Gujarat High Court
Saurashtra Jaggery Merchant ... vs State Of Gujarat & on 17 October, 2014
Author: Akil Kureshi
Bench: Akil Kureshi, J.B.Pardiwala
C/CA/11457/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (FOR ORDERS) NO. 11457 of 2014
In
MISC.CIVIL APPLICATION (STAMP NUMBER) NO. 2887 of 2014
In
SPECIAL CIVIL APPLICATION NO. 8894 of 2011
With
MISC.CIVIL APPLICATION (STAMP NUMBER) NO. 2887 of 2014
In
SPECIAL CIVIL APPLICATION NO. 8894 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
============================================================
====
1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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SAURASHTRA JAGGERY MERCHANT ASSOCIATION & 2....Applicant(s)
Versus
STATE OF GUJARAT & 11....Respondent(s)
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Page 1 of 15
C/CA/11457/2014 JUDGMENT
Appearance:
MR.DIPAK B PATEL, ADVOCATE for the Applicant(s) No. 1 - 3
MR JAIMIN GANDHI, AGP for the Respondent(s) No. 1 - 6
MR MANAN A SHAH, ADVOCATE for the Respondent(s) No. 7 - 12
MRS KETTY A MEHTA, ADVOCATE for the Respondent(s) No. 7 - 12
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 17/10/2014
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. Draft amendment is allowed.
2. Three applicants who were originally not parties before us in a group of petition being Special Civil Application No. 8894/2011 and other petitions, have filed this Civil Application seeking leave to file a review application, recalling and reviewing our judgement dated 26.8.2014.
3. Briefly stated, facts are that the Special Civil Application was filed by few farmers who were cultivating sugarcane and manufacturing jagerry on a small scale. They were aggrieved by the action of the State in intercepting their consignments of jaggery in transit on the ground that the substance was not jaggery but rotten gur as defined in section 2(39A) of the Bombay Prohibition Act. By virtue of the amendment in the said section 2(39A) by the Gujarat Amending Act, 27 of 2003, the standards required for jaggery were made more stringent. Any jaggery failing to achieve such standards would be categorised as rotten gur. The manufacturer, dealer, etc., would be exposed to Page 2 of 15 C/CA/11457/2014 JUDGMENT criminal liabilities. The original petitioners had therefore, challenged the constitutional vires of such amendment. Various contentions including that of legislative competence were raised by the counsel for the petitioner at the time of final hearing. It was also urged that the standards prescribed are so unreasonable and impractical that it is virtually impossible to achieve such standards. By the judgement dated 26.8.2014, the petition was dismissed. Vires of the statutory provision namely, section 2(39A) of the Bombay Prohibition Act, as amended were upheld. There were large number of connected quashing petitions requesting quashing of criminal prosecutions launched against number of individual farmers and manufacturers of jaggery. These petitions were ordered to be placed before the learned Single Judge taking up such matters.
4. Now the present applicants have filed this Civil Application seeking leave to file review petition. They also claim that section 2(39A) of the Bombay Prohibition Act, as amended in unconstitutional. They seek review interalia on the grounds that the prescription for maintenance of 90% sugar from the earlier level of 70%, is impossible to achieve. It is also their case that implementation of the said statutory provision would compel every jaggery manufacturer to obtain a license under the Bombay Prohibition Act and would thus be an unreasonable restriction on their right to carry on the trade or profession of their choice. Counsel for the applicants also fleetingly suggested that these statutory provisions would in any case not achieve the purpose of controlling the illicit liquor Page 3 of 15 C/CA/11457/2014 JUDGMENT trade.
5. We had however, posed a preliminary question, whether this review petition should be entertained at all. As noted, though the applicants themselves claim to be agriculturists and manufacturer of jaggery and were thus affected by the amended section 2(39A) of the Bombay Prohibition Act, all along never filed their independent proceedings to challenge the constitutionality of the said provision. By their own account they were aware about the pending litigation. They now seek a declaration of unconstitutionality of statutory provision in form of a review petition in the writ petition filed by some other persons. Counsel for the applicants submitted that they are directly and vitally affected by the judgement of this Court and the review at their hands is therefore, maintainable. He submitted that a review petition can be entertained at the hands of any person who is affected by the judgement of the Court. He would contend that power of the High Court to review its own judgement under Article 226 of the Constitution are wide. The petitioners are vitally affected by the judgement and, therefore, the review petition should be entertained. In support of his contention, counsel relied on the decision of the Supreme Court in case of Shivdeo Singh and others v. State of Punjab and others reported in AIR 1963 Supreme Court 1909, in which it was observed that there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed Page 4 of 15 C/CA/11457/2014 JUDGMENT by it.
