capacity and the resources to successfully execute the work; and
(e) If the State or its instrumentalities act reasonably, fairly and in public interest in awarding contract, here again, interference by court is very restrictive since no person can claim a fundamental right to carry on business with the Government.
38. Therefore, a court before interfering in tender or contractual matters, in exercise of power of judicial review, should pose to itself the following questions:
(i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone; or whether the process adopted or decision made is so arbitrary and irrational that the court can say: "the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached"? and
(ii) Whether the public interest is affected? If the answers to the above questions are in the negative, then there should be no interference under Article 226."
39. In the matter of Kalinga Mining Corpn. v. Union of India, the Supreme Court noticed the judgement of Tata Cellular (supra) and held that court doesn't exercise power of an appellate court in exercise of powers of judicial review. It was pertinently held as under:-
27
"62. It is by now well settled that judicial review of the administrative action/quasi-judicial orders passed by the Government is limited only to correcting the errors of law or fundamental procedural requirements which may lead to manifest injustice. When the conclusions of the authority are based on evidence, the same cannot be re appreciated by the Court in exercise of its powers of judicial review. The Court does not exercise the powers of an appellate court in exercise of its powers of judicial review. It is only in cases where either findings recorded by the administrative/quasi-judicial authority are based on no evidence or are so perverse that no reasonable person would have reached such a conclusion on the basis of the material available that the Court would be justified to interfere with the decision. The scope of judicial review is limited to the decision-making process and not to the decision itself, even if the same appears to be erroneous."
40. In the matter Sanjay Kumar Shukla v. Bharat Petroleum Corpn.
Ltd., Their Lordships of the Supreme Court struck a note of caution against the entertainment of writ petition in contractual matter unless justified by public interest and held as under:-
"19. We have felt it necessary to reiterate the need of caution sounded by this Court in the decisions referred to herein above in view of the serious consequences that the entertainment of a writ petition in contractual matters, unless justified by public interest, can entail. Delay in the judicial process that seems to have become inevitable could work in different ways. Deprivation of the benefit of a service or facility to the public; escalating costs burdening the public exchequer and abandonment of half completed works and projects due to the ground realities in a fast changing economic/market scenario are some of the pitfalls that may occur."
41. In the matter of Siemens Aktiengeselischaft and Siemens Limited v.
Delhi Metro Rail Corporation Limited and others again Their Lordships of the Supreme Court reiterated the principles of law laid down in Ramana Dayaram Shetty (supra), Tata Cellular (supra), Jagdish Mandal (supra) and Heinz India (supra) and held as under:-
"18. The principles governing the judicial review of administrative decisions are now fairly well settled by a long line of decisions rendered by this Court since the decision of this Court in Ramana Dayaram Shetty v. International Airport Authority of India (supra) which is one of the earliest cases in which this Court judicially reviewed the process of allotment 28 of contracts by an instrumentality of the State and declared that such process was amenable to judicial review. Several subsequent decisions followed and applied the law to varied situations but among the latter decisions one that reviewed the law on the subject comprehensively was delivered by this Court in Tata Cellular case (supra) wherein this Court once again reiterated that judicial review would apply even to the exercise of contractual powers by the Government and government instrumentalities in order to prevent arbitrariness or favouritism. Having said that this Court noted the inherent limitations in the exercise of that power and declared that the State was free to protect its interest as the guardian of its finances. This Court held that there could be no infringement of Article 14 if the Government tried to get the best person or the best quotation for the right to choose cannot be considered to be an arbitrary power unless the power is exercised for any collateral purpose. The scope of judicial review, observed this Court, was confined to the following three distinct aspects:
(i) Whether there was any illegality in the decision which would imply whether the decision-making authority has understood correctly the law that regulates his decision making power and whether it has given effect to it;
(ii) Whether there was any irrationality in the decision taken by the authority implying thereby whether the decision is so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at the same; and
(iii) Whether there was any procedural impropriety committed by the decision-making authority while arriving at the decision. It was very pertinently observed by their Lordships qua the scope of interference in such an matter:-
"21. .........What the court has to constantly keep in mind is that it doesn't sit in appeal over the soundness of decision. The court can only examine, whether the decision making process, was fair, reasonable and transparent. In cases involving award of contract, the courts ought to exercise, judicial restraint, where decision is bonafide with no perceptible injury to public interest."
42. In the matter of Elektron Lighting System Pvt. Ltd. and Ors. v. Shah Investments Financial Developments and Consultants Pvt. Ltd. and others, the Supreme Court followed with approval the principles of law laid down in Tata Cellular (supra), AIR India Ltd. (supra) and Jagdish Mandal (supra).
29
43. In an extremely recent judgement delivered by Their Lordships of the Supreme Court in the matter of State of Jharkhand and others v. CWE-SOMA Consortium, in which competent authority cancelled the tender due to lack of adequate competition and decided to invite fresh tender, which was set-aside by the High Court exercising the power of judicial review, Their Lordships of Supreme Court did not approve the judgement of the High Court and held that while exercising power of judicial review, court doesn't sit as appellate court over the decision of government but merely reviews the manner in which decision was made following the decision of Tata Cellular (supra) and Master Marine Service Pvt. Ltd. (supra). It was held as under:-
"18. ..........While so, the high Court was not justified to sit in judgement over the decision of tender Committee and substitute its opinion on the cancellation of tender. Decision of the State issuing tender notice to cancel the tender and invite fresh tenders could not have been interfered with by the High Court unless found to be mala fide or arbitrary. When the authority took a decision to cancel the tender due to lack of adequate competition and in order to make it more competitive, it decided to invite fresh tenders, it cannot be said that there is any mala fide or want of bona fide in such decision. While exercising judicial review in the matter of Government contracts, the primary concern of the Court is to see whether there is any infirmity in the decision making process or whether it is vitiated by mala fide, unreasonableness or arbitrariness."
21. The right to refuse the lowest or any other tender is always available to the Government. In the case in hand, the respondent has neither pleaded nor established mala fide exercise of power by the appellant. While so, the decision of tender committee ought not to have been interfered with by the High Court. In our considered view, the High Court erred in sitting in appeal over the decision of the appellant to cancel the tender and float a fresh tender. Equally, the High Court was not right in going into the financial implication of a fresh tender."
44. On a conspectus of above-quoted judgments of the Supreme Court, it is quite vivid that the scope of judicial review of this Court in contractual matters is extremely limited. It is neither unlimited nor 30 unrestricted power. Scope of judicial review is confined to decision making process of the Government in evaluating the tender process, whether the process was fair, reasonable and not arbitrary and violative of Article 14 of the Constitution of India. Correctness of decision taken by the Government, whether it is right or wrong cannot be gone into except the infirmity in decision making process. Interfering in the correctness of the decision would be entering into the area which is prohibited and restricted but the decision making process can certainly be interfered with, if it is found to be arbitrary or irrational or mala fide exercise of power. This Court does not sit in appeal over the decision of the Government taken in this regard, but it must be based on record. While entertaining the writ petition, the Court has to look into the involvement of public interest in the matter, as the delay in judicial process would deprive the benefit flowing from the contract and it is likely to escalate cost burdening the public exchequer. While exercising this power of judicial review, this Court cannot substitute its own decision. However, in case selection or rejection is arbitrary, certainly, power of judicial review is available to the Court.
