Karnataka High Court
M/S India Sugas And Refineries Ltd vs The Deputy Commissioner Bellary on 21 January, 2010
Bench: H.G.Ramesh, Aravind Kumar
I W.A.Nos.5243/2009 &
5246-49/2009 (GM»R_ES)
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 21ST DAY OF JANUARY, I I"
PRESENTn_
TI-IE HON'BLE MR.JUsTAI¢E;1'H~;t;.R.A1v1§:s1§
THE HON'BLE MR.JU$ffIoE --_A_I2Aif1raro_Kt;iv1AR
W.A. Nos. 5243'/'~26:-39 35 5;t246:V4L:a/;:2Ioo9 {GMRES}
Between:
M / s.Ind13"Su.gét--r.s';I--,and.__Refinei°ieS._' '
Ltd., ChI1twadg,:, Ho:-3pet*._'> ¢ '
BeIIa1jy_VDi'strict'1«:;,__ _ ' ' '
Repoby itSoA!\/tanagef Fifia'r1ce .
P.S.Kris_h~na Murthgr» ' _ ' -
S / 0 late P.K.Souridar'«Raj..an-
50 yrs. - . . .. Appellant
(B;r'Sri.. G Vshahtaraju, Sr.counseI for
Sr: H,VM.Shash.idhar, Kesvy 85 Co. )
* ----l)IAe-gouty Commissioner
BeI_Ig1--ry Bistrict
" . Baellary 583 101
State of Karnataka
Rep by its Secretary
Department of Commerce and
Industries, Vikas Soudha
{'33
7 W.A.Nos.5243l2009 &
5246-49/2009 (GM--RES)
1*" floor, Dr.Ambedkar Veedhi
Bangalore--56O 001
3 The Commissioner of Cane
Development and Director of Sugar
No.32, 691 floor, Chowguie house
Crescent Road
Bangalore-56O 001
4 C H Srinivasa Rao
S/o Chinna Basavaiah A ,
42 yrs, r/o Basavanadurgégvi11.age
Nagenahalli Post -~ 583 21 1 " ._ 1
Hospet Taluk, Be11ary.V__D'istrictI .
5 T Channappar --
S / o Chidann'd__aj::.pa E V 1 ~
38 yrs, r/o Nagcnah.érI1i:';'Vi1lago M _
and Post 583 211* I :
H0spet"Ta,luk;AWV'
Be11ary"D,iStrié.t. =i
6 P Lime-;anr:3ago--uda, _
1 A Soviatc.VShiVabasérva:oagouda
" 40 yrs,.1'/H QV'Na'gE;h'ah'a11i village
émudé Post 583 21111"
-- .. Ho"sp_et'Te;1uk-, Béllary District.
" V. K"1--I§amap1:5é'@ Rarnanna
_ v.5-fffroudappa
_ Vyr_s','_.r/o Benakapura village
" « N.a_g'€;;_n'ahaIli Post 583 21 1
v_ .Ho--spet Taluk, Bellary District.
8 " V AIS K Praveena
S /0 late Kedareshwara
28 yrs, r/ o Nagenahalli village
and Post 583 211
3 W.A.N0s.5243/2009 &
5246-49/2009 (GM-RES)
I-Iospet Taluk,
Bellary District. .. Respondentsfi
(By Dr.Ravivarrna Kumar, Sncounsel for «e
Sri K N Phanindra, Adv for R-4, 5, 6, 7 « .. :_.
These WAS are filed ur1'd'er¢ S'ect_ivc')ri'V:v 4 it of'; the i
Karnataka High Court Act praij,/ing.,to jset as_id--e "Lh'e_ order
passed in W.P.N0s3872O/2009135 3.s764~'7"57,<20.o9_:jd.at'edV
24--12»2o09. 4_
These WAS coming prelihxiriaxfir hearing this
day, ARAVIND KUMAR J. ,xrd.eliver'er.;l_ the follQWi.r1g:--
£QE§iLA$"d> ?
Section 4 of the
Karriéitaltéie "'C§5urtA"_'}XCtV,' are filed by fourth
resfioziderit.ddestioriiii-zgshe correctness and legality of
the order VpaisVs--ed'gl3y"'"learned Single Judge dated 24-
iri '""W'.'P.Nos.38720/2009 and 38764»
i it 767/2i0i09s;r
parties are referred as to per their ranks
before the learned Single Judge. %
4 W.A.Nos.S243/2009 &
5246-49/2009 (GM-RES)
3. The facts in a nutsheli are as follows:
(i) The petitioners who are farrner.s_d?.are
growing sugarcane in their lands situate
villages of Bellary district and»__these"'1ai;njds"'~
petitioners are within the not:ifpied"tareai*fo'1'
of the fourth respondien't....V -- sugar The-9'
petitioners fi1edwritAp_..__pAetition Nos.
