Reliance
Industries Ltd. Vs. Pravinbhai Jasbhai Patel & Ors [1997] INSC 693 (29
August 1997)
S. B.
MAJMUDAR, S. SAGHIR AHMAD
ACT:
HEADNOTE:
S.B. Majmudar,
J.
Leave
granted in Special Leave Petitions challenging the judgment and order dated
24th and 25th October 1996 passed by the Division Bench of the High Court of
Gujarat in Miscellaneous (Civil) Application No. 1939 of 1995.
By
consent of learned advocates of parties the appeals were taken up for final
hearing. In these appeals by special leave the appellant-company has brought in
challenge the judgment and order dated 24th and 25th October 1996 passed by the Division Bench of the High Court of Gujarat
in Miscellaneous Civil Application No.1939 of 1995 arising from Special Civil
Application No.770 of 1995. Apart from the merits of the controversy raised by
the appellant-company against the aforesaid judgment, it is necessary to note
at the outset one important procedural question which arises for consideration
in these appeals. It runs as under :
`When
in review proceedings arising out of the decision of the Division Bench of two
learned Judges of the High Court rendered in a writ petition under Article 226
of the Constitution of India which is in the nature of original proceedings,
the two learned Judges deciding the review petition differ on questions of fact
or law, whether a reference to a third learned Judge is required to be made for
disposal of the review petition as per the majority opinion of the three
learned Judges or whether on difference of opinion between them on these
questions, the petition is required to be dismissed under Order XLVII Rule 6,
Code of Civil Procedure, 1908 (`CPC' for short), keeping the order, sought to
be reviewed untouched.' As the aforesaid question goes to the root of the
matter we thought it fit to hear the learned counsel for the respective parties
on this question at the outset.
Before
coming to the grips of the said question it is necessary to note a few
introductory facts leading to the present proceedings.
A
public interest litigation petition was moved i n the High Court of Gujarat by
the two writ petitioners who were agriculturists having agricultural lands in kheda
district of Gujarat state. Said petition was moved under Article 226 of the
Constitution of India. It was alleged that the industries which had been set up
in the industrial estates at Naroda, Vata and Odhav on the periphery of Ahmedabad
city, were discharging their polluted effluents into Kharicut canal which, in
turn, leads to Khari river. It was further alleged that there are about 11
villages in kheda district whose only source of water for the purpose of
agriculture is from khari river. Due to the water pollution caused by the said
industries the water in the khari river was no longer suitable for agriculture.
It addition thereto the agricultural lands in these villages had lost their
fertility and the water drawn from the wells was having reddish colour even
when it was from the depth of about 300 ft. Various other allegations were made
in the writ petition which tried to cover in its sweep of attack about 756
industrial units situated in the industrial estates of Gujarat Industrial
Development Corporation, sited at Naroda, Vata and Odhav and also some of the
textiles units and processing units situated in or hereby Ahemdabad. In the
said writ petition the present appellant was also one of the contesting
respondents. After hearing the parties concerned the Division Bench consisting
of B.N. Kirpal, CJ. (as he then was), and H.L. Gokhale, J., by its order dated
5th/7th August 1995 allowed the writ petition and issued various directions
against the polluting industries concerned as detailed in the same judgment. It
is not in dispute between the parties that some of the industries covered by
the said judgment came to this Court by way of Special Leave Petitions which
were dismissed by this Court. So far as the appellant is concerned it also
challenged the very same judgment of the High Court by filing Special Leave
Petition (C) No.24916 of 1995. A Bench of two learned Judges of this Court
consisting of Hon'ble K. Ramaswamy and B.L. Hansaria, JJ. passed the following
order on 17th November
1995 in the Special
Leave Petition of the appellant :
"The
petitioner's specific case set up in this Court is that is that it has already
set up the affluent treatment plant as early as in 1985 at a cost of Rs. 1.5 crore
and that its case was mixed up with other cases. it not discharging any
affluent polluted waters into the canal. If that be so, it would be open to the
petitioner to make an application in the High Court for appropriate review of
the order concerning the petitioner only. Counsel for the petitioner seeks for
and granted two months time." Pursuant to the aforesaid order of this
Court the appellant moved a review petition being Miscellaneous (Civil)
Application No. 1939 of 1995 in the Gujarat High Court seeking to get reviewed
the main decision in the Special Civil Application No. 770 of 1995 on the
grounds raised in the review petition. This review petition was heard by
another Division Bench of the High Court consisting of H.L. Gokhale and M.S.
Shah, JJ., as in the meantime B.N. Kirpal, CJ., was elevated as Judge of this
Court. The said review petition was heard on merits by the aforesaid Division
Bench of the High Court. During the pendency of the review petition additional
evidence was also considered by the Bench as tendered by the contesting
respondents.
Ultimately
by an order dated 24th
October 1996 Gokhale,
J., came to the conclusion the appellant-company was not covered by the
impugned directions contained in the judgment in the writ petition. Said
decision was rendered by Gokahle, J. on various reasons mentioned therein. So
far as the other learned Judge M.s. Shah, J., was concerned, he took a August
1995. Consequently the Special Leave Petition (C) No.24916 of 1995 challenging
the said order was permitted to be withdrawn by this Court on 20th December 1996.
