Gujarat High Court
Biomedical vs Union Of India on 3 July, 2013
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
BIOMEDICAL LIFESCIENCE PVT LTDV/SUNION OF INDIA THROUGH SECRETARY - MINISTRY OF COMMERCE & C/MCA/1812/2013 CAV ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD MISC.CIVIL APPLICATION (FOR REVIEW) NO. 1812 of 2013 In SPECIAL CIVIL APPLICATION NO. 963 of 2013 =========================================================
BIOMEDICAL LIFESCIENCE PVT LTD & 1....Applicant(s) Versus UNION OF INDIA THROUGH SECRETARY - MINISTRY OF COMMERCE & &
3....Opponent(s) ========================================================= Appearance:
PARTY-IN-PERSON, ADVOCATE for the Applicant(s) No. 1 - 2 MR PS CHAMPANERI, ADVOCATE for the Opponent(s) No. 1 MR KAMAL TRIVEDI, Senior Advocate with MR HARSH JANI for MS SK VISHEN, ADVOCATE for the Opponent(s) No. 4 ========================================================= CORAM:
HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date :
17/09/2013 CAV ORDER (PER :
HONOURABLE MR.JUSTICE J.B.PARDIWALA)
1. This is an application at the instance of unsuccessful applicants of Special Civil Application No.963 of 2013 for review of our judgment and order dated 3rd July 2013 by which we rejected the writ application.
2. In the main writ application, the petitioners had challenged the constitutional validity of Rule 19, Clause (5) of the Special Economic Zone Rules, 2006 on the ground that it is ultra vires the parent Act, namely, the Special Economic Zone Act, 2005. The petitioner also challenged the order dated 2nd April 2012 issued by the respondent no.3, the Joint Development Commissioner, Pharmez SEZ, by which the letter of approval granted in favour of the applicant under the SEZ Scheme was ordered to be cancelled since the applicant failed to commence the commercial production within the stipulated time limit of one year mentioned in the letter of approval and was also unable to commence it within the extended validity period upto 31st March 2011 granted by the Development Commissioner in terms of Rule 19, Clause (4) of the SEZ Rules 2006.
3. After hearing the learned counsel appearing for the parties and on the basis of materials on record, we framed the following questions for our consideration.
(1) Whether Rule 19(5) is ultra vires the provisions of the parent Act of 2005 on the premise that it travels beyond the rule making power as contained in Section 55 of the Act ?
(2) Whether Rule 19(4) which provides that if the unit has not commenced production or service activity within the validity period or the extended validity period under sub-rule (4), the Letter of Approval shall be deemed to have been lapsed with effect from the date on which its validity expired, is in any way in conflict with Section 16 of the Act, which provides that a Letter of Approval shall not be cancelled on persistent contravention of any of the terms and conditions unless the entrepreneur has been afforded a reasonable opportunity of being heard ?
Whether in the facts of the present case, Section 16 of the Act 2005 which provides for cancellation of Letter of Approval to entrepreneur would be attracted or not ?
(4) Whether the authority committed any error in passing the order impugned ?
4. We answered the above referred four questions as under:
Question no.1 in the negative.
Question no.2 in the negative.
Question no.3 in the negative and question no.4 also in the negative.
5. According to the applicant appearing as party-in-person, this Court committed a serious error in rejecting the main writ application for the following reasons:
In last five years, the applicant has paid income tax of more than Rs.20 Crore.
(ii) The company is a relatively small private limited company and the substantial burden of managing the company is on the applicant as a managing director of the company. Since he had to travel extensively within and outside the country, he was unable to seek any further extension of time for setting up of the project on the SEZ which is ordinarily granted by the Development Commissioner to promote the objectives of the SEZ.
(iii) The Development Commissioner ought to have given an opportunity of being heard before cancelling the letter of approval, more particularly, when the lease deed was valid for 99 years.
(iv) The delay in setting up the manufacturing unit in the SEZ was genuinely on account of high pressure of work at the existing manufacturing unit and inability to generate necessary funds.
(v) The Board has powers to grant extensions and in large number of cases in Gujarat and other States, such extensions have been granted for more than three to four times to the SEZ plot holders. The details are as under:
1) M/s Gujarat Dye Stuff Industries was given first permission in December, 2008 to set up manufacturing unit in the Dahej SEZ. It was thereafter granted three extensions under Rule 19 (4) but as they could not set up the facility, on their request fourth extension has been granted recently.
In case of M/s.Sterling Vinnayal Adhesives the company was granted land in Dahej SEZ at Bharuch in 2009. It was granted one extension and later its LoA was cancelled like me. On appeal to the Board, Board granted two further extensions.
M/s XL Energy Ltd. in Ranga Reddy District of Andhra Pradesh was granted permission in March, 2008. It was granted four extensions thereafter. However, as the unit could not meet its obligation it requested for fifth extension beyond the fifth year of the permission and the same is granted recently.
M/s. Zydus Technologies Ltd, a unit being developed by M/s. Zydus Pharma SEZ, Gujarat within Pharmez SEZ under reference was given permission in June, 2009, it was thereafter granted two extensions under Rule 19 (4) and further third extension was given under proviso Rule 19 (4). The unit could not commence and therefore asked further extension i.e., fourth extension and the same has been granted for one more year recently.
M/s. Fulcrum World Wide Software Pvt. Ltd. was granted approval in February, 2008 in SEZ in Pune District. The unit has been granted third extension which extends beyond a period of 5 years.
M/s.Vigor Laboratories in Indore SEZ was granted permission in January, 2008. They were granted two extensions of 2 years each but as they could not commence, further extensions has been granted on request which extends beyond a period of 5 years.