38720/2009 seeking the
following relief-S; 9 V 2 it it
' *1::approp_ria'te.__VWrit or Order or Direction
'A. the Order / Endorsement
. V'ff-dated._"'---- 16'-12-2009 bearing No.
' _ "I{aAM','..1T*ARA/ISR 904/2006-07 vide
_ V'AI'£'(1€X1_f{1"€-D, order / endorsement
*-dated" 16-12-2009 bearing No.
""--.I§A1x.Ai/ITARA/ISR 904/2006-07 vide
Anr1eXure--D 1 , order / endorsement
dated 16-12-2009 bearing no.
~~ KAM/ITARA/ISR 904/2006-07 vide
Anr1exure--D2, order / endorsement
dated 16- 12-2009 bearing No.
KAM/ITARA/ISR 904/2006-07 Vide
Annexure-D3 and order/ endorsement
dated 16- 1 2-2009 bearing No.
KAM/ITARA/ISR 904/2006-07 vide
Annexure-D4, all passed by the 15?
respondent and issued to the
"'Issu'e---Ta \Nri.'t of certiorari or any other
5 W.A.Nos.5243/2009 &
5246419/2009 (GM--RES)
petitioners, in the interest of justice
and equity.
(2) Issue a writ of mandamus or._any"o't.h'er
appropriate Writ or Order_.~-or
directing the respondents"-._VV1jto 3 "to
permit the peti.ti_one1{s' "t'oTf'.se117.the "
sugarcane crop raisea oin-._tr1e.__lands
belonging to. 1"them~. _ to »C'~_tihie
persons / factorie 'S'~-'Of their , choice in the ' = ~'
absence of Agreenierit, b"e_tWe.eri the'-
petitioners the fc.ur'th' respondent
as s_tipulatye.d_g"und_er Clau.se_rS of the
Karn__a'taka_:'i Sugarcane (Regulation of
DistriiilutiofllfE=(I~IospetV)l "Order, 1974 at
Anne2;ure.;£% the "ir1;t.e*rest of justice
c.j"and:equit3¥."_ - ~ "
i'fi'£v'_he'll:'§. _ respondent--company has
estaljlirushed and crushing sugar cane
hazing 5:? "$2500 Tons Crushing per Day
_ a"s~_on Government of Karnataka in
..exercVis.e" power conferred on it under Sugar
1
(Contrc1}.:l~"Order reserved certain areas in favour of
x Vagppellant -- Sugar Factory whereunder farmers in the
reserved area were to supply sugarcane to the
appellant - Sugar Factory for crushing.
7 W.A.Nos.5243/2009 &
5246-49/2009 (GM--RES)
4. When the matter was listed for prelirrlinary
hearing before learned Single Judge on
counsel for fourth respondent i.e.,
volunteered to appear and urirdtertookj V
for fourth respondent and 'thy of
counsel appearing for thejparties,.n'1atte_ruV.fas"taken'V'
up for final hearingflxheard' '"d.i.sposecl.,o§'3vy order
dated 24-12-2009 loyi._gii}ingl;:ce:rtai'n.'directions to all
the concerned farmers and
Deputy said.-order is now assailed
in these respondent on various
groundsiuu . V
"-ab_o_V& appeals were listed before this
, 1512-2009 for prelirnineuy hearing. This
interim order dated 31-12-2009 had
stayed operation of order passed by learned Single
2 itludge dated 24-12-2009 subject to the conditions
8 W.A.Nos.5243/2009 &
524649/2009 (GM~RES)
stipulated therein. The said conditions reads as
under:
(1)
A " "-----"'cornpany
"rec-o_m'm.e-nee _ its' ._:crushing of sugarcane
;_on'6--.1:2c.1Q:
The appellant snail deposit:'.'all's=.iin of"
Rs. 1 .00 crore with re spondenit' '
or before 5--1--20.10;_"'r n ' ~ ..
