Case: Reliance Industries Ltd Vs. Pravinbhai Jasbhai Patel and others

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 19952. By consent of learned advocates of parties the appeals were taken up for final hearing. In these appeals by special leave they 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 they 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 outset3. Before coming to the grips of the said question it is necessary to note a few introductory facts leading to the present proceedings4. A public interest litigation petition was moved in 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, Vatva 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. In 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, situated at Naroda, Vatva and Odhav and also some of the textiles units and processing units situated in or nearby Ahmedabad. 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 Honble K. Ramaswamy and B.L. Hansaria, JJ. passed the following order on 17th November, 1995 in the Special Leave Petition of the appellant :"The petitioners specific case set up in this Court is that it has already set up the effluent 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 is not discharging any effluent 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 is 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 that the review petition was required to be allowed as they was not covered by the impugned directions contained in the judgment in the writ petition. Said decision was rendered by Gokhale, J. on various reasons mentioned therein. So far as the other learned Judge M.S. Shah, J., was concerned, he took a contrary view and passed an order of even date and came to the conclusion that the review petition was liable to be dismissed on various grounds which appealed to the learned Judge and as mentioned in his differing judgment. Then arose the moot procedural question as to whether on difference of opinion between the two learned Judges constituting the Review Bench reference was required to be made to the third learned Judge for resolving the conflict or whether the review petition was liable to be dismissed under O. XLVII R. 6,CPC. By their order dated 25th October, 1996 both the learned Judges constituting the Division Bench came to the conclusion that once there was difference of opinion between the two learned Judges constituting the Review Bench, the only course open to them was to dismiss the review petition as provided in O. XLVII R. 6,CPC. As noted earlier, the aforesaid decision in the review petition resulted in Special Leave Petitions moved by they which have culminated into these appeals5. It may be noted at this stage that after the aforesaid decision in the review petition, the appellant sought to withdraw the Special Leave Petition filed by it earlier challenging the main order in the Special Civil Application No. 770 of 1995 decided on 5th/7th 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, 19966. In view of the aforesaid developments, therefore, the main controversy which survives in these appeals centers round the legality of the order of 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.

Reasoning:
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 caseIt 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 nor appellates. 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 thed 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 ofCode of Civil Procedure if they were in any way inconsistent with Clause 36 of the Letters Patent13. 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 ofCPC 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 subSection(3),CPC the very Rule 186 would be rendered otiose or at least a situation would arise where for resolving this procedural 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 `Applications under Articles 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 themSection98(2),CPC would on its own language get out of picture as there would be no occasion for the High Court exercising jurisdiction under Article 226, being required to confirm the decree under challenge if there is no majority which concurs in the judgment sought to be challenged before the High Court. For applicability ofSection98(2) the basic requirement is that the Division Bench of the High Court consisting of two or more learned Judges must be dealing with a case where there is a decision of the Lower Court which is placed for consideration of the Division Bench of the High Court. Consequently Rule 186 which is of general nature cannot get attracted so far as original proceedings under Article 226 are concerned, but this would not render the said Rule otiose as it would still requireSectionCPC to be followed in such a case and that in its turn would attract Clause 36 of the Letters Patent. Thus for petitions under Article 226 of the Constitution of IndiaSection98(1) andSectionCPC can be pressed in service in given contingencies. That apart, Rule 186 will operate in its own vigour so far as decisions of Division Benches of the High Courts dealing with petitions under Articles 227 and 228 are concerned. It is obvious that petitions under Article 227 seek to challenge subject to the limits of jurisdiction of the High Court under that 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 Tribunals judgment and order which is brought in challenge, thenSection98(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 ton (2) ofSection98,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 Judge as laid down by the proviso ton (2) ofSection98,CPC. Consequently it cannot be said that Rule 186 would be rendered totally nugatory or otiose if it is held that procedure laid down bys 98n (2),CPC cannot be pressed in service in proceedings emanating from petitions 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 ofSection98,CPC which enables invocation of the procedure of Clause 36 of the Letters Patent viaSectionCPC itself in cases whereSection98(2) does not apply as in the present case.SectionCPC, as seen earlier, clearly indicates thatSection98 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 proceedings decided by the High Court. As observed by us earlier, the said result will follow apart from the operation ofSection98CPC also from the combined operation of the saving clause ofSection4(1),CPC andSection129 thereof14. 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 opinions regarding the merits of the review petitions the decision of the review petition had to be as laid down by O. XLVII 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 Honble 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 law15. 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 in 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 such 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 it 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 remand16. 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 they 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 appellants 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 judgment17. 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(i) the SLP against the main judgment which was filed by the appellant earlier is already withdrawn 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 paragraphs 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 thea 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 rejected18. 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 discharges 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 delink the said SLP awaiting the decision in the remanded proceedings19. 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 of the remanded review proceedings at its earliest convenience and preferably within a period of eight weeks from the receipt of a copy of this order at its end.