In
view of the aforesaid developments, therefore, the main controversy which
survives in these appeals centers round the legality of the order f the
Division Bench of the High Court which dismissed the Miscellaneous (Civil)
Application No.1939 of 1995. These appeals, therefore, will have to be decided
only with reference to the controversy centering round the decision in the
review petition moved by the appellant before the High Court.
So far
as the challenge to the impugned decision in the review petition is concerned
it consists of two questions :
1.
Whether the Division Bench of the High Court on a difference of opinion between
the two learned Judges was justified in dismissing the review petition under
O.XLVII R. 6, CPC.
2. If
yes, whether on merits the review petition was required to be allowed.
It is
obvious that if it is held that on a difference of opinion between the learned
Judges constituting the Division Bench reference to third learned Judge was
required to be made then the second question would not service for our
consideration at this stage. That would service only if it is held that the
review petition was liable to be dismissed under O.XLVI R.6 CPC as has been
done by the Division Bench in the impugned judgment. We therefore, now address
ourselves to the consideration of the aforesaid procedural question.
Shri Kapil
Sibal, learned senior counsel appearing for the appellant submitted that when
the hearing of the review petition resulted in difference of opinion between
the two learned Judges constituting the Review Bench, reference to third
learned Judge should have been made as per clause 36 of the Letters Patent
applicable to the High Court of Gujarat . In this connection it was also
submitted that even though rules were framed by the High Court of Gujarat as
per Clause 37 of Letters patent the said rules especially Rule 186 thereof did
not contra-indicate the said procedural position. In this connection he
submitted that as per Rule 186 of the Rules framed by the High Court, the
procedure of Section 98 of the CPC got attracted for resolving this
controversy. But even in such a case looking at the conflicting decisions
rendered by the two learned Judges in the review petition proviso to
sub-Section (2) of Section 98, CPC required reference of the question of law,
on which there was difference of opinion, for decision of the third learned
Judge. It was alternatively contended By Shri Sibal that in any case all
questions of law and fact flowing from the difference of opinion between the
two learned Judges are required to be referred to the third learned Judge for
resolution of said difference of opinion as per Section 98 sub-Section (3) of
the CPC read with Clause 36 of the Letters Patent. That is no case the Division
Bench was justified the dismissing the review petition despite this conflict of
opinions between the two learned Judges, following the provisions of O.XLVII
R.6, CPC. It was, therefore, contended that the ultimate decision rendered by
the Division Bench of the High Court on 24th and 25th October 1996 dismissing
the review petition us required to be set aside and the controversy, centering
round the question on which the two learned Judges had difference of opinion,
is required to be resolved by reference to third learned Judge for being
decided as per the majority decision in the light of the opinion of the third
learned Judge.
On the
other had learned Solicitor General shri T.R. Andhyarujina, appearing for
respondent no.4, Gujarat Pollution Control Board and Shri Soli J. Sorabjee,
learned senior counsel appearing for respondent no.6, Commissioner of Ahmedabad
Municipal Corporation contended that the procedure adopted by the Division
Bench dismissing the review petition was the Section 98, CPC could not be
pressed in service on the facts of the present case for the simple reason that
both the learned Judges had not disagreed on question of law but had disagreed
purely on question of facts, namely, whether the appellant-industry was covered
by the sweep of the main decision in Special Civil Application No.770 of 1995
or not and whether the appellant was a polluting industry or not. It was next
contended that sub- Section (3) of Section 98, CPC cannot apply to the facts of
the present case as Rule 186 of the Gujarat High Court Rules clearly indicated
the procedure to be followed in such an eventuality and as that procedure was
provided by Section 98 sub-Section (2), CPC which was a complete Code in
itself, the said question could not be resolved by recourse to sub- Section (3)
of Section 98, CPC as that would render the operation of Rule 186 of the
Gujarat High Court Rules options. It was next contended that even assuming
Section 98 sub-Section (3), CPC applied to the facts of the present case, and
consequently Clause 36 of the Letters patent got attracted even then the said
clause on its own terminology could not cover the facts of the present case as
the decision rendered in the review proceedings by the Division Bench could not
be said to be a decision rendered in exercise of original jurisdiction of the
High Court and it was admittedly not a decision rendered in exercise of
appellants jurisdiction of the High Court. That Clause 36 only covered those
decisions which were rendered by the Division Bench of the High Court either in
exercise of original jurisdiction or in exercise of appellate jurisdiction.
That review jurisdiction is an independent jurisdiction which is different from
the aforesaid two jurisdiction and consequently such a decision was not at all
covered by the sweep of Clause 36 of the Letters Patent and even on that ground
only Section 98 sub-Section (2), CPC applied and as the proviso to the said
sub-Section (2) could not be invoked for resolving the factual controversy
which has resulted in two divergent opinions of two learned Judges of the
Division Bench, hearing the review petition, the only course open to the High
Court was to dismiss the review petition as enjoined by O.XLVII R.6, CPC.
Consequently not fault could be found with the decision of the High Court
following the said course.
