Bajaj Hindustan Sugar & Industries Limited Vs. Balrampur Chini Mills Ltd. & Ors
 Insc 299 (19 March 2007)
Dr.AR. Lakshmanan & Altamas Kabir
(Arising out of S.L.P. (c) No.1983 OF 2007) WITH
CIVIL APPEAL NO. /2007 (Arising out of S.L.P. (c) No. 3855 OF 2007) M/s. Balrampur
Chini Mills Ltd. & Anr. ..Appellants Versus Union of India & Ors.
..Respondents ALTAMAS KABIR, J.
Leave granted in both the special leave petitions.
These two civil appeals have been taken up one after the other since both
arise out of the same proceedings. While Civil Appeal arising out of SLP (C)
No. 1983 of 2007 was directed against the interim order passed in the
proceedings, the Civil Appeal arising out of SLP (C) No. 3855 of 2007 was filed
against the final order. The interim order from which the first appeal was
filed has since merged with the final order and has therefore been rendered infructuous.
Civil Appeal arising out of SLP (C) No. 1983 of 2007 is therefore dismissed
Civil Appeal arising out of SLP (C) No. 3855 of 2007 has been filed by M/s. Balrampur
Chini Mills Ltd. against the order passed by the High Court of Uttar Pradesh, Lucknow
Bench, in Civil Revision Petition No. 16 of 2007, allowing the revision and
granting final relief in favour of the revisioner petitioner in the High Court.
In order to appreciate the order passed by the High Court, it is necessary
to set out some of the facts leading to the filing of the said revision
The appellant before us is a registered company engaged in the manufacture
of sugar and has various industrial undertakings at different sites in Uttar
Pradesh. On 31.08.1998, a press note was issued by the Industries' Ministry
requiring compulsory licensing and it was also provided that new sugar
factories, when established, would have to maintain a minimum distance of 15 Kms.
from an existing sugar mill.
Alleging that M/s. Bajaj Hindustan Sugar & Industries Limited (formerly
known as the Pratappur Sugar & Industries Limited), the respondent No. 5 in
this proceeding, was setting up a sugar mill at Itai Maida, which was within 15
Kms. of the proposed unit of the appellant-company at Kalu Bankat, the
appellant filed a suit in the Court of Civil Judge (Senior Division) Balrampur,
being No. 2 of 2006, against the Union of India and its authorities and M/s. Bajaj
Hindustan Sugar &
Industries Limited inter alia for a decree declaring that on filing of the
Performance Bank Guarantee, the Kalu Bankat unit of the appellant-company had
become a new sugar factory, as such, no proposed factory could be permitted
within 15 Kms. of the proposed unit of the appellant-company at Kalu Bankat.
Since the suit was filed against the Union of India, an application was also
made under Section 80 (2) of the Code of Civil Procedure (hereinafter referred
to as 'the Code', for short) for grant of leave to proceed against the
Government and its authorities without service of notice under Section 80 (1)
of the said Code. It was prayed that compliance as envisaged under Section 80
(2) of the Code, be dispensed with on account of the urgency involved. The said
application was taken up for consideration by the learned Civil Judge on
Holding that on a perusal of the plaint, there was no urgency in the matter,
which warranted immediate relief, the leave prayed for by the appellant was not
granted and the appellant was directed to ensure compliance of Section 80 (1)
of the Code and thereafter to place the suit. The plaint was accordingly
returned to the appellant (plaintiff) as per law.
Aggrieved by the said order of the learned Civil Judge, the appellants
herein filed Civil Revision No. 16 of 2007 in the Allahabad High Court, Lucknow
Bench. In the revision, apart from praying for the order dated 18.01.2007 of
the learned Civil Judge to be set aside, the appellants also prayed for a
direction from the learned Civil Judge to register the case (emphasis added)
and to hear the application filed by the appellants on merits and till the said
application was decided, the respondents be required not to take any steps
which could permit the respondent Nos. 5 and 6 to set up their industrial
undertaking at Itai Maida and also to restrain the others from continuing their
developmental activities from their site at the said location.
Initially, while admitting the revision petition, the High Court directed
the respondent Nos. 5 and 6 to maintain status quo and they were restrained
from continuing with any developmental or construction activities at Itai
Maida. As indicated hereinbefore, the first civil appeal was directed against
the said interim order.