6. There can be no dispute about the proposition that the High Court has power to correct its own apparent error and review the judgement which has been rendered in exercise of writ jurisdiction under Article 226 of the Constitution. It is also true that such review petition need not necessarily be filed by those who were parties to the proceedings before the Court and can with the leave of the Court also be filed by any person aggrieved and who approaches the Court for such purpose. Section 114 of the Code of Civil Procedure authorises any person considering himself aggrieved by any decree or order to apply for review of the judgement of a Court which passed its decree or order. Likewise, Order XLVII Rule 1 also uses the expression "any person aggrieved" who may for the grounds mentioned in the said rule, seek review of judgement and order of the Court. The question is, who can be considered to be a person aggrieved in the context of seeking review of the judgement of the Court. Such concept ofcourse is elastic and cannot be defined in a straitjacket formula, nevertheless, the question in the present case is, can the applicants be stated to be persons aggrieved so as to seek review of the judgement. It is not the case of the applicants that the judgement acts as resjudicata against them. Their right to agitate the issue independently even if already decided by the said judgement is in no manner curtailed. However, merely because a certain pronouncement of law or interpretation of a statutory provision which would apply to all parties not under similar fact situation, by itself would not give rise in favour of such persons, a right to seek Page 5 of 15 C/CA/11457/2014 JUDGMENT review of the judgement. By very nature of things when the Court renders its judgement, it expresses opinion which may either be in rem or in personam. Any judgement of the Court laying down legal propositions is bound to apply to number of persons who may be similarly situated even though they may not be parties before the Court. All such persons cannot be termed as persons affected so as to be able to seek review of the judgement of the Court. Merely because a judgement disappoints a person since the view expressed is adverse to his interest, he does not get a right to seek review without anything further.
7. In case of State of Punjab (now Haryana) and others v. Amar Singh and another reported in AIR 1974 Supreme Court 994, it was observed that ordinary rule is that only a party to a suit adversely affected by the decree or any of his representatives in interest may file an appeal. Under such circumstances a person who is not a party may prefer an appeal with the leave of the appellate court if he would be prejudicially affected by the judgment and if it would be binding on him as resjudicata under Explanation 6 to section 11 of the Code of Civil Procedure.
8. In the famous decision of Adi Pherozshah Gandhi v. H.M.Seervai, Advocate General of Maharashtra reported in AIR 1971 Supreme Court 385, on the question of locus of Advocate General of the State to challenge an order passed by the Bar Council in context of proceedings against an advocate, the Supreme Court considered at length who can be stated to be a person aggrieved. In the said case, the Advocate General of Bombay had sought to Page 6 of 15 C/CA/11457/2014 JUDGMENT challenge the order passed by the Bar Council in disciplinary proceedings against an advocate. The five Judge Bench of the Supreme Court by majority, held that the Advocate General cannot be stated to be a person aggrieved and would have no right to appeal. M. Hidayatullah, C.J., observed as under :
"8. As a result of the frequent use of this rather vague phrase, which practice, as Lord Parker pointed out in Eealing Corporation v. Jones, 19591 QB 334, has not been avoided, in spite of the confusion it causes, selections from the observations of judges expounding the phrase in the context of these varied statutes were cited before us for our acceptance. The observations often conflict since they were made in different contexts and involved the special standing of the party claiming the right of appeal. Yet these definitions are not entirely without value for they disclose a certain unanimity on the, essential features of this phrase, even in the diversity of the contexts. The font and origin of the discussion is the wellknown definition of the phrase by James L.J. in In Re Sidehotham Ex. j.
Sidebotham(1880) 14 Ch D 458. It was observed that the words person aggrieved' in s. 71 of the Bankruptcy Act of 1869 meant :
" not really a person who is disappointed of a benefit which he might have received, if some order had been made. A person aggrieved, must be a man who had suffered a legal grievance, a man against whom a decision has been pronounced which had wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something."
The important words in this definition are a benefit which he might have received' and a legal grievance' against the decision which wrongfully deprives him of something' or affects his title to something."
Page 7 of 15C/CA/11457/2014 JUDGMENT Shri G.K.Mitter, J., in his separate concurring opinion observed as under :
"46. Generally speaking, a person can be said to be aggrieved by an order which is to his detriment, pecuniary or otherwise or causes him some prejudice in some form or other. A person who is not a party to a litigation has no right to appeal merely because the judgment or order contains some adverse remarks against him. But it has been held in a number of cases that a person who is not a party to suit may prefer an appeal with the leave of the appellate court and such leave would not be refused where the judgment would be binding on him under Explanation 6 to section 11 of the Code of Civil Procedure. We find ourselves unable to take the view that because a person has been given notice of some proceedings wherein he is given a right to appear and make his submissions, he should without more have a right of appeal from an order rejecting his contentions or submissions. An appeal is a creature of statute and if a statute expressly gives a person a right to appeal, the matter rests there."