In the
light of the aforesaid rival contentions we now proceed to consider this moot
question posed for our consideration. It is not is dispute between the parties
that the High Court of Gujarat is governed by the Letters Patent which earlier
applied to the parent High Court of Bombay and on bifurcation on 1st May 1960
the said Letters Patent continued to apply to the Gujarat High Court as a
successor High Court to the erstwhile High Court of Bombay. Letters patent,
therefore, are the charter which would govern the proceedings in the High Court
and the procedure to be followed by it for deciding matters falling within its
jurisdiction. It is also not in dispute between the parties that the original
writ petition moved in the High Court by way of public interest litigation was
under Article 226 of the Constitution of India invoking original jurisdiction
of the High Court. It is that writ petition which got disposed of by the order
dated 5th and 7th August 1995 passed by the Division Bench of the High Court.
The review petition moved by the appellant-company stems from the aforesaid
decision in the writ petition. This review petition was placed for final
disposal before a Bench of two learned Judges consisting of H.L. Gokhale and
M.S. Shah, JJ., as noted earlier. These two learned Judges of the High Court
were, therefore, constituting a Division Bench which was entrusted with the
task of deciding about apparent error, it any, discernible from the judgment of
the earlier Division Bench passed in exercise of original jurisdiction of the
High Court. Consequently if any difference of opinion arose between the two
learned Judges regarding the merits of the review petition, ex facie, Clause 36
of the Letters Patent got attracted. The said clause reads as under :
"36
Single Judges and Divisional Courts. And we do hereby declare that any
function, which is hereby directed to be performed by the said High Court of
Judicature at Bombay in the exercise of its original or appellate jurisdiction,
may be performed by any Judge or any Division Court thereof, appointed or
constituted for such purpose, in pursuance of section One hundred and eight of
the Government of India Act, 1915, and if such Division Court is composed of
two or more Judges, and the Judges are divided in opinion as to the decision to
be given on any point, such point shall be decided according to the opinion of
the majority of the Judges, if there shall be a majority, but if the Judges
should be equally divided they shall state the point upon which they differ and
the case shall then be heard upon that point by one or more of the other Judges
and the point shall be decided according to the opinion of the majority of the
Judges, who have heard the case including those first heard it." It is not
possible to agree with the contention of learned senior counsel Shri Sorabjee
for respondent no.6 that even if Clause 36 applied it could not cover review
proceedings arising out of decisions in writ petitions under Article 226 of the
Constitution of India invoking original jurisdiction of the High Court. It is
true that the aforesaid clause of Letters Patent deals with the decisions of
Division Benches exercising original or appellate jurisdiction. Question of
exercise of appellate jurisdiction does not arise in the present case.
Therefore, the short question is whether he decision rendered by the Division
Bench of the High Court in Special Civil Application No.770 of 1995 allowing it
as a public interest litigation petition in exercise of original jurisdiction
of the High Court under Article 226 of the Constitution of India would not lend
colour of the very same original jurisdiction to review proceedings arising out
of that very judgment? It has to be kept in view, that review petitions are not
by way of appeals before the superior Court but they are by way of requests to
the same Court which decided the matter, for persuding it to recall or
reconsider its own decision on grounds which are legally permissible for
reviewing such orders. As laid down by O.XLVII R.5, CPC as far as possible the
same two learned Judges or more Judges who decided the original proceedings have
to hear the review petition arising from their won judgment. Thus in substance
a review amounts to reconsideration of its own decision by the very same Court.
When the Court sits to review its own order, it obviously is not sitting in
appeal over its judgment but is seeking to have a fresh look at its own
judgment of course within the limits of review powers, but still invoking for
that limited purpose the very same jurisdiction which it exercised earlier. it
is axiomatic that if a Division Bench of two learned Judges deciding the appeal
had exercised appellate powers and when its decision is sought to be reviewed
it can be said to be required to reconsider its own decision within the limits
of review jurisdiction but still in exercise of the same appellate jurisdiction
which it earlier exercised. Similarly when a decision rendered in exercise of
original jurisdiction by a Bench of two learned Judges is sought to be reviewed
the learned Judges exercising review jurisdiction subject to the limitations
inhering in such an exercise, can be said to be called upon to reconsider their
decision earlier rendered in exercise of the very same original jurisdiction.
In that review jurisdiction takes colour from the nature of the jurisdiction
exercised by the Court at the time when the main judgment, sought to be
reviewed, was rendered. Review jurisdiction, therefore, cannot be said to be
same independent jurisdiction sought to be exercised by the Court the nature of
the jurisdiction exercised by it when the judgment sought to be reviewed was
rendered by it. As the decision sought to be reviewed in the present
proceedings was rendered by the Division Bench in exercise of its original
jurisdiction the review proceedings emanating from the very same judgment would
partake the character of the very same exercise of original jurisdiction. It
remained in the domain of original jurisdiction which could be said to have
been invoked by the appellant when it requested the Court to review its earlier
decision rendered in exercise of original jurisdiction. It is, therefore, not
possible to agree with the contention of learned senior counsel Shri Sorabjee
for respondent no.6 that the review proceeding in the present case which was
arising out of the decision of the High Court rendered in exercise of its
original jurisdiction under Article 226 of the Constitution of India sought to
invoke an independent and separate jurisdiction of the High Court which was
neither original not appellate.