M/s. Torrent Pharmaceuticals, Dahej (Gujarat) were granted permission in December, 2008. Thereafter they were given extension of 4 years till December, 2012 and on their further request they have been granted further extension of 1 year.
M/s.Meghmani Unichem a unit of Dahej SEZ (Gujarat) was granted permission in September, 2008. They were granted extensions twice thereafter. The permission was rejected thereafter when further extension was asked. But on appeal the matter was reconsidered by the Board and time has been extended.
6. The applicant, party-in-person, would submit that for the reasons aforementioned we should review our judgment and order as there is an error apparent on the face of the same.
7. Having heard the applicant, party-in-person, and having gone through our judgment and order dated 3rd July 2013, the only question that falls for our consideration is whether the order, review of which is sought, suffers from any error apparent on the face of the order and permitting the order to stand will lead to failure of justice.
8. Considering the amendment made in Section 141 of the Civil Procedure Code in the year 1976, the provisions of Order 47 of the Code relating to review are not applicable to the proceedings before the High Court under Article 226 of the Constitution of India. The powers of this Court to review its own judgment are the powers which every Court of plenary jurisdiction inheres. The Supreme Court in the case of Shivdeo Singh Vs. State of Punjab, reported in AIR 1963 SC 1909, held that it is sufficient to say 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 by it. Thus, although the Supreme Court by necessary implication negatived the attraction of the provisions of Order 47 of the Civil Procedure Code to the writ jurisdiction of the High Court, it firmly established the existence of such powers, but it clarified that such inherent powers could be invoked "to prevent miscarriage of justice or to correct grave and palpable errors committed by the High Court".
9. The aforesaid judgment of the Supreme Court came to be followed by the Bench of two Judges of the Supreme Court in the case of A.T. Sharma Vs. A.P. Sharma reported in AIR 1979 SC 1047, which reiterated the existence of inherent powers of the High Court to review its earlier decision in exercise of inherent powers. The Supreme Court in that case, however, clarified the ambit and scope of the power of review because in Shivdeo Singh's case (supra) the Supreme Court considered the existence of the power of review and the purpose of exercising that power alone. The Supreme Court in paragraph 3 observed as under:-
"It is true there is nothing in Article 226 of the Constitution to preclude the 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 by it, but there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter of evidence, which after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate power which may enable an appellate court to correct all manner of errors committed by the subordinate Court." (Emphasis supplied).
10. Thus, the following legal propositions are discernible from the two decisions of the Supreme Court referred to above:-
(1) The provisions of the Civil Procedure Code in Order 47 are not applicable to the High Court's power of review in proceedings under Art.226 of the Constitution.
(2) The said powers are to be exercised by the High Court only to prevent miscarriage of justice or to correct grave and palpable errors. (The epithet "palpable" means that which can be felt by a simple touch of the order and not which could be dug out after a long drawn out process of argumentation and ratiocination).
(3) The inherent powers, though ex facie plenary, are not to be treated as unlimited or unabridged, but they are to be invoked on the grounds analogous to the grounds mentioned in Order 47 Rule 1, namely. (i) discovery of new and important matter or evidence which the party seeking the review could not produce at the time when the earlier order sought to be reviewed was made, despite exercise of due diligence;
(ii) existence of some mistake or error apparent on the face of the record; and
(iii) existence of any analogous ground.
These are the very three grounds referred to in order 47 Rule 1 Civil P.C. and by declaration of law at the hands of the Supreme Court in the above case they are the hedges or limitations of the High Court's power.
11. In Meera Bhanja v. Smt. Nirmala Kumari Choudary, reported in AIR 1995 SC 455, the Supreme Court held that :
"It is well settled law that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47, Rule 1 CPC. In connection with the limitation of the powers of the court under Order 47, Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution of India, the apex Court, in the case of Aribam Tuleshwar Sharma v. Aribam Pishak Sharma [AIR 1979 SC 1047] speaking through Chinnappa Reddy, J. has made the following pertinent observations:
It is true there is nothing in Article 226 of the Constitution to preclude the 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 by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter of evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found, it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be in the province of a court of appeal. A power of review is not to be confused with appellate power which may enable an appellate Court to correct all manner of error committed by the subordinate court."
12. The limitations on exercise of the powers of review are well-settled. The first and the foremost requirement of entertaining a review petition is that the order, review of which is sought, suffers from any error apparent on the face of the order and permitting the order to stand will lead to failure of justice. In absence of any such error, finality attached to the judgment/order should not be disturbed.
13. The grounds which have been urged before us on the basis of which review is prayed for are the same which were urged at the time of hearing of the main writ application except the ground that the Board has powers to grant extensions from time to time and in large number of cases in Gujarat and other States in the country, such extensions have been granted more than three to four times to the SEZ plot holders. The applicants have given instances of such extensions, but we are afraid we cannot take into consideration such material as we do not know in which circumstances the extensions have been granted and on what grounds. Even assuming for the moment that in cases of other companies extensions were granted, by itself, does not confer any legal right on the applicant to claim extension, more particularly, when we have observed in our judgment that the applicant could not start the unit even during the extended period permissible in law.
14. We are of the view that there is no error, not to speak of any error of law, in the judgment and order dated 3rd July 2013. After giving due consideration to each of the issues involved, we have recorded our findings. No plea has been taken in the present review application that there is a mis-conception of fact or law committed by this Court. It is settled law that a review is by no means an appeal in disguise whereby an erroneous decision is re-heard and corrected but it lies only for a patent error where, without any elaborate argument, one could point to the error and say here is the substantial point of law, which stares the one in the face.
15. For the foregoing reasons, we do not find any merit in this application for review and the same is accordingly rejected.
(BHASKAR BHATTACHARYA, CJ.) (J.B.PARDIWALA, J.) *malek Page 9 of 9