The appel.lan.t 'keep*i'
ready the"2._"perrr1its. "for cutting
sugarcane p..a_n.fciv--.ir'1timate' -- the. "same to
the '__c'once.rned"' farmers to come and
collect ' the in my accordance with
the busVi'ness_ praot-ise;..'
shall
'the'iV.appel1'ant deposits money as per
-- V "cr.)nd'ition. No.1, supra, the respondent
l\lo..l= Ijeputy Commissioner shall take
V' ,p--roper"'course of action to restrain the
Aifarmers, within the appellant reserve
area, from transporting sugarcane to
some other sugar factory. Further, he
shall not issue sugarcane permit to the
" farmers to transport to some other
sugar factory. lf respondent No.1 has
already issued sugarcane permit, he
shall take all measures to see that
sugarcane is not transported to some
other industry than that of the
appellant.
@
{5}
(5)
(7)
9 W.A.Nos.5243/2009 &
S246-49/2009 (GM-RES)
The appellant shail issue permit to
respondent Nos.4 to 8 within a."period
of five days from today.
The Deputy Commissioneifr ~ .9
at liberty to disburse srnga_rca_fnerpric:-2_A
at the rate of,RS51,700/'4"-per'tnetric V'
tonne out of deposit .togth'e-- supplier of
sugarcane, within a days. frorn the"--dilate
of supply, _
The appe11a;ntT"sha.l1 a 'statement
regarding c.rttshin.g of sugarcane with
all necessary detafls. with respondent
No.1"on-the ifol1o"w.ing 'day of crushing,
regularly, effect'{fI?0rn 6-1-2010.
glf their fails to
1..,_d'epos:it._ "1?._s.l".G-(J Crore with the Deputy
Comn1i.ssi_o11er on or before 5-1-2010,
* (9%)
A i .'1'1::t,he in'terirn*~order granted by this Court
.. 'slhall4rCo.rne to an end automatically.
iriade clear on the next date of
'..l1earing, that is on 15-1-2010 in the
"-V.eyfent of seeking extension of interim
order, further necessary conditions
including further deposit would be
it imposed.
to}
Learned Add1.Govt.Advocate is
directed to communicate this interim
order to the Deputy Commissioner,
Bellary, forthwith." 6%}
E0 W.A.Nos.5243/2009 &
5246419/2009 (GM~»RES)
6. It is to be noticed by us that at the tirne of
passing interim order on 31/ 12/ 2009 by this
was observed as follows-
"On the other hand,:Sri.K.N--';if3hvanihd.fa;'_}_
learned counsel for':,'res:poAndents_' 4 f
submits that the im'pug_11'ed osrder hash;
been passed by 7._e't>nse.r'z't .__s.nd;
therefore the 'present appeal is hot
maintainable. has.' opposed
granting =;-my inAte"rin_:1"order."
7. On pa.ssing.~uf..theV'al:lo\}e'V_siai.d"interim order,
this Court list the matter
on The above writ
appeals: for further orders on
13 /01 /2010 as.tier"l\Eo_.tification No. HCCB (D) 2 /2010
aa1.iVV1_ir1 /yo 1 1_Q,__y _
matter was listed before this Bench on
affidavit came to be filed by appellant
.. hereiniiwhich was sworn to by the Manager--I-"finance of
i aoibellant -- sugar factory stating that the interim
order passed by this Court on 31-12-2009 had been
11 W.A.Nos.5243/2009 &
5246-49/2009 (GM~RES)
complied with and the Deputy Commissioner, inspite
of there being an order of this Court, had
sugar cane grown in the reserved area to---be vd.iT\7elrted"~a "
to other factories. The interim;'order on
12-2009 was not extended on «.
9. Thereafterwardsajl"~n'1atter__ be i'
adjourned to today'.zandp..ii't' oi3ss.erved"'froa:ln order
dated 31-12--2009 the counsel
for respondentis-a4 that present
appeals and had opposed
is also observed from
the Qatar that issue regarding
Whether 24-12-2009 which is now
tVi'r1'tp1ig'ne'd.pin these appeals is a consent order or
kept open to be considered at a later
S't.ag£;_"ar1d' accordingly an order came to be passed on
.. 3_'1»l2«;2009. The relevant portion of order dated
it s1+i12--2oo9 reads as under:
*3
I2 W.A.Nos.5243/2009 &
5246-49/2009 (GM-RES)
"On the other hand, Sri K
Phanindra, learned counsel
respondents--4 to 8 submits that_.'t.h'e__'~._
impugned order has been passed»
consent and therefore the _.gp<.rese'nt*
appeal is not rnaintainab1e,____He'has
opposed granting any~»interii'n order. ' '
"Whether the ' « . :7-A
consent order,*o4_r otherwise iwouldibe;
considered at 1atei=._stage.'.'__ ' "
10. Learned '\fi/ermaii Kumar
appearing for the to 8 herein
reiterated x that present
appeals since it is an order
pas ' »
the matter is listed for
prelirninaijtilhearing, learned counsel for appellant
Valflfildavit enclosing the letter dated
addressed by him to the Deputy
Commissioner, Bellary District, Bellary.