it
must be held that both the learned Judges who heard the review petition arising
out of decision rendered by the High Court in exercise of its original
jurisdiction under Article 226 of the Constitution of India were also called
upon to exercise the very same original jurisdiction at the second stage, and
for the second time when they were to reconsider the legality of the very same
decision subject of course to the limitations of review power as enjoined by
the well settled fetters and parameters for exercise of such review
jurisdiction. Once that conclusion is reached it becomes obvious that fetters
of O.XLVII R.6, CPC could not get attracted to the said review proceedings as
the wide sweep of the provisions of Clause 36 of the Letters Patent being the
paramount charter applicable to the High Court of Gujarat could not be whittled
down by the provisions of Code of Civil Procedure if they were in any way
inconsistent with Clause 36 of the Letters Patent.
As
laid down by Section 4 sub-Section (1), CPC itself in the absence of any
specific provision to the contrary, nothing in the Code shall be deemed to
limit or otherwise affect any special or local law now in force or any special
jurisdiction or power conferred, or any special form of procedure prescribed,
by or under any other law for the time being in force. It cannot be disputed
that Letters Patent as applicable to High Court of Gujarat is a special law in
force which confers special jurisdiction or power and lays down special form of
procedure prescribed therein for governing the cases where the two learned
Judges forming the Division Bench of the High Court differed on a question of
law or fact. Under such circumstances Clause 36 of the Letters Patent laying
down the special procedure for meeting such a contingency was required to be
followed without in any way being impeded or restricted or being cut across by
the procedural requirements laid down by O.XLVII R.6, CPC.
The
said provision on its own would apply to those courts which were governed
strictly by the procedure of Code of Civil Procedure and had no provision of
Letters Patent Charter to fall back upon. In other words charter High Courts
governed by the Letters Patent which were original charter High Courts or which
were the successor High Courts like Gujarat High Court, would be governed by the
special procedure laid down by Clause 36 of the Letters Patent and that would
remain saved by the operation of Section 4 sub- Section (1), CPC noted above.
It is, therefore, not possible to agree with the reasoning of the High Court in
the impugned judgment to the effect that Clause 36 of the letters Patent does
not deal with a situation where there is conflict of decisions between the two
learned Judges of the Bench sitting in review against the earlier judgment of
the Division Bench of the High Court.
However
learned senior counsel for the respondents vehemently contended that Clause 37
of the same Letters patent directs that the High Court will be guided by the
Civil Procedure Code in such contingencies and in exercise of the said power
available to the High Court under Clause 37 of the Letters Patent read with
Sections 122 and 129 of CPC Gujarat High Court had framed rules which would
govern the present controversy. Clause 37 of the Letters Patent reads as under
:
"37.
Regulation of Proceedings.- And we do further ordain that it shall be lawful
for the said to time to make rules and orders for the purpose of regulating all
proceedings in civil cases which may be brought before the said High Court,
including proceedings in its Admiralty, Vice-Admiralty, intestate, and
matrimonial jurisdiction respective : Provided always that the said High Court
shall be guided in making such rules and orders as far as possible by the
provisions of the Code of Civil Procedure, being an Act passed by the Governor
General in Council, and being Act No.VIII of 1859, and the provisions of any
law which has been made amending or altering the same by competent legislative
authority for India." It is true that in exercise of the powers vested in
the High Court under Clause 37 rules have been framed by the High Court for
governing the procedure in matters dealt with by the High Court in exercise of
its diverse jurisdiction.
Said
rule making power also flows from the provisions of Sections 122 and 129 of
CPC. However a mere look at Section 129, CPC shows that the rules framed by the
High Court cannot be inconsistent with the Letters Patent. Said Section 129
reads as under :
"129.
Power of High Courts to make rules as to their original civil procedure.-
Notwithstanding anything in this Code, any High Court, not being the Court of a
Judicial Commissioner, may make such rules not inconsistent with the Letters
Patent or order or other law establishing it to regulate its own procedure in
the exercise of its original civil jurisdiction as it shall think fit, and
nothing herein contained shall affect the validity of any such rules in force
at the commencement of this Code." Keeping in view the aforesaid statutory
scheme we have to consider the scope and ambit of Rule 186 framed by the High
Court in this connection and on which strong reliance was placed by learned
senior counsel for the respondents.
Rule
186 reads as under :
"186.
Procedure in case of Difference of Opinion between Judges.- In case of
difference of opinion between the Judges composing the Division Bench the point
of difference shall be decided in accordance with the procedure referred to in
Section 98 of the Civil Procedure Code." A more look at the said rule
shows that, amongst others, in the petitions under Article 226 decided by a
Division Bench of two learned Judges of the High Court if a difference of
opinion arises between them the procedure laid down by Section 98, CPC has to
be followed. We may, therefore, turn to Section 98, CPC. it reads as under :
"98.