9. A Division Bench of Delhi High Court in case of Bharat Singh v. Firm Sheo Pershad Giani Ram and others reported in AIR 1978 Delhi 122 held and observed as under :
"(31) In our opinion, it is not necessary to go into the facts of the case because the impugned order dismissing the review application can be upheld on a preliminary point, namely, that no review petition under Order 47, rule I of Civil Procedure Code could be filed by Bharat Singh. Order 47, rule I of Civil Procedure Code . reads as under : "1.(1) Any person considering himself aggrieved : Page 8 of 15 C/CA/11457/2014 JUDGMENT
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,
(b)by a decree or order from which no appeal is allowed, or
(c)by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him 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, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order."
On a very reading of the rule it is clear that a review application can be filled only by a party to the lis in which the order sought to be reviewed has been passed. It cannot be preferred by a third party. It was urged on behalf of the petitioner that the phrase "any person considering himself aggrieved" would include anyone who is adversely affected by the impugned order, whether that person is or is not party to the list in which the impugned order has been passed. We do not agree. As will be apparent from a reading of the rule any person considering himself aggrieved by a decree or order may apply for review provided he can establish that he "from the discovery of new and important matters of evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made." This postulates that the person applying for review has to satisfy two conditions, namely, that he is aggrieved by the order and also that he for the reasons mentioned was not in a position to bring that fact to the notice of the Court earlier which resulted in a wrong order being passed. If these two conditions are necessary before a review application can be moved, it follows that the review application has to be made by a person who was Page 9 of 15 C/CA/11457/2014 JUDGMENT a party to the list decided by the impugned order or decree. (32) No authority contrary to the view that we have expressed above was cited, nor was any authority cited in favor of the view that we have expressed. We are, however, fortified in taking the view that we have taken on the same principle that a decree or order adversely affecting a person who is not a party to the list in which that order or decree is passed is in law not binding on him. Such a person, therefore, can ignore the order or decree which adversely affects him and so, cannot apply for a review of that order or decree. He may take such other steps as may be available to him in law to protect his rights as and when the order or decree adversely affecting him is sought to be enforced so as to jeopardise his rights. (See 61 Indian Cases 534)."
10. In case of Gopabandhu Biswal v. Krishna Chandra Mohanty and others reported in AIR 1998 Supreme Court 1872, the Supreme Court held that persons who have been affected by the judgement of the Central Administrative Tribunal cannot seek review, unless they are persons aggrieved. An additional feature of the said decision of course was that the review petitions were filed by the persons who were not parties to the original proceedings after the losing party had preferred SLP and failed. However, the Court also examined the scope of the power of the Tribunal to review its judgement at the hands of the person aggrieved. It was observed as under :
"13. It is difficult to include the applicants in the review applications in the category of "persons aggrieved". The main applicant i.e. the present appellantBiswal had joined as party respondents all those persons who had superseded him for selection to the Indian Police Service Since they would be persons affected in case he succeeded Page 10 of 15 C/CA/11457/2014 JUDGMENT in his application. The Tribunal had directed that Biswal be considered for promotion between 1977 and 1980 and not thereafter. During this period, the two applicants in review application No. 16 of 1993 were nowhere within the zone of consideration for promotion to I.P.S. One of the applicants joined the police service only in 1974 and was not eligible for further promotion till 1982. The other applicant, though eligible for promotion, was on account of his rank in the seniority list, not within the zone of consideration at any time prior to 5.11.1980. As a matter of fact the two applicants in review application No. 16 of 1993 were selected for promotion to I.P.S. only in 1993 when they were included in the select list of 1993. Therefore, they could not have been made parties in T.A. No. 1 of 1989. At that point of time, these applicants had only a chance of promotion in future. This does not confer and legal right on these applicants and they cannot be considered as parties aggrieved by the impugned judgment. however, leniently one may construe the term 'party aggrieved', a person not directly affected cannot be so considered. Otherwise for years to come, every person who becomes eligible for promotion will be considered a party aggrieved' when the Tribunal interprets any Service Rule such as in the present case. Only persons who are directly and immediately affected by the impugned order can be considered as 'parties aggrieved' under Section 22(3) (f) read with Order 47 Rule 1."