12. Sri G V Shantaraju, learned senior counsel
appearing for appellant, would bring to the notice of
13 W.A.Nos.5243/2009 &
5246-49/2009 (GM-RES)
this Court the order impugned in appeals particularly
paragraphs 6, 8 8:. 9 to contend that learned
for appellant herein i.e., counsel __for
respondent before learned Single v4_'_not_
concede and no consent was g'iVen_'i1'or
amount/ money in its entire:ty_eforAbeing_ by " it
the farmers. Elaborating * -- E learned
senior counsel would which has
been filed toc1.eiy:~ by may kindly be
conceded by the
counlselll Sugarlvll3'actory before learned
Single that appellant herein
undertoolll: ..to'id'eplositl the amount in three days in
referrinlgmit to the actual crushing to be done
it -b_yp'ap"pelEa:it-:"per day which would be 2500 TCD and
accordingly it is contended that what was intended to
.. be deposited is Rs.-42,50,000/-- to be paid three days
din' advance and it is on this understanding that
submission was made and order came to be passed.
,
E7 W.A.N0s.5243/2009 &
5246-49/2009 (GM--RES)
Single Judge. He would further contend that if there
were to be any doubt as to the understanding"of"-.t:h--eA
order dated 24--12»2oo9 the appellant -- segaeaaetesy it
should have approached the learn--e.d Ru
Way of filing an applicationiff_oii'._iclarification"
should not to have approached» the as it
has been done n0W';.,.e_gHe contend that in
View of the applicatioVn.'AhaVviin:g filed by
the appellant::lgfitf;2fore_'A the course
left open same and not
us to order impugned
'partticularly with reference to
in these
paragraph contend that learned counsel
Sii"i*gaI'--.el3'actorff"before the learned single Judge on
given consent which in effect can be
c'ategt')1"i.sed under four categories:
i willing to crush sugarcane.
(ii) financially Viable and Willing to deposit the
amount in advance;
I8 W.A.Nos.5243/2009 &
5246-49/2009 (GM~RES)
(iii) liberty to supply the sugar cane to ___any
other sugar factory if not complyi1l'g.i:'Wit'h
(i) and (ii) referred to above ar1d.'=
(iv) the appellant ~ factory-to
and for all; if orders are not
these terms.
He would contendllthatl on these
grounds, a#1ej'yirtuaJly by way
of veiled? these ingredients are
not the appellant - factory
would*be* left option but to close down.
Reiterating .the..vsub-mission made by learned counsel
. if .pfo'rC.reAs'pondentsedlltlo 8 made on 31-12-2009 regarding
rnaiiitairiabflity of appeals, learned senior counsel
our attention to paragraph 6 & 8 of the
.. ordeI'~---and submitted that said order is passed solely
"",.VVO'fi'A"the submission /consent of the counsel for fourth
respondent appearing for Sugar Factory. He would
19 W.A.Nos.5243/2009 &
5246-49f20U9 (GM--RES)
also submit that by virtue of the said concession
made by counsel, the present appeals are~._:n_oit-._
maintainable. He would submit sub--secAti:on4A:'
Section 96 of CPC is expiicit Wh€F€L1nd€'.=f.ifEi'§a..]jiéidiio
appeal lies against an order passed on con's.epnt
accordingly submits that remedy Vaya'iiab}e";to
appellant is to approach,t1eatr_neda..tIudge-rwtio has
Passed the order review or
clarification pp iyould contend
that by and the order
havirié s'u_ch'V'Vconsent, appellant is
estopped in this appeal. He
would u also ._:subi'nitV that by virtue of such consent
been giirien and orders passed pursuant
'VVtheV1feto'~.__on".'-,:?4--12-2009, resp'ondents--4 to 8 and
similarlycapiaced farmers were eagerly waiting to
.. receivefithe amounts from Sugar factory though it was