45. Coming to the power of judicial review in the matters relating to tenders or award of contracts, it is to be borne in mind some special features. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in 31 assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil Court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains, out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences either interim or final, may hold up public works for years, or delay relief of succour to thousand and millions and may increase the project cost manifold. Therefore, a Court before interfering in tender or contractual matters in exercise of power of judicial review may very cautious and as such, the scope of judicial review to award of contract has been considered by the apex Court in various judgments.
46. In Sterling Computers Ltd. v. M & N Publications Ltd.
MANU/SC/0439/1993 : (1993) 1 SCC 445, the apex Court observed as under:-
"18. While exercising the power of judicial review, in respect of contracts entered into on behalf of the State, the court is concerned primarily as to whether there has been any infirmity in the 'decision-making process'. ... the courts can certainly examine whether 'decision-making process' was reasonable, rational, not arbitrary and violative of Article 14 of the Constitution."
47. In Tata Cellular v. Union of India, MANU/SC/0002/1996 : (1994) 6 SCC 651 : AIR 1996 SC 11, this Court referred to the limitations relating to the scope of judicial review of administrative decisions and exercise of powers in awarding contracts to the following effect:-
32
"(1) The modern trend points to judicial restraint in administrative action.
(2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made.
(3) The court does not have the expertise to correct the administrative action. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible.
(4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. ... More often than not, such decisions are made qualitatively by experts.
(5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides.
(6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure."
The apex Court also noted that there are inherent limitations in the exercise of power of judicial review in contractual matter. As such, it is observed that the duty to act fairly will vary in extent, depending upon the nature of cases, to which the said principle is sought to be applied. It is further held that the State has the right to refuse the lowest or any other tender, provided it tries to get the best person or the best quotation, and the power to choose is not exercised for any collateral purpose or in infringement of Article 14.
48. In Raunaq International Ltd. v. I.V.R. Construction Ltd.
MANU/SC/0770/1998 : (1999) 1 SCC 492, the apex Court held as under:-
"9. The award of a contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction. In arriving at a commercial decision, considerations which are of paramount importance are commercial considerations. These would be:
(1) the price at which the other side is willing to do the work;
(2) whether the goods or services offered are of the requisite specifications;
(3) whether the person tendering has the ability to deliver the goods or services as per specifications. When large works contracts involving engagement of substantial manpower or 33 requiring specific skills are to be offered, the financial ability of the tenderer to fulfil the requirements of the job is also important;
(4) the ability of the tenderer to deliver goods or services or to do the work of the requisite standard and quality;
(5) past experience of the tenderer, and whether he has successfully completed similar work earlier;
(6) time which will be taken to deliver the goods or services;
and often (7) the ability of the tenderer to take follow-up action, rectify defects or to give post-contract services.
Even when the State or a public body enters into a commercial transaction, considerations which would prevail in its decision to award the contract to a given party would be the same. However, because the State or a public body or an agency of the State enters into such a contract, there could be, in a given case, an element of public law or public interest involved even in such a commercial transaction.
10. What are these elements of public interest? (1) Public money would be expended for the purposes of the contract. (2) The goods or services which are being commissioned could be for a public purpose, such as, construction of roads, public buildings, power plants or other public utilities. (3) The public would be directly interested in the timely fulfilment of the contract so that the services become available to the public expeditiously. (4) The public would also be interested in the quality of the work undertaken or goods supplied by the tenderer. Poor quality of work or goods can lead to tremendous public hardship and substantial financial outlay either in correcting mistakes or in rectifying defects or even at times in redoing the entire work-- thus involving larger outlays of public money and delaying the availability of services, facilities or goods, e.g. a delay in commissioning a power project, as in the present case, could lead to power shortages, retardation of industrial development, hardship to the general public and substantial cost escalation. 11. When a writ petition is filed in the High Court challenging the award of a contract by a public authority or the State, the court must be satisfied that there is some element of public interest involved in entertaining such a petition. If, for example, the dispute is purely between two tenderers, the court must be very careful to see if there is any element of public interest involved in the litigation. A mere difference in the prices offered by the two tenderers may or may not be decisive in deciding whether any public interest is involved in intervening in such a commercial transaction. It is important to bear in mind that by court intervention, the proposed project may be considerably delayed thus escalating the cost far more than any saving which the court would ultimately effect in public money by deciding the dispute in favour of one tenderer or the other tenderer. Therefore, unless the court is satisfied that there is a substantial amount of public interest, or the 34 transaction is entered into mala fide, the court should not intervene under Article 226 in disputes between two rival tenderers."
49. In Air India Ltd. v. Cochin International Airport Ltd.
MANU/SC/3402/2000 : (2000) 2 SCC 617, the apex Court while summarizing the scope of interference as enunciated in several earlier decisions held as follows:-
"7. ... The award of a contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction. In arriving at a commercial decision considerations which are paramount are commercial considerations. The State can choose its own method to arrive at a decision. It can fix its own terms of invitation to tender and that is not open to judicial scrutiny. It can enter into negotiations before finally deciding to accept one of the offers made to it. Price need not always be the sole criterion for awarding a contract. It is free to grant any relaxation, for bona fide reasons, if the tender conditions permit such a relaxation. It may not accept the offer even though it happens to be the highest or the lowest. But the State, its corporations, instrumentalities and agencies are bound to adhere to the norms, standards and procedures laid down by them and cannot depart from them arbitrarily. Though that decision is not amenable to judicial review, the court can examine the decision-making process and interfere if it is found vitiated by mala fides, unreasonableness and arbitrariness. The State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision-making process the court must exercise its discretionary power under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the court should intervene."
50. In Assn. of Registration Plates v. Union of India MANU/SC/1013/2004 : (2005) 1 SCC 679, the apex Court held:-
"43. ... Article 14 of the Constitution prohibits the Government from arbitrarily choosing a contractor at its will and pleasure. It has to act reasonably, fairly and in public interest in awarding contract. At the same time, no person can claim a fundamental right to carry on business with the Government.35
All that he can claim is that in competing for the contract, he should not be unfairly treated and discriminated, to the detriment of public interest."
51. In B.S.N. Joshi & Sons Ltd. v. Nair Coal Services Ltd.
MANU/SC/8598/2006 : (2006) 11 SCC 548 : (2006) 11 Scale 526, the apex Court observed:
"56. It may be true that a contract need not be given to the lowest tenderer but it is equally true that the employer is the best judge therefor; the same ordinarily being within its domain, court's interference in such matter should be minimal. The High Court's jurisdiction in such matters being limited in a case of this nature, the Court should normally exercise judicial restraint unless illegality or arbitrariness on the part of the employer is apparent on the face of the record."
