Gujarat High Court
Indian Rayon ( A Unit Of Aditya Birla Nuvo ... vs State Of Gujarat Through on 9 April, 2013
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
INDIAN RAYON ( A UNIT OF ADITYA BIRLA NUVO LTD.)....Petitioner(s)V/SSTATE OF GUJARAT THROUGH SECRETARY C/SCA/17953/2011 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 17953 of 2011 =========================================================== INDIAN RAYON ( A UNIT OF ADITYA BIRLA NUVO LTD.)....Petitioner(s) Versus STATE OF GUJARAT THROUGH SECRETARY & 1....Respondent(s) ================================================================ Appearance: MR. BHASKAR P. TANNA, SR. ADVOCATE with MR. BHAVDUTT H. BHATT FOR TANNA ASSOCIATES, ADVOCATE for the Petitioner(s) No. 1 MR PRAKASH JANI, GOVERNMENT PLEADER with MR. ROHAN YAGNIK for the Respondent(s) No. 1-2 =========================================================== CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA Date : 09/04/2013 ORAL ORDER
The present petition has been filed by the petitioner under Articles 14, 19 and 226 of the Constitution of India as well as under the provisions of Bombay Irrigation Act, 1879 and Rules framed thereunder, on the grounds stated in the petition. The prayers sought for in the petition are as under:
(a) Be pleased to allow this writ petition.
(b) Be pleased to quash and set aside show cause notice dated 21/11/2011 (Annexure-K) herein and communication dated 30.11.2011 (Annexure-L) herein as it is issued without authority of law, nullity, void ab initio and non set.
(c) By way of ad-interim relief pending admission and final disposal of this petition be pleased to stay execution and implementation of show cause notice dated 21.11.2011 (Annexure-K) herein and communication dated 30.11.2011 (Annexure-L) herein.
(d) Any other and further relief as may be deemed fit by this Hon ble Court in the interest of justice and equity.
(e) Be pleased to direct the respondent authorities to pay the cost of this petition.
Heard learned Senior Counsel Shri Bhaskar Tanna appearing with learned Advocate Shri Bhavdutt H. Bhatt for Tanna Associates for the petitioner and learned Government Pleader Shri Prakash Jani appearing with learned AGP Shri Rohan Yagnik for Respondent Nos.1 and 2.
Learned Senior Counsel Shri Bhaskar Tanna has referred to the provisions of Section 48A of the Bombay Irrigation Act, 1879 (for short the Act ) read with Section 67 of the Act, which provide for an appeal against order under the Act (by the Collector). He submitted that no one can be judged in his own cause. He submitted that in the facts of the case, the Collector has exercised the quasi-judicial powers while passing an order in favour of the petitioner, which is sought to be negated in purported exercise of powers and which do not vest with the Government. Reliance is placed by the learned Senior Counsel Shri Tanna on the provisions of Section 67 of the Act, which provides inter alia, All orders and proceedings of a Collector under this Act shall be subject to the supervision and control of the [State Government] . He further submitted that such exercise of powers is illegal and therefore the present petition may be entertained and the interim relief, as prayed for, may be granted.
Learned Government Pleader Shri Prakash Jani submitted that considering the prayer, what is prayed for, is that the proceedings pursuant to the show cause notice issued by the Collector, should not commence at all. He submitted that in exercise of powers under Article 226 of the Constitution of India, normally the High Court would refrain from entertaining any such prayer against issuance of such show cause notice. He referred to and relied upon the following judgments of the Hon ble Apex Court and other Hon ble High Courts:
1.
Divisional Forests Officers & Ors. V. M. Ramalinga Reddy reported in AIR 2007 SC 2226.
2. Bellary Steels and Alloys Limited V. Deputy Commissioner, Commercial Taxes (Assessment) and others reported (2009) 17 SCC 547.
3. Bibi Khairun Nisa V. The State of Bihar and others, reported in AIR 1965 Patna 382.
4.Bharat Bhushan V. Cinema and City Magistrate and another reported in AIR 1956 Allahabad 99.
Learned Government Pleader Shri Jani submitted that jurisdiction or discretion or the writ against the show cause notice is not maintainable and therefore such jurisdiction may not be exercised. He pointedly referred to the provisions of Section 48A of the Act, which provides for canal. He referred to the facts of the case and tried to submit that the river is passing within 200 sq.metres of the well of the petitioner and therefore, the Irrigation Department will have jurisdiction. He emphasized the words Subject to the control of the State Government to comply any public interest, the State Government can exercise such jurisdiction and it may not be disputed or doubted. In support of his submissions, Shri Jani has referred to and relied upon the judgment of the Hon ble Allahabad High Court in case of Bharat Bhushan V. Cinema and City Magistrate and another reported in AIR 1956 Allahabad 99 and judgment of the Hon ble Patna High Court in case of Bibi Khairun Nisa V. The State of Bihar and others, reported in AIR 1965 Patna 382. He emphasized the observations made therein to emphasize his point that exercise of such powers by the State is permissible when the Statute provides for such exercise of powers as All orders and proceedings of a Collector under this Act shall be subject to the supervision and control of the [State Government] . It is submitted that when there is only show cause notice, which has been issued, all the contentions with regard to the jurisdiction or the Authority can be raised by the petitioner before the Authority i.e. State and therefore, the present petition would be premature and discretion under Article 226 would not be exercised and the present petition may not be entertained.