"1:Va'bysmal1y low when compared to what other Sugar
"factories are paying to the farmers in neighbouring
20 W.A.Nos.5243/2009 &
52464922009 (GM»RES)
areas. Learned Sr.Counsel Sri Ravivarma Kurnar
would submit that writ petitioners (respondenti"l\los:.'4,,
to 8 herein) would not have agreed it
namely to accept Rs.1,700/-- :pe'r"--Metfr'ic_,vl.'llon_
was not in consonance with the :'pre-=Jalent.p.rice
this regard contentions is
sought to be pressed these
submissions, he would to dismiss
these appeals' I
I6, , learned senior
would submit that
it to be so given,
when it contrary the statute, would not be
and theiVCourt cannot pass an order contrary
tog. namely the Sugar Control Order by
directing appellants to deposit the amount within
three. -days from date of intimation by farmers
particularly when the regulation itself provides for 14
i days after taking delivery of sugar cane. In support of
21 W.A.Nos.5243/2009 &
524649/2009 (GM~RES)
his submission, he would rely upon the decision of
the Supreme Court in case of UNION OF
MOHANLAL LIKUMAL PUNJAB! (2004 _;i6'6;)"V~d1t?;%1§'IFtr ~
296). _'
17'. Having heard 1ear'neci..A_'t"senio1f" ..cou'ni'se1~t/..
appearing for appellant _resp.ondents._fJ
point arises for our consider-atVton:''' .' V
"m Whether appellant
are maintqindible? 'ggfziittftfialrther orders
to be passéc'i§_?V":f- 'V j
:18." *
learned counsel for the
parties, 'it Wotpildl'.he--~._:r1ecessary for us to extract
relevant which have been pressed into
set';».»g.Ii'ce."ovE3y"' both thtedvsides. Learned Senior Advocates
parties have taken us through the
order 24-12-2009 in extenso to buttress their
respectoie contention and particularly paragraph 6
t which reads as under:
W.A.Nos.5243/2009 &
5246-49/2009 (GM-RES)
22
"6. Per contra, Sri.H.N. Shashidhara
contends that the respondent No.4-
willing to crush the sugarcane 'V'
the reserved area t1;:é'"
respondent is financia1¥3r'~ "'vi'a~b_1e_ . p ii i A
willing to deposi:1::"~V.. _theA'" gaugenarrow
sugarcane to" be .. the V vfarrhers
in advanced' ._ Deputy
respondent
rriorzey before taking
Vde1i?.r¢ry?'3:'fV"V'of'flthe hstigarcane from the
petitioners bO3'._1"czlTJfy7 other farmers, in such
._everit, the farmers who have grown
"t'uAgarcarie'A!V3e given liberty' to supply to
_"v=:.,._Ah,Vany.v".1other sugar factory. He further
'.si;1bmits that, if such an order is not
1. passed, the 4511 respondent -- Factory has
to be closed once for all."
(Emphasis supplied by us)
23 W.A.Nos.5243/2009 &
5246-49/2009 (GM--RES)
19. In this background, it is to be examined by
us as to:
'Whether the order impugned it
appeals is based on consent
given by learned counsel Vappearing forj"::iartiif} A
respondent -- Sugar Pacto-rryzi before
learned Single Judge': 2 . _ _
20. Having perused'l_the entire ord'er,V..i."weHVfind
that fourth respondent -- F*acto.ry«_had_ineither
entered caveat nor notiee, ordered on fourth
respondent i.e.*,' 5?'Pp€1'1arit:iherein_beforeilearned Single
Judge; ..iivlappearing for fourth
resporidentpV(appe11ant._:herein} volunteered to appear
and-1.tnder'toiok~»t'o lfileiiisvakalath and agreed for the
it Ar;1"atter"l'Aheing taiieniiyup for final hearing and it is by
it S:.._ich eVo«nSent_.:of parties, matter was heard once and
£51: al}"h§,?il1earned Single Judge. The relevant
paragraph in the impugned order makes it explicit
i vvhieh reads as under: -
24 W.A.Nos.5243/2009 &
5246-49/2009 (GM-RES)
"Though the matter is listed for
preliminary hearing, Mr.H.N.SashidaIa
undertakes to file vakalath for?