52. The scope of judicial review has also been taken into consideration elaborately in Jagdish Mandal (supra). In paragraph-22 of the said judgment, the apex Court held as follows:-
"..............Therefore, a court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions:
(i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone;
OR Whether the process adopted or decision made is so arbitrary and irrational that the court can say: "the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached";
(ii) Whether public interest is affected.
If the answers are in the negative, there should be no interference under Article 226. Cases involving blacklisting or imposition of penal consequences on a tenderer/contractor or distribution of State largesse (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action."
Similar view has also been reiterated in Michigan Rubber (India) Limited (supra) and Maa Binda Express Carrier (supra).
53. Taking into consideration the factual and legal aspects, as discussed above, this Court is of the considered view that the writ 36 petition merits no consideration and the same is accordingly dismissed. No order to costs. As Lock-down period is continuing for COVID-19, learned counsel for the petitioner may utilize the soft copy of this judgment available in the High Court's official website or print out thereof at par with certified copies in the manner prescribed, vide Court's Notice No. 4587 dated 25.03.2020.
54. Accordingly, this Tribunal cannot interfere in the contractual matters and cannot enforce third party to perform the agreement which was enter between the applicant and the Municipal Corporation. If applicant wants to enforce his agreement alternate remedies available to approach to the civil court.
55. Next question as raised by the review applicant in his application is after submission of the report by the Gujarat State Pollution Control Board he was not provided an opportunity to file the rejoinder and thus, there is a violation of principal of natural justice. The report is a official report submitted by the Gujarat State Pollution Control Board during the performance of the duties and containing the facts and compliance of the rules it requires no rejoinder.
56. Further, nothing has been shown as to what adverse have effected by not filing the rejoinder. Is still nothing has been stated what adverse effects have been on the applicant or what was harm with the contents of the report submitted by the Gujarat State Pollution Control Board. Unless and until applicant is able to so that some rights have been curtailed that cannot be said that the applicant was not given opportunity of hearing.
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57. In the present case, nothing has been shown by the petitioner that there is a case of failure to exercise the discretion or excess or abuse of discretionary power vested to the respondents. Learned counsel for the petitioner has submitted that the opportunity of hearing was not provided to the petitioner before passing the order impugned.
58. It cannot be doubted that the principles of natural justice cannot be put into a strait-jacket formula and that its application will depend upon the fact situation obtaining therein. It cannot be applied in a vacuum without reference to the relevant facts and circumstances of the case. This is what has been held by the Supreme Court in K.L. Tripathi Vs. State Bank of India & Ors., AIR 1984 SC 273; N.K. Prasada Vs. Government of India & Ors., (2004) 6 SCC 299; State of Punjab Vs. Jagir Singh, (2004) 8 SCC 129; Karnataka SRTC & Anr. Vs. S.G. Kotturappa & Anr., (2005) 3 SCC 409; and in Viveka Nand Sethi Vs. Chairman, J&K Bank Ltd., (2005) 5 SCC 337.
59. In Chairman, Board of Mining Examination and Chief Inspector of Mines & Anr. Vs. Ramjee, AIR 1977 SC 965 the Court has observed that natural justice is not an unruly horse, no lurking landmine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference of the administrative realities and other factors of a given case, can be 38 exasperating. The Courts cannot look at law in the abstract or natural justice as a mere artefact. Nor can they fit into a rigid mould the concept of reasonable opportunity. If the totality of circumstances satisfies the Court that the party visited with adverse order has not suffered from denial of reasonable opportunity, the Court will decline to be punctilious or fanatical as if the rules of natural justice were sacred scriptures.
60. In Union of India Vs. Tulsiram Patel, AIR 1985 SC 1416 the Hon'ble Supreme Court held:-
"Though the two rules of natural justice, namely, nemo judex in causa sua and audi alteram partem, have now a definite meaning and connotation in law and their content and implications are well understood and firmly established, they are nonetheless not statutory rules. Each of these rules yields to and changes with the exigencies of different situations. They do not apply in the same manner to situations which are not alike. These rules are not cast in a rigid mould nor can they be put in a legal straitjacket. They are not immutable but flexible."
61. It is equally well settled that the principles of natural justice must not be stretched too far and in this connection reference may be made to the decisions of the Supreme Court in Sohan Lal Gupta & Ors. Vs. Asha Devi Gupta & Ors., (2003) 7 SCC 492; Mardia Chemicals Ltd. Vs. Union of India, AIR 2004 SC 2371 and Canara Bank Vs. Debasis Das, AIR 2003 SC 2041.
62. In Hira Nath Mishra & Ors. Vs. The Principal, Rajendra Medical College, Ranchi & Anr. AIR 1973 SC 1260, the Hon'ble Supreme Court held that principles of natural justice are not inflexible and 39 may differ in different circumstances. Rules of natural justice cannot remain the same applying to all conditions.
63. The Constitution Bench of the Supreme Court in Managing Director ECIL, Hyderabad Vs. B. Karunakar, AIR 1994 SC 1074 made reference to its earlier decisions and observed:-
"In A.K. Kraipak & Ors. Vs. Union of India & Ors., AIR 1970 SC 150, it was held that the rules of natural justice operate in areas not covered by any law. They do not supplant the law of the land but supplement it. They are not embodied rules and their aim is to secure justice or to prevent miscarriage of justice. If that is their purpose, there is no reason why, they should not be made applicable to administrative proceedings also especially when it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial ones. An unjust decision in an administrative inquiry may have a more far reaching effect than a decision in a quasijudicial inquiry. It was further observed that the concept of natural justice has undergone a great deal of change in recent years. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the inquiry is held and the constitution of the tribunal or the body of persons appointed for that purpose. Whenever a complaint is made before a Court that some principle of natural justice has been contravened, the Court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case. The rule that inquiry must be held in good faith and without bias and not arbitrarily or unreasonably is now included among the principles of natural justice." (Emphasis added)".
64. The Hon'ble Supreme Court in Bihar School Examination Board Vs. Subhas Chandra Sinha & Ors., AIR 1970 SC 1269 while considering the cancellation of the entire examination because of use of mass copy considered the scope of the principles of natural justice in such a matter and observed:-
40
"It was not necessary for the Board to give an opportunity to the candidates if the examinations as a whole were being cancelled. The Board had not charged any one with unfair means so that he could claim to defend himself. The examination was vitiated by adoption of unfair means on a mass scale. In these circumstances it would be wrong to insist that the Board must hold a detailed inquiry into the matter and examine each individual case to satisfy itself which of the candidates had not adopted unfair means. The examination as a whole had to go........."
65. After referring to the aforesaid decision, the Supreme Court in Chairman J&K State Board of Education Vs. Feyaz Ahmed Malik, AIR 2000 SC 1039, emphasised that the Board is entrusted with the duty of proper conduct of examinations.
66. In Biswa Ranjan Sahoo & Ors., Vs. Sushanta Kumar Dinda & Ors., AIR 1996 SC 2552, the Hon'ble Supreme Court had the occasion to examine whether principles of natural justice were required to be followed in a matter where because of large scale malpractice in the selection process, the selection was cancelled and in this context it was observed:-
"Nothing would become fruitful by issuance of notice. Fabrication would obviously either be not known or no one would come forward to bear the brunt. Under these circumstances, the Tribunal was right in not issuing notice to the persons who are said to have been selected and given selection and appointment."