After the revision petition had been admitted and the interim order had been
passed, the respondent Nos. 5 and 6 filed an application for vacation of the
interim order passed on 25.01.2007. Inasmuch as, a counter affidavit had also
been filed by the said respondents in the main revision petition, both the
revision petition as well as the application for vacating the interim order,
were taken up for hearing together for final disposal on 20.01.2007 with the
consent of the counsel for both the parties. After a contested hearing, the
High Court decided not to enter into the merits of the case and passed the
"The trial court, the Civil Judge (Senior Division), Balrampur is
directed to reconsider the matter. The revisionists may present the application
seeking interim relief before the competent court of law and put forth their
respective versions and place the legal precedents.
Since the actions of the State Government and the Government of India are
also involved in this civil revision, let their version may also be taken into
account. It may be open for the parties to make all these submissions before
the trial court, competent court and the same may be appreciated and considered
by the competent court. It is expected from the competent court to pass a
reasoned and speaking order or orders after judicially scrutinizing the matter
in accordance with law. However, in the interest of justice, it is made clear
that the civil court shall adjudicate the matter with an open and independent
mind. It shall be free to pass any order in accordance with law following
relevant provisions of C.P.C., Evidence Act and other laws without being
influenced by this order or the last interim order passed by this Court on
With the above observations and directions, the civil revision is finally
disposed of. The interim order granted by this Court on 25.01.2005 is
It is against the said order of the High Court by which the interim order was
vacated and the Civil Revision was finally disposed of that the second civil
appeal has been filed.
Appearing in support of the appeal, Mr. Harish Salve, Senior Advocate, and
Mr. Rohington Nariman, Senior Advocate, submitted that after the order passed
by the High Court directing the learned trial Judge to hear out the appellant's
application for interim relief, the learned Civil Judge without doing so had in
fact by his order dated 23.02.2007 directed that the appellant's application
under Section 80 (2) of the Code be re-heard. Mr. Salve submitted that the
learned Civil Judge should have decided the appellant's application for interim
relief without re-opening the question of grant of leave under Section 80 (2)
of the Code. According to Mr. Salve, by directing the learned Trial Judge to
hear out the appellant's application for interim relief, it had dispensed with
the requirement of Section 80 (2) of the Code or had impliedly allowed the
appellant's application for leave. It was, therefore, no longer open to the
learned Trial Judge to direct re-hearing of the appellant's application under
Section 80 (2) of the Code instead of deciding the application for interim
relief on its merits.
Mr. Salve urged that even if the suit could not be registered as far as the
Union of India and its authorities were concerned, the same could have been
registered against the private respondents instead of the plaint being returned
to the plaintiff.
On merits, Mr. Salve, contended that since the appellants had filed an Industrial
Entrepreneurship Memorandum (IEM) for Kalu Bankat as well, the project of the
respondent No. 5 to set up a sugar mill at Itai Maida was in contravention of
the rules relating to maintenance of a minimum distance of 15 Kms. between two
units. Mr. Salve submitted that on such score also, the respondent Nos. 5 and 6
were not entitled to continue with the construction work at Itai Maida.
Mr. Salve urged that having granted an interim order on a detailed
discussion of the facts at the time of admission of the revision, the High
Court erred in vacating such order at the time of final hearing and to direct
the trial court to reconsider the matter. However, according to Mr. Salve, it
was not only the High Court which committed an error in remitting the matter to
the trial Judge for a fresh decision on the self-same matter, but even the
trial Judge misunderstood the scope of the order passed by the High Court in
reconsidering not the application for interim order but the application for
grant of leave under Section 80 (2) of the Code. Mr. Salve urged that both the
orders of the High Court as well as that of the trial Judge were liable to be
set aside with a further direction to hear out the application for interim
Mr. Venugopal and Mr. Mukul Rohtagi along with Mr.
Rajiv Dutta, Senior Advocates, strongly opposed Mr. Salve's submissions and
urged that neither the High Court nor the learned trial Judge had committed any
error and/or illegality which required any correction in the instant special
leave petition. Mr. Venugopal submitted that upon a reconsideration of the
matter, the High Court, at the time of final hearing of the revision petition
and the application for vacating the interim order, concluded that the trial
Judge should consider the grant of interim order in the suit and accordingly
directed the trial Judge to reconsider the matter.
