TMI Blog1997 (8) TMI 515X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Guj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive : 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 presen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... VII 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 opini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vice 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 proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ked 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... res 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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