67. In Union of India & Ors. Vs. O. Chakradhar, AIR 2002 SC 1119, the Hon'ble Supreme Court considered the question whether it was necessary to issue individual show cause notices to each selected person when the entire selection was cancelled because of widespread and all pervasive irregularities affecting the result of selection and it was observed:-
41
"The illegality and irregularity are so intermixed with the whole process of the selection that it becomes impossible to sort out right from the wrong or vice versa. The result of such a selection cannot be relied or acted upon. It is not a case where a question of misconduct on the part of a candidate is to be gone into but a case where those who conducted the selection have rendered it wholly unacceptable."
68. In the case of S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. & Ors., AIR 1994 SC 853, the Hon'ble Supreme Court refused to interfere on the ground of breach of principles of natural justice by observing that a person, whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation.
69. It is further to be noted that the Court is to proceed as to whether non- observance of any of the principles enshrined in statutory rules or principles of natural justice have resulted in deflecting the course of justice. Even, if in a given case, like the fact of the present case there may be some deviation but it has not resulted in grave injustice or has not prejudiced the cause of the petitioner because the decision taken by the respondent was based on the scientific report. This Court does not function as a Court of appeal on the finding of scientific report submitted by the experts. On examining the facts and circumstances of the present case, it cannot be held that the process adopted or decision made by the respondents is in anyway arbitrary or irrational or in any way in violation of the principles of natural justice. The conclusion is that the petition is devoid of merit and deserves to be dismissed.
70. Section 114 read with O.47 R.1 of the Code of Civil Procedure, 1908 (hereinafter called C.P.C.) prescribes the limitations for 42 entertaining a review petition. The same are; that the party filing the application for review has discovered a new and important matter or evidence after exercise of due diligence which was not within its knowledge or could not be produced by it at the time when the decree was passed; or order made or on account of some mistake or error apparent on the face of the record or for any other sufficient reason.' The aforesaid limitations are prescribed in a crystal clear language and before a party submits that it had discovered a new and important matter or evidence which could not be produced at the earlier stage, the condition precedent for entertaining the review would be to record the finding as to whether at the initial stage, the party has acted with due diligence. "Due" means just and proper in view of the facts and circumstances of the case (vide A.K. Gopalan Vs. State of Madras, AIR 1950 SC 27).
71. Some mistake or error, if made ground for review, it must be apparent on the face of record and if a party files an application on the ground of `some other sufficient reason' it has to satisfy that the said sufficient reason is analogous to the other conditions mentioned in the said rule i.e. discovery of new and important matter or evidence which it could not discover with due diligence or it was not within his knowledge and, thus, could not produce at the initial stage. Apparent error on the face of record has been explained to include failure to apply the law of limitation to the facts found by the Court or failure to consider a particular provision of a statute or a part thereof or a statutory provision has been applied though it was not in 43 operation. Review is permissible if there is an error of procedure apparent on the face of the record e.g. the judgment is delivered without notice to the parties, or judgment does not effectively deal with or determine any important issue in the case though argued by the parties. There may be merely a smoke-line demarketing an error simplicitor from the error apparent on the face of record. But there cannot be a ground for entertaining the review in the former case. "Sufficient reason" may include disposal of a case without proper notice to the party aggrieved. Thus, if a person comes and satisfies the Court that the matter has been heard without serving a notice upon it, review is maintainable for the "sufficient reason" though there may be no error apparent on the face of record.
72. The expression any other sufficient reason' contained in O.47 R.1 Code of Civil Procedure means "sufficient reason" which is analogous to those specified immediately to it in the provision of O. 47 R. 1 CPC. In Chhajju Ram Vs. Neki & Ors, AIR 1922 PC 112, it was held by the Privy Council that anology must be discovered between two grounds specified therein namely; (i) discovery of new and important matter or evidence; and (ii) error apparent on the face of record, before entertaining the review on any other sufficient ground. The same view has been reiterated in Debi Prasad & Ors Vs. Khelawan & Ors, AIR 1957 All. 67; and Mohammad Hasan Khan Vs. Ahmad Hafis Ahmad Ali Khan & Anr., AIR 1957 Nag. 97.
73. In S. Nagraj & Ors. Vs. State of Karnataka & Anr., 1993 Supp (4) SCC 595, the Hon'ble Apex Court explained the scope of review observing as under:-
44
"Review literally and even judicially means re-
examination or re-consideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the courts and even the statutes lean strongly in favour of finality of decision legally and properly made.
Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice ... ... The expression, `for any other sufficient reason' in the clause has been given an expanded meaning and a decree or order passed under mis-apprehension of true state of circumstances has been held to be sufficient ground to exercise the power."
The Court further held that the purpose of review is rectification of an order which stems from the fundamental principle that the justice is above all and it is exercised only to correct the error which has occurred by some accident without any blame. While deciding the said case the Hon'ble Supreme Court placed reliance upon a large number of judgments including in Raja Prithwi Chand Lal Choudhury Vs. Sukhraj Rai & Ors., AIR 1941 FC 1; and Rajunder Narain Rae Vs. Bijai Govind Singh (1836) 1 MOO PC 117. The same view has been reiterated by the Hon'ble Apex Court in Oriental Insurance Co. Ltd. & Anr. Vs. Gokulprasad Maniklal Agarwal & Anr. (1999) 7 SCC 578.
74. A Full Bench of the Himachal Pradesh High Court, in D. Nalagarh Dehati Co-operative Transport Society Ltd., Nalagarh Vs. Beli Ram AIR 1981 HP 1, considered the scope of review and held that not considering an existing judgment of the Hon'ble Supreme Court may be a ground of review and for the same it placed reliance upon the judgments of the Privy Council in Rajah Kotagiri Venkata Subbamma Rao Vs. Rajah Vellanki Venkatrama Rao, (1900) 27 IA 197 (PC), wherein it was held that the purpose of review, inter alia, is to correct an apparent error which should not 45 have been there when the judgment was given. The Court also placed reliance upon the judgment of the Federal Court in Sir Hari Sankar Pal & Anr. Vs. Anath Nath Mitter & Ors., 1949 FC 106 wherein it was held as under:-
"......the error could not be one apparent on the face of record or even analogous to it.
When, however, the Court disposes of a case without adverting to or applying its mind to a provision of law which gives it jurisdiction to act in a particular way, that may amount to an error analogous to one apparent on the face of record sufficient to bring the case within the purview of O.47 R.1, Civil Procedure Code."
In Thadikulangara Pylee's son Pathrose Vs. Ayyazhiveettil Lakshmi Amma's son Kuttan & Ors., AIR 1969 Ker 186, the Kerala High Court considered a review application which was filed on the ground of subsequent judgment of the Court and dismissed the same observing as under:-
"If it is borne in mind that a judicial decision only declares and does not make or change the law, although it might correct previous erroneous views of the law, a review on the basis of subsequent binding authority would not be a review of a decree which, when it was made, was rightly made, on the ground of the happening of a subsequent event."