Reference was made to the order of the High Court impugned in the appeal
where it had been recorded that the learned counsel of both parties had agreed
that the order of the trial court dated 18th January, 2007, was a non-reasoned
and non-speaking order and in that factual matrix the High Court had remitted
the matter to the trial court for reconsidering the matter. In the process, the
revisionists were given the liberty to also place their application for interim
It was urged that the matter relating to grant of leave had been left to be
decided by the trial court.
On the merits, as argued by Mr. Salve, Mr. Venugopal submitted that, in any
event, the case made out by the appellants had no foundation, inasmuch as, the
appellants had ultimately decided as would be evident from their letter dated
9th August, 2005, not to proceed with the proposal to set up a separate sugar
unit at Kalu Bankat, which was within 15 Kms.
of their establishment at Datauli. Mr. Venugopal urged that the High Court
had not committed any jurisdictional error which warranted the interference of
this Court in this Appeal.
Mr. Shanti Bhushan, learned senior advocate, who appeared for the appellant
at a later stage of the proceedings, urged that when the original court where
the suit was to be filed had refused leave under Section 80 (2) of the Code and
the plaint was returned, the plaintiff was entitled to invoke the revisional
jurisdiction of the High Court under Section 115 of the Code of Civil
Procedure, as amended in its application to Uttar Pradesh.
He then urged that when the trial court had refused to grant leave, it was
always open to the revisional court to grant such leave provided it was
satisfied that such a case had been made out. According to him, the language of
Section 80 (2) of the Code did not restrict its application to the court of
original jurisdiction alone.
Mr. Shanti Bhushan also urged that leave could also be said to have been
granted by implication when no express language was used in that behalf. In
support of his contention, Mr. Shanti Bhushan relied on a decision of the
Calcutta High Court in Smt. Janak Rani Devi vs. Chandrabati Devi & Anr.,
reported in A.I.R. 2002, Calcutta, page 11, wherein it was observed, inter alia
as follows;- "................However, my reading of sub- section (2) of
Section 80 of the Code of Civil Procedure is that no separate application and
an express order are the essential requisites; such leave could be presumed;
the leave need not be granted by passing a formal order. The leave under
sub-section (2) of Section 80 could be implied and could be granted from what
the Court does."
Mr. Shanti Bhushan also referred to two other decisions of the Delhi High
Court and Kerala High Court reported in 111 (2004) Delhi Law Times, page 33 and
AIR 1989 (Kerala) page 276, where similar views have been expressed.
Mr. Shanti Bhushan submitted that when the High Court remitted the matter to
the trial court for a decision on the interim relief as well, it could be
presumed that leave to file the suit under Section 80 (2) of the Code had
impliedly been granted.
Mr. Shanti Bhushan lastly submitted that the superior courts were always
within their jurisdiction to vary or reverse the order passed by the lower
courts in exercise of the powers vested in them in revision or in appeal.
According to learned counsel, when leave had been refused by the trial court
under Section 80 (2) of the Code it was always open to the High Court to grant
such leave under its revisional jurisdiction.
A few decisions in this regard with reference to Order XXXIII Rule 5 of the
Code was relied upon by Mr. Shanti Bhushan wherein the High Court in revisional
jurisdiction granted leave to the plaintiff to file his suit as forma pauperis
even though such prayer had been refused by the trial court.
The same are as follows:- 1. AIR 1952 Allahabad page 582 S.E. Orde vs.
Mrs.T.C. Deacon & Anr.
2. AIR 1955 Patna, page 257 - Raghuraj Singh &
Anr. vs. Mst. Sitapati Kuer & Ors. and
3. AIR 1975 Gujarat, page 94 Rambhai Punjabhai Vinchiya vs. The Gujarat
State Road Transport Corporation, Ahmedabad & Anr.
Mr. Shanti Bhushan submitted that by the same principle it must be held that
the High Court had the jurisdiction to grant leave under Section 80 (2) of the
Code, once such leave was refused by the court of original jurisdiction.
Although, the order passed by the learned trial Judge, upon the matter being
remitted by the High Court, is not the subject matter of the special leave
petition, it has been brought to the notice of this Court that the matter was
directed to be re- heard by the trial Judge on the question of grant of leave
under Section 80 (2) of the Code and the said application was fixed by the
learned trial Judge for filing of objections and disposal.