respondent No.4. The learned coui'isel"--«_
for both the parties request the;C--oL1rt_i'
to take up the matter for final h.e'a*ring'.'=." h
2. With the.-"consent V
parties, the matter;__is Zheardonce 'for
all." v
This aspect has neither been«r.traversed.norjhireptzdiated
by appellant in the or any of
its affidavits filed in contrary,
what has l'lbyv.._...addressing oral
flbiasis the affidavit of the
Advocate that understanding of the
order, impiigned. in appeal by Deputy Commissioner is
erroneoils' lllll Hperforced him to approach the
and as such would contend that even
if it ispconstrued as consent given by learned counsel
for fouzeth respondent i.e., appellant herein, it is to be
l'~_i;1'n::l'erstood in the manner as explained in the
" ~---affidavit filed today. We are afraid that said
25 W.A.N0s.5243/2009 &
5246-49/2009 (GM--RES)
contention cannot be accepted for the following
reasons:
(1) It is not in dispute that order
these appeals was pronounced in open "
were to be any ambiguity or e1fi"oif...i1f1} understandtingt.'
the same, nothing prevented
the same to notice of Judge
immediately or seek thereon.
(2) Having not :donle::'sol,'--l thought fit to
file an iolflllorder of learned
Single S same V admittedly pending.
(3)uIt is alVsol:_S;seien._:froin the communication of the
Deputy Commissionerlldated 29«~12~«2009 addressed to
- aPiDlé1Iié11t"--i.SugarlSFeetory, wherein it is intimated that
ofders of learned Single Judge dated 24-
l2««~._2OQ'9 office of Deputy Commissioner received
"iintimations from farmers as on 29«~l2--2009
S 'ttyintimating the quantity of sugarcane grown and ready
" iv-for supply and called upon the Sugar Factory to
'W
26 W.A.Nos.5243/2009 &
5246-49/2009 (CiM~RES)
deposit the amount of Rs.48.4E3 crores which was not
done. However, a reply has been sent on behalf-.._:of
Sugar Factory by learned Advocate
deposit only Rs.42.50 lakhs beinrgwthe »»eiiu'¢--iii¢r'25poo i
Metric tonnes since its capacity t'o"ciruish_"'only that-t.:
Quantity Per day and souéh:,:f;.""fQr This
request has been turned 'Commissioner
by order dated 30-12~l4i2(V)i.)':9'~.l' from the
order dated; by Deputy
to 8 herein and
other their representation
dated only intimated Deputy
ComrnissiorrerVVbut*.alsofiugar Factory about quantity of
"--being"available for being supplied (though
-Sugar has refused to receive such
represe_ntlatioiris) the Deputy Commissioner has rightly
ll""'--._V"'proceed_ed to pass orders permitting the farmers to sell
it :thei.r5 sugarcane to other factories since money was not
i adleposited try Sugar factory.
.
27 W.A.Nos.5243/2009 &
524649/2009 (GFVLRES)
21. It would be necessary to extracVt--V:.f'th"e.u averments made in the affidavit filed pp counsel for appellant filed today----in 2 namely, paragraph 9 which reads' '~ . «. "
"However, our "-.cl'i~ent had'...f_i1e<i; application beforefithe learned Single Judge for~.__clarificaifiiorfe-.._of the" order dated ~.24+1,2--2o0'9jaii fl._in we No.38720/2009 a_nd'~ 'connected matters. :r'lr1.§iiew._'of theévlfiling of the appeai and conside'1'ationVVf'of appeal by ...tl1'is5';}f_1_c)n~?!3:le C_Vour;t,f;the said application becoIi1e--« infI5i;Ct'uofds"v.and our client will "witfi1«:§.raw,_"'the " when the said eap_plic'fation»...pi' comes up before the ' l.ea:*'r:'1:=:c'll Single. Judge. 2"
In View of the sajne} contention of learned counsel for ' Atfieiiéfiiiiellant thaitmtinderstanding of the order and its 1 " i.r11p~iernentation has led to the present we reject said contention.
sitL_1atio1:.r:annot be accepted by us and accordingly 28 W.A.Nos.5243/2009 & 5246-49/2009 (GM«RES)
22. It is seen from perusal of the order impugned in these appeals, it was an order consent/concession by learned counsel_."i3orAfioj;1rtl*i--_pl~- respondent -- Sugar Factory:»~partic.ulariy..'jVlteepingo H' interest of both the parties {V factory on the one hand respondents3{'fa1":ners ' V on the other hand.,_ explicit whereunder it is held ii. l ' :..''*E"l:ierefc$re,: the*~Tbackground of this f..pa.r'ticular 1case_,,l:<eepin'g' open all the _c'ont'e'ntionf-St V. the. ' farmers to be . 'V decipded 3 in" -an __ 'appropriate case, '_ch_g_s_ ..is"~.o'f theiibpinion, the ends of Vj;;;:;t._»ic:e w_¢_$_t;.1__c_1_Mbe met if an equitable . ordejr.Vis._=oa.,ssed in favour of both the , ~ parties _ba--sed on the submissions of ~. thej_eow:_:nsel for the 4'11' respondent."