While deciding the said case, the Court placed reliance upon the judgments of the Privy Council in Rajah Kotagiri Venkata Subbamma (supra); Chhajju Ram (supra); Bisheshwar Pratap Sahi & Anr. Vs. Parath Nath & Anr, AIR 1934 PC 213; and on judgments of the Hon'ble Supreme Court in M/s. A.C. Estates Vs. M/s. Serajuddin and Co. & Anr., AIR 1966 SC 935; and Moran Mar Basselios Catholicos & Anr. Vs. Most Rev. Mar Poulose Athanasius & Ors., AIR 1954 SC 526.
46
75. In Sow. Chandra Kanta & Anr. Vs. Sheik Habib, AIR 1975 SC 1500 the Hon'ble Apex Court dismissed a review application observing as under:-
"...........thus, making it that a review proceeding virtually amounts to a rehearing. May be ........... a review thereof must be subject to the rules of the game and cannot be lightly entertained. A review of a judgment is a serious subject and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave of error is crept in earlier by judicial fallibility."
Similar view has been reiterated by the Hon'ble Supreme Court in Sajjan Singh & Ors Vs. The State of Rajasthan & Ors, AIR 1965 SC 845; Girdhari Lal Gupta Vs. D.N. Mehta & Anr, AIR 1971 SC 2162; M/s. Northern India Cateerers' (India) Ltd. Vs. Lt. Governor of Delhi, AIR 1980 SC 674; Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma & ors., AIR 1979 SC 1047; and Green View Tea & Industries Vs. Collector, Golaghat & Anr (2002) 1 SCC 109.
76. Similarly, in Devaraju Pillai Vs. Sellayya Pillai, AIR 1987 SC 1160, the Hon'ble Apex Court held that if a party is aggrieved of a judgment by a Court, the proper remedy for such party is to file an appeal against that judgment. A remedy by way of an application for review is entirely misconceived and if a Court entertained the application for review then it has totally exceeded its jurisdiction in allowing the review merely because it takes a different view in construction of the document. In Delhi Administration Vs. Gurdip Singh Uban & Ors., AIR 2000 SC 3737, the Hon'ble Apex Court deprecated the practice of filing review application observing that review, by no means, is an 47 appeal in disguise and it cannot be entertained even if application has been filed for clarification, modification or review of the judgment and order finally passed for the reason that a party cannot be permitted to circumvent or bye-pass the procedure prescribed for hearing a review application. The Court also rejected the argument that review application should be entertained to do justice in the case, observing as under:-
"The words 'justice' and 'injustice', in our view,. are sometimes loosely used and have different meanings to different persons, particularly to those arrayed on opposite sides..... Justice Cardozo said, 'The Web is tangled and obscure, shot through with a multitude of shades and colours, the skeins irregular and broken. Many hues that seems to be simple, are found, when analysed, to be complex and uncertain blend. Justice itself, which we are wont to appeal to as a test as well as an ideal, may mean different things to different minds and at different times. Attempts to objectify its standards or even to describe them, have never wholly succeeded."
77. In M/s. Thungabhadra Industries Ltd. Vs. The Government of Andhra Pradesh represented by the Deputy Commissioner of Commercial Taxes, Anantapur, AIR 1964 SC 1372, the Hon'ble Apex Court held as under:-
"A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. We do not consider that this furnishes a suitable occasion for dealing with this difference exhaustively or in any great detail, but it would suffice for us to say that where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out."48
In Union of India & Ors. Vs. Mohd. Nayyar Khalil & Ors., (2000) 9 SCC 252, the Hon'ble Apex Court rejected the review application which was filed on the ground that the High Court had decided the case placing reliance upon the decision the Hon'ble Supreme Court, the correctness of which had been doubted and the matter had been referred to the Large Bench of the Supreme Court. Subsequently, the Larger Bench had taken a contrary view. The review petition was dismissed on the grounds, inter alia, that the situation had not been pointed out by the counsel to the Bench when the matter was initially heard.
78. In Subhash Vs. State of Maharashtra & Anr., AIR 2002 SC 2537, the Hon'ble Apex Court emphasised that Court should not be misguided and should not lightly entertain the review application unless there are circumstances falling within the prescribed limits for that as the Courts and Tribunal should not proceed to re- examine the matter as if it was an original application before it for the reason that it cannot be a scope of review. The first and foremost requirement of entertaining a review application is that the order, review of which is sought (a) suffers from any error apparent on the face of the record, and (b) permitting the order to stand will lead to failure to justice. (Vide Rajendra Kumar & Ors. Vs. Rambhai & Ors., AIR 2003 SC 2095; Green View Tea and Industries Vs. Collector, Golaghat, Assam & Anr., (2004) 4 SCC 122; and Des Raj & Ors. Vs. Union of India & Anr., (2004) 7 SCC 753).
In Zahira Habibullah Sheikh Vs. State of Gujarat, (2004) 5 SCC 353, the Apex Court referred to its earlier judgments in P.N. Eswara Iyer 49 etc. Vs. Registrar Supreme Court of India, (1980) 4 SCC 680; Suthendraraja Vs. State, (1999) 9 SCC 323; Ramdeo Chauhan Vs. State of Assam, AIR 2001 SC 2231; and Devender Pal Singh Vs. State of NCT of Delhi, AIR 2003 SC 3365; and observed that review applications "are not to be filed for the pleasure of the parties or even as a device for ventilating remorselessness, but ought to be resorted to with a great sense of responsibility as well".
79. A Division Bench of the Calcutta High Court, in re: Mahamaya Banerjee, AIR 1989 Cal. 106, held that a review under O. 47 R. 1 of the Code is permissible if there had been misconception of fact and/ or law by the counsel, as it will fall within the ambit of expression "sufficient reason" in O. 47 R. 1 of the Code. The Calcutta High Court proceeded with the presumption that in order to do justice, which has been denied to a party owing to patently wrong step taken by its counsel, the Court can exercise its inherent power to come to its rescue and to do justice. With all due respect, the said judgment does not lay down the correct law for the reason that it is settled legal proposition that inherent powers cannot be used by the Court where a Statute provides for a specific remedy.
80. Undoubtedly, inherent powers conferred upon the Court either under Section 151 of the Code or any other analogous provision, can be exercised by the Court to do justice or to further the cause of justice. (Vide Manohar Lal Chopra Vs. Rai Bahadur Rao Seth Hirala, AIR 1962 SC 527; Union of India Vs. Ram Charan, AIR 1964 SC 215; and Vikas Aggarwal Vs. Anubha, (2002) 4 SCC
468). However, inherent powers cannot be used by a Court where Statute itself provides for a remedy as held by the Hon'ble 50 Supreme Court in Manohal Lal Chopra (supra); Arjun Singh Vs. Mohindra Kumar & Ors, AIR 1964 SC 993; M/s. Ramchandra & Sons Sugar Mills Pvt. Ltd., Barabanki (U.P.) Vs. Kanhayalal Bhargava & Ors., AIR 1966 SC 1899; Nainsingh Vs. Koonwarjee & Ors., AIR 1970 SC 997; State of West Bengal Vs. Karan Singh Vinayak & ors., (2002) 4 SCC 188).
