Supreme Court of India 29 August 1997 Bench: S. B. Majmudar, S. Saghir Ahmad PETITIONER: RELIANCE INDUSTRIES LTD. Vs. RESPONDENT: PRAVINBHAI JASBHAI PATEL & ORS.
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 the disposal of the review petition as per the majority opinion of the three learned Judges or whether on the 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.”
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 the 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 the Kharicut canal which, in turn, leads to the Khari river. It was further alleged that there are about 11 villages in the Kheda district whose only source of water for the purpose of agriculture is from the 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 color 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 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 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 the appellant-company 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 the 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, 1996 both the learned Judges constituting the Division Bench came to the conclusion that once there was a 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 the appellant-company which have culminated into these appeals.
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?
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 the 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 the law.
It is also mentioned 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 leveled 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 the 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 remand.
Edited by: Purnima Ojha