In rejoinder, learned Senior Counsel Shri Tanna, further referred to and relied upon the judgment of the Hon ble Apex Court in case of Union of India V. K.M.Shankarappa reported in 2000 (0) GLHEL-SC 32881, which again refers to Cinematograph Act, 1952. He pointedly referred to the observations made in the judgment that to permit the Executive to review and/or revise that decision would amount to interference with the exercise of judicial functions by a quasi-judicial Board . Further, he referred to and relied upon the judgment of the Hon ble Apex Court in case of Amrik Singh Lyallpuri V. Union of India reported in 2011 (0) GLHEL-SC 49701, to again emphasize that when the powers or the orders are passed by the Authority acting as quasi judicial, it cannot be interfered with. He therefore submitted that the show cause notice issued by the Collector is without any jurisdiction.
In view of these rival submissions, which have been canvassed and from the very facts which are referred by both the sides, it clearly suggests that the order has been passed by the Collector at Annexure-J, in exercise of powers under Section 67 of the Act. Section 67 of the Act provides for Appeals against order under Act . It is evident from the order that the Collector has taken into consideration all the relevant aspects including the distance of 200 sq.metres from the river and also other contentions including the report of the Technical Experts Committee. In fact, as could be seen, prima facie the report made by the Technical Experts Committee has also been taken into consideration by the Collector while passing an order. Therefore, without any elaboration, the fact that the Collector in exercise of powers under Section 67 of the Act has passed an order in appeal, which he has been exercising quasi judicial powers provided under the Statute. Therefore, very provision under the Statute, which has been emphasized by the Government Pleader Shri Jani is that All orders and proceedings of a Collector under this Act shall be subject to the supervision and control of the [State Government] , which itself would stare at the face, when it is considered in light of the settled principles of natural justice and bias.
It is well accepted that no one can be judged in his own cause. If the Collector in exercise of quasi judicial function is permitted to function subject to supervision and control of the State or the Department then it would not be a quasi-judicial function. Therefore, that itself requires consideration, prima facie, whether the State i.e. Irrigation Department can exercise any such powers which are sought to be exercised by issuing the impugned show cause notice. Therefore, when the Statute does not provide for any other appeal or revision whether the Irrigation Department/State can issue such notice, itself requires consideration, in asmuchas there are no such powers vested in the State/Irrigation Department. Therefore, only course which could be adopted, is a judicial review by taking appropriate measures or the steps before the Judicial Authority or the Court. Therefore, the matter requires consideration.
Even though, the show cause notice has been issued, prima facie, it appears to be without any jurisdiction or base. Therefore, the submissions which have been made by the learned Government Pleader Shri Jani referring to the various Authorities, much emphasizing that writ petition would not be maintainable against the show cause notice, has to be considered in background of the facts when the show cause notice is subject to further recourse by way of an appeal as provided under the respective Statutes. Therefore, it has to be considered in background of the provisions of law in a given case. In the facts of the case, when there are no such powers to issue a notice with the Irrigation Department or the State Government and there is total lack of jurisdiction, which would assume a different consideration. Therefore the observations may have been made in a given case when the Statute has provided for an appeal against the order passed by the Authority as a quasi judicial authority. In the facts of the case, the order of the Collector is passed in his capacity as quasi judicial authority against which no further revision or appeal available in the Statute itself. Therefore, though the Collector may be subject to supervisory control and jurisdiction of the State Government in the hierarchy in the administration, when he exercises his powers and functions as a quasi judicial authority, there cannot be any such control or supervision as sought to be canvassed.
It is well accepted that observations and judgments are to be considered in the background of the facts of the case to consider the applicability thereof. Again, the submissions which have been made referring to the other judgments of the Hon ble Allahabad High Court as well as the Hon ble Patna High Court, in case of Bharat Bhushan V. Cinema and City Magistrate and another reported in AIR 1956 Allahabad 99, and in case of Bibi Khairun Nisa V. The State of Bihar and others, reported in AIR 1965 Patna 382, respectively, to be read in the context of development and the well accepted principles of law regarding the principles of natural justice and fair play. The submissions made by the learned Advocates, have not only been considered but also dealt with in accordance with law well settled principles by catena of judicial pronouncements of the Hon ble Apex Court. The reliance was placed by learned Senior Counsel Shri Tanna on the judgment of the Hon ble Apex Court in case of Union of India V. K.M.Shankarappa reported in AIR 2000 SC 3678, itself clearly supports the contentions raised by him. Hence, following order is passed:
Rule, returnable on 26th June, 2013.
Interim relief, granted earlier, to continue till final hearing and disposal of the present petition.
(RAJESH H.SHUKLA, J.) Tuvar Page 9 of 9