In Bhagwati Singh Vs. Deputy Director of Consolidation & Anr., AIR 1977 All. 163, the Allahabad High Court rejected the review application filed on a ground which had not been argued earlier because the counsel, at initial stage, had committed mistake in not relying on and arguing those points, observing as under:-
"It is not possible to review a judgment only to give the petitioner a fresh inning.
It is not for the litigant to judge of counsel's wisdom after the case has been decided. It is for the counsel to argue the case in the manner he thinks t should be argued. Once the case has been finally argued on merit and decided on merit, no application for review lies on the ground that the case should have been differently argued."
The Court also considered the judgment of the Federal Court in Mt. Jamna Kuer Vs. Lal Bahadur & Ors., AIR 1950 FC 131, wherein an observation has been made that review is permissible if mistake has been committed by a counsel. The Court did not follow the said judgment, observing that it was a case in which a mistake had crept in the judgment of the High Court owing to an over-sight. Therefore, it was a case wherein review was maintainable on other grounds also and the ratio of that 51 judgment is certainly not that review lies if a counsel commits mistake.
81. Even otherwise, the law laid down in Mt. Jamna Kuer (supra) is not an authority laying down that even if a counsel has not raised a point, review is maintainable, for the reason that such a mistake would not be apparent on the face of record. The whole paragraph of the judgment is to be read and it is of no use to rely upon a sentence thereof. The said case is to be understood in the context of the facts involved therein as the said case does not lay down the law of universal application. The Federal Court held as under:-
"There can be no doubt that this appeal must be allowed. The mistake as to the items of property regarding which Mt. Jamna Kuer had laid claim is apparent on the face of the record. The trial Judge had clearly stated in his judgment that Jamna Kuer's claim related to properties 3 to 37 of the gazette notification. In para 15 of her amended objection petition, she had laid claims to all the properties left by Kunj Behari. On 29th April, 1942, it was admitted by the pleader of the applicants that all these properties related to the estate of Kunj Behari and that so far as the debtors were concerned, they were owners of only two properties mentioned in the gazette notification. In this situation it would have been appropriate if the High Court had corrected this error on the review petition and saved the appellant the trouble and expense of an appeal to the Privy Council or to this Court. Whether he error occurred by reason of the counsel's mistake or it crept in by reason of an oversight on the part of the Court was not a circumstance which could affect the exercise of jurisdiction of he Court to review its decision. We have no doubt that the error was apparent on the face of the record and in our opinion the question as to how the error occurred is not relevant to this enquiry. mere look at the trial Court's decision indicates the error apart from anything else."52
82. More so, the expression "discovery of new and important matter of evidence" contained in the provisions of O. 47 R. 1 CPC means, discovery of an evidence or any material which may be adduced in evidence. It cannot take it in its ambit an argument which could have been advanced by the counsel.
To sum up, the substance of the said judgments is that the entire concept of writ jurisdiction is founded on equity and fairness and if the Court has committed a mistake, it should be removed entertaining a review application so that the result may not lead to miscarriage of justice, as rectification of an order stems from the fundamental principles that justice is above all. Provisions of Order XLVII Rule 1, C.P.C. permits the review even on the mistake of fact or even on ignorance of material fact. The review jurisdiction should be exercised to prevent miscarriage of justice or to correct grave and palpable errors committed by the Court. The power of review inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. (Vide Shivdeo Singh & Ors. Vs. State of Punjab & Ors., AIR 1963 SC 1909; Aribam Tuleshwar Sharma Vs. aribam Pishak Sharma & Ors., AIR 1979 SC 1047; Union Carbide Corporation Vs. Union of India & Ors., AIR 1992 SC 248; S. Nagaraj & Ors. (Supra); Parision Devi & Ors Vs. Sumitri Devi & Ors., (1997) 8 SCC 715; Surjit Singh & Ors. Vs. Union of India & Ors., (1997) 10 SCC 592; Revenue Divisional Officers & Ors Vs. A. Aruna & Ors., (1998) 6 SCC 494; & Rajendra Kumar & Ors. Vs. Rambhal & Ors., AIR 2003 SC 2095). We do not dispute the legal propositions settled by the Hon'ble Supreme Court in the aforesaid judgments and that is the ratio of the judgments, referred to by us over and above. The power of 53 review is to be exercised within the definitive limits. More so, a person who seeks equity must do equity and he should approach the Court with clean hands, clean mind and with clean objective. The perception of justice varies from person to person, and a litigant who succeeds in Court, claims that justice has been done with him but the litigant who looses, though may not have a case at all, raises grievance that justice has not been done with him.
83. In view of the above discussion, the law of review can be summarised that it lies only on the grounds mentioned in O. 47 R. 1CPC. The party must satisfy the Court that the matter or evidence discovered by it at a subsequent stage could not be discovered or produced at the initial stage though it had acted with due diligence. A party filing a review application on the ground of any other "sufficient reason" must satisfy that the said reason is analogous to the conditions mentioned in O. 47 R. 1 CPC. Under the garb of review, a party cannot be permitted to re-open the case and to gain a full-fledged inning for making submissions, nor review lies merely on the ground that it may be possible for the Court to take a view contrary to what had been taken earlier. Even the judgment given subsequent to the decision in a case can be no ground for entertaining the review. Review lies only when there is error apparent on the face of the record and that fallibility is by the over-sight of the Court. If a counsel has argued a case to his satisfaction and he had not raised the particular point for any reason whatsoever, it cannot be a ground of review for the reason that he was the master of his case and might not have considered it proper to press the same or could have thought that arguing that point would not serve 54 any purpose. If a case has been decided after full consideration of arguments made by a counsel, he cannot be permitted, even under the garb of doing justice or substantial justice, to engage the court again to decide the controversy already decided. If a party is aggrieved of a judgment, it must approach the Higher Court but entertaining a review to re-consider the case would amount to exceeding its jurisdiction, conferred under the limited jurisdiction for the purpose of review. Justice, as explained above, connotes different meaning to different persons in different contexts, therefore, courts cannot be persuaded to entertain a review application to do justice unless it lies only on the grounds mentioned in the statutory provisions."
84. Further relying on Budhia Swain and others v. Gopinath Deb and others; (1999) 4 SCC 396, the order can be recalled, if it was obtained by misleading the Court. Paras 6, 8 and 9 of the above citation are quoted below:
6. What is a power to recall? Inherent power to recall its own order vesting in tribunals or courts was noticed in Indian Bank Vs. M/s Satyam Fibres India Pvt. Ltd. 1996 (5) SCC 550. Vide para 23, this Court has held that the courts have inherent power to recall and set aside an order
(i) obtained by fraud practised upon the Court,
(ii)when the Court is misled by a party, or
(iii) when the Court itself commits a mistake which prejudices a party.