11. In case of K. Ajit Babu and others v. Union of India and others reported in AIR 1997 Supreme Court 3277, the question arose regarding the remedy available to a person who is affected by the a judgement of the Tribunal to which he was not a party. The Supreme Court held that often in service matters the judgments rendered either by the Tribunal or the Court affect other persons, who are not parties to the cases. It may help one class of employees Page 11 of 15 C/CA/11457/2014 JUDGMENT and may adversely affect another class of employees. In such cases, the judgments may not be strictly judgments in personam but would be judgments in rem. However, it was held that in such a situation, the right of the person would be to file a petition before the Tribunal under section 19 of the Administrative Tribunals Act. Such a person cannot seek review of the judgement. It was held and observed as under :
"4. As stated earlier, the appellant has challenged the impugned seniority list prepared on the basis of the decision rendered by the Cereal Administrative Tribunal, Ahmedabad on Transfer Application No.263 of 1986 dated 14.8.1987, by means of an application under Section 19 of the Act wherein there was no prayer for setting aside the judgment dated 14.8.1987 of the Administrative Tribunal. It is true that the judgment given by the Central Administrative Tribunal, Ahmedabad in T.A. No.263/86 would have come in the way of the appellant. Often in service matters the judgments rendered either by the Tribunal or by the Court also affect other persons, who are not parties to the cases. It may help on class of employees and at the same time adversely affect another class of employees. In such circumstances the judgments of the courts or the tribunals may not be strictly judgments in personam affecting only to the parties to the cases, they would be judgments in rem. In such a situation, the question arises; what remedy is available to such affected persons who are not parties to a case, yet the decision in such a case adversely affect to their rights in the matter of their seniority. In the present case, the view taken by the Tribunal that the only remedy available to the affected persons is to file a Review of the judgment which affects them and not to file a fresh application under Section 19 of the Act. Section 22(3)(f) of the Act empowers the Tribunal to review its decisions. Rule 17 of the Central Page 12 of 15 C/CA/11457/2014 JUDGMENT Administrative Tribunal (Procedure and Rules) (hereinafter referred to as "the Rules") provides that no application for review shall be entertained unless it is filed within 30 days from the date of receipt of the copy of the order sought to be reviewed. Ordinarily, right of review is available only to those who are party to a case. However, even if we give wider meaning to the expression "a person feeling aggrieved" occurring in Section 22 of the Act whether such person aggrieved can seek review by opening the whole case decided by the Tribunal. The right of review is no t a right of appeal where all questions decided are open to challenge. The right of review is possible only on limited grounds, mentioned in Order 47 of these Code of Civil Procedure. Although strictly speaking the Order 47 of the Code of Civil Procedure may not be applicable to the tribunals but the principles contained therein surely have to extended. Otherwise there being no limitation on the power of review it would be an appeal and there would be no certainty of finality of a decision. Besides that, the right of review is available if such an application is filed within the period of limitation. The decision given by the Tribunal, unless reviewed or appealed against, attains finality. If such a power to review is permitted, no decision is final, as the decision would be subject to review at any time at the instance of party feeling adversely affected by the said decision. A party in whose favour a decision has been given can not monitor the case for all times to come. Public policy demands that there should been to law suits and if the view of the tribunal is accepted the proceedings in a case will never come to an end. We, therefore, find that a right of review is available to the aggrieved persons on restricted ground mentioned in Order 47 of the Code of Civil Procedure if filed within the period of limitation."
12. The applicants by their own accounts were aware about the present proceedings concerning vires of section 2(39A) of the Bombay Prohibition Act. Whether aware or Page 13 of 15 C/CA/11457/2014 JUDGMENT not they had a right to institute independent proceedings if they were affected by amendment in section 2 (39A) of the Bombay Prohibition Act. They were not parties to such proceedings, nor did they chose to file their independent petition. The judgement rendered by the Court may apply to the applicants to their detriment. However, every decision which lays down a legal proposition, is bound to affect large number of persons one way or the other. Every such person would not come within the purview of the expression 'any person aggrieved'. Though as noted above, this concept is somewhat elastic, the question posed by the Courts often times is, is the person seeking the review bound by the decision of the Court so as to act as a res judicata within explanation(6) of section 11 of the Code of Civil Procedure. Any person who at any point of time, may be governed by the decision of the Court, only on such count cannot seek review of the decision claiming to be person aggrieved. As observed by the Supreme Court in case of K. Ajit Babu and others v. Union of India and others (supra), accepting such a contention would leave the decision of the Court with no finality.
13. The decision of the Supreme Court in case of Shivdeo Singh and others v. State of Punjab and others (supra), was rendered in very different background. The judgement of the High Court affected the interest of the persons who were not made parties to the proceedings before the Court. At their instance, the judgement was recalled to give them hearing. It was in this background the Supreme Court held that he High Court had inherent powers to correct grave and palpable error committed by it.
Page 14 of 15C/CA/11457/2014 JUDGMENT
14. The applicants always had and perhaps even today have the right to institute their own independent proceedings. They however, cannot seek review of a judgment in a writ petition filed by someone else.
15. All the grounds sought to be raised by the applicants in some form or the other were raised by the petitioners in the main petition and considered by us in the judgement while disposing of the writ petition.
16. In the result, Civil Application seeking leave to file review petition is dismissed. Consequently MCA(Stamp) No.2887/2014 also stands dismissed.
(AKIL KURESHI, J.) (J.B.PARDIWALA, J.) raghu Page 15 of 15