""*--~--{--Emphasis supplied by us) ~ "l'cof1.sent/ concession given by fourth flrespo:1d'e_n't's counsel was the basis on which order cafI1,e_:3 to be passed for which writ petitioners it * .,_(respondent Nos.4 to 8 herein} have not objected and E have acquiesced in the said order. 29 W.A.Nos.5243/2009 & 524649/2009 (GM~RES)
23. When the order is made by virtue of consent the course left open for such litigant/party"i:sf._tou approach the learned Judge who passed" V"
order and seek clarification or s-eekreview the sa.r11el"--wA on any ground available under.»A:'la':W."=A.VA. CPC reads as under:
"96. Appeal' frorr1"orLglzra'}.glecreef'; =_(_3) Filo :a_ppeal'~v_jsha11j' lie from a decree p9.ssed""b'y the court w'i-tr:Vgthelcoiugsent of parties."
it for us to quote the decision of Hon.*b1e"'.SAupreme Court in the case of rtisflm D,EvIlB'HAlGAT (B) BY LR vs RAJINDER dt'o*m1:Rs (AIR 2005 so 2628). The rel-e_var_1.t paragraphs reads as under:
"question (i) -- Whether the appeal filed by Pushpa Devi under Section 96 of the Code of Civil Procedure, against the consent decree was rnaintinabie. ssssss 30 W.A.Nos.5243/2009 & 524649/2009 (GM-RES) Re. Point No.(i)
10. It is no doubt true that tl'ie"a. landlords did not contend either before'-«.V the first appellate court or befc--;re*«ti1.e_" 5 ;_ High Court that the appeal aga-insttth'e"l consent decree was not maintin_ab1e.. This contention is urged for .t1fi'e">j'3.rSt'.:V.' time in this Court, 'contention relates to jurisdiction of the appe,1lat"e_"'~ it court and is evident 'front thee'.;.jr§:co_rd._V§ Such a plea does notr..re'.qui,reV"; evidence. F'urther«,._ being a' contention relating V to the' ju1'i.sdiction "of" the appellate '-CT;)ur't, d'o_evsA'not requirek any 'pleadingi ThoVughV'-thi.Vs';Court will not;.norrn.fil--y. pernjiit_ a"ne"W{'p1ea to be r.a1sed-- at the...'he.aii*ir_igV_of' the special .;_petitio~n or :1' an V "appeal under ' A_rticl"e'=.1 'such plea does not "'~i.n'x*o11yeV " question .arnen3§irnerit.&"of pleading and is purely Q one"-.o'fi _l'aw',*--._ particularly relating to ~ jurisdictiCon&i"'ofV~" the appellate court, it of fact or ican"be'.ente_rtained by this Court (See Shanti Devi v. Bimla Devi -- AIR 1988 SC=£Zy1_-4l_and Zahoor VS. State of UP. -- ._AIR 1991 sc 40}. In Hiralal v. Kasturi &.._I'3e__vi (AIR 1957 sc 1853), this Court " observed:
" ...... ..though the question of it it jurisdiction had not been urged before the High Court, it stares one in the face of the judgment of the appellate court. We are satisfied that the appellate court had no jurisdiction though this point was not raised in the High "fro1'rr_ r--2:.~.1977 " proviso was added to Rule 3, Order 23 31 W.A.Nos.5243/2009 & 5246-49/2009 (GM-RES) Court, it is so obvious that we have permitted the plea to be raised beforelp us."