In A.R. Antulay Vs. R.S. Nayak & Anr. AIR 1988 SC 1531 (vide para 130), this Court has noticed motions to set aside judgments being permitted where
(i) a judgment was rendered in ignorance of the fact that a necessary party had not been served at all and was shown as served or in ignorance of the fact that a necessary party had died and the estate was not represented,
(vi)a judgment was obtained by fraud, 55 () a party has had no notice and a decree was made against him and such party approaches the Court for setting aside the decision ex debito justitiae on proof of the fact that there was no service.
8. In our opinion a tribunal or a court may recall an order earlier made by it if
(i) the proceedings culminating into an order suffer from the inherent lack of jurisdiction and such lack of jurisdiction is patent, () there exists fraud or collusion in obtaining the judgment,
(i) there has been a mistake of the court prejudicing a party or
(ii) a judgment was rendered in ignorance of the fact that a necessary party had not been served at all or had died and the estate was not represented.
The power to recall a judgment will not be exercised when the ground for re-opening the proceedings or vacating the judgment was available to be pleaded in the original action but was not done or where a proper remedy in some other proceeding such as by way of appeal or revision was available but was not availed. The right to seek vacation of a judgment may be lost by waiver, estoppel or acquiescence.
9. A distinction has to be drawn between lack of jurisdiction and a mere error in exercise of jurisdiction. The former strikes at the very root of the exercise and want of jurisdiction may vitiate the proceedings rendering them and the orders passed therein a nullity. A mere error in exercise of jurisdiction does not vitiate the legality and validity of the proceedings and the order passed thereon unless set aside in the manner known to law by laying a challenge subject to the law of limitation. In Hira Lal Patni Vs. Sri Kali Nath AIR 1962 SC 199, it was held :-
"The validity of a decree can be challenged in execution proceedings only on the ground that the court which passed the decree was lacking in inherent jurisdiction in the sense that it could not have seisin of the case because the subject matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed, or some such other ground which could have the effect of rendering the court entirely lacking in jurisdiction in respect of the subject matter of the suit or over the parties to it."
85. Furthermore, the Court must be held to have the requisite power even under Section 151 of Code of Civil Procedure to issue such direction either suo motu or otherwise which, according to him, would lead to the truth."
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86. Once it is held that a judgment and decree has been obtained by practising fraud on the court it is trite that the principles of res- judicata shall not apply. The High Court, therefore, in our opinion committed a serious error in referring to the earlier orders passed by it so as to shut the doors of justice on the face of appellant for all time to come."
87. In our opinion a tribunal or a court may recall an order earlier made by it if:
(i) the proceedings culminating into an order suffer from the inherent lack of jurisdiction and such lack of jurisdiction is patent,
(ii) there exists fraud or collusion in obtaining the judgment,
(iii) there has been a mistake of the court prejudicing a party or
(iv) a judgment was rendered in ignorance of the fact that a necessary party had not been served at all or had died and the estate was not represented.
The power to recall a judgment will not be exercised when the ground for re-opening the proceedings or vacating the judgment was available to be pleaded in the original action but was not done or where a proper remedy in some other proceeding such as by way of appeal or revision was available but was not availed. The right to seek vacation of a judgment may be lost by waiver, estoppel or acquiescence.
88. A distinction has to be drawn between lack of jurisdiction and a mere error in exercise of jurisdiction. The former strikes at the very 57 root of the exercise and want of jurisdiction may vitiate the proceedings rendering them and the orders passed therein a nullity. A mere error in exercise of jurisdiction does not vitiate the legality and validity of the proceedings and the order passed thereon unless set aside in the manner known to law by laying a challenge subject to the law of limitation. In Hira Lal Patni Vs. Sri Kali Nath AIR 1962 SC 199, it was held :-
"The validity of a decree can be challenged in execution proceedings only on the ground that the court which passed the decree was lacking in inherent jurisdiction in the sense that it could not have seisin of the case because the subject matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed, or some such other ground which could have the effect of rendering the court entirely lacking in jurisdiction in respect of the subject matter of the suit or over the parties to it."
89. The platform of the Tribunal or the Courts cannot be made a platform to compel the opposite party to pass a desired order. The matter cannot be agitated and to be continued till infinity and it should come at rest. The Hon'ble Supreme Court in Dr. Buddhi Kota Subbarao Vs. K Parasaran & Ors., AIR 1996 SC 2687, the Hon'ble Supreme Court has observed as under:-
"No litigant has a right to unlimited drought on the Court time and public money in order to get his affairs settled in the manner he wishes. However, access to justice should not be misused as a licence to file misconceived and frivolous petitions."
Similar view has been reiterated by the Supreme Court in K.K. Modi Vs. K.N. Modi & Ors., (1998) 3 SCC 573.
In Tamil Nadu Electricity Board & Anr. Vs. N. Raju Reddiar & Anr. AIR 1997 SC 1005 the Hon'ble Supreme Court held that filing successive misconceived and frivolous applications for clarification, modification or for seeking a review of the order interferes with the purity of the administration of law and salutary and healthy practice. Such a litigant must be dealt with a very heavy hand.
In Sabia Khan & Ors. Vs. State of U.P. & Ors., (1999) 1 SCC 58 271, the Hon'ble Apex Court held that filing totally misconceived petition amounts to abuse of the process of the Court and such litigant is not required to be dealt with lightly.
In Abdul Rahman Vs. Prasoni Bai & Anr., (2003) 1 SCC 488, the Hon'ble Supreme Court held that wherever the Court comes to the conclusion that the process of the Court is being abused, the Court would be justified in refusing to proceed further and refuse the party from pursuing the remedy in law."
"It is well established rule of interpretation of a statute by reference to the exposition it has received from contemporary authority. However, the Apex Court added the words of caution that such a rule must give way where the language of the statute is plain and unambiguous. Similarly, in Collector of Central Excise, Bombay-I & Anr. Vs. M/s. Parle Export (P) Ltd., AIR 1980 SC 644, the Hon'ble Supreme Court observed that the words used in the provision should be understood in the same way in which they have been understood in ordinary parlance in the area in which the law is in force or by the people who ordinarily deal with them. In Indian Metals and Ferro Alloys Ltd., Cuttack Vs. The Collector of Central Excise, Bhubaneshwar, AIR 1991 SC 1028, the Hon'ble Supreme Court has applied the same rule of interpretation by holding that "contemporanea expositio by the administrative authority is a very useful and relevant guide to the interpretation of the expression used in a statutory instrument." Same view has been taken by the Hon'ble Supreme Court in State of Madhya Pradesh Vs. G.S. Daal and Flour Mills (Supra); and Y.P. Chawla & Ors. Vs. M.P. Tiwari and Anr., AIR 1992 SC 1360. In N. Suresh Nathan & Ors. Vs. Union of India & Ors, 1992 (Suppl) 1 SCC 584; and M.B. Joshi & Ors. Vs. Satish Kumar Pandey & Ors., 1993 (Suppl.) 2 SCC 419, the Apex Court observed that construction in consonance with long-standing practice prevailing in the concerned department is to be preferred."