Decision where appeal heard by two or more Judges.-(1) where an appeal is heard
by a Bench of two or more Judges, the appeal shall be decided in accordance
with the opinion of such Judges or of the majority (if any) of such Judges.
(2)
Where there is no such majority which concurs in a judgment varying or
reversing the decree appealed from, such decree shall be confirmed:
Provided
that where the Bench hearing the appeal is composed of two or other even number
of Judges belonging to a Court consisting of more Judges than those
constituting the Bench and the Judges composing the Bench differ in opinion on
a point of law, they may state the point of law upon which they differ and the
appeal shall then be heard upon that point only be one or more of the other
Judges, and such point shall be decided according to the opinion of the
majority (if any) of the Judges who have heard the appeal, including those who
first heard it.
(3)
Nothing in this section shall be deemed to alter or otherwise affect any
provision of the Letters Patent of any High Court." A conjoint reading of
Rule 186 of the Gujarat High Court Rules and Section 98 of the CPC shows that
is the procedure of Section 98, CPC which gets telescoped into Rule 186 of the
Gujarat High Court Rules for deciding as to how the decisions of a Bench of two
or more learned Judges disposing of the writ petitions covered by the sweep of
these provisions have to be processed. Shri Sorabjee, learned senior counsel
for respondent no.6 was right when he contended that Rules 186 refers to the procedure
of Section 98, CPC and does not import the provision thereof.
Ipsissimis
verbis. Let us, therefore, turn to the procedural scheme envisaged by Section
98, CPC. Section 98 (1) of CPC read with Rule 186 of the Gujarat High Court
Rules framed by the High discussed earlier, would include review petition
arising therefrom, is head by a Bench of two or more Judges the said petition
has to be decided in accordance with the opinion of such Judges or the majority
thereof. Upto this stage, Section 98 (1) does not conflict with any other
provision of Letters Patent. Then follows sub-Section (2) of Section 98, CPC
with lays down that where there is no such majority which concurs in a judgment
varying or reversing the decree appealed from, such decree shall be confirmed.
By its very language sub-Section (2) of Section 98, CPC cannot apply to the
decision rendered by a Division Bench of the High Courts in exercise of its
original civil jurisdiction as is the present case. Reason is obvious. There is
no question of confirming decree of the lower court when the Division Bench of
the High Court decides original proceedings under Article 226 of the
Constitution. Its decision in the writ petition partakes the character of the
decision of the Court of first instance. Thereby the High Court decides for the
first time the questions in controversy between the parties and adjudicates
upon them as a Court of first instance. Consequently on the very language of
sub-Section (2) of Section 98, CPC the said provision cannot get attracted to
cases where a Division Bench of the High Court decides writ petition under
Article 226 of the Constitution of India in exercise of its original civil
jurisdiction or for that matter review petition invoking the exercise of the
very same original jurisdiction as seen earlier. Consequently the proviso to
sub-Section (2) of Section 98, CPC also would remain out of picture in such
cases. Under these circumstances there would remain only the residuary
provision of sub-Section (3) of Section 98, CPC which clearly enjoins that
nothing in the said Sections shall be deemed to alter or otherwise affect any
provision of Letters Patent of any High Court. This would necessarily lead to a
back reference to Clause 36 of the Letters Patent which would remain the solitary
provision applicable in the field for resolving the procedural controversy in
such a case. In short when an application to get reviewed the decision of a
Division Bench of the High Court rendered in exercise of its original civil
jurisdiction in a petition under Article 226 of the Constitution of India, is
moved in the High Court and if there is conflict of decisions between the two
Judges constituting the Review Bench, it is only Clause 36 of the Letters
Patent which would govern the said controversy. Neither O.XLVII R.6, CPC nor
Section 98 (2), CPC would apply to such eventualities arising in these review
proceedings. Under these circumstances it has to be held even in the light of
Rule 186 read with Section 98 of the CPC that if the Division Bench of two
learned Judges hearing the review petition arising out of proceedings earlier
decided under Article 226 of the Constitution of India, differ and do not come
to an agreed conclusion the procedure laid down by Clause 36 of the Letters
patent which would govern the said controversy.
Neither
O.XlVII R.6, CPC nor Section 98(2), CPC would apply to such eventualities
arising in these review proceedings.
Under
these circumstance it has to be held even in the light of Rule 186 read with
Section 98 of the CPC that if the Division Bench of two learned Judges hearing
the review petition arising out of proceedings earlier decided under Article
226 of the Constitution of India, differ and do not come to an agreed
conclusion the procedure laid down by Clause 36 of the Letters Patent would be
the only procedure that has to be followed and it cannot be whittled down or
cut short by any other provision to the contrary as found in the CPC. We have
already seen earlier that there is no such contrary procedure laid down by the
CPC but even if it were so such contrary procedure seeking to whittle down at
the wide sweep of Clause 36 of the Letters Patent has to give way to the
provisions of the charter in view of the express saving provision of Section
4(1) of CPC read with Section 129 thereof. In this connection we may profitably
refer to a decision of the Privy Council in these case of Bhaidas Shivdas V. Bai
Gulba and another AIR 1921 Privy Council 6.