In this case, the raised being one relating to j1ririsdict--i.on of the heard both sides theVi*eo'n,'
11. Sectivor'i'*--_ 96 '..pro.Vi_"des; for appeals from original, decrees. Sub~ section ,{3..), ofV*""Sec:tioris~..96, however, provided that no appeal shall lie from a decree passed by' ¥th_eii"court_. with the consent of' the partiesd; "rnay notice }r1e're"_"that_ Order 43*, {,Ru_le_f'1 (m) of cpc ll1.':1C?:vii__€_§c':i.':.'v'li1€'¢_I'_pI'QR/lfiifid for an appeal a..g'a,inst theffor'd.e,1* under Rule 3 Order ;«£?ecor.d'ing or..__refL3'1sing to record an " * A.agreernenltpcompromise or satisfaction. .Bui'.'fclaus'e,_(Ir;.1'of Rule 1, Order 43 was ornittejd, byfxct' 104 of 1976 with effect Simultaneously, a wi'th,effe.ct from 1~2~l977'. We extract ..below the relevant portion of the said = pr_oviso:
'Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the court shall decide the question ...."
Rule 3A was also added in Order 23 with effect from 1-2-1977 barring any appellateV~--"'court, Wei'-havefl A permitted the said ,r-:.o1f1ftentio,n'--- arid 32 W.A.Nos.5243/2009 & S246-49/2009 (GM--RES) suit to set aside a decree on the ground that the compromise on WhichHti1e"s._ decree is based was not lawful.
12. The position that from the amended provisions--»o_ff~Orderp 23, can be summed:-u"p'thus_;& T b * V
(i) no appeal is maihtainaible. "
again-s__t a l w<_:onsen»t"' decree} having '$5-gard to sp'c§cif"ic bar contained "in section
(ii) No' a'ppeal_.~,_isdrrlaintainable V.-V'againvst._'=,thelv_ order of the C§01J.~l't j'reVc_oi'ding the cornptjoijiise, (or refusing to "'1fecordAi~ compromise) in Vi'e-v'v~.._Of,5' the deletion of _ "clause (m) Rule 1, Order 43.
-- V '*(iii}*--._'No4 independent suit can be »-- filed for setting aside a compromise decree on the V ground that the """ compromise was not lawful in View of the bar contained in Rule 3A.
(iv) A consent decree operates as an estoppel and is valid and binding unless it is set aside by the Court which passed the consent decree, by an order on an application under the Q4 ssss ..
34 W.A.Nos.5243/2009 & 5246~49f2009 (GM~RES) maintainable, having regard to the express bar contained in Section 96{fg3)x of the Code." "
25. In View of the principles FUSE-lPADEVI's case referred to opinion that same is clearly applicable circumstances of the present'V.i.cas_e and~ unable to accede to the learned counsel for the concession given by Factory before learned as is sought to be unde';:jstoodV,VViV"uli'i:-.i%act',4"Vsu'b--section (3) of Section 96 of cpc has.be'e'n:':_"_rie1;erred to in PUS}-IPADEVI's referred "t-oiVsup.ra, in extenso would be squarely » vappglicablegto ___facts of the instant case also. Hence, . 'the.iconte.'n--tion of learned counsel for appellant cannot Q accepted it is hereby rejected. upon the decision of MOHANLAL referred to supra, to it Learned counsel for appellant has relied {fig}. .
35 W.A.Nos.5243/2009 & 5246-49/2009 (GM»RES) contend that there cannot be an estoppei againstthe statute. The principles enunciated therein disputed. The order impugned in i based on consent given by:-'iiearnedp coun«seVIVfor appellant herein since according"-to boti:f,"*naIne1'y,;"
farmers as wefl as sugar bad to be done in a time' on the basis of the past dues crores still being contended that said dues' of Annexure--C, as extracted clearly demonstrate that referred to therein, are admitted said question has been left to>be' adjudicated by appropriate authorities. Be that' fc1S:V'i»t.rna;.r,.1~we wouid not embark upon to examine as'--~.to the fieracity of statements made across the bar on the.-issue regarding past dues, since it is not the i usubject matter. ' 36 W.A.Nos.5243/2009 & 5246-49/2009 (GM--RES)
27. It is seen from order impugned in_..___this appeal particuiarly, paras 1, 2, 6, 8 85 9, based on a consent given by counsei apepearirngi' V' Sugar Factory by keeping inteij-e's"t"of and as such, we do not find or the said order. The is an .¢'q1iit:ab'i,eViViorder. In View of the above" bIioV.'{'1)'"Vi:s to be answered by hoidinéé intra-court appeais are.-igficzt I View of our conclusion' appeals are not anyiivfiirther orders does not order is passed:
d>d$RDER hereby dismissed. No costs.
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E3883 Safe EESSE V. .3},/-