90. In M/s. J.K. Cotton Spinning & Weaving Mills Ltd. & Anr. Vs. Union of India & Ors., AIR 1988 SC 191, it has been held that the maxim is applicable in construing ancient statute but not to interpret Acts which are comparatively modern and an interpretation should be given to the words used in context of the new facts and situation, if the words are capable of comprehending them. Similar view had been taken by the Apex Court in Senior Electric Inspector & Ors. Vs. Laxminarayan Chopra & Anr., AIR 1962 SC 159.
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91. In Desh Bandhu Gupta & Co. & Ors Vs. Delhi Stock Exchange Association Ltd., AIR 1979 SC 1049, the Apex Court observed that the principle of contemporenea expositio, i.e. interpreting a document by reference to the exposition it has received from Competent Authority can be invoked though the same will not always be decisive of the question of construction. The administrative construction, i.e. the contemporaneous construction placed by administrative or executive officers responsible for execution of the Act/Rules etc. generally should be clearly wrong before it is over-turned. Such a construction commonly referred to as practical construction although not controlling, is nevertheless entitled to considerable weight and is highly persuasive. However, it may be disregarded for cogent reasons. In a clear case of error the Court should, without hesitation refuse to follow such construction for the reason that "wrong practice does not make the law." (Vide Municipal Corporation for City of Pune & Anr. Vs. Bharat Forge Co. Ltd. & Ors., AIR 1996 SC 2856). In D. Stephen Joseph Vs. Union of India & Ors., (1997) 4 SCC 753, the Hon'ble Supreme Court has held that "past practice should not be upset provided such practice conforms to the rules" but must be ignored if it is found to be de hors the rules.
92. However, in Laxminarayan R. Bhattad & Ors. Vs. State of Maharashtra & Anr., AIR 2003 SC 3502, the Apex Court held that "the manner in which a statutory authority had understood the application of a statute would not confer any legal right upon a party unless the same finds favour with the Court of law dealing with the matter".
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Therefore, "contemporanea exposito" by the State instrumentality is very useful and relevant for providing guidance to interpretation of expression used in the Rules. The administrative construction placed by the executive officers, responsible for execution of rules should be accepted and does not warrant over-turning unless found not in conformity of the Rules."
"When a person approaches a Court of Equity in exercise of its extraordinary jurisdiction under Article 226/227 of the Constitution, he should approach the Court not only with clean hands but also with clean mind, clean heart and clean objective. (Vide The Ramjas Foundation & Ors. Vs. Union of India & Ors., AIR 1993 SC 852; K.P. Srinivas Vs. R.M. Premchand & Ors., (1994) 6 SCC 620). Thus, who seeks equity must do equity. The legal maxim "Jure Naturae Aequum Est Neminem cum Alterius Detrimento Et Injuria Fieri Locupletiorem", means that it is a law of nature that one should not be enriched by the loss or injury to another."
93. In Nooruddin Vs. (Dr.) K.L. Anand (1995) 1 SCC 242, the Hon'ble Supreme Court observed as under:
"..............Equally, the judicial process should never become an instrument of appreciation or abuse or a means in the process of the Court to subvert justice."-
Similarly, in Ramniklal N. Bhutta & Anr. Vs. State of Maharashtra & Ors., AIR 1997 SC 1236, the Hon'ble Apex Court observed as under:-
"The power under Art. 226 is discretionary. It will be exercised only in furtherance of justice and not merely on the making out of a legal point....... the interest of justice and public interest coalesce. They are very often one and the same. ...... The Courts have to weight the public interest vis-à-vis the private interest while exercising the power under Art. 226...... indeed any of their discretionary powers. (Emphasis added)"
In Dr. Buddhi Kota Subbarao Vs. K Parasaran & Ors., AIR 1996 SC 2687, the Hon'ble Supreme Court has observed as under:-
"No litigant has a right to unlimited drought on the Court time and public money in order to get his affairs settled in the manner he wishes. Easy, access to justice should not be misused as a 61 licence to file misconceived and frivolous petitions."
Similar view has been reiterated by the Supreme Court in K.K. Modi Vs. K.N. Modi & Ors., (1998) 3 SCC 573.
In M/s. Tilokchand Motichand & Ors. Vs. H.B. Munshi & Anr., AIR 1970 SC 898; State of Haryana Vs. Karnal Distillery, AIR 1977 SC 781; and Sabia Khan & Ors. Vs. State of U.P. & Ors., (1999) 1 SCC 271, the Hon'ble Apex Court held that filing totally misconceived petition amounts to abuse of the process of the Court and such a litigant is not required to be dealt with lightly, as petition containing misleading and inaccurate statement, if filed, to achieve an ulterior purpose amounts to abuse of the process of the Court."
94. If we examine the prayer clause, of the review application, the interim prayer which has been sought by the applicant is that the demolition activity carried out by the Respondent No. 1 may be immediately stopped and the waste generated at site may be immediately handed over to the applicant, and further prayer to direct to handover the demolition waste generated from the demolition at site to the applicant, Respondent No. 2 may kindly be directed to issue staff work and Respondent No. 4 may be directed to access the damage.
95. The perusal of the relief clause reveals that nothing has been disclosed with regard to the damage to the environment or any activities which are detrimental to the environment accordingly stop of work or handing over of the waste to the applicant is just a contractual matter and commercial matter in which this Tribunal need not to interfere.
96. Gujarat State Pollution Control Board has been directed to monitor the things and to comply the rules and in case of any violation in the State, the Gujarat State Pollution Control Board is duty bound to follow the guidelines and follow the rules, thus, activities of 62 Gujarat State Pollution Control Board cannot be regulated and controlled by the applicant. According to the discussion made above, nothing have been reported with regard to non-compliance of the rule. Gujarat State Pollution Control Board has not found anything which is detrimental or to the damage of the environment. This Tribunal cannot interfere in the contractual matters. For the enforcement of his agreement the applicant may move to the Competent Court. The platform of this Tribunal cannot be made to promote the commercial activities or direction to the third party to provide the business to the applicant for his benefit. Prayer made in the review application does not disclose any environmental damage or activities detrimental to the environment. This is a pure frivolous litigation repeatedly being filed before this Tribunal, in spite of the participating in the proceedings the version that there is a violation of principle of natural justice, is erroneous and based on imaginary thoughts and thus, relief prayed is not maintainable. There is no need to intervene in the impugned order. It is need of the day that unnecessary litigation should be curtailed and frivolous litigation should be stopped.
97. Accordingly, we are of the view that the special cost should to be imposed on the applicant for filing the repeated petitions and applications for his own interest and for commercial purposes.
98. Accordingly, the Review Application No. 11/2020 (WZ) in Original Application 26/2020 (WZ) is dismissed with a cost of Rs. 25000/- (Rs. Twenty Five Thousand only) which is to be deposited by the applicant in the account of Central Pollution Control Board. This amount may be used for environmental purposes. The applicant is directed to deposit this amount of fine within fifteen (15) days from 63 today failing which the Central Pollution Control Board may proceed to recover the amount in accordance with the law.
Sheo Kumar Singh, JM Dr. Satyawan Singh Garbyal, EM October 05, 2020 Review Application No. 11/2020 (WZ) In Original Application No. 26/2020 (WZ) MN 64