The
question before the privy Council was whether Clause 36 of the Letters Patent
of Bombay could be said to be controlled by Section 98 of the CPC. In 1921 when
Their Lordships of the Privy Council were considering the question, Clause 36
of the Letters Patent applicable to the Bombay High Court made a special
provision regarding the procedure to be followed in case the Bench hearing the
appeal was composed of two or more Judges and the Judges were divided in
opinion as to the decision to be given on any point. In such a case the
decision was to be rendered in the light of the opinion of the majority of the
Judges. But if the Judges were equally divided, opinion of the senior Judge was
to prevail. Now that clause was directly in conflict with the provisions of
Section 98, CPC, as it then was on the Statute Book, which, contemplated that
in case of such a difference of opinion between the two learned Judges
constituting the Bench the point of law was to be stated arising from such
difference of opinion for decision of the third learned Judge. Their Lordships
of the Privy Council placing reliance on Section 4 sub-Section (1), CPC held
that Clause 36 of the Letters Patent was not controlled by Section 98 of the
CPC and, therefore, it was the clause in the Letters Patent which would govern
the procedure to be followed in such a case and not the procedure laid down by
Section 98, CPC. It is of course true that rule analogous to Rule 186 of the
Rules framed by the High Court of Gujarat was not on the anvil of consideration
of the Privy Council.
But
the Privy Council considered Section 44 of the Letters Patent making an express
provision that the Letters patent would be subject to legislative powers of
Governor General in Council. Despite that provision the aforesaid decision was
rendered by the Privy Council. It will be profitable to extract the observation
of Lord Buckmaster who gave unanimous opinion on behalf of the Privy Council in
the following terms :
"That
contention depends upon the construction of the Letters Patent of Bombay, under
which the Court was constituted, and the Code of Civil Procedure, 1908. By
Section 36 of the Letters Patent it is provided that if the High Court is
sitting in a division composed of two or more Judges, and the Judges are
divided in opinion as to the decision to be given on any point, the decision shall
agree with the opinion of the majority of the Judges: but if the Judges are
equally divided, the opinion of the senior Judge shall prevail.
In
this case it is quite clear. There were two Judges sitting: the senior Judge
was the Chief Justice: there was an equal division of opinion; and under
Section 36, in consequence, the plaintiff was entitled to a decree in this
favor.
It is,
however, urged on behalf of the respondents that the procedure in Section 36 is
modified by the Code of Civil Procedure, of the Letters Patent there is an
express subject to the legislative powers of the Governor-General in Council.
There
are two sections in the Code of Civil Procedure which are relevant to this
dispute. The one is section 4 and the other is section 98. Section 98 appears
to have been the section under which the Judges acted. That section provides:-
`That where the Bench hearing the appeal is composed to two Judges belonging to
a Court consisting of more than two Judges, and the Judges composing the Bench
differ in opinion on a point of law, they may state the point of law upon which
they differ, and the appeal shall then be heard upon that point only by one or
more of the other Judges, and such point shall be decided according to the
opinion of the majority (if any) of the Judges who have heard the appeal,
including those who first heard it.' It is quite plain that those provisions
create a totally distinct method of procedure in the event of difference
between two judges from that which was laid down by section 36. Under section
36 of the Letters Patent the judgment of the Judge who was the senior Judge
would be the judgment which the parties before the Court would have a right to
obtain; under section 98, the judgment to which they are entitled is the
judgment of the majority of all the Judges who have heard the appeal; and this
case shows that those two provisions might produce a totally different result.
If, therefore, section 98 controls section 36 that the proper procedure had
been followed, and that the appellant head no cause of complaint. But by
section 4 of the Code of Civil Procedure it is also provided that:- `In the
absence of any specific provision to the contrary, nothing in this Code shall
be deemed to limit or otherwise affect any special or local law now in force,
or any special jurisdiction or power conferred, or any special from of
procedure prescribed by or under any other law for the time being in force.'
There is no specific provision in section 98, and there is a special form of
procedure which was already prescribed. That form of procedure section 98 does
not, in their Lordships' opinion, affect....." Moreover the fact remains
that by the enactment of Section 98(3), CPC whatever doubt earlier remained in
connection with this controversy was put at rest by the Legislature and the
view propounded by the Privy Council got statutory recognition by the amendment
of Section 98 and the insertion of sub-Section (3) thereof.