We have carefully considered the submissions made on behalf of the
respective parties and we fail to see how it can be contended that the High
Court had acted without jurisdiction or in excess of jurisdiction in vacating
the interim order and directing the learned trial Judge to reconsider the
matter. The High Court merely remitted the matter to the learned trial Judge to
re-decide the entire matter on the concession that the impugned order passed by
the trial court on 18th January, 2007, was a non-reasoned and non-speaking
order. The said concession was obviously with regard to the rejection of the
plaintiff's prayer for grant of leave under Section 80 (2) of the Code.
There can be no dispute that once the plaint was returned, there was no suit
pending before the trial Judge.
Without the suit being registered the question of considering the
application for interim orders also did not arise. The provisions of Section 80
(1) of the Code make it very clear that except in the manner provided in
sub-Section (2), no suit can be instituted against the Government and its
authorities in respect of any act purported to have been done by such authority
in its official capacity until the expiration of two months after notice in
writing has been delivered to or left at the office of the authorities named
therein. Admittedly, the defendant Nos. 1-4 in the suit, were the Union of
India and its authorities and without notice under Section 80 (1) of the Code,
the suit could not have been instituted against them without compliance with
the provisions of Section 80 (2) of the Code. The appellants were fully aware
of the said provision and accordingly, an application was made under Section 80
(2) of the Code for grant of such leave, which was refused. Section 80(2)
provides as follows:- "(2) A suit to obtain an urgent or immediate relief
against the Government (including the Government of the State of Jammu and
Kashmir) or any public officer in respect of any act purporting to be done by
such public officer in his official capacity, may be instituted, with the leave
of the Court, without serving any notice as required by sub-section (1); but
the Court shall not grant relief in the suit, whether interim or otherwise,
except after giving to the Government or public officer, as the case may be, a
reasonable opportunity of showing cause in respect of the relief prayed for in
Provided that the Court shall, if it is satisfied, after hearing the parties,
that no urgent or immediate relief need be granted in the suit, return the
plaint for presentation to it after complying with the requirements of
From the above, it would be evident that a suit may be filed against the
Government or a public officer without serving notice as required by
sub-section (1) with the leave of the Court.
When such leave is refused, the question of institution of the suit does not
arise and accordingly, no interim relief could also be granted at that stage.
The learned trial Judge does not also appear to have committed any
illegality in taking up the petitioners' application for grant of leave once
The decisions cited by Mr. Shanti Bhushan on the question of implied leave
was countered by Mr. Mukul Rohatgi with the decision of this Court in State of
A.P. & Ors. vs. M/s.
Pioneer Builders, A.P., reported in 2006 (9) Scale page 520, wherein in
paragraph 16 it has been observed as follows:- "Thus, from a conjoint
reading of sub- sections (1) and ( 2) of Section 80, the legislative intent is
clear, namely, service of notice under sub-section (1) is imperative except
where urgent and immediate relief is to be granted by the Court, in which case
a suit against the Government or a public officer may be instituted, but with
the leave of the Court. Leave of the Court is a condition precedent. Such leave
must precede the institution of a suit without serving notice. Even though
Section 80 (2) does not specify how the leave is to be sought for or given yet
the order granting leave must indicate the ground(s) pleaded and application of
mind thereon. A restriction on the exercise of power by the Court has been
imposed, namely, the Court cannot grant relief, whether interim or otherwise,
except after giving the Government or a public officer a reasonable opportunity
of showing cause in respect of relief prayed for in the suit."
The law, in our view, has been succinctly expressed in the aforesaid
judgment. The language of Section 80 (2) of the Code leads us to hold that if
leave is refused by the original court, it is open to the superior courts to
grant such leave as otherwise in an emergent situation a litigant may be left
without remedy once such leave is refused and he is required to wait out the
statutory period of two months after giving notice.
However, in the instant case, the High Court has not granted such leave
while disposing of the revision filed by the appellant-company and the trial
court was bound to reconsider the question of grant of leave in the light of
the observations made by the High Court.
In such circumstances, we see no reason to interfere with the order passed
by the High Court, impugned in this appeal and the same is accordingly
The learned trial court is directed to dispose of the plaintiff's
application for grant of leave under Section 80 (2) of the Code within ten days
from the date of the receipt of this order.
There will be no order as to costs.