Calcutta High Court (Appellete Side)
M/S. Sai Sulphonates Pvt. Ltd. & Another vs Union Of India & Ors on 24 December, 2013
Author: Harish Tandon
Bench: Harish Tandon
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29 24.12.13 W.P. 37660 (W) of 2013
akd
M/s. Sai Sulphonates Pvt. Ltd. & Another
vs
Union of India & Ors.
--------
Mr. N. K. Chowdhury.
Mr. Arijit Chakraborty.
... for the petitioners.
Mr. K. K. Maity.
... for the respondents Affidavit of service filed in court today be kept with the record.
Although a preliminary objection is taken by the respondent authorities relating to the maintainability of this writ petition because of the efficacious alternative remedy, on perusal of the impugned order, this Court finds that the Tribunal has decided the matter contrary to the settled proposition of law. The order ex facie shows the non application of mind and upsets the settled proposition of law and, therefore, this Court can very well interfere with the impugned order, as the Court cannot shut its own eyes to the illegality because of the existence of the alternative remedy.
Before the 1st Appellate Authority an interlocutory application was disposed of with certain directions upon the petitioner, which needs compliance. For non-compliance thereof the appeal was dismissed by the 1st Appellate Authority.
The order of dismissal is carried to the Tribunal wherein an application for stay is filed. The Tribunal has dismissed the entire appeal, as if the interlocutory application filed by the petitioner before the Appellate Authority reached finality, which cannot be reopened. The interlocutory orders are 2 passed in the aid of the final relief.
The moment the final relief is granted either in favour of the appellant or in favour of the respondent, the interlocutory order emerges with the final order and, therefore, no longer subsists. The higher authority cannot shirk its responsibility to entertain the interlocutory application, as the petitioner did not comply with the directions passed by the 1st Appellate Authority at the interlocutory stage.
This Court, therefore, finds that the approach of the Tribunal is improper and the order impugned cannot be sustained at all. The order impugned is therefore, set aside.
The Tribunal is directed to consider the application for stay on its merit upon giving an opportunity of hearing to the petitioner and dispose of the same in accordance with law by recording reasons.
The entire exercise shall be completed by the Tribunal within four weeks from the date of communication of this order.
It is needless to mention that this court has no occasion to go into the merit of the said application and the Tribunal shall be free to decide the same independently and without being influenced by any observations made herein.
With the above observations, this writ petition is disposed of.
There will be no order as to costs.
(HARISH TANDON, J.) 3