One
contention of learned Solicitor General appearing for respondent no.4 in connection
with the applicability of Rule 186 of the Gujarat High Court Rules is required
to be noted at this stage. He submitted that by the express language of Rule
186 of the Gujarat High Court Rules the procedural gamut on difference of
opinion between two learned Judges composing the Division Bench is required to
be the same as referred to in Section 98 of CPC which is a complete Code in
itself and consequently the procedure laid down under Clause 36 of the Letters
Patent would get excluded and if again the same procedure under Clause 36 is to
be pressed in service via Section 98 sub-Section (3), CPC the very Rule 186
would be rendered options or at least a situation conundrum we would be moving
in a circle. It is not possible to agree with this contention. The reason is
obvious. Rule 186 is found in Chapter XVII of the Gujarat High Court Rules
which deals with `Application under Article 226, 227 and 228 of the
Constitution and Rules for issue of writs and Orders under the said Articles'-
So far as proceedings under Article 226 of the Constitution of India are
concerned they are original in nature. As we have seen earlier qua them Section
98(2), CPC would on its own language Article, the decisions rendered by
subordinate Tribunals. In these petitions if the Division Bench of the High
Court by majority does not concur in varying or reversing the subordinate
Tribunal's judgment and order which is brought in challenge, then Section
98(2), CPC may get attracted for confirming such judgment of the lower Tribunal
and in such a situation if the learned Judges composing the Bench are equally
divided on a point of law then the procedure laid down by the proviso to
sub-Section (2) of Section 98, CPC can be followed. It is well settled that
proceedings under Article 227 are not by way of appeal before the High Court
and, therefore, the High Court under Article 227 of the Constitution can
interfere only on questions of law and that too involving patent errors of law.
When there is a difference of opinion between the two learned Judges of the
Division Bench hearing the petition under Article 227 on such patent questions
of law, then they can refer the points of law on which they differ for
consideration of the third learned Judges as laid down by the proviso to
sub-Section (2) of Section 98, CPC.
Consequently
it cannot be said that Rule 186 would be rendered totally nugatory or options
if it is held that procedure laid down by Section 98 sub-Section (2), CPC
cannot be pressed in service in proceedings emanating from petition under
Article 226 of the Constitution of India which are original in nature and
wherein no order of subordinate authority is brought in challenge. But even
that apart, mandate of Rule 186 itself contemplates applicability of procedure
of Section 98, CPC which enables invocation of the procedure of Clause 36 of
the Letters Patent via Section 98(3), CPC itself in cases where Section 98(2)
does not apply as in the present case. Section 98(3), CPC, as seen earlier,
clearly indicates that Section 98 will not affect the substantive provisions of
the Letters Patent. Clause 36 of the Letters Patent is a substantive provision
laying down the procedure to be followed in contingencies contemplated by the
said Clause. That being the paramount clause will necessarily apply to all the
proceeding decided by the High Court. As observed by us earlier the said result
will follow apart from the operation of Section 98 sub-Section (3), CPC also
from the combined operation of the saving clause of Section 4(1), CPC and
Section 129 thereof.
Consequently
it is not possible to agree with the conclusion to which the High Court reached
that because the two learned Judges of the High Court deciding the review
petition did not agree and gave contradictory opinion regarding the merits of
the review petition the decision of the review petition had to be as laid down
by O.XLVI R.6, CPC. Consequently, the said decision of the High Court
dismissing the Miscellaneous Civil Application No.1939 of 1995, rendered on
25th October 1996 cannot be sustained and will have to be set aside. As a
logical corollary to this decision of ours Miscellaneous Civil Application
No.1939 of 1995 is directed to be restored to the file of the High Court of
Gujarat with a direction that in view of the conflicting opinions expressed by
the Bench of the High Court consisting of H.L. Gokhale and M.S. Shah, JJ., who
earlier heard the review petition, the questions arising for decision in the
review proceedings on which the aforesaid two learned Judges either differed in
their opinions or did not concur will have to be referred for opinion of the
third learned Judge of the High Court as per Clause 36 of the Letters Patent.
For that purpose the remanded review petition will have to be placed before the
Bench of H.L.
Gokhale
and M.S. Shah, JJ. to enable them to state the points of their difference as
per Clause 36 of the Letters patent for being placed for consideration of the
third learned Judge. The Hon'ble Chief Justice of the High Court is requested
to assign the review petition to the appropriate Bench and thereafter to the
third learned Single Judge for deciding these remanded proceedings as per
Clause 36 of the Letters Patent at the earliest. it is obvious that the third
learned Judge will be entitled to consider all the aforesaid questions arising
out of the difference of opinion between the two learned Judges, whether they
are questions of fact or questions of law, and the review petition ultimately
will be decided in the light of the decision of the third learned Judge, as per
the procedure laid down by Clause 36 of the Letters Patent. It is obvious that
if the ultimate decision in the review proceedings, as remanded as per this
order of ours, goes against the appellant it will be open to the appellant to
challenge the said final decision in accordance with law.
We may
also mention at this stage one development which took place during the pendency
of these proceedings in this Court. By an order dated 17th June 1997 a Division
Bench of the High Court consisting of B.C. Patel and M.S. Shah, JJ.
passed
an order in Miscellaneous Civil Application No.178 of 1997 in Special Civil
Application No.770 of 1995. That decision is based on the main judgment in
Special Civil Application No.770 of 1995 which is its turn is sought to be got
reviewed by the appellant in the present proceedings which are now directed by
us to be remanded to the High Court for a fresh decision. Consequently the
observations made by the aforesaid Bench of the High Court in its order dated
17th June 1997 against the appellant will obviously abide by the final decision
in the review petition to be rendered pursuant to the present order of ours by
the High Court and if the remanded review proceedings get decided against the
appellant the appellant will also be at liberty to challenge along with the
said decision in the review proceedings, also the decision rendered against the
appellant by the High Court by its order dated 17th June 1997. It goes without
saying that if and when June future challenges are levelled by the appellant
against any adverse decision in the remanded review proceedings also against
the order of the High Court dated 17th June 1997 the said challenges will have
to be processed and decided in accordance with law. We make to clear that we
make no observations on the merits of the controversy between the parties,
emanating from these proceedings and all the contentions raised by the
contesting parties before us in the present proceedings on merits of the
controversy are kept open. They will remain untouched one way or the other by
the present order of remand.
So far
as the delinked SLP arising out of the main judgment of the High Court dated
5th and 7th August 1995 in Special Civil Application No.770 of 1995 is
concerned, the only question which would survive for consideration as submitted
by learned senior counsel for the appellant pertains to the liability of the
appellant-company to contribute pro rata towards the expenses to be incurred by
the State of Gujarat, G.I.D.C. and A.M.C. in laying separate/necessary
pipelines and/or drains to carry the treated industrial effluent to Pirana for
mixing the same with the treated sewage before discharge into the river. The
said direction issued in general is found in paragraph 135(B) (ii) of the
judgment. It was submitted that the said question will remain a solitary
question for consideration of this Court in the SLP against the main judgment
which has to await the decision in the remanded review proceedings. If the
remanded review proceedings ultimately result in favour of the appellant and it
is held by majority of the learned Judges deciding the remanded review petition
that the appellant is not a polluting unit at all then the aforesaid solitary
question in appellant's SLP may not survive for consideration of this Court.
But if on the other hand the remanded review petition gets dismissed by the
majority decision subject to the appellant challenging the said decision before
this Court the aforesaid solitary question will arise for consideration in the delinked
SLP of the appellant against the main judgment.
The
learned senior counsel for the respondents on the other hand contended that if
the ultimate decision in the remanded review petition is against the appellant,
the aforesaid solitary question would not survive for consideration for two
reasons - (1) the SLP against the main judgment which was filed by the
appellant earlier is already withdraw by the appellant; and (ii) in the said
withdrawn SLP at an earlier stage this Court relegated the appellant for redressing
its grievances, if any, by filing appropriate review petition and when the
appellant filed the review petition it confined its challenge to two directions
as found in the main judgment, namely, paragraphs 135 (C) (xii) and 135 (A) (I)
(v) of the operative part of the said judgment as mentioned in paragraph 22 to
25 of the review petition moved before the High Court pursuant to the liberty
given by this Court in the aforesaid SLP (C) No.24916 of 1995 by its order
dated 17th November 1995. It was, therefore, contended by the learned senior
counsel for the respondents that the appellant in its wisdom confined its
attack against the impugned common main judgment only on the basis of the
aforesaid two contentions. It has, therefore, to be held that by necessary
implication it gave up its earlier challenge to the directions contained in
paragraph 135(B) (ii) of the main judgment which deals with the pro rata
contribution by the polluting units towards the cost of laying the pipelines
and consequently the fresh SLP raising the very same challenge against the main
judgment in Special Civil Application No.770 of 1995 does not survive and,
therefore, the delinked SLP should be summarily rejected.
Learned
senior counsel for the appellant on the other hand contended that even if
remanded review petition is rejected this solitary contention will survive for
consideration as according to the appellant directions contained in the main
judgment at paragraph 135(B) will not apply and similarly directions contained
in paragraph 135(A) (I) (ii) will also not apply as the appellant discharge
more than 25000 litres of water per day but they have already got primary and
secondary treatment plants since long. As we have remanded the review
proceedings for a fresh consideration by the third learned Judge of the High
Court, in our view, it will be too premature to consider the delinked SLP on
the aforesaid solitary contention which remains to be considered in the SLP
against the main judgment at this stage. Hence keeping all the contentions of
the contesting parties open, centering round the aforesaid solitary contention
on which the said SLP against the main judgment is sought to be pressed by the
appellant at a later stage, we have thought it fit to be delink the said SLP
awaiting the decision in the remanded proceedings.
As the
remanded review petition pertains to proceedings decided in 1995 and as the SLP
filed by the appellant against the said judgment is kept pending by us awaiting
the decision in the remanded review proceedings, we request the High Court to
dispose review proceedings, we request the High Court to dispose of the
remanded review proceedings at is earliest convenience and preferably within a
period of eight weeks from the receipt of a copy of this order at its end.
Before
parting with these appeals we may note that on the suggestion of the Court, the
appellant's counsel on instructions agreed to deposit with respondents
concerned Rs.50 lakhs without prejudice to appellant's rights and contentions
in the delinked SLP and also the remanded review proceedings. This good gesture
was made with a view to seeing that proper pipelines are laid in the
surrounding area of the industrial estate where other admitted polluting
industries are operating. This deposits will be considered to be a benevolent
act on the part of the appellant, if it ultimately succeeds in these
litigations. We note this fair stand of the appellant and direct it to deposit
Rs.50 lakhs as agreed to before us, with respondents concerned for being utilised
for the purposes indicated in the main judgment in Special Civil Application
No.770 of 1995.
In the
result these appeals are allowed to the aforesaid extent. In the facts and
circumstances of the case there will be no order as to costs.
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